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District Court 3 October 2025

R v Mikhaiel

[2025] NSWDC 453

Sexual offences
SOCIAL F AMILY SUPPORT — UNLIKELY TO RE OFFEND

Citation: R v Mikhaiel [2025] NSWDC 453
Court: District Court of New South Wales
Date: 3 October 2025
Judge: Haesler SC DCJ

Background

Following a ten-day jury trial, the offender, a 28-year-old disability support worker with no prior convictions, was found guilty of four counts of sexual offending against a 15-year-old girl in her care. The victim, referred to as Helen (a pseudonym), had recently lost her mother and was placed in supported temporary accommodation in Wollongong while permanent arrangements were made. The offender was her sole carer at that residence.

The offending occurred in a single incident in 2022. The offender and Helen consumed alcohol together, after which the offender sexually touched Helen while seated on a bed and then, under the guise of offering a massage, digitally penetrated her, performed oral sex on her, and placed her mouth on Helen's breasts.

Those acts gave rise to two charges of intentionally sexually touching a person without consent, knowing the person was not consenting (Crimes Act 1900, s 61KD(1)(a)), and two charges of sexual intercourse without consent, knowing the person was not consenting (Crimes Act, s 61J(1)). All four counts were aggravated by the circumstance that the victim was under the offender's authority.

  • What sentence was proportionate to the objective seriousness of the four offences, having regard to applicable maximum penalties and standard non-parole periods?
  • What weight should be given to the offender's subjective circumstances, including her age, good character, first time in custody, and the particular hardships of custody she faced?
  • Whether the offender was entitled to any reduction in sentence for remorse or facilitating justice, given she maintained her innocence throughout and exercised her right to plead not guilty and give evidence.
  • Whether special circumstances existed justifying a departure from the standard ratio between the non-parole period and the balance of the sentence.
  • What reporting obligations applied under the Child Protection (Offender Registration) Act 2000 (NSW)?

Decision

Haesler SC DCJ sentenced the offender on the basis of the victim's account, which he accepted without hesitation. The jury had plainly accepted Helen as a witness of truth, and her evidence was corroborated by video footage, forensic evidence including DNA and presumptive saliva testing, and a near-immediate complaint. The court also noted that the offender's browsing history, which included sites relating to young females and massage-based pornography accessed shortly before and after the incident, was relevant to her state of mind.

The court assessed the offending as serious. There is an absolute prohibition on any sexual activity with a person under 16, and the aggravating circumstance that the victim was under the offender's authority elevated the gravity further. The victim was particularly vulnerable, having lost her mother shortly before and been placed in temporary care. The court was required to give content to the standard non-parole periods set by Parliament for these offence categories (five years for a s 61KD offence and ten years for a s 61J offence), while conducting a balanced, instinctive synthesis rather than simply working by proportional deductions from those figures.

The offender received no discount for remorse or for facilitating the administration of justice. She maintained her innocence, which was her right, but could not therefore gain any sentencing benefit that flows from a plea of guilty or genuine expression of remorse. The court was careful to note that her absence of remorse could not be treated as an aggravating factor.

On the subjective side, the court took into account the offender's good character before the offence, her lack of prior convictions, her unlikely prospect of reoffending, her pro-social family support, the hardship of serving time in protective custody, and the impact of custody on her mental health. The court found special circumstances, setting the non-parole period at 55% of the total sentence rather than the standard two-thirds ratio, to allow an extended period on parole to support rehabilitation.

Orders Made

  • Count 1 (s 61KD): 1 year imprisonment, non-parole period of 6 months.
  • Count 2 (s 61J): 4 years imprisonment, non-parole period of 2 years 2 months.
  • Count 3 (s 61J): 4 years imprisonment, non-parole period of 2 years 2 months.
  • Count 4 (s 61KD): 1 year imprisonment, non-parole period of 10 months.
  • Aggregate sentence: 5 years and 6 months imprisonment, with a non-parole period of 3 years commencing 22 May 2025. The offender becomes eligible for parole consideration on 21 May 2028. The balance of term (2 years and 6 months) commences 22 May 2028 and expires 21 November 2030.
  • Child Protection (Offender Registration) Act 2000 (NSW): The offender is a mandatory registrable person. Because all offences occurred against the same victim in a very short period, the court treated them as a single offence under s 2E of that Act. A reporting period of 15 years was imposed under s 31I.

Key Takeaways

  • A sentencing court must give genuine content to applicable standard non-parole periods as a guide to the legislature's view of relative seriousness, but must not simply apply them mechanically or make proportional deductions from the maximum penalty. A balanced instinctive synthesis of all relevant factors remains the required approach, as confirmed in Markarian v The Queen.

  • Where an offender exercises the right to plead not guilty and maintain innocence at and after trial, no sentencing reduction is available for remorse or for facilitating the administration of justice. However, the absence of remorse cannot be treated as an aggravating factor in its own right.

  • The District Court identified the victim's particular vulnerability (recently bereaved, placed in temporary emergency care) and the offender's position of authority as factors directly elevating objective seriousness, beyond the bare statutory aggravation already reflected in the charge.

  • Special circumstances permitting a departure from the standard non-parole period ratio can be found where a first-time offender faces protective custody, demonstrable mental health impacts, and strong prospects of rehabilitation through an extended supervisory period on parole.

  • Under the Child Protection (Offender Registration) Act 2000 (NSW), where multiple registrable offences are committed against the same victim in a brief, continuous incident, a court may treat them as a single offence under s 2E when fixing the reporting period.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J(1) and 61KD(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Bail Act 2013 (NSW), s 22B
- Child Protection (Offender Registration) Act 2000 (NSW), ss 2E and 31I
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- BT v R [2010] NSWCCA 267
- LB v R [2019] NSWCCA 151
- R v NJK [2011] NSWCCA 151
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
- Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267
- Yardley and Betts (1979) 22 SASR 108
- Blackman and Walters [2001] NSWCCA 121
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- Engert v The Queen (1995) 84 A Crim R 67
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194