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District Court 4 November 2022

R v BT

[2022] NSWDC 739

Sexual offences

Citation: R v BT [2022] NSWDC 739
Court: District Court of New South Wales
Date: 4 November 2022
Judge(s): Bennett SC DCJ

Background

The offender, a man born in 1982, appeared for sentence in the District Court at Bega in respect of six child sexual offences. Five offences were committed against his biological daughter TT, and one against his stepdaughter MS. The offending spanned approximately eight years, from February 2013 to January 2021, when the offender was aged between 30 and 38.

The offending against TT came to light on New Year's Eve 2020, when she disclosed the abuse to an aunt during a conversation prompted by a television advertisement about menstruation. The offending against MS was a separate, earlier incident. The offender had been in a relationship with the victims' mother since around 2011, and the family lived in various locations in the Bega area throughout the relevant period.

The offender pleaded guilty in the Local Court to all six charges. He had been in custody since his arrest on 8 January 2021. Sentencing proceedings were delayed due to the need for mental health evidence and industrial action in Corrective Services.

  • What aggregate sentence was appropriate under s 53A of the Crimes (Sentencing Procedure) Act 1999 for six child sexual offences committed over approximately eight years against two child victims?
  • What discount applied to each individual sentence by reason of the early guilty pleas entered in the Local Court?
  • Whether special circumstances existed to justify a variation to the standard non-parole period ratio across the aggregate sentence.
  • What weight should be given to the offender's ADHD diagnosis, alcohol and drug misuse, and claimed mental health conditions in mitigation?

Decision

Bennett SC DCJ applied a 25% discount to each individual sentence, reflecting the offender's guilty pleas entered in the Local Court under Part 3, Division 1A of the Crimes (Sentencing Procedure) Act 1999. The individual sentences ranged from 2 years and 5 months for the act of indecency against MS, through to 7 years for the most serious offence of sexual intercourse with TT when she was aged seven or eight.

The court found special circumstances within the meaning of the sentencing legislation, specifically the offender's diagnosed ADHD and his history of alcohol and drug misuse. Those circumstances warranted a modest extension of the period of supervision on parole beyond the standard proportion, to facilitate structured intervention in controlled conditions.

The court observed that prospects of rehabilitation were limited by the offender's absence of genuine insight into his offending. Without an accurate and truthful acknowledgment of his motivations, the court noted it could not meaningfully assess how his offending behaviour might be addressed. The need for abstinence from alcohol and drugs was also identified as part of any meaningful rehabilitation pathway.

An aggregate sentence was imposed pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999, commencing from the date of the offender's arrest. The aggregate sentence comprised a non-parole period of 11 years followed by a further parole-eligible period of 4 years, for a total effective sentence of 15 years.

Orders Made

  • Sequence H80218984/1 (sexual act toward TT, aged 8 or 9): 2 years and 9 months imprisonment
  • Sequence H80218984/7 (procuring TT, aged 6 to 9, for unlawful sexual activity): 5 years and 6 months imprisonment, non-parole period of 4 years
  • Sequence H80218984/6 (sexual act toward TT, aged 8 or 9): 2 years and 6 months imprisonment
  • Sequence H80218984/9 (sexual intercourse with TT, aged 9): 6 years imprisonment, non-parole period of 4 years
  • Sequence H80218984/5 (sexual intercourse with TT, aged 7 or 8): 7 years imprisonment, non-parole period of 5 years
  • Sequence H79794020/1 (act of indecency toward MS, aged 7): 2 years and 5 months imprisonment
  • Aggregate sentence pursuant to s 53A: non-parole period of 11 years commencing 8 January 2021, expiring 7 January 2032; total sentence expiring 7 January 2036

Key Takeaways

  • A 25% guilty plea discount applied uniformly across all six charges, consistent with the statutory framework governing pleas entered at the earliest available opportunity in the Local Court.
  • Special circumstances were established on the basis of the offender's ADHD diagnosis and substance misuse history, justifying a modest extension of the parole period to facilitate supervised intervention.
  • Under s 53A of the Crimes (Sentencing Procedure) Act 1999, the District Court imposed a single aggregate sentence spanning all six offences rather than a series of cumulative or concurrent individual terms.
  • Absence of genuine insight into the reasons for offending weighed against the prospects of rehabilitation, even where diagnosed conditions and a history of prior engagement with drug and alcohol programs were accepted.
  • The aggregate non-parole period of 11 years reflected both the gravity of the individual offences, which included charges carrying maximum penalties of life imprisonment, and the totality principle applicable to a course of offending against two child victims over an extended period.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61O(2), 66A(1), 66DC(a), 66EB(2)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D(2)(a), 53A; Part 3, Division 1A

Cases:
- Ayshow v R [2011] NSWCCA 240
- Imbornone v R [2017] NSWCCA 144
- MDZ v R [2011] NSWCCA 243
- Muldrock v R [2011] HCA 39
- Tepania v R [2018] NSWCCA 247
- Veen v R (No 2) (1987-88) 164 CLR 465; [1988] HCA 14