Citation: [2026] NSWDC 128
Court: District Court of New South Wales
Date: 6 May 2026
Judge(s): Lerve DCJ
Background
The offender pleaded guilty to two counts of aggravated sexual intercourse without consent (in company), contrary to s 61J(1) of the Crimes Act 1900 as it then was. A further count of the same offence was placed on a Form 1 to be taken into account when sentencing for the first count. All offences arose from a single episode of criminality on 28 April 1991 in Wagga Wagga.
The victim was 16 years and 10 months old at the time. The offender, then 21, was identified decades later through a DNA match and was recently arrested. The offender entered pleas of not guilty at arraignment in February 2025, offered to plead guilty on 15 October 2025, and formally entered guilty pleas on 22 October 2025. The Court found that these late pleas attracted a 5% utilitarian discount.
The offending involved an attack by the offender and an unidentified co-offender (referred to as the "blonde male") on the victim as she walked home after a party. The blonde male was dominant and controlling throughout the attack, which included multiple acts of sexual intercourse without consent, physical violence, and threats to kill.
Legal Issues
- Whether the Court should apply sentencing patterns and practices from 1991 (the time of the offending) or current sentencing patterns, pursuant to s 23B(3) of the Crimes (Sentencing Procedure) Act 1999.
- Whether "exceptional circumstances" existed to justify departure from the default requirement under s 23B(1) to sentence in accordance with patterns and practices at the time of sentencing.
- The appropriate discount for the utilitarian value of the late guilty pleas.
- Proper effect to be given to the Form 1 offence pursuant to principles from Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002.
Decision
The Court found that the offences were not "child sexual offences" for the purposes of s 23B, as the victim was 16 years and 10 months old at the relevant time. This meant the Court could apply 1991 sentencing patterns if exceptional circumstances were established.
Lerve DCJ accepted the offender's submissions that exceptional circumstances were made out. The factors relied upon included the 35-year delay between the offending and sentencing, the offender's age at the time (21), his deprived background, his childhood experience of sexual assault, his mental condition, and evidence of rehabilitation. The Crown did not oppose (or at least acquiesced in) this approach. However, the Court flagged the need to guard against "double counting," as several of those same factors were also relied upon in other aspects of the offender's submissions on sentence.
The Court characterised the offending as serious examples of aggravated sexual assault. The blonde male was the dominant actor, initiating the violence and directing the offender's participation. The offender was initially passive, standing nearby while the blonde male attacked the victim, before actively participating in penetrative sexual acts. The blonde male physically assaulted the victim, threatened to kill her, and orchestrated the sexual assaults in which the offender took part.
The Court also confirmed that the Form 1 offence must have "some meaningful impact" on the ultimate sentence, given the criminality involved. Both substantive offences carried a maximum penalty of 20 years imprisonment. No standard non-parole period applied at the time of the offending.
Orders Made
- The full text of the judgment was truncated, and the specific sentence imposed was not included in the available extract. The Court proceeded to sentence on the basis of 1991 sentencing patterns and practices, with a 5% discount for the utilitarian value of the guilty pleas.
Key Takeaways
- The District Court held that a 35-year gap between offending and sentence, combined with the offender's youth at the time, deprived background, childhood sexual abuse, mental condition, and rehabilitation, was sufficient to constitute "exceptional circumstances" under s 23B(3) of the Crimes (Sentencing Procedure) Act 1999, permitting the application of 1991 sentencing patterns.
- Under s 23B(3), the exceptional circumstances pathway is only available where the offence is not a "child sexual offence" as defined in s 25AA. Because the victim was 16 years and 10 months old, the provision was engaged.
- A risk of double counting arises where the same factors are used both to establish exceptional circumstances under s 23B(3) and to mitigate sentence on other bases, such as subjective features or delay, and the Court expressly flagged the need to guard against this.
- Consistent with the principles from AG's Application No. 1 of 2002, the Form 1 offence was required to have a meaningful impact on the sentence for the first count, given the level of criminality involved.
- The late guilty plea, entered approximately one week before the allocated trial date, attracted only a 5% utilitarian discount.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 61J(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 19, 23B, 25AA, 37
Cases:
- The Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146
- R v McLear (unrep, NSWCCA, 1 September 1992)
- R v Hines (unrep, NSWCCA, 17 October 1991)
- R v Tuala [2015] NSWCCA 8
- Bugmy v The Queen [2013] HCA 37
- Matthews v R; New v R [2018] NSWCCA 186
- YZ v R [2025] NSWCCA 165
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Moiler v R [2021] NSWCCA 73
- KT v R [2008] NSWCCA 51
- BP v R [2010] NSWCCA 159
- Locke v R (2010) 207 A Crim R 34
- Lewis v R (unrep, NSWCCA, 14 December 1993)
- Berrigan v R (unrep, NSWCCA, 7 October 1994)
- Bus & AS v R (unrep, NSWCCA, 3 November 1995)
- R v Millwood [2012] NSWCCA 2