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Local Court 12 February 2019

DPP v IJL

[2019] NSWLC 2

Sexual offences
CRIME SENTENCING INCITE AN AGGRAVATED ACT OF INDECENCY AGGRAVATED INDECENT ASSAULT VICTIM UNDER AGE OF 16 HISTORICAL CHILD SEX OFFENCES

Citation: DPP v IJL [2019] NSWLC 2
Court: Local Court of New South Wales
Date: 12 February 2019
Judge: Judge Graeme Henson AO, Chief Magistrate

Background

The offender, aged 82 at the time of sentencing, was the stepfather of the victim. The offending occurred between 1994 and 1995, when the victim was between 8 and 10 years old. The offences involved acts of indecency and indecent assault committed in the family home, often when the victim's mother was absent.

The victim did not report the conduct to police until 2016, after years of attempting to address the matter within the family. She formally reported the offences to police in June 2016, the same day the offender sent her an email admitting he had remembered the incidents and apologising for the pain and betrayal he had caused. The offender was not arrested and charged until April 2018, approximately 23 to 24 years after the offending occurred.

Proceedings commenced as committal proceedings. After charge negotiation, the strictly indictable charge was withdrawn and the offender entered guilty pleas to three freshly laid charges on 8 November 2018. One charge was dealt with on a Form 1 (a document used in NSW courts to take additional charges into account during sentencing without imposing a separate penalty for them).

  • What sentence was appropriate for two charges of historical child sexual offending, with a third charge on a Form 1, committed by an elderly offender against a child victim in a position of trust?
  • What discount applied for the utilitarian value of the guilty plea, given the charges had changed through negotiation?
  • Whether the offences being committed in the victim's home could be treated as an aggravating factor.
  • Whether the breach of trust between a stepfather and a child victim constituted an aggravating factor.
  • Whether special circumstances existed justifying a departure from the standard statutory ratio between minimum (non-parole) and additional (parole) terms, given the offender's age and health.

Decision

Chief Magistrate Henson found the offending fell above the mid-range of objective seriousness. The conduct occurred in the victim's home, the offender was in a position of parental trust as the victim's stepfather, and the victim was a young and vulnerable child. Both factors were treated as aggravating the offences. The court applied the principle from Jonson v R and R v Lulham that committing an offence in the victim's own home aggravates the conduct because it violates the victim's reasonable expectation of safety and security there.

A discount of 25% for the utilitarian value of the guilty plea was applied, reflecting that the pleas were entered to freshly laid charges following negotiation rather than to the original charges. The court sentenced on the basis that the offending occurred within a period of approximately 12 months and imposed an aggregate sentence to reflect the totality of the conduct, rather than imposing concurrent sentences that would not adequately reflect the seriousness and duration of the offending.

The court accepted that special circumstances existed, warranting a departure from the standard statutory relationship between the minimum and additional terms. The offender's advanced age, his health, and the fact that this was his first period of custody were accepted as relevant factors. The departure was, however, described as not significant.

The court also issued a pointed reminder to both the DPP and defence counsel that agreed statements of facts should be carefully anonymised to remove personal identifiers of victims, noting that the statement tendered in this matter identified the victim by name, date of birth, and educational institution. The court directed that the document be amended before being returned to the court record.

Orders Made

  • The offender was convicted on each offence.
  • An aggregate sentence of imprisonment was imposed with a minimum term of 10 months and an additional term of 12 months, during which the offender may be released on parole under the supervision of the office of Community Corrections.

Key Takeaways

  • Committing a sexual offence against a child in the victim's own home constitutes an aggravating factor, because it violates the victim's reasonable expectation of safety and security in that space, as confirmed by the Court of Criminal Appeal in R v Lulham and applied here.
  • A breach of trust by a stepfather toward a child victim in a position equivalent to parental authority is a recognised aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999.
  • Where charges change through negotiation prior to a plea being entered, the timing of that plea is assessed by reference to when the plea was entered to the fresh charges, and a 25% discount for utilitarian value was appropriate in these circumstances.
  • Special circumstances justifying a departure from the statutory non-parole to parole ratio can be established by reference to an offender's advanced age, health, and first-time custodial status, though the court here characterised the departure as modest.
  • Agreed statements of facts tendered in proceedings involving child victims must be carefully anonymised; the court expressly criticised the parties for tendering a document that identified the victim by name, date of birth, and school.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) ss 61O(1), 61M(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 21A, 25AA, 27(3)(d), 32

Cases:
- Imbornone v R [2017] NSWCCA 144
- Jonson v R [2016] NSWCCA 286
- PWB v R [2011] NSWCCA 84
- R v Doan (2000) 50 NSWLR 115
- R v Lulham [2016] NSWCCA 287
- R v Nelson [2016] NSWCCA 130