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District Court 4 April 2025

R v Fatefehi

[2025] NSWDC 124

Sexual offences

Citation: R v Fatefehi [2025] NSWDC 124
Court: District Court of New South Wales
Date: 4 April 2025
Judge: Montgomery DCJ

Background

The offender, a 48-year-old man, was convicted by jury of two counts of aggravated sexual assault under section 61J(1) of the Crimes Act 1900 (NSW). The circumstance of aggravation was that the victim was under 16 years of age at the time of the offences. Each count carries a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years.

The offending occurred in the early hours of 17 December 2022 at the family home. The offender was in a relationship with the victim's mother and had been living with her and the victim for approximately 18 months. The victim, who was 15 years and 10 months old at the time, referred to the offender as "Stepdad." The offender digitally and then penile-vaginally penetrated the victim while she lay in her bed pretending to be asleep. The age difference between the offender and the victim was over 30 years.

The offender denied the offending entirely at trial, arguing the victim had fabricated the allegations due to a dispute over her living arrangements. The jury unanimously rejected that defence. The offender was arrested on 9 January 2023 and has remained in custody since.

  • Whether the offender occupied a position of "authority" or "trust" in relation to the victim within the meaning of section 21A(2)(k) of the Crimes (Sentencing and Procedure) Act 1999 (NSW), so as to aggravate the objective seriousness of the offending
  • Whether the offender's maintained claim of innocence prevented a finding of positive prospects of rehabilitation
  • Whether the maintained claim of innocence affected the assessment of risk of recidivism

Decision

Position of authority or trust: Montgomery DCJ engaged closely with whether the offender's role as the victim's de facto stepfather constituted a position of "authority" or "trust" under section 21A(2)(k). The Crown argued the offender had power over the victim's living arrangements and that the victim, knowing her situation was precarious, was less likely to disclose the offending. His Honour observed that the Crown's submissions at times conflated the distinct concepts of "authority" and "trust." After analysis, His Honour found the offender did occupy a position of trust by virtue of his quasi-parental role and cohabitation, and that this elevated the objective seriousness of the offending.

Maintained claim of innocence and rehabilitation: The court acknowledged the established principle that a sentencing court cannot treat a maintained claim of innocence as an aggravating factor. However, it also recognised that a genuine absence of remorse, insight, and acceptance of wrongdoing is properly relevant to the assessment of prospects of rehabilitation. His Honour found the offender's continuing denial, combined with the absence of any demonstrated insight or remorse, limited the extent to which positive rehabilitation prospects could be found.

Recidivism risk: The maintained claim of innocence was also found relevant to the assessment of the risk of reoffending. Without acknowledgment of the conduct, the offender could not engage meaningfully with targeted rehabilitative programs. His Honour took this into account in calibrating the sentence, while remaining careful not to punish the offender for exercising his right to maintain innocence.

Sentence: His Honour assessed the two offences as serious, with the penile-vaginal intercourse (Count 4) being the more serious of the two discrete criminal acts. Applying the principle of substantial concurrence given the offences occurred during a single episode, an aggregate sentence was imposed. The sentence was backdated to the date of arrest.

Orders Made

  • Aggregate sentence of imprisonment for 7 years with a non-parole period of 4 years and 7 months, commencing 9 January 2023
  • Eligible for parole consideration from 8 August 2027; balance term expires 8 January 2030
  • Recommendation that the offender be referred to programs for grief and post-traumatic stress disorder management
  • Recommendation that the offender be referred to drug addiction and abuse treatment programs
  • On release to parole, the offender is to comply with all reasonable directions of Community Corrections, including:
  • Development of a Mental Health Care Plan with a general practitioner
  • Referral to a specialist drug and alcohol service
  • Engagement with mental health services, including a psychiatrist and/or psychologist
  • Completion of the EQUIPS Addiction Program (if available)
  • Engagement with suitable employment
  • Abstinence from illicit substances
  • The offences are to be recorded on the offender's criminal record as domestic violence offences pursuant to sections 9(1) and 9(2) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Key Takeaways

  • A de facto stepfather who cohabits with a victim and assumes a quasi-parental role can be found to occupy a position of "trust" under section 21A(2)(k) of the Crimes (Sentencing and Procedure) Act 1999, elevating the objective seriousness of sexual offending against that victim.
  • The concepts of "authority" and "trust" under section 21A(2)(k) are distinct and should not be conflated in sentencing submissions; Montgomery DCJ's reasons signal the importance of precision when pressing this aggravating factor.
  • A maintained claim of innocence cannot itself be treated as an aggravating factor, but the corresponding absence of remorse and insight remains legitimately relevant to assessing rehabilitation prospects and recidivism risk.
  • Where two sexual offences form part of a single episode of offending, the principle of substantial concurrence applies to moderate the aggregate sentence, even where each offence is a separate criminal act.
  • Offences committed by a cohabitant against a partner's child in a domestic setting may qualify as domestic violence offences under the Crimes (Domestic and Personal Violence) Act 2007 (NSW), with a direction that they be recorded as such on the offender's criminal record.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61J(1) and s 61J(2)(d)
- Crimes (Sentencing and Procedure) Act 1999 (NSW), s 21A(2)(k)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 9(1), 9(2), 11(1)(a)

Cases:
- Al Dhaifa v R [2024] NSWCCA 108
- Ali v R [2010] NSWCCA 35
- Alseedi v R [2009] NSWCCA 185
- Cahyadi v R [2007] NSWCCA 1
- Crane v R [2024] NSWCCA 87
- DH v R [2019] NSWCCA 128
- DPP v Burton [2020] NSWCCA 54
- Du Plessis v R [2024] NSWCCA 164
- Field v R [2020] NSWCCA 105
- Hili v the Queen (2010) 242 CLR 520
- Johnson v R [2016] NSWCCA 286
- Kumar v R [2011] NSWCCA 139
- MH v R [2011] NSWCCA 230
- Montero v R [2013] NSWCCA 214
- Pender v R [2023] NSWCCA 291
- R v Davidson [2023] NSWDC 101
- R v DN [2023] NSWCA 39
- R v Ryn [2016] NSWCCA 1
- Siganto v R (1999) 159 ALR 94
- Tepania v R [2018] NSWCCA 247