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District Court 2 July 2020

R v RB

[2020] NSWDC 328

Sexual offences
CRIME SENTENCING OFFENDER 14 AND ONE WEEK DIGITAL PENETRATION DELAY ASSISTANCE

Citation: R v RB [2020] NSWDC 328
Court: District Court of New South Wales
Date: 2 July 2020
Judge: Lerve DCJ

Background

The offender was charged with one count of sexual intercourse with a child under ten years of age, contrary to the Crimes Act 1900 (NSW). The offence occurred in February 2010 at a private residence where the complainant, then aged five, attended a home day care centre operated by the offender's mother. The offender, who also lived at the address, was 14 years and one week old at the time.

The offence involved digital penetration of the complainant. The incident came to light only in August 2019, when the complainant disclosed the conduct to her mother nearly a decade after it occurred. The offender was arrested in November 2019, at which point he was 24 years old.

The offender pleaded guilty in the Wagga Wagga Local Court on 1 April 2020 and maintained that plea at the sentence hearing in the District Court on 4 June 2020. He had also participated in a recorded conversation with the complainant prior to his arrest, during which he apologised and acknowledged the harm caused. He made further admissions in a police interview.

  • Whether the standard non-parole period of 15 years applied to an offender who was a juvenile at the time of the offence but was being sentenced as an adult many years later
  • How to assess the objective seriousness of the offending, given the nature of the act, the very young age of the complainant, and the age of the offender at the time
  • What discounts applied to the sentence, including for the utilitarian value of the guilty plea and for assistance provided to authorities
  • Whether, taking all circumstances into account, a sentence of imprisonment was required or whether an alternative sentencing disposition was appropriate

Decision

Lerve DCJ determined that the standard non-parole period did not apply in this matter. Under s 25AA(2) of the Crimes (Sentencing Procedure) Act 1999, the standard non-parole period for a child sexual offence is that which applied at the time of the offence. Because the offender was a juvenile at the time of the offending, no standard non-parole period would have applied had the matter been dealt with promptly. His Honour confirmed this remained the position despite the offender being sentenced as an adult years later.

On objective seriousness, his Honour applied established principles that no hierarchy exists among the various forms of sexual intercourse encompassed by the offence, and that the absence of additional aggravating features does not operate as mitigation. The young age of the complainant was a significant factor, as courts have consistently treated younger victims as indicating greater seriousness. However, the offender's own age of just 14 years and one week at the time of the offending was treated as a highly significant mitigating consideration.

The offender received a 25% discount for the utilitarian value of his early guilty plea. A further 5% discount was applied for assistance, expressed as a numerical reduction in community service hours rather than a reduction in the type of sentence imposed. His Honour noted that the combination of the offender's extreme youth at the time of offending and all other circumstances meant that an alternative to imprisonment was available, expressly cautioning that this conclusion should not be treated as any form of precedent given the very unusual factual circumstances.

Orders Made

  • The offender was convicted of the offence
  • Released on a Community Corrections Order for a period of 3 years
  • Standard conditions: no further offences; appear for sentencing on any breach
  • Additional conditions: 235 hours of unpaid community service work; supervision by the Department of Community Corrections for the duration of the order or such lesser period as deemed appropriate, with a requirement to obey reasonable directions from departmental officers

Key Takeaways

  • Under s 25AA(2) of the Crimes (Sentencing Procedure) Act 1999, the standard non-parole period applicable to a child sexual offence is the one in force at the time of the offending, not at the time of sentencing. Where the offender was a juvenile at the time of the offence, no standard non-parole period applies, even when sentencing occurs years later.
  • A well-established principle confirmed across multiple Court of Criminal Appeal decisions holds that the absence of additional aggravating features does not operate as mitigation. An offence is not rendered less serious simply because it could have been worse.
  • The District Court treated the offender's age of just 14 years and one week at the time of offending as a highly significant factor in the overall sentencing exercise, sufficient in combination with other factors to justify a non-custodial disposition.
  • Where a non-custodial sentence is imposed, a discount for assistance to authorities can still be applied numerically, in this case by reducing the hours of community service work rather than affecting the nature of the sentence.
  • His Honour expressly stated that the non-custodial outcome should not be taken as precedent, emphasising the decision turned on an unusual combination of factual circumstances, particularly the offender's near-minimum juvenile age at the time of a very serious offence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 5 and s 25AA(2)
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases
- R v AA [2017] NSWCCA 84
- R v AD [2008] NSWCCA 289
- R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434
- BM v R [2019] NSWCCA 223
- BP v R [2010] NSWCCA 159
- Bravo v R [2015] NSWCCA 302
- Bugmy v The Queen [2013] HCA 37
- Cattell v R [2019] NSWCCA 297
- Chamseddine v R [2017] NSWCCA 176
- Corliss v R [2020] NSWCCA 65
- R v Donald [2013] NSWCCA 238
- R v Hearne (2002) 124 A Crim R 451
- Jolly v R [2013] NSWCCA 76
- KT v R [2008] NSWCCA 51
- LS v R [2020] NSWCCA 120
- Locke v R (2010) 207 A Crim R 34; [2010] NSWCCA 296
- MC v R [2017] NSWCCA 317
- Mills v R [2017] NSWCCA 87
- MLP v R (2006) 164 A Crim R 93
- R v Muldoon (unrep, NSWCCA, 13 December 1990)
- R v PGM [2006] NSWCCA 310
- R v Thompson & Houlton (2000) 49 NSWLR 383