R v NK

[2021] NSWDC 275

District Court

New South Wales

Medium Neutral Citation:

R v NK [2021] NSWDC 275

Hearing dates:

21 May 2021

Decision date:

24 June 2021

Jurisdiction:

Criminal

Before:

Mahony SC DCJ

Decision:

Full-time custodial sentence. For orders see [96]

Catchwords:

Maintain unlawful sexual relationship with a child under 16 years of age

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Burr v R [2020] NSWCCA 282

DPP v Hersi [2020] VCC 347

Hillman v R [2021] NSWCCA 43

Jonson v R [2016] NSWCCA 286

MRW v R [2011] NSWCCA 260

R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56

R v Kenny [2010] NSWCCA 6

R v MJR (2002) 130 A Crim R 481; [2002] NSWCCA 129

R v O’Toole (No 5) [2021] NSWDC 64

R v PGM (2008) 187 A Crim R 152; [2008] NSWCCA 172

R v Tangi (No 12) [2020] NSWSC 547

R v TH [2019] NSWDC 793

Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21

Valentine v R [2020] NSWCCA 116

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)
NK (Offender)

Representation:

Counsel:
A Robertson (Crown)
D Barrow (Offender)

Solicitors:
R Kriesler (Crown)
B Walker, Unsworth Legal (Offender)

File Number(s):

19/198091

Publication restriction:

Pursuant to s 578A of the Crimes Act 1900, no matter shall be published identifying, or which is likely to identify the complainant and the offender

remarks on sentence

1. The offender pleaded not guilty upon arraignment on 3 November 2020 to Count 1 on the Indictment, and the Alternative Counts 2-6 on the Indictment. On 16 November 2020, he was found guilty by the jury of Count 1 on the Indictment as follows:

1. Between the 20th day May 2018 and the 18th day of June 2019, at Pomona in the State of New South Wales, did maintain an unlawful sexual relationship with NS, then a child under 16 years of age, namely, 13 or 14 years of age, in which he engaged in the following two or more unlawful sexual acts:

1.1 Rubbing NS’ thigh

1.2 Rubbing NS’ breast

1.3 Touch NS’ genitals

1.4 Sexual intercourse with NS by digitally penetrating NS’ genitals

1.5 Sexual intercourse with NS, namely, cunnilingus

1.6 Rubbing his penis against NS,

1.7 Licking NS’ breast

1.8 Sexual intercourse with NS by penetrating NS’ genitals with his penis.

The sentence hearing

2. The sentence hearing took place on 21 May 2021. The Crown Sentence Summary became Ex A. A fair summary of the facts to be derived from the jury verdict is as follows.

3. The offender met AB in 2011 and they started living together in 2012. AB had two daughters, NS born May 2005 and EB born April 2009. From 2015, the offender lived with AB and her daughters in premises at Pomona. In 2018, the offender’s brother SK also lived there.

4. AB worked shift work as a cleaner, which meant that she left home in the early hours of each morning. The offender was then responsible for getting the two girls ready for school each morning and taking them to the bus stops for the school buses. He was in a position of authority as the girls’ step-father.

5. From May 2018 until June 2019, the offender maintained an unlawful sexual relationship with NS. At that time she was 13 or 14 years of age and she had her own bedroom. In that bedroom was a double bed and television, and one to two times a week the offender would watch movies with NS whilst lying on her bed with her. The sexual misconduct by the offender commenced with him tickling NS on her thigh. This led to the offender rubbing her thigh and he did this both in her bedroom and on occasions in the lounge room when they were watching movies there. This activity occurred about 10 to 20 times over a few weeks before it went a bit further and made NS feel uncomfortable.

6. Towards the end of December 2018 or the start of 2019, the offender started sexually touching NS in which she described as inappropriate areas, being her breasts and her vagina, on the outside of her clothing. The activity escalated to digital penetration of her vagina and cunnilingus. This usually occurred in NS’ bedroom and occasionally in the lounge room, if there was no one else present, and also included rubbing his penis against NS and licking her breast. These incidents occurred every couple of days, and when digitally penetrating the victim’s vagina, he would say things like, “Are you going to cum?, Are you going to moan?” and “Does it feel nice?”

