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District Court 2 September 2016

R v James Nicholas Kontaxis

[2016] NSWDC 199

Sexual offences

Citation: R v James Nicholas Kontaxis [2016] NSWDC 199
Court: District Court of New South Wales
Date: 2 September 2016
Judge: Mahony SC DCJ

Background

The offender was the step-father of the complainant, RK, whom he began abusing when she was approximately 12 years old. The offending occurred between April 2004 and March 2005, when the family was living at Old Bar in New South Wales. The offender had previously worked as a youth worker with the Department of Juvenile Justice and the Department of Community Services, but lost that employment in 2003 and became depressed and began drinking heavily.

The offender pleaded guilty on the first day of trial to six counts of sexual intercourse with a child aged between 10 and 14 years in circumstances of aggravation, pursuant to s 66C(2) of the Crimes Act 1900. The aggravating circumstance was that RK was under the offender's authority as her step-father. A further four counts of aggravated indecent assault and related offences were placed on a Form 1 (meaning the court took those matters into account in sentencing without recording separate convictions).

The abuse included penile penetration on multiple occasions, digital penetration, and cunnilingus. Several offences occurred during a 10 to 14 day stay at a remote rural property where only one bed was available. The offending came to light a decade later, in December 2014, when RK confronted the offender at a club and recorded the conversation. The offender subsequently attended police and made admissions, acknowledging he had done wrong and expressing a desire to make reparation.

  • What discount, if any, was appropriate for the guilty pleas given they were entered on the first day of trial following an extended negotiation process
  • How the principle of totality should operate when imposing an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 for multiple serious sexual offences against the same child victim
  • What weight should be given to the offender's personal circumstances, including his lack of prior criminal history, psychological condition, and background of domestic violence exposure
  • What weight should be given to the victim impact statement and the objective seriousness of the individual offences
  • Whether the suppression order previously in place should be lifted

Decision

The court accepted the Crown's concession that a utilitarian discount of 15% was appropriate for the guilty pleas, despite them being entered on the first day of trial. The extended negotiation process, including a significant reconfiguration of the charges on the indictment over time, meant the pleas had some practical utility to the justice system and to RK in avoiding a contested hearing.

On objective seriousness, the court found the offending was at the serious end of the relevant range. The offender held a position of parental authority over a vulnerable child, the abuse was sustained over nearly a year, it involved multiple forms of sexual violation, and it caused lasting psychological harm as detailed in RK's victim impact statement. The court noted RK had experienced ongoing effects including anxiety, difficulty in relationships, and a fundamental loss of trust.

The court applied the totality principle in constructing an aggregate sentence, reviewing the individual sentences it had arrived at for each count as a check that the overall sentence was proportionate and not crushing. The offender's lack of criminal antecedents, history of childhood exposure to domestic violence, depression linked to job loss, and subsequent engagement with psychological treatment were treated as mitigating factors, but the court made clear they could not substantially reduce the sentence given the gravity of the offending.

On the suppression order, the court lifted it in the terms of the judgment, noting the relevant legislative framework under the Court Suppression and Non-Publication Orders Act 2010.

Orders Made

  • Convicted on Counts 2, 3, 4, 5, and 6 under s 66C(2) of the Crimes Act 1900, each attracting individual sentences ranging from 2 years and 3 months to 3 years imprisonment
  • Convicted on Count 9 under s 66C(2), attracting an individual sentence of 2 years and 3 months imprisonment
  • Aggregate sentence imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999: total term of 8 years imprisonment
  • Non-parole period of 6 years, commencing 23 May 2016 and expiring 22 May 2022
  • Balance of term: 2 years, commencing 23 May 2022 and expiring 22 May 2024
  • Form 1 matters (Counts 1, 7, 8, and 10) taken into account
  • Suppression order lifted

Key Takeaways

  • The District Court confirmed that a 15% utilitarian discount for a guilty plea entered on the first day of trial can be appropriate where the plea resulted from a lengthy negotiation process that substantially restructured the original charges.
  • Under the totality principle, a sentencing court constructing an aggregate sentence for multiple child sexual offences must review the component individual sentences to ensure the overall sentence remains proportionate and does not produce a crushing effect on the offender.
  • Personal mitigating factors such as a lack of prior criminal history, childhood trauma, and post-offending rehabilitation engagement carry reduced weight where the offending is sustained, involved a serious breach of parental trust, and caused significant long-term harm to the victim.
  • A person in a position of parental authority who commits repeated sexual offences against a child in their care will face objective seriousness findings at the higher end of the sentencing range, regardless of otherwise positive character evidence.
  • Release on parole at the expiry of the non-parole period is not automatic; the State Parole Authority retains a discretion to determine the timing and conditions of any parole release.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(1), 61O(1), 66C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Court Suppression and Non-Publication Orders Act 2010 (NSW)

Cases
- Atkar v R [2015] NSWCCA 123
- JM v R (2014) 246 ACrimR 528
- McIntosh v R [2015] NSWCCA 184
- Mill v The Queen (1988) 166 CLR 59
- MLP v R (2006) 164 ACrimR 93
- Panetta v R [2016] NSWCCA 85
- Pearce v R (1998) 194 CLR 610
- RJA v R [2008] NSWCCA 137
- R v AJP (2004) 150 ACrimR 575
- R v Bavadra (2000) 115 ACrimR 152
- R v Caldwell [2016] NSWCCA 55
- R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41
- R v Dent (unreported, NSWCCA, 14 March 1991)
- R v DJM [2013] NSWCCA 101
- R v Dodd (1991) 57 ACrimR 349
- R v Ellis (1986) 6 NSWLR 603
- R v Gavel [2014] NSWCCA 56
- R v Hammond [2008] NSWCCA 138
- R v McClymont (unreported, NSWCCA, 17 December 1992)
- R v PGM (2008) 187 ACrimR 152