AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
District Court 10 May 2024

R v Till

[2024] NSWDC 298

Sexual offences

Citation: R v Till [2024] NSWDC 298
Court: District Court of New South Wales
Date: 10 May 2024
Judge: Haesler SC DCJ

Background

The offender, a 26-year-old man, began an online relationship with a complainant in 2022 and continued that relationship after becoming aware she was 14 years old. Over a period from June to December 2022, the two engaged in multiple acts of sexual intercourse. The complainant stated she had willingly participated and had initiated sexual activity on most occasions, though the court was clear that her apparent willingness had no bearing on the offender's criminal liability.

The offender also retained on his phone 72 explicit images and videos of the complainant engaged in sexual acts or sexual posing. This material came to the attention of police after a third party discovered it. The offender cooperated with police, made admissions, and gave consent for his phone to be inspected.

Eight charges were brought before the court: one count of possessing child abuse material under s 91H(2) of the Crimes Act 1900 (NSW), and seven counts of sexual intercourse with a child aged between 14 and 16 under s 66C(3) of that Act. Several additional counts of a similar nature were dealt with on Forms 1 (meaning they were taken into account in sentencing without being the subject of separate sentences).

  • What weight should be given to the complainant's apparent willingness and the absence of grooming when assessing the objective seriousness of the sexual intercourse offences?
  • How should the child abuse material charge be assessed in terms of seriousness?
  • What sentencing discount applied for the guilty plea?
  • How should multiple related offences be structured in an aggregate sentence?
  • Whether special circumstances existed justifying a departure from the standard ratio of non-parole period to head sentence, having regard to the offender's Autism Spectrum Disorder, mental health needs, and prospects of rehabilitation.
  • What weight should be given to the Form 1 matters in the overall sentencing exercise?

Decision

Haesler SC DCJ emphasised that every act of sexual intercourse with a child is a serious offence and that the statutory prohibition is absolute. The complainant's apparent willingness and her role in initiating contact did not diminish the offender's moral culpability. The court acknowledged, however, that there was no evidence of grooming, and that several of the subjective circumstances of the offender, including his Autism Spectrum Disorder, his difficult childhood, his absence of prior convictions, and his genuine prospects for rehabilitation, warranted consideration in mitigation.

On the child abuse material charge, the court followed the guidance in Minehan v R [2010] NSWCCA 140. It noted the absence of the more serious aggravating features present in many such cases (such as distribution or production of material involving unknown victims), but found that the number of images and their explicit nature nonetheless warranted a custodial sentence. The court observed that the retention of such material by the offender perpetuated the exploitation of the child, regardless of how the material came to be created.

The guilty plea attracted a 25% reduction for its utilitarian value, given that it spared the complainant from having to give evidence. The plea was also treated as reflecting the offender's acceptance of responsibility and some genuine insight into his behaviour.

The court found special circumstances under the Crimes (Sentencing Procedure) Act 1999 (NSW), which allowed the non-parole period to be set at a proportion lower than the statutory norm. The court grounded this finding in the offender's mental health needs, his vulnerability in custody, his lack of any prior record, and its assessment that community-based supervision and treatment would better serve his rehabilitation. The Form 1 matters, consistently with the guideline judgment in Attorney General's Application No 1 of 2002, led the court to give greater weight to deterrence and community protection when sentencing on the charges to which those matters attached.

Orders Made

  • Sequence 1 (possess child abuse material, s 91H(2)): 1 year and 6 months imprisonment
  • Sequence 6 (sexual intercourse with child aged 14 to 16): 1 year and 10 months imprisonment
  • Sequence 7: 1 year and 6 months imprisonment
  • Sequence 8 (with Form 1): 1 year and 10 months imprisonment
  • Sequence 11 (with Form 1): 1 year and 10 months imprisonment
  • Sequence 13 (with Form 1): 1 year and 10 months imprisonment
  • Sequence 15: 1 year and 3 months imprisonment
  • Sequence 16: 1 year and 10 months imprisonment
  • Aggregate sentence: 4 years imprisonment, commencing 28 January 2024
  • Non-parole period: 2 years, with eligibility for release to parole on 27 January 2026

Key Takeaways

  • The District Court confirmed that a complainant's apparent consent or initiation of sexual activity is irrelevant to an offender's criminal liability under s 66C(3) of the Crimes Act 1900 (NSW): the statutory prohibition on sexual intercourse with a child aged between 14 and 16 is absolute.
  • Autism Spectrum Disorder, when supported by evidence, can constitute a basis for a finding of special circumstances in sentencing, particularly where community-based treatment and supervision are assessed as better serving rehabilitation than a proportionally longer custodial term.
  • Possession of child abuse material created within an ostensibly consensual relationship is not rendered less serious by the relational context. The court reiterated that every act of accessing such material constitutes a further exploitation of the child depicted.
  • Form 1 matters, while not attracting separate sentences, require a sentencing court to give greater weight to deterrence and community protection when sentencing on the charge to which they are attached, consistent with the guideline judgment in Attorney General's Application No 1 of 2002.
  • Where multiple offences arise from a series of similar acts against the same complainant, the court retains a discretion to structure an aggregate sentence carefully so that accumulation does not obscure the sentencing discount attributable to a guilty plea.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66C(3), 91H(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW) (including Form 1 procedure)

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
- Bell v R [2019] NSWCCA 251
- Blackett v The Queen [2021] NSWCCA 210
- Brown v R [2023] NSWCCA 330
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Donald (a pseudonym) v R [2021] NSWCCA 198
- Minehan v R [2010] NSWCCA 140
- Nelson v R [2016] NSWCCA 130
- R v RD [2014] NSWCCA 103
- R v Taane [2014] NSWCCA 330
- Wakeling v R [2016] NSWCCA 33