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District Court 6 September 2019

R v AH

[2019] NSWDC 678

Sexual offences
CRIMINAL LAW SENTENCE AGGRAVATED INDECENT ASSAULT USE CHILD PORNOGRAPHY PRODUCING CHILD PORNOGRAPHY UNDER AUTHORITY OF OFFENDER

Citation: R v AH [2019] NSWDC 678
Court: District Court of New South Wales
Date: 6 September 2019
Judge: Judge W Hunt

Background

The offender, a man aged 19 to 20 at the time of the offending, befriended a family after being introduced at a social gathering. He cultivated a position of trust with the parents by falsely presenting himself as a child psychology student, offering parenting advice, bringing gifts, and spending time with the children on camping trips and walks.

Between January and December 2006, the offender committed a series of sexual offences against two brothers, the principal victim aged 11 to 12 and his younger sibling aged 10. The offences occurred across multiple locations in New South Wales, including on trips the offender arranged under the pretext of counselling one victim about a disciplinary incident at school, a prank the offender himself had engineered.

A search of the offender's premises following a 2016 disclosure by the principal victim uncovered more than 10,000 images and videos of child pornography, some depicting the two victims. The offender had previously been prosecuted and sentenced in the ACT and was extradited to New South Wales at the conclusion of those sentences in December 2017.

  • What were the appropriate indicative sentences for each of the twenty counts on the indictment, spanning aggravated sexual intercourse, aggravated indecent assault, aggravated incitement of an act of indecency, use of a child for pornography, and production of child pornography?
  • What utilitarian discount applied to each count, given the offender's pleas and the timing of those pleas?
  • How should the Form 1 matters (additional child pornography offences) affect the sentence on count 6?
  • What aggregate sentence appropriately reflected the totality of the offending without being crushing?
  • Whether special circumstances existed to justify a variation to the standard non-parole period ratio within the aggregate sentence structure?

Decision

Judge Hunt sentenced the offender on twenty counts and took six additional offences into account on a Form 1 attached to count 6. The offences included two counts of aggravated sexual intercourse with a child aged 10 to 14 (maximum 20 years each), ten counts of aggravated indecent assault (maximum 7 years, standard non-parole period of 5 years), four counts of aggravated incitement of an act of indecency (maximum 5 years), two counts of use of a child for pornography (maximum 14 years), and two counts of producing child pornography (maximum 10 years).

Utilitarian discounts of 25% or 10% were applied to individual counts depending on the timing and circumstances of the pleas. The judge noted, consistent with authority, that the Form 1 matters necessarily elevated the indicative sentence on count 6 beyond what that count alone would attract.

His Honour determined that an aggregate sentence was the appropriate mechanism, generating indicative sentences for each count before arriving at a total. The judge found special circumstances warranted a departure from the standard non-parole period ratio, structuring the sentence so that any parole period would span four years, providing a meaningful period of supervision upon release into the community.

Orders Made

  • Aggregate sentence of 12 years imprisonment, commencing 9 April 2015 and expiring 8 April 2027.
  • Non-parole period of 8 years, with the earliest eligible release date of 8 April 2023.
  • Special circumstances found, resulting in a parole period of four years.

Key Takeaways

  • The District Court applied the established principle that maximum penalties operate as a guidepost or benchmark, representing the worst possible case, against which the objective seriousness of each offence is measured.
  • Where Form 1 matters are taken into account on a principal count, it is settled that the indicative sentence for that count will be higher than it would be if the count stood alone.
  • An aggregate sentencing approach allowed the court to impose a single coherent term across twenty counts while still identifying indicative sentences for each offence, preserving transparency in the sentencing exercise.
  • A finding of special circumstances permitted the non-parole period to be set at less than the standard ratio, on the basis that a longer parole tail provided a protective function for the community through extended supervision.
  • Utilitarian discounts varied between counts (10% and 25%) reflecting differences in the timing of the relevant pleas, consistent with the principle that the utilitarian value of a plea diminishes the later it is entered.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 61M(1), 61O(1), 66C(2), 91G(1), 91H(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- R v Gent [2005] NSWCCA 370
- R v Todd's (1982) 2 NSWLR 517