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District Court 11 December 2020

R v MS (No 2)

[2020] NSWDC 772

Sexual offencesDomestic & family violence
SENTENCE USE OF A VIBRATOR OCCURRED IN THE HOME OF THE VICTIM

Citation: R v MS (No 2) [2020] NSWDC 772
Court: District Court of New South Wales
Date: 11 December 2020
Judge: Weinstein SC DCJ

Background

The offender, a man born in 1972, was sentenced following his conviction by a jury for aggravated sexual intercourse with a child aged between 10 and 14 years, contrary to s 66C(2) of the Crimes Act 1900. The maximum penalty for this offence is 20 years imprisonment. There is no standard non-parole period.

The victim, born in 1999, was the offender's stepdaughter. He had been her stepfather since she was approximately four years old and the family lived together in South West Sydney. The offending occurred when the victim was in Year 6, aged 10 or 11, and involved the offender penetrating her genitals with a vibrator in her bedroom.

The offender was acquitted of all other counts on the indictment and convicted on Count 2 alone. The aggravating circumstance forming part of the charge was that the victim was under the authority of the offender at the time of the offending.

  • Whether the offender's position as the victim's stepfather constituted an abuse of trust capable of operating as a separate aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999, given that abuse of authority was already an element of the offence
  • The appropriate weight to give to the offender's subjective circumstances, including the psychological assessment, absence of prior sexual offending, and the support of family
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio
  • The appropriate head sentence and non-parole period having regard to the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999

Decision

Abuse of trust versus abuse of authority. A central sentencing question was whether abuse of trust could aggravate the sentence separately from the element of abuse of authority already embedded in the charge. The court examined whether these are distinct concepts. Abuse of authority, as an element of the offence, reflects the formal hierarchical power an offender holds over a child. Abuse of trust, by contrast, reflects the personal and emotional bond of confidence the victim places in the offender. The court found that the offender's long-standing role as stepfather created a relationship of trust with the victim that was separate from, and in addition to, the element of authority. The offender had been a father figure to the victim since she was four years old.

Objective seriousness. The court assessed the offending as falling in the mid-range of objective seriousness. Relevant considerations included the nature of the penetration, the victim's age and vulnerability, the breach of the familial relationship, and the grooming conduct that preceded the offence. The victim's impact statement described lasting psychological harm, including daily intrusive recollections, difficulty forming relationships, and periods of suicidal ideation.

Subjective circumstances. The forensic psychological report prepared by Ms Kris North assessed the offender's risk of sexual recidivism as low. The offender had no prior sexual offending history. The report identified features consistent with Autism Spectrum Disorder traits and noted that no offence-specific treatment was considered necessary. The offender maintained his innocence throughout. The court acknowledged his good behaviour in custody and the support of his family, but noted that his prior criminal history neither aggravated nor entitled him to leniency.

Special circumstances. The court found that special circumstances existed, principally because the offender would require significant support and extended supervision upon release. This justified departing from the standard ratio between the non-parole period and the head sentence, with the court applying a ratio of approximately 66 percent.

Orders Made

  • The offender was convicted of aggravated sexual intercourse with a person above the age of 10 and below the age of 14 years, contrary to s 66C(2) of the Crimes Act 1900
  • Sentenced to a total term of imprisonment of 6 years
  • Sentence backdated to 19 September 2018
  • Non-parole period of 4 years, expiring 18 September 2022 (eligible for parole on that date)
  • Head sentence expiring 18 September 2024

Key Takeaways

  • Abuse of trust and abuse of authority are not the same concept for sentencing purposes: where abuse of authority is an element of the offence, an offender's long-standing emotional and familial bond with the victim can still constitute a separate abuse of trust operating as an additional aggravating factor.
  • A low assessed risk of sexual recidivism, combined with an absence of prior sexual offending and a favourable psychological report, are relevant to the weight given to individual deterrence and rehabilitation, but do not displace the significant weight placed on general deterrence and denunciation in child sexual assault matters.
  • The District Court applied the instinctive synthesis approach from Markarian v The Queen [2005] HCA 25, weighing all relevant objective and subjective factors without mechanically applying a numerical formula.
  • Special circumstances under the Crimes (Sentencing Procedure) Act 1999 can be established where the offender will require substantial support and supervision upon release, permitting a departure from the standard non-parole period ratio.
  • Victim impact evidence is a recognised and weighty sentencing consideration: the court expressly acknowledged the profound and lasting harm caused to the victim, consistent with observations in R v Gavel (2014) and R v CMB [2014].

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A

Cases
- Beavis v Regina [2018] NSWCCA 248
- Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54
- Markarian v The Queen [2005] HCA 25
- MRW v R [2011] NSWCCA 260
- Muldrock v The Queen (2011) 244 CLR 120
- R v BJW (2000) 112 A Crim R 1
- R v CMB [2014] NSWCCA 5
- R v Fisher (1989) 40 A Crim R 442
- R v Gavel (2014) 239 A Crim R 469