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District Court 13 June 2019

R v King (a pseudonym)

[2019] NSWDC 377

Sexual offences
INDECENT ASSAULT FATHER AND YOUNG DAUGHTER LATE GUILTY PLEA OBJECTIVE SERIOUSNESS VICTIM IMPACT OFFENDER’S MENTAL ILLNESS

Citation: R v King (a pseudonym) [2019] NSWDC 377
Court: District Court of New South Wales
Date: 13 June 2019
Judge: Haesler SC DCJ

Background

The offender, referred to by the pseudonym George King, pleaded guilty on the trial date to three serious sexual offences committed against his daughter, referred to as Leah. The offences occurred on two separate occasions: the first when Leah was aged 12 or 13, and the second when she was 14 or 15. Both incidents occurred in domestic settings where Leah was expected to be safe.

The offender is an Aboriginal Australian man born in 1963, with a lengthy criminal history and an extensive period in custody across his adult life. He has a diagnosed psychiatric illness (schizophrenia, first identified in 2003), longstanding intellectual and learning difficulties, and grew up in circumstances affected by alcohol abuse and socioeconomic disadvantage. Leah's mother, the offender's long-term partner, died in 2009, leaving Leah in the care of her older siblings.

The three counts for sentencing were: one charge of indecent assault on a person under 16 (involving skin-on-skin contact with the child's genitalia); and two charges of aggravated sexual intercourse with a child under ten without consent. The pleas were entered in full satisfaction of a four-count indictment, with the offender having made some admissions prior to and at arrest, and having indicated a plea to one count in the Local Court.

  • What was the appropriate assessment of objective seriousness for each offence, having regard to the standard non-parole period (SNPP) as a sentencing guide?
  • What weight should be given to the offender's late guilty plea compared to an earlier plea indicated in the Local Court?
  • How should the offender's psychiatric illness, intellectual difficulties, and deprived Aboriginal background be weighed under the principles in R v Fernando and Bugmy v The Queen?
  • Whether the offender's admissions to police and in a telephone intercept constituted assistance to authorities warranting a sentencing discount.
  • Whether special circumstances existed justifying a variation to the standard ratio between the non-parole period and the total sentence.
  • How to structure an aggregate sentence across three offences of varying gravity.

Decision

Objective seriousness. Haesler SC DCJ treated the anal intercourse count as the most serious of the three offences. His Honour identified the nature and duration of the physical acts, the immediate harm caused (pain and bleeding), the age of the child, and, critically, the father-daughter relationship as aggravating features. The Court emphasised that fathers occupy a position of particular trust, especially when the child's mother has died, and that a child asleep in bed is virtually helpless against such an attack. The offences were placed above the mid-range of objective seriousness.

Guilty plea discounts. The plea to count 4 (oral intercourse) was indicated early, in the Local Court, and attracted a 25% reduction. The pleas to counts 2 and 3 were not entered until the week before trial, and only a 10% discount was applied to those. His Honour was careful to separate the credit properly attributable to each plea, noting the difference in timing.

Personal mitigation. The Court applied the principles in R v Fernando and Bugmy v The Queen, acknowledging the offender's deprived background, intellectual difficulties, and mental illness as relevant mitigating factors. However, his Honour held that these factors, while they must be given appropriate weight, could not be permitted to produce a sentence disproportionate to the gravity of the crimes. The offender's admissions, including those captured on the telephone intercept, were not treated as assistance to authorities because they did not assist police or prosecution in any meaningful way beyond what was already known.

Special circumstances and aggregate sentence. No finding of special circumstances was made to vary the standard non-parole period ratio. The Court noted the offender's need for supervision and support on release but did not consider this sufficient to alter the standard ratio in the aggregate sentence. The total sentence reflected an obligation to vindicate the victim's dignity, express community disapproval, and protect vulnerable persons from repetition of such offending.

Orders Made

  • Count 3 (anal intercourse, most serious): Sentence of 9 years; non-parole period of 6 years. (Notional pre-plea sentence: 10 years; 10% reduction for plea.)
  • Count 2 (indecent assault): Sentence of 4 years 6 months; non-parole period of 3 years. (Notional pre-plea sentence: 5 years; 10% reduction for plea.)
  • Count 4 (oral intercourse): Sentence of 6 years 9 months; non-parole period of 4 years 6 months. (Notional pre-plea sentence: 9 years; 25% reduction for early plea.)
  • Aggregate sentence: Total term of 10 years and 4 months; non-parole period of 7 years and 4 months.
  • Non-parole period commences 4 August 2017 (date of custody) and expires 3 December 2024; balance of sentence expires 3 December 2027.
  • The Court noted that, under s 25CC of the Crimes (High Risk Offenders) Act 2006, administrative action could be taken on release if the offender is perceived to pose a risk to the community.

Key Takeaways

  • The District Court confirmed that an offender's deprived Aboriginal background, mental illness, and intellectual difficulties are mitigating factors to be weighed under Fernando and Bugmy, but those factors cannot produce a sentence disproportionate to the objective gravity of serious child sexual offences.
  • A father's relationship with his child, particularly where the mother has died and the child is dependent on that parent, is a significant aggravating feature that compounds the breach of trust inherent in such offending.
  • Admissions made to police or captured on a lawful telephone intercept do not constitute assistance to authorities for sentencing purposes where they did not meaningfully advance the investigation or prosecution beyond what was already known.
  • The timing of a guilty plea directly affects the quantum of discount available: an early plea indicated in the Local Court attracted 25%, while pleas entered in the week before trial attracted only 10%.
  • Sentencing courts are required to balance the vindication of victims' dignity and community protection against individual mitigating factors, with the standard non-parole periods for child sexual assault offences serving as a legislative indicator of the seriousness with which Parliament views such conduct.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes Act 1900 (NSW), ss 61J(1), 61M(2), 47(8A)
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25CC
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), Div 1

Cases
- BT v R [2010] NSWCCA 267
- Bugmy v The Queen (2013) 249 CLR 571
- Clarkson v The Queen [2011] VSCA 157
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- Markarian v The Queen (2005) 228 CLR 357
- Mill v The Queen (1988) 166 CLR 59
- R v Clinch (1994) A Crim R 301
- R v Fernando (1992) 76 A Crim R 58
- R v Gavel [2014] NSWCCA 56
- R v GSH [2009] NSWCCA 214
- R v KNL [2005] NSWCCA 260
- R v MAK [2006] NSWCCA 381
- R v NJK [2011] NSWCCA 151
- R v Van Ryn [2016] NSWCCA 1
- Tepania v R [2018] NSWC