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District Court 1 March 2024

R v Drew

[2024] NSWDC 49

Sexual offencesDrugsFirearms & weapons

Citation: R v Drew [2024] NSWDC 49
Court: District Court of New South Wales
Date: 1 March 2024
Judge: Scotting DCJ

Background

The offender, a 27-year-old man, appeared for sentencing after pleading guilty in the Local Court to multiple offences arising from events in late April 2022. The charges included supply of a prohibited drug, sexual touching, aggravated sexual assault, and possession of an unauthorised pistol.

The complainant was a 16-year-old girl who, together with her boyfriend, had travelled from Victoria to Sydney and come to reside temporarily at the offender's studio unit in Roseville. Over the course of a single night, after the complainant's boyfriend had been arrested and taken into custody, the offender supplied the complainant with methylamphetamine and subjected her to a prolonged course of serious sexual offending. The complainant resisted repeatedly and vocally throughout.

The offending escalated across several hours from unwanted sexual touching to repeated digital penetration, continuing despite the complainant's ongoing protests, the presence of a third person in the unit, and the evident distress of the victim. Police attended at approximately 7.10am following contact from the complainant's mother. Medical examination revealed significant physical injury.

  • What sentences were appropriate for each proved offence, including the effect of Form 1 matters taken into account?
  • Whether the standard non-parole period (SNPP) was a relevant guidepost for the principal sexual assault offence.
  • How the 25% guilty plea discount should be applied.
  • Whether special circumstances existed to justify a longer parole period relative to the non-parole period.
  • How the sentences should be structured given that the offender was already serving a sentence following revocation of an Intensive Correction Order (ICO).

Decision

Scotting DCJ imposed an aggregate term of imprisonment under s 53A of the Crimes (Sentencing Procedure) Act 1999. The judge found that no sentence other than imprisonment was appropriate for the principal offences, applying the sentencing purposes set out in s 3A of that Act. The firearms offence (sequence 10) attracted no further penalty under s 10A.

The offender received a 25% discount on sentence, having entered his guilty pleas in the Local Court. In assessing the offender's culpability, the court took into account the sustained and escalating nature of the sexual offending, the vulnerability of the complainant, and the aggravated circumstances. Form 1 matters (including a further count of sexual assault and additional sexual touching) were taken into account when passing sentence on the principal charges.

A finding of special circumstances was made, warranting a longer parole period than would ordinarily apply. The judge identified three reasons: this was the offender's first time in custody, he had addiction issues, and he had mental health concerns requiring support during rehabilitation. The court also noted that COVID-19 restrictions, the offender's election to serve his sentence in protective custody, and his mental health condition had made, and would continue to make, his time in custody more onerous.

The sentence was backdated to 29 October 2022, in partial accumulation with the sentence imposed following the revocation of the ICO. The judge noted the offender had expressed genuine contrition and accepted responsibility for his actions.

Orders Made

  • Sequence 15 (supply prohibited drug, with Form 1 matter): 6 months imprisonment
  • Sequence 5 (sexual touching, with Form 1 matter): 9 months imprisonment
  • Sequence 16 (aggravated sexual assault, with Form 1 matter): 5 years imprisonment with a non-parole period of 2 years and 9 months
  • Sequence 10 (possession of unauthorised pistol): no further penalty pursuant to s 10A Crimes (Sentencing Procedure) Act 1999
  • Aggregate sentence: 5 years and 6 months imprisonment, with a non-parole period of 3 years, commencing 29 October 2022
  • Non-parole period expires: 28 October 2025
  • Head sentence expires: 28 April 2028
  • Eligible for parole: 28 October 2025

Key Takeaways

  • A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 was warranted where an offender was serving his first period of custody, had identified addiction issues, and had mental health needs requiring a longer parole period for rehabilitation.
  • Guilty pleas entered in the Local Court entitled the offender to a 25% reduction in sentence under s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999.
  • Form 1 matters are not sentenced separately but are taken into account when imposing sentence on the principal offence, consistent with the guideline in Attorney General's Application No 1 of 2022.
  • Under s 10A of the Crimes (Sentencing Procedure) Act 1999, a court may record a conviction without imposing any further penalty, as applied here to the firearms offence.
  • Where adverse factual findings are required at sentence, the District Court applied the standard from R v Olbrich: adverse findings must be proved beyond reasonable doubt, while findings favourable to the offender need only be established on the balance of probabilities.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J, 61KC
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 10A, 25D(2)(a), 53A
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Firearms Act 1996 (NSW), s 7

Cases
- Attorney General's Application No 1 of 2022 (2002) 56 NSWLR 147 (guideline judgment on Form 1 offences)
- The Queen v De Simoni (1981) 147 CLR 383
- R v Olbrich (1999) 199 CLR 270 (standard of proof at sentencing)