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District Court 7 July 2021

R v JK

[2021] NSWDC 502

Sexual offences

Citation: R v JK [2021] NSWDC 502
Court: District Court of New South Wales
Date: 7 July 2021
Judge: Buscombe DCJ

Background

The offender was tried and convicted by jury on 13 counts of sexual offending against three young female victims. The offences spanned two distinct periods: offending against two sisters between January 2010 and June 2013, and offending against a third victim between August and December 2016. The victims were between approximately four and seven years of age at the times of the offences.

The offender had access to the first two victims through a family connection: his brother had been in a relationship with the children's mother, and the offender was a regular visitor to the family home. He participated in the children's care, including bathing them and occasionally supervising them, and sometimes took them to his parents' farm. Access to the third victim arose through separate circumstances described in the sentencing proceedings.

The offender gave evidence at trial and denied all offending. The jury rejected his evidence on the counts on which guilty verdicts were returned, while also returning not guilty verdicts on five other counts.

  • What facts could be established beyond reasonable doubt, consistently with the jury's verdicts, for the purpose of sentencing?
  • What weight should be given to aggravating and mitigating factors, including the nature and circumstances of each offence, the victims' ages, and the applicable standard non-parole periods?
  • What aggregate sentence was appropriate across 13 counts involving three victims and offences under multiple provisions of the Crimes Act 1900 (NSW)?

Decision

Buscombe DCJ conducted a careful fact-finding exercise, noting that any fact adverse to the offender had to be established beyond reasonable doubt. The court accepted the evidence of each victim in relation to the counts on which the jury found the offender guilty, and found that the jury's not guilty verdicts reflected a lack of satisfaction on specific elements, such as whether penetration had been achieved in certain counts.

The court made a series of specific factual findings. In relation to the first victim, the court was satisfied that the offender had the child perform fellatio on two occasions, once in the family home and once in a shed on the family farm, and that a separate indecent assault occurred at the farm involving contact between the offender's penis and the child's anal area without penetration. For the second victim, the court found the offender had the child rub his penis and had touched her near the anus on two occasions, without penetration. In each instance, the court declined to find ejaculation occurred, and found minimal force was used.

The most serious cluster of offending related to the third victim, involving six counts of sexual intercourse with a child under ten years. These offences attracted a maximum penalty of life imprisonment, that maximum having been increased from 25 years by legislative amendment in June 2015. The court imposed indicative sentences for each count before constructing an aggregate sentence, taking into account the totality principle to ensure the combined sentence was not crushing.

The court imposed indicative non-parole periods for each count and arrived at a final aggregate sentence of 22 years imprisonment with a non-parole period of 15 years, the sentence commencing on 6 May 2021.

Orders Made

  • The offender was convicted of the 13 offences on which the jury returned guilty verdicts.
  • An aggregate sentence of 22 years imprisonment was imposed, with an aggregate non-parole period of 15 years.
  • The sentence commenced on 6 May 2021 and expires on 5 May 2043.
  • The non-parole period expires on 5 May 2036, being the earliest date of eligibility for release to parole.

Key Takeaways

  • In sentencing proceedings following a trial, facts adverse to the offender must be established beyond reasonable doubt; the District Court applied this standard carefully to distinguish what could and could not be found about the circumstances of each offence.
  • Where a jury returns both guilty and not guilty verdicts on related counts (such as a principal offence and its alternative), the sentencing court treats the not guilty verdicts as reflecting the jury's lack of satisfaction on the distinguishing element, such as whether penetration occurred.
  • Under ss 66A(1) of the Crimes Act 1900 (NSW), the maximum penalty for sexual intercourse with a child under ten years was increased from 25 years to life imprisonment from 29 June 2015; the court applied the increased maximum to the offences against the third victim, which occurred in the second half of 2016.
  • Applicable standard non-parole periods remained a significant reference point throughout the sentencing exercise, particularly the 15-year standard non-parole period for offences under s 66A(1) and the 8-year period for offences under s 61M(2).
  • Constructing an aggregate sentence requires the court to consider the totality of the offending across all counts and victims, producing a combined sentence that reflects the overall criminality without being disproportionate.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66A(1), 61M(2), 61O(2), 66O(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 25AA(3)

Cases:
- Carter v R [2018] NSWCCA 138