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District Court 17 December 2024

R v Brown (a pseudonym)

[2024] NSWDC 618

Sexual offences

Citation: R v Brown (a pseudonym) [2024] NSWDC 618
Court: District Court of New South Wales
Date: 17 December 2024
Judge: Haesler SC DCJ

Background

The offender, referred to by the pseudonym Gary Brown, pleaded guilty in the Local Court to a large number of serious sexual offences committed against two of his stepdaughters. The offending against the first complainant, Emily, occurred between 1988 and 1992, when she was aged 10 to 14. The offending against the second complainant, Jane, spanned from 2013 to 2021, when she was aged 8 to 15.

The charges encompassed sexual intercourse with a child, aggravated indecent assault, inciting a person under authority to commit acts of indecency, maintaining an unlawful sexual relationship with a child (persistent sexual abuse under s 66EA of the Crimes Act 1900 (NSW)), and possession of child abuse material. Several additional admitted offences were placed on Forms 1 to be taken into account on sentence without separate punishment.

The matter was referred to the District Court for sentencing. Agreed facts had been signed in the Local Court, and all offences were admitted. The central task for the court was to determine an appropriate aggregate sentence that properly reflected the totality of the criminality while remaining proportionate to each individual offence.

  • What indicated sentences were appropriate for each individual offence, having regard to the applicable maximum penalties at the time of offending?
  • How should Form 1 offences be treated in the sentencing exercise, and what precautions are required to avoid double-counting?
  • What discount should apply to reflect the utilitarian value of the guilty pleas?
  • How should the court approach the aggregate sentence to avoid a "crushing" outcome while still satisfying the purposes of punishment, including general and personal deterrence?
  • What weight, if any, should be given to the offender's subjective circumstances, including age, health, and mental health history?
  • Does the Crimes (High Risk Offenders) Act 2006 (NSW) apply, and can its potential consequences be taken into account in mitigation?

Decision

Haesler SC DCJ applied the maximum penalties that were in force at the time each offence was committed, as required by s 19(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), while applying current sentencing patterns and practices pursuant to s 21B. The court noted that maximum penalties serve as important guides to Parliament's assessment of the seriousness of particular offending, and that close attention to them was essential in calibrating each indicated sentence.

For the s 66EA offence against Jane (maintaining an unlawful sexual relationship with a child), the court noted that the maximum penalty was increased to life imprisonment when that provision was redrafted in 2018, and that the maximum penalties for the individual unlawful sexual acts committed during the relationship were also relevant considerations under s 66EA(8). However, the court drew on the Court of Criminal Appeal's reasoning in R v Fisher [2024] NSWCCA 191 that, where a large number of individual acts establish the unlawful sexual relationship, the maximum penalty for any single act may carry less determinative weight when all relevant matters are considered together.

Each indicated sentence was reduced by 25% to reflect the utilitarian value of the guilty pleas. The court observed that the pleas carried additional value beyond their strictly utilitarian aspect: both complainants were spared the ordeal of giving evidence at trial, and the efficient resolution of the matter demonstrated meaningful cooperation with the course of justice.

The court took care to avoid double-counting when treating Form 1 matters, particularly in relation to the Jane offences where some of the unlawful sexual acts that underpinned the Form 1 items were also connected to the seriousness of the principal count. The court also confirmed that the potential application of the Crimes (High Risk Offenders) Act 2006 (NSW) after sentence cannot be taken into account in mitigation, as expressly provided by ss 5A and 25C of that Act.

Orders Made

Indicated sentences for Emily:

  • Sequence 19: Sexual intercourse with child between 10 and 16 years (plus Form 1): 3 years 4 months
  • Sequence 20: Sexual intercourse with child between 10 and 16 years: 3 years 9 months
  • Sequence 54: Aggravated indecent assault of child under 16 years (plus Form 1): 2 years
  • Sequence 25: Aggravated incite person under authority to an act of indecency: 9 months
  • Sequence 38: Aggravated indecent assault of child under 16 years (plus Form 1): 1 year 10 months
  • Sequence 29: Aggravated incite person under 16 years to commit act of indecency (plus Form 1): 1 year
  • Sequence 31: Aggravated incite person under 16 years to commit act of indecency (plus Form 1): 1 year 10 months
  • Sequence 33: Aggravated incite person under 16 years to commit act of indecency: 1 year 6 months
  • Sequence 36: Aggravated incite person under 16 years to commit act of indecency: 1 year 6 months
  • Sequence 35: Possess child abuse material: 2 years

Indicated sentence for Jane:

  • Sequence 47: Maintain sexual relationship with a child (s 66EA): 15 years

Aggregate sentence:

  • Total aggregate sentence: 20 years imprisonment
  • Non-parole period: 14 years
  • Sentence commences: 31 October 2022
  • Parole eligibility: 30 October 2036
  • Sentence expires: 30 October 2042
  • The Crimes (High Risk Offenders) Act 2006 (NSW) applies; the offender was advised he may be subject to continued detention or conditions after sentence expiry if an order is made in the community interest
  • On release, the offender is subject to sex offender registration requirements

Key Takeaways

  • The District Court confirmed that maximum penalties in force at the time of offending govern the sentencing exercise under s 19(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), but current sentencing patterns and practices still apply under s 21B.
  • Under s 66EA of the Crimes Act 1900 (NSW) (maintaining an unlawful sexual relationship with a child), the court must consider the maximum penalties for each individual unlawful sexual act committed during the relationship under s 66EA(8), though the Court of Criminal Appeal's decision in R v Fisher [2024] NSWCCA 191 indicates that no single act's maximum necessarily dominates the analysis where multiple acts are involved.
  • Form 1 offences can legitimately increase the sentence for the principal offence in recognition of personal deterrence and retribution, but the sentencing court must take particular care not to double-count conduct already reflected in the principal count.
  • A guilty plea can carry value beyond its strictly utilitarian component: sparing complainants from giving evidence and facilitating the efficient resolution of proceedings are recognised as additional mitigating considerations.
  • The potential application of the Crimes (High Risk Offenders) Act 2006 (NSW), including the possibility of continued detention after a sentence expires, cannot be taken into account in mitigation of sentence by virtue of ss 5A and 25C of that Act.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61E, 61O, 66C, 66A, 66EA, 66DF, 91H
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 19, 21B, 33(2)(b)
- Crimes (High Risk Offenders) Act 2006 (NSW), ss 5A, 25C
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2013] NSWCCA 115
- Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
- Burr v R [2020] NSWCCA 282
- Director of Public Prosecutions (Cth)