Citation: [2026] NSWDC 95
Court: District Court of New South Wales
Date: 17 April 2026
Judge(s): Priestley SC DCJ
Background
This is the second judgment in the sentencing of a juvenile offender (referred to by the pseudonym "Starke") for six counts of sexual intercourse with a child. The victim was the offender's half-sister. Three counts were charged under s 66A(1) of the Crimes Act 1900 (NSW), relating to sexual intercourse with a child under 10, and three under s 272.8(1) of the Commonwealth Criminal Code, relating to sexual intercourse with a child under 16 outside Australia.
The offences occurred over two occasions: the Easter weekend in April 2014 in Australia and in May 2015 overseas. The offender was aged 14 and 15 at the time. The victim was aged 6 and 7. A first judgment (R v Starke (a pseudonym) [2026] NSWDC 7) resolved a disputed factual question about the conduct making out five of the six counts, finding penile vaginal intercourse for counts 1, 3, 4 and 5, cunnilingus for count 2, and that count 6 did not involve penile vaginal intercourse. At this second hearing, the parties agreed count 6 was established by evidence of fellatio.
The offender had no prior criminal record and had committed no further offences in the nearly 11 years since the offending. He had spent 52 days in custody (50 days following arrest in October 2022, and a further 2 days in May 2025).
Legal Issues
- Assessment of the objective seriousness of each of the six offences, given the limited detail in the victim's evidence due to her very young age at the time of the abuse.
- The relevance of the offender's youth (aged 14 to 15) to objective seriousness and sentencing, including the applicability of principles from JA v R [2021] NSWCCA 10 regarding juvenile offenders.
- Whether the offending occurred in the victim's home as an aggravating factor, and the degree of breach of trust involved given the half-sibling relationship.
- The degree of planning or opportunism in the offending.
- The appropriate maximum sentences and whether standard non-parole periods applied (they did not, by virtue of s 54D of the Crimes (Sentencing Procedure) Act 1999 and the absence of Commonwealth equivalents at the relevant time).
Decision
The court assessed the objective seriousness of the offences with an acknowledgment that the victim's evidence, while entirely understandable given her very young age at the time of abuse, provided limited detail beyond establishing the elements of each offence. Descriptions of the sexual acts were brief (for example, "penis to vagina" or "touched my vagina with his mouth"), and there was no meaningful way to assess the duration of any individual offence.
Priestley SC DCJ found that each offence was committed at the victim's home, which was treated as relevant to objective seriousness but not separately double-counted as an aggravating factor. The half-sibling relationship constituted a degree of breach of trust, though the court tempered that consideration by reference to the offender's own youth.
The court found that the offending did not involve a great degree of planning. Counts 1 through 3 arose when the victim's parents left for a weekend, though there was no evidence the offender attended the property knowing they would be away. Count 4 was opportunistic, taking advantage of the victim being unsettled at night. Counts 5 and 6, however, saw the offender enter the victim's bedroom without any reason other than an intent to commit further offences, distinguishing that occasion from the others.
In assessing objective seriousness, the court drew on the guidance in JA v R [2021] NSWCCA 10, which identified an offender's youth, the age relativity of the victim, the nature of the sexual intercourse, and the length of the assault as significant matters. The court noted that while the age disparity between the offender and victim was marked, it was far less marked than in the vast majority of cases involving this type of offending. The judgment text is truncated, so the final sentencing outcome and full reasoning on penalty are not available from the material provided.
Orders Made
- The full orders are not available from the truncated text of the judgment. The decision addressed objective seriousness and relevant sentencing considerations, but the final sentence imposed was not included in the portion of the judgment provided.
Key Takeaways
- Where a victim's evidence is limited in detail due to very young age at the time of abuse, the District Court recognised that the assessment of objective seriousness necessarily has some limitations, while emphasising that this does not constitute a criticism of the victim.
- The occurrence of offending at the victim's home was found relevant to objective seriousness, but Priestley SC DCJ held it should not be double-counted as a separate aggravating factor at a later stage of the sentencing exercise.
- A half-sibling relationship was sufficient to establish a degree of breach of trust, though the Court tempered that consideration by reference to the offender's own youth at the time of the offences.
- Standard non-parole periods did not apply because the offender was under 18 at the time of the offending (s 54D of the CSPA) and the relevant Commonwealth provisions did not exist at the time of the offences.
- In applying the framework from JA v R [2021] NSWCCA 10, the District Court treated the offender's age, the age relativity between offender and victim, the nature of the sexual acts, and the duration of the offending as significant indicators for assessing objective seriousness where the offence can be committed by either a child or an adult.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 66A(1)
- Commonwealth Criminal Code, s 272.8(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54D
- Crimes Act 1914 (Cth)
- Children (Criminal Proceedings) Act 1987 (NSW)
Cases:
- R v Starke (a pseudonym) [2026] NSWDC 7
- JA v R [2021] NSWCCA 10
- Campbell v R [2018] NSWCCA 87
- KT v R (2008) 182 A Crim R 571
- R v Elliott & Blessington [2006] NSWCCA
- Slade v The Queen [2005] NZCA 19