Citation: R v AB [2020] NSWDC 521
Court: District Court of New South Wales
Date: 11 September 2020
Judge: Weinstein SC DCJ
Background
The offender, referred to as AB to protect the victim's identity, was born in 1984 and appeared for sentencing on three serious child sexual offences. At the time of the offending, AB was in a domestic relationship with the victim's mother and lived in the same household as the victim, who was aged between approximately five and seven years old during the period of offending.
The offending occurred across two residential addresses and escalated over time. It began with an incident in which AB exposed himself and directed the young victim to touch him, progressed to grooming conduct involving the showing of pornographic videos, and culminated in sexual intercourse with the victim while the offender's infant daughter was also present in the shower. Two further matters were placed on a Form 1 (meaning they were taken into account at sentencing without additional convictions being recorded).
The victim disclosed the abuse to a school friend's mother in June 2019. Police were notified, and AB was arrested. In a police interview, he admitted to showing the victim pornographic videos and to masturbating in her presence, but denied touching her. He ultimately pleaded guilty to all three principal charges.
Legal Issues
- What aggregate sentence and non-parole period was appropriate for three serious child sexual offences committed against a young child by a person in a position of domestic authority?
- What weight should be given to mitigating factors, including a guilty plea, no prior relevant criminal history, and evidence of the offender's character and family circumstances?
- How should the court apply the standard non-parole periods and sentencing guideposts under the Crimes (Sentencing Procedure) Act 1999 to the most serious offence, which carried a maximum penalty of life imprisonment?
- How should the aggregate sentencing mechanism under s 53A of the Crimes (Sentencing Procedure) Act 1999 be applied to reflect the total criminality across all offences?
Decision
Weinstein SC DCJ identified a range of significant aggravating features. The offending occurred in the victim's home, AB held a position of authority over the victim as her mother's domestic partner, a second child was present during the most serious offence, and the conduct involved deliberate grooming over a sustained period. The court also acknowledged that the offending had a profound impact on the victim, as reflected in her victim impact statement, and that the long-term psychological effects on the child could not yet be fully known.
The court accepted several mitigating factors. AB had no relevant prior criminal history, and character evidence from his wife, sister, and parents indicated that the offending was out of character. The guilty pleas attracted a 25% discount in accordance with established principle. The court accepted that imprisonment would be experienced with particular hardship given AB's separation from his children, though the judgment made clear this was a relatively modest mitigating consideration in the context of the overall gravity of the offending.
Applying the sentencing framework under the Crimes (Sentencing Procedure) Act 1999 and guided by the authorities cited, including Muldrock v The Queen and Markarian v The Queen, the court fixed an aggregate sentence of 8 years and 6 months imprisonment, with a non-parole period of 5 years and 8 months. The indicative sentence for the principal offence of sexual intercourse with a child under 10 (after a 25% plea discount and taking into account the Form 1 matters) was 5 years and 7 months, with a non-parole period of 3 years and 9 months.
Orders Made
- AB was convicted of sexual intercourse with a child under the age of 10 years (s 66A(1), Crimes Act 1900), grooming a child under 14 years for unlawful sexual activity (s 66EB(3), Crimes Act 1900), and intentionally carrying out a sexual act with a child under 10 years of age (s 66DC(a), Crimes Act 1900).
- An aggregate term of imprisonment of 8 years and 6 months was imposed, commencing 19 June 2019.
- A non-parole period of 5 years and 8 months was imposed, expiring 18 February 2025.
- The head sentence expires 18 December 2027.
Key Takeaways
- The District Court treated the combination of domestic authority, in-home offending, deliberate grooming, and the presence of a second child as serious aggravating factors that elevated the overall criminality well above a baseline assessment of individual offences considered in isolation.
- An aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 requires the court to ensure that the combined sentence reflects the total criminality involved, and the court must still provide indicative sentences for each constituent offence.
- A guilty plea attracted a 25% sentence discount across all three offences, consistent with Mill v The Queen and established NSW sentencing practice.
- Character evidence and the absence of a prior criminal record carried some mitigating weight, but the court's reasoning demonstrates that such factors are of limited effect where the objective gravity of child sexual offending is high.
- Victim impact evidence confirmed profound and potentially enduring harm to the child, and the court formally acknowledged that harm on behalf of the community as part of its sentencing remarks.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66A(1), 66DC(a), 66EB(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 53A
Cases:
- Alesbhi v R; Esbhi v R [2018] NSWCCA 30
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002
- JM v R (2014) 246 A Crim R 528
- Markarian v The Queen [2005] HCA 25
- Mill v The Queen (1988) 166 CLR 59
- Muldrock v The Queen (2011) 244 CLR 120
- R v ND [2016] NSWCCA 103