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District Court 16 November 2023

R v Iloski

[2023] NSWDC 596

Sexual offences
CRIMINAL S ENTENCE AFTER TRIAL OFFENDER IN HIS 40S ONGOING & DELIBERATE CONDUCT SIGNIFICANCE OF AGE GAP DEGREE O F EXPLOITATION

Citation: R v Iloski [2023] NSWDC 596
Court: District Court of New South Wales
Date: 16 November 2023
Judge: King SC DCJ

Background

The offender, a man born in 1962, was convicted by jury of nine counts of indecent and sexual assault committed against two sisters between 2003 and 2007. The victims, referred to as DL and KL, were children of a woman with whom the offender had a long-standing close friendship and, from 2004, a romantic relationship. Eight counts related to DL, who was born in 1995, and one count related to her older sister KL, born in 1993. The offender's home was located near the girls' school, and they would sometimes attend his home without their mother present.

All offending took place at the offender's home. The offender was aware that both girls had previously experienced an abusive relationship with their father, a fact that contributed to their particular vulnerability. The age gap between the offender and DL was 33 years; between the offender and KL, approximately 30 years and eight months.

The offender was arrested in March 2022 but remained on bail until conviction on 30 August 2023. Both the Crown and defence agreed on the objective seriousness of each individual offence, meaning the sentencing proceedings were largely uncontested.

  • What were the appropriate indicative sentences for each of the nine counts, having regard to the objective seriousness of each offence and the applicable maximum penalties and standard non-parole periods?
  • What aggregate sentence was appropriate, taking into account the totality principle (the requirement that the overall sentence reflect the total criminality without being disproportionate)?
  • Whether special circumstances existed justifying a non-parole period that represented a greater proportion of parole supervision than the statutory default.

Decision

King SC DCJ assessed each offence individually before arriving at an aggregate sentence. The offences ranged in seriousness from exposing his penis to DL while she swam between his legs in a pool, through to digital penetration of DL's genitalia while seated on a couch. Most counts were assessed as falling at or above the mid-range of objective seriousness, with the conduct involving skin-on-skin contact with a child's genitalia treated as among the more serious examples. Count 5, involving digital penetration contrary to s 66C(2) of the Crimes Act 1900, attracted an indicative sentence of seven years.

The court emphasised several aggravating features common to all counts. The offender had exploited a position of trust and privileged access arising from his close relationship with the victims' mother. His conduct was neither isolated nor impulsive but ongoing and deliberate across multiple years. Consistent with the Court of Criminal Appeal's reasoning in Chamseddine v R [2017] NSWCCA 176, the significant age gap between the offender and the victims added to the seriousness of each offence by reason of the heightened degree of exploitation it represented.

The court found special circumstances warranting a longer-than-statutory parole period. Although a first-time custodial sentence alone does not ordinarily establish special circumstances, King SC DCJ considered that the offender's age at sentence and his anticipated age upon release pointed to a need for an extended period of supervision to assist reintegration. Applying the totality principle, the court imposed an aggregate sentence rather than ordering individual sentences to be served wholly consecutively.

Orders Made

  • Aggregate term of imprisonment of 11 years, commencing 30 August 2023.
  • Non-parole period of 7 years and 2 months (approximately 65% of the total term), with the offender first eligible for parole on 29 October 2030.
  • Balance of term (parole period) of 3 years and 10 months, with the total sentence expiring 29 August 2034.

Indicative sentences for individual counts:

  • Count 1 (s 61O(1), act of indecency with child under 16 under authority): 2 years
  • Count 2 (s 61M(2), indecent assault of child under 10): 3 years, non-parole period 2 years
  • Count 3 (s 61M(2), indecent assault of child under 10): 3 years, non-parole period 2 years
  • Count 4 (s 61M(1), indecent assault of child under 16): 4 years, non-parole period 2 years 8 months
  • Count 5 (s 66C(2), sexual intercourse with child between 10 and 14 under authority): 7 years, no standard non-parole period
  • Counts 6, 7 and 8 (each s 61M(1), indecent assault of child under 16): 4 years each, non-parole period 2 years 8 months each
  • Count 9 (s 61M(1), indecent assault of KL): 3 years, non-parole period 2 years

Key Takeaways

  • A significant age gap between offender and victim adds to the objective seriousness of a sexual offence against a child, because of the heightened degree of exploitation it entails, as confirmed by the NSW Court of Criminal Appeal in Chamseddine v R [2017] NSWCCA 176.
  • Exploiting a position of trust and privileged access to children, gained through a close relationship with their parent, is a serious aggravating feature in child sexual assault sentencing.
  • Under the totality principle, an aggregate sentence may be imposed that reflects the overall criminality without simply accumulating each individual indicative term.
  • Special circumstances justifying a reduced non-parole period (relative to the statutory proportion) can arise from a combination of factors, including an offender's age at the time of sentencing and the corresponding need for extended post-release supervision, even where a first custodial sentence alone would not suffice.
  • Where skin-on-skin contact with a child's genitalia is involved, the District Court assessed the conduct as sitting above the mid-range of objective seriousness for the relevant offences.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(1), 61M(2), 61O(1), 66C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Chamseddine v R [2017] NSWCCA 176
- Muldrock v The Queen [2011] HCA 39
- PC v R [2022] NSWCCA 107