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District Court 9 May 2024

R v Clarke

[2024] NSWDC 251

Sexual offences
CRIMES SENTENCE ACT OF INDECENCY TOWARDS CHILD UNDER 10 SEXUAL INTERCOURSE WITH CHILD 10

Citation: R v Clarke [2024] NSWDC 251
Court: District Court of New South Wales
Date: 9 May 2024
Judge: Bourke SC DCJ

Background

Following an eleven-day jury trial in November 2023, the offender was convicted on ten counts of sexual offending against a child victim who was known to him through a longstanding family friendship. The offender had been close friends with the victim's father since childhood and was treated as a trusted family member, referred to by the children as "Uncle Brett." He regularly babysat the victim and his siblings and was a frequent presence in the family home.

The offending began when the victim was approximately seven years old and continued over a number of years. The offences spanned a range of seriousness, from an act of indecency committed during a babysitting occasion to repeated acts of aggravated sexual intercourse. Several offences were committed in the aggravating circumstance of the offender being in a position of authority over the victim.

The victim was born in June 2006 and the offender in November 1985, a gap of approximately twenty-one years. The offending occurred across multiple locations and occasions, including the offender's home and during family social gatherings.

  • What sentence was appropriate for each individual count, having regard to the relevant maximum penalties and standard non-parole periods?
  • How should the totality principle operate when sentencing an offender for multiple offences spanning a significant period, some of which arose from the same incident?
  • Whether special circumstances existed to justify adjusting the statutory ratio between the non-parole period and the head sentence?
  • What facts were established for sentencing purposes, consistent with the jury's verdicts and the applicable standards of proof?

Decision

Bourke SC DCJ sentenced the offender on ten counts spanning offences under sections 61O(2), 66A(2), 66C(1), 66C(3), 66C(4), and 66D of the Crimes Act 1900. The maximum penalties ranged from seven years (act of indecency) to life imprisonment (aggravated sexual intercourse with a child under ten), with various standard non-parole periods applying to many counts.

The court determined the facts for sentencing based on the trial evidence, consistent with the jury's verdicts. Matters in aggravation were required to be proved beyond reasonable doubt, while matters in mitigation were assessed on the balance of probabilities. The Crown's summary of trial evidence was largely accepted as accurate on behalf of the offender, with one contested aspect relating to count 4.

Individual indicative sentences were set for each count, ranging from four years three months to seven years two months. The court then applied the totality principle, recognising that simply adding indicative sentences would not produce a just outcome. Particular attention was given to counts arising from the same incident, specifically counts 1 and 2, and counts 6, 7, 8, 10 and 11, which arose from a separate single incident.

The court found special circumstances existed to adjust the ratio between the non-parole period and the head sentence, on the basis that this was the offender's first time in custody. The resulting aggregate sentence balanced the gravity of the overall offending against the requirement not to impose a crushing sentence disproportionate to the totality of the criminality involved.

Orders Made

  • Aggregate head sentence of 11 years' imprisonment, commencing 25 November 2023 and expiring 24 November 2034.
  • Aggregate non-parole period of 7 years' imprisonment, expiring 24 November 2030.
  • A finding of special circumstances was made, adjusting the standard ratio between the non-parole period and head sentence.

Key Takeaways

  • The District Court applied the totality principle to avoid a disproportionately crushing aggregate sentence when sentencing for multiple sexual offences arising across different incidents over a number of years.
  • Where multiple counts arise from the same incident, the totality principle requires the sentencing court to consider whether the indicative sentence for one count can encompass the criminality of related counts, rather than treating all sentences as simply cumulative.
  • Under the Crimes Act 1900, the circumstance of an offender being in a position of authority over a child victim is a specific aggravating element that can elevate both the applicable offence provision and the maximum penalty.
  • A first-time custodial experience constituted special circumstances in this case, justifying a departure from the standard statutory ratio between the non-parole period and the total head sentence.
  • Facts for sentencing in a jury trial are determined by the judge on the basis of trial evidence, but must remain consistent with the jury's verdicts; aggravating circumstances must be proved beyond reasonable doubt, while mitigating matters need only be established on the balance of probabilities, following R v Gavel [2014] NSWCCA 56.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61O(2), 66A(2), 66C(1), 66C(3), 66C(4), 66D
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Gavel [2014] NSWCCA 56