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District Court 20 June 2018

R v SB

[2018] NSWDC 474

Sexual offences
CRIMINAL SENTENCE AFTER TRIAL CIRCUMSTANCES OF AGGRAVATION UNDER AUTHORITY 2 OFFENCES

Citation: R v SB [2018] NSWDC 474
Court: District Court of New South Wales
Date: 20 June 2018
Judge(s): King SC DCJ

Background

The offender, a former Australian Defence Force veteran with service in Afghanistan and East Timor, was convicted after trial of two offences of sexual intercourse with a child under 10. The victim was his biological daughter, who was aged five at the time of the first offence and seven at the time of the second.

Both offences involved digital vaginal penetration carried out in the victim's bedroom while the offender had been drinking. The first offence occurred in May 2013, when the victim's mother was away for work and the offender and child were alone together at the family home. The second occurred on Halloween night in October 2015, at the offender's house in Quakers Hill, during a parenting-orders access weekend. On both occasions, the victim left her bed afterwards and went elsewhere in the house to sleep.

The victim did not disclose the abuse until March 2016, when she told her mother on the way to a school program. She was subsequently interviewed twice by JIRT (Joint Investigation Response Team) officers and described similar incidents occurring on numerous other occasions, though she could not identify specific dates for those other events. The offender was acquitted of two further counts on the indictment.

  • What sentence was appropriate for two offences of sexual intercourse with a child under 10, one in circumstances of aggravation (child under authority), under ss 66A(1) and 66A(2) of the Crimes Act 1900?
  • How should the objective seriousness of the offending be assessed, having regard to the digital penetration of a very young child by her father, the breach of trust involved, and the context of alcohol use?
  • What weight should be given to subjective matters, including the offender's military service, post-traumatic stress disorder (PTSD), alcohol dependency, and first-time custody status?
  • Whether special circumstances existed justifying a departure from the statutory ratio between the non-parole period and the balance of term under the Crimes (Sentencing Procedure) Act 1999?

Decision

King SC DCJ described the offending as a serious breach of trust and authority. The offender was the victim's father and her primary carer on both occasions. The court treated the repeated nature of the offending, the victim's very young age, and the lasting harm caused to the victim as significant aggravating features. The fact that the offender responded to the victim's attempts to discuss the first incident by suggesting she was lying compounded the harm.

The court acknowledged a range of subjective matters in the offender's favour. These included his military service in East Timor and Afghanistan, his diagnosis of PTSD, and his alcohol dependency. However, these matters did not substantially diminish the objective gravity of the offences, and the court found that intoxication was not a mitigating circumstance but rather a feature of the offending context.

The court found special circumstances within the meaning of the Crimes (Sentencing Procedure) Act 1999, citing the offender's first period in custody, his likely need to serve time in protection or limited association, and the desirability of a longer parole period to support reintegration and any treatment for alcohol use and sexual offending. The court set the non-parole period at approximately two-thirds of the total aggregate sentence, rather than the standard three-quarters ratio.

The court imposed an aggregate sentence and noted that participation in available programs while in custody relating to alcohol and sexual offending was strongly encouraged.

Orders Made

  • The offender was convicted on Count 1 (sexual intercourse with a child under 10 in circumstances of aggravation, under authority) and Count 5 (sexual intercourse with a child under 10).
  • Aggregate sentence of 12 years imposed, comprising a non-parole period of 8 years commencing 8 May 2018, with a balance of term of 4 years.
  • First eligible for parole: 7 May 2026.
  • Full term expires: 7 May 2030.
  • Special circumstances found, reducing the non-parole period below the standard statutory ratio.

Key Takeaways

  • The District Court treated the sexual abuse of a very young child by her biological father as among the most serious categories of child sexual offending, given the fundamental breach of parental trust and authority involved.
  • Where a parent commits aggravated offences against his own child while acting as her sole carer, the circumstances of authority are a statutory aggravating feature under s 66A(2) of the Crimes Act 1900, attracting the higher maximum and the same standard non-parole period of 15 years as the base offence.
  • Special circumstances under the Crimes (Sentencing Procedure) Act 1999 were established by reference to first-time custody status, the likelihood of serving time in protection, and the benefit of extended supervised parole for treatment and reintegration purposes.
  • Military service and diagnosed PTSD were accepted as part of the offender's subjective history but were afforded limited mitigating weight where the offending involved deliberate, repeated abuse of a child.
  • An aggregate sentencing approach was applied across both counts, with the court indicating what indicative sentences it would have imposed on each individual count before arriving at an appropriate total.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66A(1) and 66A(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases cited: No cases were cited in the text provided.