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District Court 15 July 2022

R v LF (No. 2)

[2022] NSWDC 465

Sexual offences
CRIME CHILD SEX OFFENCES CHILD ABUSE MATERIAL PRODUCTION/DISSEMINATION/POSSESSION SEXUAL INTERCOURSE WITH CHILD <14 CIRCUMSTANCES OF AGGRAVATION

Citation: R v LF (No. 2) [2022] NSWDC 465
Court: District Court of New South Wales
Date: 15 July 2022
Judge: Bennett SC DCJ

Background

The offender, a man aged 76 at the time of sentencing, was tried in the District Court at Newcastle on five counts arising from sexual offending against two child victims. Both victims were his step-granddaughters: AH(1), born 2008, was the daughter of his stepdaughter; AH(2), born 2006, was the daughter of his stepson. The offending came to light when AH(2) disclosed what the offender had said to her, which then prompted investigation of the earlier conduct against AH(1).

A jury returned verdicts of guilty on counts 1, 2 and 5. Count 1 charged intentional sexual touching of AH(1). Count 2 charged aggravated sexual intercourse of AH(1), involving digital penetration of her genitalia while she was between nine and eleven years old. Count 5 charged the offender with inciting AH(2), aged 13, to produce child abuse material by offering her a phone in exchange for permitting him to take nude photographs of her. The jury acquitted the offender of count 4.

The sentencing proceedings involved a psychological report, medical records, character references, and victim impact statements from both complainants. The offender maintained his innocence throughout, did not give evidence at trial or at sentencing, and offered no plea of guilty.

Legal Issues

  • What were the appropriate individual and aggregate sentences for three offences of differing maximum penalties and standard non-parole period considerations?
  • Where did the offending fall on the scale of objective seriousness?
  • What weight should be given to the offender's age, health, lack of criminal history, good character, absence of remorse, and the psychologist's risk assessment?
  • Whether special circumstances existed to justify a non-parole period shorter than the statutory default proportion of the aggregate sentence.
  • What statutory aggravating factors applied, and whether breach of trust was already an element of any charged offence (the De Simoni principle).

Decision

Objective seriousness: The court determined that all three offences fell below the mid-range of objective seriousness (at [26]). For counts 1 and 2, the court considered factors including the nature of the physical contact, the single occasion of offending against AH(1), the absence of evidence of duration, the age of the victim within the relevant statutory range, the significant age gap between offender and victim, and the domestic setting. For count 5, the court noted the absence of cruelty or physical harm, no actual production of images, and that the purpose was personal rather than for distribution (at [86]-[91]).

Aggravating factors: The court found that the offender committed the offending in his home, where the victims were entitled to feel safe, engaging section 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 as a statutory aggravating factor (at [89]). Abuse of trust and authority as a step-grandfather also constituted an aggravating factor under section 21A(2)(k) for count 5, where it was not an element of the offence (at [91]). Consistent with Beavis v R [2018] NSWCCA 248, the court did not treat breach of trust as an aggravating factor for count 2 because it was already an element of that offence (at [90]).

Subjective case and remorse: The offender had no prior criminal record and was supported by character references from close family members and associates (at [62]-[63]). However, good character carries reduced weight given the nature of the offending, and the court found no evidence of contrition, remorse, or rehabilitative prospects (at [82]). The psychologist assessed the offender as presenting a low static and dynamic risk of re-offending, with that risk dependent on victim accessibility (at [78]-[80]). No discount for a guilty plea was available (at [99]).

Special circumstances: The court found special circumstances warranting a longer parole period, citing the offender's age of 76, deteriorating physical health, the fact that this was his first custodial sentence, and the need for a meaningful period of supervised reintegration upon release (at [105]).

Orders Made

  • Aggregate sentence of 5 years and 6 months imprisonment, commencing 16 January 2022
  • Non-parole period of 3 years, expiring 15 January 2025
  • Balance of term expiring 15 July 2027
  • An apprehended violence order in respect of AH(1)

Key Takeaways

  • Where breach of trust is already an element of a charged sexual offence, a sentencing court must not treat it separately as a statutory aggravating factor under section 21A(2)(k); doing so would breach the principle in R v De Simoni (at [90]).

  • The District Court confirmed that good character retains some limited weight in sentencing for serious sexual offences against children, even though its significance is substantially reduced by the nature of the conduct (at [62]-[94]).

  • Victim impact statements that do not establish substantial psychological harm are not to be taken into account in aggravation of sentence, though they serve the distinct purposes of allowing victims to place their experience on the record and to confront the offender (at [56]-[57]).

  • Advanced age, deteriorating health, first-time custody, and the need for supervised reintegration can together constitute special circumstances justifying a departure from the standard non-parole period proportion under the Crimes (Sentencing Procedure) Act 1999 (at [105]).

  • In sentencing for inciting a child to produce child abuse material, relevant considerations include the degree of planning and grooming involved, whether actual material was produced, the purpose of the incitement, and the age of the child targeted, even where no images ultimately came into existence (at [86]-[87]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999

Cases
- Beavis v R [2018] NSWCCA 248
- Cheung v Regina (2001) 209 CLR 1
- CR v R [2020] NSWCCA 289
- Markarian v The Queen [2005] HCA 25
- Muldrock v The Queen [2011] HCA 39
- R v Daley [2010] NSWCCA 223 48
- R v De Simoni [1981] 147 CLR 383
- R v Fisher (1989) 48 Crim R 442
- R v Hudson (Unreported, NSWCCA, 30 July 1998)
- R v Olbrich (1999) 199 CLR 162
- Regina v Isaacs (1997) 41 NSWLR 374
- Savvas v The Queen (1995) 183 CLR 1
- Tepania v R [2018] NSWCCA 247