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District Court 19 June 2019

R v AC

[2019] NSWDC 649

Sexual offences
CRIMINAL SENTENCING AGGRAVATED INDECENT ASSAULT FULL TIME CUSTODIAL SENTENCE REQUIRED

Citation: R v AC [2019] NSWDC 649
Court: District Court of New South Wales
Date: 19 June 2019
Judge: Bright DCJ

Background

The offender, a 51-year-old man referred to as AC, appeared for sentence on two counts of indecent assault of a person aged under ten years, contrary to s 61M(2) of the Crimes Act 1900. The offending took place between 2003 and 2005 on the NSW Central Coast. The offender was the stepfather of the victim, who was between seven and nine years old at the time of the offences.

On each occasion, the offender took the victim's hand and placed it on his penis, directing her to touch him. The first incident occurred in the family home while the two were watching television; the second occurred in the offender's car after a beach outing. The victim did not disclose the offending until years later, eventually reporting it to police. Recorded phone calls in 2018 captured the offender making partial admissions and apologising to the victim.

The offender pleaded guilty at Wyong Local Court on 5 February 2019. He had no prior criminal history and had spent no time in custody relating to this offending. He received a 25% discount on sentence for his guilty plea.

  • What aggregate sentence was appropriate for two offences of indecent assault of a child under ten years, having regard to the objective seriousness of the offending and the offender's subjective circumstances?
  • How should the court weigh aggravating factors, including the breach of trust inherent in the stepparent relationship, against mitigating factors such as the guilty plea and the offender's personal circumstances?
  • Whether special circumstances existed under s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 to justify varying the statutory ratio between the non-parole period and the parole period.
  • Which sentencing patterns and practices applied, given the offending predated current sentencing legislation, noting the specific requirements of s 25A of the Crimes (Sentencing Procedure) Act 1999.

Decision

Bright DCJ characterised the objective criminality as very serious. The victim was between seven and nine years old, the offender was approximately 36 to 37 years her senior, and he occupied a position of trust as her stepfather and a father figure in her life. The court drew on remarks from R v Dent to emphasise that a parent or parent-figure who sexually abuses a child commits a cowardly breach of trust, having abandoned the protective role expected of them.

The court was required by s 25A of the Crimes (Sentencing Procedure) Act 1999 to apply sentencing patterns and practices current at the time of sentencing (rather than at the time of the offending), while applying the standard non-parole period in force at the time of the offending. The court also took into account the trauma of child sexual abuse as understood at the time of sentencing.

For sequence 6 (the couch incident), the court fixed an indicative starting term of three years, reduced to two years and three months after the 25% guilty plea discount, with a non-parole period of one year and four months. For sequence 7 (the car incident), the court fixed an indicative starting term of two years, reduced to 18 months, with a non-parole period of 11 months. An aggregate sentence was then imposed.

The court found special circumstances justified varying the statutory ratio between the non-parole period and the balance of the sentence, given this would be the offender's first period of full-time custody. A longer parole period was considered appropriate to support the offender's transition and rehabilitation.

Orders Made

  • The offender was convicted of each offence of indecent assault of a person aged under ten years.
  • An aggregate sentence of three years and four months was imposed, commencing 19 June 2019 and expiring 18 October 2022.
  • A non-parole period of two years was fixed, commencing 19 June 2019 and expiring 18 June 2021.
  • The earliest eligible parole date was noted as 18 June 2021.
  • Special circumstances were found and the statutory ratio was varied pursuant to s 44(2B) of the Crimes (Sentencing Procedure) Act 1999.
  • The offender was to be identified only as "AC" pursuant to the publication prohibition in s 578 of the Crimes Act 1900.

Key Takeaways

  • Sentencing for historical child sexual offences requires application of sentencing patterns and practices current at the time of sentencing, not at the time of the offence, as mandated by s 25A of the Crimes (Sentencing Procedure) Act 1999, though the applicable standard non-parole period remains that in force at the time of offending.
  • A stepparent's sexual abuse of a young child was treated by the District Court as a grave breach of trust warranting substantial weight on general deterrence, denunciation, and punishment as sentencing purposes under s 3A of the Crimes (Sentencing Procedure) Act 1999.
  • Where an offender has no prior custodial history, special circumstances can justify varying the statutory non-parole period ratio, allowing a proportionally longer parole period to assist reintegration.
  • A guilty plea, even at the Local Court stage, attracted a 25% sentence discount. The quantum of discount reflected the timing of the plea relative to the proceedings.
  • Recorded telephone admissions and apologies made to the victim formed part of the agreed facts and informed the sentencing court's assessment of the offending.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61M(2), s 578
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A, s 25A, s 44(2B), s 53A(2)(b)

Cases
- Cahyadi v R [2007] NSWCCA 1
- Newbigging [2004] NSWCCA 239
- R v Dent (unreported, NSWCCA, 14 March 1991)
- R v Giddy [2003] NSWCCA 46
- R v Jokhan (2019) NSW District Court 127
- R v Nelson [2016] NSWCCA 130