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District Court 4 November 2022

R v BT

[2022] NSWDC 527

Sexual offencesDomestic & family violence

Citation: R v BT [2022] NSWDC 527
Court: District Court of New South Wales
Date: 4 November 2022
Judge: Bennett SC DCJ

Background

The offender, a man born in 1982, faced sentence proceedings in the District Court at Bega on six charges of child sexual offences. Five offences were committed against his biological daughter TT, and one was committed against his stepdaughter MS. The offending spanned approximately eight years, from February 2013 to January 2021, when the children were between seven and nine years of age.

The offending against TT came to light on New Year's Eve 2020, when TT disclosed the conduct to an aunt during a conversation prompted by a television commercial. The offending against MS involved an act of indecency committed in early 2013. The offender had been in a relationship with the victims' mother since around 2011, and the family moved between homes in the Bega area over the course of the relationship.

The offender pleaded guilty in the Local Court, engaging the early guilty plea discount provisions under the Crimes (Sentencing Procedure) Act 1999. He had been in custody since his arrest on 8 January 2021.

  • What individual sentences were appropriate for each of the six offences, having regard to objective seriousness, the standard non-parole periods applicable, and the 25% guilty plea discount
  • Whether special circumstances existed to justify extending the parole period beyond the statutory ratio
  • How to fix an appropriate aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999, having regard to totality and the need for rehabilitation

Decision

The court sentenced the offender on six charges: two charges of intentionally carrying out a sexual act on a child under ten years (ss 66DC(a)), two charges of sexual intercourse with a child under ten years (ss 66A(1)), one charge of procuring a child under 14 for unlawful sexual activity (s 66EB(2)(a)), and one charge of committing an act of indecency toward a child under ten years (s 61O(2)). A 25% discount was applied to each individual sentence to reflect the early guilty plea.

The court identified the offending as serious across all counts, noting it occurred within the family home over many years, involved a significant breach of trust, and included both physical and psychological harm to the victims. The offending against TT was persistent, escalating in nature, and included sexual intercourse and grooming conduct such as exposure to child pornography and teaching sexualised sign language. The offending against MS, while a single representative incident, nonetheless involved a child of seven years.

The court found special circumstances in the offender's diagnosed ADHD and his misuse of alcohol and drugs, justifying a modest extension of the parole period beyond the standard ratio to allow for managed intervention in those areas. The court also noted that the absence of genuine insight into the offender's motivations limited its ability to assess the prospects of rehabilitation, and emphasised the need for community protection.

Orders Made

  • Aggregate sentence of 15 years imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999
  • Non-parole period of 11 years, commencing 8 January 2021, expiring 7 January 2032
  • Parole eligibility period of 4 years, expiring 7 January 2036
  • Individual sentences imposed as follows:
  • Sequence H80218984/1 (s 66DC(a), sexual act toward TT): 2 years 9 months
  • Sequence H80218984/7 (s 66EB(2)(a), procuring TT for unlawful sexual activity): 5 years 6 months, non-parole period 4 years
  • Sequence H80218984/6 (s 66DC(a), sexual act toward TT): 2 years 6 months
  • Sequence H80218984/9 (s 66A(1), sexual intercourse with TT): 6 years, non-parole period 4 years
  • Sequence H80218984/5 (s 66A(1), sexual intercourse with TT): 7 years, non-parole period 5 years
  • Sequence H79794020/1 (s 61O(2), act of indecency toward MS): 2 years 5 months

Key Takeaways

  • The District Court applied a 25% guilty plea discount to each individual sentence, consistent with s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999, following entry of guilty pleas in the Local Court.
  • Special circumstances under the Crimes (Sentencing Procedure) Act 1999 were established by reference to the offender's ADHD diagnosis and substance misuse, which the court considered warranted a modest extension of the supervised parole period to facilitate targeted intervention.
  • Under s 53A of the Crimes (Sentencing Procedure) Act 1999, an aggregate sentence may be imposed across multiple offences, and the court applied totality principles in fixing a single non-parole period and parole eligibility term across the six charges.
  • A lack of genuine insight into the offender's motivations was treated as a factor limiting the assessment of rehabilitation prospects and reinforcing the need for community protection.
  • Persistent child sexual offending within the family home, involving escalation over time and multiple victims, was treated as bearing significantly on both objective seriousness and the weight given to general and specific deterrence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61O(2), 66A(1), 66DC(a), 66EB(2)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D, 53A

Cases
- Ayshow v R [2011] NSWCCA 240
- Imbornone v R [2017] NSWCCA 144
- MDZ v R [2011] NSWCCA 243
- Muldrock v R [2011] HCA 39
- Tepania v R [2018] NSWCCA 247
- Veen v The Queen (No. 2) (1987-1988) 164 CLR 465; [1988] HCA 14