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District Court 2 December 2016

R v AB

[2016] NSWDC 417

Sexual offences
CRIMINAL LAW SENTENCE SEXUAL INTERCOURSE WITHOUT CONSENT

Citation: R v AB [2016] NSWDC 417
Court: District Court of New South Wales
Date: 2 December 2016
Judge: Berman SC DCJ

Background

The offender, identified only as AB, was the stepfather of the complainant. The complainant and her mother began living with him when the complainant was relatively young, and the couple went on to have four children together before the family eventually moved interstate.

The offending came to light when the complainant and her mother encountered AB in Melbourne, causing the complainant visible distress. She disclosed the abuse to her mother shortly afterwards, and a subsequent police interview in Victoria captured her account of three specific incidents, as well as a suggestion that other incidents had occurred which she could no longer specifically recall.

Following a trial in which the complainant's police interview was played to the jury, AB was convicted on two counts of aggravated indecent assault of a child under the age of ten and one count of aggravated sexual intercourse without consent committed upon the complainant when she was under the age of 16. The offending spanned approximately 2007 to 2009. AB was 40 years old at the time of sentencing.

  • What aggregate custodial sentence appropriately reflected the objective seriousness of the three offences?
  • How should the court treat the absence of a guilty plea and the absence of remorse in assessing prospects of rehabilitation?
  • Whether the standard non-parole period should be applied to each count, and if not, what justified a departure?
  • Whether special circumstances existed warranting an adjustment to the statutory ratio between the head sentence and the non-parole period?
  • How the conditions of protective custody, and the risk of more onerous custody conditions for this class of offender, should factor into the sentence?

Decision

Berman SC DCJ assessed each count in turn before imposing an aggregate sentence. Count 1 involved the offender placing his hand inside the complainant's underwear and touching her genitalia while she was aged seven or eight. Count 2 involved rubbing her genitalia over her underwear during a family movie, again when she was between seven and nine. Count 3, the most serious, occurred when the complainant was between nine and ten; the offender digitally penetrated her genitalia (though not her vagina) for approximately five minutes before stopping when her mother entered the room.

His Honour accepted that the offending was opportunistic rather than planned, and that AB had no similar prior conduct toward any other child. However, the breach of trust was described as significant: the complainant was entitled to expect protection, not sexual abuse, from the man she regarded as a father. His Honour also declined to impose the standard non-parole period in any individual count, providing reasons within the sentencing remarks, while noting that the aggregate non-parole period nonetheless reflected the minimum he considered appropriate to the objective gravity of the conduct.

On the question of remorse and rehabilitation, His Honour observed that AB maintained his innocence and expressed no remorse, which made it impossible to find good prospects of rehabilitation on the balance of probabilities. The absence of a guilty plea meant no sentencing discount was applied, a factor His Honour flagged explicitly so that any future comparison with other sentences would not overlook it.

His Honour found special circumstances existed, combining the fact that this was AB's first period of custody with the real risk that he would serve time in protective custody under more onerous conditions with reduced access to rehabilitation programs. The variation from the standard statutory ratio between head sentence and non-parole period was described as relatively small, given that the non-parole period already represented the minimum consistent with the offending's gravity and that the parole period was sufficient to support re-integration into the community.

Orders Made

  • Aggregate sentence of imprisonment imposed with a non-parole period of six years and a head sentence of nine years, dating from 14 September 2016.
  • Non-parole period to expire on 13 September 2022, from which date AB is eligible for release to parole.
  • Indicative individual sentences (not imposed, given the aggregate approach):
  • Count 1: non-parole period of 3 years, head sentence of 4 years.
  • Count 2: non-parole period of 2 years, head sentence of 3 years.
  • Count 3: non-parole period of 4 years, head sentence of 6 years.

Key Takeaways

  • The District Court confirmed that the harm caused to a victim, including persistent and foreseeable psychological consequences, is a central consideration in fixing an appropriate sentence for child sexual offences.
  • A conviction after a contested trial attracts no guilty plea discount, and His Honour expressly noted this so that comparisons with sentences imposed on offenders who pleaded guilty are not made without accounting for that difference.
  • Where an offender maintains innocence and expresses no remorse, a sentencing court may be unable to find good prospects of rehabilitation on the balance of probabilities, even where it would not penalise the offender merely for exercising the right to plead not guilty.
  • Special circumstances justifying a departure from the standard ratio between head sentence and non-parole period can arise from a combination of factors, including the prospect of serving time in protective custody with reduced access to programs, even where the departure from the ratio is modest.
  • Not all forms of sexual intercourse carry identical seriousness within the offence category; the sentencing court positioned the Count 3 conduct as a less serious form of sexual intercourse than many comparable offences, while still treating it as a serious breach of trust warranting a substantial custodial term.

Legislation and Cases Referenced

No legislation or cases were cited in the judgment text provided.

Offence categories referenced:
- Aggravated indecent assault of a child under ten years (maximum: 10 years; standard non-parole period: 8 years)
- Aggravated sexual intercourse without consent (complainant under 16) (maximum: 20 years; standard non-parole period: 10 years)