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District Court 14 April 2022

R v Croft

[2022] NSWDC 367

Sexual offences
CRIME SENTENCE AGGRAVATED ACT OF INDECENCY UNDER 16 YEARS

Citation: R v Croft [2022] NSWDC 367
Court: District Court of New South Wales
Date: 14 April 2022
Judge: Bourke SC DCJ

Background

The offender was a man who had formed a relationship with the mother of the victim and moved into the family home in 1998. He was convicted by jury of six offences committed against the victim over a period of years while she was between approximately 10 and 14 years of age. The offences arose from his position of domestic authority over her.

The six counts spanned conduct from approximately 2002 to 2006 and included multiple acts of indecency committed in circumstances of aggravation. The charges were not brought until the victim attended police in April 2020 and provided a statement, following which the offender was arrested and charged in July 2020.

The offender was convicted after trial and maintained his innocence throughout. The sentencing judge proceeded to determine the facts consistent with the jury's verdicts, applying the standard criminal standard for matters in aggravation and the balance of probabilities for matters in mitigation.

  • What were the appropriate indicative sentences for each of the six offences, having regard to maximum penalties and, where applicable, standard non-parole periods?
  • Whether the standard non-parole period applied to count one, given its date range commenced before that provision was introduced on 1 February 2003?
  • How should totality principles apply when sentencing for six separate offences across multiple incidents?
  • Whether special circumstances existed justifying a departure from the ordinary ratio between head sentence and non-parole period?
  • How should the subjective factors particular to the offender bear on the aggregate sentence?

Decision

The sentencing judge found that the standard non-parole period did not apply to count one, because the offence date range commenced before 1 February 2003 and the evidence did not pinpoint the precise date. Both the Crown and the defence accepted this approach. For counts four and five, the standard non-parole period of five years (referable to the seven-year maximum under s 61M(1) of the Crimes Act 1900) was treated as a relevant guidepost.

His Honour assessed the objective seriousness of the sexual offences as significant, noting that Parliament had attached substantial maximum penalties and a standard non-parole period to these offences, and that sexual offending against children commonly causes serious and lasting harm. The offences occurred across four separate incidents spanning several years, with the offender exploiting the victim's vulnerability and her subjugation to his domestic authority.

Having regard to totality, the judge found that a degree of accumulation was necessary across the five sexual offences given the distinct incidents involved. Counts two and three, arising from a single incident, were treated as largely concurrent with each other. A finding of special circumstances was made on the basis that the offender would require significant monitoring and support upon his reintegration into the community, justifying adjustment of the ordinary ratio between head sentence and non-parole period.

An aggregate sentence was imposed rather than individual cumulative terms. Indicative sentences were announced for each count to comply with the relevant procedural requirement, but the final sentence was expressed as an aggregate.

Orders Made

  • Aggregate head sentence of five years and six months imprisonment, commencing 14 April 2022 and expiring 13 October 2027.
  • Non-parole period of three years and eight months, expiring 13 December 2025.
  • Special circumstances finding made, adjusting the ordinary ratio between head sentence and non-parole period.

Indicative sentences (not separately imposed):
- Count one: three years imprisonment
- Count two: two years imprisonment
- Count three: two years imprisonment
- Count four: two years and nine months imprisonment (non-parole period of one year and ten months)
- Count five: one year imprisonment (non-parole period of eight months)
- Count six: six months imprisonment

Key Takeaways

  • Where a date range for an offence straddles the introduction of a standard non-parole period, a court may treat the provision as inapplicable if the evidence does not establish that the offence fell within the operative period.
  • An aggregate sentence is appropriate where multiple offences are to be sentenced together; the court must nevertheless nominate indicative sentences for each individual count as a procedural step.
  • A finding of special circumstances can be grounded in the offender's need for structured supervision and community reintegration support upon release, particularly where a lengthy custodial period will effectively require the offender to start over.
  • The District Court applied totality principles to moderate the cumulative effect of separate sentences, treating counts arising from a single incident as largely concurrent while accumulating sentences for distinct episodes.
  • Sexual offending against children by a person in a position of domestic authority is treated as a seriously aggravating feature, reflected in the choice of applicable provisions under the Crimes Act 1900 and the weight given to the standard non-parole period as a sentencing guidepost.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61, 61M(1), 61O

Cases
- AB v R [2020] NSWCCA 170
- DPP v IJL [2019] NSWLC 2
- R v Doyle [2021] NSWDC 21
- R v MJR (2002) 54 A Crim R 368
- R v PGM (2008) 187 A Crim R 152
- WG v R [2019] NSWCCA 263