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District Court 12 June 2020

R v Young (a pseudonym)

[2020] NSWDC 303

Sexual offences
CRIME SENTENCE POSSESSING CHILD ABUSE MATERIAL

Citation: R v Young (a pseudonym) [2020] NSWDC 303
Court: District Court of New South Wales
Date: 12 June 2020
Judge(s): Colefax SC DCJ

Background

The offender, referred to by pseudonym, appeared for sentence on thirteen principal offences involving the sexual abuse of two child victims. The first victim was the daughter of the offender's de facto partner (later his wife), and was aged between 7 and 13 at the time of the relevant offending, which occurred between 1997 and 2002. The second victim was abused in a separate period between 2014 and 2017.

The offending against the first victim was sustained and repeated, occurring on a weekly basis over approximately five years. It included acts of indecency, digital penetration, and penile-vaginal intercourse. The offender used emotional blackmail, threats, and his position of domestic authority to maintain his access to the first victim and suppress disclosure.

The offending against the second victim gave rise to seven of the thirteen principal offences, including aggravated sexual assault, procuring a child for unlawful sexual activity, using a child to produce child abuse material, indecent assault, and possession of child abuse material. The offender also asked the court to take into account five additional matters of indecent assault on the second victim, listed on a Form 1 (a procedural mechanism under which related uncharged matters are acknowledged and considered at sentencing without attracting separate convictions).

  • The appropriate aggregate sentence for thirteen principal offences of serious child sexual abuse, spanning two victims and two distinct periods of offending
  • The indicative sentence for each individual offence, including the application of applicable standard non-parole periods under the Crimes Act 1900 (NSW)
  • The discount to be applied to each indicative sentence (reflecting the offender's guilty pleas)
  • The construction of the aggregate non-parole period and balance of term, applying the totality principle to avoid a crushing sentence while reflecting the overall criminality

Decision

His Honour set out detailed agreed facts for each of the thirteen offences. The offending against the first victim was characterised as particularly grave, involving repeated abuse of a very young child in the context of a position of domestic trust, combined with coercion and emotional blackmail to prevent disclosure. The offending against the second victim included the production and possession of child abuse material, aggravated sexual assault, and conduct aimed at procuring a child for sexual purposes.

The court considered the seriousness of each offence individually and determined an indicative sentence for each, both before and after a discount for the guilty plea. For the offences against the first victim, indicative sentences (after discount) ranged from 2 years 6 months to 8 years 6 months. For those against the second victim, indicative sentences (after discount) ranged from 1 year 6 months to 7 years 6 months, with indicative non-parole periods also fixed for each.

Applying the totality principle, the court determined that the individual indicative sentences could not simply be aggregated, as that would result in a crushing total. The court instead imposed a single aggregate term reflecting the overall gravity and volume of the offending across both victims and both periods.

The court also directed the Registrar to forward an unredacted copy of the judgment and Crown Tender Bundle to the Director General of the Department of Family and Community Services, in connection with the second victim and matters concerning her mother's knowledge and conduct.

Orders Made

  • The offender sentenced to an aggregate term of imprisonment of 20 years
  • Non-parole period fixed at 15 years, commencing 14 January 2018 and expiring 13 January 2033
  • Balance of term fixed at 5 years, commencing 14 January 2033 and expiring 13 January 2038
  • The Registrar directed to send an unredacted copy of the judgment and Crown Tender Bundle to the Director General of the Department of Family and Community Services for investigation concerning the second victim and her mother's conduct

Key Takeaways

  • The District Court applied the totality principle to impose a single aggregate sentence of 20 years, with a 15-year non-parole period, rather than cumulating individual indicative sentences that would have produced a crushing total
  • Sustained child sexual abuse in a position of domestic authority, accompanied by emotional blackmail and coercion to prevent disclosure, was treated as a serious aggravating feature at each stage of the sentencing exercise
  • Where agreed facts left ambiguity on a material factual point (such as whether multiple fingers were used simultaneously or sequentially), the court resolved the ambiguity in the offender's favour consistent with standard sentencing principle
  • Indicative sentences were calculated for each offence individually, with a discount applied for the guilty plea, before the aggregate and non-parole period were determined by reference to the overall criminality
  • The court's direction to notify the Department of Family and Community Services reflected a concern extending beyond the sentence itself, regarding the welfare circumstances of the second victim

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 61J, 61M(2), 61O(2), 66A, 66C(2), 66EB(2), 91G(1)(a), 91H(2)

Cases:
- R v BJW [2000] NSWCCA 60
- R v Fisher (1989) 40 A Crim R 442