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District Court 13 August 2019

R v Kerr

[2019] NSWDC 680

Sexual offences
SENTENCING INDECENT ASSAULT OF CHILD. SENTENCING RELEVANT FACTORS ON SENTENCE EARLY GUILTY PLEA IMPACT OF CHILD SEXUAL ASSAULT EACH A SERIOUS EXAMPLE

Citation: R v Kerr [2019] NSWDC 680
Court: District Court of NSW
Date: 13 August 2019
Judge: Haesler SC DCJ

Background

The offender was charged with multiple sexual offences committed against a child referred to in the judgment by the pseudonym "Dianne." The offending occurred between 2010 and 2013, when Dianne was aged seven or eight. She had been staying at the offender's home, apparently to give her mother some respite, and regarded the offender as a father figure in the absence of her biological father. The abuse came to light in July 2018 after Dianne received school education about healthy and unhealthy relationships.

The offender was arrested in August 2018 and admitted his guilt in the Local Court. Six offences were brought under the now-repealed s 61M(2) of the Crimes Act 1900 (indecent assault of a child under 16). The offender also asked the court to take into account 13 further offences on Forms 1 (a procedural mechanism allowing additional offences to be considered at sentencing without separate convictions being recorded). He had been in custody since his arrest.

The five incidents described in the agreed facts formed part of a course of conduct spanning the period Dianne lived with the offender and continued during subsequent weekend visits. On almost every occasion the offender apologised afterwards and told Dianne not to tell anyone or she would not be allowed to see him again.

  • What aggregate sentence was appropriate for six counts of indecent assault of a child, taking into account 13 additional Form 1 matters?
  • How should the court weigh the objective seriousness of the offending against mitigating factors, including an early guilty plea, remorse, and the offender's ill health?
  • What role did the standard non-parole period play as a reference point in calibrating the individual and aggregate sentences?
  • How should the court apply the totality principle when accumulating sentences across multiple serious counts?

Decision

Haesler SC DCJ found that each of the six offences was a serious example of its type. The offending involved repeated, escalating physical contact with the child's genitalia and the offender's penis, fell just short of penetration, and was committed by a person in a position of trust and care over a very young child. The court noted that the younger the child, the more serious the offence, and that Dianne's age of seven or eight placed the conduct at the more serious end of the statutory range, which extended to children up to 16. Psychological harm to Dianne resulted, and one act caused her physical pain.

The court acknowledged mitigating factors, including the offender's early guilty plea, expressions of remorse, and ill health. The standard non-parole period under the legislation was treated as a guiding reference point rather than a rigid benchmark, consistent with the approach required by the High Court in cases such as Markarian v The Queen and The Queen v Pham. The court also applied the principle in Weininger v The Queen that sentencing requires comparing the actual conduct against other examples of the same offence type, even where that process involves confronting and difficult analysis.

In fixing individual sentences, the court applied a discount for the early guilty plea and took care that the process of accumulation did not inadvertently erode that discount. The court was also required to apply the totality principle, which requires an overall sentence to reflect the full criminality of the conduct without being crushing in a way disproportionate to the total offending.

The court emphasised that sentencing for child sexual offences serves multiple purposes: deterrence, retribution, community protection, rehabilitation, and, critically, vindication of the dignity of the child victim. The court noted the obligation to express the community's disapproval of such conduct and to recognise the harm caused to Dianne, her family, and the broader community.

Orders Made

  • Count 1: 3 years 2 months, non-parole period of 2 years (Form 1 matters taken into account)
  • Count 2: 3 years 2 months, non-parole period of 2 years (Form 1 matters taken into account)
  • Count 3: 3 years 9 months, non-parole period of 2 years 5 months (Form 1 matters taken into account)
  • Count 4: 3 years 9 months, non-parole period of 2 years 5 months (Form 1 matters taken into account)
  • Count 5: 3 years 2 months, non-parole period of 2 years
  • Count 6: 3 years 9 months, non-parole period of 2 years 5 months (Form 1 matters taken into account)
  • Aggregate sentence: 7 years 9 months, commencing 2 August 2018
  • Non-parole period: 5 years; eligible for parole consideration from 1 August 2023
  • Balance of sentence: 2 years 9 months; total sentence expires 1 May 2026

Key Takeaways

  • Each offence under s 61M(2) of the Crimes Act 1900 involving direct skin-on-skin contact with a child's genitalia was treated as a serious example of that offence, and the victim's very young age (seven to eight) placed the conduct toward the higher end of the seriousness range for that provision.
  • A position of trust or care over the child was treated as an aggravating feature that elevated the objective seriousness of every individual offence.
  • The standard non-parole period functioned as a guiding reference point for calibrating individual sentences, not as a fixed floor or ceiling, consistent with established appellate authority.
  • Where multiple serious counts are accumulated, the totality principle requires the aggregate sentence to reflect the full criminality of the conduct while remaining proportionate overall; courts must also ensure that accumulation does not inadvertently reduce the benefit of an early guilty plea.
  • Sentencing for child sexual offences was described as serving the distinct purpose of vindicating the dignity of the child victim and giving expression to the community's condemnation of the harm caused, alongside the conventional purposes of deterrence, retribution, and rehabilitation.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61M(2) (now repealed)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Children (Criminal Procedure) Act 1987 (NSW), s 15A

Cases
- Attorney General's Application No 1 [2002] 56 NSWLR 146
- BT v R [2010] NSWCCA 267
- Grube v R [2005] NSWCCA 140
- GSH v R [2009] NSWCCA 214
- JDX [2017] NSWCCA 9
- LB v R [2019] NSWCCA 151
- Markarian v The Queen (2005) 228 CLR 357
- Postiglione v The Queen (1997) 189 CLR 295
- R v Herring (1956) 73 WN (NSW) 203
- R v KNL [2005] NSWCCA 260
- R v NJK [2011] NSWCCA 151
- Ryan v The Queen (2001) 206 CLR 267
- Tepania v R [2018] NSWCCA 247
- The Queen v Pham [2015] HCA 39
- Thompson (2000) 49 NSWLR 383
- Weininger v The Queen (2003) 212 CLR 629