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District Court 19 August 2022

R v Hanly

[2022] NSWDC 447

Sexual offences
CRIME SENTENCE

Citation: R v Hanly [2022] NSWDC 447
Court: District Court of New South Wales
Date: 19 August 2022
Judge: Bourke SC DCJ

Background

The offender was convicted by jury on 27 May 2022 of indecent assault of a child under 16 years, contrary to s 61M(2) of the Crimes Act 1900. The offence occurred on 19 August 2018 at the home of the offender's parents-in-law in Malabar, during a play date involving the offender's five-year-old daughter and the victim, who was aged four years and eleven months at the time.

While the victim's father remained upstairs, the offender went downstairs and was briefly alone with the victim. He approached the victim from behind, placed his exposed penis into her hand, and rubbed it against her hand for a period of some seconds before giggling and walking away. The offending came to light approximately two months later when the victim spontaneously disclosed it to her father.

The sentencing proceedings required the court to determine the facts consistent with the jury's verdict and to assess the appropriate penalty, having regard to the maximum penalty of ten years' imprisonment and a standard non-parole period of eight years.

  • What facts could properly be found for sentencing purposes, consistent with the jury's verdict?
  • What was the objective seriousness of the offence, including the relevance of the victim's age, duration of contact, and any aggravating factors?
  • Whether the offence was committed "in a home" as an aggravating circumstance under s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999, and whether that aggravation actually elevated the seriousness of this particular offence?
  • Whether the offender's sexual gratification could be established as a motivation, and what weight that carried?
  • Whether the threshold for full-time imprisonment under s 5 of the Crimes (Sentencing Procedure) Act 1999 was crossed, or whether a Community Correction Order was appropriate?

Decision

Objective seriousness: The court characterised the offence as serious, given the young age of the victim (well below the statutory ceiling of 16 years), the direct skin-on-skin contact, and the substantial age gap between the offender and victim. However, the court also noted mitigating features in the objective circumstances: the contact lasted only a matter of seconds, the offender's penis was not erect, and the court was not satisfied to the criminal standard that the offending was motivated by sexual gratification. In applying the principle from BB v R [2021] NSWCCA 283, Bourke SC DCJ observed that even a supposed absence of sexual motivation cannot greatly reduce the gravity of an indecent assault, because the harm to the child remains the core concern.

Aggravating factors: The Crown argued that committing the offence "in a home" under s 21A(2)(eb) aggravated the offending. The court accepted that the provision extends to any person's home, not merely the victim's own residence. However, applying Jonson v R [2016] NSWCCA 286, the court concluded that the commission of the offence in a home did not actually aggravate this particular offence, because the victim's expectation of safety arose from her father's supervision, not from being in a domestic setting. The court found the offence would have been equally serious had it occurred at a playground. A limited element of breach of trust was, however, accepted, given the offender's temporary supervisory role over the victim.

Harm to the victim: The court acknowledged that sexual offences against children often produce lasting and significant harm that may not be immediately apparent. Having reviewed the victim's pre-recorded evidence for sentencing purposes, the court was not satisfied on the facts before it that the offence had resulted in "substantial harm."

Sentence: Despite the standard non-parole period of eight years, the court found that the s 5 threshold for full-time imprisonment was not crossed. The court took into account the offender's low risk of reoffending and the exceptional hardship that imprisonment would impose on his wife and children. The court was satisfied that the purposes of sentencing could appropriately be met by a Community Correction Order.

Orders Made

  • The offender was convicted of the offence under s 61M(2) of the Crimes Act 1900.
  • A Community Correction Order was imposed for a period of three years under s 8 of the Crimes (Sentencing Procedure) Act 1999, with the following conditions:
  • Not commit any offence during the term of the order.
  • Appear before the court if called upon.
  • Accept supervision from Community Corrections.
  • Undertake any counselling or treatment as directed by Community Corrections.
  • Complete 350 hours of community service.
  • The offender was directed to report to the Community Corrections office at Waverley by 5pm on Monday 22 August 2022.

Key Takeaways

  • Under s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999, committing an offence "in a home" can be an aggravating factor even where the home belongs to a third party rather than the victim. However, the court must still determine whether the location actually aggravates the specific offence in the circumstances, rather than treating it as automatically applicable.

  • The District Court confirmed, following BB v R, that even where sexual motivation cannot be established beyond reasonable doubt, the absence of proven motivation does not significantly reduce the objective gravity of an indecent assault on a child, because the harm to the child is the central concern.

  • A standard non-parole period does not require a custodial sentence in every case. Here, the court found the threshold for full-time imprisonment under s 5 was not crossed, having regard to the specific facts of the offence and the offender's personal circumstances, including his low reoffending risk and the exceptional hardship incarceration would impose on his family.

  • The principle established in R v KNL [2005] NSWCCA 260, that the younger the child victim the more serious the offence, was applied in assessing objective seriousness, with the victim's age of just under five years noted as a significant factor.

  • Where a young child's evidence as to duration of contact was inherently imprecise, the sentencing court was satisfied only that contact lasted "some seconds," and sentenced on that basis rather than accepting the upper end of the estimate.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 8, 21A(2)(eb)

Cases:
- BB v R [2021] NSWCCA 283
- Jonson v R [2016] NSWCCA 286
- R v Edwards (1996) 90 A Crim R 510
- R v KNL [2005] NSWCCA 260
- R v PGM [2008] NSWCCA 172
- R v Shortland [2018] NSWCCA 34