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District Court 27 February 2020

R v Peterson (a pseudonym)

[2020] NSWDC 122

Sexual offences
SENTENCING INTENTIONALLY SEXUALLY TOUCH A CHILD AGGRAVATED INDECENT ASSAULT SENTENCING RELEVANT FACTORS ON SENTENCE TWO CHILD VICTIMS OFFENDER CHILD VICTIMS STEPFATHER

Citation: R v Peterson (a pseudonym) [2020] NSWDC 122
Court: District Court of New South Wales
Date: 27 February 2020
Judge: Haesler SC DCJ

Background

The offender, referred to by the pseudonym "George Peterson," was the stepfather of two child complainants, referred to as "Chris" and "Susan." He had been living with the children, their mother, and a younger child born to him and his wife. The offending came to light on 15 June 2019 when the children's mother discovered her husband in her son's bedroom and Chris disclosed what had been done to him. The offender was arrested the following day and has remained in custody since.

The offender initially denied any wrongdoing but accepted responsibility for his conduct against both stepchildren while the matter was still before the Local Court. The charges were reduced to four specific counts covering a course of sexual offending against Chris (then aged 15 to 16) spanning July 2018 to June 2019, and against Susan (then aged approximately 9 to 11) from 2015 or 2016 onward. Three additional matters were included on Forms 1 (that is, offences taken into account on sentence without a separate conviction being entered).

The offending involved direct physical sexual contact with both children in the family home and the family car. The offender used his position as a trusted authority figure to commit the offences, and in several instances behaved as though nothing had occurred immediately afterwards.

  • What were the appropriate individual sentences for each of the four charges, taking into account the Form 1 matters?
  • How should the objective seriousness of each offence be assessed, given the offender's relationship to the victims and the circumstances of the offending?
  • What weight should be given to mitigating factors, including the early plea, acceptance of responsibility, and remorse?
  • How should the principles of totality, accumulation, and special circumstances apply in arriving at an aggregate sentence?
  • What role do general deterrence and retribution play in sentencing for child sexual offences?

Decision

Haesler SC DCJ assessed the objective seriousness of each offence by reference to the nature and degree of physical contact, the ages of the children, the relationship between the offender and the victims, and the settings in which the offending occurred. The court noted that each act took place in a location where a child should feel safe: the family home, the children's beds, and the family car. The offender was in a position of authority and trust as stepfather, and the children were left with little option but to submit.

The court emphasised that there is an absolute prohibition on sexual activity with a child, and that deterrence and retribution are significant sentencing purposes in this type of case. The three Form 1 matters demonstrated that the offending against both children was part of a course of conduct rather than isolated incidents, and required that greater weight be given to those sentencing purposes. The court also noted the likelihood of ongoing psychological harm to both victims, as evidenced by the Victim Impact Statement.

In mitigation, the court acknowledged the offender's early acceptance of responsibility, his guilty plea entered before committal to the District Court, and his demonstrated remorse. These factors reduced the sentence from what might otherwise have been imposed. A finding of special circumstances was made, permitting adjustment of the non-parole period relative to the balance of the sentence.

Applying the principle of totality, the court determined that a simple accumulation of the individual sentences would produce an unjust overall result, and adjusted the sentences to arrive at an aggregate term that was both proportionate and reflective of the full criminality of the offending. The court also noted that the offender would be subject to the Crimes (High Risk Offenders) Act 2006 upon release, though that consideration played no part in formulating the sentence.

Orders Made

  • Aggravated indecent assault (Chris, s 61M(2), sequence 4): 2 years and 3 months imprisonment, non-parole period of 1 year and 5 months.
  • Intentionally sexually touch a child (Chris, s 66DB(a), sequence 2, including Form 1 matter): 2 years and 7 months imprisonment.
  • Sexual intercourse with a person under care (Chris, s 73(1), sequence 1, including Form 1 matter): 3 years and 9 months imprisonment.
  • Aggravated indecent assault (Susan, s 61M(2), sequence 6, including Form 1 matter): 3 years and 6 months imprisonment, non-parole period of 2 years and 1 month.
  • Aggregate sentence: 6 years' imprisonment, with a non-parole period of 4 years, commencing 16 June 2019. Eligibility for parole consideration from 15 June 2023. Total sentence to expire in 2025.
  • The offender was advised that his offending brought him within the scope of the Crimes (High Risk Offenders) Act 2006, with potential for extended supervision or detention if he does not engage with treatment programs offered by Corrective Services.

Key Takeaways

  • The District Court confirmed that in sentencing for child sexual offences, the relationship between the offender and the victim is a significant aggravating factor, particularly where the offender held a position of parental authority and the victims were dependent on him for protection.
  • A course of conduct against two separate child victims, demonstrated through both the charges and the Form 1 matters, requires greater emphasis on deterrence and retribution as sentencing purposes.
  • Early acceptance of responsibility and a guilty plea entered before committal remain relevant mitigating factors in child sexual assault matters, capable of reducing the sentence that would otherwise be imposed.
  • Where an offender is sentenced for multiple offences involving more than one victim, the principle of totality requires the court to arrive at an aggregate sentence that is just overall, rather than simply accumulating individual penalties.
  • Under the Crimes (High Risk Offenders) Act 2006, an offender's sentence does not automatically mark the end of the State's interest in supervision: the court noted the possibility of continued restrictions on liberty post-sentence, though this was not a factor in formulating the sentence itself.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66DB(a), 66DB(b), 73(1), 73A(1)(a), 578A
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Schedule 2 pt 31 cl 91
- Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Cases:
- BT v R [2010] NSWCCA 267
- LB v R [2019] NSWCCA 151
- R v Herring (1956) 73 WN (NSW) 203
- R v NJK [2011] NSWCCA 151
- R v Windle [2012] NSWCCA 222
- Ryan v The Queen (2001) 206 CLR 267
- Thompson v R (2000) 49 NSWLR 383