Citation: R v Osborne [2025] NSWDC 118
Court: District Court of New South Wales
Date: 19 February 2025
Judge: Bourke SC DCJ
Background
The offender, a 42-year-old man, was the de facto stepfather of a seven-year-old girl. On 27 December 2023, while the child's mother was in another room breastfeeding a two-month-old infant, the offender committed an act of cunnilingus on the child inside a makeshift "fort" in her bedroom. The child immediately left, became visibly distressed, and told her mother what had occurred.
DNA evidence confirmed the presence of the offender's DNA on the child's clothing and on a swab taken from her genital area. The offender was arrested that evening. He made partial admissions to police but did not admit the full offence at that time.
The offender pleaded guilty to one count of sexual intercourse with a child under ten years of age, an offence carrying a maximum penalty of life imprisonment and a standard non-parole period of 15 years. The matter came before the District Court for sentencing.
Legal Issues
- Where on the scale of objective seriousness did this particular offence fall?
- Whether the preparatory acts of kissing constituted a separate aggravating feature or formed part of the one incident
- Whether the breach of trust and breach of authority were distinct aggravating factors or overlapping considerations
- What weight to assign to the offender's subjective circumstances, including his disadvantaged background and mental health
- How to structure the sentence, including whether a finding of special circumstances warranted a longer-than-standard parole period
Decision
Objective seriousness: Bourke SC DCJ assessed the offence as comfortably above the low range but below the mid-range of objective seriousness. The act involved direct skin-on-skin contact of a sexual nature with a seven-year-old child. The duration was not known precisely, though the court found it was not momentary. The offence did not involve gratuitous violence or physical pain, but it carried significant aggravating features.
Aggravating factors: The court identified the offender's serious breach of trust as a central aggravating feature. He occupied a quasi-parental role and was trusted by the child, her mother, and the broader family. The offence occurred in the child's own home. However, the court declined to treat the breach of trust and breach of authority as separate aggravating factors, finding that doing so would amount to double-counting given the substantial overlap between the two.
Preparatory conduct: The Crown argued that the kissing immediately preceding the assault constituted separate preparatory sexual offending, which should reduce any leniency afforded to the offender. The court rejected that framing, treating the preparatory acts as part of one continuous incident. This allowed the offending overall to be characterised as a single, spontaneous aberration in an otherwise law-abiding life, rather than a course of planned conduct.
Subjective matters and sentence structure: The court accepted evidence of the offender's difficult childhood, including a serious family car accident, parental absence, and bullying. Psychological evidence was also considered in relation to his mental health. A 25 per cent discount was applied for the utilitarian value of the guilty plea. The court found special circumstances warranting a departure from the standard ratio between non-parole period and head sentence, citing the offender's need for rehabilitation, the significance of custodial conditions for a person with mental health difficulties, and the importance of a meaningful parole period to support his reintegration.
Orders Made
- Total sentence of five years and nine months imprisonment, commencing 27 December 2023 and expiring 26 September 2029
- Non-parole period of three years and six months, expiring 26 June 2027
- Direction that a copy of Dr Fritchley's psychological report be forwarded to Justice Health, with attention drawn to paragraphs 80 to 85 concerning treatment recommendations
- An apprehended violence order made by consent for an indefinite period
Key Takeaways
- The District Court confirmed there is no strict hierarchy of seriousness among the acts that constitute "sexual intercourse" under the relevant legislation; each case turns on its own facts, and the court must locate the offence on a spectrum relative to the maximum and the standard non-parole period.
- A breach of trust and a breach of authority, while both capable of aggravating a child sexual assault offence, may substantially overlap where the offender occupied a quasi-parental role. In this case, treating them as separate aggravating features would have amounted to double-counting.
- Preparatory sexual conduct immediately preceding the principal offence does not automatically constitute a separate or distinct aggravating circumstance. Where it forms part of the same continuous incident, it may appropriately be treated as a single episode of offending.
- Special circumstances justifying a departure from the standard non-parole period ratio may be found where an offender has significant mental health needs, where custodial conditions present particular difficulties, and where a structured parole period is needed to support rehabilitation and reintegration.
- A 25 per cent sentencing discount for a guilty plea applied in these proceedings in accordance with the requirements of the Crimes (Sentencing Procedure) Act 1999.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- Bugmy v R (2013) 249 CLR 571
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- R v Gavel [2014] NSWCCA 56
- R v Millwood [2012] NSWCCA 2