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District Court 8 August 2025

R v Connell

[2025] NSWDC 503

Sexual offences
CRIMINAL SENTENCE FORM 1 MATTERS INCITE CHILD TO SEXUALLY TOUCH UNCHARGED ACTS SERIOUSNESS OF OFFENCES

Citation: R v Connell [2025] NSWDC 503
Court: District Court of New South Wales
Date: 8 August 2025
Judge: King SC DCJ

Background

The offender was a 49-year-old man who had been known to the victim since she was approximately 11 years old. The victim, a girl born in October 2008, was connected to the offender through a family-adjacent relationship: her late paternal grandfather had been in a de facto relationship with the offender's mother, and the victim regarded the offender as an uncle figure. The victim had been diagnosed with mild autism and struggled to develop friendships with peers, making her particularly vulnerable to manipulation.

Over an extended period from approximately 2020, the offender groomed the victim through regular contact, affectionate messages, and shared time at his mother's home. The victim's father noticed concerning text messages from the offender in December 2022 and sent him a message asking him to stop, but contact resumed. By November 2023, when the victim was 15, the offending began.

The sexual offending occurred across three stays at the offender's home in November and December 2023. The conduct included digital penetration of the victim's vagina on multiple occasions, sexual touching using his toe, and instances where the victim was caused to touch the offender's genitals.

  • What sentences were appropriate for five counts of sexual intercourse with a child aged between 10 and 16 years under s 66C(3) of the Crimes Act 1900, and one count of sexual touching of a child under s 66DB(a)?
  • How should Form 1 matters (uncharged acts of inciting the child to sexually touch) be treated in the sentencing exercise?
  • What weight should be given to the victim's particular vulnerability, the extended period of grooming, the offender's subjective circumstances, and the principle of totality in fixing the aggregate sentence?
  • Whether special circumstances existed to justify a longer-than-standard parole period under the Crimes (Sentencing Procedure) Act 1999.

Decision

King SC DCJ sentenced the offender on an aggregate basis for all six principal offences. The Form 1 matters, which charged the offender with inciting the child to sexually touch him, did not attract separate penalties. Instead, they were taken into account in sentencing for the offences to which they were attached, increasing the weight given to specific deterrence, retribution, and the assessment of the offender's moral culpability.

The court considered the seriousness of the offending in full context. While the offences themselves occurred within a relatively short timeframe in late 2023, they followed an extended period of deliberate grooming. The victim's autism and her difficulty forming peer relationships were treated as features that heightened her vulnerability and, accordingly, the gravity of the offender's conduct. The court also noted an instance in December 2023 where the victim told the offender she did not like what was happening, and he stopped, though this did not significantly alter the sentencing calculus given the overall pattern of behaviour.

The indicative sentences assigned to individual counts ranged from two years to three and a half years imprisonment, with the most serious individual term applied to Sequence 8 (taking into account the Form 1 attached to it). A 25 per cent discount was applied across the individual offences, reflecting the offender's utilitarian value of his guilty plea.

Special circumstances were found, warranting a departure from the standard ratio between non-parole period and total sentence. The court's reasoning centred on the need to allow a longer parole period to support the offender's reintegration into the community and to enable him to access treatment or counselling aimed at reducing the risk of reoffending. His status as a first-time custodial offender was noted as a minor additional consideration.

Orders Made

  • Aggregate sentence of six years imprisonment imposed for all six principal offences.
  • Non-parole period of four years, backdated 582 days to commence on 4 January 2024; the offender will first be eligible for parole on 3 January 2028.
  • Balance of term of two years to run from 4 January 2028, expiring on 3 January 2030.
  • Special circumstances found, justifying the extended parole period.
  • Indicative sentences for individual counts: Sequence 2 (with Form 1, Sequence 3): not specified in provided text; Sequence 18: two years; Sequence 8 (with Form 1, Sequence 9): three and a half years; Sequence 12: two and a half years; Sequence 13: two and a half years; Sequence 14: two and a half years.
  • Section 166 Certificate offences (possess cannabis and related): s 10A conviction recorded with no further penalty for each.
  • Non-publication order made in respect of the complainant's name and any identifying evidence.

Key Takeaways

  • Form 1 matters in sexual offence sentencing do not attract separate penalties but are used to increase the weight attributed to specific deterrence, retribution, and the assessment of the offender's moral culpability for the principal offence to which they are attached.

  • A victim's diagnosed disability and social vulnerability, where exploited by the offender to facilitate access and grooming, are relevant features that bear on the objective seriousness of the offending.

  • An extended grooming period preceding a discrete cluster of offences remains a significant aggravating consideration, even where the offences themselves occurred over a relatively compressed timeframe.

  • Special circumstances under the Crimes (Sentencing Procedure) Act 1999 were established on the basis of the rehabilitative purpose of parole, specifically to allow the offender to access treatment directed at the risk of reoffending and to support community reintegration.

  • Upholding the totality principle in aggregate sentencing requires the court to ensure the overall sentence reflects the combined criminality without exceeding what is just for the whole of the offending, and the District Court here recorded its express application of that principle in fixing the six-year aggregate term.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66C(3), 66DB(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A

Cases:
- Bugmy v R (2013) 249 CLR 571
- R v Fisher (1989) 40 A Crim R 442
- R v Lau [2002] NSWCCA 131