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District Court 21 February 2020

R v PB

[2020] NSWDC 286

Sexual offencesDomestic & family violence
CRIME SENTENCE INDECENT ASSAULT CHILD UNDER 10 YEARS SEXUAL INTERCOURSE CHILD UNDER 10 YEARS AGGRAVATED SEXUAL INTERCOURSE CHILD 10 14 YEARS

Citation: R v PB [2020] NSWDC 286
Court: District Court of New South Wales
Date: 21 February 2020
Judge(s): Norrish QC DCJ

Background

The offender, referred to as PB, was sentenced following his conviction by jury on ten counts of sexual and indecent offences against his daughter. The offending spanned approximately ten years, from 2005 to around 2015, during which time the victim lived under the offender's care and authority. The offending began when she was approximately six years old and continued until she was approximately 14 or 15.

The charges included indecent assault of a child under ten, sexual intercourse with a child under ten, aggravated sexual intercourse with a child aged between ten and fourteen, indecent assault of a child under sixteen, and aggravated sexual intercourse with a child aged between fourteen and sixteen. The offending occurred across multiple locations in New South Wales, including Richmond, Bligh Park, and Orange.

The offender denied all allegations at trial and gave evidence. A covertly recorded conversation between the offender and his daughter in August 2018, in which he failed to address her specific allegations, was significant evidence supporting the victim's credibility. The jury rejected the offender's evidence and convicted him on ten of the twelve counts in the indictment.

  • How each individual count should be assessed for objective seriousness, including against the standard non-parole period framework under ss 54A and 54B of the Crimes (Sentencing Procedure) Act 1999
  • Whether the circumstance of aggravation (victim being under the authority of the offender) could be applied across counts where it was not formally pleaded
  • How the totality principle should be applied when imposing a single aggregate sentence across ten separate convictions
  • Whether an Apprehended Violence Order (AVO) should be made at the time of sentencing

Decision

The District Court assessed each offence individually against the standard non-parole period benchmark where applicable, focusing solely on the objective circumstances of the offending as required by s 54B(2) of the Crimes (Sentencing Procedure) Act 1999. The offences were characterised as serious, occurring over a prolonged period against the offender's own child, who was wholly dependent on and living with him throughout.

Where the circumstance of aggravation (that the victim was under the authority of the offender) was formally pleaded in counts 8, 10, and 12, it had already been reflected in the applicable maximum penalty. For all remaining counts, however, Norrish QC DCJ treated that same circumstance as a statutory aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999. The absence of planning was noted but assessed in the context of the regularity of offending across ten years, which significantly diminished any mitigating weight it might otherwise carry.

Applying the totality principle, the court imposed an aggregate sentence rather than a series of cumulative individual terms. Indicative sentences were set for each count to ensure the aggregate sentence accurately reflected the total criminality while avoiding a crushing outcome disproportionate to the overall offending. The court declined to make a final AVO at the time of sentencing, noting the length of the sentence and observing that the matter could be revisited at an appropriate time in the future.

Orders Made

  • Aggregate sentence of imprisonment imposed (specific total term not reproduced in the provided text)
  • Indicative sentences fixed for each count as follows:
  • Count 1: 4 years, non-parole period 2 years
  • Count 2: (not separately detailed in provided text)
  • Count 3: 5 years, non-parole period 3 years
  • Count 4: 3 years, non-parole period 2 years
  • Count 6: 6 years, non-parole period 4 years
  • Count 8: 6 years (no standard non-parole period)
  • Count 9: 3 years, non-parole period 2 years
  • Count 10: 5 years (no non-parole period fixed)
  • Count 11: 4 years, non-parole period 2 years 6 months
  • Count 12: 7 years (no non-parole period fixed)
  • AVO not imposed at sentencing; matter left for future consideration

Key Takeaways

  • Where a circumstance of aggravation is formally pleaded in a charge and already reflected in the maximum penalty, a sentencing court cannot double-count it as a further aggravating factor; however, where the same circumstance exists on the facts but was not pleaded, it remains available as a statutory aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999.
  • The absence of planning in sexual offending does not operate as a significant mitigating factor where the evidence discloses a pattern of repeated offending over many years.
  • Under ss 54A and 54B of the Crimes (Sentencing Procedure) Act 1999, the "middle range of objective seriousness" benchmark for offences with standard non-parole periods is assessed by reference to the objective circumstances of the offending alone, separate from subjective factors relevant to the non-parole period itself.
  • The totality principle, applied through an aggregate sentencing approach, requires that individual indicative sentences be fixed for each count so that the final aggregate term proportionately reflects the full criminality without producing a disproportionately severe result.
  • Declining to impose an AVO at sentencing is not necessarily a permanent decision; where a lengthy head sentence has been imposed, the District Court noted the matter could appropriately be revisited closer to the time of the offender's potential release.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66A, 61M(2), 66C(4)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 54A, 54B

Cases
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Johnson v R (2004) 78 ALJR 616
- Markarian v R [2005] HCA 25
- Mill v R (1988) 166 CLR 59
- Pearce v R (1998) 194 CLR 610
- R v Holder (and anor) (1983) 3 NSWLR 245
- R v Tuala [2015] NSWCCA 8
- R v XX (2009) 195 A Crim R 38
- R v Youkhana [2004] NSWCCA 412
- Siganto v R (1998) 194 CLR 656