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District Court 18 November 2022

R v Farrell (a pseudonym)

[2022] NSWDC 695

Sexual offences
CRIME AGGRAVATED SEX UAL ASSAULT VICTIM UNDER THE AGE OF 16 YEARS AGGRAVATED SEX UAL ASSAULT RELEVANT FACTORS ON SENTENCE SENTENCE AFTER TRIAL

Citation: R v Farrell (a pseudonym) [2022] NSWDC 695
Court: District Court of New South Wales
Date: 18 November 2022
Judge: Haesler SC DCJ

Background

The offender, referred to by the pseudonym Andrew Farrell, was the uncle of the complainant, referred to by the pseudonym George. Over a period spanning George's early to mid-teenage years, the offending occurred during overnight stays at residences where Farrell lived, initially as carer for his brother and later at his own unit. The offending came to light in December 2020 when a Department of Family and Community Services officer, during a routine inquiry, asked George whether anything sexual had happened to him.

A jury trial ran in July 2022. The jury convicted Farrell on all six counts: two counts of indecent assault of a person under 16 (domestic violence offences) and four counts of aggravated sexual assault. The aggravated sexual assault counts reflected circumstances where George was under 16 years of age, and in one count, that he was under the offender's authority. Farrell was 65 years old at the time of sentencing and had no prior criminal history.

  • How to assess the objective seriousness of each individual count in the context of a pattern of offending against a child within a position of trust
  • Whether the prosecution's submission under s 21A(5A) of the Crimes (Sentencing Procedure) Act 1999 (relating to the use of good character to facilitate offending) should be accepted
  • How to weigh mitigating factors, including good character, absence of prior convictions, age, ill health, and mental health, against the seriousness of the offences
  • Whether special circumstances existed to justify a departure from the standard ratio between the non-parole period and the balance of term
  • How to structure an aggregate sentence that was neither crushing nor disproportionate

Decision

His Honour assessed the objective seriousness of each count individually. All four sexual assault counts involved oral intercourse initiated while George was asleep, each lasting approximately 20 minutes. The offending exploited George's trust, his vulnerability as a sleeping child, and the familial authority the offender held over him. Counts 2 and 4 involved George at ages 13 or 14; the later counts involved an older but equally vulnerable victim who had mistakenly believed his increasing age would protect him. The two indecent assault counts were treated as less serious individually, but their context, particularly their role as part of the same evening's offending and as part of a broader pattern, elevated their significance.

The prosecution pressed a submission that the offender's good character should be treated as having facilitated the offending, pursuant to s 21A(5A) of the Crimes (Sentencing Procedure) Act 1999. His Honour rejected this submission. The good character in question was not the kind of professional or institutional standing that gives an offender access to victims; rather, it was Farrell's general personal disposition. His Honour accepted that good character remained a genuine mitigating factor, though one that carried reduced weight given the nature and duration of the offending.

The court accepted that Farrell's age, ill health, and mental health conditions would make custody more burdensome than it would be for a younger and healthier offender. However, these factors could not displace the imperatives of retribution, deterrence, and victim vindication. His Honour found that the sentence had to mark the seriousness of the crimes and affirm the court's protection of children from sexual exploitation.

Special circumstances were found to exist, justifying a longer than standard parole supervision period. The reasons included Farrell's age and health, the fact this was his first period of custody, and the need to avoid a crushing sentence. The aggregate sentence was nine years imprisonment with a non-parole period of five years and ten months, commencing 5 July 2022.

Orders Made

  • Count 1 (Indecent assault, person under 16, DV): 1 year imprisonment, non-parole period 9 months
  • Count 2 (Aggravated sexual assault, victim under 16): 6 years imprisonment, non-parole period 3 years 10 months
  • Count 3 (Indecent assault, person under 16, DV): 1 year 6 months imprisonment, non-parole period 1 year
  • Count 4 (Aggravated sexual assault, victim under 16): 6 years imprisonment, non-parole period 3 years 10 months
  • Count 5 (Aggravated sexual assault, victim under 16): 5 years imprisonment, non-parole period 3 years 3 months
  • Count 6 (Aggravated sexual assault, victim under authority of offender, DV): 5 years imprisonment, non-parole period 3 years 3 months
  • Aggregate sentence: 9 years imprisonment, non-parole period of 5 years 10 months, commencing 5 July 2022; eligible for parole consideration 4 May 2028; balance of term to expire 4 July 2031
  • Finding of special circumstances made
  • Offender informed of the operation of the Crimes (High Risk Offenders) Act 2006

Key Takeaways

  • Every act of child sexual exploitation carries inherent seriousness, and courts assess objective gravity by reference to the nature of the act, the age of the victim, the age gap, the duration, any pain caused, and the nature of the relationship between offender and victim.

  • A prosecution submission under s 21A(5A) of the Crimes (Sentencing Procedure) Act 1999, seeking to treat good character as a factor that facilitated offending, was rejected where the offender's character consisted of general personal qualities rather than professional standing or institutional access that enabled the crimes.

  • Good character and the absence of prior convictions remain mitigating factors even in serious child sexual offending cases, though their weight is reduced when the offending was prolonged and the offender exploited his trusted relationship with the victim.

  • The District Court found special circumstances based on the combination of the offender's age, ill health, mental health, and the fact that this was his first period of custody, justifying a longer parole period to avoid a crushing outcome and to allow adequate supervision on release.

  • Retribution and victim vindication are independent and legitimate sentencing purposes in cases of this kind; the court expressly recognised the need for the sentence to affirm the victim's experience and communicate to the community the gravity of such offending.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J(1), 61M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(5A)
- Bail Act 2013 (NSW), s 22A
- Crimes (High Risk Offenders) Act 2006 (NSW)

Cases
- BT v R [2010] NSWCCA 267
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Chamseddine v R [2017] NSWCCA 176
- Clarkson [2011] VSCA 152
- Cowling v R [2015] NSWCCA 213
- Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
- Director of Public Prosecutions v DJK [2003] VSCA 109
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Mill v The Queen (1988) 166 CLR 59
- MRW v R [2011] NSWCCA 260
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Owen v R [2022] NSWCCA 214
- Postiglione v The Queen (1997) 189 CLR 295
- R v Clinch (1994) 72 A C