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District Court 20 September 2019

R v RDT (a pseudonym)

[2019] NSWDC 596

Sexual offences
CRIME CHILD SEX OFFENCES DISSEMINATE CHILD ABUSE MATERIAL CRIME SEXUAL INTERCOURSE WITH CHILD <10

Citation: R v RDT (a pseudonym) [2019] NSWDC 596
Court: District Court of New South Wales
Date: 20 September 2019
Judge(s): Buscombe DCJ

Background

The offender, a man born in 1965, faced sentencing on eight offences involving the sexual exploitation and abuse of children. Four offences arose from a 2015 police investigation by the Child Exploitation Internet Unit and were resolved by guilty pleas. The remaining four offences related to sexual abuse of the offender's own daughter, committed between 2006 and 2008, and were the subject of jury verdicts returned earlier in 2019.

The 2015 offending centred on an online conspiracy with a co-offender to sexually assault an infant child. Police intercepted communications, assumed the co-offender's identity, and ultimately arrested the offender when he attended the agreed location. The historical offending involved repeated sexual abuse of the offender's daughter when she was between three and five years of age.

The sentencing proceedings engaged an agreed statement of facts for the 2015 offences, a Victim Impact Statement from the daughter, psychological and sentence assessment reports, and the findings from the jury trial. The court applied the aggregate sentencing provisions of the Crimes (Sentencing Procedure) Act.

Legal Issues

  • What is the appropriate objective seriousness of each category of offending, including conspiracy to commit child sexual assault, attempting to procure a child, disseminating child abuse material, and historical offences against the offender's daughter?
  • What weight should be given to the offender's subjective circumstances, including his claimed history of childhood sexual abuse, his mental health, and his risk of reoffending?
  • What discount is appropriate for guilty pleas entered at different stages of the proceedings?
  • How should the sentences for multiple offences be structured using the aggregate sentencing regime, including the extent of accumulation?
  • Whether special circumstances warranting a reduced non-parole period existed.

Decision

The 2015 Conspiracy and Procuring Offences

The court assessed the conspiracy to have sexual intercourse with an infant child under ten as falling in the upper end of the range of objective seriousness (at [47]). The proposed victim was approximately eight months old, entirely defenceless, and the offender engaged in extensive planning over almost two months to locate a venue and reduce detection risk (at [46]-[47]). The attempt to procure offence was closely linked to the conspiracy and was also assessed as towards the upper end of the range, though the court noted that in this instance there was no real child at risk because police had assumed the co-offender's identity (at [48]).

Dissemination of Child Abuse Material

Both dissemination offences involved category 1 images on the Child Exploitation Tracking Scheme (the lowest level of seriousness on that scale), each involved a single or small number of images, and none were distributed for commercial gain. The court assessed both offences as falling within the low range of objective seriousness (at [49]-[50]).

Historical Offences Against the Offender's Daughter

All four offences against the daughter involved a profound breach of parental trust, were committed in the family home where the child was entitled to feel safe, and the victim was aged between three and five years (at [51]). The three sexual intercourse offences, which involved digital penetration, were assessed at well within the midrange of objective seriousness. The act of indecency (count 2, involving the offender masturbating with the child) was assessed within the midrange (at [53]). The court noted that relatively short duration of offending does not mitigate seriousness when the victim is so young, citing R v Egan [2016] NSWCCA 285 (at [53]).

Subjective Circumstances and Discount for Pleas

The court rejected the offender's claimed history of childhood sexual abuse as not credible, finding his explanation for placing an online advertisement seeking contact implausible for a man of his evident intelligence and experience (at [62]). The court allowed a 10% discount for guilty pleas entered shortly before the proposed trial date on the conspiracy and procuring counts, and 25% for the dissemination counts pleaded in the Local Court at an earlier stage (at [76]). The court found the offender's remorse very limited and his prospects of rehabilitation no better than guarded, particularly as he had not engaged in any sex offender programs and continued to deny the offences against his daughter (at [77]-[78]). The court declined to find special circumstances to justify a reduced non-parole period (at [85]).

Parity with Co-offender

The co-offender had been sentenced by another judge to an indicative term of seven years and six months on the conspiracy count, with a 15% plea discount and significant health factors that reduced his risk of reoffending. The court took that sentence into account while finding that the co-offender had a far more compelling subjective case than this offender (at [83]-[84]).

Aggregate Sentence

Applying the aggregate sentencing regime, the court imposed an aggregate term of 20 years with a non-parole period of 15 years, commencing 22 October 2015 (at [92]). The 2015 offences were to be significantly accumulated on the offences against the daughter, while the dissemination offences were treated as subsumed within the broader criminality of the conspiracy and procuring counts (at [79]-[81]).

Orders Made

  • Aggregate sentence of 20 years imprisonment imposed, commencing 22 October 2015 and expiring 21 October 2035.
  • Aggregate non-parole period of 15 years, expiring 21 October 2030.
  • The court noted that the offender may be subject to an application to extend detention under the Crimes (High Risk Offenders) Act beyond the expiry of the sentence.

Key Takeaways

  • A conspiracy to sexually assault an infant child, involving detailed online planning, a real proposed victim, and demonstrated intention to carry out the offending, will be placed in the upper end of the objective seriousness range even where the substantive assault was not ultimately carried out (at [47]).
  • Where an offender enters guilty pleas at different stages of proceedings, the utilitarian discount varies accordingly. The District Court applied 25% for early Local Court pleas and only 10% for late pleas entered shortly before trial (at [76]).
  • Claimed childhood sexual abuse as a mitigating factor requires credible evidentiary foundation. The court here rejected the offender's assertions as implausible given the totality of the evidence, and declined to treat the claimed abuse as causally linked to the offending (at [61]-[66]).
  • Under the aggregate sentencing regime, the sentencing court must reason through how individual sentences would interact, including which offences are subsumed by others and which require accumulation, before arriving at a just aggregate term (at [79]-[81]).
  • Parity with a co-offender's sentence remains a relevant consideration in aggregate sentencing, but the court will depart from that benchmark where the respective subjective circumstances differ materially (at [83]-[84]).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act

Cases
- Muldrock v The Queen (2011) 244 CLR 120
- R v Egan [2016] NSWCCA 285