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District Court 8 August 2025

R v Irving

[2025] NSWDC 392

Sexual offences
CRIME SENTENCE 16 YEARS SEXUAL TOUCHING CHILD 10 16 YEARS SEXUAL TOUCHING CHILD UNDER 16 YEARS

Citation: R v Irving [2025] NSWDC 392
Court: District Court of New South Wales
Date: 8 August 2025
Judge: Bourke SC DCJ

Background

The offender, a man aged between 44 and 45 at the relevant times, was the stepfather of the victim, having married her mother in 2020. The family lived together in West Tamworth, along with the victim's many siblings and two younger children born to the offender and the victim's mother. The offending occurred over approximately 14 months, from early 2022 to March 2023, when the victim was aged between 10 and 12 years.

The offending came to light in March 2023 after the victim's mother discovered a diary entry in which the victim had written, in her own words, that her father wanted to have sex with her. The mother confronted the victim, who disclosed that she had been touched and described the most recent incident as occurring "Thursday or Friday". Police were called, and the offender left the house before they arrived. The victim participated in three separate police interviews, progressively disclosing the full range of offending.

Following a trial in May 2025, the jury convicted the offender on all eight counts. The sentence proceedings then determined the appropriate penalties.

  • What were the objective facts established by the evidence at trial, consistent with the jury's verdicts?
  • What was the objective seriousness of each of the eight offences?
  • What subjective factors, including the offender's personal circumstances and mental health, were relevant to sentencing?
  • What aggregate sentence and non-parole period were appropriate, having regard to totality principles?
  • Whether special circumstances existed justifying a variation in the ratio between the head sentence and the non-parole period?

Decision

Bourke SC DCJ found the facts by reference to the Crown's summary of the evidence, which defence counsel accepted as accurate, and by the judge's own review of the trial evidence. The offending was found to have escalated in seriousness over the relevant period. It began with the offender exposing himself and masturbating in front of the victim in early 2022 (Counts 1 and 2), progressed to sexual touching including licking her cheek and mouth (Counts 3 and 4), then to digital penetration causing the victim pain (Count 5), and culminated in a single incident on 16 March 2023 involving sexual touching, masturbation towards the victim and further digital penetration (Counts 6, 7, and 8).

The judge assessed the offending as serious across the board, noting that sexual offences against children are presumed to cause serious and long-lasting harm. Several features were common to multiple counts: the victim's young age, the significant breach of the trust placed in a stepfather, the domestic setting, the deliberate isolation of the victim from her siblings or mother before each incident, and the escalating pattern of conduct. The Count 8 offence, involving digital penetration in the bathroom while the victim's younger brothers were also present, was identified as particularly grave.

On subjective matters, the judge accepted that the offender's mental health difficulties had made, and would continue to make, custody harder for him. The court also had regard to his background in accordance with the principles from Bugmy v R [2013] HCA 37, which recognises the relevance of disadvantaged upbringing to the weight given to general deterrence. The offender maintained his innocence, so no discount for remorse or a guilty plea was available.

The court found special circumstances warranting a reduction in the standard ratio between the head sentence and the non-parole period, based on three considerations: the risk of institutionalisation, the need for a reasonably lengthy period of supervised parole, and the impact of the offender's mental health on his experience of imprisonment. An aggregate sentence was imposed. The commencement date was backdated to 1 November 2024, taking into account that the offender was already serving another sentence, and structured to avoid a combined non-parole period that would be crushing.

Orders Made

  • The offender was convicted on all eight counts.
  • An aggregate head sentence of six years' imprisonment was imposed.
  • A non-parole period of four years was set.
  • Both the head sentence and the non-parole period commenced on 1 November 2024.
  • The head sentence expires on 30 October 2030; the non-parole period expires on 30 October 2028.

Indicative sentences were recorded for each count as follows:
- Count 1: 2 years
- Count 2: 2 years
- Count 3: 8 months
- Count 4: 12 months
- Count 5: 3 years 6 months (non-parole period of 2 years 4 months)
- Count 6: 2 years 3 months
- Count 7: 2 years
- Count 8: 3 years 6 months (non-parole period of 2 years 4 months)

Key Takeaways

  • Sexual offences committed by a stepfather against his stepdaughter represent a serious breach of familial trust, and the District Court treated that breach as a significant aggravating feature across all counts.
  • Escalating patterns of offending, where conduct moves progressively from exposure to touching to penetration over an extended period, are relevant to both the objective seriousness of individual offences and the overall sentencing exercise.
  • Under the principles in Bugmy v R, a history of personal disadvantage may reduce the weight given to general deterrence, but this consideration operates alongside, and does not displace, the substantial weight attached to the protection of children and denunciation of child sexual offending.
  • Where an offender is already serving a sentence, courts may backdate a new sentence's commencement and structure concurrent non-parole periods to avoid a combined term that is crushing, reflecting the totality principle under the Crimes (Sentencing Procedure) Act 1999.
  • A finding of special circumstances permits a court to extend the parole period beyond the statutory default, and this District Court based that finding on the combined effect of institutionalisation risk, supervisory need on release, and the impact of mental health conditions on the experience of custody.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66C(2), 66DB(a), 66DE(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Bugmy v R [2013] HCA 37
- DB v R [2023] NSWCCA 323
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Kelly v R [2022] NSWCCA 189
- Mohindra v R [2020] NSWCCA 340
- Muldrock v R (2011) 244 CLR 120
- Stobinski v R [2025] NSWCCA 97