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District Court 6 December 2019

R v TH

[2019] NSWDC 793

Sexual offences
CRIME CHILD SEX OFFENCES SEXUAL INTERCOURSE WITH CHILD >14 <16

Citation: R v TH [2019] NSWDC 793
Court: District Court of New South Wales
Date: 6 December 2019
Judge(s): Bennett SC DCJ

Background

The offender pleaded guilty to two charges of child sexual offences against his biological sisters. The first charge, under section 78A(1) of the Crimes Act 1900, related to two separate acts of sexual intercourse against his sister RH, who was 16 years old at the time of the offending in late 2007. The second charge, under section 66EA(1) of the Crimes Act 1900, related to an unlawful sexual relationship with his younger sister KW, who was 10 years old, involving seven separate occasions of penile/vaginal intercourse, cunnilingus, and on one occasion anal intercourse, occurring between September 2014 and June 2015.

The offender, born in 1988, was approximately 19 years old when he offended against RH and in his mid-twenties when he offended against KW. Both victims were living in the same household or spending time in the offender's care. The offending against RH involved emotional blackmail and threats to expose her personal secrets to their father.

The matter proceeded to sentence following a guilty plea entered on 8 July 2019, after a trial had been appointed to commence on 1 July 2019. The offender had been in custody since his arrest on 27 December 2017.

Legal Issues

  • What guilty plea discount was appropriate given the lateness of the pleas, the complexity of the section 66EA charge, and the offender's limited literacy?
  • Where did each offence fall on the range of objective seriousness?
  • What weight should be given to the offender's personal history, including his own childhood sexual victimisation, intellectual disability, major depressive disorder, and substance abuse, as mitigating factors?
  • Whether the victim impact statement could be taken into account to aggravate the offending or increase the penalty.
  • Whether special circumstances existed to justify varying the standard ratio between the non-parole period and head sentence.
  • What aggregate sentence appropriately reflected the totality of the offending while avoiding a disproportionate outcome?

Decision

Guilty Plea Discount

The court declined to apply the 20% discount sought by the offender, finding that the delay in pleading guilty was not sufficiently explained by the offender's illiteracy alone. The court noted that the prosecution had proceeded through the Local Court, committal, and arraignment without a guilty plea, and that the decision to wait and assess the strength of the Crown case before pleading is a legitimate but consequence-bearing choice (at [13]-[14]). The Crown's position of 10% was considered too low given the complexity of the section 66EA charge and the prospect that a jury might not have returned findings allowing the judge to sentence on the full factual basis (at [71]). The court settled on a discount of 12.5%, applied to both counts (at [17]).

Objective Seriousness

The offending against RH (count 1 and the Form 1 offence) was found to fall above midrange of objective seriousness, at a point below halfway between midrange and the upper end of the statutory scale, taking into account the breach of trust, emotional blackmail, and the domestic setting of the offending (at [77], [85]). The offending against KW (count 2) was found to sit at approximately halfway between midrange and the upper end of objective seriousness, reflecting the victim's age of ten, the number and nature of the assaultive acts, the period of offending, and the relationship of care that existed between the offender and his sister (at [78], [85]).

Subjective Mitigation and Moral Culpability

The court accepted, in general terms, the history of dysfunctional family circumstances, parental separation, and the offender's intellectual limitations. However, it was not persuaded that the offender's own childhood sexual victimisation, mental health diagnoses, or substance abuse provided a causative link to the sexual offending against his sisters (at [58], [64], [87]). The court found that the offender's low cognitive function likely contributed to his antisocial behaviour generally, but that he was fully aware of the wrongfulness of his conduct and chose to offend for sexual gratification at the expense of his sisters (at [83]-[88]). His moral culpability was assessed at a higher level accordingly (at [83]).

Victim Impact Statement

The court received and considered the detailed victim impact statement from RH, which described extensive psychological, social, and personal consequences of the offending. The statement was taken into account to recognise the victim's perception of harm, but the court noted the absence of formal psychological assessment and declined to treat the described sequelae as establishing substantial psychological harm that would operate as a specific aggravating factor (at [39]-[40]).

Special Circumstances and Aggregate Sentence

The court found special circumstances existed, having regard to the offender's intellectual limitations and the additional burden of serving his sentence in protection (at [75]). An aggregate sentence was imposed, reflecting the totality of the offending across both counts and the Form 1 offence, with the non-parole period reduced from the statutory proportion accordingly (at [93]).

Orders Made

  • Aggregate sentence of imprisonment of 10 years, commencing 27 December 2017
  • Non-parole period of 6 years and 6 months, expiring 26 June 2024
  • Head sentence expiring 26 December 2027

Key Takeaways

  • A guilty plea entered after the appointed trial date, following a review of the Crown brief, attracted only a 12.5% discount rather than the 20% sought by the offender. The court distinguished between the complexity of the charge and the time taken to assess the strength of the Crown case, finding that the latter did not justify a higher discount (at [13]-[17]).

  • Under section 66EA(1) of the Crimes Act 1900, the court approached the sentencing task by identifying where the overall course of conduct fell on the statutory scale, rather than by aggregating what individual charges would have attracted if prosecuted separately, consistent with the intuitive synthesis approach endorsed in Markarian v The Queen (at [69]).

  • An offender's personal history of childhood victimisation, intellectual disability, and substance dependence does not automatically mitigate moral culpability for sexual offending. Where there is no demonstrated causative link between those background factors and the decision to offend, the court may decline to treat them as reducing the offender's culpability (at [58], [64], [87]).

  • The District Court confirmed that a criminal antecedent record, including a history of drug offences, assaults, and breaches of conditional liberty, is relevant to specific deterrence and the extent of any leniency, but does not independently aggravate the moral culpability of the offence being sentenced (at [74]).

  • Intellectual disability and the additional burden of serving a custodial sentence on a protection classification can together constitute special circumstances justifying a departure from the standard non-parole period proportion, even where no direct evidence of greater hardship in custody is before the court (at [75]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518
- Cheung v The Queen [2001] 209 CLR 1
- Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
- Markarian v The Queen [2005] HCA 25
- R v King [2009] NSWCCA 117
- R v Qutami [2001] NSWCCA 353
- S v The Queen [1989] HCA 66
- The Queen v Kilic [2016] 259 CLR 256