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District Court 14 March 2024

R v Parese

[2024] NSWDC 65

Sexual offencesAssault & violenceTheft & propertyPublic order & justice offences
SENTENCING COGNITIVE IMPAIRMENT SEXUAL OFFENCES MORAL CULPABILITY BREACH OF CONDITIONAL LIBERTY AGGRAVATED SEXUAL ASSAULT

Citation: R v Parese [2024] NSWDC 65
Court: District Court of New South Wales
Date: 14 March 2024
Judge: Noman SC DCJ

Background

The offender was convicted after a jury trial of 34 counts spanning offending against four separate victims between mid-2017 and early 2020. The offences included multiple counts of aggravated sexual assault, aggravated indecent assault, aggravated incitement of sexual touching, intentional choking, robbery, theft, assault occasioning actual bodily harm, use of offensive weapons, and property damage.

Three of the four victims had cognitive impairments based on intellectual disability or acquired brain injury. The fourth victim's cognitive impairment arose from severe mental illness. All four were adults living in the community in varying circumstances. Two were homeless and using illicit drugs at the relevant times; one resided in assisted care; one was employed but reliant on family support.

The offender did not accept that the fourth victim (GB) met the definition of cognitive impairment, but the jury's verdicts resolved that question beyond reasonable doubt. The offender was on conditional liberty during at least part of the offending period, and that breach was treated as an aggravating factor.

  • How should objective seriousness be assessed across a large volume of sexual and non-sexual offences committed against multiple vulnerable victims?
  • What weight should be given to the offender's own cognitive impairment in reducing his moral culpability?
  • How should the principles of totality and accumulation be applied when sentencing for 34 counts spanning multiple victims and offending episodes?
  • Whether the standard non-parole period provisions operated as sentencing yardsticks for the relevant offences.
  • Whether the offender fell within the scope of the Crimes (High Risk Offenders) Act 2006 (NSW), requiring a statutory warning.

Decision

Her Honour found the offending to be objectively very serious across all victims. The cognitive impairment of each victim was found to have been readily apparent to the offender with sufficient exposure, and in several instances he had been expressly told of a victim's limitations or had sent messages acknowledging his awareness of them. The court was satisfied beyond reasonable doubt that the offender exploited each victim's vulnerability.

The offender's own cognitive impairment was considered in the assessment of moral culpability. While the court acknowledged its relevance, her Honour did not apportion varying degrees of culpability based on the relative severity of each victim's impairment. The breach of conditional liberty during the offending period was treated as an aggravating factor.

In structuring the sentence, the court applied the principle of totality to a large number of counts across four victims. Individual sentences were set for each count, with accumulation ordered across the different victims and offending episodes. The individual sentences ranged from 18 months for assault occasioning actual bodily harm up to 12 years (with non-parole periods of 8 years 6 months) for the most serious aggravated sexual assault counts. The court found that no lesser overall term or non-parole period would adequately reflect the seriousness of the total offending.

Her Honour also noted the statutory requirement under s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW) to warn the offender that the Supreme Court may, at a later time, make an extended supervision order or continuing detention order in respect of 22 of the counts, which constitute "serious offences" under that Act.

Orders Made

  • Total sentence of 28 years imprisonment with a non-parole period of 18 years and 6 months, commencing 5 May 2020.
  • Sentence expires 4 May 2048; eligible for parole on 4 November 2038.
  • The non-parole period represents approximately 66% of the total sentence (a variation from the standard statutory ratio).
  • Statutory warning issued under s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW) in respect of 22 counts classified as serious offences under that Act.

Key Takeaways

  • The District Court treated the exploitation of cognitively impaired victims as a central aggravating feature, finding that the offender had sufficient exposure and, in several instances, direct knowledge of each victim's limitations before and during the offending.
  • A conviction for aggravated sexual assault under s 61J(1) of the Crimes Act 1900 (NSW) carries a maximum of 20 years imprisonment and a standard non-parole period of 10 years, both of which operated as yardsticks in the sentencing exercise.
  • Where an offender's own cognitive impairment is raised as a mitigating factor, it remains relevant to moral culpability but does not automatically reduce the objective seriousness of the offending, particularly where the offender demonstrably understood the vulnerability of each victim.
  • Breach of conditional liberty during the offending period is a recognised aggravating factor under the sentencing framework applied in this decision.
  • Under s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), a sentencing court is required to warn an offender when the offences of conviction constitute "serious offences" under that Act, thereby putting the offender on notice that extended supervision or continuing detention may later be sought in the Supreme Court.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 33B(1)(a), 37(1), 59(1), 61, 61J(1), 61KD(1)(b), 61M(1), 66F(3), 95(1), 99(1), 114(1)(a), 148, 195(1)(a)
- Crimes (High Risk Offenders) Act 2006 (NSW): s 25C

Cases: No cases were cited in the portions of the judgment provided.