Citation: R v BP (No 2) [2019] NSWDC 446
Court: District Court of NSW
Date: 7 June 2019
Judge: Wilson SC DCJ
Background
A jury convicted the offender, a stepfather, on two charges of sexual assault against his stepdaughter, JB. The offending occurred between 2004 and 2006, when JB was eight years old and living with her mother and the offender at Kariong on the NSW Central Coast. The offender maintained throughout the proceedings, and during sentencing assessments, that he did not commit the offences.
The first offence involved the offender digitally assaulting JB in the lounge room of the family home while her mother slept. The second offence occurred during a family holiday in Queensland, where the offender touched JB on the outside of her clothing before being interrupted by her mother. JB did not report the assaults to police until February 2013, when she was 16 years old.
The sentencing hearing proceeded on the basis of agreed facts, a psychologist's report, a Sentencing Assessment Report, and diary entries kept by JB between 2009 and 2016.
Legal Issues
- What is the appropriate objective seriousness to be attributed to each offence?
- How should the delay between the offending and sentencing affect the sentence?
- Whether special circumstances exist to justify a variation from the standard statutory ratio of parole to non-parole period?
- Whether the sentences should be served concurrently or cumulatively, having regard to the totality principle?
- Whether the standard non-parole periods should be departed from, and if so, what reasons exist for that departure?
Decision
Objective seriousness: The court assessed the first count of indecent assault as falling just below the mid-range of objective gravity, noting the offending was opportunistic (at [18]). The second count of sexual intercourse with a person under the age of ten was assessed at the mid-range (at [18]). An aggravating factor was the breach of trust involved: JB was entitled to feel safe in her home, and the offender held the position of stepfather (at [17]).
Impact on the complainant: JB's diary entries from 2009 to 2016 demonstrated the lasting emotional harm caused by the offending, including references to being terrified and to her life being made miserable (at [19]-[20]). The court took the victim impact evidence into account in assessing objective seriousness.
Subjective circumstances and delay: The offender's criminal history for driving and violence offences did not aggravate the offending but disentitled him to leniency (at [21]-[22]). The court acknowledged the delay between the offending and sentencing as a factor capable of justifying some leniency, but attributed it less weight because delayed reporting is common in child sexual assault matters (at [41]). Special circumstances were accepted, justifying a departure from the standard parole-to-non-parole ratio (at [43]).
Concurrency and standard non-parole period: The court imposed wholly concurrent sentences on the basis that the offending formed part of the same conduct, consistent with totality principles (at [45]). The court departed from the standard non-parole period on both counts: for the first count because the offending fell below the mid-range, and for the second count because the conduct, while serious, represented a less serious example within the broad range of acts captured by the relevant provision (at [49]-[50]).
Orders Made
- For the charge of indecent assault with victim under ten (s 61M(2) Crimes Act 1900): non-parole period of two years commencing 13 February 2019, expiring 12 February 2021; head sentence of three years expiring 11 December 2022 (at [47]).
- For the charge of sexual intercourse with a person under ten (s 66A Crimes Act 1900): non-parole period of six years commencing 13 February 2019, expiring 12 February 2025; head sentence of nine years expiring 11 February 2028 (at [48]).
- Both sentences to be served concurrently (at [45]).
Key Takeaways
- The District Court confirmed that delayed reporting by a child complainant is a recognised phenomenon that carries less weight as a mitigating factor in favour of the offender, rather than counting against the prosecution's position on delay (at [41]).
- A breach of a domestic trust relationship, such as an offender holding a parental role in the complainant's home, constitutes an aggravating factor in assessing the objective seriousness of child sexual assault offences (at [17]).
- Where an offender maintains a not-guilty plea and continues to deny guilt during post-conviction assessments, rehabilitation remains a sentencing consideration, but the court must still proceed on the assumption of guilt and address rehabilitation needs accordingly (at [35]-[36]).
- Concurrent sentences are appropriate where multiple offences form part of the same course of conduct, to avoid a total sentence that exceeds what the overall criminality warrants under the totality principle (at [45]).
- Under s 66A of the Crimes Act 1900, the provision captures a wide range of conduct, and an offence that represents a less serious example within that range may justify departure from the standard non-parole period even without any formal hierarchy of sexual offending (at [50]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999
Cases
- R v Holyoak (1995) 82 A Crim R 502
- Veen v The Queen (No 2) (1988) 164 CLR 465