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District Court 9 July 2021

R v CA

[2021] NSWDC 407

Sexual offences

Citation: R v CA [2021] NSWDC 407
Court: District Court of New South Wales
Date: 9 July 2021
Judge: Buscombe DCJ

Background

The offender was convicted by jury of seven sexual offences committed against three young boys in the early to mid-1980s at a surf lifesaving club in Bronte, NSW. The victims were members of the club's junior training program, and the offender held roles connected to the club's inflatable rescue boat operations. The offences included multiple counts of sexual intercourse without consent and acts of indecency, all involving victims under 16 years of age.

This sentencing proceeding followed a re-trial. The offender had successfully appealed an earlier conviction involving a broader set of complainants. After two separate re-trials before the same judge, the offender was acquitted of all charges relating to other complainants, but convicted on the seven counts relating to the three victims named in this proceeding. The jury also returned not guilty verdicts on four charges relating to two of those same three victims.

A central factual complication was determining the offender's age at the time of each offence, given that his 18th birthday fell within the window during which some of the offending may have occurred. His date of birth was 7 August 1967, meaning he turned 18 in August 1985.

  • What facts could be established beyond reasonable doubt consistent with the jury's verdicts, in circumstances where the offences occurred decades earlier and victim evidence was imprecise as to timing?
  • Whether the offender was a juvenile or an adult at the time of the offences, and what consequences that determination had for sentencing.
  • How to aggregate sentences appropriately for multiple historical offences against multiple victims, committed under the then-applicable provisions of the Crimes Act 1900 (NSW).
  • Whether a non-publication order over the offender's name should be maintained, having regard to the Children (Criminal Proceedings) Act 1987 (NSW) s 15A.

Decision

Factual findings: Buscombe DCJ approached the fact-finding task on the standard that any adverse finding required proof beyond reasonable doubt. The judge accepted the evidence of each victim in relation to the counts on which the jury returned guilty verdicts. Where the evidence was imprecise, such as DB's inability to specify the year the offences occurred, the court declined to draw inferences adverse to the offender. For example, the court could not be satisfied the offender ejaculated during the first offence against DB, or that another boy was present.

Offender's age at time of offending: The court found it could not be satisfied beyond reasonable doubt that the offender was 18 years of age when he committed the offences against DB. The sister's evidence about the timing of DB's disclosure was insufficiently definitive, and DB himself did not specify when the offences occurred relative to 7 August 1985. Accordingly, the court found the offender was 16 or 17 years old at the time of the offences against DB. The position regarding the offender's age at the time of the offences against RC and MW was also considered within the relevant date ranges established by the evidence.

Sentencing approach: The court sentenced the offender under the legislation applicable at the time of the offences, consistent with the principle that an offender cannot be sentenced under provisions not in force when the offending occurred. The court recorded individual indicative sentences for each count and then imposed an aggregate sentence, reflecting the totality principle. The sentencing court took into account that the offender was a juvenile at the time of much of the offending, the absence of violence beyond the offences themselves, and the serious breach of trust involved in offending against young club members.

Non-publication order: The court initially revoked the non-publication order over the offender's name, but subsequently reconsidered and reinstated it having regard to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), given the offender's status as a juvenile at the time of the offences.

Orders Made

  • Conviction recorded on all seven counts of which the offender was found guilty by jury.
  • Indicative sentence on count 4 (sexual intercourse with DB without consent): 2 years imprisonment.
  • Indicative sentence on count 5 (sexual intercourse with DB without consent): 2 years imprisonment.
  • Indicative sentence on count 6 (sexual intercourse with DB without consent): 2 years and 6 months imprisonment.
  • Indicative sentence on count 8 (indecent assault of RC): 16 months imprisonment.
  • Indicative sentence on count 9 (sexual intercourse with RC without consent): 3 years imprisonment.
  • Aggregate sentence of 5 years imprisonment with an aggregate non-parole period of 2 years and 6 months, commencing 9 April 2019 and expiring 8 April 2024, with the non-parole period expiring 8 October 2021.
  • Non-publication order over the offender's name reinstated pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW).

Key Takeaways

  • Where an offender's age at the time of historical offending is disputed, the court must be satisfied beyond reasonable doubt of any adverse finding, including a finding that the offender had reached adulthood at the relevant time.
  • A sentencing court applying historical offences must sentence under the legislation in force at the time of the offending, not under more recent provisions.
  • The totality principle requires that an aggregate sentence across multiple counts against multiple victims reflect the overall criminality without producing a crushing result, even where the individual offences are serious.
  • Under s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), a non-publication order over an offender's name may be warranted even in adult criminal proceedings where the offender was a juvenile at the time the relevant conduct occurred.
  • In sentence proceedings after trial, the court finds facts consistent with the jury's verdicts, and acquittals on related counts constrain the findings that can properly be made adverse to the offender.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) ss 61D, 61E
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 25AA
- Children (Criminal Proceedings) Act 1987 (NSW) s 15A

Cases:
- R v MJR [2002] NSWCCA 129
- Pearce v The Queen [1998] HCA 57
- Corliss v R [2020] NSWCA 65
- R v Cattell [2019] NSWCCA 297
- R v Gilmore (1979) 1 A Crim R 416
- R v Bedford (1985) 5 NSWLR 711
- R H McL v The Queen [2000] HCA 46
- Tarrant v R [2007] NSWCCA 124
- R v MM [2002] NSWCCA 431