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District Court 21 April 2023

R v Wilson (a pseudonym)

[2023] NSWDC 354

Sexual offences
PAROLE PERIOD — STANDARD NON

Citation: R v Wilson (a pseudonym) [2023] NSWDC 354
Court: District Court of New South Wales
Date: 21 April 2023
Judge: Haesler SC DCJ

Background

The offender, referred to by the pseudonym Wilson, was the father of the complainant, referred to in the judgment by the pseudonym Harriett (born March 2008). Following her parents' separation, Harriett spent regular time with her father under an access arrangement, including overnight stays at his home in Wollongong.

The offending came to light in early 2022 after Harriett ran away from her mother's home and her phone was examined. She subsequently complained to her mother that her father had touched her when she was younger. Police were notified and Wilson was arrested in January 2022.

Wilson faced five charges arising from conduct that occurred across two distinct periods: 2014 to 2015, when Harriett was approximately six or seven years old, and again in 2019, when she was ten or eleven. A jury at Wollongong District Court found him guilty of all five counts in February 2023.

  • The appropriate aggregate sentence for five child sexual offence convictions spanning multiple years
  • The objective seriousness of each individual offence within its statutory range
  • The application of standard non-parole periods where mandated by statute
  • Whether special circumstances existed to justify a departure from the standard ratio between the non-parole period and the total term
  • The weight to be given to the offender's subjective circumstances, including health issues, against the gravity of the offending

Decision

The District Court convicted Wilson on all five counts following the jury verdict. The counts comprised one charge of sexual intercourse with a person under ten years (s 66A(2), Crimes Act 1900), two charges of indecent assault of a person under sixteen (s 61M(2), Crimes Act 1900, since repealed), and two charges of intentionally sexually touching a child (s 66BA, Crimes Act 1900). The differing charge types reflected the legislative provisions in force at the times the respective offences were committed.

In assessing objective seriousness, Haesler SC DCJ applied a framework that considered the nature and degree of the physical conduct, the extent of any penetration, the age of the child relative to the applicable offence range, the relationship between offender and victim, and the duration of offending. Both prosecution and defence agreed on the placement of each count within the notional range of seriousness, with Count One assessed as below the middle but not low range, and Counts Four and Five as slightly below the middle. The court accepted those assessments but noted that identifying the relevant aggravating and mitigating factors offered a clearer gauge of seriousness than numerical placement on a range.

A central feature of the sentencing was the gross breach of trust involved in each offence. The offender was the complainant's father. The offences occurred in domestic settings, including in the child's bed or the offender's bed, where she had every reason to feel safe and protected. The court emphasised that the offences were not isolated incidents and that the conduct spanned approximately five years, involving a child who was vulnerable and under the offender's parental authority.

The court found special circumstances existed, warranting a reduction in the non-parole period below the standard proportion. An aggregate sentence structure was adopted across all five counts. The court also noted Wilson's classification as a high-risk offender as a consequence of the conviction on Count One, with the consequence that the State Parole Authority may impose additional conditions or extend his custody upon eligibility for release.

Orders Made

  • Count One (sexual intercourse with a child under 10): 7 years imprisonment, non-parole period 4 years 6 months
  • Count Two (indecent assault, person under 16): 2 years imprisonment, non-parole period 1 year 3 months
  • Count Three (indecent assault, person under 16): 2 years 6 months imprisonment, non-parole period 1 year 7 months
  • Count Four (intentionally sexually touching a child): 2 years imprisonment
  • Count Five (intentionally sexually touching a child): 2 years imprisonment
  • Aggregate sentence: 9 years imprisonment, with a non-parole period of 5 years and 9 months (reflecting a finding of special circumstances)
  • Sentence commences 19 February 2023; eligible for parole consideration on 18 November 2028
  • Balance of term: 3 years and 3 months, commencing 19 November 2028 and expiring 18 February 2032
  • Wilson classified as a high-risk offender as a result of the Count One conviction

Key Takeaways

  • Every act of sexual interference with a child is treated as serious by the courts, and the sentencing framework requires individualised assessment of each offence by reference to the nature of the conduct, the degree of penetration, the child's age, the relationship between the parties, and the duration of the offending.
  • A parental relationship between offender and victim constitutes a fundamental aggravating feature in child sexual offence sentencing, engaging both the statutory aggravating factor of abuse of a position of trust or authority and the broader principle that children must be protected in their home environment.
  • Where multiple offences are sentenced by way of an aggregate sentence, the court is still required to indicate an appropriate individual sentence for each count and, where applicable, the relevant standard non-parole period.
  • A finding of special circumstances permits a court to set a non-parole period that represents a smaller proportion of the total term than the statutory default, allowing more time on parole for supervision and rehabilitation. The District Court found that such circumstances were established here.
  • Conviction for sexual intercourse with a child under ten (s 66A(2), Crimes Act 1900) triggers classification as a high-risk offender, which exposes the offender to potential additional conditions or extended custody beyond the parole eligibility date, determined by the State Parole Authority.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66A(2), 61M(2), 66BA
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases
- BT v R [2010] NSWCCA 267
- Clarkson v R [2011] VSCA 152
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Dungay v R [2020] NSWCCA 209
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- JJ v R [2020] NSWCCA 165
- LB v R [2019] NSWCCA 151
- MAK v R [2006] NSWCCA 381
- Mill v The Queen (1988) 166 CLR 59
- Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81
- R v AJP [2004] NSWCCA 434
- R v Clinch (1994) 72 A Crim R 301
- R v DN [2023] NSWCCA 39
- R v Gavel [2014] NSWCCA 56
- R v NJK [2011] NSWCCA 151
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
- Stanton v R [2021] NSWCCA 123
- The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39