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District Court 22 September 2023

R v AK

[2023] NSWDC 402

Sexual offences
CRIME INDECENT ASSAULT PERSON UNDER 16 YEARS F INDINGS OF FACT FOR SENTENCING YOUNG OFFENDER IMMATURITY OBJECTIVE SERIOUSNESS

Citation: R v AK [2023] NSWDC 402
Court: District Court of New South Wales
Date: 22 September 2023
Judge: Fitzsimmons SC DCJ

Background

The offender, born in July 1998, was the paternal uncle of two child complainants. A jury found him guilty on four counts arising from a series of offences committed between 2015 and 2018, when the offender was aged between 16 and approximately 19. The complainants were between four and seven years old at the time of the offending.

The offences included two counts of sexual intercourse with a child under 10 years (carrying maximum penalties of 25 years and life imprisonment respectively), one count of attempted indecent assault of a person under 16 years, and one count of indecent assault of a person under 16 years. The incidents occurred at various family residences across Sydney's western suburbs.

The offender had no prior criminal history. He was born in Lebanon, moved to Australia as a young child, and faced longstanding hearing impairment, speech delay, and associated communication difficulties throughout his upbringing.

  • What findings of fact were appropriate for sentencing purposes, consistent with the jury's verdicts?
  • How should the offender's youth and immaturity at the time of offending affect the sentence?
  • What weight should be given to the offender's hearing impairment, speech delay, anxiety, and depression?
  • Whether special circumstances existed to justify varying the statutory ratio between the non-parole period and the total sentence?
  • What sentencing approach was appropriate for Count 3 (attempted indecent assault), where the court found the threshold for imprisonment under section 5 of the Crimes (Sentencing Procedure) Act 1999 had not been crossed?

Decision

Findings of fact. Consistent with the principle in R v Olbrich, the court made findings adverse to the offender only where established beyond reasonable doubt, and accepted facts favourable to the offender on the balance of probabilities. The Crown's proposed facts were accepted, as the offender conceded they were consistent with the jury's verdicts. The court carefully set out the circumstances of each offence based on those agreed facts.

Objective seriousness and subjective circumstances. The court treated the maximum penalties for Counts 1 and 2 as sentencing guideposts, reflecting the legislature's recognition of these offences as among the most serious. At the same time, the court gave weight to the offender's relative youth at the time of offending, his immaturity, his absence of prior criminal history, and his personal circumstances, including his hearing impairment, speech delay, anxiety, and depression. The court noted that incarceration would be more onerous for the offender given these conditions, as treatment and support would be more limited in custody.

Victim impact. No victim impact statements were provided by either complainant. The court nonetheless took into account the established harm of sexual abuse on children, consistent with section 25AA of the Crimes (Sentencing Procedure) Act 1999 and well-established Court of Criminal Appeal authority, recognising that both complainants were aged between four and seven at the time of the offending.

Special circumstances and Count 3. The court found special circumstances warranting a significant variation of the statutory non-parole ratio, based on the offender's age, it being his first term of imprisonment, the added hardship of his disabilities in custody, and his good prospects of rehabilitation. For Count 3, the court determined that the threshold for a sentence of full-time imprisonment had not been met in isolation, but rather than impose a Community Corrections Order that would overlap with the custodial sentences on the other counts, the court imposed a short concurrent term of imprisonment of six months.

Orders Made

  • The offender was convicted on Counts 1, 2, 3, and 4.
  • An aggregate sentence of imprisonment of 4 years and 6 months was imposed, commencing 23 April 2023 and expiring 22 October 2027.
  • A non-parole period of 2 years and 4 months was imposed, commencing 23 April 2023 and expiring 22 August 2025.
  • The earliest date for release to parole is 22 August 2025.
  • The sentence was backdated to reflect 152 days of pre-sentence custody.

Key Takeaways

  • The District Court confirmed that, under section 54D(3) of the Crimes (Sentencing Procedure) Act 1999, standard non-parole periods do not apply where the offender was under 18 at the time of the offence, even for the most serious child sexual offences.

  • A finding of special circumstances can justify a significant departure from the statutory non-parole ratio where the offender is young, it is their first period of imprisonment, and a disability or mental health condition will make custody materially more onerous and limit access to rehabilitative support.

  • Where a sentencing court determines that the section 5 threshold for full-time imprisonment has not been crossed on one count, but the offender is to serve a custodial sentence on related counts, a short concurrent term of imprisonment may be imposed in preference to a Community Corrections Order that would operate simultaneously with the custodial sentence.

  • Under section 25AA of the Crimes (Sentencing Procedure) Act 1999, courts sentencing for child sexual offences must have regard to the trauma of sexual abuse on children as understood at the time of sentencing, even in the absence of formal victim impact statements.

  • Consistent with R v Olbrich, adverse factual findings on sentence require proof beyond reasonable doubt, while facts favourable to the offender need only be established on the balance of probabilities.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66A, 61M
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 8, 10A, 25AA, 53A, 54D(3)
- Children (Criminal Proceedings) Act 1987 (NSW), s 6

Cases
- R v Olbrich (1999) 199 CLR 270
- R v Storey [1998] 1 VR 359
- R v BJW (2000) 112 A Crim R 1
- R v MJR (2002) 54 NSWLR 368
- BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159
- Corby v R [2010] NSWCCA 146
- KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51
- Clarke v R [2023] NSWCCA 170
- Cowan v R [2015] NSWCCA 118
- DPP v Burton [2020] NSWCCA 54
- Howard v R [2019] NSWCCA 109
- JA v R [2021] NSWCCA 10
- McLaren v R [2012] NSWCCA 284
- Mayall v R [2010] NSWCCA 37
- R v McQueeney [2005] NSWCCA 168
- R v Quinlin [2021] NSWCCA 284
- R v Tauok (1992) 65 A Crim R 387
- R v Tepania [2018] NSWCCA 247
- R v Voss [2003] NSWCCA 182
- R v JR [2022] NSWDC 618