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District Court 16 May 2024

R v MKG

[2024] NSWDC 172

Sexual offences
CRIMES SEXUAL OFFENCES HISTORICAL INDECENT ASSAULT COMPL AINANT UNDER 16 YEARS SENTENCING RELEVANT FACTORS ON SENTENCE NO CRIMINAL HISTORY

Citation: R v MKG [2024] NSWDC 172
Court: District Court of New South Wales
Date: 16 May 2024
Judge: Lerve DCJ

Background

The offender was the biological father of the victim. The offending occurred at the family home during the late 1970s and early 1980s, when the victim was between approximately nine and fourteen years of age. The offender's wife was absent from the home at the time of each offence, having left for work in the early morning hours.

A jury convicted the offender on 8 March 2024 of three counts of indecent assault on a female under 16 years, contrary to section 76 of the Crimes Act 1900 as it then stood. The offending spanned roughly four years and, as the court noted, was not limited to the three convicted counts: context evidence at trial indicated a broader pattern of conduct. A recorded pretext telephone call made by the victim in December 2021 captured the offender acknowledging the conduct, stating he could not justify his actions and apologising.

The maximum penalty applicable to each offence at the time of the conduct was six years imprisonment. No standard non-parole period applied. The matter came before Lerve DCJ for sentencing.

  • How serious was each of the three offences, and how should they be ranked relative to one another and to the applicable range?
  • What weight should be given to the offender's otherwise good character and absence of prior criminal history, given the nature and circumstances of the offending?
  • Whether imprisonment was appropriate, and if so, what aggregate term and non-parole period should be imposed having regard to totality and the purposes of sentencing under section 3A of the Crimes (Sentencing Procedure) Act 1999?

Decision

Objective seriousness. Lerve DCJ assessed count 1, involving forced fellatio of the victim when she was nine or ten years old, as above the mid-range of seriousness. Count 2, in which the offender used the victim's hand to masturbate to ejaculation when she was eleven or twelve, was assessed as a mid-range offence, less serious than count 1 but more serious than count 4. Count 4, involving the offender lying on top of the clothed victim and rubbing against her to ejaculation when she was fourteen, was assessed as slightly below mid-range. All three counts involved a significant breach of trust arising from the father-daughter relationship.

Good character. The offender had no prior criminal history. Drawing on the High Court's reasoning in Ryan v R [2001] HCA 21, Lerve DCJ accepted that the offender was entitled to some leniency for his otherwise good character. However, consistent with authority, that weight was limited given the nature of the offending. The court also considered the effect of the offending on the victim through her victim impact statement, and noted that general deterrence carried considerable importance in cases of this kind.

Imprisonment and aggregate sentence. Lerve DCJ was satisfied that no penalty other than imprisonment was appropriate, given the gross breach of trust, the multiplicity of the offending, and the period over which it occurred. The court determined that an aggregate sentence was the appropriate vehicle. Had individual sentences been imposed, partial accumulation would have been required to reflect the distinct offending across different periods. The principles of totality also required consideration. The court imposed an aggregate sentence of six years with a non-parole period of three years, commencing 7 March 2024.

Orders Made

  • The offender was convicted on three counts of indecent assault on a female under 16 years.
  • An aggregate sentence of 6 years imprisonment was imposed.
  • Non-parole period of 3 years, commencing 7 March 2024 and expiring 6 March 2027.
  • Balance of term on parole of 3 years, commencing 7 March 2027 and expiring 6 March 2030.
  • The court recommended the offender's release to parole at the expiration of the non-parole period.

Key Takeaways

  • Where an offender convicted of historical child sexual offending has no prior criminal history, some leniency for good character remains available under Ryan v R, but the weight given to it will be limited by the gravity and nature of the offending.
  • A conviction for indecent assault involving forced sexual conduct on a child aged nine or ten by a parent was assessed as above the mid-range of seriousness, even where the charge carried a maximum of six years imprisonment under the law in force at the time.
  • General deterrence carries significant weight in sentencing for offences involving serious breaches of parental trust and repeated sexual abuse of a child within the family home.
  • An aggregate sentence is appropriate where multiple counts of historical sexual offending against the same victim span different periods, allowing the court to apply totality principles and avoid a mechanistic accumulation of individual terms.
  • Pretext call evidence capturing an offender's acknowledgment of the conduct can feature in the factual background accepted for sentencing purposes where it is consistent with the jury's verdicts.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 76 (as in force at time of offending)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5(1)

Cases
- Ryan v R [2001] HCA 21
- Carr v R [2020] NSWCCA 214
- Hopley v R [2008] NSWCCA 105
- Kelly v R [2021] NSWCCA 154
- R v Boney [2008] NSWCCA 313
- R v Cattell [2020] NSWCCA 297
- R v Muldoon (unreported, NSWCCA, 13 December 1990)
- R v Todd [1982] 2 NSWLR 517
- R v Van Ryn [2016] NSWCCA 1