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 limitations. 

13. You came from a good family.  I am conscious that your mother abandoned you when you were six but what she left behind was a good family.  Your father did his best to raise you.  That gentleman was unfortunately, at one point, assaulted when you were quite young and he engaged the services of a friend to look after you on a couple of weekends. When you were nine years old you were sexually abused by that “friend” and that abuse deeply traumatised you.  You have never had any treatment for it.  In fact, part of your reaction to your offending against the present complainant has been to feel shame that you have done to him something that was done to you; and it has also brought back to you the anger that you felt (and still feel) at what was done to you as a little boy.

14. In offending against children, Mr Heyward, the fact that a person is of good character is of a reduced significance, but it is still relevant and you have worked hard all your life. 

15. The Court has been provided with a victim impact statement from the young person concerned. As I said in a judgment earlier today, when I admitted it into evidence over objection, the damage done is real and significant. But it is the type of damage that the Court now knows (and is instructed by Parliament) to be the sort of damage that is usually accompanied by sexual offending against children - the sort of damage which undoubtedly happened to you.

16. I am satisfied that you are genuinely and deeply remorseful for what you did all those years ago. 

17. I have absolutely no doubt that you would ever reoffend.  You certainly have not reoffended in the 30-odd intervening years. You have proved your prospects of rehabilitation.  They are excellent - and they are in fact complete. 

18. But you know better than anyone else why it is important that offending against children should receive very careful consideration by the Court.

19. You pleaded guilty quite late – but you had indicated, maybe two weeks out from the trial, that you intended to plead guilty.  To that extent, of course, the pressure on the victim would have been reduced. That pressure built up as the trial approached, but you did spare him the ordeal of a trial.  I shall allow you a 15% discount for that late plea.

20. By having regard to the nature of the sexual offending, your age at the time, and the victim's age, I am satisfied, contrary to the submissions made by your counsel, that the s 5 threshold has been crossed: that is, I am satisfied that no sentence other than a sentence of imprisonment is appropriate.

21. In this regard, except for your plea of guilty, I would have sentenced you to a term of imprisonment of 2 years and 4 months.  Because of the 15% discount, the term of imprisonment is 2 years. 

22. The question is: how is that term to be served?  Is it to be served by way of full time imprisonment; or, at law, is an alternative available for the Court for consideration?

23. This has attracted the main area of disputation in this sentence hearing.

24. Your counsel has submitted that an offence under s 78K is not “a prescribed sexual offence” within the meaning of s67(1) of the Crimes (Sentencing Procedure) Act 1999. Therefore, if it is not “a prescribed sexual offence”, I can consider whether it would be appropriate for the matter to be dealt with alternatively to full time imprisonment.

25. The Crown has, in this matter, submitted that s 78K is "a prescribed sexual offence"; but if not, then the "spirit" of those amendments preclude alternative forms of imprisonment being considered. (No authority was provided for that latter submission which seems to me to have no more weight than a similar submission made in an iconic Australian made film.).

26. In another case at the end of last year, R v PLS unreported 13 November 2019, another judge of this Court at Parramatta was asked to consider the same question.  In that case, not only did the advocate for the offender submit that an offence under s 78K was not "a prescribed sexual offence" within the meaning of s.67(1), the Crown Prosecutor agreed with that submission. Woodburne SC DCJ proceeded to sentence on the basis that the submissions were correct. Her Honour therefore in effect made a ruling that s 78K was not “a prescribed sexual offence”.

27. (I pause to observe that the Court generally is not assisted by the Crown making inconsistent and conflicting submissions on such an important topic, especially, as in the present case, it had in excess of 3 months to consider this issue; and its submissions were considered and made with full knowledge of the earlier case to which I have referred). 

28. The fact that another judge of this Court has made such a ruling has some significance to me because I should only depart from that ruling if I am positively persuaded it is not correct, and I am not. Indeed, I accept the submissions put today by your counsel that s 78K is not “a prescribed sexual offence”. As your counsel has submitted, those legislative amendments were painstakingly prepared and drafted. The Court is to sentence in accordance with what the law is, not what someone might have wished it to be. The issue was raised (at least) on 13 November 2019 in R v PLS. There have been no legislative amendments in the intervening four months. Therefore, I am going to proceed on the basis that this is not “a prescribed sexual offence”.

29. I then have to consider the objective seriousness of the offending and also whether community safety, being the paramount consideration, will be served more fully by you serving your sentence by means of an intensive correction order - and I am satisfied in that respect.

30. Taking into account all of the matters I have already articulated, I order that the sentence of 2 years imprisonment be served by means of an intensive correction order which commences today. 

31. There are two standard and mandatory conditions to any and every intensive correction order.  They are: first, that you must not commit any offence; and secondly, that you must submit to supervision by a community corrections officer.  In this regard I have noted in the sentencing assessment report that if the Court were to make a supervised order, Community Corrections would suspend your supervision. 

32. In addition to those two mandatory conditions, there must be at least one additional condition, unless there are exceptional circumstances - which is not this case. I therefore impose the following one additional condition: that you perform 500 hours of community service. 

33. If you fail to comply with the conditions of the order, sanctions may be imposed by the Commissioner of Corrective Services or the State Parole Authority.  Those sanctions may include a formal warning, the imposition of more stringent conditions, or it may involve the revocation of the order.  If the order is revoked, you may be required to serve all, or some, of your period of sentence in full time custody.

34. You are now directed to attend the registry where in due course a copy of the order will be given to you. 

35. In addition to the orders I have made, you are to report to the Campbelltown Community Corrections office no later than 4pm on Tuesday 24 March 2020. 

36. I direct these remarks be taken out in the event that they are needed anywhere else.

POST SCRIPT

Since these ex-tempore Remarks were delivered: 

1. the Crown filed an Amended Notice of Appeal dated 21 April 2020 contending that in imposing an Intensive Correction Order I had acted "contrary to law"; and 

2. on 27 May 2020 the Court of Criminal Appeal gave Notice that the Crown had abandoned the appeal in (a) above.

Decision last updated: 29 May 2020