R v McIntosh [2006] NSWDC 97

R v McIntosh [2006] NSWDC 97

The offender's guilty plea had utilitarian value, particularly because it spared the complainant from giving evidence, but it was not entered at the earliest opportunity and warranted only about a 15 percent reduction. The offence was objectively serious, committed against a nine-year-old child and while the offender was on parole for another aggravated indecent assault on a child, and required a custodial sentence. However, the lengthy delay, interstate custody and totality considerations justified flexibility, special circumstances and variation of the statutory ratio, resulting in a sentence of four years imprisonment backdated to 10 June 2005 with a two-year non-parole period.

Jurisdiction
Australia
Judgment Date
08 September 2006
Procedural Posture
Criminal Sentencing / Sentence Following Plea of Guilty on First Day of Trial
Outcome
Offender sentenced to imprisonment for four years with a non-parole period of two years.
Legal Topics
['aggravated Indecent Assault on Child Under Ten' 'discount for Plea of Guilty' 'delay in Sentencing' 'totality' 'paedophilia Diagnosis' 'risk of Sexual Recidivism' 'special Circumstances']
['criminal Law' 'sentencing'] ['aggravated Indecent Assault on Child Under Ten' 'discount for Plea of Guilty' 'delay in Sentencing' 'totality' 'paedophilia Diagnosis' 'risk of Sexual Recidivism' 'special Circumstances']

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Procedural Posture

Criminal Sentencing / Sentence Following Plea of Guilty on First Day of Trial

Legal Issues

  1. 1 ['What discount should be allowed for a plea of guilty entered on the day listed for trial where the Crown accepted the plea in full satisfaction of the indictment.' 'How delay between the 1994 offence and 2006 sentence, including interstate imprisonment, should affect sentence and totality.' "Whether the offender's status as a next door neighbour was an aggravating position of trust." "How the offender's diagnosis of paedophilia, assessed moderate risk of sexual recidivism, remorse, treatment prospects and prior sexual offending should affect sentence." 'What custodial sentence and non-parole period should be imposed for aggravated indecent assault of a nine-year-old child.']

Ratio Decidendi

The offender's guilty plea had utilitarian value, particularly because it spared the complainant from giving evidence, but it was not entered at the earliest opportunity and warranted only about a 15 percent reduction. The offence was objectively serious, committed against a nine-year-old child and while the offender was on parole for another aggravated indecent assault on a child, and required a custodial sentence. However, the lengthy delay, interstate custody and totality considerations justified flexibility, special circumstances and variation of the statutory ratio, resulting in a sentence of four years imprisonment backdated to 10 June 2005 with a two-year non-parole period.

Court Disposition

Offender sentenced to imprisonment for four years with a non-parole period of two years.

Orders

  • ['The offender is sentenced to imprisonment for four years to date from 10 June 2005.' 'A non-parole period of two years is fixed to expire on 9 June 2007, when the offender will become eligible for parole.' 'Special circumstances were found and the statutory ratio was varied.']