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District Court 24 February 2023

R v Norton (a pseudonym)

[2023] NSWDC 301

Sexual offences
MULTIPLE OFFENCES MULTIPLE VICTIMS SENTENCING RELEVANT FACTORS ON SENTENCE MULTIPLE OFFENCES THREE COMPLAINANTS STEPDAUGHTERS

Citation: R v Norton (a pseudonym) [2023] NSWDC 301
Court: District Court of New South Wales
Date: 24 February 2023
Judge: Haesler SC DCJ

Background

The offender, referred to by the pseudonym Henry Norton, pleaded guilty to a series of child sexual offences committed against three young girls, each of whom was his stepdaughter at the relevant time. The offences spanned from 2014 to 2021 and involved three complainants identified by the pseudonyms Sue, Mary, and Jane.

The offences against Sue occurred when she was aged between 9 and 14, and included digital penetration and acts of indecency involving forced masturbation accompanied by threats of violence. The offences against Mary and Jane occurred in 2021, when the offender was 36 years old. Those offences included indecent acts while the children were sleeping and the exposure of the offender's genitals via FaceTime to Jane.

All three complainants eventually disclosed the offending. Sue made a formal statement in November 2021 after earlier disclosures had not been acted upon. Mary and Jane disclosed to their mother in October 2021 and police complaints followed shortly after. The offender was on bail or serving a supervised sentence in the community at various points during the offending period.

  • What is the appropriate aggregate sentence for multiple child sexual offences committed against three victims over an extended period?
  • How should the court assess objective seriousness across offences involving different conduct and different complainants?
  • What weight should be given to mitigating factors including an early guilty plea, a history of childhood abuse and neglect, and reduced moral culpability associated with the COVID-19 period?
  • How should special circumstances be found and applied to adjust the non-parole period?
  • What are the consequences for the offender as a high-risk offender under the Crimes (High Risk Offenders) Act 2006 (NSW)?

Decision

His Honour imposed an aggregate sentence, noting the absolute prohibition on sexual contact with children and the need for the sentence to achieve retribution, vindication of the complainants' dignity, and general deterrence. The court acknowledged that courts have historically imposed, and will continue to impose, severe penalties for this category of offending.

Each of the five matters for sentence attracted a separate indicated sentence, and additional conduct was taken into account via Form 1 (a mechanism under NSW law allowing a court to take further offences into account when sentencing, without recording a separate conviction for them). Each indicated sentence was reduced by 25 per cent to reflect the utilitarian value of the offender's early guilty plea.

Special circumstances were found to exist, warranting a departure from the standard ratio between the non-parole period and the balance of term. This finding extended the parole period to approximately one third of the total sentence, reflecting the need for extended supervision upon release given the nature and extent of the offending and the offender's personal circumstances, including his history of childhood abuse and neglect and the need for rehabilitation.

The court also noted that the offender fell within the definition of a high-risk offender under the Crimes (High Risk Offenders) Act 2006 (NSW). His Honour made clear to the offender directly that non-cooperation with parole or corrections authorities could result in the imposition of additional conditions or continued detention beyond the expiry of his sentence. The offender was also placed on the sex offenders register.

Orders Made

  • First matter (Sue), s 66A(1): 6 years imprisonment, non-parole period 3 years and 10 months
  • Second matter (Sue), s 61M(2): 3 years 9 months imprisonment, parole period 2 years and 5 months
  • Third matter (Sue), s 66C(2): 4 years 6 months imprisonment, non-parole period 2 years and 11 months (taking into account Form 1 matters)
  • Fourth matter (Mary), s 66DA: 4 years 6 months imprisonment, non-parole period 2 years and 11 months (taking into account Form 1 matters)
  • Fifth matter (Jane), s 66DB(a): 3 years imprisonment, non-parole period 2 years
  • Aggregate sentence: 10 years and 3 months imprisonment, commencing 22 January 2022
  • Non-parole period: 6 years and 9 months; eligible for parole consideration on 21 October 2028
  • Balance of term: 3 years and 6 months, commencing 22 October 2028 and expiring 21 April 2032
  • Each sentence reflects a 25 per cent reduction for the utilitarian value of the early guilty plea
  • Special circumstances found, resulting in approximately one third of the sentence being served on parole
  • The offender classified as a high-risk offender under the Crimes (High Risk Offenders) Act 2006 (NSW)
  • Placed on the sex offenders register
  • Copies of the psychologist's reports directed to accompany the warrant

Key Takeaways

  • The District Court confirmed that serial child sexual offending committed by a person in a position of authority and trust over the victims, and accompanied by threats and grooming behaviour, will attract substantial aggregate sentences even where the offender pleads guilty at an early stage.
  • A 25 per cent discount for the utilitarian value of an early guilty plea was applied across all five matters for sentence, consistent with established NSW sentencing principles.
  • Special circumstances justified a longer parole period than would ordinarily apply, reflecting the court's assessment that extended supervision post-release was necessary given the offender's background and rehabilitation needs.
  • Where an offender falls within the Crimes (High Risk Offenders) Act 2006 (NSW), the sentencing court is required to draw the offender's attention to the possibility of ongoing detention or additional conditions after the sentence expires, though that regime cannot itself be taken into account in fixing the sentence.
  • Personal mitigating factors, including a history of childhood abuse and neglect, reduced (but did not eliminate) moral culpability; the court applied the principle from Bugmy v The Queen (2013) 249 CLR 571 in weighing those matters against the gravity of the offending.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW)
- Crimes Act 1900 (NSW), including ss 61M, 66A, 66C, 66DA, 66DB, 578A
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- AB v R [2022] NSWCCA 62
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2013] NSWCCA 115; (2002) 56 NSWLR 146
- Barbaro v The Queen (2014) 253 CLR 58
- BT v R [2010] NSWCCA 267
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Clarkson v R [2011] VSCA 157; 32 VR 361
- DH v R [2022] NSWCCA 200
- Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Doe v Regina [2013] NSWCCA 248; (2013) 187 A Crim R 328
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Hoare v The Queen (1989) 167 CLR 348
- LB v R [2019] NSWCCA 151
- MAK v R [2006] NSWCCA 381
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA