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District Court 21 March 2024

R v Pinder

[2024] NSWDC 82

Sexual offencesDomestic & family violence

Citation: R v Pinder [2024] NSWDC 82
Court: District Court of New South Wales
Date: 21 March 2024
Judge: Scotting DCJ

Background

The offender, a 67-year-old man born in the Bahamas with a background as a professional basketball player, pleaded guilty in the District Court to two sexual offences against a woman with whom he had a long-term casual sexual relationship. The offences occurred on separate occasions more than a decade apart: the first in November 2009 and the second in March 2021.

The first offence (aggravated sexual assault) involved the offender inserting his entire hand into the complainant's vagina after she withdrew consent and attempted to leave. The physical injuries were severe and life-threatening, requiring emergency surgery, removal of a 700ml blood clot, and a blood transfusion. The second offence occurred when the offender penetrated the complainant with his penis while she was asleep, and continued after she woke and attempted to push him away.

The offender had prior convictions for sexual offences dating to the 1990s. At the time of sentencing, he was already serving a custodial sentence for an unrelated matter.

  • What was the appropriate sentence for each offence, having regard to their objective seriousness and all relevant circumstances?
  • What discount applied to the sentence following a guilty plea entered in the District Court?
  • Whether the offender's cognitive impairment and background constituted mitigating factors, and to what extent they affected the sentence.
  • Whether special circumstances existed to justify a longer-than-standard parole period.
  • How the current sentences should be structured in relation to the existing sentence already being served.

Decision

Scotting DCJ applied a 5% discount to reflect the offender's guilty pleas entered in the District Court, consistent with section 25D(2)(c) of the Crimes (Sentencing Procedure) Act 1999. The court noted that the standard non-parole period for aggravated sexual assault is 10 years and for sexual assault without consent is 7 years, and used these as reference points in assessing objective seriousness.

The court accepted evidence of the offender's significant personal history, including childhood exposure to serious family violence, a major head injury at age 12, multiple subsequent head injuries, and a diagnosed cognitive impairment. Neuropsychological and psychiatric reports were tendered, along with evidence from the offender himself. The court found that the cognitive impairment helped explain the offender's pattern of behaviour but did not excuse it. The sentence was required to provide a degree of community protection.

A finding of special circumstances was made under the sentencing legislation. The court considered that the offender's cognitive impairment meant he required treatment more readily available in the community, justifying a longer parole period than the standard ratio. The court also acknowledged that COVID-19 pandemic restrictions had made custody more burdensome, and noted a serious assault the offender suffered in custody on 30 January 2024.

An aggregate sentence was imposed under section 53A of the Crimes (Sentencing Procedure) Act 1999, with partial accumulation on the pre-existing sentence. The court backdated the sentence to 26 October 2021 to account for time already spent in custody.

Orders Made

  • The offender was convicted of aggravated sexual assault (s 61J(1) Crimes Act 1900) and sexual assault without consent (s 61I Crimes Act 1900).
  • An aggregate sentence of 8 years imprisonment was imposed, with a non-parole period of 5 years.
  • The sentence was backdated to 26 October 2021.
  • The non-parole period expires on 25 October 2026; the head sentence expires on 25 October 2029.
  • The offender is eligible for parole from 25 October 2026.

Key Takeaways

  • A guilty plea entered in the District Court (rather than at the earliest opportunity) attracts a 5% sentencing discount under s 25D(2)(c) of the Crimes (Sentencing Procedure) Act 1999, not the higher discounts available for earlier pleas.
  • Cognitive impairment established by neuropsychological and psychiatric evidence may be treated as an explanatory factor going to the offender's personal circumstances, but the District Court confirmed it does not excuse serious sexual offending and does not displace the need for community protection.
  • Special circumstances can be established where an offender's cognitive impairment means therapeutic treatment is more accessible in the community than in custody, warranting an extended parole period relative to the non-parole period.
  • Under the standard sentencing approach affirmed in R v Olbrich, adverse factual findings at sentence must be proved beyond reasonable doubt, while findings favourable to the offender need only be established on the balance of probabilities.
  • Where an offender is already serving a separate custodial sentence, partial accumulation of the new sentence is available, with backdating used to reflect time already served in custody.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61J(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 25D(2)(c), 53A

Cases:
- R v Olbrich (1999) 199 CLR 270
- R v Youkhana [2004] NSWCCA 412