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District Court 23 September 2024

R v TK

[2024] NSWDC 451

Sexual offences
CRIME INDECENTLY ASSAULT CHILD UNDER 16 S EXUALLY TOUCH CHILD AGED 10 MULTIPLE VICTIMS OVER SEVERAL YEARS GUILTY PLEA AT TRIAL NO REMORSE

Citation: R v TK [2024] NSWDC 451
Court: District Court of New South Wales
Date: 23 September 2024
Judge: Fitzsimmons SC DCJ

Background

The offender, born in October 1948, was sentenced after pleading guilty to six offences involving the sexual abuse and grooming of three child victims over approximately six years. During the offending period, the offender was aged between 67 and 73. The three victims, all girls, were born in 2003, 2005, and 2008 respectively. One victim was the offender's biological granddaughter; the others were children he met through her.

The offending included indecent assault, sexually touching children aged between 10 and 16, grooming a child under 14 for unlawful sexual activity, and possessing child abuse material. The conduct involved a sustained pattern of manipulation, including gifting mobile phones, encouraging secrecy, watching victims undress, and using a hot tub at the offender's home to create opportunities for physical contact and exposure.

The guilty plea entered in the Local Court was maintained at the sentence hearing. The court received victim impact statements, a sentencing assessment report, and medical and psychological reports concerning the offender's health.

  • What weight should be given to a guilty plea entered late, with no evidence of remorse?
  • How should the offender's significant ill health affect the sentence, including the question of whether custody would be more onerous?
  • How should the standard non-parole periods for the relevant offences operate as sentencing guideposts?
  • How should the principle of totality apply when imposing an aggregate sentence across six counts involving three victims over several years?
  • What accumulation of sentences was appropriate to reflect the overall criminality of the offending?

Decision

The court assessed each of the six counts individually before considering the aggregate sentence. For the indecent assault count (Count 1), which carried a maximum of 10 years and a standard non-parole period of 8 years, the court identified it as among the more serious offending. For the grooming count (Count 5), which carried a maximum of 12 years and a standard non-parole period of 5 years, the court also imposed a significant sentence. Each count attracted a discount of 5 per cent for the utilitarian value of the guilty plea, reflecting that the plea was entered without any demonstrated remorse and was not entered at an early stage.

The offender's ill health was considered as a factor making custody more onerous than it would otherwise be, consistent with established sentencing principles. However, the court did not allow this to substantially reduce the sentence given the gravity of the overall conduct. Medical and psychological reports were ordered to be provided to Corrective Services.

The court noted the absence of remorse as a relevant factor in limiting the weight afforded to the guilty plea. The offending spanned six years, involved three victims, included manipulation and deliberate grooming, and caused ongoing harm as evidenced by the victim impact statement. These features demanded a sentence reflecting meaningful accumulation.

Applying the totality principle, and being mindful of the risk that an excessively long aggregate sentence could produce a "crushing" effect, as discussed in R v MAK; R v MSK, the court imposed an aggregate term of 6 years imprisonment with a non-parole period of 3 years and 7 months. The sentence was backdated to account for six days already spent in custody.

Orders Made

  • The offender is convicted of all six offences.
  • An aggregate sentence of 6 years imprisonment is imposed, expiring 16 September 2030.
  • A non-parole period of 3 years and 7 months is imposed, expiring 16 April 2028.
  • The earliest date of eligibility for parole is 16 April 2028.
  • The offender's medical records and the reports of Dr Le and Oliver Brecht, together with the remarks on sentence, are to be provided to Corrective Services.
  • The court recommends the offender be immediately placed into protective custody.

Key Takeaways

  • A guilty plea entered without demonstrated remorse attracted only a 5 per cent utilitarian discount, illustrating that the discount for a plea is not mechanical and can be reduced where genuine contrition is absent.
  • Significant ill health can make a custodial sentence more onerous, and this is a recognised mitigating factor in NSW sentencing law, but it does not necessarily produce a substantially reduced sentence where the offending is serious and sustained.
  • The totality principle requires a sentencing court to step back and assess whether the aggregate sentence is just and appropriate across all counts, with established authority warning against sentences so long they produce hopelessness and destroy any expectation of a useful life after release.
  • Grooming offences under s 66EB(3) of the Crimes Act 1900 carry a maximum of 12 years and a standard non-parole period of 5 years, both of which operated as guideposts anchoring the court's assessment of the appropriate sentence for Count 5.
  • Where an offender poses a risk within a custodial setting, the District Court may recommend immediate placement in protective custody and direct that medical and psychological material be provided to Corrective Services to assist in managing that risk.

Legislation and Cases Referenced

Legislation

  • Crime (Sentencing Procedure) Act 1999 (NSW), ss 10, 10A, 21A(5A), 25AA(3), 25D(2)(c), 53A
  • Crimes Act 1900 (NSW), ss 61M(2), 66DB(a), 66EB(3), 91H(2)

Cases