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District Court 8 April 2020

R v Jarvis (a pseudonym)

[2020] NSWDC 396

Sexual offences
CRIME RELEVANT FACTORS ON SENTENCE STEPFATHER ESCALATING ABUSE ADMISSIONS EARLY GUILTY PLEA

Citation: R v Jarvis (a pseudonym) [2020] NSWDC 396
Court: District Court of New South Wales
Date: 8 April 2020
Judge: Haesler SC DCJ

Background

The offender, referred to by the pseudonym William Jarvis, was a stepfather who sexually abused his stepdaughter, referred to as Ms Kelly, over a prolonged period. The abuse began when Ms Kelly was approximately ten years old and continued until she was around fifteen or sixteen, spanning from August 1997 to March 2012. Ms Kelly was born with spina bifida occulta, a condition causing constant pain and disability throughout her life, and of which the offender was well aware.

The offending escalated steadily over the years, beginning with inappropriate touching and progressing through indecent assault to digital penetration and acts of simulated sexual intercourse. The conduct took place in the family home, typically when Ms Kelly's mother was absent. Ms Kelly took steps to protect herself, including wearing two pairs of underwear to bed and bringing her dog into her bedroom, but the offending continued.

Ms Kelly disclosed the abuse to her mother in 2013, after her mother and the offender had separated. Police obtained a surveillance device warrant and recorded a telephone conversation in which the offender made significant admissions to Ms Kelly. He was arrested on 29 April 2019, made further admissions in his police interview, and subsequently entered an early guilty plea to a charge of maintaining an unlawful sexual relationship with a child under section 66EA of the Crimes Act 1900.

  • What was the appropriate sentence for a single charge of persistent sexual abuse of a child under section 66EA of the Crimes Act 1900, given the long duration and escalating nature of the offending?
  • How should the court approach the fact that the maximum penalty for the offence increased during the course of the offending, and which maximum applied?
  • What weight should be given to the offender's early guilty plea, his admissions (including in the recorded telephone call), and his expressed remorse?
  • What relevance did the complainant's particular vulnerability, the offender's age, and the COVID-19 pandemic have on the appropriate sentence?
  • Whether special circumstances existed to justify a longer-than-standard parole period relative to the non-parole period.

Decision

Haesler SC DCJ found the offending to be serious, involving persistent sexual abuse of a child in a position of particular vulnerability, committed by a person in a position of trust as a stepfather. The judge identified the escalating nature of the offending as a significant aggravating feature, noting that the conduct moved from inappropriate touching to digital penetration and simulated sexual intercourse over the years. While the court acknowledged that there were worse examples of such offending, it emphasised this did not diminish the gravity of what occurred.

The court addressed the complexity arising from the change in the maximum penalty for section 66EA offences during the period of offending. The maximum penalty increased from 14 years to 25 years during the course of the conduct. The court applied careful analysis to avoid imposing a penalty beyond what was available at the time of the conduct, consistent with the principle that an offender cannot be sentenced more harshly than the law permitted at the time of the offence.

The offender received meaningful credit for his early guilty plea, entitling him to a 25 per cent reduction in the sentence that would otherwise have been imposed. The court also took into account the admissions made in the recorded telephone call and in the police interview, as well as the offender's expressed remorse. Notably, the victim acknowledged that the offender's admissions had assisted in her own recovery, a factor the court treated as relevant. The offender's age (he was in his early seventies at the time of sentencing), his health, his lack of prior criminal history, and the fact that he had not reoffended since the abuse ended were also weighed in his favour.

The court found special circumstances justifying a departure from the standard ratio between the non-parole and parole periods, noting the offender's age and the period he would need to spend on supervision in the community. The judge also noted that, because of the COVID-19 pandemic, the offender would not be eligible for early release under any emergency provisions that might apply to other prisoners.

Orders Made

  • Non-parole period of five years and five months, commencing 29 April 2019, with eligibility for release to parole on 28 August 2024.
  • Parole period of four years and four months (reflecting a finding of special circumstances).
  • Total sentence of nine years and nine months, expiring 28 January 2029.
  • The court noted that, absent the utilitarian value of the guilty plea, a sentence of 13 years would have been imposed.

Key Takeaways

  • Under section 66EA of the Crimes Act 1900, a charge of maintaining an unlawful sexual relationship with a child captures a course of escalating sexual conduct over time; the sentencing court must assess both the individual acts and their cumulative effect, while guarding against double-counting under section 21A of the Crimes (Sentencing Procedure) Act 1999.
  • Where the maximum penalty for an offence increased during the period of offending, sentencing courts must take care not to impose a penalty that exceeds what was available at the time the relevant conduct occurred.
  • The District Court treated the offender's admissions, made in a recorded telephone call and later to police, as a significant mitigating factor, particularly where the complainant herself acknowledged the admissions had aided her recovery.
  • A finding of special circumstances can justify extending the parole period beyond the standard statutory ratio, including where an older offender will require extended supervision upon release.
  • The sentencing court emphasised that the punishment imposed is only one indicator of the seriousness with which the legal system regards child sexual abuse, and that victims should not measure their harm by reference to the sentence ultimately served by the offender.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66EA
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 25D
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW)
- Court Suppression and Non-publication Orders Act 2010 (NSW)
- Sentencing Act 1989 (NSW) (repealed)

Cases:
- Weininger v The Queen (2003) 212 CLR 629
- Markarian v The Queen (2005) 228 CLR 357
- Mill v The Queen (1988) 166 CLR 59
- Ryan v The Queen (2001) 206 CLR 267
- Siganto v The Queen (1998) 194 CLR 656
- The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550
- Thompson (2000) 49 NSWLR 383
- Eacott (a pseudonym) v R [2019] NSWCCA 158
- R v Cattell [2019] NSWCCA 297
- IS v R [2011] NSWCCA 142
- MJR v R [2002] NSWCCA 129
- R v Maclay (1990) 19 NSWLR 112
- R v Todd [1982] 2 NSWLR 517
- R v DR [2018] NSWDC 405
- Brown v R [2020] VSC 60