Citation: [2026] NSWDC 84
Court: District Court of New South Wales
Date: 2 April 2026
Judge(s): Priestley SC DCJ
Background
The offender, a 28-year-old man with no prior criminal history, was sentenced for nine offences arising from a single episode of offending on 23 April 2024. The victim was a 13-year-old girl who was unknown to the offender. They encountered each other near a chicken shop in a regional NSW town, where the offender invited her to his residence.
Eight offences proceeded by indictment: four counts of sexual touching of a child under 16 and over 10 (s 66DB(a) of the Crimes Act 1900), and four counts of aggravated sexual intercourse without consent (s 61J), where the aggravating factor was the victim's age. A ninth charge of resisting a police officer was brought into the District Court on a s 166 certificate. The offender pleaded guilty to some counts before and during trial; the jury returned guilty verdicts on the remaining four counts.
The offender was arrested on the day of the offending and had been in custody since 23 April 2024.
Legal Issues
- The appropriate sentences for four counts of sexual touching of a child (s 66DB(a), maximum 10 years) and four counts of aggravated sexual intercourse without consent (s 61J, maximum 20 years, standard non-parole period of 10 years)
- The appropriate sentence for resisting a police officer (s 60A(1AA), maximum 12 months)
- The objective seriousness of each offence, including the role of the age discrepancy, the absence of consent, and the circumstances of the offending
- The relevance of the offender's guilty pleas to some counts, his lack of prior criminal history, and any mitigating subjective factors
- The structure of cumulation and concurrency across multiple offences to reflect totality
- Whether the offender's conduct in luring the victim to his home, locking doors, and later asking her not to tell anyone bore on objective seriousness
Decision
The Court assessed the facts primarily from the victim's police statement (a transcript of her child interview), which formed the main evidence at trial. The offending occurred during a single, continuous episode at the offender's home. The offender approached the victim in public, brought her to his locked residence, and committed a series of escalating sexual offences. The victim told the offender her age was 13, though the offender may have believed she said 14 or 15. The victim asked the offender to stop on multiple occasions and physically resisted at times, though at other points she did not verbally object.
Priestley SC DCJ considered each count individually. The sexual touching offences (counts 1, 3, 4, and 8) involved conduct ranging from touching breasts skin-on-skin, soaping the victim's body in the shower, touching her external genital area, and cutting her pubic hair with scissors. Count 8 (the cutting of pubic hair) was noted as unusual and troubling conduct. The aggravated sexual intercourse offences (counts 2, 5, 6, and 7) involved digital and penile vaginal penetration. The Court found that ejaculation occurred on the occasion of count 7 (the second instance of penile vaginal intercourse), as the victim subsequently became pregnant. This finding was made on the balance of probabilities and treated as favourable to the offender in lessening the seriousness of count 5.
The Court took into account the maximum sentences and the standard non-parole periods as legislative guideposts, consistent with Muldrock. The notable age discrepancy, the luring of the victim to the offender's locked home, the repeated disregard of the victim's requests to stop, and the request afterwards not to tell anyone were all relevant to objective seriousness. The offender's lack of prior criminal history and guilty pleas to certain counts were noted as mitigating subjective factors.
The precise sentences and their structure (including cumulation and concurrency) are not fully set out in the truncated portion of the judgment available.
Orders Made
- The full sentence details, including individual terms of imprisonment and the structure of cumulation, are not available from the truncated text of the judgment.
- The sentence was ordered to commence from 23 April 2024, the date the offender entered custody.
Key Takeaways
- The District Court confirmed that maximum sentences and standard non-parole periods serve as legislative guideposts for assessing seriousness, consistent with Muldrock, even when the offending is not assessed as falling in the mid-range of seriousness.
- In assessing objective seriousness, relevant factors included the offender's conduct in locking the victim inside his residence, the significant age discrepancy, and his disregard of the victim's expressed objections on multiple occasions.
- Factual findings regarding the timing of ejaculation were made on the balance of probabilities, with its occurrence during the later offence treated as favourable to the offender in assessing the earlier count.
- Notable difficulties arose from the Crown's approach to the sentence hearing, where the Crown tendered no evidence of facts and simply asked the Court to make findings consistent with the victim's evidence, leaving the offender's legal representatives to provide the more useful evidentiary material.
- The absence of prior criminal history and the guilty pleas to certain counts were recognised as mitigating factors, though the offender was convicted at trial on four of the nine counts.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 60A(1AA), 61J, 66DB(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A, s 166
Cases:
- Du Plessis v R [2024] NSWCCA 164
- Morrison v R [2022] NSWCCA 158
- Muldrock v The Queen (2011) 244 CLR 120
- R v Van Hong Pham [2005] NSWCCA 94