AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 13 December 2017

R v MK; R v LM

[2017] NSWDC 465

Sexual offences
CRIMINAL LAW POSSESSING CHILD ABUSE MATERIAL AGGRAVATED INDECENT ASSAULT POSSESS CHILD ABUSE MATERIAL.

Citation: R v MK; R v LM [2017] NSWDC 465
Court: District Court of New South Wales
Date: 13 December 2017
Judge(s): Colefax SC DCJ

Background

A non-publication order suppresses the names of both offenders, the victim, and the town where the offences occurred. The victim was the 10-year-old daughter of one offender (referred to here as the mother). The mother's boyfriend (the second offender) was a frequent presence in the family home, though he maintained his own residence nearby.

From October 2005, both offenders engaged in a pattern of sexual abuse directed at the child. The conduct involved sexual touching, aggravated sexual intercourse, and the repeated filming of sexual activity involving the child. Offending continued regularly until November 2010, when the victim turned 16 and left the family home.

The abuse came to light in late 2015 after the second offender made a remark to the victim, who was by then 20 years old and the mother of his child, that caused her to report the conduct to police. Both offenders were arrested on 9 November 2015.

  • What aggregate sentences were appropriate for each offender, having regard to the number, nature, and duration of the offences?
  • How should the principle of totality apply when sentencing for 87 offences (second offender) and 13 offences (mother), across multiple categories of serious sexual and child pornography offences?
  • What discount applied to each offender's sentence, and what non-parole periods should be fixed?

Decision

The second offender appeared for sentence on 87 principal offences: one offence of producing, disseminating or possessing child abuse material; three offences of aggravated indecent assault; 45 offences of aggravated sexual intercourse with a child aged 10 to 14; 37 offences of using a child under 14 for pornographic purposes; and one offence of possessing child abuse material. He also had 40 additional matters taken into account on four Form 1s. The court determined indicative sentences for each principal offence before applying a 25% discount, reflecting the offender's utilitarian plea.

The mother appeared for sentence on 13 principal offences: seven offences of using a child under 14 for pornographic purposes; four offences of aggravated sexual intercourse with a child aged 10 to 14; and two offences of aggravated indecent assault, with three further matters on a Form 1. The court similarly assessed indicative sentences for each offence before applying a 25% discount.

Colefax SC DCJ described the conduct of each offender, both individually and collectively, as constituting "a most heinous breach of trust and abandonment of responsibility to the child victim." The sentencing exercise required careful application of the totality principle to avoid an aggregate sentence that would be crushing or disproportionate, while still reflecting the prolonged and grave nature of the offending.

Orders Made

  • The second offender (MJK) was sentenced to an aggregate term of 25 years imprisonment, with a non-parole period of 18 years and 9 months commencing 9 November 2015 and expiring 8 August 2034, and a balance of term of 6 years and 3 months expiring 8 November 2040.
  • The mother (LM) was sentenced to an aggregate term of 17 years imprisonment, with a non-parole period of 12 years and 9 months commencing 9 November 2015 and expiring 8 August 2028, and a balance of term of 4 years and 3 months expiring 8 November 2032.
  • A non-publication order was confirmed suppressing the names of the offenders, the victim, and the town in which the offences were committed, and any matter capable of identifying the victim.

Key Takeaways

  • Both offenders received substantial aggregate sentences reflecting the extraordinary volume and gravity of their offending, with the second offender receiving 25 years and the mother 17 years imprisonment.
  • A 25% sentencing discount was applied to each offender's indicative sentence, consistent with the utilitarian value of guilty pleas in proceedings of this complexity.
  • Under the totality principle, the court arrived at aggregate sentences designed to reflect the full criminality of each offender without producing a disproportionately crushing result across the many individual offences.
  • The offences spanned conduct criminalised under four separate provisions of the Crimes Act 1900 (NSW), including aggravated sexual intercourse with a child (maximum 20 years), using a child for pornographic purposes (maximum 14 years), aggravated indecent assault (maximum 7 years), and possession or production of child abuse material (maximum 10 years).
  • The District Court confirmed that offences of this nature, involving sustained abuse of a child within a family setting over five years and recorded on video, were not appropriate for summary disposal despite some charges carrying that option.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 91H(2) (producing, disseminating or possessing child abuse material; maximum 10 years)
- Crimes Act 1900 (NSW), s 61M(1) (aggravated indecent assault; maximum 7 years; standard non-parole period 5 years)
- Crimes Act 1900 (NSW), s 66C(2) (aggravated sexual intercourse with child aged 10 to 14; maximum 20 years)
- Crimes Act 1900 (NSW), s 91G(1)(a) (using a child under 14 for pornographic purposes; maximum 14 years)

Cases cited: None stated in the judgment.