AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 22 January 2021

R v NT (a pseudonym)

[2021] NSWDC 76

Sexual offences
CRIME CHILD SEX OFFENCES PURPOSES OF SENTENCING DISCUSSED EARLY ADMISSIONS ADMISSIONS OF UNKNOWN GUILT ACCUMULATION ON ACT SENTENCE

Citation: R v NT (a pseudonym) [2021] NSWDC 76
Court: District Court of New South Wales
Date: 22 January 2021
Judge: Haesler SC DCJ

Background

The offender, referred to by the pseudonym NT and born in 1951, faced sentencing in the NSW District Court for two counts of sexual intercourse with his granddaughter, who was aged 8 or 9 at the time of each offence. The offences occurred at a caravan park on the NSW South Coast, in 2013 or 2014 and again in 2015. Each involved digital penetration of the child's external genitalia, and both were admitted by the offender himself before the offences had even been reported by the complainant.

The matter had a significant history in the ACT. In March 2017, the ACT Supreme Court (Justice Penfold) had already sentenced the offender to 6.5 years imprisonment for 10 related acts of indecency against the same child, committed in Canberra. The NSW offences came to light because the offender voluntarily disclosed them to ACT police during that investigation. NSW charges were not laid until 2019, and the offender remained in ACT custody throughout, appearing by audio and video link. He became eligible for ACT parole in September 2020 but could not be released due to the outstanding NSW proceedings.

There were also additional matters placed before the court on Criminal Procedure Act Forms 1 (that is, offences taken into account at sentencing without separate conviction). The offender had no prior criminal history and had completed a custody-based sex offender programme while serving the ACT sentence.

  • What sentences were appropriate for two offences of sexual intercourse with a child under 10, under s 66A(1) of the Crimes Act 1900 (NSW)?
  • How should the NSW sentences be structured to account for the existing ACT sentence, including the principles of accumulation and totality?
  • What weight should the court give to the offender's early and voluntary admissions, his rehabilitation in custody, his personal history, and the delay in bringing the NSW charges?
  • Whether special circumstances existed to justify departing from the standard non-parole period ratio (that is, the proportion of a sentence spent in custody before becoming eligible for parole)?
  • How should the backdating of the sentence commencement date reflect the delay caused by the offender's ongoing ACT custody?

Decision

Haesler SC DCJ imposed an aggregate NSW sentence of 7 years and 9 months, with a non-parole period of 4 years, backdated to commence on 13 September 2019. The total effective sentence across both jurisdictions was 10 years and 6 months, with a combined non-parole period of 7 years.

The court addressed the purposes of sentencing at length, noting that general deterrence had plainly not operated to prevent this offending. The judgment emphasised the retributive and denunciatory functions of sentencing in child sexual abuse cases, drawing on Munda v Western Australia (2013) 249 CLR 600, and underscored that sentences in such matters must vindicate the dignity of the victim and express the community's condemnation of the conduct. The court also noted the wide variation in behavioural responses to child sexual abuse, citing the Royal Commission into Institutional Responses to Child Sexual Abuse.

In determining the individual sentences, the court found significant mitigating factors: the offender's voluntary and early admissions (which disclosed offences that had not been reported by the complainant), his guilty pleas, the absence of prior convictions, his completion of a sex offender programme, and the delay in the NSW proceedings coming to sentence. The offender's own childhood history as an abuse victim was acknowledged but, consistent with Justice Penfold's earlier findings, treated as providing limited mitigation.

Special circumstances were found to exist, principally because of the accumulation of the NSW sentence on the ACT sentence. The court structured the non-parole period to be shorter than the standard ratio in order to provide an adequate period of supervised parole for rehabilitation and community reintegration. The commencement date was backdated by a year before ACT parole eligibility to reflect the delay that was not attributable to the offender.

Orders Made

  • Count 1 (sexual intercourse with person under age of 10, DV, with Form 1 matter taken into account): 3 years 9 months imprisonment, with a non-parole period of 1 year 10 months.
  • Count 2 (sexual intercourse with child under age of 10, DV, with Form 1 matters taken into account): 6 years 9 months imprisonment, with a non-parole period of 3 years 4 months.
  • Aggregate NSW sentence: 7 years 9 months imprisonment.
  • Aggregate non-parole period: 4 years, commencing 13 September 2019 and expiring 12 September 2023.
  • Balance of sentence: 3 years 9 months, commencing 13 September 2023 and expiring 12 June 2027.
  • Total effective sentence (ACT and NSW combined): 10 years 6 months, with a combined non-parole period of 7 years.

Key Takeaways

  • The District Court confirmed that retribution and victim vindication are central purposes of sentencing in child sexual abuse cases, alongside (but not reducible to) general deterrence, particularly where deterrence has demonstrably failed to prevent the offending.

  • Where an offender is sentenced in NSW for offences that overlap chronologically and factually with a sentence already imposed in another jurisdiction, the principles of accumulation and totality require courts to structure the overall sentence so that it is not crushing but still reflects the full criminality of the conduct.

  • Voluntary disclosure of offences not reported by the complainant, combined with early and frank admissions to police and a guilty plea, can constitute significant mitigating factors, even in cases involving very serious child sexual offences.

  • Special circumstances justifying a longer parole period (and thus a reduced non-parole period relative to the head sentence) can be established where an accumulated sentence requires adequate supervisory time in the community to support rehabilitation already demonstrated in custody.

  • Delay in bringing NSW proceedings to sentence, where that delay is not caused by the offender, can properly be reflected in backdating the commencement date of the NSW sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61H, 66A(1)
- Crimes Act 1900 (ACT), s 61
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A(a)
- Criminal Procedure Act 1986 (NSW) (Forms 1)

Cases:
- Abas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
- Attorney General's Application No. 1 (2002) 56 NSWLR 146
- CMB v Attorney-General for NSW (2015) 256 CLR 346; [2015] HCA 9
- Markarian v The Queen (2005) 228 CLR 357
- Mill v The Queen (1988) 166 CLR 59
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- R v Ellis (1986) 6 NSWLR 603
- R v Herring (1956) 73 WN (NSW) 203
- R v NT [2017] ACTSC 69
- R v Thompson [2000] NSWCCA 309; (2000) 49 NSWLR 383
- R v Todd [1982] 2 NSWLR 517
- R v Windle [2012] NSWCCA 222
- Ryan v The Queen (2001) 206 CLR 267