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District Court 15 March 2024

R v AB

[2024] NSWDC 156

Sexual offences

Citation: R v AB [2024] NSWDC 156
Court: District Court of New South Wales
Date: 15 March 2024
Judge(s): Everson SC, DCJ

Background

The offender, referred to by the pseudonym AB, was in a relationship from 2001 until 2016 or 2017, during which he fathered four children: three daughters and a son. Between April 2014 and December 2021, when the offender was in his thirties, he committed a series of sexual offences against all four children in the family home. An ambiguous complaint by one of the children in 2017 led to a police investigation, and the offender was arrested on 7 April 2022.

On 16 October 2023, a jury convicted the offender on all 23 counts of child sexual abuse. He had given evidence denying any sexual acts with his children, which the jury rejected. The matter before the District Court was sentencing.

The four child victims are identified in these proceedings by pseudonyms: BB (the third child, a daughter), CB (the eldest daughter), DB (the son), and EB (the youngest daughter). Publication restrictions apply to prevent identification of the victims.

Legal Issues

  • How to assess the objective seriousness of each of the 23 offences across multiple victims, incidents, and offence types
  • Whether uncharged acts of a similar nature could elevate the objective seriousness of the charged offences
  • Whether the offender's personal history, including being a victim of childhood sexual abuse and a probable mild intellectual disability, reduced his moral culpability
  • Whether special circumstances existed to justify departing from the statutory ratio between the head sentence and the non-parole period
  • Whether the utility of "range labels" (such as "above mid-range") in assessing objective seriousness is appropriate following recent Court of Criminal Appeal guidance

Decision

Objective seriousness and approach to range labels

The court declined to attach labels such as "above mid-range" or "below the midline" of objective seriousness to each offence. Following the Court of Criminal Appeal in Ragg v R [2022] NSWCCA 150 and R v RE [2023] NSWCCA 184, the court held that such labels lack inherent meaning and that the gravity of offending is better conveyed through a careful description of what actually occurred, together with express identification of aggravating and mitigating features (at [13]-[17]).

Offending against BB (counts 1 to 6)

The offender committed penile/vaginal intercourse and an attempted act of oral sex against nine-year-old BB across three incidents in 2014. The court identified the offender's use of force and intimidation, including covering BB's mouth to prevent her calling for help, as an aggravating factor (at [27]). The fact that BB bled during the final incident supported a finding of reckless infliction of actual bodily harm, which constituted an additional circumstance of aggravation under s 66A(3)(a) of the Crimes Act 1900 (at [36]).

Offending against CB (counts 7 to 15)

The offender assaulted CB across six incidents between the ages of 12 and 14. The court noted the progressive escalation of the offending, including penile/vaginal intercourse causing pain (count 9), an act of cunnilingus committed while CB was asleep (count 11), and the offender's threats to kill himself and that CB's mother would hate her if she disclosed the abuse (at [41]-[45]). The court observed the now-repealed s 61M(2) offences attracted a "remarkable" standard non-parole period of 8 years against a maximum of only 10 years, creating an internal tension acknowledged by the Court of Criminal Appeal in earlier decisions (at [56]-[60]).

Offending against DB (counts 16 to 20)

The offender committed penile/anal intercourse, forced oral sex, and fellatio against his 10-year-old son DB during two incidents in 2014. The court found the penile/anal intercourse was committed without a condom, causing the child significant pain (at [63]-[64]). The court declined to follow an earlier Court of Criminal Appeal observation that anal intercourse is inherently degrading, noting that obiter to that effect was "at least doubtful if not plainly wrong" as it promotes stigma against lawful adult conduct, but found that the penile/anal intercourse was aggravated by the circumstances in which it was committed (at [65]-[66]).

Offending against EB (counts 21 to 23)

The offender committed three acts of intentional sexual touching against EB, his youngest daughter, when she was aged 12 to 13, and after he had separated from the children's mother. The skin-on-skin contact of an intimate nature in the final act was identified as an aggravating factor (at [76]).

Uncharged acts

All four victims gave evidence suggesting offending beyond the charged counts. The court acknowledged that uncharged acts of a similar nature may deprive an offender of leniency, but cannot be used to elevate the objective seriousness of the charged offences or to impose additional punishment (at [20]).

Subjective case and moral culpability

The court accepted on the balance of probabilities that the offender was sexually abused as a three-year-old by his own father, but found no causal link between that history and his offending (at [84]). Dr Nielssen's opinion that the offender probably has a mild intellectual disability was accepted, though the court found this did not reduce his culpability to a level where general deterrence ceased to be relevant (at [84]). The offender demonstrated no remorse, and his motive was identified as perverted sexual gratification (at [87]-[89]). His good work history and productive conduct in custody led the court to assess his rehabilitation prospects as at least reasonable (at [84]).

Special circumstances and sentencing structure

The court found special circumstances justifying a departure from the standard statutory ratio between head sentence and non-parole period. Relevant factors were the offender's need to serve time in protective custody, the onerous conditions this entails, the need for post-release supervision, and the likelihood of requiring sex offender treatment in the community (at [91]). The court also noted the offender's probable mild intellectual disability and the relative seriousness of the individual offences as reasons for setting indicative non-parole periods below the applicable standard non-parole periods (at [96]).

Orders Made

  • The offender AB is convicted of each of the 23 offences for which he was found guilty by the jury on 16 October 2023.
  • The offender is sentenced to an aggregate sentence of 30 years imprisonment with a non-parole period of 20 years.
  • The non-parole period commences 7 April 2022 and expires 6 April 2042.
  • The balance of term of 10 years commences 7 April 2042 and expires 6 April 2052.
  • The offender will be eligible for release to parole at the expiration of the non-parole period.

Key Takeaways

  • Following Ragg v R [2022] NSWCCA 150 and R v RE [2023] NSWCCA 184, the District Court confirmed that attaching generalised range labels to objective seriousness assessments is generally not useful; the substance of such assessments must be drawn from the specific facts, aggravating features, and circumstances of each offence (at [13]-[17]).

  • Uncharged acts of a similar nature to the offences for which an offender is being sentenced may operate to deprive that offender of leniency, but they cannot elevate the objective seriousness of the charged offences or serve as a basis for additional punishment (at [20]).

  • A prior observation by the Court of Criminal Appeal that anal intercourse is inherently degrading was expressly doubted by the sentencing judge as promoting stigma and discrimination, though the court found aggravation on the specific facts before it (at [65]-[66]).

  • Special circumstances justifying a variation from the statutory head sentence to non-parole period ratio were established by the combination of the offender's protective custody status, the onerous conditions this produces, the need for extended post-release supervision, and the probability of mild intellectual disability (at [91]-[96]).

  • Where an offender's child sexual abuse offending spans more than seven years, the absence of prior convictions before the commencement of that offending is not necessarily a mitigating factor in sentencing (at [82]).

Legislation and Cases Referenced

Legislation
- Not stated

Cases
- Not stated