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District Court 20 March 2024

R v BM

[2024] NSWDC 94

Sexual offences
CRIME SENTENCE CHILD SEXUAL OFFENCES

Citation: R v BM [2024] NSWDC 94
Court: District Court of New South Wales
Date: 20 March 2024
Judge: Anderson SC DCJ

Background

The offender, a 26-year-old man, appeared for sentencing on five offences arising from events on the night of 16 October 2022. He sexually touched three of his half-siblings at their family home: a girl aged 11, a girl aged 7, and a girl aged 6. The offender did not live at the home but was present that evening while the children's parents had retired for the night.

The offending involved touching each child's genitals, in one case directly on skin beneath underwear, in the others through clothing. The conduct was opportunistic and brief, occurring without planning, force, or grooming. The children disclosed the conduct to an older sibling that same night, and formal JIRT interviews followed within days.

When arrested two months later, the offender denied wrongdoing. A forensic analysis of his phone revealed he had been using social media applications he was obliged to report under his existing registration conditions as a sex offender. His phone also contained a still image and a short video of a semi-naked child aged between 14 and 16 years masturbating, giving rise to the child abuse material possession charge.

  • What was the appropriate objective seriousness of each offence?
  • Whether the offender's claimed history of childhood sexual abuse warranted weight as a mitigating factor, given the evidence was disputed
  • Whether special circumstances existed justifying a variation of the standard non-parole period ratio
  • How totality and the aggregate sentencing regime should operate across five distinct offences

Decision

Anderson SC DCJ assessed the objective seriousness of each of the three touching offences individually. The court declined to adopt a formulaic "low range / mid-range" characterisation, consistent with recent Court of Criminal Appeal authority discouraging that approach. In assessing seriousness, the court took into account the brevity and spontaneous nature of the conduct, the absence of force, grooming, or arousal, and whether skin-to-skin contact occurred. Against those factors, the court weighed the significant breach of trust involved in offending against sleeping or unsuspecting younger half-siblings.

On the question of mitigating subjective circumstances, the offender gave evidence that he had himself been sexually abused as a child. The court rejected that evidence, finding it implausible and inconsistent with other material. The court noted that even if accepted, a claimed history of childhood abuse does not automatically reduce sentence and the connection to the offending would need to be established. The offender received credit for genuine remorse, youth (28 at sentencing), an early guilty plea (attracting a 25% discount), and some evidence of childhood deprivation.

Special circumstances were found to exist, justifying a reduction in the proportion of the sentence to be served before parole eligibility. The court applied a non-parole period representing 65% of the total sentence, rather than the standard 75%, to allow a longer period of supervision on parole given the nature of the offending and the offender's rehabilitation needs.

The court imposed an aggregate sentence under section 53A of the Crimes (Sentencing Procedure) Act 1999, incorporating all five matters including the Child Protection (Offenders Registration) Act offence transferred from the Local Court under section 166 of the Criminal Procedure Act.

Orders Made

  • The offender was convicted of all five offences
  • An aggregate sentence of 6 years and 10 months' imprisonment was imposed
  • Non-parole period set at 4 years and 5 months (65% of total term), reflecting special circumstances
  • Sentence backdated to commence 20 December 2022, expiring 19 October 2029
  • Non-parole period expires 19 May 2027, being the earliest eligible release date

Key Takeaways

  • The District Court confirmed it is not required to characterise objective seriousness by reference to "low", "mid" or "high" range labels, following the approach endorsed in DH v R, Ragg v R, and R v RE. An instinctive synthesis that weighs all relevant features is sufficient.
  • A claimed history of childhood sexual abuse as a mitigating factor requires credible evidence; where the sentencing court rejects that evidence as implausible, no weight will be given to it.
  • Even where a history of childhood sexual abuse is accepted, the connection between that history and the offending conduct must be established before it carries significant mitigating weight.
  • Under section 53A of the Crimes (Sentencing Procedure) Act, an aggregate sentence can incorporate offences transferred from the Local Court under section 166 of the Criminal Procedure Act, including summary matters such as child protection registration breaches.
  • Special circumstances findings, which reduce the proportion of a sentence spent before parole eligibility, remain available in child sexual offence matters where the offender's rehabilitation needs and supervision requirements are demonstrated.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66DA(a), 66DB(a), 91H(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Criminal Procedure Act 1986 (NSW), s 166
- Child Protection (Offenders Registration) Act 2000 (NSW), s 17(2)

Cases
- DH v R [2022] NSWCCA 200
- Ragg v R [2022] NSWCCA 150
- R v RE [2023] NSWCCA 184
- Minehan v R [2010] NSWCCA 140
- Strbak v R (2020) 376 ALR 453; [2020] HCA 10
- DS v R; DM v R [2022] NSWCCA 156
- R v Qutami (2001) 127 A Crim R 369
- R v Palu (2002) 134 A Crim R 174
- Lloyd v R [2022] NSWCCA 18