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District Court 15 July 2022

R v BQL

[2022] NSWDC 295

Sexual offences
SENTENCE

Citation: R v BQL [2022] NSWDC 295
Court: District Court of New South Wales
Date: 15 July 2022
Judge(s): Mahony SC DCJ

Background

The offender, a Chinese national born in 1968, had been living as a tenant in a townhouse from December 2012. He developed a close relationship with the family of his landlord, including her two young children, who referred to him as "Big Uncle." He became romantically involved with the children's mother and took on a caregiving role for the children in her absence.

Following a jury trial, the offender was convicted on 10 February 2022 of maintaining an unlawful sexual relationship with the victim (referred to as SL), who was aged between 9 and 12 during the relevant period. The offending spanned from late 2017 until 16 October 2020, when the victim's mother directly observed the offender in circumstances that prompted her to question her daughter. The victim then identified the offender as having touched her body.

The matter came before the District Court for sentencing on 24 June 2022. The offender had been in custody since his arrest on 16 October 2020.

  • What facts were established beyond reasonable doubt for the purposes of sentencing, including the duration and frequency of the unlawful sexual relationship?
  • How should the objective seriousness of the offending be assessed, including the relevance of the maximum penalty of life imprisonment under section 66EA of the Crimes Act 1900?
  • What weight should be given to the offender's subjective circumstances, including his mental health, lack of prior criminal history, risk of reoffending, and the hardship he experienced in custody?
  • Whether special circumstances existed under section 44(2) of the Crimes (Sentencing Procedure) Act 1999 justifying a variation to the standard ratio between head sentence and non-parole period?

Decision

His Honour was satisfied beyond reasonable doubt that the unlawful sexual relationship commenced towards the end of 2017 and continued for approximately two years and eleven months. The court accepted the defence submission on duration over the Crown's position. The court found the frequency of sexual acts was once or twice per fortnight, increasing after the victim moved upstairs at the start of Year 7 in 2020.

The acts established included the offender touching and kissing the victim's breasts, performing cunnilingus, digitally penetrating her vagina, and requiring her to perform fellatio. The court also found that the offender told the victim to keep the conduct secret, promising in return to treat her better than her brother. This element of grooming and manipulation within a position of quasi-parental trust formed part of the court's assessment of objective seriousness.

The court had regard to the forensic psychologist's report, which noted the offender's difficult background, his adjustment disorder arising from his custodial environment, his limited English, and his assessment as below average risk for sexual recidivism. His Honour accepted the offender was a low risk of reoffending and had reasonable prospects of rehabilitation, notwithstanding his continued denial of the offending.

The court found special circumstances under section 44(2) of the Crimes (Sentencing Procedure) Act 1999, noting that the offender's inability to communicate in English, his complete social isolation in custody (including no visitors), and restrictions arising from the COVID-19 pandemic had made his time in custody particularly burdensome. Accordingly, the statutory ratio between the head sentence and the non-parole period was varied.

Orders Made

  • The offender was convicted of maintaining an unlawful sexual relationship with a child under 16 years of age, contrary to section 66EA of the Crimes Act 1900, involving multiple specified unlawful sexual acts committed between 1 January 2017 and 16 October 2020.
  • A non-parole period of four years was imposed, commencing 16 October 2020 and terminating 15 October 2024.
  • The balance of term was set at three years and six months, commencing 16 October 2024 and terminating 15 April 2028.
  • The total head sentence was seven years and six months.

Key Takeaways

  • The District Court confirmed that, in sentencing for an offence under section 66EA, the life imprisonment maximum operates as a guidepost in the sentencing process, and the maximum penalty and standard non-parole period for each constituent unlawful act are also relevant considerations under section 66EA(8).
  • Where a dispute arises at sentence about the duration of an unlawful sexual relationship, the court must be satisfied beyond reasonable doubt of the period established by the evidence, and is not required to adopt the facts most favourable to the offender.
  • An offender's continued denial of offending does not preclude a finding of reasonable prospects for rehabilitation, though it remains a factor in the overall assessment.
  • Special circumstances under section 44(2) of the Crimes (Sentencing Procedure) Act 1999 were established where linguistic isolation, the absence of any social support in custody, and pandemic-related restrictions materially increased the burden of the offender's imprisonment beyond what is ordinarily experienced.
  • A position of quasi-parental trust and the use of secrecy and preferential treatment to manipulate a child victim were treated as relevant to the objective seriousness of the offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), section 66EA
- Crimes (Sentencing Procedure) Act 1999 (NSW), sections 5 and 44(2)

Cases:
- Burr v R [2020] NSWCCA 282
- GP (a pseudonym) v R [2021] NSWCCA 180
- R v Fitzgerald (2004) 59 NSWLR 493
- R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56
- R v Manners [2004] NSWCCA 181
- R v PGM (2008) 187 A Crim R 152; [2008] NSWCCA 172
- R v RB [2022] NSWCCA 142
- Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21
- Xerri v R [2021] NSWCCA 268