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District Court 18 August 2006

R v. RA

[2006] NSWDC 138

Sexual offences
SEXUAL INTERCOURSE CHILD UNDER 10 YEARS OF AGE SENTENCE CRIMINALITY LEVEL OF SERIOUSNESS ABUSE OF RELATIONSHIP

Citation: R v RA [2006] NSWDC 138
Court: District Court of New South Wales
Date: 18 August 2006
Judge(s): Finnane QC DCJ

Background

The offender was the father of a girl aged eight years. The offences arose in the context of a shared custody arrangement, during which the child and her younger brother would stay with the offender at his home in Narrabri.

Three counts proceeded to sentence following conviction. The first involved penile penetration occurring on the night of the offender's father's funeral in February 2004, when the child was sharing a bed with her father and younger sibling. The second involved digital penetration of the child's vaginal opening. The third involved a further act of penile penetration, this time with the child placed on top of the offender. The child gave evidence that similar episodes had occurred on approximately twenty to thirty occasions over the relevant period.

The offender maintained his innocence throughout trial and sentencing proceedings. He was otherwise described as a person of good character who had worked consistently and supported his children financially.

  • What objective level of seriousness attached to each of the three offences under s 66A of the Crimes Act 1900?
  • What weight should be given to the offender's maintained innocence in assessing contrition, remorse, and prospects of rehabilitation?
  • Whether expert psychological evidence about risk of reoffending, based on the Static 99 assessment tool, should be accepted?
  • How should the sentences on the individual counts be structured and accumulated to reflect the overall criminality?

Decision

Finnane QC DCJ assessed the two acts of penile penetration as falling at least at the mid-range of objective seriousness. The act of digital penetration, while serious, was assessed as falling below the mid-range. The court identified the gross breach of the father-daughter relationship as a central aggravating feature of all three offences.

The offender's maintained innocence removed any basis for findings of contrition or remorse. Because the offender gave no evidence at trial or at sentence, the court had no material from which to assess motivation or prospects of rehabilitation. Those factors could not therefore operate in mitigation.

The court declined to accept the expert psychological evidence of Dr Lennings regarding a low risk of reoffending. Finnane QC DCJ expressed no confidence in the Static 99 assessment tool and was not satisfied that the psychologist's expertise extended to forming a reliable opinion on reoffending risk. The court concluded that the likelihood of future offending against the complainant was low given her age and location, but that no broader conclusion about reoffending risk could be drawn.

The only mitigating factor identified was the offender's otherwise good character. Taking into account sentencing statistics and the relevant appellate authority, the court imposed partially accumulated sentences producing an effective non-parole period of sixteen years and a total sentence of twenty-one years.

Orders Made

  • Count 1 (penile penetration): Non-parole period of 13 years, commencing 18 August 2006, expiring 17 August 2019; balance of term of 4 years and 4 months, concluding 17 December 2023.
  • Count 3 (digital penetration): Non-parole period of 7 years, commencing 18 August 2013, concluding 17 August 2020; balance of term of 2 years and 4 months, concluding 17 December 2022.
  • Count 4 (penile penetration): Non-parole period of 13 years, commencing 18 August 2009, concluding 17 August 2022; balance of term of 5 years, concluding 17 August 2027.
  • Apprehended violence order considered but declined as unnecessary given the sentences imposed.

Key Takeaways

  • The District Court treated the abuse of a parental relationship as a serious aggravating feature, noting that children under ten are entitled to expect protection and care from a parent rather than sexual abuse.
  • Where an offender maintains innocence throughout proceedings, a sentencing court has no foundation upon which to find contrition, remorse, or meaningful prospects of rehabilitation.
  • Reliance on the Static 99 psychological assessment tool for reoffending risk was rejected on the facts of this case, with Finnane QC DCJ expressing no confidence in the instrument's accuracy and querying whether it fell within the proper scope of psychological expertise.
  • Partially accumulated sentences were imposed to reflect both the individual gravity of each offence and the need to give adequate weight to the extended course of similar conduct disclosed by the complainant's evidence.
  • Under s 66A of the Crimes Act 1900, penile penetration of a child under ten was assessed at mid-range seriousness or above, while digital penetration, though serious, was placed below the mid-range, with those gradations directly shaping the length of each head sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66A (sexual intercourse with a child under ten)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 54B

Cases:
- R v AGP [2004] NSWCCA 434