R v Heyward

[2020] NSWDC 248

District Court

New South Wales

Medium Neutral Citation:	R v Heyward [2020] NSWDC 248
Hearing dates:	5 December 2019 and 20 March 2020
Decision date:	20 March 2020
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Imprisonment for 2 years to be served by means of an Intensive Correction Order.
Catchwords:	CRIME -SENTENCE - homosexual intercourse with a male between 10 and 18 years - whether a "prescribed sexual offence" so as to preclude the sentence being served by means of an Intensive Correction Order - undesirability of the Crown making inconsistent submissions before different Judges on a matter of statutory construction.
Legislation Cited:	Crimes Act 1900 (NSW), s78K, Crimes (Sentencing Procedure) Act 1999 (NSW), s67(1)
Cases Cited:	R v PLS, unreported 13 November 2019 per Woodburne SC DCJ
Category:	Sentence
Parties:	Regina (Crown) K. Heyward (Offender)
Representation:	Ms A. Brown (ODPP Campbelltown) Ms Cook (Counsel for offender)
File Number(s):	2018/00071775
Publication restriction:	Non publication order made of the name of the victim or any other thing that might identify him, directly or indirectly.

JUDGMENT

1. Mr Heyward, you appear for sentence today in relation to one offence, that is, homosexual intercourse with a male between the ages of 10 and 18 years. 

2. This involves a contravention of s 78K of the Crimes Act. The maximum penalty for the offence is 10 years imprisonment and there is no standard non-parole period.

3. The offence took place in August 1985. 

4. At that time, you were the owner of a garden centre at Tahmoor and you were 34 years old. You had been happily married for many years and you had children.  You had no criminal record of any kind. 

5. At that time, a school boy, almost 16 years of age, worked for a short period of time in that garden centre after school.

6. On one occasion, you and he had a rather improper discussion.  You had a discussion with the complainant concerning circumcised, as opposed to uncircumcised, penises.  The victim exposed himself to you and quite inappropriately (and indeed criminally) you then touched his penis and briefly performed oral sex on him.  It did not proceed to ejaculation. You drove the boy home.

7. Nothing further happened for many years, although I accept that the fact of the offending weighed on your conscience, fairly consistently, throughout that lengthy period.

8. In terms of its objective seriousness for an offence of its kind, it is somewhere equidistant between the middle and the bottom of the range. 

9. It is additionally aggravated by the fact that this young person was an employee of yours and therefore you were in a position of some trust and he was vulnerable because of that employment.  They are not two additional aggravating factors, each of those matters is one side of the same coin.

10. You are now almost 70 years old. 

11. You have not offended since that date. 

12. You still live with your wife for whom you are effectively her carer.  She is a very sick lady and you yourself have significant physical…