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District Court 5 June 2025

R v AM

[2025] NSWDC 296

Sexual offences
CRIME — SENTENCING

Citation: R v AM [2025] NSWDC 296
Court: District Court of New South Wales
Date: 5 June 2025
Judge: Fitzsimmons SC DCJ

Background

The offender was found guilty following trial of three counts of sexual intercourse with a child. The victim was a girl (referred to as CLP) who was a child of the offender's domestic partner. The offender occupied a position of authority over the victim throughout the relevant period.

The offending spanned several years. Count one involved penile penetration of the victim when she was aged approximately eight, occurring at the family's home in Warilla between November 2015 and May 2016. Counts two and three involved separate incidents of penile penetration when the victim was aged between 10 and 12, both occurring at a later family residence at Erowal Bay between October 2019 and November 2020.

The victim provided a victim impact statement describing lasting psychological harm, including flashbacks, intrusive thoughts, and periods of profound distress. She described the offending as having deprived her of the childhood she deserved.

  • What findings of fact were appropriate for sentencing purposes, consistent with the guilty verdicts?
  • What weight should be given to the standard non-parole periods for each offence when assessing overall sentence?
  • What subjective factors, including the offender's background, psychological profile, and prospects of rehabilitation, were relevant to sentence?
  • What aggregate sentence appropriately reflected the totality of the offending without producing a disproportionate or crushing result?
  • Whether special circumstances existed to justify a departure from the standard ratio between the non-parole period and the balance of sentence?

Decision

His Honour applied the standard fact-finding principles for sentencing: facts adverse to the offender required proof beyond reasonable doubt, while mitigating facts needed only to be established on the balance of probabilities, following R v Olbrich (1999) 199 CLR 270 and R v Storey [1998] 1 VR 359. The court made findings consistent with the guilty verdicts, accepting the victim's account of three discrete acts of penile penetration across two residential locations over approximately four years.

Each offence attracted a standard non-parole period as a sentencing guidepost. Count one, being sexual intercourse with a child under 10 years, carried a maximum of life imprisonment and a standard non-parole period of 15 years. Counts two and three, being sexual intercourse with a child aged between 10 and 14 while in a position of authority, each carried a maximum of 20 years and a standard non-parole period of 9 years. The court assessed the objective seriousness of each offence against those benchmarks before turning to subjective considerations.

On totality, the court noted the need to avoid double punishment given the factual commonality across the three counts, all of which involved the same victim. The court also recognised the principle, drawn from R v MAK; R v MSK and Hall v R, that an aggregate sentence must not be so crushing as to destroy any realistic prospect of rehabilitation. Special circumstances were found to exist, justifying a non-parole period that represents a somewhat lower proportion of the total sentence than the statutory default, to allow adequate supervision on parole given the offender's rehabilitation needs.

The court imposed an aggregate sentence of 10 years imprisonment with a non-parole period of 6 years and 5 months. The sentence was backdated to account for 436 days already spent in custody across two periods of pre-sentence detention.

Orders Made

  • The offender was convicted of all three offences.
  • An aggregate sentence of 10 years imprisonment was imposed, commencing 25 March 2024 and expiring 24 March 2034.
  • A non-parole period of 6 years and 5 months was fixed, expiring 24 August 2030.
  • The earliest possible date for release on parole is 24 August 2030.

Key Takeaways

  • The District Court applied the totality principle to arrive at an aggregate sentence lower than the sum of individual indicative terms, reflecting that all three offences were committed against the same victim over a continuous period of domestic cohabitation.
  • Where offences share underlying factual commonality, imposing cumulative sentences that are disproportionate to the overall criminality constitutes an error of principle, as confirmed in Hesketh v R [2021] NSWCCA 262.
  • A finding of special circumstances permits the court to set a non-parole period representing a lesser fraction of the head sentence than the statutory default, particularly where extended post-release supervision is considered necessary to support rehabilitation.
  • The standard non-parole period operates as a legislative guidepost representing the midpoint of objective seriousness, and is one factor to be weighed alongside both aggravating and mitigating considerations when fixing sentence.
  • Victim impact material describing ongoing psychological harm, including flashbacks and persistent distress, formed part of the factual matrix before the court, though such material informs the sentencing exercise rather than mechanically increasing penalty.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66A(1), 66C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 54A, 54B

Cases
- Alseedi v R [2009] NSWCCA 185
- Bugmy v R [2013] HCA 37
- DC v R [2023] NSWCCA 82
- Dungay v R [2020] NSWCCA 209
- EG v R [2015] NSWCCA 21
- Hall v R [2021] NSWCCA 220
- Hesketh v R [2021] NSWCCA 262
- R v Brown [2023] NSWDC 477
- R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56
- R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381
- R v McNaughton (2006) 66 NSWLR 566
- R v Olbrich (1999) 199 CLR 270
- R v Storey [1998] 1 VR 359
- R v Wright (1997) A Crim R 48
- Van der Baan v R [2012] NSWCCA 5