R v HJS

[2020] NSWDC 480

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v HJS [2020] NSWDC 480

Date of orders:

21 Augusts 2020

Decision date:

21 August 2020

Jurisdiction:

Criminal

Before:

Priestley SC, DCJ

Decision:

See [68]

Catchwords:

CRIME — Sexual offences — Sexual intercourse without consent

CRIME — Sexual offences — Indecent assault

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Muldrock v The Queen [2011] HCA 39

Ibbs v The Queen (1987) 163 CLR 447

R v Holder [1983] 3 NSWLR 245

Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41

Texts Cited:

Nil

Category:

Sentence

Parties:

Regina (Crown)
HJS (Offender)

Representation:

Webb for the Director of Public Prosecutions
Davenport SC for the Offender

File Number(s):

2018/00329801

Publication restriction:

Unrestricted

Contents

Judgment

Introduction

Standard non-parole period

The facts

Objective seriousness

Section 21A.

Subjective case

Psychologist’s report

Testimonials

Sentencing Assessment Report

Covid 19

Guilty plea

Good character

Likelihood of reoffending

Remorse and contrition

Good prospects

Totality

Special circumstances

Sentencing considerations

Variation from SNPP

Orders

Judgment

Introduction

1. The offender appears for sentence on two charges of sexual assault under section 61I of the Crimes Act. Each charge has a maximum penalty of 14 years and there is a standard non-parole period of 7 years. There are no matters to take into consideration under the Form 1 procedure and there are no related or backup offences.

2. The offending occurred on 27 October 2018. The offender was born on 13 August 1958. The offender was therefore 60 years old at the time of this offending. He was employed as a school teacher at that time. At the time of the offending he had no criminal history, though it was to transpire that he had offended in the previous 12 months by way of common assault.

3. Since his arrest the offender has spent no time in custody for this offending (but had served 3 months of his Local Court sentence for common assault, which was later set aside). He has spent time at a rehabilitation facility to deal with his alcoholism. The offender spent nine weeks at that facility.

4. The ultimate issue arising from the submissions made on behalf of the offender and made on behalf of the Crown is whether in the circumstances of this case there is any other sentence more appropriate than a full time custodial sentence.

Standard non-parole period

5. The standard non-parole period is to be considered a guidepost in the same way as the maximum sentence may be considered a guidepost. I note at [29] of Muldrock v The Queen [2011] HCA 39 it was said that Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act requires sentencing judges to state fully the reasons for arriving at the sentence imposed. In discussing what was required by section 54B(4) which was to the same effect as the current section 54B(3), the Court said that “the obligation applies in sentencing for all Division 1A offences regardless of whether the…