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District Court 11 October 2024

R v Wilson

[2024] NSWDC 593

Sexual offencesAssault & violence

Citation: R v Wilson [2024] NSWDC 593
Court: District Court of New South Wales
Date: 11 October 2024
Judge: Haesler SC DCJ

Background

The offender, a man born in 1986 and living in Wilcannia, was sentenced for a single principal offence of aggravated sexual intercourse with a child aged 14 years and under 16 years, contrary to s 66C(4) of the Crimes Act 1900 (NSW). The complainant, a 15-and-a-half-year-old girl in the care of the Minister, had travelled from Broken Hill to Wilcannia with a family friend. Their car broke down, and they stayed in Wilcannia for several nights while repairs were arranged.

On the second evening, the offender attended the house where the complainant was staying. He supplied her with beer, and she became intoxicated. The complainant later went to his home, where they smoked cannabis together. Sexual intercourse then occurred. The offence was not an isolated incident over the course of the weekend. Later that same night, after the complainant had fallen asleep, the offender woke her, grabbed her by the hair, and pushed her back down on the bed. That assault was placed on a Form 1 to be taken into account on sentence.

The offender was arrested on 23 May 2023 and had been in custody since that date. He entered a guilty plea in the Local Court, which entitled him to a 25% reduction in the otherwise appropriate sentence.

  • How objectively serious was the principal offence, having regard to the circumstances of the offending?
  • What weight should be given to the offender's significant subjective circumstances, including mental health impairment, acquired brain injury, childhood trauma, intergenerational disadvantage, and substance abuse?
  • How should the guilty plea, the Form 1 assault, the absence of remorse, and the offender's prior record be reflected in the sentence?
  • Whether special circumstances existed to justify a non-parole period that departs from the statutory ratio, allowing a longer period of supervised release.

Decision

Objective seriousness. Haesler SC DCJ characterised every act of sexual exploitation of a child as inherently serious. The offence was aggravated by the offender's deliberate supply of alcohol to the complainant, their substantial age gap (he was 37 or 38; she was 15 and a half), the absence of protection, and the fact the intercourse occurred on more than one occasion. The court noted that several commonly present aggravating features were absent, including force, grooming, and abuse of a position of trust. Following Bell v R, the court described the act as "non-oppositional," noting that consent is not an element of the offence under s 66C and is not the appropriate analytical framework.

Subjective circumstances and mental health. The court gave significant weight to a psychological report by Ms Edwige, which described the offender's history of profound disadvantage, including institutional and childhood sexual abuse, intergenerational trauma, acquired brain injury, multiple mental disorders, and serious substance abuse. The report concluded that, at the time of the offence, the offender had a mental health impairment that significantly impaired his ability to make reasoned judgments, regulate his behaviour, and appreciate the wrongness of his actions. Applying Bugmy v The Queen, the court held that this disadvantage does not lose its relevance because of prior offending, and that the mental health impairment reduced the objective seriousness of the crime.

Plea and remorse. The 25% reduction for the guilty plea was applied. The court found no evidence of actual remorse and noted that this reflected very limited insight, though it declined to punish the offender for its absence. The Form 1 assault was taken into account to increase the sentence, reflecting the need for personal deterrence and retribution.

Special circumstances. The court found special circumstances, extending the proportion of the sentence to be served on parole beyond the standard ratio. The reasoning was that the offender's complex needs required a longer period of structured, supervised release in the community, with access to appropriate support services. The court noted that release remains subject to the State Parole Authority being satisfied that community safety can be protected.

Orders Made

  • The offender was convicted of aggravated sexual intercourse with a child aged 14 and under 16 (s 66C(4) Crimes Act 1900).
  • The Form 1 assault was taken into account.
  • A finding of special circumstances was made.
  • Total sentence: 3 years and 4 months imprisonment, commencing 23 May 2023 (reflecting a 25% reduction from a pre-plea sentence of 4 years and 6 months).
  • Non-parole period: 2 years, commencing 23 May 2023; eligible for parole on 22 May 2025.
  • Balance of sentence: 1 year and 4 months, commencing 23 May 2025 and expiring 22 September 2026.
  • A copy of Ms Edwige's psychological report to be sent to Community Corrections for the State Parole Authority's consideration.
  • The offender was placed on the sex offender register, with associated restrictions on access to children, electronic communications, and ongoing reporting obligations.

Key Takeaways

  • A mental health impairment, causally connected to the offending, can reduce the objective seriousness of a child sexual offence, even where the offence is inherently grave. The court applied the principle from Paterson v R and Tepania v R that regard may be had to personal factors contributing to the commission of the offence.

  • Under Bell v R and Nelson v R, consent is not an element of an offence under s 66C of the Crimes Act 1900. The appropriate description, where there is no evidence of force or compulsion, is that the intercourse was "non-oppositional," rather than characterising the matter in consent-based terms.

  • The District Court confirmed that the absence of commonly present aggravating features (such as grooming, force, or breach of trust) is relevant to locating an offence on the spectrum of objective seriousness, even though that absence does not itself operate as a mitigating factor.

  • Applying Bugmy v The Queen, profound disadvantage, intergenerational trauma, and childhood abuse retain their mitigating force on sentence even where an offender has a prior criminal record. These factors explain, though they do not excuse, the offending.

  • Special circumstances may be found where an offender's complex mental health needs require a longer period of supervised post-release support, allowing the non-parole period to be reduced below the standard statutory ratio.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66C(4)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 33(2)(b) (Form 1)
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
- Bell v R [2019] NSWCCA 251
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- Decision restricted [2023] NSWCCA 10
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Engert v R (1995) 84 A Crim R 67
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Nasrallah v R [2021] NSWCCA 207
- Nelson v R [2016] NSWCCA 130
- Paterson v R [2021] NSWCCA 273
- R v Gavel [2014] NSWCCA 56
- R v Herring (1956) 73 WN (NSW) 203
- R v Van Ryn [2016] NSWCCA 1
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