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District Court 26 July 2024

R v KA

[2024] NSWDC 610

Sexual offences
CRIME SENTENCE AFTER TRIAL C OUNT 10 CONTRARY TO S66C CRIMES ACT MAXIMUM PENALTY 8 YEARS IMPRISONMENT

Citation: R v KA [2024] NSWDC 610
Court: District Court of New South Wales
Date: 26 July 2024
Judge(s): Tupman DCJ

Background

The offender, a man now aged 54, was sentenced following a jury trial on three counts of historical child sexual assault committed against his cousin in the Coogee area between 1989 and 1992. At the time of the offences, the offender was aged 19 to 20 and the victim was aged 14 to 16. The offender would periodically stay overnight at the victim's family home, sleeping on a sofa bed in the upstairs living area.

Count 10 involved penile-vaginal intercourse: the offender grabbed the victim as she walked past, removed her pyjama bottoms, lay on top of her, and penetrated her despite her repeated protests and visible pain. She bled during the assault and spent approximately an hour showering afterwards. Counts 11 and 12 arose from a separate occasion when the offender entered the victim's room while she was asleep and touched her genital region and breast area beneath her clothing.

The offender was not arrested until February 2022, some 20 to 22 years after the offences. He had been in custody on a bail-refused basis from 27 March 2024, following the jury verdicts. The DPP elected not to proceed on the remaining counts on which the jury could not agree.

  • What was the appropriate objective seriousness for each of the three offences?
  • What weight should be given to the offender's subjective circumstances, including his age at the time of offending, mental health, subsequent rehabilitation, and caring responsibilities?
  • How should delay between offending and prosecution affect the sentence?
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio under the Crimes (Sentencing Procedure) Act 1999 (NSW)?
  • How should the sentences for counts 11 and 12 be structured in relation to count 10, given the separate occasions and differing levels of criminality?

Decision

Tupman DCJ assessed Count 10 as falling in the middle range of objective seriousness. Aggravating features included that the offending occurred in the victim's own home, that the offender was an adult male relative, that no contraception was used, that some force was applied, and that the conduct was relatively brazen given the proximity of other family members. The court accepted that there was no evidence of significant planning, and that the assault was likely spontaneous.

Counts 11 and 12 were assessed as falling in the lower range of objective seriousness. Both were described as opportunistic and brief, occurring more or less simultaneously on a single separate occasion, and coming to an end when the victim responded and her sister stirred nearby. The court received a lengthy and detailed victim impact statement and acknowledged the well-established proposition, affirmed in R v Gavel [2014] NSWCCA 56, that child sexual assault commonly causes ongoing and life-changing psychological harm.

On the subjective case, the court noted the offender had no criminal record at the time of the offences, though he had committed offences since. He had experienced documented difficulties including drug and alcohol use, financial hardship, and a diagnosed persistent depressive disorder. The court accepted evidence of genuine rehabilitation during the lengthy delay before prosecution. No discount was available for a plea of guilty, as the matter proceeded to verdict after trial. General deterrence was identified as a significant sentencing purpose. The court found the delay in prosecution relevant but did not treat it as warranting a reduction in sentence beyond the other considerations already applied.

Special circumstances were found to exist based on three factors: the offender's mental health condition making custody more onerous; the hardship to his elderly parents who relied on him as a carer; and the need for early supervised release to allow continuation of his demonstrated rehabilitation in the community. This finding justified a reduction in the non-parole period relative to the total term for count 10. For counts 11 and 12, the court imposed fixed terms of six months each, to run concurrently with one another. Those terms were ordered to run partially concurrently with count 10, with an overlap of three months, to avoid a disproportionate aggregate sentence given the substantially lower criminality of the indecent assault counts.

Orders Made

  • Count 10: convicted; sentenced to 3 years imprisonment with a non-parole period of 18 months commencing 27 June 2024 and expiring 26 December 2025, followed by a parole period of 18 months expiring 26 June 2027.
  • Counts 11 and 12: convicted on each count; fixed terms of 6 months imprisonment each, commencing 27 March 2024 and expiring 26 September 2024, to be served concurrently with each other.
  • The sentences for counts 11 and 12 were partially accumulated on count 10, with a three-month overlap applied.

Key Takeaways

  • Historical child sexual assault offences committed by a young adult against a child in a position of familial trust remain serious matters warranting full-time imprisonment, even where prosecution is significantly delayed.
  • Under the applicable statutory framework, sentences of imprisonment for child sexual assault offences cannot be served by way of Intensive Corrections Order; full-time custody is mandatory where the imprisonment threshold is met.
  • A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 (NSW) can be supported by a combination of factors including the offender's mental health, the hardship to dependent family members, and the need to facilitate ongoing rehabilitation in the community.
  • Where multiple offences span separate occasions but differ markedly in seriousness, the District Court applied partial accumulation rather than full concurrency or full cumulation, calibrating the aggregate sentence to reflect the overall criminality without producing a disproportionate outcome.
  • The absence of a guilty plea meant no sentencing discount was available; general deterrence remained a prominent sentencing purpose even where the offending was historical and the offender had demonstrated subsequent rehabilitation.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 61E(1), 66C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 3A, 5, 21A

Cases
- R v Gavel [2014] NSWCCA 56