Calls to Reform Current DPP Guidelines Concerning

the Sentencing of Indecent Assault Offences

Corey Gauci, Fifth Year
Instead of facing
the 10-year
maximum sentence
available to district
court judges for
offences relating to
aggravated indecent
assault against
children ages 16
years or younger, recent submissions to the NSW Child Sexual
Offences committee (the Committee) highlights the alarming
number of aggravated indecent assault charges against children
that are being heard in Local Courts, where sentences are
restricted to a maximum two years. Dubbo MP Troy Grant, who
will be leading the inquiry into the sentencing of child sexual
assault offenders, said it is clear the system is failing the
community because of complexity. In a submission to an
inquiry by the Committee, Chief Magistrate Graeme Henson said:
In some instances, the two-year jurisdictional sentencing limit can
act as a constraint on the imposition of a sentence that adequately
reflects the seriousness of the offending conduct. According to
the Productivity Commission, the cost of prosecuting a criminal
matter in the Local Court in 2012-13 was $693, compared to
$6700 in the District Court. As a result, hundreds of offenders have
received two-year prison sentences at best, even where their
crimes could have been punished with 10-year sentences in the
District Court.

This remains to be common practice even though the Department
of Public Prosecutions (the DPP) guidelines say indecent assault
offences against children should be prosecuted in the district Court
if the offender deserved more than a two-year jail sentence.
However, the guidelines must been seen in the context of the
current fiscal environment, where it is cheaper for the government
to prosecute in the Local Court rather than in the District court,
Judge Henson said. In NSW an indecent assault charge
involving a victim aged under 16 carries a maximum 10-year
penalty and a standard non-parole period of eight years; Section
61J Crimes Act 1900 (NSW). Yet, alarmingly 324 paedophiles
were convicted of that offence in the Local Court in the given years
to 2012, resulting in their sentences being capped at 2-year
sentences. This is partly due to the Local Courts sentencing limits.

As the law currently stands, Local Courts can impose a limited
number of remedies in criminal matters including good behaviour
bonds, fines, community service orders, intensive corrective
orders and imprisonment. Moreover, the Local Court can
sentence an offender to a maximum sentence of two years
imprisonment per offence, and five years imprisonment for
multiple offences; a limit which often bars judicial justice; R v Doan
(2000) 50 NSWLR 115. Consequently, it is not possible for an
offender to receive a sentence that even approaches the
prescribed standard non-parole period because of the sentencing
limits of the Local Court, said Judge Henson. In its 2010 report
An examination of the sentencing powers of the Local Court in
NSW the Sentencing Council recommended that the jurisdictional
limit of the Local Court, in respect of imposing sentences of
imprisonment, should not be enlarged.

The Committee raised a number of policy concerns in support of
maintaining the status quo, including but not limited to;
a. the potential increase in the Local Courts workload and
corresponding decrease in the District Courts workload;
where the District court is more adequately equipped and
resourced to deal with matters concerning the sexual abuse
of minors;
b. while the Local Court has an advantage in that proceedings
in that court are likely to be quicker, more cost effective and
less intimidating; changes to the Local Courts jurisdiction,
particularly in its summary sentencing jurisdiction, risks
reducing the incidence of trial by jury; and
c. the potential increase in appeals to the District Court.

Nevertheless, since the publication of the report in 2010, hundreds
of cases have continued to be heard instead in a lower jurisdiction,
the NSW Local Courts, where magistrates can only impose a
maximum two-year sentence. As a result, recent submissions to
the Committee have called for sweeping reforms with respect to
the Local Courts jurisdiction in order to deal with these types of
matters more appropriately. In light of the ongoing Royal
Commission into Institutional Responses to Child Sexual Abuse in
addition to the continuing efforts of child protection groups
including the NSW Child Protection Advisory Group and Child
Protection Services NSW, the outcome of the upcoming
commission into NSWs sentencing laws will hopefully provide
further consistency and confidence in Australias judicial system.