Citation: R v RA (No 2) [2019] NSWDC 463
Court: District Court of New South Wales
Date: 2 August 2019
Judge(s): Wilson SC DCJ
Background
The offender, aged 55 at the time of sentencing, was found guilty by a jury of two charges arising from conduct that occurred between August 1980 and December 1981, when he was aged between 16 and 18 years old. The offences took place at a residential property in Gwandalan, NSW, and involved a victim who was under 10 years of age at the time.
The two charges were assault with an act of indecency (Count 2) and carnal knowledge of a girl under the age of 10 years (Count 3A). The victim first disclosed the offending to her mother shortly after the incident, but was not believed. She reported the matter to police in 2014, and the offender was charged in November 2017 and extradited to New South Wales for prosecution.
At sentence, the court received a substantial body of subjective material on behalf of the offender, including character letters from family members and an employer, as well as historical hospital records. The Crown and defence provided written submissions, and defence counsel also tendered a table of comparable sentences for similar offending.
Legal Issues
- What sentence was appropriate for carnal knowledge of a girl under 10 years (maximum: life imprisonment) committed by a juvenile offender approximately 38 years before sentencing?
- How should the court balance general deterrence against the offender's status as a juvenile at the time of the offending?
- Whether special circumstances existed justifying a departure from the standard ratio between non-parole period and balance of term.
- How the obligation under s 25AA of the Crimes (Sentencing Procedure) Act 1999 to apply current sentencing patterns applied to historic offending.
Decision
Wilson SC DCJ accepted the Crown's summary of objective facts, which both parties agreed was consistent with the jury's verdicts. The facts disclosed that the offender followed the child victim to an area beneath the house, encouraged her to lie down, and committed both offences in circumstances where the victim attempted to resist and experienced pain. The victim's impact statement described lasting and serious psychological harm, including post-traumatic stress disorder, difficulties with relationships and trust, and ongoing family pressure to abandon the prosecution.
On objective seriousness, the court assessed Count 2 (the act of indecency, involving kissing on the cheek) as well below the mid-range for that offence. Count 3A, involving penile penetration of a child under 10, was assessed as more serious, given the victim's young age, the significant breach of trust, the physical pain caused, and the ongoing psychological harm, though the court also acknowledged the offender's own youth as a mitigating factor.
The court found that the offender's age at the time of offending was a significant mitigating consideration and that many of the rehabilitation-focused matters under s 6 of the Children (Criminal Proceedings) Act 1988 had limited practical application given the passage of nearly four decades. Nonetheless, the court acknowledged a tension between the need for general deterrence and the juvenile status of the offender at the time. The court found special circumstances existed, citing the offender's age and other relevant factors, which justified a longer balance of term relative to the non-parole period than would otherwise apply.
For Count 2, the court imposed a conviction with no further penalty under s 10A. For Count 3A, a total sentence of five years was imposed, with a non-parole period of three years. The court confirmed the sentence was consistent with current sentencing patterns and practices as required by s 25AA, having closely examined the comparative sentencing table provided by defence counsel.
Orders Made
- Count 2 (assault with an act of indecency): convicted with no further penalty imposed pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999.
- Count 3A (carnal knowledge of a girl under the age of 10 years): sentenced to a non-parole period of 3 years, commencing 28 March 2019 and expiring 27 March 2022, with a balance term of 2 years commencing 28 March 2022 and expiring 27 March 2024.
- Total effective sentence: 5 years imprisonment.
- Eligible for parole consideration from 27 March 2022.
Key Takeaways
- The District Court applied s 25AA of the Crimes (Sentencing Procedure) Act 1999, which requires sentencing for child sexual offences to reflect current sentencing patterns and practices at the time of sentence, not at the time the offences were committed, even where the offending is many decades old.
- A significant tension arises in historic child sexual offence cases where the offender was a juvenile at the time of offending: the court must weigh the imperative of general deterrence against the mitigating effect of youthful offending, and s 6 of the Children (Criminal Proceedings) Act 1988 may have limited practical application where many years have since elapsed.
- Victim impact evidence was treated as directly relevant to assessing the gravity of child sexual offending. The court noted that such offences ordinarily give rise to psychological damage, consistent with the Court of Criminal Appeal's approach in SW v R [2013] NSWCCA 255.
- Special circumstances justifying a non-standard ratio between non-parole period and balance of term can be found where the offender's age and personal circumstances warrant a longer period of supervised release.
- A conviction with no further penalty under s 10A remains available for a count that, while serious, is substantially less grave than the principal offence being sentenced on the same indictment.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW) ss 61E, 67, 76
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 10A, 21A, 25AA
- Children (Criminal Proceedings) Act 1988 (NSW) s 6
Cases:
- R v AA [2017] NSWCCA 84
- SW v R [2013] NSWCCA 255