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District Court 28 November 2022

R v RB (No 3)

[2022] NSWDC 580

Sexual offences
CRIME CHILD SEX OFFENCES OFFENDER WAS 16 OR 17 YEARS OLD HALF SIBLINGS DIGITAL PENETRATION REPORTED 8 YEARS LATER

Citation: R v RB (No 3) [2022] NSWDC 580
Court: District Court of New South Wales
Date: 28 November 2022
Judge: Lerve DCJ

Background

The offender pleaded guilty to one count of aggravated sexual intercourse without consent under s 61J of the Crimes Act 1900 (NSW). The victim was his half-sibling, aged 11 at the time of the offence. The offender was 16 or 17 years old. Both lived in the same house in a country town in southern New South Wales.

The offence involved the offender entering the victim's bedroom, holding her down despite her repeated protests, and digitally penetrating her vagina for approximately 30 seconds. The victim did not report the offending until approximately eight years later, first confronting the offender directly in May 2021 and then making a formal police report in July 2021.

The offender was arrested in November 2021 and pleaded guilty at the Local Court in May 2022, attracting the full 25% utilitarian discount. This was not his first appearance before Lerve DCJ: he had previously been sentenced on a separate matter in July 2020.

  • What is the appropriate objective seriousness of the offence, taking into account the type and duration of the sexual intercourse, the ages of both the victim and the offender, and the circumstances of the offending?
  • Whether the offence being committed in the victim's home constituted a statutory aggravating factor under the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • What weight should be given to the offender's age and immaturity at the time of the offence when assessing objective seriousness and subjective circumstances?
  • Whether the standard non-parole period applied, given the offender was under 18 at the time of the offence.
  • What role did the offender's dysfunctional background (Bugmy factors), criminal history, the delay in reporting, and the impact of COVID-19 on incarceration play in the sentencing exercise?
  • Whether special circumstances existed to justify a departure from the standard ratio of non-parole period to head sentence.

Decision

Lerve DCJ confirmed, consistent with established Court of Criminal Appeal authority, that there is no hierarchy of seriousness among the various forms of sexual intercourse defined under the Crimes Act. Objective seriousness is assessed by reference to all the facts and circumstances, not by ranking the type of act in isolation. The absence of aggravating features such as additional physical violence does not operate as mitigation; an offence is not rendered less serious simply because it could have been worse.

Taking into account the digital nature of the intercourse, its brief duration (approximately 30 seconds), the victim's age of 11, the offender's age of 16 or 17, the approximately five-year age gap, and the general circumstances of the offending, his Honour assessed the matter as falling below the mid-range of objective seriousness, but not significantly so. Consistent with the approach approved in R v AA [2017] NSWCCA 84 and Young (a pseudonym) v R [2022] NSWCCA 111, the offender's age and immaturity at the time of the offence were treated as relevant to, and capable of informing, objective seriousness.

The standard non-parole period of 10 years had no application because the offender was under 18 at the time of the offence. His Honour found special circumstances existed, warranting a non-parole period of 55% of the total sentence rather than the standard two-thirds ratio. This reflected the need for an extended period of supervised parole given the offender's background, immaturity at the time of the offence, and rehabilitative needs. The court noted the sentence was considerably lower than what would ordinarily be imposed in the District Court for a s 61J offence, but this was expressly justified by the fact that a now-adult offender was being sentenced for conduct committed as a teenager.

Orders Made

  • The offender was convicted of one count of aggravated sexual intercourse without consent (s 61J, Crimes Act 1900).
  • Non-parole period of 12 months, commencing 3 January 2022 and expiring 2 January 2023.
  • Parole period of 10 months, commencing 3 January 2023 and expiring 2 November 2023.
  • Release to statutory parole at the expiration of the non-parole period; parole to be supervised.
  • A copy of Ms Kris North's report (Exhibit 1) directed to be annexed to the warrant sent to the Department of Corrective Services.
  • Total effective sentence running from 4 November 2021 to 2 November 2023; total period in actual custody approximately 58% of the total sentence.

Key Takeaways

  • The District Court confirmed that no hierarchy exists among the forms of sexual intercourse for the purposes of assessing objective seriousness under s 61J; the court must evaluate all facts and circumstances of the particular case.
  • An offender's age and immaturity at the time of a child sexual assault offence can inform the assessment of objective seriousness, not merely the subjective circumstances, following R v AA [2017] NSWCCA 84 and Young (a pseudonym) v R [2022] NSWCCA 111.
  • Where an offender was under 18 at the time of the offence, the standard non-parole period prescribed for s 61J offences (10 years) does not apply.
  • Absence of aggravating features such as additional physical violence or threats does not constitute a mitigating factor; the principle that an offence is not less serious merely because it could have been worse remains firmly established.
  • A court sentencing an adult for offences committed in adolescence must give meaningful weight to the offender's age and background at the time, which can result in a sentence considerably below what would ordinarily be imposed for the same offence committed by an adult.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61J (aggravated sexual intercourse without consent), s 61H
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21, 67
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases:
- R v AA [2017] NSWCCA 84
- Young (a pseudonym) v R [2022] NSWCCA 111
- Bugmy v The Queen [2013] HCA 37
- Hili & Jones v The Queen [2010] HCA 45
- Brown v R [2014] NSWCCA 214
- Jonson v R [2016] NSWCCA 286
- LS v R [2020] NSWCCA 120
- Mbele v R [2021] NSWCCA 182
- Patel v R [2019] NSWCCA 170
- Quinn v DPP (Cth) [2021] NSWCA 294
- Thurlow v R [2022] NSWCCA 20
- Toller v R [2021] NSWCCA 204
- Valentine v R [2020] NSWCCA 116
- R v RB [2020] NSWDC 328