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District Court 18 October 2024

R v Bako

[2024] NSWDC 630

Sexual offences
CRIME SENTENCING IT, AGED 15 VM, AGED 12 DZ, AGED 8 INDECENT ASSAULT PERSON UNDER 16

Citation: R v Bako [2024] NSWDC 630
Court: District Court of New South Wales
Date: 18 October 2024
Judge: King SC DCJ

Background

The offender, a tennis coach, was convicted after trial on 20 counts of sexual offending against three child victims. The offending occurred across a period of approximately five years, from late 2009 to late 2014, when the offender was aged between approximately 38 and 42 years. He was 52 at the time of sentencing.

The three victims were girls aged, respectively, 15 to 17 years (IT), 12 to 13 years (VM), and 8 to 15 years (DZ) at the times of the offending. The offender had positions of trust and authority in relation to each victim: he was a family friend or relative by marriage to two of the victims, and he acted as a tennis coach. The offending ranged from acts of indecency to the maintenance of an unlawful relationship with a child.

The indictment originally contained 23 counts. The jury convicted on Counts 1 to 20. Counts 21 to 23 were alternative counts related to Count 20 and did not require verdicts once the jury returned a guilty finding on that count.

  • The appropriate sentence for 20 counts of sexual offending, including assault with an act of indecency, indecent assault of a person under 16, and maintaining an unlawful relationship with a child
  • The objective seriousness of each category of offending, having regard to the age of the victims, the nature of the acts, and the duration of the conduct
  • Whether the victims were "under authority" as an element of the relevant offences or as a statutory aggravating circumstance, and the sentencing consequences of that distinction
  • The treatment of uncharged acts and their relevance to the sentencing exercise
  • The weight to be given to subjective matters, including the offender's age, first-time custody status, likely prison conditions, and the impact of incarceration on his family
  • Whether special circumstances existed justifying a non-parole period below the standard 75% ratio, and the appropriate aggregate sentence

Decision

King SC DCJ sentenced the offender on the 20 counts by constructing individual sentences for each count and then imposing an aggregate sentence. The court assessed the offending as serious across all three victim groups, noting the repeated and planned nature of the conduct, the exploitation of positions of trust and authority, and the young ages of the victims. The offending against DZ spanned the longest period and resulted in a conviction under s 66EA(1) of the Crimes Act, which carries a maximum penalty of life imprisonment.

The court addressed the distinction between "under authority" as a particularised element of an offence and as a statutory aggravating circumstance, drawing on the Court of Criminal Appeal's guidance in Nolan v R [2024] NSWCCA 140. Where the victim being under the offender's authority was particularised as part of the charge itself, it could not be double-counted as a separate aggravating factor at sentence. The court applied this principle carefully across the relevant counts.

Uncharged acts of offending were taken into account, as permitted in the sentencing exercise, as part of the overall context of the offending conduct. Breaches of trust featured prominently in the court's assessment of objective seriousness across all three victim groups, given the offender's roles as family friend, relative by marriage, and sporting coach.

On subjective matters, the court found special circumstances justifying a reduction in the non-parole period below the standard statutory ratio of 75%. The offender had no prior criminal history, was in custody for the first time, and was assessed as likely to require protective custody given the nature of his convictions. The court also took into account the stress imposed on his family by his incarceration. The result was an aggregate sentence of 10 years with a non-parole period of five years, representing a 50% non-parole ratio.

Orders Made

  • Aggregate sentence of 10 years imprisonment
  • Non-parole period of 5 years (50% of head sentence, reflecting special circumstances)
  • Sentence commenced 22 March 2024 (the date the offender went into custody)
  • First eligible for parole: 21 March 2029
  • Full term expires: 21 March 2034

Key Takeaways

  • The District Court applied the principle from Nolan v R [2024] NSWCCA 140 that where a victim being "under authority" is particularised as an element of a charge, it cannot also be used as a separate statutory aggravating circumstance at sentence, to avoid double-counting.

  • A conviction under s 66EA(1) of the Crimes Act for maintaining an unlawful relationship with a child carries a maximum penalty of life imprisonment; the particulars of the charge effectively encompassed three separately charged alternative acts of indecency.

  • Special circumstances reducing the non-parole period below the standard 75% statutory ratio were established on the basis of the offender's first-time custody status, the likely hardship of imprisonment given the nature of the convictions, and the impact on his family.

  • Uncharged acts of sexual misconduct remained relevant to the sentencing exercise as contextual material bearing on the nature and extent of the overall offending conduct.

  • Positions of trust and authority, whether as a sporting coach or as a family associate, featured as central aggravating considerations across all three victim categories.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), including ss 61L, 61M(1), 61M(2), 61N(2), 61O(1), 66EA(1), 80AF
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Nolan v R [2024] NSWCCA 140