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District Court 18 November 2022

R v Reed (a pseudonym)

[2022] NSWDC 714

Sexual offences
CRIME AGGRAVATED RELEVANT FACTORS ON SENTENCE SENTENCE AFTER TRIAL STEPFATHER VICTIM IMPACT

Citation: R v Reed (a pseudonym) [2022] NSWDC 714
Court: District Court of New South Wales
Date: 18 November 2022
Judge: Haesler SC DCJ

Background

The offender, referred to by the pseudonym George Reed, was convicted after trial of two offences under the Crimes Act 1900: intentionally sexually touching a child aged between 10 and 16 years (s 66DBA), and aggravated sexual intercourse with a child aged between 10 and 14 years (s 66C(2)). The offences were committed against his stepdaughter, who was 11 years old at the time. The offending occurred in late 2019 and early 2020, first in the child's bedroom at the family home and then in the family car.

The trial had been heard by Judge Hatzistergos, who subsequently left the bench. The matter was therefore listed for sentencing before Haesler SC DCJ. Both parties agreed that sentencing would proceed on the basis of agreed facts rather than requiring the sentencing judge to review all trial evidence independently.

Reed had spent approximately two months in custody following his arrest in June 2020, was then released on strict bail (which he kept), and was returned to custody after the jury returned its verdicts on 3 June 2022. It was agreed by both parties that a custodial sentence was required, with the sentence to date from 30 March 2022.

  • How should the objective seriousness of the two offences be assessed, having regard to the nature of the acts, the child's age, the duration of the offending, and the offender's position as stepfather?
  • How should the standard non-parole period for the aggravated sexual intercourse offence (9 years, with a maximum of 20 years) guide the sentencing exercise?
  • Whether the abuse of trust and abuse of authority, both arising from the same facts, gave rise to a risk of double-counting as an aggravating factor.
  • What weight should be given to subjective factors, including the offender's health and the harshness of imprisonment?
  • Whether special circumstances existed to justify a departure from the standard ratio between the non-parole period and the total sentence.
  • What action, if any, should be taken in respect of an admitted breach of an existing good behaviour bond?

Decision

Haesler SC DCJ assessed the objective seriousness of both offences as above the lower end of the scale. The court identified several aggravating features: the child was 11 years old, the offending occurred in places where she should have been safe (her bedroom and the family car), the offender held a position of trust and authority as her stepfather, and she was effectively helpless. His Honour declined to treat the brief duration of the physical contact as significantly mitigating, noting that the offences are constituted by any degree of penetration or touching, and that brevity does not diminish the gravity of the experience for the victim.

The court acknowledged the distinction between abuse of trust and abuse of authority as separate legal concepts, while cautioning against double-counting where both arise from the same facts. Count 2 (aggravated sexual intercourse) involved abuse of authority as a statutory aggravating element. His Honour was therefore careful to avoid giving that factor undue additional weight in the overall assessment.

The court applied the standard non-parole period of 9 years for the aggravated sexual intercourse offence as a legislative benchmark, assessing objective seriousness without reference to subjective factors at that stage, consistent with Muldrock v The Queen (2011) 244 CLR 120. The court also considered the victim impact material and the presumed ongoing psychological harm to the child, noting that the effects of child sexual abuse are well-documented and can be lasting regardless of the duration of individual acts.

His Honour found special circumstances existed, which justified a longer-than-standard parole period. An aggregate sentence was imposed to reflect the totality of the criminality without eroding the special circumstances finding. No action was taken on the admitted breach of the existing good behaviour bond, given the bond had nearly expired and the custodial sentence imposed was substantial.

Orders Made

  • For the intentional sexual touching offence (s 66DBA): 2 years' imprisonment.
  • For the aggravated sexual intercourse offence (s 66C(2)): 5 years and 6 months' imprisonment, with a non-parole period of 3 years and 6 months.
  • Aggregate sentence: 6 years and 6 months' imprisonment.
  • Aggregate non-parole period: 4 years (reflecting a finding of special circumstances), commencing 30 March 2022.
  • Eligibility for release to parole: 29 March 2026.
  • Parole period: 2 years and 6 months.
  • Total sentence expires: 29 September 2028.
  • The offender was formally notified of his classification as a high-risk offender under the Crimes (High Risk Offenders) Act 2006, with the consequence that release may be subject to additional conditions or delayed if he is assessed as posing a community risk.
  • No action taken on the admitted bond breach, given the bond's near-expiry and the length of the custodial sentence imposed.

Key Takeaways

  • The District Court confirmed that every act of child sexual exploitation is treated as serious by the courts, with maximum penalties and standard non-parole periods serving as legislative markers to guide the sentencing exercise.
  • Brevity of physical contact does not automatically reduce the objective gravity of a child sexual offence. The offences under ss 66DBA and 66C(2) are constituted by any degree of touching or penetration, and the duration of individual acts is only one circumstance to weigh in the overall assessment.
  • Where abuse of trust and abuse of authority both arise from the same facts, a court must take care not to double-count those circumstances as aggravating factors, particularly where abuse of authority is already an element of the statutory offence charged.
  • A finding of special circumstances allows a court to extend the parole period beyond the standard ratio, and an aggregate sentence can be structured to preserve that finding rather than erode it.
  • Under the Crimes (High Risk Offenders) Act 2006, an offender sentenced for offences of this nature may be classified as a high-risk offender, potentially subjecting any future release to conditions or delay beyond the minimum non-parole period.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66C(2), 66DBA
- Crimes (High Risk Offenders) Act 2006 (NSW)

Cases
- Clarkson v R [2011] VSCA 152
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- MRW v R [2011] NSWCCA 260
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- R v Gavel [2014] NSWCCA 56
- R v Herring (1956) 73 WN (NSW) 203
- R v Van Ryn [2016] NSWCCA 1
- SB v R [2022] NSWCCA 164
- Tepania v R [2018] NSWCCA 247