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District Court 14 June 2019

R v MK

[2019] NSWDC 489

Sexual offences
CRIMINAL LAW SENTENCE INDECENT ASSAULT SEXUAL INTERCOURSE WITH CHILD +0 14 YEARS MENTAL HEALTH ISSUES

Citation: R v MK [2019] NSWDC 489
Court: District Court of New South Wales
Date: 14 June 2019
Judge: Bright DCJ

Background

The offender, aged 28 at the time of sentence, was the half-brother of the victim, who was aged 11 at the time of sentencing. The offending occurred between 2014 and 2017, when the victim was between approximately five and ten years old. The offender had been living in a detached garage at the family home, assisting with the care of three younger children while their parents worked shifts.

The offending began with what the victim initially understood as tickling and escalated over several years to include digital touching, the victim being directed to manually stimulate the offender, and on two occasions, the offender performing cunnilingus and anal licking on the victim. Much of the later offending occurred at the grandmother's home, where the victim visited during school holidays.

The offender was arrested in November 2017, made full and frank admissions during a police interview, and pleaded guilty to all 13 charges in the Local Court in October 2018. The charges comprised 11 counts of indecent assault of a person under 16 years (s 61M(2), Crimes Act 1900) and two counts of sexual intercourse with a person aged 10 or over and under 14 years (s 66C(1), Crimes Act 1900).

  • What aggregate sentence was appropriate for 13 offences of child sexual abuse committed over several years against a young half-sibling?
  • What discount should be applied for the guilty plea, having regard to its timing?
  • Whether special circumstances existed to justify varying the statutory ratio between the non-parole period and the balance of the term (that is, allowing more time on parole relative to total sentence).
  • How the standard non-parole periods and maximum penalties applied to the objective seriousness of the individual offences.

Decision

Bright DCJ assessed the offending as extremely serious. The victim was a young child who was betrayed by a family member in a position of trust and responsibility. The offending was not isolated but occurred repeatedly over three to four years and escalated in nature. The court noted that sentencing for sexual offences against children must reflect general deterrence, punishment, and denunciation as required by s 3A of the Crimes (Sentencing Procedure) Act 1999.

A 25% discount was applied to reflect the guilty plea, having regard to its timing. The court noted the offender's co-operation with police, including full admissions at interview, as a further relevant consideration in mitigation. The offender's mental health history was also taken into account in the overall assessment.

The court determined separate notional sentences for each offence before arriving at the aggregate term under s 53A of the Crimes (Sentencing Procedure) Act 1999. Notional sentences ranged from 12 months (for less serious individual indecent assault counts) to 3 years and 4 months (for each of the two sexual intercourse offences). The court found special circumstances, justifying a variation of the statutory ratio so that the offender would serve a shorter non-parole period relative to the total term, allowing for a more extended period on supervised parole.

Orders Made

  • The offender was convicted of all 13 offences.
  • An aggregate term of imprisonment of 7 years and 6 months was imposed, backdated to commence on 7 November 2017 and expiring on 6 May 2025.
  • A non-parole period of 5 years was fixed, running from 7 November 2017 and expiring on 6 November 2022.
  • Special circumstances were found, varying the statutory ratio between the non-parole period and the parole period.
  • The earliest date of parole eligibility was set at 6 November 2022.

Key Takeaways

  • The District Court treated the familial relationship between offender and victim, and the accompanying breach of trust, as a significant aggravating factor in sentencing for child sexual offences.
  • An aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 requires the court to state the notional individual sentence for each offence; these notional sentences ranged from 12 months to 3 years and 4 months after the guilty plea discount was applied.
  • A 25% discount for a guilty plea entered in the Local Court, together with full admissions to police at interview, were recognised as mitigating factors in the sentencing calculus.
  • Special circumstances were found to exist, permitting the court to reduce the non-parole period below the standard statutory proportion of the total sentence, resulting in an extended parole period to facilitate supervision and rehabilitation.
  • Under s 66C(1) of the Crimes Act 1900, sexual intercourse with a child aged between 10 and 14 years carries a maximum penalty of 16 years' imprisonment and a standard non-parole period of 7 years; under s 61M(2), indecent assault of a person under 16 carries a maximum of 10 years and a standard non-parole period of 8 years.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 66C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 53A

Cases
- Cahyadi v R [2007] NSWCCA 1
- DPP (Commonwealth) v De La Rosa [2010] NSWCCA 194
- R v BA [2014] NSWCCA 148
- R v Hibberd (2009) 194 A Crim R 1
- R v Nelson [2016] NSWCCA 130
- Tepania [2018] NSWCCA 247
- Yun v R [2017] NSWCCA 317