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District Court 30 August 2024

R v JA

[2024] NSWDC 489

Sexual offences
CRIME SENTENCING REPEAT CHILD SEX OFFENDER

Citation: R v JA [2024] NSWDC 489
Court: District Court of New South Wales
Date: 30 August 2024
Judge(s): Wass SC DCJ

Background

The offender, a man in his early forties, appeared for sentencing on two counts: sexual intercourse with a child under ten years of age, and failure to comply with reporting obligations under the Child Protection Register. The victim, referred to as Z, was the offender's biological daughter. She was nine years old at the time of the offending.

Z had been living an unstable life and had only recently been reintroduced to the offender through the Department of Communities and Justice (DCJ). Following a supervised visit and then an unsupervised overnight stay, she moved in with the offender in August 2022. The sexual assault occurred approximately twelve days later.

The offender had prior relevant convictions. In 2019 he had been sentenced for indecent assault of a child, and in 2022 he received a sentence for an earlier failure to comply with reporting obligations. At the time of the present offending, he remained subject to a supervised Community Correction Order.

  • What sentence was appropriate for sexual intercourse with a child under ten, having regard to objective seriousness, the offender's criminal history, and available mitigating factors?
  • What weight should be given to the guilty pleas, and did they demonstrate remorse?
  • How should the failure to report be assessed in light of the offender's claimed belief that the DCJ had notified police on his behalf?
  • What role, if any, did the DCJ caseworker's conduct play in the sentencing exercise?
  • Were there special circumstances justifying a departure from the standard ratio between head sentence and non-parole period?

Decision

Objective seriousness and aggravating features. The court characterised the sexual offending as serious. The offender exploited a position of parental trust and authority, offended against a vulnerable child in her own home, and commenced the assault while Z was asleep. The familial relationship, the age disparity between a 42-year-old man and a nine-year-old child, and Z's particular vulnerability given her unstable background all elevated the gravity of the offending.

The role of DCJ's conduct. The court made pointed findings about the DCJ caseworker's conduct, describing it as "reckless incompetence and gross negligence." The caseworker allowed unsupervised overnight contact and then facilitated Z moving in with the offender without adequate due diligence, despite the offender's criminal history. Wass SC DCJ was careful to note, however, that this dereliction of duty could not be visited upon the offender by way of mitigation: the offender knew Z was vulnerable and gave that no regard.

The reporting breach. The court accepted that the breach had a degree of technicality, and drew the inference that the offender had not intended to conceal Z's arrival from police. Nonetheless, the reporting obligation rested on the offender alone, and his reliance on the DCJ having notified police was consistent with a broader pattern of refusing to take personal responsibility. The breach was assessed as falling below the mid-range of seriousness for that offence type, but it warranted a separate, partially concurrent sentence to mark its distinct character.

Plea discounts, remorse, and deterrence. A 5% discount applied to the principal count, reflecting the late guilty plea entered on the day of trial. A 25% discount applied to the reporting breach. Neither plea was treated as evidence of remorse. The offender continued to deny the earlier 2019 assault, had done nothing to address the causes of his offending, and had re-offended in an almost identical manner despite a prior custodial sentence. The court emphasised both specific and general deterrence as significant sentencing considerations, noting that child sexual offences of this kind remain distressingly common.

Special circumstances. The court found moderate special circumstances. The offender had spent the preceding two years in custody under severe conditions, including 133 full-day and 131 half-day lockdowns due to COVID and staff shortages, some lasting up to two weeks. The court accepted those conditions were worse than normal and may continue. An extended parole period was also warranted to allow time for therapeutic intervention to address the offender's entrenched offending behaviour.

Orders Made

  • Convicted on both counts.
  • Aggregate sentence of imprisonment of seven years and ten months, commencing 5 September 2022 and expiring 4 July 2030.
  • Non-parole period of five years, with eligibility for parole from 4 September 2027.
  • Indicative sentence for the sexual intercourse count: seven years and nine months, with a non-parole period of four years and eleven months.
  • Indicative sentence for the failure to report count: two months (partially concurrent).

Key Takeaways

  • The District Court confirmed that an offender cannot rely on a government agency's administrative failure as a mitigating factor where the legal obligation rested solely on the offender and the offender took no steps to verify compliance.
  • A position of parental trust and authority, combined with a victim's particular vulnerability arising from an unstable background, are significant aggravating factors in child sexual assault sentencing.
  • Late guilty pleas that spare a child complainant from giving evidence attract a sentencing discount, but do not, without more, constitute evidence of remorse, particularly where the offender continues to deny related prior offending.
  • Severe custodial conditions, including prolonged lockdowns due to COVID and staffing shortages, may found a finding of special circumstances and justify an extended parole period in appropriate cases.
  • General deterrence carries significant weight in sentencing for child sexual offences, with the court noting the distressing frequency with which such offences come before the courts.

Legislation and Cases Referenced

Legislation:
- Provisions governing sexual intercourse with a child under ten years (maximum: life imprisonment; standard non-parole period: fifteen years)
- Provisions governing failure to comply with reporting obligations under the Child Protection Register (maximum: five years imprisonment)

Cases:
- Bugmy v The Queen [2013] HCA 37