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District Court 13 December 2024

R v NB (No.2)

[2024] NSWDC 598

Sexual offences
CRIMINAL LAW SENTENCING SIGNIFICANCE OF HEARING DISABILITY

Citation: R v NB (No.2) [2024] NSWDC 598
Court: District Court of New South Wales
Date: 13 December 2024
Judge: Abadee DCJ

Background

Following a jury trial in Newcastle, the offender was convicted on four counts arising from sexual offences committed against his niece, who was aged between five and seven during the period of offending (April 2020 to August 2022). The offender, born in 1990, was between 29 and 31 years old at the time. He had been entrusted with babysitting responsibilities by his sister, the victim's mother, and exploited those occasions to commit the offences.

The four counts comprised one charge of sexual intercourse with a child under ten (cunnilingus, contrary to s 66A(1) of the Crimes Act 1900 (NSW)), carrying a maximum of life imprisonment and a standard non-parole period of 15 years, and three charges of intentional sexual touching of a child under ten (contrary to s 66DA), each carrying a maximum of 16 years' imprisonment and a standard non-parole period of eight years.

The sentencing hearing was significantly delayed, in part because the offender, who is deaf, required a specialised interpreter. The delay of more than six months from verdict to sentence was noted by the court.

  • What facts could properly be found at sentencing, consistently with the jury's verdicts, and on what standard of proof?
  • How should the objective gravity of the offending on each count be assessed, including the applicable sentencing range?
  • What weight should be given to the offender's hearing disability and associated psychosocial disadvantage in assessing moral culpability and the impact of custody?
  • Whether special circumstances existed warranting a departure from the standard ratio between non-parole period and head sentence.
  • How totality should be applied across four counts involving a single victim, where some offending occurred on the same day and some on separate occasions.

Decision

Fact-finding after the jury verdict: Abadee DCJ applied the principles from Savvas v The Queen and Cheung v The Queen, finding facts consistent with the jury's verdicts while noting that disputed facts adverse to the offender required proof beyond reasonable doubt, and disputed facts favourable to the offender required proof on the balance of probabilities. The offender, who maintained he had done nothing wrong, did not expressly agree to the Crown's proposed facts, so the court drew primarily on the trial evidence, strongly endorsing the victim's credibility as reflected in the jury's verdicts.

Objective gravity: The count 1 offence (cunnilingus) was assessed as falling in the lower range for offending of its type, given the brief and opportunistic nature of the conduct, the absence of violence or premeditation, and the form of the sexual activity, though the victim's very young age and inherent vulnerability were significant. The sexual touching offences on counts 3, 4 and 5 involved skin-on-skin contact between the offender's penis and the victim's vagina. Count 3 was assessed as mid-range offending, with the offender's ejaculation noted as an aggravating feature reflecting the gratification he obtained. Counts 4 and 5 occurred on the same day but in distinct episodes, interrupted only by the arrival of the victim's father.

Hearing disability and psychosocial disadvantage: The court considered the offender's deafness as a "psychosocial" disability, examining how it bore on his moral culpability and the onerous nature of his time in custody. Although the written portion of the judgment included in the available text does not detail the full reasoning on this point, the court's finding of special circumstances expressly took into account his deafness and the additional hardship it would cause in a custodial environment, alongside his status as a first-time offender and prior good character.

Totality and special circumstances: Abadee DCJ applied partial concurrency across counts 4 and 5 (which arose from the same day) while accumulating sentences to reflect the distinct episodes of offending occurring across approximately two years. Special circumstances were found, warranting an extended parole period beyond the statutory proportion, given the offender's deafness, the greater burden of custody that this entailed, his absence of prior criminal history, and the acknowledged limitations on availability of psychotherapy treatment. The court also applied a discount to the indicative sentences to reflect assistance provided to authorities.

Orders Made

  • The offender was convicted on counts 1, 3, 4 and 5 on the indictment.
  • Total sentence of 7 years and 6 months' imprisonment, commencing 19 June 2024 and expiring 18 December 2031.
  • Non-parole period of 4 years and 6 months, expiring 18 December 2028, after which the offender is eligible for release on parole.
  • The court directed that a CSNSW psychology note (prepared by P Castillo, dated 1 December 2024) be brought to the attention of those responsible for supervising the offender.

Key Takeaways

  • A sentencing court may find its own facts after a jury verdict, provided those findings do not conflict with the verdict; disputed facts adverse to the offender must be proved beyond reasonable doubt, while facts favourable to the offender must be proved on the balance of probabilities.
  • Where an offender's disability, here profound deafness, creates a "psychosocial" disadvantage, the District Court treated this as relevant both to the assessment of moral culpability and to the weight given to the hardship of imprisonment, consistent with established principles on disability and sentencing.
  • Special circumstances warranting an extended parole period can be established by the combination of a first-time offender status, a disability that makes custody materially more burdensome, and limited access to rehabilitative programs in custody.
  • Totality requires courts to consider the overall criminality across multiple counts, applying concurrency where offences arise from a single episode while accumulating sentences where separate incidents occur on different occasions and in different circumstances.
  • An offender's act of ejaculation during a sexual touching offence may be treated as an aggravating feature reflecting the degree of gratification obtained, even where no physical injury is caused to the victim.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66A(1), 66DA
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22A

Cases:
- Cheung v The Queen (2001) 209 CLR 1
- DPP (Cth) v De La Rosa (2010) 71 NSWLR 1
- DPP (NSW) v TH [2023] NSWCCA 81
- EG v R [2015] NSWCCA 21
- Muldrock v The Queen (2011) 244 CLR 120
- R v BH [2023] NSWCCA 278
- R v Champion (1992) 64 A Crim R 244
- R v Olbrich (1999) 199 CLR 270
- RC v R; R v RC [2020] NSWCCA 76
- Savvas v The Queen (1995) 183 CLR 1
- Scott v R [2020] NSWCCA 81