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District Court 24 June 2021

R v NK

[2021] NSWDC 275

Sexual offences

Citation: R v NK [2021] NSWDC 275
Court: District Court of New South Wales
Date: 24 June 2021
Judge(s): Mahony SC DCJ

Background

The offender was the de facto stepfather of the victim, a girl who was aged 13 to 14 at the time of the offending. He had lived with the victim's mother and her two daughters since 2015, and was responsible for getting the children ready for school on mornings when the mother left early for work. He held a position of authority within the household as the children's stepfather.

A jury found the offender guilty of maintaining an unlawful sexual relationship with the victim contrary to section 66EA of the Crimes Act 1900. The offending involved a pattern of sexual misconduct that began with grooming and escalated over a period of approximately six months to digital penetration, cunnilingus, and ultimately penile-vaginal intercourse on 17 June 2019. The offender denied all allegations throughout the proceedings and maintained that the charges were fabricated.

The sentence hearing raised a significant preliminary question about which maximum penalty applied, given that the offence charged spanned both the old and new versions of section 66EA, with the maximum penalty having increased from 25 years to life imprisonment on 1 December 2018.

Legal Issues

  • Which maximum penalty applies where the offending charged straddles the commencement date of an amended provision that increased the maximum penalty from 25 years to life imprisonment?
  • What is the objective seriousness of the offending for the purposes of sentencing under section 66EA?
  • What weight should be given to the offender's good character, lack of prior convictions, and other subjective factors?
  • Whether special circumstances existed justifying a variation of the statutory ratio between head sentence and non-parole period?

Decision

Issue 1: Applicable Maximum Penalty

The court identified a conflict between two District Court decisions on this question. In R v TH [2019] NSWDC 793, Bennett DCJ held that the maximum penalty applicable at the time of the misconduct should govern. In R v Jarvis [2020] NSWDC 396, Haesler DCJ concluded the applicable maximum was life imprisonment. His Honour agreed with Haesler DCJ's approach (at [80]).

His Honour was satisfied beyond reasonable doubt that the actual sexual misconduct commenced after 1 December 2018, the date the amended section commenced (at [77]). Prior to that date, the offender had engaged in grooming conduct on 10 to 20 occasions, but that conduct did not constitute the unlawful sexual acts forming the basis of the offence (at [77]). Because the misconduct forming the substance of the offence occurred after the amendment, the applicable maximum penalty was life imprisonment (at [80]-[82]).

Issue 2: Objective Seriousness

The court assessed the offending as falling below the mid-range of objective seriousness for an offence under section 66EA, and in the upper end of the low range, while noting it still constituted very serious offending (at [84]). The court took into account the duration of approximately six months, the significant age disparity, the escalating nature of the conduct, the offender's position of authority as stepfather, the location of all offending in the victim's home, and the presence of aggravating statutory factors (at [84]-[85]). The court accepted that the victim's Victim Impact Statement, which described the victim feeling extremely depressed, suicidal, isolated, and controlled, was a further example of the profound psychological harm caused by child sexual offending, though the absence of supporting medical evidence meant it was not used to increase the offender's moral culpability (at [89]-[91]).

Issue 3: Subjective Factors and Good Character

The court accepted that the offender's prior good character, established through character evidence at trial and testimonials tendered at sentence, was a mitigating factor. However, the court held that given the nature and circumstances of the offence, good character could only be a small factor in the overall sentencing assessment (at [86]). The court was not satisfied beyond reasonable doubt that good character was of assistance in committing the offence, so section 21A(5A) of the Crimes (Sentencing Procedure) Act 1999 was not engaged (at [86]). The court found reasonable prospects of rehabilitation and a low risk of recidivism, notwithstanding the offender's continued denial (at [92]). The court accepted that general and specific deterrence both remained important sentencing considerations (at [87]-[88]).

Issue 4: Special Circumstances

The court found special circumstances pursuant to section 44(2) of the Crimes (Sentencing Procedure) Act 1999, warranting a variation of the statutory ratio between head sentence and non-parole period (at [94]). The factors supporting that finding were the offender's first time in custody, restrictions arising from the COVID-19 pandemic including limitations on visiting and access to programs, the offender's interstate family who could not regularly visit, and his placement in protective custody (at [94]).

Orders Made

  • The offender was sentenced to a total term of 8 years imprisonment.
  • Non-parole period of 4 years and 6 months, commencing 11 August 2020 and terminating 10 February 2025.
  • Balance of term of 3 years and 6 months, commencing 10 February 2025 and ending 10 August 2028.

Key Takeaways

  • Where the substantive sexual misconduct forming the basis of a section 66EA charge occurs after 1 December 2018, the applicable maximum penalty is life imprisonment, even where prior grooming conduct occurred before that date. The District Court applied this reasoning despite an earlier conflicting District Court decision (at [80]-[82]).

  • Grooming conduct occurring before the commencement of the amended section 66EA did not bring the commencement of the offence within the pre-amendment maximum penalty period, because grooming conduct was distinct from the unlawful sexual acts constituting the relationship (at [77]).

  • Good character carries reduced weight in child sexual offence sentencing. Consistent with Ryan v The Queen and R v PGM, the court treated the offender's prior good character as a small mitigating factor only, given the nature and circumstances of the offending (at [86]).

  • A Victim Impact Statement unsupported by medical evidence may still be taken into account as illustrative of the psychological harm caused by child sexual offending, but the court will not use it to increase the offender's moral culpability in those circumstances (at [91]).

  • Special circumstances justifying a variation to the statutory non-parole period ratio may arise from a combination of first-time custody, COVID-19 related custodial hardship, absence of family support due to interstate residence, and the need for extended supervision on release (at [94]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999

Cases
- Burr v R [2020] NSWCCA 282
- DPP v Hersi [2020] VCC 347
- Hillman v R [2021] NSWCCA 43
- Jonson v R [2016] NSWCCA 286
- MRW v R [2011] NSWCCA 260
- R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56
- R v Kenny [2010] NSWCCA 6
- R v MJR (2002) 130 A Crim R 481; [2002] NSWCCA 129
- R v O’Toole (No 5) [2021] NSWDC 64
- R v PGM (2008) 187 A Crim R 152; [2008] NSWCCA 172
- R v Tangi (No 12) [2020] NSWSC 547
- R v TH [2019] NSWDC 793
- Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21
- Valentine v R [2020] NSWCCA 116