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District Court 25 October 2023

R v CF

[2023] NSWDC 452

Sexual offences
CRIME CHILD SEX OFFENCES MULTIPLE OFFENCES INDECENT ASSAULT SEXUAL INTERCOURSE WITH CHILD >10<14 CIRCUMSTANCES OF AGGRAVATION

Citation: R v CF [2023] NSWDC 452
Court: District Court of New South Wales
Date: 25 October 2023
Judge: Coleman SC DCJ

Background

The offender, referred to as CF, was the stepfather of the victim, referred to as JS. CF married the victim's mother in 2004 and the family lived on a rural property outside Tamworth. The victim worked closely with CF on the farm and came to regard him as her father.

A jury found CF guilty on 8 December 2022 of seven child sexual offences committed against JS in 2008 and 2009, when she was between 14 and 17 years of age. The offences came to light after the victim sent a text message to a school friend during a camp at Scotts Head in January 2009, disclosing that CF had subjected her to sexual conduct.

CF maintained his innocence throughout the proceedings, including at sentencing, though his counsel accepted the agreed statement of facts subject to one minor omission.

  • What facts could the sentencing court properly find following the jury's guilty verdicts, and to what standard must each party prove disputed facts at sentence?
  • What was the objective seriousness of each offence, having regard to the nature of the conduct, the victim's age, and CF's position of authority over her?
  • Whether mitigating or aggravating factors under the Crimes (Sentencing Procedure) Act 1999 (NSW) affected the appropriate sentence.
  • Whether special circumstances existed to justify a departure from the statutory ratio between the non-parole period and the balance of term.
  • How individual sentences should be structured in aggregate to achieve totality and avoid double-counting.

Decision

Fact-finding after verdict. Coleman SC DCJ applied the principles recently restated in R v Cranston [2023] NSWSC 1004. After a jury verdict, the sentencing judge must make findings consistent with that verdict, with the prosecution bearing the onus of proving aggravating facts beyond reasonable doubt and the offender bearing the onus of proving mitigating facts on the balance of probabilities. The parties agreed on the essential facts, and the judge was satisfied those facts were consistent with all seven verdicts.

Nature and seriousness of the offending. The offences spanned two periods in 2008 and 2009. The earlier offences included the offender entering the victim's bedroom at night, kissing her with his tongue, and then on a separate occasion touching her breasts and forcing his penis into her mouth for approximately ten minutes until ejaculation. Later offences, occurring after the victim's initial complaint became known to CF, involved further sexual intercourse with a young person under his special care. The offending was characterised by a significant breach of trust, the offender's position of domestic authority, the victim's vulnerability, and the serious physical nature of the conduct.

Subjective case and mitigating factors. Coleman SC DCJ found there was little, if anything, by way of mitigating factors. CF maintained his innocence and showed no remorse. No subjective factors reduced his moral culpability in any meaningful way. The judge took the standard non-parole periods applicable to three of the counts into account as legislative guideposts in the sentencing process.

Special circumstances. The judge found special circumstances existed to adjust the statutory non-parole period ratio, noting that CF was in custody for the first time, that family visits were severely limited by his geographic location, that COVID-19 lockdowns had made custody more onerous, and that his psychological condition had deteriorated and would require treatment.

Orders Made

  • Count 1 (indecent assault): 18 months' imprisonment, with an indicated non-parole period of 11 months.
  • Count 2 (indecent assault): 18 months' imprisonment, with an indicated non-parole period of 11 months.
  • Count 3 (aggravated sexual intercourse, child aged 14 to 16): 6 years' imprisonment.
  • Count 4 (aggravated indecent assault): 18 months' imprisonment, with an indicated non-parole period of 11 months.
  • Count 5 (sexual intercourse with young person under special care): 2 years 6 months' imprisonment.
  • Count 6 (sexual intercourse with young person under special care): 5 years' imprisonment.
  • Count 7 (sexual intercourse with young person under special care): 5 years' imprisonment.
  • Aggregate term of imprisonment: 14 years.
  • Non-parole period: 8 years and 10 months.
  • Sentence expiry: 6 December 2036.
  • First eligible for release to parole: 6 October 2031.

Key Takeaways

  • After a jury verdict, the sentencing court is constrained to findings consistent with that verdict but is not required to accept the Crown's case as presented at trial, nor to adopt the version of facts most favourable to the offender.
  • Where the prosecution seeks to rely on an aggravating fact at sentence, it must prove that fact beyond reasonable doubt; where an offender seeks to rely on a mitigating fact, the standard is the balance of probabilities.
  • Standard non-parole periods function as legislative guideposts rather than fixed benchmarks and are to be weighed as part of the overall instinctive synthesis of sentencing, not applied mechanically.
  • Special circumstances justifying a departure from the statutory non-parole ratio can be established by a combination of factors, including a first-time custodial experience, geographic isolation, the impact of COVID-19 restrictions, and deteriorating psychological health.
  • A complete absence of remorse and a continuing denial of guilt, while not aggravating in themselves, leave an offender with no mitigating credit that might otherwise reduce the sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M, 66C, 73
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 21B, 25AA, 53A, 54B, Sch 2, Pt 35, Item 95
- Crimes (Sentencing Procedure) Amendment Act 2022 (NSW)

Cases
- Bravo v R [2015] NSWCCA 302
- BT v R [2010] NSWCCA 276
- Cheung v R (2001) 209 CLR 1
- Filippou v The Queen (2015) 256 CLR 47
- Johnson v The Queen [2004] HCA 15
- Leach v The Queen (2007) 230 CLR 1
- R v Cattell [2019] NSWCCA 297
- R v Chan [2000] NSWCCA 345
- R v Cranston [2023] NSWSC 1004
- R v Edwards (1996) 90 A Crim R 510
- R v Gavel [2014] NSWCCA 56
- R v Isaacs (1997) 41 NSWLR 374
- R v MAK [2006] NSWCCA 381
- RH McL v The Queen (2000) 203 CLR 452
- Savvas v The Queen (1995) 183 CLR 1
- Skocic v R [2014] NSWCCA 225
- Strbak v The Queen (2020) 267 CLR 494
- The Queen v Olbrich (1999) 199 CLR 270
- Weininger v The Queen (2003) 212 CLR 629