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District Court 21 November 2018

R v JS

[2018] NSWDC 342

Sexual offences
CHILD SEXUAL OFFENCE AGGREGATE SENTENCE

Citation: [2018] NSWDC 342
Court: District Court of New South Wales
Date: 21 November 2018
Judge: Mahony SC DCJ

Background

The offender, a mother born in 1982, was sentenced following convictions arising from offences committed between June and August 2017 against her daughter, AR, who was eight to nine years old at the time. The offending came to light when South Australian Police executed a search warrant on the premises of the offender's online partner and found child abuse material on his electronic devices. He told police the offender had sent the material to him.

New South Wales Police then executed a search warrant at the offender's home on 23 August 2017 and arrested her. Forensic examination of the online partner's phone revealed over 3,000 pages of messages exchanged over two months, including 133 images of AR constituting child abuse material, sent across 23 separate messages on 13 different days. The images included AR naked and in sexualised positions, close-up photographs of her genitalia, and photographs showing the offender digitally penetrating her daughter.

The offender initially told police she had only photographed AR to document an eczema condition and that the images had been sent accidentally. However, the agreed facts established that AR's eczema had not required medical attention since she was four years old, the images showed no significant skin condition, and the volume and nature of the communications between the offender and her online partner were wholly inconsistent with that account.

  • What aggregate sentence was appropriate for three offences under the Crimes Act 1900, namely disseminating child abuse material, using a child under 14 to make child abuse material, and sexual intercourse with a child under 10 years?
  • Whether special circumstances existed under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 justifying a departure from the standard ratio of non-parole period to head sentence.
  • How the totality principle should apply when fixing an aggregate sentence across offences of varying gravity.

Decision

Mahony SC DCJ sentenced the offender on three offences. The most serious was sexual intercourse with a child under 10 years (carrying a maximum of life imprisonment and a standard non-parole period of 15 years), established by photographs taken on 29 July 2017 showing the offender's finger inside AR's vagina. The second offence involved using AR to make child abuse material (maximum 14 years, standard non-parole period of 6 years), and the third involved disseminating that material to her online partner (maximum 10 years, no standard non-parole period).

The court found the offending to be of the utmost gravity. It involved a sustained and deliberate gross breach of trust and parental authority over a period of months. The communications between the offender and her online partner demonstrated that the production and dissemination of the abuse material was purposeful and calculated, not accidental. The Interpol baseline categorisation confirmed that 78 of the 133 images fell within Category 1, depicting a real pre-pubescent child involved in or subjected to sexual activity or genital focus.

Applying the principles in JM v R [2014] NSWCCA 297 and Berryman v R [2017] NSWCCA 297 on aggregate sentencing, the court held that some accumulation was necessary to reflect the totality of the criminality across the three offences. The court found special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, justifying a greater than usual balance of sentence to allow for an extended period of supervision and rehabilitation on parole.

Orders Made

  • Conviction entered on three offences: disseminating child abuse material (s 91H(2)), using a child under 14 to make child abuse material (s 91G(1)(a)), and sexual intercourse with a child under 10 years (s 66A(1)), all under the Crimes Act 1900.
  • Aggregate sentence of 9 years imprisonment imposed pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999.
  • Non-parole period of 5 years, commencing 23 August 2017 and expiring 22 August 2022.
  • Balance of sentence of 4 years, running from 23 August 2022 to 22 August 2026.
  • Release to parole noted as non-automatic, subject to State Parole Authority determination and conditions including restrictions on associations, residence, and compliance with parole officer directions.

Key Takeaways

  • The District Court confirmed that an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 must reflect the totality of the criminality involved across all offences, and that some degree of accumulation is required where offences are serious and distinct in character.
  • A finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 permits the sentencing court to vary the standard ratio of non-parole period to head sentence, here resulting in a non-parole period representing just over half the aggregate term.
  • Where child abuse material offences are accompanied by the most serious category of child sexual assault, the sentencing framework accounts for the compounding gravity of the conduct rather than treating all offences as part of a single course of conduct warranting full concurrence.
  • Sustained, premeditated offending over months, combined with a gross breach of parental trust and deliberate concealment, are factors that increase the objective seriousness of child sexual abuse and child abuse material offences.
  • Under s 66A(1) of the Crimes Act 1900, sexual intercourse with a child under 10 years carries a maximum of life imprisonment and a standard non-parole period of 15 years, reflecting the legislature's recognition of this as among the gravest categories of criminal conduct.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 66A(1), 91G(1)(a), 91H(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 44(2), 53A

Cases
- Berryman v R [2017] NSWCCA 297
- Biddell v R [2017] NSWCCA 128
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Fedele v R [2015] NSWCCA 286
- Greenwood v R [2014] NSWCCA 64
- JM v R [2014] NSWCCA 297
- R v Booth [2009] NSWCCA 89
- R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41
- R v Gavel [2014] NSWCCA 56
- R v Hutchinson [2018] NSWCCA 152
- R v Porte [2015] NSWCCA 174
- R v Van Ryn [2016] NSWCCA 1