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District Court 20 October 2023

R v FRP

[2023] NSWDC 449

Sexual offences
CRIME SENTENCING GUILTY PLEA CHILD SEXUAL OFFENCES TWO FEMALE VICTIMS OFFENCES OCCURRING 20 YEARS APART

Citation: R v FRP [2023] NSWDC 449
Court: District Court of New South Wales
Date: 20 October 2023
Judge: Fitzsimmons SC DCJ

Background

The offender, born in March 1946, pleaded guilty to a series of child sexual offences against two female victims. The offending against the two victims was separated by approximately 20 years. The offender held a position of familial trust in relation to both victims: he was the maternal uncle of one victim and the maternal grandfather of the other.

The offences against the first victim (Victim 2, now an adult) occurred when she was approximately 6 or 7 years old, after the offender moved into the family home. The offences against the second victim (Victim 1, born January 2011) occurred in 2021 when she was between 10 and 11 years old. During this period, following her parents' separation, the offender had taken on a regular after-school care role for the child and her younger brother.

The offending against Victim 1 came to light in December 2021 when she disclosed the abuse to her mother after learning she might move into the offender's home. A surveillance recording captured the offender making partial admissions to Victim 1's mother by telephone. The offender was arrested on 16 December 2021 and has remained in custody since that date. He had no prior criminal history.

  • What were the appropriate indicative sentences for each of the seven principal offences across the two victims, accounting for aggravating features and the guilty plea discount?
  • How should Form 1 offences (additional admitted offences taken into account to increase the principal sentence) be treated in the sentencing exercise?
  • What aggregate sentence appropriately reflected the totality of the offending without becoming a "crushing" sentence that would induce hopelessness?
  • What weight should be given to the offender's position of trust, absence of prior criminal history, victim impact statements, and utilitarian value of the guilty plea?

Decision

The court sentenced the offender across seven principal offences: four counts of aggravated sexual intercourse with a child aged 10 to 14 years against Victim 1 (maximum 20 years each, with a standard non-parole period of 9 years), and three offences of indecent assault and sexual intercourse against Victim 2 under provisions carrying maximum penalties of between 7 and 10 years. Six further offences were listed on a Form 1 and taken into account to increase the sentences for the principal offences, rather than being sentenced separately.

In fixing individual sentences, the court identified the offender's position of trust as a significant aggravating factor in respect of both victims. The absence of prior criminal history was treated as a mitigating factor, though the court noted that the weight of this factor is reduced where the offending itself constitutes serious predatory conduct. A 25 per cent reduction was applied to each sentence to reflect the utilitarian value of the guilty plea.

On totality, the court acknowledged that some accumulation of sentences was necessary given that the offending involved two separate victims and two distinct periods of offending separated by approximately 20 years. At the same time, the court was required to guard against a combined sentence so severe as to be "crushing," in the sense described in R v MAK; R v MSK, where a total sentence could destroy any realistic prospect of a useful life after release. Applying partial accumulation, the court arrived at an aggregate sentence of 13 years with a non-parole period of 8 years and 8 months.

Orders Made

  • The offender was convicted of all offences upon his guilty pleas.
  • A total aggregate sentence of 13 years imprisonment was imposed, dating from 16 December 2021 and expiring on 15 December 2034.
  • A non-parole period of 8 years and 8 months was imposed, dating from 16 December 2021 and expiring on 15 August 2030.
  • The earliest date the offender is eligible for release on parole is 15 August 2030.
  • The sentence was backdated to account for 673 days spent in pre-sentence custody.

Key Takeaways

  • Where an offender faces multiple victims and temporally distinct episodes of offending, partial accumulation of individual sentences is appropriate to reflect the true criminality involved, even when the principle of totality also requires the court to moderate the overall term.
  • A position of familial trust occupied by the offender at the time of offending is a statutory aggravating factor under the Crimes (Sentencing Procedure) Act 1999, and the District Court treated it as a weighty consideration in this case in respect of both victims.
  • Form 1 offences are not sentenced separately; the sentencing court takes them into account only to increase the penalty for the principal offence by giving greater weight to personal deterrence and community retribution, consistent with the principles in Attorney General's Application No. 1 (2002) 56 NSWLR 146.
  • The "crushing sentence" principle from R v MAK; R v MSK remains a live constraint in aggregate sentencing: even serious and repeated offending requires the court to consider whether a total sentence would destroy any realistic expectation of a productive life post-release.
  • An absence of prior criminal history retains mitigating value at sentencing, though the weight of that factor can be diminished by the gravity and nature of the principal offending.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 21A(2)(eb), 21A(2)(k), 21B, 25(2)(a), 25AA, 25D(2)(a), 53A
- Crimes Act 1900 (NSW), ss 61M(1), 61M(2), 66A, 66C(1), 66C(2), 66DB(a)

Cases
- Bhatia v R [2023] NSWCCA 12
- Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81
- EG v R [2015] NSWCCA 21
- Hall v R [2021] NSWCCA 220
- LN v R [2020] NSWCCA 131
- R v Gavel (2014) 2398 Crim Reports 469; [2014] NSWCCA 56
- R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381
- R v PGM [2008] NSWCCA 172
- Richards v R [2023] NSWCCA 107
- TO v R [2017] NSWCCA 12
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 (2002) 56 NSWLR 146