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District Court 19 March 2021

R v H

[2021] NSWDC 107

Sexual offences
CRIMINAL LAW CHILD SEX OFFENCE AGGRAVATING FACTORS MITIGATING FACTORS OFFENDER’S ACTIONS NOT PLANNED OFFENDER WAS OF PRIOR GOOD CHARACTER

Citation: R v H [2021] NSWDC 107
Court: District Court of New South Wales
Date: 19 March 2021
Judge: Hatzistergos DCJ

Background

Following a four-day trial, the offender was convicted on 4 December 2020 of one count of aggravated sexual assault under s 61J(2)(d) of the Crimes Act 1900 (NSW). The offending occurred on or about 1 August 2016 at Taree, when the offender was 21 years old and the victim was 11 years old. The offender was a half-brother of the victim's mother and had been asked to stay at the family home to care for the victim while her mother travelled overseas.

On the night before the victim was due to leave for a school trip to Canberra, the offender and the victim were sleeping on a mattress in the lounge room. After the victim fell asleep, the offender placed his hand inside her pants and briefly inserted a finger between the lips of her vagina. The victim woke and left the room. There was no violence, threats, or further contact.

The matter was adjourned after verdict to permit the preparation of psychological and sentence assessment reports. At the sentencing hearing on 5 March 2021, the court received a sentence assessment report from a Community Corrections Officer, a psychological report from a senior psychologist at North Coast Corrective Services NSW, and a forensic psychology report tendered by the defence.

  • What was the appropriate level of objective seriousness for the offence, having regard to the circumstances of the assault and the applicable statutory aggravating factors?
  • What weight should be given to the offender's significantly deprived background, including his history of abuse and removal from parental care, under the principles in Bugmy v The Queen?
  • Whether, and to what extent, departure from the standard non-parole period of 10 years was warranted?
  • Whether special circumstances existed justifying an adjustment to the ratio between the non-parole period and the total sentence?

Decision

Objective seriousness: The court found the offending fell towards the lower end of the range of objective seriousness. The assault involved a brief period of digital penetration, with no violence, threats, or additional degradation. The court noted two statutory aggravating factors: the victim was under the offender's authority (s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999), and the offending occurred in the victim's home (s 21A(2)(eb)). The court also observed that the victim's age of 11 years was significantly below the statutory threshold of under 16 years in s 61J(2)(d), and that the offender was a decade older than the victim. The court accepted that the offender's actions were impulsive and unplanned, a mitigating factor under s 21A(3)(b).

Subjective factors and Bugmy: The offender had no prior convictions and was of prior good character at the time of the offending. His background was one of significant disadvantage: he was removed from his biological parents at age eight due to abuse, placed into foster care, subjected to physical assaults by a foster sibling, experienced learning difficulties, and had lived in unstable and transient accommodation from his mid-teens. The offender also reported being sexually abused by his own father, who was later imprisoned for sexual offences. The court applied the principles in Bugmy v The Queen (2013) 249 CLR 571, recognising that profound deprivation in childhood can reduce the weight given to general deterrence as a sentencing consideration, without diminishing the objective gravity of the crime itself.

Risk assessment and re-offending: Psychological evidence assessed the offender as posing a medium-high risk of re-offending. The court took this into account in its overall assessment, alongside the need for rehabilitation and the offender's capacity for change.

Departure from the standard non-parole period: The maximum penalty for the offence is 20 years imprisonment, with a standard non-parole period of 10 years for mid-range offending. Because the court found the objective seriousness to fall towards the lower end of the range, and in light of the significant subjective matters, the court departed downward from the standard non-parole period. The court also found special circumstances justifying a greater than usual proportion of the sentence being served on parole, to facilitate rehabilitation and supervision upon release.

Orders Made

  • The offender was convicted of one count of aggravated sexual assault contrary to s 61J(2)(d) of the Crimes Act 1900 (NSW).
  • Sentenced to a non-parole period of two years, commencing 29 April 2019 and expiring 28 April 2021.
  • An additional parole-eligible period of one year and nine months to follow, from 29 April 2021 to 28 January 2023.
  • Earliest possible release date: 28 April 2021.

Key Takeaways

  • The District Court confirmed that a victim's age being significantly below the statutory threshold in s 61J(2)(d) of the Crimes Act 1900 is a relevant aggravating consideration when assessing objective seriousness, even where the offending is otherwise found to fall at the lower end of the range.
  • Under Bugmy v The Queen, a sentencing court may reduce the weight given to general deterrence where an offender has experienced severe childhood deprivation and abuse, though this does not diminish the seriousness of the harm caused to the victim.
  • Departure from the standard non-parole period is available where objective seriousness falls below the mid-range, with the standard non-parole period functioning as a legislative guidepost rather than a fixed starting point, consistent with Muldrock v The Queen (2011) 244 CLR 120.
  • Impulsivity and lack of planning were treated as mitigating factors under s 21A(3)(b) of the Crimes (Sentencing Procedure) Act 1999, notwithstanding the presence of several statutory aggravating factors including the victim being under the offender's authority and the offending occurring in the victim's home.
  • A finding of medium-high risk of re-offending does not necessarily displace the mitigating weight of other subjective factors, but bears on the purposes of sentencing, particularly the protection of the community and the need for extended post-release supervision.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61J (aggravated sexual assault)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A

Cases
- Bugmy v The Queen (2013) 249 CLR 571
- Muldrock v The Queen (2011) 244 CLR 120
- R v PGM [2008] NSWCCA 172
- Ellis v R [2020] NSWCCA 303