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District Court 20 March 2020

R v TK

[2020] NSWDC 35

Sexual offences
CRIMINAL SENTENCE SEXUAL OFFENCES RISK OF RE OFFENDING SUBJECTIVE MATTERS

Citation: R v TK [2020] NSWDC 35
Court: District Court of New South Wales
Date: 20 March 2020
Judge(s): King SC DCJ

Background

The offender, a man originally from Kiribati, was sentenced for a single charge of an adult maintaining an unlawful sexual relationship with a child under s 66EA(1) of the Crimes Act 1900. The victim was his biological daughter, who was born in 2005 and had arrived in Australia in late 2016. During the offending period, the offender, the victim, and the offender's wife were living together at a residential property in Griffith, NSW.

The offending began during a family holiday to Bali in January 2018 and continued on a regular basis, approximately twice a week, throughout 2018 at the family home. The sexual acts included fellatio, cunnilingus, and penile-vaginal intercourse. On multiple occasions the offender used physical violence or threats of violence to secure the victim's compliance, including slapping her and threatening to hit her with a stick if she refused or disclosed the abuse.

The offending came to an end on 28 December 2018 when the offender's wife returned unexpectedly to the bedroom and discovered the offender in the act of abusing the victim. The offender was arrested the following day. He subsequently entered a guilty plea in the Griffith Local Court and was committed for sentence to the District Court, entitling him to a 25 per cent discount for the utilitarian value of the plea.

  • What was the appropriate sentence for a single charge of maintaining an unlawful sexual relationship with a child, where the offending was prolonged, involved multiple acts of sexual abuse, and was perpetrated by a parent against his own daughter?
  • What weight should be given to the offender's subjective circumstances, including cultural background, limited prior criminal history, and expressions of remorse?
  • Whether the offender's attempts to attribute responsibility to the victim, who was a child, bore on the assessment of prospects for rehabilitation and risk of reoffending?
  • Whether special circumstances warranted a departure from the standard ratio of non-parole period to total sentence?

Decision

The court characterised the offending as falling in the upper range of seriousness. The abuse occurred regularly over the better part of a year, involved a range of sexual acts, and was committed by the victim's own father in the family home. The offender used violence and threats to coerce the victim's participation and silence, and the victim was particularly vulnerable given her age, her dependence on the offender, and her cultural dislocation having recently arrived from Kiribati.

A significant aggravating feature identified by the court was the offender's tendency to attribute responsibility for the abuse to the victim herself, suggesting she had initiated or willingly participated in the sexual acts. The court rejected this framing entirely. Such an attitude was treated as bearing directly on the offender's prospects for rehabilitation and his risk of reoffending, both of which the court assessed as concerning.

In weighing subjective matters, the court acknowledged the offender's plea of guilty, his limited prior criminal history, and some evidence of remorse. These factors were taken into account but did not substantially reduce the sentence given the gravity of the offending. The court applied the 25 per cent utilitarian discount for the early plea, consistent with R v Thomson; R v Houlton.

The court did not find special circumstances that would warrant altering the standard relationship between the non-parole period and the balance of term. The existing parole period was already 18 months longer than the standard three-year supervisory period provided by the legislation, which the court found was sufficient.

Orders Made

  • The offender was sentenced to a total term of 18 years imprisonment.
  • Non-parole period of 13 years and 6 months, commencing on 29 December 2018 and expiring on 28 June 2032.
  • Balance of term of 4 years and 6 months, expiring on 28 December 2036.
  • No special circumstances were found.

Key Takeaways

  • Under s 66EA(1) of the Crimes Act 1900, a charge of maintaining an unlawful sexual relationship with a child can capture a sustained course of conduct involving multiple distinct sexual acts over an extended period, and the sentencing court will assess the totality of that conduct rather than treating individual acts in isolation.
  • An offender's attribution of blame or responsibility to a child victim was treated by the District Court as a significant factor weighing against favourable findings on rehabilitation and risk of reoffending.
  • A 25 per cent discount for the utilitarian value of a guilty plea applies where the plea is entered in the Local Court before committal for sentence, consistent with the principles in R v Thomson; R v Houlton (2000) 49 NSWLR 383.
  • Particular vulnerability arising from a victim's age, familial dependence on the offender, and recent arrival from another country with limited social connections can all be relevant to the objective seriousness of the offending.
  • The absence of a standard non-parole period for this offence means the sentencing court must construct an appropriate sentence by reference to the maximum penalty of life imprisonment and the full range of sentencing factors, without the statutory anchor of a prescribed non-parole period.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66EA(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- ABS [2005] NSWCCA 255
- Chamseddine v R [2017] NSWCCA 176
- R v Gavel [2014] NSWCCA 56
- R v Van Ryn [2016] NSWCCA 1