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District Court 26 May 2021

R v Hampden (a pseudonym)

[2021] NSWDC 195

Sexual offences
CRIME SENTENCE INTENTIONALLY SEXUALLY TOUCHING A CHILD

Citation: R v Hampden (a pseudonym) [2021] NSWDC 195
Court: District Court of New South Wales
Date: 26 May 2021
Judge: Colefax SC DCJ

Background

The offender, referred to by the pseudonym "Hampden", appeared for sentencing in relation to nine principal offences committed against two child victims: his daughter, Kathleen (a pseudonym, aged 12), and his niece, Ella (a pseudonym, aged 13). Both children lived in the offender's Sydney home at the time of the offending, which occurred between approximately February and June 2020. The offender was 40 years old.

The offending against Kathleen involved entering her bedroom on separate occasions while she was sleeping or in bed, and sexually touching her. The offending against Ella was significantly more serious and occurred over a single night, involving repeated digital penetration, sexual touching, and threats to commit further acts. The court also received evidence of prior uncharged conduct against both victims, placed before the court as contextual material rather than as additional charges.

Four matters involving intentional sexual touching were also placed before the court on a Form 1, to be taken into account on sentencing rather than prosecuted as separate counts.

  • The appropriate sentence for four counts of aggravated sexual assault with a victim under 16 (s 61J, Crimes Act 1900 (NSW)), each carrying a maximum of 20 years and a standard non-parole period of 10 years
  • The appropriate sentence for four counts of intentionally sexually touching a child (s 66DB(a), Crimes Act 1900 (NSW)), each carrying a maximum of 10 years with no standard non-parole period
  • The appropriate sentence for one count of inciting the commission of aggravated sexual assault with a victim under 16 (ss 61J and 80G, Crimes Act 1900 (NSW)), carrying a maximum of 20 years and a standard non-parole period of 10 years
  • The applicable discount for early guilty pleas
  • Whether special circumstances existed to vary the standard ratio between the head sentence and the non-parole period
  • The appropriate aggregate sentence after applying the totality principle

Decision

The court assessed each offence individually, setting indicative sentences before applying a 25 per cent discount for early guilty pleas. The most serious offence was sequence 5, the second aggravated sexual assault against Ella, which also carried four Form 1 matters. The indicative sentence for that count, after discount, was 7 years and 1 month, with an indicative non-parole period of 5 years and 3 months.

The court noted the contextual significance of uncharged prior conduct against both victims. That conduct precluded the offender from characterising the charged offences as isolated incidents. The court also observed that the offender's cross-examination responses demonstrated either evasiveness or a concerning lack of insight into the criminality of his behaviour.

After applying the totality principle to the nine principal offences and the Form 1 matters, the court determined an aggregate sentence of 12 years imprisonment. The court declined to find special circumstances warranting a variation of the standard non-parole period ratio, noting that the resulting parole period would be sufficient to support rehabilitation.

Orders Made

  • Aggregate term of imprisonment of 12 years imposed for the nine principal offences
  • Non-parole period of 9 years, commencing 22 May 2020 and expiring 21 May 2029
  • Balance of term of 3 years, commencing 22 May 2029 and expiring 21 May 2032

Key Takeaways

  • The District Court applied a 25 per cent discount across all indicative sentences in recognition of early guilty pleas, consistent with established sentencing principles.
  • Uncharged prior conduct placed before the court as contextual material served a defined purpose: it prevented the offender from characterising the principal offences as isolated acts, without exposing him to punishment for that conduct directly.
  • Under the totality principle, the court aggregated nine indicative sentences into a single 12-year term rather than accumulating each sentence in full, reflecting the requirement that the overall sentence remain proportionate to the totality of the offending.
  • No special circumstances were found to justify departing from the standard ratio between the head sentence and the non-parole period; the court was satisfied the parole period produced by the standard ratio was adequate to address rehabilitation.
  • Where an offender's cross-examination responses suggest evasiveness or a lack of insight into serious sexual offending, the sentencing court may treat that as a relevant consideration going to the weight of subjective factors.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 61J (aggravated sexual assault), 66DB(a) (intentionally sexually touching a child), 80G (incitement)

Cases
- Taylor v R (1978) 45 FLR 343
- WC v R [2016] NSWCCA 173