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District Court 10 May 2013

R v RL

[2013] NSWDC 337

Sexual offences
CRIMINAL LAW SENTENCE SEXUAL ASSAULT LEGISLATIVE PROVISIONS RELEVANT LAW AND SENTENCING PRINCIPLES

Citation: R v RL [2013] NSWDC 337
Court: District Court of New South Wales
Date: 10 May 2013
Judge(s): Payne DCJ

Background

The offender, a man aged 62 at the time of sentencing, was convicted by jury of seven sexual offences committed against a child who was either his natural daughter or stepdaughter. The offending occurred over approximately four years and eight months, from April 1988 to December 1992, when the complainant was aged between 10 and 14 years. The offences were committed at locations in St Johns Park and Griffith, New South Wales.

The 15-count indictment included charges of indecent assault, acts of indecency, and aggravated sexual assault. After the jury returned verdicts on 22 June 2012, the offender stood convicted on seven counts: three offences contrary to s 61E(1A) of the Crimes Act 1900 (NSW), two contrary to s 61D(1A), one contrary to s 61E(2A), and one of aggravated sexual assault contrary to s 61J(1), the most serious count.

The offending progressed in gravity over time, beginning with acts of indecency when the complainant was approximately 10 to 11 years old, and escalating to repeated penetrative sexual acts. The sentencing proceedings were delayed after trial for reasons not contested by either party.

  • What sentences were appropriate for each of the seven offences, having regard to the maximum penalties applicable at the time the offences were committed?
  • How should the sentences be structured, particularly as to accumulation and concurrency, to reflect both the individual seriousness of each offence and the principle of totality?
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio, and if so, to what extent?

Decision

Payne DCJ sentenced the offender on five occasions of offending represented across the seven counts. The judge characterised the offending as serious, involving a sustained breach of the trust and authority held over a young child within the family home. The complainant was distressed throughout the offending, and the offender's conduct escalated from acts of indecency to aggravated sexual assault over the period charged.

The court imposed fixed terms for counts one through eight, reserving the non-parole period structure for count nine, the most serious offence of aggravated sexual assault contrary to s 61J(1). Counts two and three were ordered to run concurrently with each other, as were counts four, six, and eight, reflecting the principle that offences arising from the same occasion should not result in purely cumulative punishment.

The court found special circumstances justifying a reduction in the non-parole period ratio for count nine. The factors identified were the offender's advanced age, his medical conditions, his first time in custody, and the accumulated nature of the total sentence. An allowance of nine and a half months was made.

Applying the totality principle, the court structured the sentences to ensure the total effective term reflected the overall criminality without being crushing. The judge described the effective non-parole period as the least possible in all the circumstances that still appropriately reflected the seriousness of the offending and the requirement for general deterrence.

Orders Made

  • Count one: Fixed term of 1 year, commencing 22 June 2012, expiring 21 June 2013.
  • Count two: Fixed term of 1 year, commencing 22 June 2013, expiring 21 June 2014.
  • Count three: Fixed term of 1 year, commencing 22 June 2013, expiring 21 June 2014, concurrent with count two.
  • Count four: Fixed term of 2 years, commencing 22 June 2014, expiring 21 June 2016.
  • Count six: Fixed term of 2 years, commencing 22 June 2014, expiring 21 June 2016, concurrent with count four.
  • Count eight: Fixed term of 6 months, commencing 22 June 2014, expiring 21 December 2014, concurrent with counts four and six.
  • Count nine: Imprisonment for 3 years 6 months, commencing 22 June 2016, expiring 21 December 2019; non-parole period of 10 months, commencing 22 June 2016, expiring 21 April 2017.
  • Total effective sentence: 7 years 6 months, with a non-parole period of 4 years 10 months.

Key Takeaways

  • Sentences for historical child sexual offences are governed by the maximum penalties that applied at the time of each offence, not those in force at the date of sentencing; the relevant provisions here were ss 61D(1A), 61E(1A), 61E(2A), and 61J(1) of the Crimes Act 1900 (NSW) as they stood in the late 1980s and early 1990s.
  • Where multiple offences arise from a single occasion, the principle against double punishment supports concurrent rather than cumulative sentences for those offences, though accumulation across separate occasions remains appropriate.
  • Special circumstances under the Crimes (Sentencing Procedure) Act 1999 (NSW) were established here by a combination of factors: the offender's age, medical conditions, first experience of custody, and the compounding effect of accumulated sentences.
  • The totality principle required the District Court to assess whether the overall sentence, after accumulation, was proportionate to the total criminality, and to adjust accumulation accordingly rather than simply adding individual sentences together.
  • Sustained offending involving a serious breach of familial trust and authority, committed against a young child over an extended period, was treated as significantly aggravating the objective seriousness of each offence at the sentencing stage.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61D(1A), 61E(1A), 61E(2A), 61J(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 44
- Probation and Parole Act 1983 (NSW)
- Sentencing Act 1989 (NSW)

Cases:
- JRM v R [2012] NSWCCA 112
- MH v R [2011] NSWCCA 230
- MJL v R [2007] NSWCCA 261
- PWB v R [2011] NSWCCA 84; 216 A Crim R 305
- R v Lane [2011] NSWSC 289
- R v McGrath [2010] NSWCCA 48; 199 A Crim R 527
- R v MJR [2002] NSWCCA 129; 54 NSWLR 368; 130 A Crim R 481
- RWB v R; R v RWB [2010] NSWCCA 147; 202 A Crim R 209