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District Court 21 February 2020

R v XY

[2020] NSWDC 288

Sexual offences
CRIME SENTENCE AFTER TRIAL INDECENT ASSAULT CHILD UNDER 16 YEARS UNDER AUTHORITY OFFENCES OCCURRED DURING ONE INCIDENT NO PRIOR OFFENDING

Citation: R v XY [2020] NSWDC 288
Court: District Court of New South Wales
Date: 21 February 2020
Judge(s): Norrish QC DCJ

Background

The offender, a man aged 43 at the time of sentencing, was convicted by jury in December 2019 of two sexual offences against a nine-year-old child. The offences occurred in February 2012 while the child's mother was hospitalised giving birth. The offender, who had been in a relationship with the child's mother for several years, was left in charge of the family's children during that period.

Both offences arose from a single incident in the family home. The first count involved sexual intercourse with a child under ten years, contrary to section 66A of the Crimes Act 1900, which carries a maximum penalty of 25 years imprisonment and a standard non-parole period of 15 years. The second count was indecent assault of a child under 16 years pursuant to section 61M(2), which at the relevant time carried a maximum of ten years and a standard non-parole period of eight years.

The victim did not report the incident immediately. She initially denied any wrongdoing by the offender when interviewed by police in 2013. She first disclosed the full circumstances to her mother in 2017, and a formal recorded interview with police followed in November of that year.

  • What was the appropriate sentence for each offence, having regard to the objective seriousness of the conduct and the personal circumstances of the offender?
  • Whether "special circumstances" existed under section 44 of the Crimes (Sentencing Procedure) Act to warrant an adjustment to the standard ratio of non-parole period to total sentence.
  • How the principle of totality should be applied when sentencing for two offences arising from a single criminal transaction.
  • Whether, and to what extent, the sentences should be accumulated or concurrent.

Decision

Norrish QC DCJ found that both offences arose from a single transaction and that the offender's personal circumstances included no prior relevant criminal history and a previously good character. The offender had two section 10 outcomes recorded against him (an AVO contravention and a drug-driving offence), neither of which attracted a conviction, and neither involved violence or sexual conduct. A psychiatric report was tendered on the offender's behalf, though the court placed no weight on the history provided by the offender within that report, as it had not been tested in evidence at trial.

The court identified special circumstances warranting departure from the standard non-parole period ratio, given the nature of the offending and the need for adequate supervision upon the offender's eventual release. The primary sentence was imposed on count 1, the more serious charge of sexual intercourse with a child under ten years.

Applying the principles of totality drawn from Mill v R, Johnson v R, and Holder v R, the court partially accumulated the sentence on count 2 upon count 1 to a limited extent of one year. This "telescoping" approach, as described by Street CJ in Holder, reflected the totality of the criminality without producing a crushing aggregate sentence disproportionate to the overall offending. The court also had regard to Pearce v R and the summary of sentencing principles set out by Hall J in R v XX.

Orders Made

  • Count 1 (sexual intercourse with child under 10, s 66A): convicted; sentenced to seven years imprisonment, comprising a non-parole period of three years commencing 3 December 2020 and expiring 2 December 2023, with a balance of sentence of three years expiring 2 December 2026.
  • Count 2 (indecent assault of child under 16, s 61M(2)): convicted; sentenced to three years imprisonment, comprising a non-parole period of one year and six months commencing 3 December 2019 and expiring 2 June 2021, with a balance of sentence of one year and six months expiring 2 December 2022.
  • Total effective sentence: seven years imprisonment with a non-parole period of four years.

Key Takeaways

  • Where two offences arise from a single criminal transaction, the principle of totality requires the sentencing court to consider partial accumulation rather than full concurrency or full accumulation, so that the aggregate term properly reflects the overall criminality without being disproportionate.
  • Special circumstances under section 44 of the Crimes (Sentencing Procedure) Act can justify adjusting the ratio between the non-parole period and the balance of sentence, including in cases involving child sexual offences where post-release supervision is a relevant consideration.
  • An offender's previously good character and absence of relevant prior convictions remain mitigating factors in child sexual offence sentencing, though the District Court noted this combination is not uncommon in such matters.
  • Section 10 outcomes do not constitute convictions and, on the facts here, were treated accordingly when assessing the offender's criminal history.
  • History provided by an offender to a forensic psychiatrist, and included in a report tendered at sentence, carries no weight where that history was not tested in evidence at trial and was not the subject of any sworn evidence by the offender.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases:
- Holder & Anor (1983) 3 NSWLR 245
- Johnson v R (2004) 78 ALJR 16
- Mill v R (1988) 166 CLR 59
- Pearce v R (1998) 194 CLR 610
- R v Tuala [2015] NSWCCA 8
- R v XX (2009) 195 A Crim R 38
- R v Youkhana [2004] NSWCA 412
- Suleman v R [2009] NSWCCA 70