Citation: R v Nussis [2023] NSWDC 178
Court: District Court of New South Wales
Date: 31 May 2023
Judge: Abadee DCJ
Background
The offender, a man aged 27 at the relevant time, pleaded guilty to seven counts of sexual intercourse with a child aged between 14 and 16 years, contrary to s 66C(3) of the Crimes Act 1900 (NSW). The offending occurred over approximately one month in June and July 2020. The victim was 15 years old when the offences took place, though contact between the offender and victim had begun when she was 14.
The offender first encountered the victim through the online gaming platform Fortnite, where players can communicate via microphone. Over several weeks, he engaged in lengthy daily communications with her, was aware of her age, and introduced sexual content into their exchanges. He then travelled from Sydney to Wollongong on multiple occasions to meet her in person, where the offences occurred, including at a beach and at a hotel.
The facts were substantially agreed between the parties, but a significant area of factual dispute arose regarding whether certain acts of penile-vaginal intercourse were unprotected and whether the offender ejaculated inside the victim. Both parties accepted that unprotected sex would aggravate the offending, though not in the statutory sense.
Legal Issues
- How to resolve disputed facts at sentencing, including whether unprotected intercourse and ejaculation inside the complainant occurred, and to what standard of proof
- Whether the relevant aggravating and mitigating factors under the Crimes (Sentencing Procedure) Act 1999 (NSW) applied
- How the totality principle applied when structuring sentences for seven discrete offences committed over approximately one month
- Whether special circumstances existed to justify departing from the standard non-parole period ratio
- Whether an Intensive Correction Order was available or appropriate
Decision
Resolving disputed facts. Abadee DCJ applied the principle from R v Olbrich (1999) 199 CLR 270: where the Crown sought to have disputed facts taken into account adversely to the offender, it was required to prove them beyond reasonable doubt; where the offender sought to have facts found in his favour, he bore the burden on the balance of probabilities. The central factual dispute concerned whether the offender used condoms and whether he ejaculated inside the victim for certain of the offences. The Court worked through each incident in turn to resolve these questions on the applicable standard before determining the weight to be given to each circumstance.
Indicative sentences and totality. The Court determined individual indicative sentences for each of the seven offences, then applied the totality principle to arrive at an overall sentence that comprehended the full criminality. The offences committed at the hotel on 7 July 2020 (sequences 4, 7, and 8) occurred within a 24-hour period, but the Court accepted the Crown's submission that they were discrete acts rather than part of a single escalating sexual encounter, warranting partial accumulation rather than full concurrency.
Mitigating factors and rehabilitation. The offender was a first-time offender who had pleaded guilty at an early stage, attracting a discount on each indicative sentence. The Court found that his prospects for rehabilitation were already good and that he would likely experience particular hardship in custody, warranting a finding of special circumstances. Accordingly, the Court varied the standard non-parole period ratio in his favour. An Intensive Correction Order was not available, as the offences are prescribed sexual offences under s 67 of the Crimes (Sentencing Procedure) Act 1999 (NSW), and in any event the length of the sentence would have precluded that option.
Orders Made
- The offender was convicted of seven offences of sexual intercourse with a child aged between 14 and 16 years.
- Total sentence of 5 years and 6 months imprisonment, commencing 17 January 2023 and expiring 16 July 2028.
- Non-parole period of 3 years, expiring 16 January 2026, after which the offender is eligible for parole.
- The sentence was backdated to 17 January 2023, with credit given for time spent in custody following original refusal of bail.
Key Takeaways
- Where sentencing facts are disputed, the Olbrich standard applies: adverse facts must be proved by the Crown beyond reasonable doubt, while an offender seeking favourable findings must establish them on the balance of probabilities.
- Discrete sexual offences committed within close temporal proximity do not automatically warrant full concurrency; the sentencing court must assess whether they formed part of a single encounter or constituted genuinely separate criminal acts, with partial accumulation potentially appropriate.
- A finding of special circumstances may be available to a first-time offender where the sentencing court accepts evidence of particular hardship in custody and strong prospects for rehabilitation, permitting a variation of the standard non-parole period ratio.
- Under s 67 of the Crimes (Sentencing Procedure) Act 1999 (NSW), prescribed sexual offences are excluded from eligibility for an Intensive Correction Order, regardless of other considerations.
- The District Court's approach confirmed that online grooming conduct occurring before the principal offences, including exploiting a vulnerable child's mental health disclosures, formed part of the relevant factual background for sentencing purposes.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 66C, 77, 91D
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 25AA, 25F, 67
Cases
- Bhatia v R [2023] NSWCCA 12
- Culbert v R [2021] NSWCCA 38
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- GL v R [2022] NSWCCA 202
- Langbein v R [2018] NSWCCA 38
- R v Gavel [2014] NSWCCA 56
- R v Nelson [2016] NSWCCA 130
- R v Olbrich (1999) 199 CLR 270
- R v Rush [2019] NSWDC 773