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District Court 31 August 2020

R v AT

[2020] NSWDC 954

Sexual offences

Citation: R v AT [2020] NSWDC 954
Court: District Court of New South Wales
Date: 31 August 2020
Judge(s): Tupman DCJ

Background

The offender, identified only as AT, appeared for sentence on three substantive child sexual assault offences and four additional offences taken into account on a Form 1. The offending involved two victims, both his biological daughters, referred to as KT and TL. KT was aged between 10 and 11 at the time of the offending, and TL was aged between 12 and 13.

The offending against KT occurred during access visits to a rural property at Hillville, where the offender shared a caravan and bed with KT and her brother. The conduct included forcing the child to perform sexual acts and digitally penetrating her. The offending against TL, who lived on the same property with the offender and her mother, involved indecent assault and penile sexual intercourse without consent.

The rural property was described as remote and decrepit: ten acres of bushland containing a burnt-out house, caravans, and sheds. Both victims had grown up in circumstances of significant neglect by the adults in their lives, and the court noted with concern what appeared to be a failure by welfare authorities to adequately supervise or protect either child.

  • The appropriate sentence for an offence of maintaining an unlawful sexual relationship with a child under 16, contrary to s 66EA of the Crimes Act 1900 (NSW), carrying a maximum of life imprisonment.
  • The appropriate sentence for aggravated sexual assault of a child under 16, contrary to s 61J(1) of the Crimes Act 1900, carrying a maximum of 20 years imprisonment with a 10-year standard non-parole period.
  • The appropriate sentence for aggravated indecent assault of a person under 16, contrary to s 61M(2) of the Crimes Act 1900, carrying a maximum of 10 years imprisonment with an 8-year standard non-parole period.
  • How to structure the overall sentence, including whether to aggregate sentences for the offences involving TL under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), and the extent to which the sentences for the two groups of offences should be accumulated.
  • The weight to be given to subjective factors, including the early guilty plea, criminal history (no prior sex offences), forensic psychological assessment, and prospects of rehabilitation.

Decision

Tupman DCJ assessed the offences as falling in the middle of the range of objective seriousness. The offender had engaged in a wide range of sexual acts with both victims, used manipulation and a degree of planning, and the offending was sustained rather than isolated. The court found the four Form 1 offences added to the gravity of the overall conduct.

The court accepted that the offender's actuarial risk assessment rated him as low risk of sexual recidivism, but rejected the proposition that his actual risk of reoffending was correspondingly low. His prospects of rehabilitation were described as guarded. Victim impact statements were tendered and considered; both victims had suffered serious psychological consequences.

The early guilty plea attracted a 25% discount on sentence. The offender had a prior criminal record but no history of sexual offending. The court declined to find any special circumstances warranting an adjustment to the standard ratio between non-parole period and parole, except as required by the structure of the aggregate and accumulated sentences.

Tupman DCJ structured the sentence in two parts: an aggregate sentence under s 53A for the offences involving TL, and a separate sentence for the s 66EA offence involving KT, with partial accumulation between them. Full accumulation was rejected as producing a total that was disproportionate; the court settled on an overall effective term of 12 years with an 8-year non-parole period. The court also indicated its intention to refer the sentencing judgment to the relevant governmental welfare authorities, given the apparent failures of oversight that preceded and continued during the period of offending.

Orders Made

  • The offender was convicted on all three substantive offences.
  • Offences involving TL: Aggregate sentence of 7 years imprisonment, commencing 16 May 2019 and expiring 15 May 2026, with a non-parole period of 4 years and 9 months, expiring 15 February 2024.
  • Indicative sentence for Sequence 11 (aggravated indecent assault): 3 years, non-parole period of 2 years.
  • Indicative sentence for Sequence 8 (aggravated sexual assault): 6 years, non-parole period of 4 years.
  • Form 1 offences taken into account.
  • Offence involving KT (s 66EA): 9 years imprisonment, commencing 16 May 2022 and expiring 15 May 2031, with a non-parole period of 5 years, commencing 16 May 2022 and expiring 15 May 2027, followed by parole of 4 years expiring 15 May 2031.
  • The overall effective sentence was 12 years with a non-parole period of 8 years.
  • The court indicated the judgment would be referred to the appropriate governmental welfare authorities.

Key Takeaways

  • The District Court treated offences in the middle of the objective range of seriousness as warranting substantial terms even where an early guilty plea attracted a 25% discount, reflecting the gravity of sustained sexual abuse of very young children by a parent in a position of trust.
  • A forensic psychological risk assessment placing an offender in the "low" actuarial category does not automatically translate to a finding that the real risk of reoffending is low; the sentencing court retained the discretion to characterise the true risk differently on all the evidence.
  • Under s 53A of the Crimes (Sentencing Procedure) Act 1999, an aggregate sentence can be imposed for multiple offences against one victim, with indicative sentences recorded for each count, allowing the court to then partially accumulate that aggregate against a separate sentence for offences involving a second victim.
  • Partial accumulation, rather than full accumulation or full concurrence, remained available as a tool to achieve a total sentence that was proportionate and not crushing, consistent with established sentencing principle.
  • The decision illustrates that a sentencing court may take steps beyond the immediate sentence, including referring findings to welfare authorities, where the circumstances disclose systemic failures in the protection of child victims.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 61J(1) (aggravated sexual assault, child under 16), 61M(2) (aggravated indecent assault, person under 16), 66EA (maintaining unlawful sexual relationship with child under 16)
- Crimes (Sentencing Procedure) Act 1999 (NSW): s 53A (aggregate sentencing)

Cases:
- R v VJW (2000) 112 ACrimR 1