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District Court 3 September 2021

R v Callaway

[2021] NSWDC 836

Sexual offences
CRIMINAL SENTENCE 2 SEPARATE VICTIMS OBJECTIVE SERIOUSNESS EFFECT OF S66EA SUBJECTIVE MATTERS

Citation: R v Callaway [2021] NSWDC 836
Court: District Court of New South Wales
Date: 3 September 2021
Judge: King SC DCJ

Background

The offender, a man born in 1977, appeared for sentencing on seven sexual offences involving two child victims. The offences spanned distinct periods between 2010 and 2014 and were committed in different locations in New South Wales.

The first victim, RC, was approximately 14 to 15 years old at the time of the offending. The offender had been in a relationship with her mother and, after police intervention separated them, RC returned to live with him and the pair entered into an ongoing sexual relationship. The second victim, KT, was approximately 9 or 10 years old at the time of her offending. The offender had moved into KT's family home as her mother's partner and regularly cared for KT and her brother during the mother's absence.

The offender pleaded guilty to all seven counts at Wyong Local Court on 16 February 2021, with the matter proceeding to sentencing in the District Court.

  • The appropriate sentence for each of the seven offences, taking into account their objective seriousness
  • The application of s 66EA of the Crimes Act 1900 to the persistent sexual abuse charge involving RC
  • The relevance and weight of the "under authority" aggravating circumstance in the offences against KT
  • The proper discount to apply for the utilitarian value of early guilty pleas
  • The construction of an appropriate aggregate sentence, including the non-parole period

Decision

The court sentenced the offender across all seven matters, applying a 25% discount to each individual sentence to reflect the utilitarian value of the guilty pleas. The court characterised the offending as serious across both sets of offences. In relation to RC, the persistent sexual abuse charge under s 66EA involved repeated penile/vaginal intercourse on a daily basis over approximately one year, commencing when RC was 14 years of age. The court noted the coercive dynamic of that relationship, including the offender's deliberate positioning of RC so that any complaint could be deflected by suggesting she had consented.

In relation to KT, the offending was of a different and more severe character. KT was between 9 and 10 years old, and the offender was in a position of authority over her as her mother's de facto partner and her caregiver. The offences included acts of fellatio, cunnilingus, and an attempt at penile/vaginal intercourse, all occurring when the offender was left in charge of the children. The circumstance of aggravation (being under authority) applied to the most serious of these charges.

The court imposed an aggregate sentence, taking care to ensure the total term reflected the overall criminality of the offending without being crushing. The sentencing principles from cases including Bugmy v the Queen, Burr v R, and R v Dungay informed the court's approach to both the objective and subjective considerations. The court also issued an Apprehended Domestic Violence Order in favour of RC.

Orders Made

  • An aggregate sentence of 13 years and 6 months imprisonment, with a non-parole period of 10 years
  • The sentence was backdated by 126 days from 27 August 2021, commencing on 23 April 2021
  • First eligible for parole: 22 April 2031
  • Balance of term (parole period): 3 years and 6 months, commencing 23 April 2031 and expiring 22 October 2034
  • A 25% discount applied to each individual sentence for the utilitarian value of the guilty pleas
  • An Apprehended Domestic Violence Order made under the Crimes (Domestic and Personal Violence) Act 2007, prohibiting any direct or indirect contact with victim RC, until 22 October 2036

Key Takeaways

  • An aggregate sentence of 13 years and 6 months (non-parole period of 10 years) was imposed for seven child sexual abuse offences spanning two victims across separate periods of offending between 2010 and 2014.
  • Under s 66EA of the Crimes Act 1900, a charge of persistent sexual abuse of a child may be established by repeated acts across a defined period; here, daily penile/vaginal intercourse over approximately one year with a 14 to 15 year old victim satisfied that threshold.
  • The circumstance of aggravation of being "under authority" applied where the offender was the de facto caregiver of a 9 to 10 year old child during her mother's regular absences, materially increasing the seriousness of those charges.
  • A 25% guilty plea discount applied to each charge, reflecting the utilitarian value of pleas entered at an early stage in the Local Court proceedings.
  • In constructing an aggregate sentence, the District Court balanced the need to reflect the full extent of the criminality across multiple serious offences against the principle that the total sentence should not be crushing.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 66C(2), 66D, 66EA(1)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 39(2)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Bugmy v the Queen (2013) 249 CLR 571
- Burr v R [2020] NSWCCA 282
- R v Dungay [2020] NSWCCA 209