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District Court 3 April 2020

R v RKT

[2020] NSWDC 637

Sexual offences
CRIMINAL LAW SENTENCE SEXUAL ASSAULT WITHOUT CONSENT INDECENT ASSAULT INCITE ACT OF INDECENCY VICTIM UNDER AUTHORITY OF OFFENDER

Citation: R v RKT [2020] NSWDC 637
Court: District Court of New South Wales
Date: 3 April 2020
Judge: Judge W Hunt

Background

The offender, RKT, pleaded guilty to 21 counts of sexual offending against six female victims. The offences spanned approximately 18 years and included sexual intercourse without consent, indecent assault, and inciting acts of indecency. All victims were children at the time of the offending, ranging in age from four to eleven years old.

The offending occurred in a range of settings, including in the homes of victims. RKT had access to many of the victims through family relationships or close associations, meaning that trust had been extended to him by both the children and their relatives. Three victims provided victim impact statements, which the court received and considered.

At the time of the earliest offending (counts 1 to 6, against the first victim), RKT was himself a juvenile, aged between 14 and 16 years.

  • What was the appropriate objective seriousness for each individual count, having regard to the maximum penalties applicable at the time of each offence?
  • To what extent did aggravating factors, including the victims' very young ages, breach of trust, and offending in victims' homes, elevate the seriousness of the offending?
  • What weight should be given to mitigating factors, including guilty pleas, the opportunistic nature of the offending, and RKT's juvenile status at the time of the earliest offences?
  • How should the principle of totality be applied to produce an aggregate sentence that was just and appropriate overall?

Decision

Judge Hunt assessed each group of offences individually before arriving at an aggregate sentence. His Honour found that the offending was serious across all counts, with the counts involving sexual intercourse without consent against a victim aged four to five years (counts 11, 12, and 13) representing the most serious conduct on the indictment. The court acknowledged that it was required to compare each offence against the range of worst possible conduct captured by the relevant charge, without minimising the harm caused to individual victims.

The court identified several aggravating circumstances. Where breach of trust was not already an element of the relevant offence, the court treated RKT's abuse of the access and trust extended to him by victims' families as an aggravating factor. Offending that took place in victims' homes was also treated as aggravating. The particularly young ages of the victims further elevated the seriousness of the individual counts.

In mitigation, the court accepted the guilty pleas and applied a 20 percent discount to each indicative sentence. The court also accepted that most of the offending was opportunistic rather than planned. For counts 1 to 6, where RKT was a juvenile at the time of offending, his moral culpability was reduced, though the court noted that the offending against the first victim had escalated in seriousness over time.

Applying the totality principle under section 53A of the Crimes (Sentencing Procedure) Act 1999, the court imposed an aggregate sentence. Taking into account the entirety of time RKT had been or would be imprisoned across related proceedings, the court structured the non-parole period to remain within 75 percent of the total sentence, consistent with the statutory formula.

Orders Made

  • RKT convicted on all counts (counts 1 to 7 and counts 9 to 23).
  • Aggregate sentence of 10 years, 6 months and 13 days imposed, commencing 13 August 2018 and expiring 25 February 2029.
  • Non-parole period of 7 years, 3 months and 13 days; earliest release date to parole is 25 November 2025.
  • The total non-parole period to be served across all related matters is 10 years, with a parole period of 3 years and 3 months.

Key Takeaways

  • The District Court confirmed that, when sentencing for historical child sexual offences, the applicable maximum penalties are those in force at the time of the offending, not the higher penalties that may apply under current law.
  • Where a breach of trust is not already an element of the charged offence (such as where being "under the authority" of the offender is specified), a court may still treat the abuse of a family or social relationship of trust as a separate aggravating circumstance.
  • Juvenile status at the time of offending reduces an offender's moral culpability, but does not preclude substantial sentences where the conduct is serious and has escalated over time.
  • Under section 53A of the Crimes (Sentencing Procedure) Act 1999, an aggregate sentence must be assessed for totality across all proceedings, including any related sentences already being served, to ensure the overall period is just and appropriate.
  • Victim impact statements were received and considered to the extent permitted by legislation and authority, with the court acknowledging the lifelong harm that childhood sexual abuse causes to victims.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61D(1), 61E(1), 61E(1)(a), 61E(2)(a), 61M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A

Cases:
- Hornhardt v R [2017] NSWCCA 186
- Ibbs v R (1987) 163 CLR 447
- R v Cattell [2019] NSWCCA 297
- R v Nelson [2016] NSWCCA 130