Citation: R v Kerr [2025] NSWDC 570
Court: District Court of New South Wales
Date: 5 November 2025
Judge(s): Bourke SC DCJ
Background
The offender was convicted by jury of one count of maintaining an unlawful sexual relationship with a child under 16 years of age, contrary to s 66EA(1) of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of life imprisonment. Two alternative counts on the indictment were not pursued following the guilty verdict on count 1.
The offender was the de facto stepfather of the victim, having been in a relationship with the victim's mother since the victim was about four years old. The Crown alleged that from approximately 2016, when the victim was about eight, until she was about 12, the offender engaged in repeated sexual offending including digital penetration of the victim's vagina, inciting the victim to touch his penis, and masturbating in the victim's presence.
After a trial in July 2025, the jury returned a guilty verdict. The offender was remanded in custody and the matter proceeded to sentencing. The central dispute at sentencing concerned the factual basis upon which the offender should be sentenced, particularly the frequency and extent of the offending.
Legal Issues
- What factual findings should the sentencing judge make about the scope and frequency of the offending? Under s 66EA, the jury need only be satisfied of at least two unlawful sexual acts. The sentencing judge must independently determine the factual basis for sentence, with aggravating facts proved beyond reasonable doubt.
- What is the appropriate sentence for the offence, considering the objective seriousness of the conduct, the offender's subjective circumstances, and the applicable sentencing principles?
- Should any allowance be made for the manner in which the trial was conducted, in the absence of a guilty plea?
Decision
Factual findings. The sentencing judge carefully examined the victim's evidence, which described digital penetration occurring "pretty much every night" over four years. Defence counsel argued that the court should find only two discrete unlawful sexual acts, consistent with the minimum required for the jury's verdict. The judge rejected the defence's narrow characterisation. His Honour found, beyond reasonable doubt, that the offending involved repeated digital penetration of the victim's vagina over a period of approximately four years, along with multiple incidents of inciting the victim to touch the offender's penis and one incident of masturbating in the victim's presence. The judge accepted the victim's evidence as credible and broadly reliable, noting it was corroborated by the circumstances and the manner in which the victim disclosed the abuse.
Objective seriousness. The court assessed the offending as falling in the upper range of objective seriousness for offences under s 66EA(1). Key aggravating factors included the offender's position of trust and authority as the victim's de facto stepfather, the young age of the victim (approximately 8 to 12 years), the prolonged duration of the offending (approximately four years), the frequency and invasive nature of the sexual acts, and the fact that the offending occurred in the victim's own home, often in her bedroom. The court also noted the victim's attempts to resist and the offender's persistence despite those refusals.
Subjective circumstances. The offender had no prior criminal history and had been a productive member of the community. However, the court found that there was limited weight available for subjective matters given the gravity of the offending. While the offender was not entitled to a utilitarian discount for a guilty plea, the court gave some modest credit for the efficient conduct of the trial, including agreeing to certain facts and limiting the number of witnesses.
Sentence. The court imposed a substantial custodial sentence reflecting the severity of the offending, the need for general and specific deterrence, and the significant impact on the victim. The sentence was structured with a non-parole period reflecting the seriousness of the case.
Orders Made
- The offender was convicted and sentenced to a term of imprisonment (the specific term is contained in the full judgment, which was truncated in the available text).
- The offender was noted to be subject to reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW).
- Time served on remand from the date of the jury verdict was taken into account.
Key Takeaways
- The District Court independently assessed the factual basis for sentence under s 66EA and was not confined to the minimum number of acts required for the jury's verdict, scrutinising the defence submission that only two acts occurred against the weight of the evidence, particularly the complainant's testimony.
- Under s 66EA of the Crimes Act 1900 (NSW), the "maintaining a relationship" offence does not require the jury to specify which or how many acts occurred; the sentencing judge was required to make independent findings, applying the criminal standard of proof for aggravating matters and the balance of probabilities for mitigating matters.
- Facilitating the efficient conduct of a trial, such as agreeing facts and limiting witnesses, was recognised as capable of attracting modest credit at sentence, even where a guilty plea was not entered.
- Sufficient weight was given to the victim's account of the pattern and frequency of offending when determining sentence, rather than confining the factual findings to the bare minimum number of acts required for conviction.
- The offender's role as de facto stepfather was treated as a significant aggravating factor, consistent with established authority on breaches of trust in familial or quasi-familial settings.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 66EA(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Child Protection (Offenders Registration) Act 2000 (NSW)
Cases:
- Clarkson v R [2011] VSCA 157
- R v Fisher (1989) 40 A Crim R 442
- R v Gavel [2014] NSWCCA 56
- RA v R [2024] NSWCCA 149