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District Court 21 August 2023

R v Jones

[2023] NSWDC 409

Sexual offences
CRIME SENTENCE INTENTIONALLY SEXUALLY TOUCH CHILD 10 16 YEARS PROVIDE MATERIAL BENEFIT TO CHILD 10 SEXUAL INTERCOURSE WITH CHILD 10

Citation: R v Jones [2023] NSWDC 409
Court: District Court of New South Wales
Date: 21 August 2023
Judge(s): Bourke SC DCJ

Background

The offender, a 47-year-old man, stood trial on four counts relating to sexual offences against a 13-year-old boy. The victim had an unstable home life before meeting the offender's nephew in around October 2020, after which he began staying at the offender's one-bedroom residence in Tregear, sometimes for days at a time.

The jury acquitted the offender on count 1 (sexual intercourse, involving alleged anal penetration) but found him guilty on three remaining counts. Those three counts covered: intentional sexual touching of a child aged between 10 and 16 (count 2); providing a material benefit to a child under 14 to facilitate unlawful sexual activity (count 3); and sexual intercourse with a child aged between 10 and 14 (count 4).

The sentencing proceedings required the court to make its own findings of fact consistent with the jury's verdicts, assess objective seriousness, and impose an appropriate aggregate sentence across the three offences.

  • What factual findings, consistent with the jury's verdicts, should govern the sentence for each count?
  • What was the objective seriousness of each offence, having regard to the nature of the sexual acts, the age differential, the circumstances, and the vulnerability of the victim?
  • Whether the provision of accommodation alone constituted a "material benefit" under section 66EB(3) of the Crimes Act 1900, and what intention accompanied it?
  • How should totality principles apply when imposing an aggregate sentence across three related but distinct offences?
  • Whether special circumstances existed to justify adjusting the ratio between the head sentence and the non-parole period?

Decision

Factual findings. The court found that the count 2 offence involved the offender removing the victim's clothes while he slept, then rubbing his buttocks and anal region against the victim's penis and continuing for several minutes after the victim woke and protested. The jury's not-guilty verdict on count 1 meant the court could not find anal penetration occurred, but it was satisfied the conduct involved intimate skin-on-skin contact. The count 4 offence involved the offender penetrating the victim's anus with his penis while the victim was again asleep, stopping only after threats from the victim.

The material benefit count. The Crown ultimately relied only on accommodation as the relevant "material benefit" for count 3, and the court sentenced on that basis, disregarding the broader suggestions of cigarettes and money. The court was satisfied beyond reasonable doubt that the offender provided accommodation with the specific intention of creating opportunities to be alone with the victim and commit sexual offences against him, thereby exploiting a relationship involving trust.

Objective seriousness. The court assessed each offence as serious, noting the significant age gap (47 versus 13), the fact that both sexual offences occurred while the victim was asleep and therefore especially vulnerable, the continuation of conduct against the victim's expressed will, and that the offending took place in what had become the victim's home. The court drew on established authority confirming that community attitudes and judicial understanding of the lasting harm caused by child sexual abuse have evolved, warranting appropriately serious sentences.

Totality and special circumstances. Applying totality principles, the court structured the notional sentences so that the count 3 sentence was largely concurrent with the others, given it was committed in contemplation of enabling the remaining offences. Counts 2 and 4 attracted a degree of notional accumulation as separate serious criminal acts. The court found special circumstances, citing the need for extended post-release supervision and the difficulties the offender was expected to face in custody, justifying a lower ratio of non-parole period to head sentence than would otherwise apply.

Orders Made

  • Count 2 (sexual touching): indicative sentence of 3 years 7 months imprisonment
  • Count 3 (material benefit to procure child): indicative sentence of 3 years imprisonment, non-parole period of 2 years
  • Count 4 (sexual intercourse with child 10-14): indicative sentence of 3 years 10 months imprisonment, non-parole period of 2 years 6 months
  • Aggregate head sentence: 4 years 9 months imprisonment, commencing 19 July 2022, expiring 18 April 2027
  • Aggregate non-parole period: 3 years 2 months, expiring 18 September 2025
  • Finding of special circumstances made

Key Takeaways

  • The District Court confirmed that the factual basis for sentencing must be consistent with jury verdicts: a not-guilty finding on anal penetration precluded that finding at sentence, even where the victim's evidence had supported it.
  • Where the Crown narrows its case during trial to a specific particulars of a charge (here, accommodation only as the "material benefit"), the sentencing court is bound to proceed on that narrower factual basis rather than the broader allegations originally suggested.
  • Providing accommodation to a vulnerable child can satisfy the "material benefit" element of section 66EB(3) of the Crimes Act 1900 where the court is satisfied the benefit was provided with the intention of facilitating unlawful sexual activity.
  • Under totality principles, a preparatory offence committed to enable later sexual offending may appropriately attract a sentence that is largely concurrent with those later offences, while distinct acts of sexual abuse warrant a degree of notional accumulation.
  • Special circumstances justifying an adjusted non-parole period ratio may be established by a combination of the offender's likely difficulties in custody and the rehabilitative need for extended post-release supervision.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), sections 66C(1), 66DB(a), 66EB(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), sections 3A, 5

Cases
- Bugmy v The Queen (2013) 249 CLR 571
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- R v MJR (2002) 54 A Crim R 368
- R v PGM (2008) 187 A Crim R 152