Citation: R v Bligh (a pseudonym) [2019] NSWDC 721
Court: District Court of New South Wales
Date: 7 November 2019
Judge: Colefax SC DCJ
Background
The offender, referred to by the pseudonym "Bligh," was sentenced for one count of aggravated sexual intercourse with a person under the age of ten years, contrary to s 66A(2) of the Crimes Act 1900 (NSW). The circumstance of aggravation was that the victim was under his authority. At the time of the offence in June 2010, the offender was approximately 41 years old and was effectively the stepfather of the nine-year-old victim, having been in a long-term relationship with her mother.
The offending occurred in the victim's bedroom on 15 June 2010. The offender digitally penetrated the victim while she pretended to be asleep. The victim was too frightened to speak. When she did disclose the assault to her mother, the offender persuaded the mother that the child had been dreaming, causing the mother to disbelieve her daughter. The victim ultimately left her mother's home to live with her father in order to escape the offender.
The offence came to police attention approximately eight years later, after the victim's mother learned that the offender had committed a separate sexual assault against an adult in 2018. When informed, the victim reported the 2010 offence to police. The victim's impact statement described severe and ongoing harm, including two suicide attempts directly attributed to the offending.
Legal Issues
- What was the appropriate sentence for an offence of aggravated sexual intercourse with a child under ten, having regard to objective seriousness, subjective circumstances, and an early guilty plea?
- What weight should be given to the offender's psychological conditions (post-traumatic stress disorder and depression) as mitigating factors?
- Whether a finding of special circumstances was warranted to vary the standard ratio between the non-parole period and the head sentence.
- What role do general deterrence and specific deterrence play in sentencing for child sexual assault offences?
Decision
His Honour assessed the objective seriousness of the offending as below mid-range but not at the bottom of the range for this category of offence, noting the brevity of the act of penetration while also observing that the victim experienced physical pain. The location of the offending, within the victim's own home, constituted an additional aggravating feature. The offender's subsequent conduct in concealing the offence by deceiving the victim's mother was also noted.
On subjective circumstances, his Honour accepted that the offender had no prior criminal record at the time of offending, had been a hardworking person, and had suffered genuine PTSD and depression following a traumatic workplace incident in 2003. However, the psychiatric report presented difficulties. It contained internal contradictions and, critically, provided no explanation for why the offender committed the offence. The offender himself denied any sexual attraction to children. In the absence of any explanation, his Honour found prospects of rehabilitation to be guarded, a conclusion reinforced by the offender's further sexual offending against an adult in 2018.
His Honour declined to accept second-hand expressions of remorse from the psychiatric report and found no direct expression of remorse given in the witness box. The offender received a 25 percent discount for his early guilty plea. Without the plea, his Honour indicated a sentence of eight years' imprisonment would have been imposed; the plea reduced this to six years.
The application for special circumstances was rejected on three grounds: the Court of Criminal Appeal had previously cautioned against the frequency with which such findings are made; a longer parole period was not considered necessary; and the offender's psychological conditions were not found to make imprisonment disproportionately harsher for him compared with other offenders.
Orders Made
- Total sentence of six years' imprisonment.
- Non-parole period of four years and six months, commencing 15 June 2019 and expiring 14 December 2023.
- Balance of term of one year and six months, commencing 15 December 2023 and expiring 14 June 2025.
- No finding of special circumstances.
Key Takeaways
- General deterrence and denunciation are of paramount importance in sentencing for child sexual assault, reflecting the courts' recognition of the profound and lasting harm such offending causes to victims.
- Where no explanation exists for an offender's sexual assault of a child, and where the offender has subsequently committed further sexual offending, a sentencing court may assess rehabilitation prospects as guarded even in the absence of further offending against children.
- The District Court confirmed that an absence of prior criminal record carries reduced, though not entirely absent, significance for offences of this nature.
- Second-hand expressions of remorse contained in a psychiatric report attract considerable scepticism, particularly where no direct remorse is demonstrated in court and where the offender engaged in conduct designed to conceal the offending.
- The Court of Criminal Appeal's caution in R v GWM [2012] NSWCCA 240 against findings of special circumstances being made too readily was applied, reinforcing that such findings require genuine justification rather than routine application.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 66A(2)
Cases
- R v GWM [2012] NSWCCA 240
- EG v R (cited in Crown submissions, specific citation not provided in judgment)
- R v Gavel (cited in Crown submissions, specific citation not provided in judgment)
- R v G (cited within R v Gavel, specific citation not provided in judgment)