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District Court 22 September 2020

R v NC

[2020] NSWDC 547

Sexual offences
CRIME SENTENCING SEXUALLY TOUCH CHILD PLEA OF GUILTY ASSESSMENT OF CRIMINALITY AGGRAVATING FACTOR OF “VULNERABILITY”

Citation: R v NC [2020] NSWDC 547
Court: District Court of New South Wales
Date: 22 September 2020
Judge: Lerve DCJ

Background

The offender was committed for sentence to the District Court at Wagga Wagga in respect of four charges arising from a single episode of offending on 7 January 2019. The victim was a 10-year-old child who was under the parental responsibility of the Minister for Family and Community Services and was living in the offender's home at the time.

Over the course of an afternoon in a shed behind the family home, the offender directed the child to photograph her own genitalia, incited a dog to lick her vagina, and touched her vagina with his hand. Police later recovered videos from the child's phone that had been taken at approximately the same time, one of which showed the offender operating the camera while the child was depicted. These facts underpinned the four charges: two counts of using a child under 14 to make child abuse material (s 91G(1)(a) Crimes Act 1900), one count of aggravated incitement of a child between 10 and 16 to carry out a sexual act (s 66DE(1)(b)), and one count of intentionally sexually touching a child aged between 10 and 16 (s 66DB(a)).

Before the District Court was also a severity appeal against a 12-month fixed term imposed by the Local Court in respect of a separate charge of indecent assault (committed in 2003 and dealt with under s 61M of the Crimes Act). The subjective material relied upon for the sentence matters was treated as relevant to both proceedings.

  • How should the objective seriousness of offences under s 91G(1)(a) be assessed, including the relevance of the child's age, the nature of the material, and the circumstances of production?
  • What weight should be given to the statutory aggravating factor of "vulnerability" where the victim was a child in out-of-home care placed in the offender's household?
  • How should the offender's age, physical health, and first-time experience of custody (including the conditions of the COVID-19 pandemic) affect the sentence?
  • Was a finding of special circumstances (justifying a non-parole period below the statutory default ratio) warranted?
  • Should the Local Court appeal against the sentence for the 2003 indecent assault be upheld?

Decision

Lerve DCJ applied the framework set out in Turner v R (2017) and R v Ls; MH [2020] NSWCCA 148 to assess the seriousness of the child abuse material offences. Relevant factors included that a real child was used, her young age (10 years), the nature and content of the material, and the fact that the offending involved a degree of compulsion. The combination of offending in a single episode, including the incitement involving a dog, was treated as serious conduct overall.

The vulnerability of the victim was identified as a statutory aggravating factor. The child was in out-of-home care and living in the offender's household, creating a position of trust and dependency that heightened her vulnerability. The court found this significantly increased the moral culpability of the offending.

On subjective matters, the offender's age and deteriorating physical health were accepted as making a custodial sentence more burdensome than it would otherwise be. His first experience of custody during the COVID-19 pandemic, with associated restrictions on programs and visits, also bore on the assessment. These factors, together with the need for structured supervision and reintegration, supported a finding of special circumstances, producing a non-parole period of 50% of the total sentence rather than the standard two-thirds minimum.

The Local Court severity appeal was dismissed. Lerve DCJ confirmed the Magistrate's orders in full, finding no error warranting interference with the 12-month fixed term imposed for the 2003 indecent assault.

Orders Made

  • The severity appeal against the Local Court sentence (12-month fixed term for aggravated indecent assault) is dismissed; the Magistrate's orders are confirmed. That sentence ran from 15 January 2019 and expired 14 January 2020.
  • The offender is convicted on all four charges committed for sentence to the District Court.
  • An aggregate sentence of 4 years imprisonment is imposed, with a non-parole period of 2 years.
  • The non-parole period commences 15 July 2019 and expires 14 July 2021; the balance of term runs from 15 July 2021 to 14 July 2023.
  • The court recommends the offender's release to parole at the expiry of the non-parole period.
  • Taking into account the appeal matter, the total effective sentence is 4 years 6 months, with an actual period in custody of 2 years 6 months (55% of the total effective sentence).
  • A copy of Dr Dayalan's report is directed to be annexed to the warrant forwarded to the Department of Corrective Services.

Key Takeaways

  • Under s 91G(1)(a) of the Crimes Act, the objective seriousness of a child abuse material offence is informed by multiple factors including whether a real child was involved, the child's age, the nature and content of the material, and any element of compulsion during production, drawing on Turner v R and R v Ls; MH.
  • A child placed in out-of-home care and living in the offender's household was found to be particularly vulnerable within the meaning of the statutory aggravating framework, given the inherent dependency and trust embedded in that living arrangement.
  • The District Court accepted that advanced age, serious physical illness, and first-time custody during the COVID-19 pandemic collectively made imprisonment more onerous, and treated these as relevant to the overall sentencing exercise rather than as discrete mitigating factors warranting formulaic reduction.
  • Special circumstances were found to exist on the combined basis of the offender's age and health, the partial accumulation of sentences, and the rehabilitative need for extended supervised parole, producing a non-parole period of 50% of the total term.
  • In dismissing the Local Court severity appeal, the District Court confirmed that no appellable error had been established in the Magistrate's imposition of a 12-month fixed term for the historical indecent assault.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M, 66DB(a), 66DE(1)(b), 91G(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Betts v R [2015] NSWCCA 39
- Chamseddine v R [2017] NSWCCA 176
- Doan v R (2000) 50 NSWLR 115
- Elyard v R [2006] NSWCCA 43
- Greaves v R [2020] NSWCCA 140
- Holyoak v R (1995) 82 A Crim R 502
- MC v R [2017] NSWCCA 316
- MLP v R (2006) 164 A Crim R 93
- PGM (2008) 187 A Crim R 152
- R v Boney [2008] NSWCCA 313
- R v Burchell (1987) 34 A Crim R 148
- R v Cahyadi [2007] NSWCCA 1
- R v Despotovski [2020] NSWDC 110
- R v Ls; MH [2020] NSWCCA 148
- R v Merrin [2007] NSWCCA 255
- R v Muldoon (unreported, NSWCCA, 13 December 1990)
- R v PGM [2008] NSWCCA 172
- R v RM [2020] NSWDC 52
- R v Turnbull (No 26) [2016] NSWSC 847
- R v TWP [2006] NSWCCA 141
- Turner v R (2017) 271 A Crim R 54; [2017] NSWCCA 304