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District Court 18 March 2022

R v RI

[2022] NSWDC 676

Sexual offences
CRIME SENTENCE 3 VICTIMS RELATED TO OFFENDER VICTIMS UNDER AUTHORITY SIGNIFICANT AGE DIFFERENCE AGGRAVATING FACTORS

Citation: R v RI [2022] NSWDC 676
Court: District Court of New South Wales
Date: 18 March 2022
Judge(s): K Robinson DCJ

Background

The offender, a 67-year-old man, was sentenced for three offences of maintaining an unlawful sexual relationship with a child under section 66EA(1) of the Crimes Act 1900. A statutory non-publication order applies to any material that could identify the victims, who are referred to by initials only throughout the judgment.

The three victims were children related to or connected with the offender through family ties. The first victim, MM, was the offender's maternal niece by another relationship, aged seven at the time of the offending (1989 to 1990). The second and third victims, KG and TB, were sisters and the daughters of the sister of the offender's then-partner; they were aged between four and fifteen during the offending period, which spanned 1996 to 2006. In each case, the offender exploited domestic arrangements in which he was entrusted with the care of the children.

The offending involved repeated sexual acts across extended periods, including oral penetration, digital penetration, indecent exposure, and indecent touching. The offender used threats, secrecy, and inducements to maintain control over each victim. He pleaded guilty to all three counts. The court also took into account, on a Form 1 basis attached to sequence 32, a 2020 offence of possessing child abuse material on a mobile phone.

  • What was the applicable maximum penalty for offences under section 66EA(1) of the Crimes Act 1900?
  • What objective gravity attached to the three sets of offending, and how did the aggravating and mitigating factors interact?
  • What discount applied for the guilty plea, and what weight should be given to the offender's subjective circumstances, including his history of trauma and his prospects of rehabilitation?
  • Whether special circumstances existed to justify departing from the standard non-parole period ratio.
  • How the principle of totality should be applied in constructing an aggregate sentence across three counts involving separate victims and overlapping time periods.

Decision

The court accepted, consistent with the majority in Xerri v R [2021] NSWCCA 268, that the applicable maximum penalty for each offence was life imprisonment. Robinson DCJ treated that maximum as an important yardstick in the sentencing exercise, reflecting Parliament's assessment of the seriousness of this category of offending.

The court identified multiple aggravating features: the victims were under the offender's authority and care; all three were significantly younger than him; the offending occurred in the family home or domestic settings where the victims had every reason to feel safe; the offending against KG and TB occurred over a period of approximately nine and ten years respectively; and there was a pattern of grooming, threats, and secrecy. The offender's prior criminal history was also noted as an aggravating factor.

Mitigating features included the offender's guilty plea, which attracted a 25 per cent discount, and evidence of a background of significant trauma and abuse. However, his prospects of rehabilitation were assessed as guarded, primarily because he continued to deny the full extent of his offending despite the pleas. The court acknowledged family support but gave it limited weight in the overall assessment.

On totality, the court found that some concurrency was appropriate for the offending involving KG and TB, given the overlapping time periods, but a meaningful degree of accumulation was required for the earlier and separate offending involving MM. Special circumstances were found, resulting in the non-parole period being set at approximately 60 per cent of the total term rather than the standard 67 per cent.

Orders Made

  • The offender was convicted of all three offences (sequences 30, 31, and 32).
  • An aggregate sentence of 20 years imprisonment was imposed, comprising a non-parole period of 12 years and a balance of term of 8 years.
  • The sentence commenced on 17 December 2020 and expires on 16 December 2040.
  • The offender will be eligible for release to parole on 16 December 2032.
  • The court recommended that a psychological report (by Ms Duffy) be provided to Justice Health.
  • The Form 1 offence (possession of child abuse material) was taken into account in sentencing on sequence 32.

Key Takeaways

  • The District Court confirmed, applying the majority in Xerri v R [2021] NSWCCA 268, that the maximum penalty for maintaining an unlawful sexual relationship with a child under section 66EA(1) of the Crimes Act 1900 is life imprisonment, and that this maximum functions as a meaningful yardstick in sentencing.
  • A guilty plea does not automatically generate strong prospects of rehabilitation where the offender continues to deny the underlying conduct; Robinson DCJ assessed rehabilitation as guarded on that basis.
  • Where multiple victims are involved across overlapping and distinct time periods, the principle of totality still requires some measure of accumulation, particularly where one set of offending is temporally separate from the others.
  • Special circumstances under the Crimes (Sentencing Procedure) Act 1999 may be established to vary the standard ratio between non-parole period and head sentence, resulting here in a non-parole period of approximately 60 per cent of the total term.
  • A background of personal trauma and abuse, as recognised in Bugmy v R [2013] HCA 37, was taken into account in mitigation, though it did not displace the weight of the objective gravity of sustained, multi-victim offending against young children in a position of vulnerability and trust.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66EA(1), 91H(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 32

Cases
- Attorney General's Application No 1 (2002) 56 NSWLR 146
- Bugmy v R [2013] HCA 37
- Burr v R [2020] NSWCCA 282
- GP v R [2021] NSWCA 180
- Ibbs v R (1987) 163 CLR 447
- Minehan v R [2010] NSWCCA 140
- R v Hutchinson [2018] NSWCCA 152
- R v Langbein (2008) 181 A Crim R 378
- R v Millwood [2012] NSWCCA 2
- R v Porte [2015] NSWCCA 174
- R v Warwick (No 94) [2020] NSWSC 1168
- Veen v R (No 2) (1988) 164 CLR 46
- Xerri v R [2021] NSWCCA 268