R v Shackfield (a pseudonym) [2020] NSWDC 939

R v Shackfield (a pseudonym) [2020] NSWDC 939

Although the offender had substantial mitigating factors, including no prior convictions, good character, remorse, rehabilitation, low risk of reoffending and a guilty plea, the offence involved a five-year-old child kissing her adult uncle's erect penis at his request. The victim's age and the offender's position of trust were aggravating factors, and the offence was in the middle of a wide range of acts of indecency. Adequate punishment, denunciation, recognition of harm and general deterrence required a sentence of imprisonment, but the sentence was to be substantially below the two-year maximum because of the offender's subjective circumstances and the historical sentencing context.

Jurisdiction
Australia
Judgment Date
13 March 2020
Procedural Posture
Criminal Sentencing / Sentence After Plea of Guilty
Outcome
The offender was convicted and sentenced to imprisonment for nine months with a non-parole period of six months.
Legal Topics
['sexual Offences Against Children' 'act of Indecency With a Child Under 16 Years' 'aggravating Factors' 'mitigating Factors' 'imprisonment Threshold' 'intensive Correction Orders' 'historical Sentencing Practices']
['criminal Law' 'sentencing'] ['sexual Offences Against Children' 'act of Indecency With a Child Under 16 Years' 'aggravating Factors' 'mitigating Factors' 'imprisonment Threshold' 'intensive Correction Orders' 'historical Sentencing Practices']

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Procedural Posture

Criminal Sentencing / Sentence After Plea of Guilty

Legal Issues

  1. 1 ['What sentence should be imposed for committing an act of indecency with a child under the age of 16 years contrary to the then s 61E(2) of the Crimes Act 1900.' 'Whether aggravating factors included abuse of a position of trust and the vulnerability of a five-year-old victim.' 'Whether mitigating factors including good character, absence of prior convictions, remorse, rehabilitation, low risk of reoffending, delay and the plea of guilty reduced the sentence.' 'Whether no penalty other than imprisonment was appropriate under s 5 of the Crimes (Sentencing Procedure) Act 1999.' 'Whether an intensive correction order was precluded by s 67 of the Crimes (Sentencing Procedure) Act 1999.' 'Whether special circumstances should be found if a custodial sentence was imposed.']

Ratio Decidendi

Although the offender had substantial mitigating factors, including no prior convictions, good character, remorse, rehabilitation, low risk of reoffending and a guilty plea, the offence involved a five-year-old child kissing her adult uncle's erect penis at his request. The victim's age and the offender's position of trust were aggravating factors, and the offence was in the middle of a wide range of acts of indecency. Adequate punishment, denunciation, recognition of harm and general deterrence required a sentence of imprisonment, but the sentence was to be substantially below the two-year maximum because of the offender's subjective circumstances and the historical sentencing context.

Court Disposition

The offender was convicted and sentenced to imprisonment for nine months with a non-parole period of six months.

Orders

  • ['The offender is convicted of the offence of committing an act of indecency with a child under the age of 16 years.' 'The offender is sentenced to a term of imprisonment of nine months with a non-parole period of six months.' 'The term of imprisonment will commence on 13 March 2020 and end on 12 December 2020.'...