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District Court 16 October 2020

R v Graham (a pseudonym)

[2020] NSWDC 747

Sexual offencesDomestic & family violence
SEXUAL INTERCOURSE WITH CHILD >10 <14 SEXUAL OFFENCES INDECENT ASSAULT CIRCUMSTANCES OF AGGRAVATION RELEVANT FACTORS ON SENTENCE FATHER AND DAUGHTER

Citation: R v Graham (a pseudonym) [2020] NSWDC 747
Court: District Court of New South Wales
Date: 16 October 2020
Judge: Haesler SC DCJ

Background

The offender, referred to by the pseudonym John Graham, was born in 1983. His eldest daughter, the complainant, was born in July 2004 and was the eldest of three children. The family lived in southern Wollongong.

In November 2019, police received a report of possible sexual activity between the offender and his daughter. The complainant disclosed to police that the offending began when she was eight years old. The offender had told her the conduct was normal, and because of her age she initially believed him. As she grew older and understood that it was not normal, he continued to force her compliance.

The offending included penile-vaginal intercourse, oral sex, digital penetration, and acts of masturbation. It occurred regularly throughout the period from approximately 2012 to 2018, when the complainant was aged between eight and fourteen. The offender was arrested on 28 November 2019 and made admissions in his police interview, including that he viewed his daughter as his "partner" and acknowledged initiating all sexual activity.

  • What is the appropriate sentence for a charge of persistent sexual abuse of a child under section 66EA of the Crimes Act 1900, where the offending involved a father-daughter relationship over a period of approximately six years?
  • How should the court weigh multiple aggravating factors, including the father-daughter relationship, the child's age, and the duration of offending, without double-counting?
  • What weight should be given to mitigating factors, including an early guilty plea, admissions on arrest, the offender's intellectual disability, and the impact of COVID-19 detention conditions?
  • Whether special circumstances existed warranting an extension of the parole period beyond the statutory default.

Decision

Haesler SC DCJ approached sentencing by identifying the objective seriousness of the offending against the backdrop of a maximum penalty of life imprisonment under section 66EA. The offence by its nature involved a series of criminal acts, and the court also had regard to the maximum penalties applicable to the individual sexual acts constituting the relationship. These included offences carrying penalties ranging from 7 years to life imprisonment, depending on the specific act and the complainant's age at the time.

The court identified a range of aggravating considerations, including the very young age at which the abuse commenced, the sustained duration of six or more years, the wide age gap between offender and victim, the physical and psychological harm caused, the risk of pregnancy or disease, the administration of alcohol on at least one occasion, and the fact that the abuse occurred in the family home. His Honour was careful to avoid double-counting, noting that many of these factors derived from, or were intertwined with, the fundamental breach of the father-daughter relationship. The court observed that a father occupies a unique position of trust and authority, and that the complainant had been rendered virtually helpless within her own home.

On mitigation, the court accepted the utilitarian value of the early guilty plea, reducing the sentence by 25 per cent. The offender's admissions on arrest were also noted. His borderline intellectual disability was considered, though the court noted it carried limited weight in this context, observing that the risk of learning negative behaviours from other prisoners in a custodial environment was a relevant concern. The impact of COVID-19 was also taken into account: the offender would not qualify for early release should an outbreak occur in custody, and his capacity to maintain family contact would be restricted. These were conditions beyond his control.

The court declined to find special circumstances justifying an extended parole period. His Honour held that the sentence, even after mitigation, provided sufficient time for the offender to be supervised and assisted in reintegrating into the community. The court noted that sentencing must vindicate the dignity of the victim, express community disapproval, and protect the vulnerable from further harm.

Orders Made

  • Total sentence of 15 years imprisonment imposed.
  • Non-parole period of 11 years, commencing 28 November 2019.
  • The offender is eligible for consideration for release to parole on 27 November 2030.
  • Parole period of four years from that date.

Key Takeaways

  • The District Court confirmed that the life imprisonment maximum under section 66EA applies as a guiding reference for persistent sexual abuse charges, even where that maximum was not available for the entirety of the offending period, consistent with the court's earlier reasoning in R v Jarvis (a pseudonym) [2020] NSWDC 396.
  • Where persistent sexual abuse involves multiple types of criminal acts, each particularised act must be considered individually and also collectively; the number of occasions and the duration of the offending remain highly relevant, notwithstanding the use of the omnibus persistent abuse charge.
  • Care must be taken not to double-count aggravating factors that are inherent to, or directly derived from, the nature of the offending relationship, particularly where that relationship supplies both the breach of trust and the element of authority.
  • A borderline intellectual disability was accepted as a mitigating consideration, though its practical weight was limited by the court's assessment that custodial rehabilitation opportunities may be undermined by exposure to negative peer influences.
  • The COVID-19 pandemic was treated as a relevant sentencing factor: restrictions on family contact and ineligibility for early pandemic-related release were hardships the court was required to take into account.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), sections 66A(2), 61M(1), 66C(2), 66C(4), 66EA
- Crimes (Sentencing Procedure) Act 1999 (NSW), section 21A

Cases
- R v Jarvis (a pseudonym) [2020] NSWDC 396
- DPP v De La Rosa [2010] NSWCCA 155
- R v Herring (1956) 73 WN (NSW) 203
- Anderson v R (1981) VR 155