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District Court 18 September 2023

R v West

[2023] NSWDC 614

Sexual offences
CRIME SENTENCE STATE AND COMMONWEALTH OFFENCES

Citation: R v West [2023] NSWDC 614
Court: District Court of New South Wales
Date: 18 September 2023
Judge(s): Bourke SC DCJ

Background

The offender was a man who resided with his parents in the Hunter Valley region of New South Wales. His niece and her younger sister were children who lived in regional NSW and, over several years, visited or were visited by the offender on a number of occasions. Between January 2018 and September 2021, the offender committed serious sexual offences against his niece, who was as young as five years old at the time of the earliest offences.

On 30 September 2021, Australian Federal Police executed a search warrant at the offender's home. Upon their arrival, the offender made immediate admissions. Police seized three mobile phones, which were found to contain 2,078 images and 167 videos of child abuse material spanning the period from January 2018 to September 2021.

The offender faced a total of 16 charges: seven State offences under the Crimes Act 1900 (including sexual intercourse with a child under ten and using a child under 14 to produce child abuse material) and four Commonwealth offences under the Crimes Act 1914 (relating to possessing, accessing, and transmitting child abuse material using a carriage service). He pleaded guilty at the earliest opportunity.

  • What total sentence, including head sentence and non-parole period, was appropriate across the combined State and Commonwealth charges?
  • How should the standard non-parole periods applicable to the NSW offences interact with the overall sentencing structure?
  • What discount was appropriate for the early guilty pleas, including on the Commonwealth charges where no statutory percentage applies?
  • How should the State and Commonwealth sentences be accumulated or partially accumulated to reflect the overall criminality without resulting in a crushing sentence?

Decision

His Honour applied a 25% discount for the utilitarian value of the guilty pleas across both the NSW and Commonwealth offences. For the Commonwealth matters, there is no legislatively prescribed discount percentage, but the court considered 25% appropriate in the circumstances.

The court assessed the offending as serious across the full range of charges. The material possessed included some of the most severe categories of child sexual abuse imagery, including the penetration of very young children and infants. The offences against the offender's niece spanned several years, beginning when she was approximately five years old. The offender had also shared child abuse material with other users online, including an image of his niece.

Bourke SC DCJ structured the sentences so that the Commonwealth sentence commenced on 30 September 2021, the date of arrest. The State aggregate sentence was ordered to commence one year later, on 30 September 2022, reflecting partial accumulation rather than full concurrency or full accumulation. The non-parole period for the State offences was adjusted to account for this structure, differing somewhat from the standard ratios that would otherwise apply to the individual NSW charges.

Orders Made

  • Commonwealth sentence: commenced 30 September 2021.
  • State aggregate sentence: seven years and nine months, commencing 30 September 2022 and expiring 29 June 2030.
  • Total effective head sentence: eight years and nine months, commencing 30 September 2021 and expiring 29 June 2030.
  • Non-parole period for State offences: five years and four months, expiring 29 January 2028 (the date from which the offender becomes eligible for parole across all matters).
  • The non-parole period was adjusted to account for the accumulation structure applied to the State and Commonwealth sentences.
  • Forfeiture order made in respect of the three mobile phones (signed 11 August 2023).
  • Direction that a copy of the report of Dr Bench be provided to Corrective Services and Justice Health.

Key Takeaways

  • The District Court applied a 25% guilty plea discount across both NSW and Commonwealth charges, noting that while NSW legislation mandates a utilitarian discount, no fixed percentage applies to Commonwealth matters and the court exercised its discretion accordingly.
  • Where an offender is sentenced for both State and Commonwealth offences, the sentencing court must structure the sentences carefully, using partial accumulation where appropriate to ensure the total sentence reflects the overall criminality without being crushing.
  • Standard non-parole periods under NSW legislation function as important guideposts in the sentencing exercise but may be departed from when the overall structure of concurrent and accumulated sentences requires adjustment.
  • Serious aggravating features included the breadth and volume of the child abuse material (over 2,200 items), the extended duration of the offending, the very young ages of the victims (including infants), the exploitation of a family relationship, and the sharing of material depicting the offender's own niece with other online users.
  • A total effective head sentence of eight years and nine months was imposed, with eligibility for parole arising on 29 January 2028.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66A, 66DC(b), 91G
- Crimes Act 1914 (Cth), s 474.22A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Bugmy v The Queen (2013) 302 ALR 192
- Commonwealth Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194
- DPP v Burton [2020] NSWCCA 54
- R v Hutchinson [2018] NSWCCA 152