R v Fleming [2021] NSWDC 453

R v Fleming [2021] NSWDC 453

The offending required a custodial aggregate sentence because it involved repeated sexual exploitation of a 14 year old by an adult, including five offences where the child was under the influence of drugs or alcohol, but the sentence was moderated by the guilty pleas, some facilitation of justice, the absence of further aggravating features, the non-oppositional nature of the sexual acts, the offender's immaturity, prior good character, health issues, prior custody and assault in custody, COVID-19 custody conditions, rehabilitation, support and prospects. Those matters justified special circumstances and a non-parole period of about 55% of the aggregate sentence.

Jurisdiction
Australia
Judgment Date
02 July 2021
Procedural Posture
Criminal Sentencing / Sentence Following Guilty Pleas
Outcome
Offender convicted on each matter and sentenced to an aggregate term of imprisonment of 5 years and 3 months with a non-parole period of 2 years and 10 months.
Legal Topics
['aggravated Sexual Intercourse With Child Over 14 But Under 16' 'child Sexual Offences' 'form 1 Offences' 'guilty Plea Discount' 'objective Seriousness' 'special Circumstances' 'aggregate Sentence' 'covid 19 Custody Conditions']
['criminal Law' 'sentencing'] ['aggravated Sexual Intercourse With Child Over 14 But Under 16' 'child Sexual Offences' 'form 1 Offences' 'guilty Plea Discount' 'objective Seriousness' 'special Circumstances' 'aggregate Sentence' 'covid 19 Custody Conditions']

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Procedural Posture

Criminal Sentencing / Sentence Following Guilty Pleas

Legal Issues

  1. 1 ['What sentence should be imposed for six sexual offences against a 14 year old complainant, five involving the aggravating circumstance of taking advantage of the complainant being under the influence of a drug.' 'How the two Form 1 matters should be taken into account on Count 1.' 'What weight should be given to the late guilty plea and other facilitation of the course of justice.' 'How objective seriousness should be assessed, including the age differential, drug and alcohol use, non-oppositional sexual acts, and absence of further aggravating features.' "Whether the offender's immaturity, health, prior custody, assault in custody, COVID-19 restrictions, rehabilitation and prospects justified special circumstances."]

Ratio Decidendi

The offending required a custodial aggregate sentence because it involved repeated sexual exploitation of a 14 year old by an adult, including five offences where the child was under the influence of drugs or alcohol, but the sentence was moderated by the guilty pleas, some facilitation of justice, the absence of further aggravating features, the non-oppositional nature of the sexual acts, the offender's immaturity, prior good character, health issues, prior custody and assault in custody, COVID-19 custody conditions, rehabilitation, support and prospects. Those matters justified special circumstances and a non-parole period of about 55% of the aggregate sentence.

Court Disposition

Offender convicted on each matter and sentenced to an aggregate term of imprisonment of 5 years and 3 months with a non-parole period of 2 years and 10 months.

Orders

  • ['In relation to each of the matters, the offender is convicted.' 'For Count 1, taking into account the Form 1 matters, the indicated sentence is 4 years with a non-parole period of 2 years 3 months.' 'For Count 2, the indicated sentence is 3 years 7 months with a non-parole period of 1 year 11 months.' 'For Count...