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District Court 5 June 2023

R v BH

[2023] NSWDC 276

Sexual offences
CRIME SENTENCE

Citation: R v BH [2023] NSWDC 276
Court: District Court of New South Wales
Date: 5 June 2023
Judge: Bourke SC DCJ

Background

The offender, referred to as BH, was a foster carer who had a young girl (referred to as NP, born November 2002) placed in his care from approximately 2008 to 2011 when she was aged five to nine years. The offending took place at the family home in Warialda and on at least one interstate trip to Sydney. The offender and his then partner provided NP with foster care during this period, and the offending occurred on multiple separate occasions across that time.

The offender faced seven counts across the indictment: two counts of committing an act of indecency with a child under ten years (under s 61O(2) of the Crimes Act 1900) and five counts of indecent assault of a child under 16 years (under s 61M(2) of the same Act). He pleaded guilty on the first day set for trial, which the court recognised carried a 5% utilitarian discount on sentence.

The agreed facts described a pattern of escalating sexual offending, including the offender exposing himself, masturbating in front of NP, pressing his erect penis against her genitals, entering the shower with her, and ejaculating onto her underwear. The complainant also disclosed that the offender had warned her not to report the conduct by telling her she would "get in trouble" with police.

  • The appropriate indicative sentence for each individual count, accounting for the relevant maximum penalties and, where applicable, the standard non-parole period of eight years for s 61M(2) offences
  • The appropriate aggregate sentence, including the correct head sentence and non-parole period, applying the totality principle to avoid crushing the offender with the combined weight of all counts
  • The correct discount for the guilty pleas entered on the first day of trial
  • The weight to be given to relevant subjective factors in fixing the overall sentence

Decision

His Honour assessed each count separately before arriving at an aggregate sentence. The s 61M(2) offences each carry a maximum penalty of ten years imprisonment and a standard non-parole period of eight years, making that benchmark a significant guidepost. The two s 61O(2) offences carry a maximum of seven years with no standard non-parole period.

Indicative sentences ranged from two years four months for Count 1 (the first indecency offence) up to four years three months for Counts 3 and 5, which involved direct physical contact of a more serious nature. Each indicative sentence incorporated the 5% plea discount from the starting point assessed by the court.

Applying the totality principle (which requires a court to step back and assess whether the combined sentence reflects the overall criminality without being disproportionately severe), His Honour set an aggregate head sentence of eight years six months with a non-parole period of five years nine months. The sentencing start date was fixed by agreement at 7 August 2021, meaning the head sentence expires on 6 February 2030 and the non-parole period expires on 6 May 2027. His Honour also directed that a report from a forensic expert (Dr White, dated 18 May 2023) be forwarded to the Department of Corrective Services and Justice Health, indicating a period of supervision was contemplated upon release.

Orders Made

  • Aggregate head sentence of eight years six months imprisonment, commencing 7 August 2021 and expiring 6 February 2030
  • Non-parole period of five years nine months, expiring 6 May 2027
  • Direction that Dr White's report dated 18 May 2023 be forwarded to the Department of Corrective Services and Justice Health
  • A ten-year Apprehended Violence Order (AVO) had been made by consent in the Local Court; no further AVO orders were required from the District Court

Key Takeaways

  • The District Court applied the standard non-parole period of eight years under s 61M(2) of the Crimes Act 1900 as a significant guidepost when calibrating indicative sentences for each indecent assault count, though the final aggregate sentence reflects a totality assessment across all seven counts.
  • A guilty plea entered on the first day of trial attracted only a 5% utilitarian discount, consistent with Court of Criminal Appeal authority on late pleas that nonetheless relieve victims of the burden of giving evidence.
  • Sentencing for multiple counts of child sexual offending requires an indicative sentence for each count followed by a separate totality analysis, resulting in an aggregate term that reflects the full criminality without simply accumulating each individual sentence.
  • The offender's position as a foster carer was a significant feature of the sentencing exercise, given the profound breach of trust involved in offending against a child placed in his care by the state.
  • Where agreed facts establish a pattern of offending over an extended period, including attempts to silence the victim through threats, those features bear directly on an assessment of objective seriousness across the individual counts.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 61O(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- AH v R [2015] NSWCCA 51
- BB [2021] NSWCCA 283
- Bhatia v R [2023] NSWCCA 12
- Bray [2018] NSWCCA 301
- Commonwealth Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194
- Ibbotson [2020] NSWCCA 92
- Jurd [2020] NSWCCA 91
- R v Stoupe [2015] NSWCCA 175
- T H [2019] NSWCCA 184