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District Court 14 February 2020

R v MD

[2020] NSWDC 285

Sexual offencesAssault & violence
CRIME SENTENCE SUBSTANTIAL AGE DIFFERENCE AT HOME OF VICTIM NOT PLANNED NO BREACH OF TRUST

Citation: R v MD [2020] NSWDC 285
Court: District Court of New South Wales
Date: 14 February 2020
Judge: Norrish QC DCJ

Background

The offender, born in 1957, was convicted after trial of assaulting a child under ten years of age and committing an act of indecency upon her at the time of that assault. The offence occurred at Parkes, New South Wales, between June and December 2002, when the victim was eight years old and the offender was approximately 44. The offender had been in a troubled, on-and-off de facto relationship with the victim's mother from 1998 until around 2014.

The offence occurred in a shed or "tack room" attached to the victim's family home. The offender approached the victim while she was alone doing chores, physically restrained her, and committed the act of indecency. He moved away when footsteps were heard approaching.

The offender had been charged with four counts, including sexual intercourse with a child under ten. He was acquitted of three counts, including that most serious charge, and convicted on the single count of assault with indecency. He was not arrested until early 2018, when the complainant made her report to police. The offender denied all allegations throughout, including in his police interview.

  • What was the appropriate sentence for the single count of assault and indecency upon a child under ten, having regard to objective and subjective factors?
  • Whether the statutory aggravating factor of committing an offence "in the home of the victim" applied, and with what weight.
  • Whether the statutory aggravating factor of "abusing a position of trust or authority" over the victim applied, given the offender's de facto relationship with the victim's mother.
  • Whether special circumstances existed justifying a departure from the standard ratio between the non-parole period and the balance of the sentence.

Decision

Objective seriousness and aggravating factors. The District Court found the offence was objectively serious, citing the substantial age difference between a 44-year-old offender and an eight-year-old victim, and the inherently inappropriate nature of any sexual contact in those circumstances. The court accepted that the offence occurred in an outbuilding forming part of the victim's residential property, technically engaging the aggravating factor under s 21A(2)(e)(b) of the Crimes (Sentencing Procedure) Act 1999. However, his Honour gave that factor limited weight, noting that the shed was not the interior of the home and that the aggravating character of the location is more pronounced in cases where, for example, a child is assaulted while in bed inside the dwelling itself.

Trust and authority. The court was not satisfied beyond reasonable doubt that the offender occupied a position of trust or authority over the victim so as to engage s 21A(2)(k). Although the offender was the de facto partner of the victim's mother, his Honour found that the offender did not function in any meaningful "step-parent" role and did not assume responsibility for the victim or her siblings. The relationship between the offender and the victim's extended family was described as problematic throughout.

Consistency of verdicts. His Honour noted what he characterised as a potential element of inconsistency in the jury's verdicts, given that the Crown's case substantially depended on the complainant's credibility and three counts resulted in acquittals. The court observed there was some evidence of recent complaint in respect of the count on which the conviction was entered. Consistent with the acquittals on the other counts, the court could not treat the offence as part of a course of conduct.

Subjective factors and sentence. The court took into account the offender's age, his significant health difficulties (which would make custody more burdensome), the absence of prior convictions for indecent assault despite a criminal history, and good prospects of rehabilitation. Special circumstances were found to exist, justifying an 18-month non-parole period against a total sentence of three years, producing an equal non-parole period and balance of term rather than the standard two-to-one ratio.

Orders Made

  • The offender was convicted of the single count of assault and indecency upon a child under ten years of age.
  • Total sentence of three years imprisonment, comprising a non-parole period of 18 months commencing 14 February 2020 and expiring 13 August 2021, with a balance of sentence of 18 months expiring 13 February 2023.
  • An existing apprehended violence order, made on 16 December 2019 for a period of two years, was noted as extending beyond the offender's expected parole release date and was left in place without further order.

Key Takeaways

  • The District Court confirmed that the statutory aggravating factor of committing an offence "in the home of the victim" is not applied at a fixed weight: the degree of aggravation depends on where within the home or its curtilage the offence occurred, and a shed on the property carries less weight than an assault inside the dwelling itself.
  • A de facto relationship with a victim's parent does not automatically establish a position of "trust or authority" over the child for the purposes of s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999. The court must be satisfied beyond reasonable doubt that the offender genuinely fulfilled a parental or authority role.
  • Where an offender is acquitted of multiple related counts, the sentencing court cannot treat the single conviction as evidence of a course of conduct, even if that characterisation was central to the Crown's overall case.
  • Special circumstances justifying a non-standard ratio between non-parole period and balance of term can include advanced age, significant health difficulties, and the particular burdens those factors will impose during custody.
  • An existing apprehended violence order that extends beyond the date of a prisoner's expected release on parole may be sufficient without the court making a further order at sentencing.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 21A(2)(e)(b) (offence in home of victim), s 21A(2)(k) (abuse of trust or authority), and provisions governing standard non-parole periods
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 39 (consideration of apprehended violence orders at sentencing)

Cases cited: None stated in the judgment.