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District Court 17 April 2020

R v JM

[2020] NSWDC 140

Sexual offences

Citation: R v JM [2020] NSWDC 140
Court: District Court of NSW
Date: 17 April 2020
Judge(s): Priestley SC, DCJ

Background

The offender appeared for sentencing on 16 charges, all involving child sexual offences. A further four offences were dealt with via the form 1 procedure (meaning they were taken into account when sentencing on the principal charge rather than sentenced separately). The offending occurred between July and December 2018.

The victim was the offender's granddaughter, who was 11 years old at the time. The offences included grooming conduct, aggravated indecent assault, sexual intercourse with a child, production and possession of child abuse material, and acts of indecency. The offending took place across two distinct periods.

The offender pleaded guilty. Sentencing proceeded on agreed facts, supplemented by a psychological report, a sentencing assessment report, testimonials, and a victim impact statement.

  • What were the appropriate indicative sentences for each of the 16 charges, having regard to objective seriousness, aggravating and mitigating factors, and the applicable standard non-parole periods?
  • How should the form 1 procedure affect the sentence imposed on the principal charge of sexual intercourse with a child aged over 10 and under 14?
  • What aggregate sentence properly balanced the principles of totality and proportionality across a large volume of serious child sex offending forming a progressive course of criminality?
  • Whether special circumstances existed to justify a non-parole period that represented a proportion of the head sentence lower than the statutory default.

Decision

Objective seriousness and aggravating factors: Priestley SC DCJ assessed each offence individually for objective seriousness. The majority of charges were assessed as mid-range. Key aggravating features recurring across the offending included the victim's young age, the gross breach of trust arising from the grandfather-grandchild relationship, the victim being under the offender's authority, and the fact that offending occurred in the home. The court was careful to avoid double-counting where the circumstance of aggravation in the charge (the victim being under the offender's authority) and an aggravating factor under section 21A (breach of trust) arose from the same factual source.

Standard non-parole periods: Following Muldrock, the court treated standard non-parole periods as guideposts rather than as presumptive sentences, taking them into account alongside the full range of objective and subjective factors. The early guilty plea was identified as a basis for departing from the standard non-parole period on relevant charges.

Subjective case: The offender's subjective case was described as favourable. The court considered the psychological report, sentencing assessment report, testimonials, the early guilty plea, good character, remorse, contrition, and the likelihood of reoffending. These factors moderated but did not substantially reduce what were otherwise serious sentences warranted by the objective gravity of the conduct.

Totality and aggregate sentence: Because 16 offences were being sentenced (with four additional form 1 matters), simply adding individual sentences would produce a custodial period disproportionate to the overall criminality. Applying the principles in R v Holder, the court treated the offending as a progressive course of criminality across two periods, with the second period demonstrating a determination to continue the earlier conduct. After weighing totality and proportionality, and finding special circumstances to justify a longer parole period, the court imposed an aggregate sentence of 14 years with a non-parole period of 9 and a half years.

Orders Made

  • The offender was convicted on each of the 16 charged matters.
  • The four form 1 offences were taken into account in respect of the principal charge (sequence 14).
  • An aggregate sentence of 14 years was imposed, comprising a non-parole period of 9 years and 6 months commencing 17 December 2018 and expiring 16 June 2028, with a balance of term of 4 years and 6 months expiring 16 December 2032.

Key Takeaways

  • The District Court applied Muldrock to treat standard non-parole periods as legislative guideposts indicating the seriousness with which Parliament views an offence, rather than as fixed benchmarks, requiring full reasons for any departure.
  • Where multiple aggravating factors derive from the same factual foundation (such as an authority relationship that simultaneously constitutes both a statutory circumstance of aggravation and a breach of trust), sentencing courts must avoid double-counting those features.
  • Under the form 1 procedure, the sentencing court's focus remains on the principal offence, but the additional matters taken into account permit greater weight to be given to personal deterrence and retribution than would otherwise apply to the principal charge alone, following Attorney General's Application No 1 of 2002.
  • A progressive course of child sexual offending that escalates over time, with a second period of offending demonstrating renewed determination, can properly be treated as a continuing course of criminality for totality purposes, consistent with the principles in R v Holder.
  • Special circumstances were found to exist, resulting in a non-parole period representing a lower proportion of the head sentence than the statutory default, to allow adequate time for rehabilitation and supervised reintegration.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 61N(1), 66C(2), 66EB(3), 91G(1)(a), 91H(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 54A, 54B

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Muldrock v The Queen (2011) 244 CLR 120 (referenced in the judgment)
- AH v R [2015] NSWCCA 51
- R v Holder [1983] 3 NSWLR 245
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- R v Gavel [2014] NSWCCA 56
- R v Porte [2015] NSWCCA 174
- R v Hudson (NSW Court of Criminal Appeal, Sully, Ireland JJ, Spigelman CJ)