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District Court 15 March 2024

R v Philip

[2024] NSWDC 93

Sexual offences
CRIMINAL LAW SENTENCE TWO COUNTS OF SEXUAL MISCONDUCT VICTIM 14 YEARS OLD POSITION OF TRUST PROSPECT OF REOFFENDING

Citation: R v Philip [2024] NSWDC 93
Court: District Court of New South Wales
Date: 15 March 2024
Judge(s): Newlinds SC DCJ

Background

The offender was sentenced following his conviction at trial for two sexual offences committed in 2003, when he was 24 years old. The offences occurred at a camping ground at Hastings Point in northern New South Wales during the Christmas holiday period, a location where the offender's family and the victim's family had holidayed together annually for some years.

The victim was 14 years old at the time. He regarded the offender, who was ten years his senior, as a trusted older brother figure. On the night in question, the offender provided the victim with rum and Coke, causing the victim to become intoxicated.

The offender was found guilty by a jury on 20 October 2023 of two counts: aggravated sexual intercourse without consent involving a person under 16 (Count 1, carrying a maximum of 20 years imprisonment and a 10-year standard non-parole period), and aggravated assault with an act of indecency (Count 3, carrying a maximum of 7 years imprisonment and a 5-year standard non-parole period). The sentencing hearing took place on 15 March 2024.

  • What was the appropriate aggregate sentence for two counts of sexual offending against a 14-year-old victim, having regard to the objective seriousness of the conduct, the standard non-parole periods, and the maximum penalties?
  • How much weight should be given to general and specific deterrence, denunciation, and community protection in the context of historical child sexual offences?
  • What weight should the offender's subjective circumstances attract, including his prospects of rehabilitation and prior criminal history?
  • Whether special circumstances existed justifying an adjustment to the standard ratio between non-parole period and head sentence.

Decision

His Honour found the facts beyond reasonable doubt. The victim fell asleep and woke in the early hours of the morning to find the offender performing oral sex on him. As the pair walked back to camp, the offender repeatedly attempted to penetrate the victim's anus with his finger, while the victim moved away each time. The court found a predatory aspect to the offending: the victim was asleep, probably intoxicated, and could not have consented, nor could the offender have believed otherwise.

Newlinds SC DCJ placed the objective seriousness of both counts at the lower end of the middle range. Relevant aggravating features included the victim's age, his intoxication and vulnerability, the position of quasi-familial trust the offender occupied, and a prior 2012 conviction for a similar act of indecency committed against another adult male while he was asleep. The court gave significant weight to general and specific deterrence and to the need to publicly denounce the offending, noting that such conduct was equally abhorrent by the standards of 2003 as by those of today.

The subjective case was described as "not particularly strong." The court acknowledged the offender's prospects of rehabilitation and accepted that this was his first custodial sentence, both of which were relevant to the sentencing exercise. However, the prior offending in 2012 of a strikingly similar character undermined the strength of the rehabilitation case and the submission that the 2003 offending was isolated or opportunistic.

Special circumstances were found to exist, justifying a departure from the standard non-parole period ratio. The court identified the offender's genuine rehabilitation prospects and his lack of prior custodial experience as the basis for that finding. An aggregate sentence of four years imprisonment was imposed, with a non-parole period of 32 months, backdated to 18 October 2023 to account for time already served.

Orders Made

  • The offender is sentenced to an aggregate term of imprisonment of 4 years (48 months), commencing 18 October 2023 and expiring 17 October 2027.
  • The aggregate non-parole period is 32 months, expiring 17 June 2026, being the earliest date of eligibility for release on parole.
  • Indicative sentence for Count 1: 3 years and 6 months imprisonment, with a non-parole period of 29 months.
  • Indicative sentence for Count 3: 1 year imprisonment, with a non-parole period of 9 months and two weeks.

Key Takeaways

  • The District Court confirmed that historical child sexual offences are to be assessed by reference to contemporary sentencing principles, and that the conduct was no less serious in 2003 than it is today.
  • A prior conviction for a similar act of indecency committed in a comparable manner (against a sleeping victim) significantly limited the weight available to the offender's rehabilitation case, even where some prospect of rehabilitation was accepted.
  • Special circumstances were established where the offender had no prior custodial experience and demonstrated genuine rehabilitation prospects, justifying an increase in the ratio of non-parole period to head sentence.
  • Where an offender supplies alcohol to a child victim before committing sexual offences, that conduct is treated as an aggravating feature that heightens the vulnerability of the victim and the predatory character of the offending.
  • In sentencing for offences of this kind, denunciation and both general and specific deterrence attracted significant weight alongside the need to hold the offender accountable for harm caused to the victim.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J(1), 61M(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A

Cases
- Mill v R (1988) 166 CLR 59
- Nguyen v R [2007] NSWCCA 14
- R v Bussey [2020] NSWDC 802
- R v Daley [2010] NSWCCA 223
- R v Oxley [2022] NSWDC 2000
- Yardley v Betts (1979) 22 SASR 108