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District Court 2 June 2020

R v PC

[2020] NSWDC 948

Sexual offences

Citation: R v PC [2020] NSWDC 948
Court: District Court of New South Wales
Date: 2 June 2020
Judge(s): Tupman DCJ

Background

The offender appeared before the District Court for sentencing following guilty pleas to 14 counts on an indictment, with a further 12 offences taken into account on four separate Form 1 documents. The 26 charges all involved child sexual assault offences committed against five separate female victims, spanning a period of over two decades between 1987 and 2010. All parties and victims are identified in the judgment by initials only, consistent with suppression obligations under the Crimes Act 1900 (NSW).

The offending involved five victims, each associated with the offender through his relationships with their mothers. The victims were young girls, the youngest being 5 or 6 years old at the time of the first offences. The offender occupied positions of authority in relation to each child and, across multiple instances, used threats to ensure the victims' silence.

The nature of the offending varied across victims but included sexual intercourse with children under 10, aggravated sexual intercourse, aggravated indecent assault, and aggravated acts of indecency. Some offending against individual victims was sustained over periods of years. The offender had no prior criminal history, no history of mental health problems, and no history of illicit drug use, but denied having a sexual attraction to young girls and was assessed as posing a moderate risk of reoffending.

  • What was the appropriate objective criminality of each individual count, having regard to the circumstances of each offence, including the age of the victims, the nature of the acts, and the offender's position of authority?
  • How should the totality principle be applied when sentencing for 26 offences across five victims, committed over more than two decades, where full accumulation of sentences would produce a manifestly excessive result?
  • Whether an aggregate sentence under section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) was the appropriate sentencing mechanism, and what that aggregate sentence should be.
  • Whether any special circumstance existed warranting a departure from the statutory ratio between the non-parole period and the total term of the sentence.

Decision

Tupman DCJ found the offending to be serious across all counts. The court identified several significant aggravating features: the offender was in a position of authority over each victim, there was a marked age disparity between the offender and the victims, the offending involved a degree of cruelty and manipulation, and the offender threatened victims into silence. The offending against three of the five victims, TR, DJ, and JW, was ongoing rather than isolated.

The court acknowledged the utilitarian benefit of the guilty pleas on 14 counts but also the lack of pleas on all charges. While the offender's absence of prior criminal history and first time in custody were noted as potentially mitigating factors, the court found these could not substantially reduce what was required to reflect the totality of the criminality involved.

Tupman DCJ determined that full accumulation of all sentences would produce a theoretical total exceeding 80 years, which was plainly excessive even accounting for the gravity of the conduct. The court accordingly imposed a single aggregate sentence under section 53A of the Crimes (Sentencing Procedure) Act 1999, finding this mechanism best captured the overall criminality, the extended timeframe, the number of victims, and the sustained nature of the offending against multiple individuals.

On the question of special circumstances, the court acknowledged that the offender's first time in custody could in principle constitute a special circumstance justifying a departure from the standard statutory ratio. However, Tupman DCJ concluded it was not appropriate to alter the ratio in this case, finding the statutory parole period of six years sufficient to address any rehabilitative needs.

Orders Made

  • The offender was convicted on each of the 14 substantive counts on the indictment.
  • An aggregate sentence of 24 years imprisonment was imposed under section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), commencing 31 August 2017 and expiring 30 August 2041.
  • A non-parole period of 18 years was set, commencing 31 August 2017 and expiring 30 August 2035.
  • A parole period of 6 years follows, commencing 31 August 2035 and expiring 30 August 2041.
  • The 12 Form 1 offences were taken into account in the indicative sentences for the relevant counts.

Key Takeaways

  • The District Court applied the totality principle to prevent a crushing aggregate outcome: full accumulation of all 26 offences would have produced a theoretical sentence exceeding 80 years, which the court held to be excessive even given the severity of the conduct.
  • An aggregate sentence under section 53A of the Crimes (Sentencing Procedure) Act 1999 was held to be the appropriate mechanism where the offending spanned multiple victims, multiple time periods, and a diverse range of offences, allowing the court to reflect the overall criminality as a coherent whole.
  • Where some offences arise from the same incident (as with counts 2 and 4, and counts 15 and 16), concurrent orders are appropriate, while other offences committed on separate occasions against the same or different victims warrant accumulation to some degree.
  • A first time in custody may constitute a special circumstance capable of justifying a departure from the statutory non-parole ratio, but the court retains a discretion to decline to alter that ratio where the overall non-parole period is already calibrated to reflect the totality of the criminality.
  • Sustained offending against multiple victims, combined with a position of authority, threats to ensure silence, and a significant age disparity, were treated as weighty aggravating factors in assessing the objective seriousness of historical child sexual assault offences.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61E(1), 61J(1), 61M(1)-(2), 66A, 66B
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 25AA(3), 53A
- Criminal Procedure Act 1986 (NSW)

Cases:
- R v Thompson and Houlton (2000) 49 NSWLR 383