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District Court 5 June 2024

R v Jeremiah

[2024] NSWDC 206

Sexual offences
CRIME SEXUAL OFFENCES WITH PERSON UNDER CARE BETWEEN 17 18 YEARS

Citation: R v Jeremiah [2024] NSWDC 206
Court: District Court of NSW
Date: 5 June 2024
Judge: Scotting DCJ

Background

The offender, a 35-year-old Crisis Accommodation Youth Worker employed by the Oasis Youth Support Network (operated by the Salvation Army), was sentenced after pleading guilty in the Local Court to one count of sexual intercourse with a person under care between the ages of 17 and 18 years, contrary to section 73(2) of the Crimes Act 1900. The maximum penalty for this offence is 4 years imprisonment.

The victim was a 17-year-old resident at Oasis when the offending occurred. Over several weeks from July 2022, the offender cultivated a close personal relationship with her, providing extended mentoring, emotional support, and preferential attention. He instructed her to keep their friendship secret from other workers and exchanged private contact details with her under a concealed name.

On 27 October 2022, the offender arranged to meet the victim outside the facility at night. After kissing her in a park, he took her to a dead-end street, pushed her against a tree, and digitally penetrated her vagina for approximately three minutes. The offending was reported to staff in May 2023, and the offender was subsequently arrested and charged.

Legal Issues

  • What sentence was appropriate for the offence, having regard to objective seriousness and subjective factors including the offender's background, mental health, remorse, and family circumstances?
  • What weight should be afforded to general and specific deterrence in light of the offender's diagnosed mental health conditions?
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio.
  • Whether the hardship to the offender's family reached the threshold of exceptionality required to affect the sentence.

Decision

Objective seriousness and breach of trust: The court found the offence was objectively serious. It involved a significant breach of trust: the victim was placed at Oasis because of her vulnerability, and the offender exploited that position to pursue a sexual relationship with her (at [79]). The offence was not spontaneous. It involved planning and sustained deception, including covert communication, instructions to maintain secrecy, and attempts to investigate the victim's sexual interests (at [80]).

Deterrence and mental health: Scotting DCJ accepted that the offender suffered from PTSD and Major Depressive Disorder arising from a deeply deprived upbringing marked by exposure to war, poverty, repeated bereavement, and family breakdown (at [83]). The court accepted that these conditions, alongside marital strain and financial hardship, impaired his judgement at the relevant time. However, the court was not satisfied there was a causal connection between his mental health conditions and his sexual interest in the victim, and found no basis to conclude he did not appreciate the wrongfulness of his conduct (at [86]). General deterrence was reduced in weight, but not to any significant extent.

Subjective factors: The court gave credit for the offender's limited criminal history, good character, genuine remorse, and good prospects of rehabilitation (at [89]-[92]). The weight afforded to good character was reduced, however, because the offender relied on that character to secure a position caring for vulnerable people (at [90]). The hardship a custodial sentence would cause to the offender's family, including three young children for whom he was the sole financial provider, was acknowledged but found not to reach the threshold of exceptionality required to affect the sentence (at [93]).

Sentencing outcome: The court determined that a Community Corrections Order would be manifestly inadequate, and that an Intensive Corrections Order was not available under section 67 of the Crimes (Sentencing Procedure) Act 1999 for this class of offence (at [95]). A finding of special circumstances was made to allow a longer parole period to facilitate mental health treatment and supervision through Community Corrections (at [100]). The court imposed a sentence of 9 months imprisonment with a non-parole period of 6 months, backdated to 4 June 2024 (at [101]).

Orders Made

  • The offender was convicted of the offence under section 73(2) of the Crimes Act 1900.
  • A term of imprisonment of 9 months was imposed, with a non-parole period of 6 months, commencing 4 June 2024.
  • The non-parole period expires 3 December 2024; the head sentence expires 3 March 2025.
  • The offender is to be released on parole on 3 December 2024.

Key Takeaways

  • A serious breach of trust is a central factor in sentencing for section 73(2) offences, particularly where the offender held a position of care over a vulnerable victim and actively cultivated a relationship to exploit that position (at [79]-[80]).

  • Where an offender's mental health conditions are established, general deterrence may attract reduced weight in sentencing. However, the District Court declined to reduce that weight significantly where no causal connection existed between the conditions and the sexual offending, and where there was no basis to find the offender was unaware of the wrongfulness of his conduct (at [86]).

  • Good character ordinarily operates as a mitigating factor in sentencing, but the court confirmed that its weight must be reduced where the offender relied on that character to gain access to vulnerable people as a carer (at [90]).

  • Under section 67 of the Crimes (Sentencing Procedure) Act 1999, an Intensive Corrections Order is not an available sentencing option for offences under section 73(2) of the Crimes Act 1900, leaving full-time imprisonment as the only custodial option even where the sentencing court might otherwise have considered that alternative (at [95]).

  • Family hardship, even where a custodial sentence will significantly affect dependent children, does not automatically reduce the sentence imposed. It remains a relevant factor only when the hardship is exceptional, consistent with the standard established in R v Edwards (1996) 98 A Crim R 510 (at [93]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999

Cases
- R v Olbrich (1999) 199 CLR 270
- R v Edwards (1996) 98 A Crim R 510