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District Court 6 February 2020

R v JV

[2020] NSWDC 62

Sexual offences
PAROLE PERIOD — STANDARD NON

Citation: R v JV [2020] NSWDC 62
Court: District Court of New South Wales
Date: 6 February 2020
Judge: M L Williams SC DCJ

Background

The offender, a 51-year-old man, appeared for sentence in the District Court after pleading guilty at an early stage to multiple sexual offences against three young girls. The victims included his stepdaughter, his biological daughter, and a friend of his daughter, all aged between 10 and 12 at the time of the offending. The offences occurred across different periods between 2011 and 2019.

The offending ranged in seriousness from aggravated indecent assault to sexual intercourse with a child aged between 10 and 14, intentional sexual touching of a child under 16, and possession of child abuse material. Three additional offences were placed on a Form 1, meaning they were taken into account during sentencing without attracting separate convictions.

The Crown conceded the offender was entitled to a 25% discount on sentence for the utilitarian value of his early guilty pleas. The offender's own counsel accepted that full-time custody was the only appropriate outcome.

  • What aggregate sentence was appropriate given the number, nature, and circumstances of the offences?
  • How should the standard non-parole periods applicable to certain offences inform the overall sentencing exercise?
  • What weight, if any, should be given to claimed subjective mitigating factors (including claimed insight and rehabilitation prospects) in the absence of supporting evidence?
  • Whether special circumstances existed justifying a non-parole period shorter than the statutory default proportion of the head sentence.

Decision

Williams SC DCJ identified a number of significant aggravating features. The offending involved multiple victims, all of whom were vulnerable children. In the case of two victims, the offender stood in a position of parental trust, specifically as a stepfather and biological father. The sexual intercourse offence against the offender's biological daughter was committed with physical force when she repeatedly asked him to stop. The child abuse material on the offender's phone depicted 15 girls engaged in sexual acts, including penetrative acts, with file names referencing family members.

The court rejected the submission that the offender had demonstrated genuine insight into his offending. No satisfactory evidence supported that claim, and the court noted the offender had denied the offences against one victim in a police interview. The court similarly declined to draw any favourable inference about prospects of rehabilitation in the absence of supporting material. The history provided to the author of the Sentence Assessment Report was treated with caution, as it had not been adopted or tested, consistent with the principles in Imbornone v R and R v Qutami.

The primary mitigating factor was the early guilty plea, which attracted the agreed 25% discount. The offender's prior clean record and the fact that this was his first period of full-time custody were also noted. The court found special circumstances, which justified a longer than usual ratio between the non-parole period and the total sentence, reflecting the need for an extended period of supervision on release given the nature and extent of the offending.

The court applied the principles from Attorney General's Application No 1 of 2002 in addressing the Form 1 matters, and ultimately imposed an aggregate sentence combining indicative terms for each conviction.

Orders Made

  • The offender was convicted of each offence.
  • Indicative sentences were imposed as follows:
  • Aggravated indecent assault involving AG (taking into account Form 1 matter): 18 months, non-parole period of 1 year
  • Sexual intercourse with a child involving OV (taking into account two Form 1 matters): 3 years 6 months, non-parole period of 2 years 3 months
  • Intentional sexual touching involving AC: 18 months
  • Possession of child abuse material: 18 months
  • An aggregate sentence of 5 years imprisonment was imposed, commencing 27 February 2019.
  • A non-parole period of 3 years was set, expiring 26 February 2022.
  • Special circumstances were found.

Key Takeaways

  • The District Court treated the offender's position of parental trust over two of the three victims as a significant aggravating factor, reinforcing how breach of familial trust operates to elevate the seriousness of child sexual offences at sentencing.
  • Where an offender proffered no satisfactory evidence of insight or rehabilitation prospects, the court declined to treat those matters as mitigating factors, even where counsel submitted they were relevant.
  • An early guilty plea remained the primary mitigating factor, attracting the conceded 25% utilitarian discount despite the gravity of the offending.
  • Uncontested background history provided to the author of a Sentence Assessment Report does not automatically carry weight at sentencing; courts approach such material with caution where it has not been adopted or tested, consistent with established Court of Criminal Appeal authority.
  • Special circumstances were found in this case, justifying a non-parole period that represented a smaller proportion of the head sentence than the statutory default, on account of the anticipated need for extended supervision on the offender's release.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 61N(2), 66C(1), 66DB(a), 91H(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Imbornone v R [2017] NSWCCA 144
- R v Hudson (unreported, 30 July 1998, NSWCCA)
- R v Qutami (2001) 127 A Crim R 369
- R v Thomas [2007] NSWCCA 26