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District Court 13 February 2026

R v JA

[2026] NSWDC 7

Sexual offencesDomestic & family violence

Citation: [2026] NSWDC 7
Court: District Court of New South Wales (Criminal)
Date: 13 February 2026
Judge(s): Priestley SC DCJ

Background

The offender, referred to as "JA" due to his age, was born in March 2007 and was aged 15 or 16 at the time of the offending conduct. He was found guilty by jury of two counts: sexual intercourse with a child under 10 years (a domestic violence offence) contrary to section 66A of the Crimes Act 1900, and intentionally inciting a child under 10 years to sexually touch him (also a domestic violence offence) contrary to section 66DA(b) of the same Act. The maximum penalties for these offences are life imprisonment and 16 years imprisonment respectively, though the standard non-parole period provisions did not apply because JA was under 18 at the time of the offences.

The victim was the offender's step-sister, born in December 2016, and was aged 6 at the time of both offences. The offending occurred at the victim's home during periods when JA was staying with his father and stepmother. JA's parents had separated when he was about one year old, and both had re-partnered and had further children. JA alternated between his parents' homes. JA had no prior criminal history and had not come to the attention of authorities before this matter.

Following a jury trial at which JA pleaded not guilty, he was convicted on counts 2 and 3 of the indictment. The sentencing proceedings involved contested facts, requiring the Court to resolve several disputes between the Crown and the offender about the factual basis upon which the sentence should be imposed.

  • Factual findings for sentencing: What facts should be found on the evidence following the jury's verdict, particularly regarding: (a) whether the offending on count 2 ceased because the offender was disturbed by his father; (b) whether the offender's conduct of pulling up his pants was connected to the offending; and (c) how many times similar conduct occurred beyond the charged offences.
  • Objective seriousness: Where within the range of objective seriousness did each offence fall, having regard to the nature of the conduct, the ages of the offender and victim, and aggravating circumstances?
  • Relevance of the offender's youth: How should JA's age (15–16 at the time of offending) be taken into account, including in relation to the standard non-parole period, rehabilitation prospects, and the principles applicable to sentencing children under the Children (Criminal Proceedings) Act 1987?
  • Appropriate sentence: What was the appropriate sentence having regard to both the objective seriousness of the offending and the offender's subjective circumstances?

Decision

Factual findings on contested matters

The Court resolved the disputed facts largely in the offender's favour. Priestley SC DCJ rejected the Crown's contention that the father's observation of JA pulling up his pants as he walked past the victim's bedroom was connected to the offending or that the offending ceased only because JA was disturbed. The victim herself had said the offender did not have his pants down or his penis exposed, and the victim's mother gave evidence that JA wore baggy pants he was simply pulling up. The Court also declined to make a specific finding as to the number of additional occasions on which similar conduct occurred, noting that the Crown accepted it could not identify discrete incidents to the criminal standard of proof. However, the Court was satisfied that the charged conduct was "not an aberration," consistent with the jury's finding of guilt on both counts, which necessarily involved at least two separate incidents of sexualised behaviour.

Objective seriousness

On count 2 (sexual intercourse with a child under 10), the Court found the conduct — described by the victim as poking her vagina with fingernails in a horizontal back-and-forth motion — involved the minimum degree of penetration required to constitute "sexual intercourse" under the Act. Taking into account the offender's youth (15–16), the short duration, the nature of the physical act, and the age difference (significant but much less than is often seen in offences of this type), the Court assessed the offence as "well below the middle of the range of objective seriousness," placing it in the bottom 20%. The Court accepted the offender's submission that the pain the victim described in the vaginal area was unrelated to the offending.

On count 3 (inciting a child under 10 to sexually touch), the Court found the offender had grabbed the victim's hand and tried to make her touch his penis while he was wearing pyjamas, but the victim had resisted. The incitement was brief and did not achieve its goal. The Court assessed this offence as less serious than count 2 in relative terms and "towards the bottom of the range of objective seriousness." Both offences were aggravated by the fact that they occurred in the victim's home — a place she was entitled to feel safe — and involved a breach of trust by the offender as her step-brother.

Relevance of youth and subjective circumstances

The Court noted that the standard non-parole period provisions did not apply to JA by virtue of section 54D(3) of the Crimes (Sentencing Procedure) Act 1999, given he was under 18 at the time of the offences. The Court had regard to the maximum sentences as a legislative guidepost. JA had been on bail for nearly 20 months without further offending and the evidence showed him to be pro-social. He had no criminal history. The text of the judgment was truncated before the Court's full analysis of subjective factors and the ultimate sentence, so the precise orders are not available from the material provided.

Orders Made

  • The full sentencing orders are not available from the truncated judgment text provided. The Court's reasoning indicates that it was proceeding to sentence JA for both counts, taking into account his youth, the objective seriousness assessments described above, and his subjective circumstances including his rehabilitative prospects and pro-social behaviour since the offending.

Note: Because the judgment text was truncated, the final sentence imposed cannot be confirmed from the material reviewed.

Key Takeaways

  • Factual disputes at sentencing must be resolved to the criminal standard of proof, and the District Court declined to make adverse findings about additional uncharged conduct where the Crown conceded it could not identify discrete incidents beyond reasonable doubt. However, broader contextual findings, such as that the conduct was "not an aberration," remained available where consistent with the jury's verdicts.

  • Consistent with JA v R [2021] NSWCCA 10, the offender's age of 15 to 16 was taken into account in assessing the objective gravity of the offences, in addition to his subjective case, confirming that youth of the offender is directly relevant to objective seriousness. The Court noted that the age gap between offender and victim, while significant, was much less than is typically seen in these types of offences.

  • Under section 54D(3) of the Crimes (Sentencing Procedure) Act 1999, standard non-parole periods do not apply to offenders under 18, which excluded the juvenile offender from that regime, though maximum penalties remained relevant as a guidepost.

  • No hierarchy exists among types of "sexual intercourse" as a matter of law; however, the District Court confirmed that the specific facts and circumstances, including the nature and degree of physical contact, are central to assessing where an offence falls within the range of objective seriousness.

  • Both the victim's home as the location of the offending and the familial relationship of trust between step-siblings were identified as aggravating features, with the Court applying these factors even though the offender was a juvenile at the time of the offences.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66A, 66DA(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54D(3)
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases:
- BP v R [2010] NSWCCA 159
- JA v R [2021] NSWCCA 10
- R v Elliott & Blessington [2006] NSWCCA
- R v JR [2022] NSWDC 618
- R v SH [2024] NSWDC 104