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District Court 8 April 2009

Regina v BR

[2009] NSWDC 116

Sexual offences
CRIMINAL LAW SENTENCE CHILD SEXUAL ASSAULT VICTIMS PART OF OFFENDER'S FAMILY LETTER OF APOLOGY PSYCHOLOGICAL REPORT

Citation: Regina v BR [2009] NSWDC 116
Court: District Court of New South Wales
Date: 8 April 2009
Judge(s): Cogswell SC DCJ

Background

The offender, BR, was sentenced for a series of serious sexual offences committed against five young children, all of whom were members of his household. The victims included the four children of his partner and his own two-year-old son. The offences occurred between 2006 and September 2007 at various residential addresses in Sydney.

The offending involved penile-vaginal intercourse with a child under ten, repeated acts of fellatio performed by multiple children at the offender's direction, the incitement of a five-year-old boy to touch his sister's vagina, and the exposure of all children to a pornographic film. On one occasion, BR blocked a hallway and demanded each child perform fellatio on him before being permitted to enter their bedrooms.

The offending came to light when the eldest child complained to her aunt on the day of the final incident. Police arrested BR the following morning, on 28 September 2007, and he had been in custody since 18 December 2007, when he was formally charged and refused bail.

  • What was the appropriate aggregate sentence for multiple counts of child sexual assault under ss 66A and 66C(2) of the Crimes Act 1900, having regard to the standard non-parole period of 15 years for offences against s 66A?
  • What weight should be given to mitigating factors, including the offender's letter of apology, a psychological report, and the absence of a prior history of sexual offending?
  • How should the court apply the totality principle (the requirement that the overall sentence reflect the totality of the criminal conduct without being crushing) when setting the non-parole period and overall term?
  • What was the objective seriousness of the individual offences and how did the surrounding circumstances affect that assessment?

Decision

The court characterised the offending as shocking and appalling. The offences against the youngest children attracted a standard non-parole period of 15 years each, which the court treated as a legislative benchmark reflecting Parliament's assessment of the gravity of sexual intercourse with a child under ten. The court assessed the individual offences and fixed separate sentences before applying the totality principle to arrive at an overall term.

On mitigating factors, the court took into account the offender's letter of apology and a psychological report prepared for sentencing. The court also noted that BR would serve his sentence in protective custody, a circumstance that makes custodial conditions more onerous. However, these factors were weighed against the extreme gravity of the offending, the vulnerability of the victims, the gross breach of trust involved, and the fact that the offending involved multiple victims over an extended period.

The court applied the totality principle by structuring individual sentences and then setting an overall term that reflected the full criminality of the conduct without producing a result that was disproportionate. Victim impact material was also before the court and considered as part of the sentencing exercise.

Orders Made

  • Overall sentence of 18 years imprisonment, with a non-parole period of 13 years.
  • Sentence backdated to 18 December 2007 (date of custody).
  • First eligible parole date: 17 December 2020, with release subject to the Parole Authority's determination.
  • The psychological report (exhibit 2, authored by Misia Temler of Duffy Robilliard, dated 2 April 2009) to accompany the offender into custody and be provided to the appropriate authorities.

Key Takeaways

  • The District Court imposed an aggregate term of 18 years with a 13-year non-parole period for multiple counts of child sexual assault involving five victims, all members of the offender's family.
  • Under s 66A of the Crimes Act 1900, sexual intercourse with a child under ten carries a maximum of 25 years imprisonment and a standard non-parole period of 15 years, reflecting Parliament's designation of these offences as among the most serious in the criminal law.
  • A letter of apology and a favourable psychological report were treated as mitigating factors, but their weight was substantially reduced by the multiplicity of victims, the young ages of the children, the sustained nature of the offending, and the profound breach of familial trust.
  • The totality principle required the court to ensure that cumulative sentences, when viewed as a whole, remained proportionate to the overall criminality rather than simply aggregating each individual term.
  • Protective custody, which makes the prison environment harsher for the offender, was acknowledged as a relevant consideration in the sentencing exercise, consistent with established NSW sentencing practice.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66A, 66C(2), 61O(1), 61O(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 54B (standard non-parole periods)

Cases:
- Regina v AJP (2004) 150 A Crim R 575
- Regina v Davis [1999] NSWCCA 15
- Regina v Dent (unreported, NSWCCA, 14 March 1991)
- Regina v Hibberd [2009] NSWCCA 20
- Regina v Skinner (1993) 72 A Crim R 151