AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 18 July 2024

R v RT (No 2)

[2024] NSWDC 533

Sexual offences
CUSTODIAL SENTENCE IMPOSED.

Citation: R v RT (No 2) [2024] NSWDC 533
Court: District Court of New South Wales
Date: 18 July 2024
Judge: Sutherland SC DCJ

Background

The offender, referred to by the pseudonym RT, appeared for sentencing on one count of sexual intercourse with a person aged between 10 and 16 years, contrary to s 66C(1) of the Crimes Act 1900 (NSW). The maximum penalty applicable at the time of the offending was 8 years imprisonment. He pleaded guilty to the principal count and asked the court to take into account two further offences on a Form 1 (a procedural mechanism allowing related uncharged or separately charged offences to be considered at sentencing without separate punishment).

The offending occurred against the offender's younger sister, who was approximately 12 years old at the time. The principal offence took place on Christmas Eve 1991. At that time, the offender was approximately 16 and a half years old. The offending had its origins in a pattern of sexual misconduct that began when the victim was in Years 2 to 3 at school and the offender was approximately 11 to 13 years old.

The victim did not make a formal disclosure to police until November 2020, almost 33 years after the earliest conduct. The delay was partly attributed to the victim's father being convicted of sexual offending against his granddaughter in August 2020, which brought the abuse back to the victim's attention. The offender, born in June 1975, was an adult at the time of sentencing.

  • How should a court approach sentencing an adult offender for serious sexual offences committed when the offender was himself a child?
  • What weight should be given to the extensive delay of almost 33 years between the offending and sentencing?
  • What is the appropriate sentence, given the offender's age at the time, his rehabilitation, and the circumstances of the offending?
  • Whether the offender should be required to register as a reportable offender under the Child Protection (Offenders Registration) Act 2000 (NSW), or whether a non-registration declaration under s 3C of that Act was appropriate.

Decision

Sutherland SC DCJ imposed a non-custodial sentence, making a Community Correction Order under s 8(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The judge's reasoning placed significant weight on the fact that the offender was himself a child at the time of the offending, noting that the sentencing of children who commit sexual offences against other children raises distinct considerations from the sentencing of adult offenders for similar conduct.

The near 33-year delay between the offending and sentencing was a further significant factor. During that period, the offender had led a law-abiding life, established a family, and was regarded in positive terms by his employer, his daughter, and his wife. The court received evidence from character witnesses, including the offender's wife, who gave oral evidence. The court found no risk to identifiable children or children generally.

On the question of registration under the Child Protection (Offenders Registration) Act 2000, the court made a declaration under s 3C(1) that the offender was not to be treated as a registrable person. This conclusion was based on the offender's age at the time of the offences, the age of the victim, and the court's assessment that the likelihood of the offender committing another registrable offence was so low that describing it as negligible would arguably overstate the risk.

Orders Made

  • The offender was convicted of the principal offence.
  • A Community Correction Order was imposed for a period of 3 years under s 8(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), with standard conditions (no further offending; attend court if called upon).
  • An additional condition requiring 200 hours of community service was imposed.
  • A declaration was made under s 3C(1) of the Child Protection (Offenders Registration) Act 2000 (NSW) that the offender is not to be treated as a registrable person in respect of the offence for which he was convicted.

Key Takeaways

  • A non-custodial sentence remained available in a historical child sexual offence case where the offender was himself a child at the time of commission, the delay before sentencing was approximately 33 years, and the offender demonstrated sustained rehabilitation as an adult.
  • Where an offender was a juvenile at the time of offending but an adult at sentencing, sentencing courts must grapple with the distinct principles applicable to child offenders, even though standard adult sentencing procedures apply at the time the matter comes before the court.
  • Under s 3C of the Child Protection (Offenders Registration) Act 2000 (NSW), a court may declare that an offender is not a registrable person where specific prerequisites are met, including the offender's age at the time of the offence, the victim's age, and an assessment of the likelihood of reoffending.
  • The District Court treated the risk of reoffending as so negligible that characterising it as "negligible" was itself described as potentially an overstatement, reflecting the strength of the evidence of the offender's rehabilitation and community standing.
  • Extensive delay between offending and sentencing, while not excusing the conduct, was treated as a material factor when assessing the appropriate sentence, particularly in combination with evidence of good character and no reoffending over the intervening decades.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(1), 66C(1), 66DB
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 8(1), 37
- Child Protection (Offenders Registration) Act 2000 (NSW), s 3C

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
- BM v R [2019] NSWCCA 223
- Brown v R [2023] NSWCCA 330
- DPP (NSW) v TH [2023] NSWCCA 81
- Featherstone v R [2008] NSWCCA 71
- Kilic v The Queen [2016] HCA 48; 259 CLR 256
- KT v R [2008] NSWCCA 51
- MS2 & Ors v Regina [2005] NSWCCA 397; (2005) 158 A Crim R 93
- Paul Campbell v R [2018] NSWCCA 87
- R v AA [2017] NSWCCA 84
- R v AB [2022] NSWCCA 3
- R v Andrew Button (a pseudonym) [2021] NSWDC 829
- R v Campbell (a pseudonym) [2017] NSWDC 359
- R v Carey [2024] NSWCCA 90
- R v Cattell [2019] NSWCCA 297
- R v DW (No 2) [2020] NSWDC 462
- R v Elliott and Blessington [2006] NSWCCA 305; 68 NSWLR 1
- R v G [2008] UKHL 37; [2009] 1 AC 92