7. On Monday 17 June 2019, AB left home in the early hours of the morning to go to work. NS heard her mother leave and went to the bathroom. When she was returning to her room, the offender called NS into his bedroom and told her he wanted a hug. She gave him a hug and then he grabbed her and pulled her on top of him. She said “No”. He had partly removed his pants and took off all of her clothes. He then moved her body up and down on his penis, causing her vagina to come into contact with his penis, and rub up against it. He also licked her breast.

8. The offender then turned NS over so that she was in a doggy position, and he inserted his penis into her vagina, moving his body closer and further away from her for a couple of minutes.

9. Consistent with the jury verdict, the offender maintained an unlawful sexual relationship with NS in which he engaged in two or more of the unlawful sexual acts referred to in Count 1 on the Indictment. The jury rejected the offender’s evidence denying that any sexual misconduct took place.

10. Exhibit A also included the NSW Police record which demonstrated that the offender had no prior convictions. It included the offender’s custodial record and the transcript of the police interview with the victim NS dated 21 June 2019, upon which the Crown case was based. In that interview, NS told the police that sexual touching by the offender started happening “about may be the end of last year [2018] or the start of this year some time [2019]”. She then described the various unlawful sexual acts listed in Count 1 on the Indictment.

11. Exhibit A also included the ERISP interview of the offender dated 4 July 2019. In it, when allegations of sexual misconduct were put to the offender, he responded, upon legal advice, “no comment”.

12. Exhibit A also included a Victim Impact Statement from NS. In it, NS described getting “extremely depressed and suicidal” and feeling “isolated and controlled” during what happened to her. She described the ongoing impact of her depression on her and her difficulties in trusting and communicating with people. She also felt scared and helpless in her own home, and her relationship within her family and outside of the household were affected. The Victim Impact Statement is referred to below.

13. Exhibit A also included a Sentencing Assessment Report (“SAR”) under the hand of Ms K Fudali dated 13 May 2021. Under the heading “Attitudes”, the author noted that the offender denies the current offence. He was assessed as being at a below average risk of re-offending, and under the heading “Insight into Impact of Offending”, the author noted that the offender denied the offence occurred and believes the allegations were fabricated against him. He was, however, willing to engage in interventions including psychological services. A CSNSW psychologist assessed the offender as being in the below average range of committing a further sex offence. Further, Community Corrections had assessed the offender as suitable to undertake community service work, however, it was noted that he intends to reside in Victoria.

The offender’s evidence

14. The offender relied on a tender bundle containing 13 documents which were numbered 1-13 in the index. The offender relied on an affidavit of his solicitor, affirmed on 19 May 2021, which outlined material produced on subpoena by Justice Health and the Department of Communities and Justice. Upon entering into custody in July 2019, the offender had been on Special Management Area Placement (“SMAP”) at his own request by reason for concerns for his safety. He first underwent two weeks quarantine at Goulburn Correctional Centre, but had since been moved on a number of occasions and was now incarcerated at Long Bay Correctional Centre. He had incurred no disciplinary or criminal offences whilst in custody on remand.

15. The offender had reported that during his time in custody he had regularly experienced gaol lockdown in which prisoners were confined to their cells. Currently, he is held in SMAP at Long Bay where he is ordinarily outside his cell between 7.30am and 2pm. There is no work, no access to education and significant overcrowding. The offender described commonplace drug use amongst inmates and a constantly volatile atmosphere due to the changing population of remand prisoners. He had witnessed an inmate who was severely injured after being assaulted. The offender also reported that he had no personal visits from family or friends because they reside too far away in Victoria. He has had access to several audio-visual meetings.

