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District Court 27 July 2021

R v NRB

[2021] NSWDC 348

Sexual offences
CRIME SENTENCE LATE PLEA LACK OF CRIMINAL RECORD GENERAL DETERRENCE

Citation: R v NRB [2021] NSWDC 348
Court: District Court of New South Wales
Date: 27 July 2021
Judge: Lerve DCJ

Background

The offender, a 70-year-old man with no prior criminal history, pleaded guilty to three charges of committing or inciting acts of indecency toward two children, both under the age of 10, contrary to s 61O(2) of the Crimes Act 1900. The offender had been married to the children's grandmother and held a supervisory role in their lives. The offending occurred on separate occasions between 2008 and 2011 in rural New South Wales.

The first two counts involved the offender exposing and masturbating in front of a male child (PD) during a fishing trip and while driving a school bus, respectively. The third count involved the offender exposing his genitals to a female child (CD) and verbally inciting her to touch them, to which she refused. The matter was subject to suppression orders preventing publication of the victims' names or any information that might identify them, including the offender's name given his familial connection to the victims.

The pleas were entered late on 29 January 2021 under the Early Appropriate Guilty Plea (EAGP) scheme. The parties agreed a 10% discount applied for the utilitarian value of the guilty pleas, which the court accepted.

  • What was the appropriate sentencing range for each count of child indecency, having regard to the nature and circumstances of the offending?
  • What weight, if any, should be given to the offender's absence of prior criminal history given the nature of the offences?
  • Whether the custody threshold was crossed and, if so, what aggregate sentence was appropriate.
  • Whether special circumstances existed to justify a non-parole period significantly below the statutory default ratio of one-third of the total sentence.

Decision

Objective seriousness. Lerve DCJ assessed each count individually. Count 1 (masturbation in front of PD at a fishing spot, with the offender persisting after an interruption) was assessed as slightly below mid-range. Count 2 (masturbation to ejaculation in the school bus, lasting four to five minutes) was assessed as toward the upper end of the mid-range. Count 3 (exposing genitals to CD and verbally inciting her to touch them) was assessed as within the mid-range. The court found that an abuse of a position of trust was established as a statutory aggravating factor under s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999. The court accepted the Crown's concession that it could not prove beyond reasonable doubt that either victim was younger than nine years of age at the relevant times, treating the offending as toward the upper end of the age range under the section.

Good character and the custody threshold. The offender's lack of any prior criminal record was a mitigating factor, but the court, applying principles from Ryan v The Queen [2001] HCA 21, held that such a factor carries reduced weight in cases involving sexual offending against children. The court found that some leniency for good character remained available but its weight was diminished. After careful consideration, Lerve DCJ concluded that the custody threshold was crossed, particularly having regard to the criminality in counts 2 and 3, noting that count 1 in isolation might not have crossed that threshold.

Aggregate sentence and special circumstances. An aggregate sentence was imposed rather than individual consecutive sentences, with the court setting out the notional individual sentences for transparency (5 months, 16 months, and 13 months respectively). The court found that the offender's age of 70, state of physical health, and the fact that this would be his first period in custody collectively justified a generous finding of special circumstances. This resulted in a non-parole period set at 50% of the total sentence, a ratio the court acknowledged was unusual and required justification by reference to R v Boney [2008] NSWCCA 313.

Orders Made

  • The offender was convicted on all three counts.
  • An aggregate sentence of 2 years imprisonment was imposed.
  • Non-parole period of 12 months, commencing 27 July 2021 and expiring 26 July 2022.
  • Parole period commencing 27 July 2022 and expiring 26 July 2023.
  • The offender is to be released to statutory parole upon expiration of the non-parole period.

Key Takeaways

  • A prior record free of convictions does not, of itself, attract significant leniency in cases of sexual offending against children, though it remains a factor to which some weight must be given, as confirmed by the High Court in Ryan v The Queen.
  • Where an offender commits multiple acts of indecency against different victims on separate occasions, partial accumulation of individual sentences is appropriate to reflect the distinct criminality involved.
  • A non-parole period set at 50% of the total sentence (rather than the default one-third under s 44 of the Crimes (Sentencing Procedure) Act 1999) requires specific justification. Here, the offender's age, physical health, and the fact that imprisonment would be a first-time experience collectively supported that outcome.
  • The statutory aggravating factor of abuse of trust under s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 applied where the offender held a supervisory and familial relationship with the victims.
  • Under s 61O(2) of the Crimes Act 1900, the younger the child victim, the more serious the offence. Where an indictment pleads a date range, the court must sentence on the basis most favourable to the offender in respect of the victim's age.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61O(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(k), 44

Cases
- Ryan v The Queen [2001] HCA 21; 206 CLR 267
- R v Boney [2008] NSWCCA 313
- ARC v R (unrep, NSWCCA, 28 August 1996)
- Chamseddine v R [2017] NSWCCA 176
- Hornardt v R [2017] NSWCCA 186
- Imbornone v R [2017] NSWCCA 44
- MC v R [2017] NSWCCA 316
- R v Burchell (1987) 34 A Crim R 148
- R v Donald [2013] NSWCCA 238
- R v Muldoon (unrep, NSWCCA, 13 December 1990)
- R v Tuala [2015] NSWCCA 8
- R v TWP [2006] NSWCCA 141
- R v Van Ryn [2016] NSWCCA 1
- Zrieka v R (2012) 223 A Crim R 460