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District Court 18 November 2024

R v Lovett

[2024] NSWDC 551

Sexual offences

Citation: R v Lovett [2024] NSWDC 551
Court: District Court of New South Wales
Date: 18 November 2024
Judge(s): Buscombe DCJ

Background

The offender, aged between 59 and 62 at the time of the offending, is the step-grandfather of the victim, who was born in March 2012 and was aged between five and nine years during the relevant period. The offender co-owned and resided in the family home with his son and the victim's mother. The victim referred to him as "Grandad."

A jury convicted the offender of five offences committed between 2017 and 2021, spanning two locations: the family home in Barnsley and a caravan park at Bulahdelah. The offending included showing the victim pornographic material, digital penetration, intentional sexual touching, and an attempt to touch the victim with his penis.

The victim did not disclose the abuse until March 2022, when she told a friend while staying at that friend's home. The matter then came to the attention of police.

Legal Issues

  • What were the objective circumstances and seriousness of each of the five offences for sentencing purposes?
  • What subjective factors bore on the appropriate sentence, including the offender's age, background, criminal history, and prospects for rehabilitation?
  • How should the aggregate sentence be structured to reflect totality and the standard non-parole periods applicable to each offence?
  • Were any concerns about the conduct of the police interviews with the child witnesses relevant to the sentencing remarks?

Decision

Objective seriousness of the offences

The court assessed each offence individually. The count of exposing the victim to indecent material (count 1), committed when the victim was five or six years old, was assessed as a little below the mid-range of objective seriousness (at [28]). The count of sexual intercourse with a child (count 2), involving digital penetration of a child aged six, seven or eight, was assessed as below mid-range, partly because it appeared short in duration and caused no reported pain (at [29]). The two counts of intentional sexual touching (counts 3 and 5) and the attempted touching count (count 4) were each assessed as just below or below the mid-range of objective seriousness (at [30]-[32]).

Across all five counts, the court identified the aggravating factor of breach of trust, given the offender's role as step-grandfather, and noted that all but the final count occurred in the victim's own home (at [27], [33]).

Subjective factors and rehabilitation

The offender, now aged 65, maintained his innocence throughout and presented with a dismissive attitude, absolving himself of responsibility and blaming the victim's mother for fabricating allegations (at [53]-[54]). He lacks insight or remorse and has refused to engage in any sexual offending intervention programme (at [55]-[56]). Despite this, his minimal criminal history, lengthy employment record, and relatively low assessed risk of sexual reoffending were considered to give him reasonable prospects for rehabilitation (at [61]).

The court found special circumstances warranted departure from the standard relationship between the non-parole period and the head sentence, given the offender's age and the fact that this is his first period of custody (at [62]).

Aggregate sentence

The court applied the aggregate sentencing regime, recording indicative sentences for each count before arriving at the final aggregate. The indicative sentences ranged from 12 months (count 5) to five years (count 2), with the aggregate designed to reflect the principles of totality across multiple offences against a very young child (at [64], [71]-[75]). An aggregate sentence of nine years with a non-parole period of six years was imposed, commencing 30 April 2023 (at [76]-[77]).

Judicial observations on police interview practices

Buscombe DCJ made observations, separate from the sentencing findings, about the conduct of the police interviews with the child witnesses. The judge expressed concern that the interviewing officer had led the victim by reading aloud a diary entry when the child was unable or unwilling to describe the offending, then building the interview around that entry (at [80]). The judge also noted that the child witness XL had been effectively cross-examined by the officer to the point of becoming distressed (at [81]). The judge observed that no provision of the Evidence Act 1995 (NSW) appeared to permit evidence to be elicited in that manner, and expressed the view that these practices should cease (at [80]-[82]).

Orders Made

  • The offender was sentenced to an aggregate term of nine years imprisonment with a non-parole period of six years.
  • The sentence commences 30 April 2023 and expires 19 April 2032.
  • The aggregate non-parole period expires 19 April 2029, being the earliest date the offender is eligible for release to parole.

Key Takeaways

  • An aggregate sentence of nine years imprisonment (non-parole period six years) was imposed on a step-grandfather convicted by jury of five child sexual offences committed against a victim aged between five and nine, with all individual offences assessed as below the mid-range of objective seriousness (at [28]-[32], [76]-[77]).

  • Breach of trust, arising from a familial role as step-grandfather, and the commission of offences in the victim's home were treated as aggravating factors under section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW), factored into the objective seriousness assessment rather than applied separately to avoid double counting (at [33]).

  • Where an offender maintains innocence, demonstrates no remorse, and refuses rehabilitative intervention, a sentencing court may nonetheless find reasonable prospects for rehabilitation based on other subjective factors, including age, employment history, and low assessed risk of reoffending (at [61]).

  • Special circumstances justifying a longer parole period relative to the non-parole period may be found where an offender is serving a first custodial sentence and is of advanced age (at [62]).

  • Buscombe DCJ observed that reading a child witness's diary entry aloud during a police interview, then using it to lead the child's evidence, did not appear to be authorised by the Evidence Act 1995 (NSW), and expressed the view that such interview practices should not continue (at [80]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) ss 66A(1), 66DA(a), and 66EB(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Evidence Act 1995 (NSW)

Cases
- Not stated