16. The solicitor was informed that the report of Ms Sarah Brann dated 6 March 2021, was accurate, however, the reporting of corporal punishment at [9] was incorrect, the offender instructing his solicitor that he was never hit with a belt as a child.

17. The report of Ms Brann became Ex 1.3. She outlined his family and development history which was unremarkable. He maintained a close relationship with his family, having moved out of home and gained independence at the age of 24. He had worked in the family business up until the time of the offending. He also had an unremarkable medical history and denied any history of substance abuse or problematic gambling.

18. The offender reported that his relationship with the victim’s mother represented his first significant relationship and it formed when he was aged 29 or 30. He had resided with his partner and her children for approximately eight years prior to the onset of the offending. He described the relationship as positive and without conflict. The author reported that the offender indicated that as a couple, they found it difficult to prioritise sexual intimacy or time for themselves amongst competing commitments to their work, the children and his partner’s horses.

19. The author opined:

“There was evidence of sexualised coping potentially contributing to the offending, as he was experiencing problems within his relationship, increased emotional distance, reduced sexual intimacy, and rejection from his partner. However, NK lacks insight into this. Sexual coping does not appear to be NK's dominant or primary form of coping throughout the lifespan.”

20. The offender was assessed on various risk factors, which indicated a low number of identified risk and treatment needs.

21. It was noted that the offender has the benefit of positive relationships with a pro-social and supportive family, and a good level of social support.

22. Because of his low risk, he was unlikely to meet the criteria for any Corrective Services NSW programs to address his history of sexual offending, including eligibility for the DENIERS program. He was presently on psychotropic medication to assist with anxiety and depression arising from his custodial status.

23. Exhibit 1 included a number of testimonials as follows.

24. Exhibit 1.5 – was a letter from Mr G Nyman dated 10 May 2021. Mr Nyman first met the offender in 2013 when his family became customers of the firm of which the offender was managing director. This led to collaboration between the offender’s family and his company and eventually the offender was employed by his company on a permanent part-time basis in 2019. Mr Nyman found the offender to be a person of the highest character. He described his work ethic and trading morals as exemplary and demonstrated a strength of character in which he always put others before himself. Mr Nyman described the offender as “an open, genuine, caring and restrained individual”. He continued to believe in the innocence of the offender.

25. Exhibit 1.7 was a testimonial from Ms S Douglass who had known the offender for 10 years and considered him as extended family. She had never seen the offender behave in an inappropriate or disrespectful way amongst family, including her children. She described him as “an upstanding gentleman”.

26. Exhibit 1.9 was a testimonial from Ms E Funcke who had known the offender for as long as she could remember and described him as being “like a big brother to me”. She described him as a kind and caring man who would do anything for anyone. She believed his conviction was completely out of character for him. She described the offender as a “good man and kind man who has been raised with the right values from the best people”. She further described him as “an honest good man in a horrible situation”.

27. Exhibit 1.11 was a testimonial from Ms L Stebbing who has known the offender since he was approximately eight years old. She described him as “a family orientated dedicated son, brother and all-round good guy”. The offending conduct was not consistent with the person she knows and she continued to believe he was a person of good character.

28. Exhibit 1.13 is a testimonial from Mr C J Wentworth who first met the offender in 1995. He was a teacher who taught the offender in year 7 and described him as a “diligent hard working student who was willing to listen and learn, he was always kind and considerate to others around him”. The offender was still friendly with one of Mr Wentworth’s sons and he had seen him regularly over the years. Mr Wentworth considered that the offending conduct was totally out of character for the offender who he described as “a decent respectable man”.

The offender’s submissions

29. The offender relied on a detailed written outline of submissions which noted that although there were five alternative counts on the Indictment (Counts 2‑6), there was seven nominated particulars of conduct alleged to constitute sexual offending in Count 1.

30. Until 1 December 2018, s 66EA of the Crimes Act 1900 carried a maximum penalty of 25 years imprisonment. On 1 December 2018, the provision was repealed and replaced with the current section, for which the maximum penalty is life imprisonment.

