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District Court 29 November 2019

R v Carleton

[2019] NSWDC 862

Sexual offences
CRIME SENTENCING AGGRAVATED INDECENT ASSAULT UNDER 16 SEXUAL INTERCOURSE 10 SEXUAL INTERCOURSE 14

Citation: R v Carleton [2019] NSWDC 862
Court: District Court of New South Wales
Date: 29 November 2019
Judge: Bourke SC DCJ

Background

The offender was a young adult male who entered a relationship with the mother of a female victim, and moved into the family home in early 2015. The victim, born in October 2002, was approximately 12 years old at the time the offending began. Her parents had separated years earlier, she had a fractured relationship with her natural father, and she had come to regard the offender as a father figure.

The offender was convicted after a seven-day jury trial in the Newcastle District Court. The jury returned guilty verdicts on nine counts spanning aggravated indecent assault and multiple counts of sexual intercourse with a child. The offending occurred both while the offender resided in the family home and after he had moved to separate premises, continuing through approximately late 2015 to 2016.

The court was then required to determine the appropriate sentence, including factual findings consistent with the jury's verdicts, an assessment of objective seriousness for each offence, and identification of aggravating and mitigating circumstances.

  • What factual findings, consistent with the jury's verdicts, could be made in respect of each count?
  • What was the objective seriousness of each individual offence?
  • What aggravating and mitigating factors applied across the offending?
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio.
  • Whether an aggregate sentence was appropriate, and if so, what that sentence should be.

Decision

Bourke SC DCJ made detailed factual findings in relation to each of the nine counts. The earliest offences occurred when the victim was 12 years old and the offender was approximately 19 to 20. The court found that the offender had exploited his quasi-parental position of trust, and that the victim's emotional vulnerability, arising from her age and her estrangement from her natural father, was a consistent aggravating feature across all counts. Several offences were also aggravated by having been committed within the victim's own home.

The offences ranged in assessed objective seriousness from the low range (count 1, involving a tongue kiss) to above the midrange (later counts involving acts of sexual intercourse, including oral penetration and penile-vaginal contact). The court assessed the more serious counts, particularly those involving full sexual intercourse, as warranting indicative head sentences of four years with non-parole periods of two years and five months.

His Honour found special circumstances, noting the offender's youth, the need for rehabilitation, and his alcohol abuse issues, all of which justified a longer than usual parole period. The Crown did not oppose this finding. An aggregate sentence was imposed rather than individual cumulative or concurrent terms.

Orders Made

  • Aggregate sentence of nine years imprisonment imposed, commencing 29 November 2019.
  • Non-parole period of five years and five months, expiring 28 April 2025.
  • Head sentence expiring 28 November 2028.
  • A non-publication order was also made (amended 30 April 2020).

Key Takeaways

  • The District Court assessed objective seriousness individually for each count, placing weight on the nature of the sexual act, the absence of skin-on-skin contact where relevant, the victim's age relative to the statutory threshold, and the duration of each incident.
  • A breach of quasi-parental trust was treated as a significant aggravating feature across all counts, even after the offender had moved out of the family home, because that role had "only recently come to an end."
  • Emotional vulnerability arising from a child's fractured family circumstances can itself constitute an aggravating factor, separate from the vulnerability inherent in the victim's age.
  • Special circumstances were found, supporting a non-parole period shorter in proportion to the head sentence than the standard ratio, based on the offender's youth, rehabilitative needs, and substance abuse issues.
  • Where multiple offences arise from a single episode, the sentencing court exercises a general discretion to treat the relevant terms as largely concurrent, which then informs the construction of an aggregate sentence.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Offence provisions (by necessary implication from the charges):
- Aggravated indecent assault of a person under 16 years (maximum: 10 years; standard non-parole period: 8 years)
- Sexual intercourse with a person aged 10 to under 14 years (maximum: 16 years; standard non-parole period: 7 years)
- Sexual intercourse with a person aged 14 to under 16 years (maximum: 10 years; no standard non-parole period)

Cases cited: None stated in the judgment.