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District Court 21 May 2021

R v A

[2021] NSWDC 232

Sexual offences
CRIMINAL LAW CHILD SEX OFFENCE A GGRAVATING FACTORS M ITIGATING FACTORS N O PRIOR CONVICTIONS PRIOR GOOD CHARACTER

Citation: R v A [2021] NSWDC 232
Court: District Court of New South Wales
Date: 21 May 2021
Judge(s): Hatzistergos DCJ

Background

The offender, a man born in 1960, was found guilty by jury of one count of maintaining an unlawful sexual relationship with a child contrary to s 66EA(1) of the Crimes Act 1900 (NSW). The victim was his great-niece, born in 2003, who came into his orbit when she and her siblings moved to Taree in June 2015 to live with their maternal aunt. The offender had regular access to the family home and began training the victim in martial arts.

The offending took place between June 2015 and November 2018, when the victim was aged 11 to 15. The offender would collect her on Sundays under the guise of martial arts training and drive her to a remote site within Khappinghat National Park. The foundational acts underlying the maintained relationship charge included multiple instances of penile-vaginal sexual intercourse, indecent touching, and a final assault with intent to have sexual intercourse. The first act occurred when the victim was 11 years old; the offender threatened to kill and kidnap her if she disclosed the abuse.

The matter came before the District Court for sentencing following a six-day trial. The offender maintained his denial of the offending throughout. Both parties lodged supplementary written submissions, and the sentencing hearing was adjourned on several occasions before sentence was delivered on 21 May 2021.

  • Whether the NSW offence of maintaining an unlawful sexual relationship under s 66EA of the Crimes Act 1900 (NSW) is to be interpreted in the same manner as the equivalent South Australian provision (s 50 of the Criminal Law Consolidation Act 1935 (SA)) as construed in Chiro v R [2017] HCA 37, and in particular whether a single foundational act is sufficient.
  • How to identify and apply the aggravating and mitigating factors relevant to sentencing for this offence.
  • Whether the principles in Bugmy v R [2013] HCA 37 and R v Fernando applied to reduce the offender's moral culpability having regard to his background.
  • Whether special circumstances existed under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) warranting a variation of the statutory ratio between non-parole period and head sentence.
  • How to take into account that the offender's time in custody would be more onerous given his mental and physical health.

Decision

Interpretation of s 66EA versus the South Australian equivalent. The court distinguished s 66EA of the NSW Act from s 50 of the South Australian Criminal Law Consolidation Act 1935 as interpreted in Chiro v R [2017] HCA 37. The High Court in Chiro had held that the South Australian offence required only a single unlawful sexual act. Hatzistergos DCJ found that the NSW provision operates differently, drawing on the Court of Criminal Appeal's analysis in Burr v R [2020] NSWCCA 282 and ARS v R [2011] NSWCCA 266. Under s 66EA, the offence requires the maintenance of a relationship constituted by a continuing pattern of conduct, not merely a single act.

Aggravating factors. The court identified several significant aggravating circumstances. These included the offender's position of trust and familial authority over the victim, the vulnerability of the victim as a young child, the prolonged nature of the offending spanning over three years, the use of threats of violence and death to secure silence, and the remote and isolated location in which the offences were committed. The offending began when the victim was 11 years old and the first act was accompanied by explicit threats to kill and kidnap her.

Mitigating factors and Bugmy principles. The court accepted that the offender had no prior criminal history and was previously of good character. Applying the principles in Bugmy v R and R v Fernando, Hatzistergos DCJ found that the offender's background warranted some reduction in his assessed moral culpability, though the court did not treat this as substantially diminishing the seriousness of the offending. The court also accepted that the offender's physical and mental health meant his time in custody would be more onerous than for a person in ordinary health.

Special circumstances and rehabilitation. The court found special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), warranting a longer-than-statutory parole period. The court identified two bases: the offender's health conditions and his favourable prospects of rehabilitation. Notably, the court reached this conclusion notwithstanding the offender's continued denial of the offending, concluding that the risk of reoffending was low and prospects of rehabilitation were genuinely positive.

Orders Made

• The Offender is convicted and sentenced to 7 years imprisonment commencing 18 September 2020 and expiring on 17 September 2027
• An additional term of 5 years to be served from 18 September 2027 to 17 September 2032 during which the Offender shall be eligible to be released to parole
• The Offender's earliest possible release date is 17 September 2027

Key Takeaways

  • Section 66EA of the Crimes Act 1900 (NSW) requires a continuing pattern of conduct constituting the maintenance of an unlawful sexual relationship, and is distinguishable from the South Australian offence considered by the High Court in Chiro v R [2017] HCA 37, which required only a single foundational act.
  • An offender's position of familial trust and authority, the vulnerability of the victim, the use of threats to secure compliance, and the prolonged nature of the abuse are all significant aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • The principles in Bugmy v R [2013] HCA 37 and R v Fernando (1992) may apply to reduce an offender's assessed moral culpability in child sexual offence sentencing, even where the offending itself is serious.
  • Special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) can be established by reference to an offender's health conditions and prospects of rehabilitation, even where the offender continues to deny the offending.
  • Ongoing denial of guilt does not, of itself, preclude a finding of good rehabilitation prospects or a finding of special circumstances in sentencing.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66EA, 66C, 61M, 66D
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 30, 44
- Criminal Law Consolidation Act 1935 (SA), s 50

Cases
- Chiro v R [2017] HCA 37; (2017) 260 CLR 425
- Bugmy v R [2013] HCA 37; 249 CLR 571
- KMC v Director of Public Prosecutions (SA) [2020] HCA 6
- Burr v R [2020] NSWCCA 282
- ARS v R [2011] NSWCCA 266
- R v Fernando (1992) 76 A Crim R 58
- R v Fitzgerald (2004) 59 NSWLR 493
- R v D [1997] SASC 6350
- R v Kennedy [2000] NSWCCA 527
- R v KLN (2005) 154 A Crim R 268
- Corby v R [2010] NSWCCA 146
- R v Perkins [2018] NSWCCA 62
- Judge v R [2018] NSWCCA 203
- R v Millwood [2012] NSWCCA 2
- Alseedi v R [2009] NSWCCA 185
- Ali v R [2010] NSWCCA 35
- Qutecher v the Queen [2010] NSWCCA 257
- Park v R [2010] NSWCCA 151
- MLP v R [2014] NSWCCA 183