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District Court 29 February 2024

R v Bamforth; R v Bamforth

[2024] NSWDC 45

Sexual offences
CRIME SENTENCING CHILD SEXUAL ABUSE BY MARRIED COUPLE PARITY TOTALITY CHILD ABUSE MATERIAL

Citation: R v Bamforth; R v Bamforth [2024] NSWDC 45
Court: District Court of New South Wales
Date: 29 February 2024
Judge: Wilson SC DCJ

Background

A married couple, referred to here as the male offender and the female offender, pleaded guilty to charges arising from the prolonged sexual abuse of a single child victim over a five-year period. The victim was aged between 12 and 16 years throughout the offending. Much of the abuse was carried out jointly, forming part of a joint criminal enterprise.

The male offender faced 46 counts on the indictment, with a further 19 counts placed on Form 1 documents (charges taken into account on sentence without separate penalty). His charges included aggravated sexual intercourse with a child, use of a child to make child abuse material, possession of child abuse material, and a charge of specially aggravated kidnapping in company where actual bodily harm was occasioned to the victim. The female offender similarly faced 46 counts for sentence, with 21 counts on Form 1 documents, including parallel sexual abuse charges as well as aggravated sexual assault of a victim with a cognitive impairment.

Both offenders had been remanded in custody awaiting sentence. The proceedings were delayed by the male offender's two indications of an intention to withdraw his guilty pleas (neither of which was ultimately pressed), changes in his legal representation, and the demands of managing a very large number of charges.

  • What were the appropriate head sentences and non-parole periods for each offender, having regard to the objective seriousness of the individual charges and the full range of offending?
  • How should the principles of parity apply where co-offenders are sentenced together for substantially overlapping criminal conduct?
  • How should the totality principle govern the accumulation and concurrency of multiple sentences?
  • Were standard non-parole periods to be adopted, and were special circumstances established for either offender?
  • What weight should be given to the female offender's diagnosis of Acute Lymphocytic Leukaemia in determining special circumstances and the onerousness of her custody?

Decision

Wilson SC DCJ sentenced both offenders at the conclusion of a detailed analysis of the objective seriousness of each charge, the statutory aggravating factors, the joint criminal enterprise, and each offender's subjective circumstances. The judge set out findings on objective seriousness in tables attached to the remarks, treating them as part of the formal judgment.

On parity, the court acknowledged the sentences differed between the two offenders and explained the reasons grounded in sound legal principle. The male offender received a heavier overall sentence because he alone was sentenced for the specially aggravated kidnapping in company counts, which significantly increased his aggregate term. The female offender's non-parole period was reduced to a greater extent, reflecting special circumstances arising from her serious medical condition.

Special circumstances were found in relation to the female offender on the basis that her diagnosis of Acute Lymphocytic Leukaemia made and would likely continue to make her time in custody more onerous than it would otherwise be. The court accepted this independently justified the finding. Standard non-parole periods were not adopted in respect of the charges to which they applied.

Both offenders were warned of the operation of the Crimes (High Risk Offenders) Act 2006, which would permit the State to apply to the Supreme Court for continued supervision or detention beyond the expiry of their sentences if they were assessed as posing an unacceptable risk of committing a serious offence.

Orders Made

  • The male offender was sentenced to imprisonment with a head sentence of 30 years commencing 26 February 2021 and expiring 25 February 2053, with a non-parole period expiring 25 June 2043.
  • The female offender was sentenced to imprisonment with a head sentence expiring 25 February 2051 and a non-parole period of 19 years and 6 months, expiring 25 August 2040, with the head sentence commencing 26 February 2021.
  • A copy of the forensic mental health report by Lee Knight dated 7 February 2023 was ordered to be placed in a sealed envelope marked "Confidential, only to be opened by the Governor" and forwarded to the Governor of the correctional facility where the male offender is located.

Key Takeaways

  • A diagnosis of a serious and ongoing medical condition (here, Acute Lymphocytic Leukaemia) can independently establish special circumstances, justifying a greater reduction in the non-parole period on the basis that custody is more onerous for that offender.
  • Parity between co-offenders does not require identical sentences. Where one offender is convicted of additional and more serious charges, such as specially aggravated kidnapping in company with actual bodily harm, a materially heavier sentence for that offender is consistent with the parity principle.
  • Standard non-parole periods serve as guideposts rather than mandatory outcomes; the District Court declined to adopt them here, reflecting the individual circumstances of each charge and offender.
  • Under the Crimes (High Risk Offenders) Act 2006, offenders sentenced for serious sexual offences may be subject to continued supervision or detention beyond their sentence expiry if the Supreme Court finds they pose an unacceptable risk.
  • Where joint criminal enterprise is established in child sexual abuse cases, the court will assess each participant's role and individual circumstances separately when applying totality and concurrency principles across a large number of charges.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 61J, 61M, 61O, 66C, 66DB, 86, 91G, 91H
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW): s 10(1)
- Weapons Prohibition Act 1998 (NSW): ss 7(1), 34(1)

Cases
- Adam Jolly v R [2013] NSWCCA 76
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Baines v R [2016] NSWCCA 132
- Benn v R [2023] NSWCCA 24
- Burr v R [2020] NSWCCA 282
- Cahyadi v R [2007] NSWCCA 1
- Chamseddine v R [2017] NSWCCA 176
- Corby v R [2010] NSWCCA 146
- Dawson v R [2021] NSWCCA 53
- Dickson v R (2017) 94 NSWLR 476
- DPP (NSW) v Burton [2020] NSWCCA 54
- EG v R [2015] NSWCCA 21
- Einfeld v Regina [2010] NSWCCA 87
- Georgopolous v R [2010] NSWCCA 246
- Gillard v The Queen (2003) 219 CLR 1
- Green v The Queen (2011) 244 CLR 462
- Hall v R [2021] NSWCCA 220
- Huynh v The Queen [2013] HCA 6
- Johnson v The Queen [2004] 78 ALJR 616
- Jonson v R (2016) 263 A Crim R 268