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District Court 11 December 2019

R v Brown

[2019] NSWDC 953

Sexual offences
CRIME SENTENCE HISTORICAL CHILD ABUSE AGGREGATE SENTENCE

Citation: R v Brown [2019] NSWDC 953
Court: District Court of New South Wales
Date: 11 December 2019
Judge(s): Wilson SC DCJ

Background

The offender, a man born in 1951 and almost 69 years of age at sentencing, appeared for sentence following guilty pleas entered during trial to two counts of historical child sexual abuse. The offences occurred on a single occasion in late 1989 or early 1990 at the offender's home on the Central Coast, when the victim was nine years old. The victim and her family were social acquaintances of the offender and his wife, and she had visited the property on a number of occasions.

The offending took place in the offender's backyard swimming pool while other adults and children were present elsewhere. The offender committed an act of indecency upon the victim (Count 1) and then digitally penetrated her (Count 2). The victim did not disclose the abuse to anyone at the time, and only began making disclosures from 2014 onwards, prompted in part by concern for the offender's granddaughter who was approaching the same age the victim had been when the abuse occurred.

The offender was not charged until May 2018 and pleaded not guilty at arraignment. He ultimately entered guilty pleas on 11 September 2019, mid-trial, after being cross-examined by the Crown. By that point the victim had already given evidence and been subjected to cross-examination.

  • What aggregate sentence was appropriate for the two offences, having regard to the maximum penalties, the nature and circumstances of the offending, and the offender's personal circumstances?
  • What discount, if any, should apply to reflect the late guilty pleas and any facilitation of the administration of justice?
  • Whether full-time imprisonment was required under s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW)?
  • How should the court approach sentencing for historical child sexual offences under s 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW)?

Decision

The Court found that full-time imprisonment was the only appropriate sentencing outcome. The offending involved serious sexual abuse of a nine-year-old child in a position of vulnerability, committed by a person in a position of authority or trust. The Court took the maximum penalties as guideposts: six years for Count 1 and 20 years for Count 2.

The guilty pleas were entered very late. The victim had already given evidence and endured cross-examination before the pleas were forthcoming, which significantly reduced their utilitarian value. The Court applied a discount of 5% for the guilty pleas and an unspecified additional discount for facilitation of the administration of justice.

The Court applied s 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW), which requires that historical child sexual offences be sentenced in accordance with the sentencing patterns and practices at the time of sentence, not at the time of offending. This reflects the courts' now-recognised understanding of the trauma that sexual abuse causes children.

An aggregate sentence was imposed because both offences arose from the same incident on the same day. The indicative sentence for Count 1, before discount, was two years; for Count 2 it was seven years. After applying the 5% discount, the indicative sentences became one year and ten months (Count 1) and six years and seven months (Count 2).

Orders Made

  • The offender was convicted of Count 1 (assault and act of indecency with a person under 16 under authority, contrary to s 61E(1A) of the Crimes Act 1900 (NSW)) and Count 2 (sexual intercourse with a person under the age of 10, contrary to s 66A of the Crimes Act 1900 (NSW)).
  • An aggregate sentence of imprisonment of 6 years and 6 months, commencing 11 September 2019 and expiring 10 March 2026.
  • An aggregate non-parole period of 4 years and 4 months, commencing 11 September 2019 and expiring 10 January 2024.

Key Takeaways

  • Under s 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW), historical child sexual offences must be sentenced by reference to current sentencing patterns and practices, incorporating contemporary judicial understanding of the lasting trauma of child sexual abuse.
  • A guilty plea entered mid-trial, after the complainant has already given evidence and been cross-examined, attracts only a modest discount. In this case the Court applied 5%, with a separate and unspecified reduction for facilitation of the administration of justice.
  • An aggregate sentence is available where multiple offences arise from a single incident occurring within the same timeframe, with indicative sentences set for each individual charge.
  • The maximum penalty for each offence serves as a guidepost in the sentencing exercise, reflecting Parliament's assessment of the seriousness of the conduct.
  • Full-time imprisonment was the only appropriate disposition for serious sexual offending against a nine-year-old child, notwithstanding the offender's age and the historical nature of the charges.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61E(1A), 66A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A, 25AA

Cases cited: No cases were cited in the provided text.