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District Court 25 November 2022

R v PM

[2022] NSWDC 686

Sexual offences
CRIME SENTENCE INDECENT ASSAULT SEXUAL INTERCOURSE WITH CHILD 10 14 YEARS UNDER AUTHORITY

Citation: R v PM [2022] NSWDC 686
Court: District Court of New South Wales
Date: 25 November 2022
Judge(s): Bourke SC DCJ

Background

The offender, PM, was convicted by a jury at Newcastle following a trial on 16 counts spanning two separate victims. The offences included indecent assault, inciting children to commit acts of indecency, and sexual intercourse with children, contrary to various provisions of the Crimes Act 1900.

The first victim, JR, was seven years old in 1990 when the offender, then aged 33 to 34, was in a relationship with a friend of JR's mother. The offender committed two acts of indecent assault on JR during shared baths, instructing him afterwards to keep the conduct secret.

The second victim, OS, was the offender's own son, born in 1999. Following the offender's separation from OS's mother in late 2004 or early 2005, OS spent regular time at the offender's properties under custody arrangements. The offending against OS began when he was approximately five to six years old and continued until he was around 13 years of age, a period of roughly seven to eight years spanning multiple addresses.

  • What facts, consistent with the jury's verdicts, should form the basis of sentence?
  • What weight should be given to aggravating and mitigating factors, including the offender's age, health, and prior criminal history?
  • How should the principle of totality be applied to avoid an inappropriately crushing aggregate sentence while still reflecting the seriousness and duration of the offending?
  • Whether special circumstances existed to justify adjusting the ratio of the non-parole period to the head sentence?
  • What warnings, if any, were required under the Crimes (High Risk Offenders) Act 2006?

Decision

Bourke SC DCJ set out the factual findings in detail, accepting the Crown's proposed facts for sentence, which defence counsel agreed accurately reflected the trial evidence. The offending against OS was found to be particularly grave: it began with oral sex performed on OS when he was five to six years old, escalated over subsequent years to include penile-anal intercourse, and became so routine at the offender's Warner's Bay address that OS described it as "normal." The offender exploited his position as OS's father and custodial parent throughout.

His Honour identified significant aggravating features: the offender was in a position of authority and trust over both victims; the offending against OS was prolonged, escalating, and involved a child of very young age; and the offender gave OS gifts and used secrecy instructions to maintain the abuse. Mitigating factors considered included the offender's age (75 at the time of sentencing), a serious cardiac condition, his prior good character, and his lack of any prior criminal record.

On the question of totality, the court acknowledged its obligation not to impose an inappropriately crushing sentence while ensuring the sentence reflected the seriousness and repetition of the conduct, the need for personal and general deterrence, and the other purposes set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. An aggregate sentence was considered the appropriate mechanism.

A finding of special circumstances was made, based on the offender's age, this being his first period of custody, and the need for supervised monitoring upon release. This finding adjusted the ratio of non-parole period to head sentence. The court also delivered the mandatory warning under the Crimes (High Risk Offenders) Act 2006, noting that the State may apply to the Supreme Court for continued supervision or detention at the end of the sentence if the offender is assessed as a high-risk offender.

Orders Made

  • The offender was convicted of each offence on the indictment.
  • An aggregate sentence of 15 years imprisonment was imposed.
  • A non-parole period of 10 years and 3 months was set.
  • Both the aggregate sentence and non-parole period commenced on 8 August 2022.
  • The head sentence expires on 7 August 2037; the non-parole period expires on 7 November 2032.

Key Takeaways

  • The District Court applied the totality principle to a 16-count indictment spanning two victims and imposed an aggregate sentence, balancing the need to reflect serious and repeated offending against the principle against crushing sentences.
  • Where an offender is a first-time custodial prisoner, is elderly, and has significant health issues, these factors may support a finding of special circumstances, justifying a longer parole period relative to the non-parole period, though the non-parole period must still reflect the minimum time warranted by the gravity of the offences.
  • Offending that occurs within a parent-child custodial relationship, and that involves very young victims over an extended period with deliberate secrecy instructions, is treated as involving serious abuse of a position of trust and authority, attracting significant weight as an aggravating feature.
  • Under the Crimes (High Risk Offenders) Act 2006, sentencing courts are required to warn offenders convicted of relevant serious offences that the State may seek continued supervision or detention beyond the end of their sentence if they are assessed as posing an unacceptable risk of reoffending.
  • Facts for sentencing must be determined consistently with the jury's verdicts, with aggravating matters proved beyond reasonable doubt and mitigating matters proved on the balance of probabilities.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61E(1), 61M(2), 61O(1), 61O(2), 66A, 66C(2)
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A

Cases:
- Deng & Matthews v R [2013] NSWCCA 326
- Mohindra v R [2020] NSWCCA 340
- MRW v R [2011] NSWCCA 260
- R v Holyoak (1995) 82 A Crim R 502
- Woodward v R [2017] NSWCCA 44