Citation: R v Qinhua ZHONG [2024] NSWDC 461
Court: District Court of New South Wales
Date: 13 September 2024
Judge(s): Buscombe DCJ
Background
The offender, a 23-year-old man, was sentenced after pleading guilty to two counts of sexual intercourse with a child aged between 14 and 16 years, contrary to s 66C(3) of the Crimes Act 1900 (NSW). The offences took place between January and June 2023 at Hornsby. Two further offences of the same character were taken into account on a Form 1 (a procedure by which additional offences are noted and taken into account in sentencing without separate convictions being entered).
The victim was a 14-year-old girl who had migrated from China with her mother. The offender was known to the victim's family and had been trusted by the victim's mother to spend time with her, assisting with school pickups, English study, and other tasks. The sexual relationship was not isolated: the agreed facts confirmed it comprised at least four acts of sexual intercourse occurring over several months.
In June 2023, the offending came to light after the victim disclosed the relationship to her mother. The following day, the offender attended Eastwood Police Station and, after being cautioned, provided detailed information to police about the relationship, the victim's age, and the sexual acts involved. This self-disclosure formed a significant part of the sentencing proceedings.
Legal Issues
- The objective seriousness of the offending and where it fell within the range for offences under s 66C(3) of the Crimes Act 1900 (NSW)
- The weight to be given to the offender's guilty pleas
- The weight to be given to the offender's assistance to authorities, including the combined discount applicable under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
- The relevance, if any, of the offender's claimed lack of knowledge about the age of consent in New South Wales
- Whether a non-parole period and the structure of the sentence were appropriate, including the application of an aggregate sentencing approach
Decision
Buscombe DCJ assessed the objective seriousness of the offending as falling within the mid-range. The acts involved penile-vaginal intercourse, which is regarded at law as more serious than other forms of sexual intercourse. The victim was at the lower end of the protected age range (just over 14), and the age gap of approximately nine years was significant. The court also noted that the first act of intercourse caused the victim pain, which the offender did not stop when told, and that the offending was not isolated.
On subjective factors, the court accepted that the offender had no prior criminal history and had displayed genuine remorse. His Honour considered the offender's background, including his migration from China, and noted that his claimed ignorance of the age of consent in New South Wales was raised as a mitigating factor. The court accepted this carried some limited weight as a subjective consideration, though it did not alter the criminality of the conduct. The victim was, on the facts, always known by the offender to be 14 to 15 years old.
The court applied a combined discount under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for both the guilty pleas and the offender's assistance to authorities. His Honour described the self-reporting to police as a "particularly unusual feature" of the case, and noted that the combined discount resulted in a sentence significantly lower than would otherwise have been imposed. The starting point for each offence was two years and six months imprisonment, reduced to an indicative sentence of one year and six months on each count after the combined discount was applied.
The court imposed an aggregate sentence rather than individual consecutive or concurrent terms. The aggregate non-parole period was set at just over half the total term, reflecting the specific circumstances rather than any standard formula. His Honour noted that the offender would likely move to immigration custody upon eligibility for parole, though this played no part in fixing the sentence.
Orders Made
- The offender was convicted of two offences under s 66C(3) of the Crimes Act 1900 (NSW)
- Two further offences were taken into account on Form 1
- Indicative sentence on each principal offence: one year and six months imprisonment
- Aggregate sentence of two years and four months imprisonment, commencing 21 June 2023 and expiring 20 October 2025
- Aggregate non-parole period of one year and three months, expiring 20 September 2024, with the offender eligible for parole from that date
Key Takeaways
- Under s 66C(3) of the Crimes Act 1900 (NSW), the maximum penalty for sexual intercourse with a child aged 14 to 16 is ten years imprisonment, and no standard non-parole period applies, leaving the sentencing court with significant discretion in structuring the sentence.
- A claimed lack of awareness of the age of consent in New South Wales, where the offender came from a different cultural and legal background, was accepted as carrying some limited mitigating weight as a subjective factor, without diminishing the objective seriousness of the conduct.
- The District Court treated the offender's voluntary attendance at a police station and self-disclosure of the offending as a genuinely unusual mitigating circumstance, attracting a meaningful reduction through the combined discount for guilty plea and assistance under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
- Where a combined discount is applied for both guilty plea and assistance to authorities, the result can be a substantially reduced sentence compared to what the objective features of the offending would otherwise warrant.
- Penile-vaginal intercourse is treated at law as the most serious category of sexual intercourse for the purpose of assessing objective gravity within this class of offences, even where no standard non-parole period applies.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 66C(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 23
Cases:
No cases were cited in the portions of the judgment provided.