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District Court 27 March 2017

R v BKA

[2017] NSWDC 468

Sexual offencesFirearms & weapons
CRIMINAL LAW SENTENCE FORM 1 AGGRAVATION GROOMING AGGRAVATED INDECENT ASSAULT

Citation: R v BKA [2017] NSWDC 468
Court: District Court of New South Wales
Date: 27 March 2017
Judge(s): Hunt DCJ

Background

The offender, referred to as BKA to protect the identities of the victims, was the step-grandfather of two young sisters, CD and DD, born in 2004 and 2005 respectively. He resided with their maternal grandmother close to the family home, and the girls visited his house regularly after school to use his computers. The offender exploited this access and position of trust to commit a series of serious sexual offences against the children.

The offending came to light in September 2014 when CD disclosed to her mother that the offender had digitally penetrated her vagina. The matter was reported to police the following day, and CD was medically examined at Liverpool Hospital in October 2014.

BKA faced two sets of criminal proceedings. The first concerned sexual and indecency offences against CD and DD. The second related to possession of multiple prohibited and unregistered firearms. He entered guilty pleas to the indictment charges on the first date listed for trial, and a number of additional related offences were taken into account on a Form 1 (a procedure under NSW law allowing offences to be acknowledged at sentencing without a separate conviction being recorded).

  • What sentences were appropriate for each of the four counts on the indictment, including the applicable standard non-parole periods under the Crimes Act 1900 (NSW)?
  • How should the Form 1 offences (including grooming, further indecency offences, and firearms-related matters) be weighed at sentencing?
  • What degree of accumulation between sentences was appropriate, having regard to the totality principle?
  • What aggregate sentence should be imposed under s 53A of the Crimes (Sentencing Procedure) Act 1986 (NSW)?

Decision

Hunt DCJ sentenced BKA on four counts on the indictment and the firearms matter. Count 1 involved sexual intercourse with CD, who was under ten years and under the offender's authority, carrying a maximum penalty of life imprisonment and a standard non-parole period of 15 years. Count 2 involved inciting CD to commit an act of indecency (maximum seven years). Count 3 involved an act of indecency on DD, then aged between six and eight years (maximum ten years, standard non-parole of eight years). Count 4 involved a further instance of sexual intercourse with a child under ten (maximum 25 years, standard non-parole of 15 years).

His Honour set indicative non-parole periods and total terms for each count: for Count 1, a non-parole period of seven years and a total term of ten years and six months; for Count 4, a non-parole period of eight years and a total term of 12 years; and for the firearms offence, a non-parole period of three years and a total term of four years and six months.

On the question of accumulation, the defence submitted that all sentences relating to each victim should run wholly concurrently with one another. Hunt DCJ rejected this as unprincipled. His Honour applied some degree of accumulation across the sentences, though a more modest accumulation was applied to Counts 2, 3, and the firearms matter.

Applying the totality principle and imposing an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act, Hunt DCJ arrived at a total term of 15 years with a non-parole period of ten years and six months. The sentence was backdated to commence on 9 October 2014, the date of the offender's arrest. His Honour also directed that psychiatric and psychological reports accompany the warrant to assist prison authorities in facilitating the offender's engagement with sex offender rehabilitation programs.

Orders Made

  • BKA convicted on all four counts on the indictment and the firearms offence.
  • Aggregate sentence imposed under s 53A of the Crimes (Sentencing Procedure) Act 1986 (NSW).
  • Non-parole period: 10 years and 6 months, commencing 9 October 2014 and expiring 8 April 2025.
  • Total sentence: 15 years, commencing 9 October 2014 and expiring 8 October 2029.
  • Copies of expert reports (Dr Allnutt and Ms White) directed to travel with the warrant to assist prison authorities with rehabilitation planning.

Key Takeaways

  • An offender's position of familial trust and authority over child victims is a statutory aggravating factor under the Crimes Act 1900 (NSW), directly affecting the applicable charge and maximum penalty for sexual intercourse offences involving children under ten years of age.
  • A submission that all sentences relating to offences against a single victim should run wholly concurrently was rejected as unprincipled; some degree of accumulation is appropriate where discrete offending occasions are involved, even if the level of accumulation varies by offence.
  • Form 1 offences, including grooming and further acts of indecency, were taken into account in fixing the sentences on the principal counts, increasing the overall criminality assessed without generating separate convictions.
  • Under s 53A of the Crimes (Sentencing Procedure) Act 1986 (NSW), the District Court imposed a single aggregate sentence across multiple counts and matters, with indicative non-parole periods and total terms for each individual count informing the overall aggregate.
  • Early guilty pleas, entered on the first day listed for trial following committal, were a relevant consideration in the sentencing exercise, reflecting a recognised (if not maximum) utilitarian benefit to the administration of justice.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 61O(2), 66A(1), 66A(2), 66EB(3), 578A(2)
- Crimes (Sentencing Procedure) Act 1986 (NSW), s 53A
- Criminal Procedure Act 1986 (NSW)
- Firearms Act 1996 (NSW), s 51D
- Weapons Prohibition Act 1998 (NSW)

Cases:
- R v BJW [2000] NSWCCA 60
- R v Hudson (unreported, Court of Criminal Appeal, 30 July 1998)
- R v L (unreported, Court of Criminal Appeal, 17 June 1996)
- R v M A [2004] NSWCCA 92
- R v Nguyen and Pham [2010] NSWCCA 238