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District Court 10 October 2024

R v Edwards

[2024] NSWDC 497

Sexual offences

Citation: R v Edwards [2024] NSWDC 497
Court: District Court of New South Wales
Date: 10 October 2024
Judge: Sutherland SC DCJ

Background

The offender, a man in his seventies, pleaded guilty to four counts of indecent assault on a child under 10 years of age, contrary to s 61M(2) of the Crimes Act 1900 (NSW). The offences were committed against a girl aged between three and five years old during the period from January 1994 to December 1995. The offender was more than 40 years older than the victim and had used threats and secrecy to conceal his conduct. He was not arrested or charged with these offences until April 2023.

The four counts arose from discrete incidents: an assault behind a garden shed near a guava tree, an assault involving a children's chair behind the same shed, an assault during a bath at the victim's grandmother's home, and an assault beneath a box trailer in a driveway. A separate child witness was present during the first incident. The offender had previously been convicted in 1998 of sexual assault offences against that witness, a cousin of the victim.

At the time of sentencing for the present offences, the offender had been in continuous custody since 2 August 2012, serving sentences imposed for other matters including a further child sexual assault conviction in 2022. The central sentencing question was how the court should structure the new sentence, particularly whether it could be backdated to a point before the offender had been charged with the current offences.

  • How the principle of totality applied where the offender was already serving a lengthy, unrelated sentence at the time he was charged and sentenced for the index offences
  • Whether the court had power under s 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to backdate a sentence to a commencement date that predated both the charging of the offender for the current offences and the expiry of an earlier sentence for different offending
  • What aggregate sentence and non-parole period appropriately reflected the objective seriousness of the offending, the offender's history, and the totality principle
  • Whether an indicative or alternative sentence should be imposed in the event that backdating was found to be jurisdictionally unavailable

Decision

The court assessed the four offences as falling in the low to moderate range of objective seriousness, while noting the deliberate grooming behaviour, the young age of the victim, the use of threats, and the breach of trust involved. The offender's significant prior history of similar offending was treated as an aggravating factor. Some mitigating weight was given to the pleas of guilty, though the utilitarian value was limited given the strength of the Crown case.

On the central question of backdating, the court undertook a detailed analysis of s 47 of the Crimes (Sentencing Procedure) Act 1999, which confers a discretion to fix a commencement date for a sentence earlier than the date of imposition. The court concluded that this discretion is broad enough to permit backdating into a period of pre-existing continuous custody, even where that custody was referable to a different offence and even where the charges for the current matter had not yet been preferred at the proposed commencement date. The court found support for this approach in the purpose underlying the totality principle: to ensure that the overall effective sentence is proportionate and just, rather than mechanically cumulative.

The court applied this reasoning to backdate the aggregate sentence to 14 April 2022. This had the practical effect of extending the existing head sentence by 18 months beyond its previous expiry date and extending the parole eligibility date by 12 months. The court was careful to calibrate the ratio between the non-parole period and the head sentence to approximately 76%, consistent with the approach taken by the judge who had sentenced the offender in 2022.

In a transparent acknowledgment of the legal uncertainty, the court indicated the alternative sentence it would have imposed had it concluded that backdating was jurisdictionally unavailable: an aggregate sentence of six years with a two-year non-parole period, commencing from 14 April 2023, the date after charge.

Orders Made

  • Aggregate sentence of 7 years imposed pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999
  • Sentence backdated to commence on 14 April 2022
  • Non-parole period of 3 years, with eligibility for parole from 13 April 2025
  • Additional term of 4 years, expiring 13 April 2029
  • Indicative sentences: Count 1 (guava tree) 3 years; Count 2 (kids chair) 4 years; Count 3 (bath) 3 years; Count 4 (trailer) 4 years

Key Takeaways

  • The District Court held that s 47 of the Crimes (Sentencing Procedure) Act 1999 confers a discretion broad enough to permit a sentence to be backdated to a date that precedes both the laying of the current charges and the expiry of a prior, unrelated sentence, provided the offender has been in continuous custody throughout.
  • The totality principle operates to ensure that the combined effect of all sentences reflects a proportionate response to the offender's overall criminality; it does not require the sentences to relate to the same offending or the same period of custody.
  • Where an offender has spent many years in continuous custody before being charged with historical offences, a sentencing court may use the backdating discretion to avoid imposing an effective sentence that is disproportionately long when viewed as a whole.
  • Transparency in the sentencing process was demonstrated here by the court explicitly stating the alternative sentence it would have imposed had it found a jurisdictional bar to backdating, providing a clear record for any appellate review.
  • Under s 61M(2) of the Crimes Act 1900, the applicable maximum for indecent assault on a child under 10 is 10 years imprisonment per count; no statutory non-parole period applied to offences committed in the 1994 to 1995 period.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 47, 53A
- Crimes Act 1900 (NSW), s 61M(2)
- Crimes (Serious Sex Offenders) Act 2006 (NSW)

Cases
- Almaouie v R [2021] NSWCCA 274
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 387
- Caristo v R [2011] NSWCCA 7
- Darrigo v R [2007] NSWCCA 9
- FL v R [2020] NSWCCA 114
- John v R [2015] NSWCCA 5
- Kljaic v R [2023] NSWCCA 225
- Mill v The Queen (1988) 166 CLR 59
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- R v Cattell [2019] NSWCCA 297
- R v DW (No 1) [2020] NSWDC 461
- R v Holder; R v Johnston [1983] 3 NSWLR 245
- R v McHugh [1985] 1 NSWLR 588
- R v Newman and Simpson [2004] NSWCCA 102
- R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
- R v Thomas [2007] NSWCCA 269
- R v Todd [1982] 2 NSWLR 517
- R v Tuuta [2014] NSWCCA 40