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District Court 15 July 2025

R v JH

[2025] NSWDC 314

Sexual offences
DEPRIVED UPBRINGING SPECIAL CIRCUMSTANCES

Citation: R v JH [2025] NSWDC 314
Court: District Court of New South Wales
Date: 15 July 2025
Judge: Fitzsimmons SC DCJ

Background

The offender pleaded guilty to a large number of sexual offences against three child victims. The offences were committed across a span of years, with the offending against two victims (EA and BM) occurring when the offender was himself aged between 14 and 16. The offending against the third victim (JJ) occurred when the offender was an adult.

The offences involving victim EA took place between November 2014 and November 2016. EA was then aged between 10 and 11, and had been friends with the offender's younger sister, regularly visiting the offender's home. The offences included indecent assault, sexual intercourse with a child under 14, taking or detaining a person with intent to commit a serious indictable offence, and two counts of aggravated sexual assault. The offending against victim BM included three counts of aggravated sexual assault, with the offender using threats involving sexually explicit material to coerce compliance. The offending against victim JJ consisted of three counts of sexual intercourse with a child aged 10 or over and under 14, along with additional counts of intentional sexual touching.

A number of further offences were taken into account on a Form 1 basis (a procedural mechanism by which additional offences are acknowledged at sentencing without recording a separate conviction). The Court received evidence from an expert psychologist, character references, and victim impact statements.

  • Whether, and to what extent, the standard non-parole period provisions under the Crimes (Sentencing Procedure) Act 1999 applied to offences committed when the offender was under 18 years of age.
  • How the Court should assess the objective seriousness of each offence across three separate victims and multiple incidents spanning several years.
  • How the Court should weigh the subjective considerations, including the offender's age at the time of offending, mental health, and deprived upbringing.
  • How to apply the principle of totality and structure an aggregate sentence across a large number of offences involving multiple victims.
  • Whether special circumstances existed to justify a non-parole period departing from the statutory ratio.

Decision

On the question of standard non-parole periods, the Court confirmed that Division 1A of the Crimes (Sentencing Procedure) Act 1999 does not apply where the offender was under 18 at the time of the relevant offence. Drawing on BP v R and McGrath v R, the Court noted that the standard non-parole period must be disregarded entirely in those circumstances, and that even oblique reliance on it constitutes error. Accordingly, the standard non-parole period applied only to the three counts of sexual intercourse with a child under 14 involving victim JJ, as the offender was an adult at that time.

In assessing objective seriousness, the Court treated each incident as a serious intrusion upon the bodily integrity of young and vulnerable victims. Several aggravating features were present across the matters, including the deprivation of victims' liberty, the infliction of actual bodily harm, the use of coercion and threats, and the breach of trust arising from the offender's access to victims through domestic and social relationships.

The Court gave significant weight to the subjective considerations. The offender's youth at the time of much of the offending, his mental health difficulties, and his deprived upbringing all operated to reduce moral culpability to a degree, consistent with the principles in Bugmy v the Queen. However, the Court balanced those matters against the gravity and multiplicity of the offending, the number of victims, and the need for the sentence to reflect both specific and general deterrence as well as community protection.

The Court found special circumstances existed, warranting a longer than usual parole period to support the offender's rehabilitation and reintegration, and structured the sentence accordingly.

Orders Made

  • The offender was convicted of all offences.
  • A total sentence of 10 years' imprisonment was imposed, commencing 27 March 2025 and expiring 26 March 2035.
  • A non-parole period of 6 years was imposed, expiring 26 March 2031.
  • The earliest date the offender is eligible for release on parole is 26 March 2031.

Key Takeaways

  • Under s 54D(3) of the Crimes (Sentencing Procedure) Act 1999, the standard non-parole period regime has no application where the offender was under 18 at the time of the offence, and the District Court confirmed it must be disregarded entirely, with even indirect reliance constituting error.
  • A deprived upbringing and mental health difficulties remain relevant mitigating factors in serious sexual offending, but their weight is assessed against the cumulative gravity of offending involving multiple victims and sustained coercive conduct.
  • Where a large number of offences span several years and involve more than one victim, the totality principle requires careful construction of an aggregate sentence that reflects the overall criminality without being crushing, particularly where much of the offending occurred during the offender's youth.
  • Special circumstances findings, which permit a longer parole period relative to the head sentence, are available even in serious matters where genuine rehabilitation prospects and reintegration needs can be identified.
  • The Form 1 procedure allows additional offences to be acknowledged and weighed in sentencing without the court recording separate convictions, and the District Court applied this across multiple victims in structuring the overall sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 61, 61J(1), 61M(2), 61N(1), 66C(1), 66DB(a), 86(1)(a1), 91G(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 54A, 54B, 54D(3)
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases:
- Bugmy v the Queen (2013) 249 CLR 571; [2013] HCA 37
- BP v R (2010) 201 A Crim R 379
- McGrath v R (2010) 199 A Crim R 527
- AE v R [2010] NSWCCA 203
- BB v R [2024] NSWCCA 13
- BM v R [2019] NSWCCA 223
- RA v R [2024] NSWCCA 149
- R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381
- R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56
- Hall v R [2021] NSWCCA 220
- Hoskins v R [2021] NSWCCA 169
- KT v R [2010] NSWCCA 51
- MW v R [2010] NSWCCA 324
- R v AA [2017] NSWCCA 84
- Baden v R [2020] NSWCCA 23
- Miller v R [2015] NSWCCA 86
- Giles-Adam v R; Preca v R [2023] NSWCCA 122
- Tepania v R [2018] NSWCCA 247