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District Court 7 November 2019

R v JA

[2019] NSWDC 641

Sexual offences
SEXUAL ASSAULT OF CHILD UNDER 16 YEARS 2 COUNTS AGGREGATE SENTENCE SPECIAL CIRCUMSTANCES

Citation: R v JA [2019] NSWDC 641
Court: District Court of New South Wales
Date: 7 November 2019
Judge: Mahony SC DCJ

Background

The offender was tried in the Coffs Harbour District Court on a four-count indictment alleging sexual offences against a child. The jury acquitted him on two counts but returned guilty verdicts on Counts 3 and 4, both charged under s 61M(2) of the Crimes Act 1900 (assault with act of indecency on a person under 16 years).

The offending occurred on 17 September 2018 at Wauchope. The victim, an eight-year-old girl, was asleep in her bed when the offender entered her room and touched her genitals over her underwear (Count 3). He then placed her hand on his exposed penis while continuing that touching (Count 4). The offender was in a relationship with the victim's mother and had recently moved into the family home.

At trial, the offender denied all conduct alleged in the two counts. The jury rejected that denial. The sentence hearing took place at the Sydney District Court on 31 October 2019, with judgment delivered on 7 November 2019.

  • Whether the sentencing threshold under s 5 of the Crimes (Sentencing Procedure) Act 1999 (CSPA) was crossed, requiring a term of imprisonment rather than an alternative penalty
  • What the appropriate aggregate sentence was for the two convictions under s 53A of the CSPA
  • Whether special circumstances existed to justify departing from the statutory ratio between the head sentence and the non-parole period under s 44(2) of the CSPA
  • How the time spent on remand (7 months and 22 days) should be reflected in the sentence

Decision

The court found that the s 5 threshold was crossed and that no penalty other than imprisonment was appropriate. The offending was serious: the victim was a young and vulnerable child asleep in her own bedroom, and the offender occupied a position of trust within the household. Both parties accepted that the objective seriousness of the offending, while not at the top of the range for s 61M(2) offences, was nonetheless significant, particularly for Count 4 involving the placement of the victim's hand on the offender's penis.

The court found special circumstances, accepting both the Crown's concession and the offender's submissions. This was the offender's first term of imprisonment, and he would require support to address problems with alcohol. These factors justified altering the statutory ratio between the head sentence and the non-parole period.

The court imposed an aggregate sentence of 15 months imprisonment. Because the offender had already served 7 months and 22 days on remand, the court treated that period as constituting the non-parole period. The sentence was backdated to commence on 17 March 2019, meaning the offender's non-parole period expired on 6 November 2019 and the balance of term ran until 16 June 2020. Indicative sentences were 6 months for Count 3 and 12 months for Count 4.

Orders Made

  • Conviction recorded on Count 3: offence under s 61M(2) of the Crimes Act 1900, indecent assault of a child aged 8 years at Wauchope between 1 June and 19 September 2018
  • Conviction recorded on Count 4: offence under s 61M(2) of the Crimes Act 1900, indecent assault of the same child on the same occasion
  • Aggregate sentence of 15 months imprisonment imposed under s 53A of the CSPA
  • Non-parole period of 7 months and 22 days, commencing 17 March 2019 and terminating 6 November 2019
  • Balance of term from 7 November 2019 to 16 June 2020
  • Parole subject to supervision by the Parole and Probation Service; offender to report to Community Corrections at Taree within 7 days
  • Offender directed to accept all directions from Community Corrections, including any direction as to drug and alcohol rehabilitation
  • Indicative sentences: Count 3 (6 months); Count 4 (12 months)

Key Takeaways

  • The District Court confirmed that sexual offending against a sleeping child within the family home, committed by a person in a position of domestic trust, readily crosses the s 5 imprisonment threshold under the CSPA.
  • Special circumstances were established where the offender had no prior custodial history and had a demonstrated need for alcohol rehabilitation, justifying a departure from the standard non-parole period ratio under s 44(2) of the CSPA.
  • Time served on remand was treated as fulfilling the non-parole period in its entirety, reflecting the court's finding that the remand period of 7 months and 22 days was itself an appropriate non-parole period given the special circumstances.
  • Under s 53A of the CSPA, an aggregate sentence can be imposed for multiple related offences, with indicative individual sentences recorded to provide transparency about how the total was reached.
  • A medium risk of sexual recidivism, assessed by a corrective services psychologist, supported the imposition of supervised parole with mandatory engagement in drug and alcohol rehabilitation.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 44(2), 53A

Cases
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- Carroll v R [2019] NSWCCA 243
- R v Van Ryn [2016] NSWCCA 1