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District Court 19 May 2023

R v PN

[2023] NSWDC 170

Sexual offences
SENTENCING MULTIPLE CHILD SEXUAL OFFENCES POSSESSION OF CHILD ABUSE MATERIAL OBJECTIVE SERIOUSNESS PROSPECTS OF REHABILITATION

Citation: R v PN [2023] NSWDC 170
Court: District Court of New South Wales
Date: 19 May 2023
Judge: Coleman SC DCJ

Background

The offender, referred to by the pseudonym PN, was sentenced for 15 offences arising from the prolonged sexual abuse of his niece, who was aged between 6 and 9 years old during the period of offending. The offender was the victim's paternal uncle and, from around mid-2018, lived with the victim's family in Inverell for approximately 13 to 14 months before moving to a separate residence in the same town.

The offending involved a sustained pattern of grooming, sexual touching, repeated sexual intercourse, and the production and possession of child abuse material. The offender used a mobile phone to send the child sexualised messages and photographs, photographed and filmed his abuse of her, and accumulated a large volume of child abuse material depicting her. The abuse was often carried out while the offender was in a position of care over the victim, including before and after school.

The offender had a prior conviction from 2009 for aggravated indecent assault on a child under 16. That prior conviction was directly relevant to sentencing on the Commonwealth offence, as it triggered a mandatory minimum penalty under the federal legislation.

  • What were the appropriate individual indicative sentences for each of the 15 offences, having regard to objective seriousness, the standard non-parole periods, and subjective factors including the early guilty plea?
  • How should the aggregate sentence be constructed under the totality principle to reflect the overall criminality without being crushing?
  • What discount applied to the sentences by reason of the early guilty plea (25% under NSW law; the equivalent consideration under the Commonwealth sentencing regime)?
  • What mandatory minimum sentence applied to the Commonwealth offence of possessing child abuse material via a carriage service, given the offender's prior child abuse conviction?
  • What weight should be given to prospects of rehabilitation, the offender's subjective circumstances, and the needs of general and specific deterrence?

Decision

Coleman SC DCJ found the offending to be of extreme objective seriousness. The abuse was repeated, premeditated, and involved multiple distinct forms of sexual violation of a very young child. The offender exploited a position of trust as a family member and informal carer. The production and systematic retention of child abuse material compounded the gravity of the conduct.

The judge applied a 25% discount across all offences, both State and Commonwealth, reflecting the utilitarian value of the early guilty plea. The Commonwealth discount was assessed by reference to the relevant factors under s 16A(2)(g) of the Crimes Act 1914 (Cth), including the fact and timing of the plea and the benefit to the community and the victim in avoiding a trial.

The prior 2009 conviction for aggravated indecent assault triggered the mandatory minimum sentence provisions under ss 3 and 16AAB of the Crimes Act 1914 (Cth) for the Commonwealth possession offence. The judge addressed this separately from the State offences and structured the Commonwealth sentence to run partly concurrently with the State sentences.

On the question of rehabilitation, the judge acknowledged the offender's plea and any other subjective matters but found they carried limited weight against the gravity and duration of the offending. The judge noted the existence of the Crimes (High Risk Offenders) Act 2006 (NSW) and its potential application at the end of the sentence, observing that rehabilitation efforts during the sentence would be in the offender's interests.

Orders Made

  • Aggregate State sentence of 37 years imprisonment, commencing 2 September 2022 and expiring 1 September 2059, with a non-parole period of 25 years (first eligible for parole 1 September 2047).
  • Commonwealth sentence structured to produce an effective head sentence of 38 years commencing 2 September 2021 and expiring 1 September 2059, with an effective non-parole period of 26 years.
  • Individual indicative sentences imposed for each count, ranging from 4 years 6 months (Count 14, including Form 1 matters) to 16 years 6 months (Count 12), before application of the 25% plea discount.

Key Takeaways

  • The District Court treated the systematic, repeated sexual abuse of a very young child by a trusted family member as offending of the utmost seriousness, warranting an aggregate sentence at the higher end of the range.
  • A prior conviction for a child sex offence triggered the mandatory minimum sentencing regime under the Crimes Act 1914 (Cth) for the Commonwealth possession offence, illustrating how prior State convictions can directly affect the applicable sentencing framework for federal charges.
  • An early guilty plea attracted a 25% discount under s 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW) on the State offences; the same proportionate discount was applied to the Commonwealth offence by reference to the analogous considerations in s 16A(2)(g) of the Crimes Act 1914 (Cth).
  • Under the totality principle, individual indicative sentences must be constructed before an aggregate term is fixed, ensuring the overall sentence reflects the full criminality without becoming disproportionate or crushing.
  • The Crimes (High Risk Offenders) Act 2006 (NSW) was identified as applicable to several of the offences, meaning the State may seek continued supervision or detention beyond the sentence expiry if the offender is assessed as posing an unacceptable risk at that time.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66A, 66DA, 66EB, 91G
- Crimes Act 1914 (Cth), ss 3, 16A, 16AAB, 16BA, 19AB
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 25D, 53A, 54B
- Criminal Code Act 1995 (Cth), ss 474.22, 474.22A
- Crimes (High Risk Offenders) Act 2006 (NSW)

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518
- Bravo v R [2015] NSWCCA 302
- DG v R [2017] NSWCCA 139
- Hraichie v R [2022] NSWCCA 155
- Ibbotson (A Pseudonym) v R [2020] NSWCCA 92
- Johnson v The Queen [2004] HCA 15
- R v Gavel [2014] NSWCCA 56
- R v Hutchinson [2018] NSWCCA 152
- R v Lamella [2014] NSWCCA 122
- R v MAK [2006] NSWCCA 381
- R v MJB [2014] NSWCCA 195
- R v Taylor [2022] NSWCCA 256
- RH McL v The Queen (2000) 203 CLR 452
- Sheu v R [2018] NSWCCA 86