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District Court 17 February 2022

R v Young

[2022] NSWDC 684

Sexual offences
SENTENCE S66EA OF THE CRIMES ACT 1900.

Citation: R v Young [2022] NSWDC 684
Court: District Court of New South Wales
Date: 17 February 2022
Judge(s): Mahony SC DCJ

Background

The offender was sentenced following a guilty plea to a single charge of maintaining an unlawful sexual relationship with a child under s 66EA of the Crimes Act 1900. The victim, referred to as PW, was the daughter of the offender's partner. He became her de facto stepfather when she was approximately four years old, and the offending commenced almost immediately after he moved into the family home.

The relationship between the offender and the victim spanned approximately nine years, from January 1992 to between March 2000 and August 2001. During that period, PW was aged between four and fourteen years. The offending took place across several residential addresses in New South Wales as the family relocated over the years.

The offender voluntarily attended Belmont Police Station in May 2021 and made admissions to the conduct. He entered a guilty plea at the earliest available opportunity in the Local Court and had been in continuous custody from 2 May 2021 referrable solely to this offence.

  • What was the appropriate head sentence for an offence of maintaining an unlawful sexual relationship with a child under s 66EA, given the nature, duration, and gravity of the offending conduct?
  • What discount should apply to the sentence in recognition of the offender's early guilty plea and cooperation with authorities?
  • Whether special circumstances existed under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 to justify varying the standard ratio between the head sentence and the non-parole period.
  • How to balance the aggravating and mitigating factors, including the offender's mental health, cognitive impairment, and the impact of the COVID-19 pandemic on the prison population.

Decision

The court found the offending to be objectively serious by any measure. The sexual acts particularised in the charge were extensive and escalating, ranging from directing the child to perform sexual acts from the age of four, to attempted penile penetration when she was approximately twelve years old. The offending included physical violence, threats, and the deliberate exploitation of the offender's position as the victim's stepfather and primary carer.

Mahony SC DCJ identified an appropriate starting point of 16 years' imprisonment before applying any discount. A substantial discount of 45 per cent was applied, reflecting the utilitarian value of the early guilty plea together with the offender's cooperation in providing admissions to police and his participation in the agreed statement of facts. The resulting head sentence was 8 years and 9 months.

Special circumstances were found to exist under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, based on the offender's mental health conditions, cognitive impairment, and the additional hardship of imprisonment during the COVID-19 pandemic. This justified varying the statutory ratio between the head sentence and the non-parole period, resulting in a longer than usual period on parole to facilitate rehabilitation and supervision upon release.

The court was satisfied that no penalty other than full-time imprisonment was appropriate under s 5 of the Crimes (Sentencing Procedure) Act 1999, having considered all available alternatives.

Orders Made

  • The offender was convicted of maintaining an unlawful sexual relationship with a child under s 66EA of the Crimes Act 1900.
  • A non-parole period of 5 years and 6 months was imposed, commencing 2 May 2021 and terminating 1 November 2026.
  • The balance of term was set at 3 years and 3 months, commencing 2 November 2026 and terminating 1 February 2030.
  • The parole eligibility date was set at 1 November 2026, with release subject to determination by the State Parole Authority and stringent parole conditions.

Key Takeaways

  • A starting point of 16 years' imprisonment was assessed as appropriate for a s 66EA offence involving sustained, escalating sexual abuse of a child over approximately nine years, beginning when the victim was four years old.
  • Under s 66EA, the particularised unlawful sexual acts do not each need to be proved individually; the charge captures the pattern of conduct comprising the relationship as a whole, which informed the sentencing approach here.
  • A discount of 45 per cent was applied for an early guilty plea combined with voluntary admissions to police, illustrating that cooperation at an early stage can attract a substantial sentencing reduction in serious child sexual abuse matters.
  • Special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 were established by a combination of mental health conditions, cognitive impairment, and the documented impact of COVID-19 on the prison environment, justifying an extended period on parole relative to the head sentence.
  • Where an offender exploits a position of parental authority and trust over an extended period, and where the offending involves both sexual and physical violence against a child, courts will treat those features as significant aggravating factors in the sentencing calculus.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66EA (and ss 61M(1), 61M(2), 61O(2), 66A, 66C(2))
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 44(2)

Cases
- Burr v R (2020) 285 A Crim R 504; [2020] NSWCCA 282
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Magnuson v R [2013] NSWCCA 50
- R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56
- RJT v R (2021) 218 A Crim R 490; [2012] NSWCCA 280
- SZ v R (2007) 168 A Crim R 249; [2007] NSWCCA 19
- Xerri v R (2021) A Crim R 355; [2021] NSWCCA 268