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District Court 10 September 2021

R v Bradshaw (a pseudonym)

[2021] NSWDC 476

Sexual offences
CRIME SENTENCE

Citation: R v Bradshaw (a pseudonym) [2021] NSWDC 476
Court: District Court of New South Wales
Date: 10 September 2021
Judge: Colefax SC DCJ

Background

The offender, referred to by the pseudonym "Bradshaw," appeared for sentence on two counts of maintaining an unlawful sexual relationship with a child, contrary to s 66EA(1) of the Crimes Act 1900 (NSW). Each count involved a different victim. Both victims were his granddaughters, referred to in the judgment by the pseudonyms "Ruby" and "Alice."

The first offence (sequence 7) involved Ruby, and occurred between January 2014 and August 2017 when she was aged between 7 and 10 years. The offending included touching, digital penetration, and the performance of cunnilingus, often preceded by the offender showing Ruby pornography. The second offence (sequence 4) involved Alice, and occurred between January 2016 and February 2020 when she was aged between 5 and 9 years. The offending against Alice followed a similar pattern. In both cases, the offender made threats designed to prevent disclosure.

The offender was 62 years old when the offending against Ruby commenced and 64 when the offending against Alice commenced. He had no prior criminal record and pleaded guilty at the first available opportunity. His subjective circumstances were described by the court as supported by only "very minimalistic" material, noting notably the absence of any expert psychological or psychiatric report.

  • What aggregate sentence was appropriate for two counts of maintaining an unlawful sexual relationship with a child, each carrying a maximum penalty of life imprisonment?
  • How should the sentencing court account for the retrospective legislative amendments to s 66EA(1), including the increased maximum penalty and the reduction in the required number of foundational acts?
  • What weight should be given to the early guilty pleas, the offender's age, his lack of prior convictions, the absence of expert evidence, and his expressed (but unsworn) remorse?
  • Whether special circumstances existed to justify varying the statutory ratio between the non-parole period and the head sentence.

Decision

The court sentenced the offender to an aggregate term of 12 years' imprisonment, with a non-parole period of 9 years backdated to the date of arrest on 13 February 2020. The balance of parole was fixed at 3 years, expiring on 12 February 2032.

In arriving at the indicative sentences underpinning the aggregate, the court applied a 25 per cent discount to each count for the utilitarian value of the early guilty pleas. Before discount, the indicative sentence for sequence 7 (Ruby) was 10 years; after discount, 7 years and 6 months. For sequence 4 (Alice), the pre-discount indicative sentence was 8 years and 6 months; after discount, 6 years and 4 months.

The court declined to find special circumstances to vary the statutory non-parole ratio. The court was not satisfied that the offender's physical disabilities could not be adequately managed in custody, that his current remand conditions would persist after sentence, or that his status as a first-time prisoner was sufficient, of itself, to enliven that finding. The court also expressed scepticism about the sincerity of the offender's remorse, given that it was conveyed only through the affidavits of family members rather than by sworn evidence from the offender himself.

The court noted the absence of any expert report with some significance. Family evidence suggested possible mental health changes in the period coinciding with the offending, and the court remarked that expert evidence might have assisted in understanding the offending and assessing rehabilitation prospects. In the circumstances, the court assessed rehabilitation prospects as "guarded" and found that a longer parole period would not enhance them. Both general and specific deterrence were identified as fully engaged, with the court observing that the Court of Criminal Appeal has consistently held that sexual offences against young children must be severely punished.

Orders Made

  • Aggregate term of imprisonment of 12 years imposed for the two offences of persistent sexual abuse of a child.
  • Non-parole period of 9 years fixed, commencing 13 February 2020 and expiring 12 February 2029.
  • Balance of term of 3 years fixed, commencing 13 February 2029 and expiring 12 February 2032.
  • Indicative sentence for sequence 7 (Ruby): 7 years 6 months (after 25% guilty plea discount from 10 years).
  • Indicative sentence for sequence 4 (Alice): 6 years 4 months (after 25% guilty plea discount from 8 years 6 months).
  • No finding of special circumstances made.

Key Takeaways

  • The District Court confirmed that the 2018 amendments to s 66EA(1), which increased the maximum penalty from 25 years to life imprisonment and reduced the minimum number of required foundational acts from three to two, applied retrospectively to offending that straddled the commencement date, consistent with the approach taken in R v Jervis [2020] NSWDC 396.
  • Under s 66EA(8), a sentencing court is required to take into account (though is not limited by) the maximum penalties applicable to the individual unlawful sexual acts committed during the relationship, particularly where the conduct predated the legislative amendments.
  • A 25 per cent discount on indicative sentences was applied for guilty pleas entered at the first available opportunity, consistent with established principles on utilitarian value.
  • The absence of an expert psychological or psychiatric report, in circumstances where family evidence raised the possibility of a mental health explanation for the offending, was treated as a significant forensic choice, and left the court with limited material on rehabilitation prospects.
  • Expressions of remorse conveyed only through family members' affidavits, without sworn evidence from the offender and without any expert context, were accorded reduced weight.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66EA(1) (maintaining an unlawful sexual relationship with a child)
- Crimes Act 1900 (NSW), s 66EA(8) (sentencing obligation to consider maximum penalties for individual acts)
- Crimes Act 1900 (NSW), s 61M(2) (aggravated indecent assault, child under 16 years)

Cases
- Burr v R [2020] NSWCCA 282 (per Johnson J, with whom Leeming JA and Rothman J agreed, on the nature of amendments to s 66EA)
- R v Jervis (a pseudonym) [2020] NSWDC 396 (per Haesler SC DCJ, on retrospective application of the amendments)