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District Court 7 March 2025

R v LONG

[2025] NSWDC 32

Sexual offences
CRIMES SEXUAL OFFENCES FAMILY FRIEND FINDING OF GUILT AFTER TRIAL SENTENCE GENERAL DETERRENCE LIMITED CRIMINAL HISTORY

Citation: [2025] NSWDC 32
Court: District Court of New South Wales
Date: 7 March 2025
Judge(s): Lerve DCJ

Background

The offender, a man aged 51 at the time of sentencing, was found guilty by jury of 11 counts of sexual offences against a single child victim (referred to as "CD") committed between approximately 1992 and 2000. The victim was between 4 and 12 years of age at the time of the various offences. The offender was acquitted of two of the original 13 counts on the indictment.

The offender was a lifelong family friend of the victim's parents. The connection between the families arose through relationships between members of both families over many years. The victim referred to the offender as her "uncle." During the relevant period, the offender and his family lived in close proximity to — and at times in the same residence as — the victim and her family, first at a property in Young and later at addresses in the St Georges Basin and Sanctuary Point areas of New South Wales.

The offences ranged from indecent assault (touching the victim's genitals over clothing) to sexual intercourse offences (digital penetration of the victim's vagina), committed in a variety of domestic settings including during a motorbike ride, in the offender's bedroom, in a swimming pool, during a game in the backyard, and elsewhere. In all instances, the offending involved a significant breach of trust and a substantial age difference of approximately 14 years between the offender and the victim. The offender pleaded not guilty and was put to trial, meaning no discount for a guilty plea was applicable.

  • Factual findings for sentencing: What facts should the court find beyond reasonable doubt, consistent with the jury's verdicts, for the purpose of sentencing on each count?
  • Objective seriousness: How serious was each offence, assessed against the statutory maximum penalties applicable at the time of offending?
  • Applicable maximum penalties: What were the correct maximum penalties, given that the offending occurred under earlier versions of the relevant provisions of the Crimes Act 1900?
  • Aggravating and mitigating factors: What factors, including breach of trust, the victim's age, the offender's criminal history, prospects of rehabilitation, and any special circumstances, should be taken into account?
  • Totality and aggregation: How should the court structure the sentence, having regard to the principles of totality, aggregate sentencing, and the need for general and specific deterrence?
  • Special circumstances: Whether special circumstances existed justifying a variation to the statutory ratio between the non-parole period and the balance of the term of the sentence.

Decision

The court accepted the Crown's proposed findings of fact (which were also agreed to by defence counsel) as the factual basis for sentencing. These findings established a pattern of escalating sexual offending against the victim across a period of approximately eight years, taking advantage of the offender's trusted position within the family and the domestic settings in which the families lived together or socialised.

In assessing objective seriousness, the court considered each count individually. Count 2 (indecent assault of a child aged 4–6, involving touching over clothing during a motorbike ride) was assessed as marginally below mid-range. Count 3 (digital penetration of a child aged 8–9 in the offender's bedroom, with some resistance from the victim) was assessed as below mid-range but not significantly so. Counts 5–7 (sexual intercourse offences involving digital penetration of the victim aged 12, in settings including a swimming pool and during a backyard game) were assessed as below mid-range, with the court noting the opportunistic nature and relatively brief duration of some incidents. Counts 8–12 (indecent assaults of the victim aged 12 in circumstances of aggravation) and Count 13 (sexual intercourse with a child under the offender's authority) attracted particular attention due to the aggravating feature of the offender's position of trust and authority.

The court noted the applicable maximum penalties at the time of offending, which ranged from 7 years to 20 years imprisonment depending on the offence. Standard non-parole periods did not apply at the time of offending. The court had regard to the principles of general deterrence — emphasising the importance of deterring sexual offending against children — and considered the offender's limited prior criminal history, his personal circumstances (including his background), and the principles set out in Bugmy v The Queen regarding disadvantaged backgrounds. The court also considered the totality principle and the need to impose a sentence that was just and proportionate to the overall criminality, while avoiding a "crushing" sentence.

After weighing all relevant factors, the court found that special circumstances existed justifying a departure from the standard ratio between the non-parole period and the balance of the sentence, in order to provide the offender with an extended period of supervised release.

Orders Made

  • The offender was convicted of all 11 counts on which the jury returned guilty verdicts (Counts 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, and 13).
  • An aggregate sentence of imprisonment was imposed (the precise term and structure of the aggregate sentence, including the non-parole period and balance of term, were determined in the full judgment but are not set out in the truncated text available).
  • A finding of special circumstances was made, varying the statutory ratio between the non-parole period and balance of the sentence.

Note: The full terms of the sentence are not available in the truncated text provided. Practitioners should consult the complete judgment for the specific aggregate sentence, non-parole period, and commencement dates.

Key Takeaways

  • Historical child sexual offences were sentenced under the maximum penalties in force at the time of offending, not the current maxima. The District Court resolved a dispute between the parties on this point by identifying and applying the legislative provisions and penalties applicable at the relevant dates.

  • Breach of trust operated as a significant aggravating factor across all counts. The offender's status as a trusted family friend, referred to as "uncle" by the victim, increased the objective seriousness of the offending given his ready access to the child in domestic settings over an extended period.

  • No sentencing discount was applied in the absence of a guilty plea, though the Court expressly noted that exercising the right to trial did not result in any increase or aggravation of penalty, consistent with the established principle that an offender should not be penalised for putting the Crown to proof.

  • An aggregate sentencing approach was adopted to ensure compliance with the totality principle where multiple historical offences were sentenced together. The District Court structured the overall sentence to reflect the total criminality without imposing a crushing outcome.

  • A finding of special circumstances justified an extended period of supervised release, with the Court identifying the offender's need for a longer parole period to facilitate reintegration into the community after a significant term of imprisonment for offending committed many years earlier.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(1), 61M(2), 66A, 66C(1), 66C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Bugmy v The Queen [2013] HCA 37
- Chamseddine v R [2017] NSWCCA 176
- MC v R [2017] NSWCCA 316
- R v Burchell (1987) 34 A Crim R 148
- R v Muldoon (unrep. NSWCCA, 13 December 1990)
- R v Tuala [2015] NSWCCA 8
- R v Van Ryn [2016] NSWCCA 1