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District Court 4 April 2025

R v MacDonald (No 2)

[2025] NSWDC 181

Sexual offences

Citation: R v MacDonald (No 2) [2025] NSWDC 181
Court: District Court of NSW
Date: 4 April 2025
Judge: Haesler SC DCJ

Background

The offender was convicted by a jury in 2023 of multiple serious sexual offences against two young girls, committed in the 1980s. In February 2024, Haesler SC DCJ imposed an aggregate sentence of 9 years with a non-parole period of 5 years and 6 months.

The offender appealed his convictions to the Court of Criminal Appeal. The CCA dismissed most grounds but allowed the appeal on one count (Count 11), finding that the complainant's evidence at trial did not specifically establish digital penetration in relation to that particular incident. The CCA quashed the conviction on Count 11, substituted a verdict of guilty to the lesser offence of indecent assault under s 61E(1) of the Crimes Act 1900 (NSW), and remitted the matter to the District Court for resentencing.

At resentencing, the court also received fresh evidence in the form of Justice Health reports. Those reports confirmed that the offender's chronic leg ulcer condition, associated with vascular disease, had persisted since he entered custody and was unlikely to resolve. The offender was 83 years old and required a walking frame.

  • What sentence should be indicated for Count 11 following the substitution of the lesser verdict of indecent assault in place of the original conviction for sexual intercourse without consent?
  • How should the fresh medical evidence concerning the offender's deteriorating health and mobility affect the overall aggregate sentence?
  • What aggregate sentence and non-parole period, applying the totality principle, was appropriate across all counts?

Decision

On Count 11, the court reduced the indicated sentence from 2 years to 9 months imprisonment. The reduction reflected the fact that the substituted offence of indecent assault did not involve penetration of the child. The court gave proper weight to the applicable maximum penalty for that offence and the objective circumstances of the conduct, which still involved serious predatory behaviour including the offender kneeling beside the child and placing his hand inside her pants while threatening imminent sexual intercourse.

The fresh Justice Health material confirmed what the court had anticipated at the original sentencing: the offender's health had not improved. His chronic vascular condition and associated leg ulcers remained ongoing. The court accepted that his advanced age and mobility difficulties meant he experiences custody more harshly than a healthy person, and took this into account as a mitigating factor in adjusting the overall sentence.

Both the reduction in the indicated sentence for Count 11 and the health evidence produced only a modest overall adjustment. The court applied the totality principle to ensure the aggregate sentence was just and appropriate to the offender's overall criminality without being crushing, particularly given his vulnerability in custody. The sentences indicated for the remaining ten counts were unchanged from the original judgment.

Orders Made

  • Count 11: indicated sentence of 9 months imprisonment
  • All other counts: indicated sentences remain as per the original judgment
  • Fresh aggregate term of 8 years and 9 months imprisonment
  • Non-parole period of 5 years and 3 months, commencing 4 December 2023
  • Eligible for release to parole on 3 March 2029
  • Balance of term of 3 years and 6 months commencing 4 March 2029, with sentence expiring 3 September 2032
  • Overall reduction from the original sentence: 3 months
  • Dates adjusted in the offender's favour to account for his ill health

Key Takeaways

  • Where the Court of Criminal Appeal quashes a conviction and substitutes a lesser verdict, the matter may be remitted to the original sentencing judge for a fresh sentence, and that judge may revisit all aspects of the earlier sentence when doing so.
  • A conviction for sexual intercourse without consent requires evidence specifically establishing the penetrative act in relation to each individual count; general evidence about habitual conduct is insufficient to establish that element beyond reasonable doubt for a particular occasion.
  • The District Court confirmed that resentencing following a substituted verdict involves indicating an appropriate penalty for the lesser offence, having regard to the different maximum penalty and the narrower scope of the conduct established.
  • Advanced age, chronic illness, and mobility impairment are established mitigating factors in NSW sentencing, recognised on the basis that such an offender will experience custody more harshly than a fit, younger person.
  • The totality principle operated here to limit the overall reduction to 3 months, reflecting that the aggregate sentence must remain proportionate to the whole of the offender's criminality across multiple serious offences.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61D(1), 61E(1)
- Crimes (Appeal and Review) Act 2001 (NSW), s 7(2)

Cases
- MacDonald v R [2024] NSWCCA 240 (Court of Criminal Appeal, majority decision allowing appeal on Count 11)
- R v MacDonald [2024] NSWDC 136 (original sentencing decision)