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District Court 19 February 2021

R v SD

[2021] NSWDC 90

Sexual offences
CRIME CHILD SEX OFFENCES SEXUAL INTERCOURSE WITH CHILD <10

Citation: R v SD [2021] NSWDC 90
Court: District Court of New South Wales
Date: 19 February 2021
Judge(s): Buscombe DCJ

Background

The offender pleaded guilty to a single charge of sexual intercourse with a child under ten years of age, contrary to section 66A of the Crimes Act 1900 (NSW). The offence occurred between January and October 1995 at a residential property in Mona Vale, where the offender, then aged thirteen, was staying with a family member. The victim was nine years old at the time.

The offence involved the offender entering the victim's bedroom at night and digitally penetrating her vagina multiple times while she actively resisted and experienced considerable pain. A friend of the victim was sleeping in the same room. The offender gave a false excuse for entering the room when the victim challenged him.

The victim disclosed the offence gradually over many years, first to a friend at around age twelve or thirteen, and later to family members. The offender admitted the offending in letters written in 2011 following a meeting with family members. He was not arrested until August 2019, approximately twenty-five years after the offence occurred, and was sentenced as an adult aged thirty-nine.

Legal Issues

  • What was the appropriate objective seriousness of the offence in the circumstances?
  • What weight should be given to the offender's youth at the time of the offence when sentencing him as an adult, and how did the Children (Criminal Proceedings) Act 1987 principles apply?
  • How should the court account for the significant delay between the offence, the offender's admission, and his arrest and sentencing?
  • Whether imprisonment was required under section 5 of the Crimes (Sentencing Procedure) Act 1999, or whether a non-custodial sentence was appropriate.

Decision

Objective Seriousness

Buscombe DCJ assessed the offence as falling below the notional mid-range but clearly not at the lowest end of the range (at [36]). Aggravating features included that the offence occurred in the victim's home at night, the victim was actively resisting and in considerable pain, and the offender was a quasi-family member in a position of proximity (at [30]-[33]). Mitigating features included the relatively modest age difference of approximately four years, the absence of planning, the opportunistic nature of the offending, and the fact that digital penetration is generally regarded as less serious than penile penetration, though no legal hierarchy exists between acts of sexual intercourse (at [32]-[35]).

Youth at Time of Offending

The court applied principles from section 6 of the Children (Criminal Proceedings) Act 1987, giving greater weight to rehabilitation and treatment and reduced weight to general deterrence, denunciation, and retribution, given that the offender was thirteen at the time of the offence (at [39]-[40]). Buscombe DCJ also recognised that the offender's immaturity likely played a role in the decision-making process leading to the offence (at [40]). The maximum penalty applicable was that in force at the time of the offence, being twenty years imprisonment, and there was no standard non-parole period (at [2]-[3]). Section 25AA of the Crimes (Sentencing Procedure) Act 1999 required the court to apply current sentencing practices, but the court confirmed, following SW v The Queen [2019] NSWCCA 194, that this did not prevent it from having regard to delay or the offender's age at the time of the offence (at [64]-[65]).

Delay

Buscombe DCJ treated the twenty-five year delay between the offence and sentencing, and the eight-year gap between the offender's 2011 admission and his 2019 arrest, as factors that moderated the sentence (at [60]-[63]). The court observed that after such a lengthy period following his own admission of wrongdoing, the offender was likely to have concluded he would not face prosecution. The court also noted that had he been charged at the time of sentencing for the 2019 indecent assault convictions, totality principles might have applied (at [62]).

Subjective Circumstances and Sentence

The court found genuine remorse based on the 2011 letters, the guilty plea, and statements in the Sentencing Assessment Report (at [58]). The offender's subsequent conviction in 2019 for indecent assaults on another young child was considered in assessing rehabilitation prospects, but the court ultimately found reasonable prospects of rehabilitation based on sustained counselling engagement, family support, and risk assessment results placing him in the average to medium-low risk categories (at [45], [59]). The Crown conceded that imprisonment was not appropriate under section 5 of the Crimes (Sentencing Procedure) Act 1999, a concession the court accepted as appropriate in the particular circumstances (at [69]). A 5% discount was applied for the utilitarian value of the late guilty plea (at [57]).

Orders Made

  • The offender was convicted of sexual intercourse with a child under ten years of age.
  • A Community Corrections Order was imposed for a period of two years and ten months, commencing 19 February 2021 and expiring 18 December 2023.
  • Conditions: no further offences; appear before the court if called upon; comply with supervision by Community Corrections; perform 250 hours of community service work.
  • The offender was directed to contact Gosford Community Corrections Office by telephone by 26 February 2021.

Key Takeaways

  • When sentencing an adult for an offence committed when the offender was a child, the principles in section 6 of the Children (Criminal Proceedings) Act 1987 retain relevance, directing greater weight toward rehabilitation and treatment and reduced weight toward general deterrence, denunciation, and retribution (at [39]-[40]).

  • Significant delay between a historic child sex offence and sentencing can moderate the sentence, particularly where the offender had admitted the conduct many years before arrest and where the delay foreclosed the possibility of totality being applied at an earlier sentencing occasion (at [60]-[63]).

  • Section 25AA of the Crimes (Sentencing Procedure) Act 1999 requires current sentencing practices to be applied to historic offences, but the District Court confirmed, consistent with SW v The Queen, that this does not prevent a court from having regard to delay or the offender's youth at the time the offence was committed (at [64]-[65]).

  • Digital penetration of a child is generally treated as less serious than penile penetration, though there is no formal legal hierarchy between different acts of sexual intercourse under section 66A (at [32]).

  • A non-custodial sentence remained available even for a serious child sex offence in circumstances where the Crown conceded that imprisonment was not warranted under section 5 of the Crimes (Sentencing Procedure) Act 1999, taking into account the unique combination of the offender's age at the time of the offence, the length of delay, and subjective factors including remorse and counselling engagement (at [68]-[69]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 66A
- Children (Criminal Proceedings) Act (NSW) 1987 , s 6
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 25AA, 3A, 5

Cases
- SW v The Queen [2019] NSWCCA 194