31. The conduct in Count 1 was alleged to have occurred between 20 May 2018 and 18 June 2019. Thus, a question arose as to what is the applicable maximum penalty, given that range of dates straddles the repeal of the existing s 66EA and its replacement on 1 December 2018, with the increase in maximum penalty from 25 years imprisonment to life imprisonment.

32. I will deal with this matter as a preliminary issue and outline the submissions of both parties below.

33. With respect to the correct approach to fact finding on sentence, the offender referred to s 66EA(5) which provides:

“In order for the accused to be convicted of an offence under this section –

1. (a) the jury must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed, and,

2. (b) the jury is not required to be satisfied of the particulars of any unlawful sexual act, but it would have to be satisfied of, if the act were charged as a separate offence, and,

3. (c) the members of the jury are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship.”

34. It was submitted that the victim gave broadly consistent accounts of what was alleged, however, the complaint as to cunnilingus (particular 1.5), was not part of the history that she provided to Dr Gonzales who examined her on 20 June 2019. It was also not referred to by her when disclosing the offending to her mother and grandmother. She did, however, raise it in her interview by police on 21 June 2019. It was submitted that there was no basis for differentiating between the other acts particularised.

35. In assessing the objective seriousness of the offence, the offender submitted that in the period following Christmas 2018 until 18 June 2019, the sexual misconduct against the victim gradually increased in seriousness, culminating in the offence contrary to s 61J on 17 June 2019. In Burr v R [2020] NSWCCA 282, Johnson J identified factors ordinarily relevant to the assessment of objective seriousness of an offence contrary to s 66EA, as enacted in 1998 and prior to 1 December 2018. It was submitted that the court was entitled to have regard to:

1. The age difference of slightly more than 20 years between the offender and victim.

2. The length of time of the unlawful sexual relationship which did not exceed six months.

3. The nature of sexual activity which in this case was sexual touching in the earlier period, which extended to one instance of digital penetration and cunnilingus and on one occasion, non-consensual penile/vaginal intercourse.

4. The absence of physical violence, threats or coercion, aside from what can be inferred from the conduct constituting the final offence on 17 June 2019.

5. The fact that the offender was in the position of authority as the victim’s step-father.

6. An aggravating factor was that the offending occurred in the victim’s home.

36. It was submitted that the objective seriousness of the offending fell significantly below the mid-range of objective seriousness for an offence pursuant to s 66EA.

37. The offender submitted that he had a strong subjective case. He was 36 at the time of the alleged offending, with no prior criminal history and was a person of prior good character. It was submitted there was no basis for the court to conclude, pursuant to s 21A(5A) of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”) that the offender’s good character was of assistance to him in the commission of the offence. It was submitted the offender should be entitled to some leniency by reason of his prior good character and the absence of prior convictions, relying on Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21.

38. Despite the offender not being remorseful, it was submitted the court could conclude that he is unlikely to re-offend and that his prospects of rehabilitation are good. Further, given his prior good character, the court may consider that specific deterrence is not a significant factor on sentence. It was, however, accepted that no sentence other than a term of imprisonment was appropriate.

39. It was submitted the court would also take into account the fact that the COVID-19 pandemic has necessitated restrictions upon correctional inmates, leading to hardship, particularly to those serving terms of imprisonment for the first time, relying on DPP v Hersi [2020] VCC 347, R v Tangi (No 12) [2020] NSWSC 547 at [57] – [58], and Valentine v R [2020] NSWCCA 116.

40. It was submitted the offender had suffered hardship in custody. He had suffered depression and remained on anti-depressant medication. His family lived in Victoria and to date he had had very limited access to family and friends. He had also had to seek placement in protection, and it was submitted he had become hypervigilant as to his safety, with repeated movement between correctional centres and exposure to new inmates causing ongoing anxiety.

41. The offender submitted that he was entitled to a finding of special circumstances based on his first time in custody, his low risk of re-offending and his need for treatment, together with the expected challenges associated with re-establishing himself in the community.

