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District Court 1 March 2019

R v AH

[2019] NSWDC 39

Sexual offencesDrugs
SENTENCING CHILD SEXUAL ASSAULT ABUSE OF TRUST STEP FATHER AND STEP DAUGHTER INJECTION OF DRUGS SENTENCING ASSISTANCE TO AUTHORITIES

Citation: R v AH [2019] NSWDC 39
Court: District Court of New South Wales
Date: 1 March 2019
Judge: Hatzistergos DCJ

Background

The offender was the stepfather of the victim, C, who was born in September 2000. He and the victim's mother had been married since 2005 and had four other children together. The offender worked as a mentor to persons released from corrective services, a role that Hatzistergos DCJ noted was directly relevant to his moral culpability.

The offending began in late July 2016 when the victim was 15 years old. The offender introduced C to methamphetamine (ice), deliberately supplying and administering it to her on multiple occasions. He explicitly framed this as part of a three-stage process he called "the underground," comprising drugs, money, and sex. The sexual offending escalated over subsequent weeks and continued after C turned 16, with the offender exploiting the position of trust he held as her stepfather.

The offender pleaded guilty to seven offences, including aggravated sexual intercourse with a child aged 14 to 16, aggravated indecent assault, three counts of sexual intercourse with a child aged 16 to 18 under special care, and two counts of supplying a prohibited drug. Four further offences (grooming and an additional aggravated indecent assault) were taken into account on a Form 1 attached to the principal count.

  • What sentences were appropriate for each of the seven counts, having regard to the objective seriousness of the offending and the applicable maximum penalties and standard non-parole periods?
  • Whether a discount for assistance to authorities (the so-called "Ellis discount") applied, given that the offender's admissions were made in circumstances of limited utility to investigators.
  • What weight should be given to subjective factors including the offender's status as a first-time offender, expressed remorse, and prospects of rehabilitation?
  • Whether special circumstances existed justifying a departure from the standard ratio between non-parole period and total sentence under the aggregated sentence.

Decision

Hatzistergos DCJ identified the objective gravity of the offending as high. The deliberate grooming of the victim through the supply of ice, the exploitation of a position of trust as stepfather, and the premeditated nature of the "underground" framework were all treated as serious aggravating features. The offending involved a sustained course of conduct rather than isolated acts.

On the question of an Ellis discount (a reduction in sentence for admissions made to police that render a trial unnecessary or assist investigators), the court found that the offender's admissions were of limited utility. By the time the admissions were made, police already held substantial evidence. The court declined to apply a meaningful discount on this basis, though the guilty plea itself attracted the standard sentencing reduction.

The court accepted that several subjective factors operated in the offender's favour. He had no prior criminal record. A psychologist's report supported a finding of genuine remorse, and the court found his prospects of rehabilitation were reasonable. These matters reduced what would otherwise have been a heavier sentence, though they could not displace the seriousness of the conduct.

Special circumstances were found to exist, warranting an extended additional term relative to the non-parole period under the aggregate sentence. This reflected the offender's need for supervision and support on eventual release, given the nature of the offending and the rehabilitation work required.

Orders Made

  • The offender was convicted of all seven counts.
  • Taking into account the Form 1 matters on Count 1, an aggregate sentence of 8 years and 4 months imprisonment was imposed, commencing 16 February 2017 and expiring 15 June 2025.
  • The non-parole period was set at 5 years, from 16 February 2017 to 15 February 2022.
  • The additional term (parole eligibility period) runs from 16 February 2022 to 15 June 2025.
  • The offender's earliest release date is 15 February 2022.

Key Takeaways

  • A deliberate, staged grooming process involving the supply of methamphetamine to a child, combined with a serious abuse of a parental position of trust, will be treated as substantially aggravating the objective seriousness of child sexual assault offences.
  • The Ellis discount (for admissions to authorities) is not applied as a matter of course. Where police already hold sufficient evidence at the time of the admissions, the utility of those admissions is reduced and the discount may be withheld or limited.
  • Under s 66C(4) of the Crimes Act 1900 (NSW), aggravated sexual intercourse with a child aged 14 to 16 carries a maximum of 12 years imprisonment and a standard non-parole period of 5 years, framing the starting point for the most serious count.
  • First-offender status, established remorse, and reasonable prospects of rehabilitation remain relevant mitigating factors in child sexual assault sentencing, even where objective seriousness is high.
  • Special circumstances justifying a longer additional term relative to the non-parole period may be found where the nature of the offending and rehabilitation needs indicate that extended post-release supervision is warranted.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66C(4), 66EB(3), 73(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 37
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)

Cases:
- Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518
- McDowall v R [2019] NSWCCA 29
- Panetta v R [2016] NSWCCA 85
- R v ABS [2005] NSWCCA 255
- R v Cheikh; R v Hoete [2004] NSWCCA 448
- R v Kennedy [2000] NSWCCA 527
- R v Stambolis (2006) 160 A Crim R 510; [2006] NSWCCA 56
- Tazelaar v R [2009] NSWCCA 119