Citation: R v King (a pseudonym) [2019] NSWDC 608
Court: District Court of New South Wales
Date: 24 October 2019
Judge: Colefax SC DCJ
Background
The offender, referred to by the pseudonym "King," appeared for sentencing on two principal offences of sexual intercourse with a person aged 10 years or over and under 16 years, committed in 1991. Both offences were perpetrated against the offender's 12-year-old niece, referred to by the pseudonym "Harriet," at the family home where King lived in a self-contained unit. King was 24 years old at the time of the offending.
The two principal offences involved separate incidents of forcible digital penetration, each occurring on consecutive weekends in January and February 1991. Each incident also involved additional acts of sexual assault, particularised on Form 1 documents. In total, eight ancillary matters were taken into account across the two Form 1s. Following each assault, King threatened Harriet that he would harm her and anyone she told, keeping her silent for many years.
The prosecution proceeded almost 29 years after the offending. King entered guilty pleas at the first available opportunity and received the full 25 per cent discount for the utilitarian value of those pleas.
Legal Issues
- What sentences were appropriate for two offences of sexual intercourse with a person under 16, committed in 1991, where the maximum penalty at the time was 8 years imprisonment and no standard non-parole period applied?
- How should the court apply current sentencing patterns and practices, including the current understanding of childhood trauma from sexual abuse, to historical offending?
- What weight should be given to the offender's rehabilitation, genuine remorse, and the delay between offending and prosecution?
- Whether special circumstances existed to justify varying the statutory ratio between the non-parole period and the head sentence.
Decision
Colefax SC DCJ confirmed that, despite the offending occurring nearly three decades earlier, recent legislative amendments required sentencing in accordance with current sentencing patterns and practices. This included specific regard to the current understanding of the profound and lasting trauma that child sexual abuse causes its victims.
The judge assessed the first principal offence (digital penetration causing pain and bleeding in January 1991) as mid-range in objective seriousness for its type, aggravated by its occurrence in the victim's home. The second principal offence, involving a further forcible digital penetration in February 1991, attracted similar findings. The additional Form 1 matters, including indecent acts and forced masturbation, were taken into account in arriving at indicative sentences for each principal offence.
His Honour accepted that the offender had genuinely rehabilitated over the intervening decades and that his expressions of remorse were authentic. While the delay in prosecution remained a relevant consideration in the context of rehabilitation, the principle of general deterrence was held to be fully engaged: courts must send a clear message that significant punishment will follow for child sexual abuse regardless of how much time has passed since the offending.
The court found special circumstances existed, warranting an adjustment to the non-parole period ratio. An aggregate sentence of imprisonment was imposed, with partial accumulation of the two indicative terms reflecting the separate weekend incidents.
Orders Made
- Aggregate term of imprisonment of 6 years imposed for the two principal offences.
- Non-parole period of 3 years and 7 months, commencing 2 July 2018 and expiring 1 February 2022.
- Balance of term of 2 years and 5 months, commencing 2 February 2022 and expiring 1 July 2024.
- Non-publication order confirmed suppressing the names of the offender and victim and any identifying information.
Key Takeaways
- Recent legislative amendments require NSW courts sentencing for historical child sexual offences to apply current sentencing patterns and practices, including the contemporary understanding of childhood trauma, even where the offending occurred decades earlier.
- The District Court confirmed that general deterrence remains fully engaged in historical child sexual assault matters: significant delay between offending and prosecution does not diminish the court's obligation to denounce such conduct and deter others.
- Genuine rehabilitation and remorse are relevant mitigating factors in historical offending, but they operate alongside, rather than displacing, the principles of general deterrence and denunciation.
- A finding of special circumstances, conceded by the Crown to be open on the facts, permitted variation of the standard ratio between the non-parole period and the head sentence.
- Form 1 matters that form part of a continuous course of conduct with a principal offence produce only a slight and non-meaningful increase in the indicative sentence; Form 1 matters that stand apart from the principal offending produce a more meaningful increase.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 66C(1) (as it stood in 1991) — sexual intercourse with a person aged 10 years or over and under 16 years
No cases were cited in the judgment text provided.