Citation: R v Lamey [2024] NSWDC 490
Court: District Court of New South Wales
Date: 3 September 2024
Judge: Bourke SC DCJ
Background
The offender was convicted after a jury trial of eight sexual offences against three child victims. The offending occurred between approximately 2002 and 2007, when the offender was aged between 22 and 26 years. At the relevant times, he was a trusted figure in the victims' households, acting as a babysitter and frequent overnight guest.
The three victims were aged 5 to 6, 6, and 11 years old at the time of the respective offences. The offender was the maternal uncle of one victim and had established a close friendship with the family of the other two. The convictions related to maintaining an unlawful sexual relationship with a child, multiple counts of sexual intercourse with a child under 10, indecent assault of a child under 16, and sexual intercourse with a child under 14.
Sentencing proceeded on the basis of facts determined by the judge to be consistent with the jury's verdicts, with disputed factual matters resolved to the requisite standard of proof.
Legal Issues
- What facts could be established beyond reasonable doubt for the purposes of sentencing, consistent with the jury's verdicts?
- What were the appropriate indicative sentences for each of the eight counts, having regard to maximum penalties and standard non-parole periods?
- How should totality principles apply when sentencing across multiple offences involving three separate victims?
- Whether special circumstances existed to justify a departure from the standard ratio between the non-parole period and the head sentence?
- What aggregate sentence would appropriately reflect the overall criminality without being crushing, given the offender's rehabilitation progress?
Decision
Fact-finding at sentence: The judge conducted a careful analysis of the evidence before fixing the facts for sentencing purposes. Her Honour accepted beyond reasonable doubt that certain specific incidents occurred, including the offender taking the victim AR from her bed and performing oral sexual contact on her, and digitally stimulating her in a family van. Additional incidents of touching through clothing were also established. However, the judge declined to find beyond reasonable doubt that the offending included digital penetration, noting the victim had not referred to that allegation in either police interview or her evidence-in-chief.
Objective seriousness and indicative sentences: The offending was treated as serious, involving multiple victims, a significant breach of trust, and offences at the most serious end of the legislative scheme, including a count carrying a maximum of life imprisonment. The judge set indicative sentences for each count, with the most significant being a head sentence of six years and nine months for the maintaining-an-unlawful-sexual-relationship count. The remaining counts attracted indicative head sentences ranging from 18 months to three years and four months.
Totality and special circumstances: Applying totality principles, the judge found some degree of notional accumulation was necessary to reflect the involvement of three victims and separate offending occasions. Her Honour also made a finding of special circumstances, noting this was the offender's first period of full-time custody, the onerous nature of that custody, and the need for a period of post-release supervision. The judge balanced these considerations against evidence of genuine rehabilitative progress by the offender.
Orders Made
- The offender was convicted on counts 1, 4, 5, 6, 7, 8, 9, and 13.
- An aggregate head sentence of eight years and six months was imposed.
- A non-parole period of four years and nine months was imposed.
- Both the head sentence and non-parole period were dated from 13 March 2024, to account for time already served.
- The head sentence expires on 12 September 2032; the non-parole period expires on 12 December 2028.
Key Takeaways
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At sentencing, aggravating factual matters must be proved beyond reasonable doubt, while mitigating matters need only be established on the balance of probabilities. The District Court applied this standard carefully when considering disputed aspects of the offending, declining to find penetrative conduct where the evidentiary basis was insufficiently precise.
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Where a victim's evidence about the frequency of offending is credible but lacks the specificity required for proof beyond reasonable doubt on each occasion, the sentencing court is limited in the aggravating incidents it can formally rely upon, even where it regards further offending as highly probable.
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A conviction under s 66EA of the Crimes Act 1900 for maintaining an unlawful sexual relationship with a child carries a maximum penalty of life imprisonment, reflecting Parliament's recognition of the particular harm arising from sustained offending against children within a relationship of trust or access.
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Totality requires the aggregate sentence to reflect the full criminality across all offences without becoming crushing. Where there are multiple victims and distinct offending occasions, some degree of notional accumulation is appropriate even when an aggregate sentence is imposed.
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Special circumstances, justifying a longer-than-standard parole period relative to the head sentence, may be found where an offender is serving their first period of full-time custody and where post-release supervision is considered important to support ongoing rehabilitation.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61M(1), 66A, 66C(2), 66EA(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- Croxon v R [2017] NSWCCA 213
- PH v R [2009] NSWCCA 161
- R v Cattell [2019] NSWCCA 297
- R v Gavel [2014] NSWCCA 56
- R v Obbens [2022] NSWCCA 109
- R v Todd [1982] 2 NSWLR 517
- RA v R [2024] NSWCCA 149
- Thorn v R [2009] NSWCCA 294