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District Court 22 November 2018

R v Nicholson

[2018] NSWDC 347

Sexual offences
SENTENCING AGGRAVATING FACTORS AGGRAVATING FACTORS MITIGATING FACTORS REHABILITATION SENTENCING MITIGATING FACTORS

Citation: R v Nicholson [2018] NSWDC 347
Court: District Court of New South Wales
Date: 22 November 2018
Judge(s): Hatzistergos DCJ

Background

The offender, born in 1948, was a neighbour and family friend of the victim and her mother in Balmain during the mid-to-late 1980s. The victim, born in 1983, came to Australia as an infant. Her mother worked long hours at a bakery, and the offender and his partner regularly babysat the victim and her brother.

The offender faced sentencing for two principal offences committed when the victim was aged approximately four to seven years old. The first was an act of indecency in 1988, involving the rubbing of the victim's genitals over her clothing while other people were present in the home, accompanied by sexualised comments. The second, more serious offence occurred in 1990 when the offender digitally penetrated the victim during a power blackout while her mother was overseas and the offender was minding the children.

In July 2015, the victim telephoned the offender in a lawfully recorded call. The offender made admissions acknowledging the conduct and described it as arising from a need for closeness, while also suggesting he had since undergone therapy. Police attended the following day, but the offender declined to participate in a recorded interview.

  • What was the objective seriousness of each offence, and where did each sit within the range for the relevant statutory provisions?
  • Whether the aggravating factors under the Crimes (Sentencing Procedure) Act 1999 (NSW) applied, including commission in the victim's home and abuse of a position of trust or authority.
  • Whether the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW), which altered sentencing provisions for child sexual offences, applied to an offender sentenced after its commencement but whose offences predated it.
  • How mitigating factors, including rehabilitation and remorse, should be weighed in the overall sentencing exercise.
  • What sentence, arrived at by instinctive synthesis, was appropriate across all counts.

Decision

The court found both offences to be objectively serious. The 1988 indecency offence was assessed above the mid-range for that category of offending, given the intrusive nature of the touching, the accompanying sexualised commentary, grooming behaviour, the victim's extreme youth and vulnerability, and the commission of the offence in the victim's own home. The 1990 offence of sexual intercourse without consent with a person under ten was treated as the primary offence for sentencing purposes and was assessed as more serious still, involving digital penetration in circumstances of deliberate manipulation of the environment.

Two statutory aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 were found to apply: the offending occurred in the victim's home, and the offender held a position of trust or authority in relation to the victim as a trusted family friend and caregiver. The court also took into account the victim's powerful impact statement, which described lasting effects on her relationships, mental health, capacity to trust, and her approach to parenting her own children.

A significant issue arose regarding whether the 2018 amending legislation, which relevantly amended provisions affecting the structure of sentencing for child sexual offences, applied to this sentencing proceeding. The court engaged in detailed statutory interpretation, ultimately concluding that the new Act applied. This was based on the text and purpose of the legislation, parliamentary debates, and the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse, all of which pointed to an intention that the reforms operate on sentencing proceedings occurring after commencement, regardless of when the offences were committed.

On mitigation, the court accepted that the offender had undertaken genuine rehabilitation, supported by psychological evidence, and that some degree of remorse was present, though the court assessed the remorse as qualified given the content of the recorded telephone call. The court applied the instinctive synthesis method to arrive at sentences that reflected the totality of the offending, the mitigating factors, and the need for both specific and general deterrence.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The District Court confirmed that commission of child sexual offences in the victim's own home, and exploitation of a position of trust as a family caregiver, are statutory aggravating factors that elevate the seriousness of the offending under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

  • A detailed interpretive analysis led the court to conclude that the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW) applied to sentencing proceedings commenced after the Act's commencement, even where the underlying offences predated the legislation. The court drew on parliamentary debates and the Royal Commission's recommendations to support this construction.

  • Grooming behaviour, including the use of secrecy and the deliberate creation of opportunity, was treated as a feature that elevated objective seriousness even where no physical force was used.

  • Rehabilitation and remorse can operate as mitigating factors in historic child sexual abuse cases, but the weight given to remorse is diminished where the offender's own statements suggest only partial acknowledgment of the conduct.

  • Victim impact statements occupy a formally recognised role in the sentencing exercise, and this decision illustrates how courts assess the long-term psychological and relational consequences of childhood sexual abuse when determining the appropriate penalty.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61E(1), 66A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 25AA, 44
- Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)
- Interpretation Act 1987 (NSW), s 30
- Probation and Parole Act 1983 (NSW)
- Probation and Parole (Serious Offenders) Amendment Act 1987 (NSW), s 20A

Cases
- AJB v R [2007] NSWCCA 51
- Baines v R [2016] NSWCCA 132
- Denham v The Queen [2016] NSWCCA 309
- Georgopoulos v R [2010] NSWCCA 246
- Imbornone v R [2017] NSWCCA 144
- K and S Lake City Freighters Pty Ltd v Gordon and Gotch (1985) 157 CLR 309
- MC v R [2017] NSWCCA 316
- MPB v R [2013] NSWCCA 213
- Mottram v R [2009] NSWCCA 210
- PWB v R [2011] NSWCCA 84
- R v Borkowski [2009] NSWCCA 102
- R v Forbes [2016] EWCA Crim 1388
- R v MJR [2002] NSWCCA 129
- R v PGM (2008) 187 A Crim R 152
- R v Thompson; R v Holton (2000) 49 NSWLR 383
- R v Woods (2009) 195 A Crim R 173
- Saddler v R (2009) 194 A Crim R 452
- Simpson v R [2012] NSWCCA 246
- X7 v Australian Crime Commission (2013) 248 CLR 92