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District Court 10 February 2023

R v RJ

[2023] NSWDC 22

Sexual offencesAssault & violenceDomestic & family violence
CRIME COMMON ASSAULT ( DV)

Citation: R v RJ [2023] NSWDC 22
Court: District Court of New South Wales
Date: 10 February 2023
Judge: Mahony SC DCJ

Background

The offender, born in 1981, stood trial before Mahony SC DCJ in a judge-alone proceeding. He was acquitted of two counts and convicted of 19 counts arising from the sustained sexual and physical abuse of a child (referred to as LJ) over a period spanning approximately 2015 to 2018. A second victim (AH) was the subject of one common assault count.

The offences were committed in a domestic context. The child was between approximately 11 and 14 years of age during the offending period, and the aggravating circumstance applying to the sexual intercourse charges was that LJ was a person under the authority of the offender. The matter was heard together with a second judge-alone trial presided over by Judge Neilson, and the sentence hearing was delayed by that proceeding and by the offender's need to obtain psychological evidence.

The offender had no prior criminal history. He was born in Baghdad, Iraq, came from a persecuted minority ethno-religious community (the Mandaean group), and migrated to Australia in 2004 after his family fled persecution. He had been in custody since 9 November 2019.

  • What aggregate sentence was appropriate across 19 counts encompassing indecent assault, aggravated sexual intercourse with a child aged 10 to 14, aggravated sexual intercourse with a child aged 14 to 16, and common assault, all in a domestic setting?
  • Whether special circumstances existed under s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 to justify varying the statutory ratio between head sentence and non-parole period.
  • Whether the offender's medical conditions warranted any adjustment to the sentence on the basis that imprisonment would constitute a greater burden on him.

Decision

His Honour imposed an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999. The sentencing remarks are to be read alongside the verdict judgment (R v RJ [2022] NSWDC 151). The offences were grave in nature: they involved repeated sexual abuse of a young child who was under the offender's authority, committed across multiple locations and over several years.

His Honour found special circumstances pursuant to s 44(2B) of the Crimes (Sentencing Procedure) Act 1999, justifying a variation to the standard ratio between the head sentence and the non-parole period. This resulted in a non-parole period of 8 years against a head sentence of 12 years, producing a balance of term of 4 years.

The offender's medical conditions were considered but did not reduce the sentence. His Honour applied the established principle that Justice Health carries a statutory obligation to provide appropriate care and treatment for prisoners, citing R v Achurch (2011) 216 A Crim R 152. Accordingly, imprisonment was not found to impose a greater burden on the offender by reason of his health.

The sentence was backdated to 9 November 2019, reflecting the offender's time already spent in custody (a period of 3 years and 94 days at the time of sentencing).

Orders Made

  • Conviction entered for nine counts of indecent assault on a person under 16 years (s 61M(2) Crimes Act 1900): Counts 1, 2, 4, 5, 6, 7, 8, 15 and 16.
  • Conviction entered for five counts of aggravated sexual intercourse with a child aged 10 to 14 years (s 66C(2) Crimes Act 1900): Counts 3, 9, 10, 11 and 13.
  • Conviction entered for two counts of aggravated sexual intercourse with a child aged 14 to 16 years (s 66C(4) Crimes Act 1900): Counts 14 and 17.
  • Conviction entered for three counts of common assault (s 61 Crimes Act 1900): Counts 12, 20 and 21.
  • Aggregate head sentence of 12 years imprisonment imposed pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999.
  • Non-parole period of 8 years, commencing 9 November 2019 and terminating 8 November 2027.
  • Balance of term: 4 years, from 9 November 2027 to 8 November 2031.
  • Parole eligibility date: 8 November 2027 (subject to State Parole Authority determination).

Key Takeaways

  • Special circumstances under s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 were established, allowing the court to depart from the standard ratio between head sentence and non-parole period and set a proportionally longer balance of term.
  • Where an offender's position as a person in authority over a child constitutes the statutory aggravating circumstance, this feature directly increases the seriousness of the sexual intercourse offences charged under s 66C of the Crimes Act 1900.
  • The District Court confirmed the established principle that an offender's medical conditions do not automatically reduce a custodial sentence: Justice Health's statutory obligation to provide appropriate care means imprisonment does not, on that basis alone, impose a greater burden on a medically affected prisoner.
  • An aggregate sentencing approach under s 53A of the Crimes (Sentencing Procedure) Act 1999 was applied across 19 counts spanning multiple offence categories and several years of offending.
  • Backdating of the sentence to reflect time already served in pre-sentence custody reduced the effective future custodial period, with the sentence running from 9 November 2019.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61, 61M(2), 66C(2), 66C(4)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2B), 53A
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases
- R v Achurch (2011) 216 A Crim R 152; [2011] NSWCCA 186
- R v Cahyadi [2007] NSWCCA 1
- R v Gavel [2014] NSWCCA 56
- R v Tuala [2015] NSWCCA 8
- R v Youkhana [2004] NSWCCA 412
- R v RJ [2022] NSWDC 151 (verdict judgment)