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District Court 8 February 2019

R v JJ

[2019] NSWDC 27

Sexual offencesAssault & violenceDomestic & family violence
CRIMINAL LAW AGGRAVATED SEXUAL ASSAULT VICTIM UNDER 16 YEARS

Citation: R v JJ [2019] NSWDC 27
Court: District Court of New South Wales
Date: 8 February 2019
Judge: Colefax SC DCJ

Background

The offender was sentenced following a jury trial in Bega in November 2018. He had been in a long-term relationship with the victim's mother and was the biological father of the victim's younger half-sister. The victim was 14 years old at the time of the offending in October or November 2016.

On the morning of the offence, the victim's mother had left the house with the younger child. The offender arrived at the home in an angry state, forced his way in, dragged the victim to her bedroom, punched her when she resisted, and committed penile/vaginal sexual intercourse on her without her consent. After the assault, he grabbed her by the neck and threatened to kill her if she told her mother, a threat that silenced her for some time.

The victim eventually disclosed the assault to a boyfriend in 2017. That disclosure led her to tell her mother, and ultimately the police. The offender was arrested, stood trial, and was unanimously convicted by the jury on the second count on the indictment. The judge had directed an acquittal on the first count at the close of the Crown case.

  • What sentence was appropriate for a conviction under s 61J(1) of the Crimes Act 1900 (NSW) for aggravated sexual intercourse without consent, where the circumstance of aggravation was that the victim was under 16 years of age?
  • Where did the offending fall on the spectrum of objective seriousness for this category of offence?
  • What weight, if any, should be given to the offender's mental health history, lack of remorse, prior criminal record, and prospects of rehabilitation?
  • Whether special circumstances existed to justify varying the statutory ratio between the head sentence and the non-parole period.

Decision

Colefax SC DCJ found the offending to be at the mid-range of objective seriousness for an offence of its kind. The judge identified aggravating features: the assault occurred in the victim's own home and in her bedroom; it involved both actual physical violence (punching) and a subsequent threat to kill the victim if she disclosed the assault.

The Crown submitted that a breach of a position of trust further aggravated the offending. The judge declined to find this additional aggravation, accepting the reasons advanced in the Crown prosecutor's written submissions but not elaborating further in the published reasons.

The offender continued to deny the offence at sentencing, including an outburst during the sentencing remarks themselves. The judge found no remorse and assessed rehabilitation prospects as guarded. While the judge accepted the offender had experienced significant childhood domestic violence and suffered from post-traumatic stress disorder, anxiety and depression, those matters were not sufficient to substantially mitigate the sentence. The offender's prior convictions, including stalking and intimidating and driving with high blood alcohol, precluded the leniency ordinarily available to a first offender.

On the question of special circumstances, the judge declined to make a finding that would increase the proportion of the sentence served on parole. The judge reasoned that a longer parole period would not enhance rehabilitation prospects, that the parole period would in any event be substantial, that a first period of custody alone did not establish special circumstances, and that the offender's psychological condition was not shown to make imprisonment materially harsher than for others.

Orders Made

  • The offender was sentenced to 12 years imprisonment for the offence of aggravated sexual intercourse without consent contrary to s 61J(1) of the Crimes Act 1900 (NSW).
  • Non-parole period of 9 years fixed, commencing 12 October 2018 and expiring 11 October 2027.
  • Balance of term of 3 years fixed, commencing 12 October 2027 and expiring 11 October 2030.
  • The sentence was backdated to 12 October 2018 to account for time spent in custody on remand and following the verdict.

Key Takeaways

  • A conviction under s 61J(1) of the Crimes Act 1900 (NSW) carries a maximum of 20 years imprisonment and a standard non-parole period of 10 years; the District Court assessed this particular offending as sitting at the mid-range of the objective gravity spectrum for that offence.
  • Where a matter proceeds to trial, the sentencing judge is required to make findings of fact consistent with the jury's verdict; here, the judge made findings consistent with the Crown opening because the Crown witnesses' evidence substantially corresponded with it.
  • Persistent denial of the offence, including an outburst during sentencing remarks, was treated as negating any finding of remorse and contributed to a guarded assessment of rehabilitation prospects.
  • A finding of special circumstances requires more than the bare fact that the offender is in custody for the first time; the sentencing court considered the utility of additional parole time and the circumstances of the individual before declining to make such a finding.
  • Prior convictions that do not resemble the principal offence may nonetheless deprive an offender of the mitigation available to a first offender, particularly where those convictions include offences against or involving other persons.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61J(1) (aggravated sexual intercourse without consent, victim under 16 years)
- Court Suppression and Non-Publication Orders Act 2010 (NSW)

Cases cited: None stated in the judgment.