Citation: R v SA [2024] NSWDC 553
Court: District Court of New South Wales
Date: 15 November 2024
Judge(s): Noman SC DCJ
Background
The victim was a 16-year-old girl who had been raised largely by her grandmother after spending minimal time with her biological parents. When her relationship with her grandmother broke down and she became effectively homeless, she contacted her biological father, whom she had had little involvement with throughout her life. He purchased a train ticket for her and took her into his home in early 2023.
In the early hours of 10 March 2023, while the victim was using a gaming device in her bedroom, the offender initiated a Snapchat conversation with her from across the same room. Over nearly three hours, he persistently persuaded her to engage in sexual activity, framing it partly as an exchange for the cost of a hard drive and game he had recently bought her. The victim ultimately agreed.
The offender then committed a series of sexual offences against the victim in the same bedroom, including digital penetration and penile-vaginal intercourse across multiple positions. The following morning, he took her on a day trip to Sydney Harbour as if nothing had occurred.
Legal Issues
- The appropriate sentence for three offences: two counts of incest (under s 78A(1) of the Crimes Act 1900 (NSW)) and one count of sexually touching a child aged between 16 and 18 who is under special care (under s 73A(1)(a) of the Crimes Act 1900 (NSW)), with additional offences taken into account on a Form 1
- Whether the offending warranted full-time custodial imprisonment
- The degree of concurrency or accumulation appropriate given all offences occurred in a single incident
- Whether special circumstances existed to justify a variation of the standard non-parole period ratio
Decision
Noman SC DCJ found that the offending was serious and involved sustained manipulation over several hours. The court identified several aggravating features: the offender introduced a financial element by offering to waive a debt in exchange for sexual activity; he persistently normalised the conduct throughout the Snapchat exchange; the victim was rendered vulnerable by her homelessness and dependence on him for accommodation; and the offender was her biological father, 26 years her senior.
The court accepted that the offending, while serious, arose from a single incident and that this supported considerable concurrency in the sentence structure. The offender pleaded guilty, and his sentences were each reduced by 25 per cent to reflect that plea. The court also noted that the victim presented as capable and resilient but acknowledged, through her Victim Impact Statement, that the harm was real, tangible, and unlikely to resolve readily.
The offender's submission that special circumstances existed was accepted. The court considered that this was his first custodial sentence, that he had experienced an adjustment disorder with anxiety and low mood while on remand, and that a longer parole period would assist his reintegration. A moderate adjustment to the statutory non-parole period ratio was made on that basis.
An aggregate sentence was imposed. The court nominated indicative sentences of three years and four months for the primary incest count (taking in a further incest offence on the Form 1), two years for the primary sexual touching count (taking in two further similar offences on the Form 1), and one year and ten months for the remaining sexual touching count.
Orders Made
- The offender was convicted of each of the three offences
- An aggregate sentence of four years and four months imprisonment was imposed, dating from 10 March 2023
- Non-parole period of three years, reflecting a variation of the statutory ratio to 69 per cent on the basis of special circumstances
- The offender is eligible for release on parole on 9 March 2026
Key Takeaways
- The District Court treated the biological father-daughter relationship and the victim's dependence on the offender for shelter as significant aggravating factors in sentencing for incest and sexual touching offences.
- Sustained manipulation over a prolonged period, including the introduction of a financial element to pressure a vulnerable young person, was characterised by the court as an egregious betrayal of innocence and trust, notwithstanding that the offending arose from a single incident.
- Where all offences occur as part of one continuous incident, the sentencing court will apply considerable concurrency, but some accumulation remains necessary where separate offences cannot be adequately captured by any single sentence.
- A finding of special circumstances was warranted where the offender was a first-time custodial prisoner, had developed an adjustment disorder while on remand, and required a longer period on parole to support reintegration, justifying a variation of the non-parole period ratio to 69 per cent.
- Under s 78A(1) and s 73A(1)(a) of the Crimes Act 1900 (NSW), the victim's age of nearly 17 placed her close to the lower boundary of the relevant offence provisions, a factor the court noted in its assessment of the offending.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 78A(1) (incest)
- Crimes Act 1900 (NSW), s 73A(1)(a) (sexually touch child between 16 and 18 under special care)
Cases cited: No cases were cited in the judgment.