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District Court 3 August 2018

R v KW

[2018] NSWDC 209

Sexual offences
POSSESS CHILD ABUSE MATERIAL AGGREGATE SENTENCE

Citation: R v KW [2018] NSWDC 209
Court: District Court of New South Wales
Date: 3 August 2018
Judge(s): Mahony SC DCJ

Background

The offender, a mother born in 1986, pleaded guilty on 20 July 2018 to eight counts arising from serious sexual offending against her three children between February 2013 and March 2016. The children were aged between approximately four and nine years old during the offending period. The offender had been in custody since her arrest on 8 March 2016.

The offending originated when the offender began using the internet to meet men and engage in online sexual behaviour. At the request of men she had met online, she began introducing her children into that behaviour in 2013. The conduct escalated over approximately two and a half years and included sexual intercourse with each child, the use of sex toys, filming the acts, and disseminating recordings to men online. The offender received no financial reward but derived psychological benefit from the attention and affection of those men.

For a two-week period in late 2014, a male the offender had met online stayed at her home. During that visit, sexual acts involving one of the children were committed in person and recorded. A large number of additional charges were listed on Forms 1 (a procedure allowing a court to take further charges into account on sentence without entering convictions) in connection with several of the principal counts.

  • What aggregate sentence was appropriate across eight counts of serious child sexual offending, including multiple counts under s 66A of the Crimes Act 1900 carrying a maximum of life imprisonment and a standard non-parole period of 15 years?
  • How should the totality principle be applied when sentencing for numerous serious offences against multiple child victims, including indicative sentences for each count?
  • What weight should be given to mitigating factors (including the guilty plea and any relevant personal circumstances) against the gravity and number of the offences?
  • How should the Form 1 matters be taken into account in fixing the overall sentence?

Decision

Mahony SC DCJ imposed an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999. His Honour assessed each count individually, setting indicative sentences before arriving at a combined term that reflected the totality of the criminal conduct while avoiding a crushing sentence disproportionate to the offender's overall criminality.

The indicative sentences for the seven counts of sexual intercourse with a child under 10 years ranged from 7 years and 6 months (Count 6, involving the offender's son) to 12 years (Counts 1 and 3, involving the offender's daughter GW). Count 8, possession of child abuse material, attracted an indicative sentence of 3 years. The court treated Counts 1 and 3 as the most serious, each attracting an indicative non-parole period of 8 years.

His Honour also took into account the Form 1 matters, which included charges of inciting children to acts of indecency, producing child abuse material, disseminating child abuse material, and indecent assault. Those matters were certified accordingly and factored into the overall sentencing assessment.

Applying the totality principle, the court arrived at an aggregate non-parole period of 17 years and a total head sentence of 25 years. The non-parole period commenced on 8 March 2016, the date of arrest, reflecting the time already served in custody.

Orders Made

  • The offender was convicted of all eight counts as charged.
  • The Form 1 matters relating to Counts 2, 3, 4, 5, and 7 were taken into account and certified.
  • An aggregate sentence was imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999:
  • Non-parole period of 17 years, commencing 8 March 2016 and terminating 7 March 2033.
  • Balance of sentence of 8 years, commencing 8 March 2033 and terminating 7 March 2041.
  • Total head sentence: 25 years imprisonment.
  • Indicative sentences were recorded for each count, ranging from 7 years 6 months (Count 6) to 12 years (Counts 1 and 3).

Key Takeaways

  • The District Court applied the totality principle to arrive at an aggregate sentence of 25 years, with a 17-year non-parole period, across eight counts of serious child sexual offending involving three victims.
  • Indicative sentences under an aggregate sentencing structure allow a court to record the gravity of each individual offence while ensuring the combined term reflects the overall offending rather than simply accumulating individual maximum terms.
  • Where offending involves a parent abusing a position of authority over very young children over an extended period, and includes filming and disseminating the abuse, courts treat such conduct as falling within the most serious range of child sexual offending.
  • Form 1 charges, though not resulting in additional convictions, are treated as aggravating context and taken into account in fixing the overall sentence.
  • An aggregate non-parole period commencing from the date of arrest gives credit for time spent in pre-sentence custody, consistent with standard NSW sentencing practice.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 61M(2), 61O(2), 61O(2A), 66A, 66A(2), 91G(1)(a), 91H(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW): s 53A

Cases
- Berryman v R [2017] NSWCCA 297
- DJM v R [2013] NSWCCA 101
- JM v R [2014] NSWCCA 297
- LS v R [2012] NSWCCA 236
- MRW v R [2011] NSWCCA 260
- R v Booth [2009] NSWCCA 89
- R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41
- R v Gavel [2019] NSWCCA 56
- R v Van Ryn [2016] NSWCCA 1