42. It was submitted that the offender’s pre-trial custody of 98 days should be taken into account, and any sentence should commence on 11 August 2020.

43. In his oral submissions, counsel for the offender rehearsed his submission as to the fact finding process. It was submitted that close attention should be given to the conduct which informs the objective seriousness of the offending, which here was significantly below mid-range.

44. It was submitted that the period of time over which the unlawful sexual relationship endured was less than six months, in that the court would be satisfied beyond reasonable doubt that it commenced at about Christmas 2018 and terminated with the complaint made on 19 June 2019.

45. Counsel for the offender rehearsed his submissions as to the subjective case. He emphasised the character evidence given by two witnesses at trial, together with the testimonials written on the offender’s behalf in Ex 1. It was submitted that the court would give some weight to the offender’s good character on sentence as the offending was an aberration in what was an otherwise lawful and productive life. Further, the offender was a low risk of re‑offending according to Ms Brann, and had strong social support from his family and friends. Counsel accepted that general deterrence was significant in the sentencing process, however, he submitted that there was a diminished need for specific deterrence because of his previous good character, he was likely to be dissuaded from further criminality as a consequence of the jury finding here, relying on R v Kenny [2010] NSWCCA 6 at [13].

36. Counsel rehearsed his submissions as to the hardships the offender will endure in custody where he was being treated for depression and was in full protection. This led to him being hypervigilant with a level of anxiety, meaning that his time in custody will be more onerous than it otherwise would be.

37. Counsel for the offender referred to a number of comparative sentences and conceded they demonstrated a range of sentencing for different conduct. It was agreed that the sentence should commence on 11 August 2020.

The Crown submissions

48. The Crown relied on a detailed written outline of submissions which included submissions as to the relevant maximum penalty which will be dealt with below.

49. The Crown agreed with the defence submissions relating to the finding of facts following trial. It relied on well-established authority to submit that the facts adopted by the trial judge for the purposes of sentencing must be consistent with the verdict of the jury, and findings of fact made against an offender must be arrived at beyond reasonable doubt and that there is no general requirement that a sentencing judge must sentence an offender on the basis of a view of the facts, consistent with the verdict, which is most favourable to the offender. Further, an offender who wishes to have any matter considered by way of mitigation of his sentence must satisfy the sentencing judge on the balance of probabilities. In this case, the Crown agreed with the general characterisation of the offence by the offender in his written submissions, but submitted that the court would also be satisfied beyond reasonable doubt that cunnilingus occurred.

50. The Crown then made submissions as to the facts to be found, which generally align with my summary of the facts referred to in [5] – [9] above.

51. The Crown submitted that the objective seriousness of the offending was at or below mid-range for an offence pursuant to s 66EA. The Crown differentiated between sexual touching being characterised as indecent assault prior to 1 December 2018, or sexual touching thereafter. The Crown submitted there were multiple instances of digital penetration and cunnilingus and submitted the following aggravating features were present, namely:

S 21A(2)(eb) – the offence was committed in the home of the victim.

S 21A(2)(k) – the offender was in breach of a position of authority.

S 21A(2)(l) – the victim was vulnerable.

52. The Crown submitted that as each of those factors were to be taken into account in assessing the objective seriousness of the offence, they should not be double-counted as aggravating factors.

53. The Crown also submitted that the offending conduct featured grooming undertaken by the offender, who gradually started with non-sexual touching before moving to sexual touching of the victim. He favoured the victim over her younger sister and took advantage of the nature of the relationship between the victim and her mother, which had been, at the time of the offending, somewhat distant. The victim had suffered Asperger’s Syndrome and the offender had purported to assist by spending more time alone with her. Further, the offending was brazen in that much of it took place when others such as the victim’s mother and sister were present in the house, and in relation to the last incident of penile/vaginal sexual intercourse, when the offender’s brother was also present in the house.

54. The Crown submitted that general deterrence was important in sentencing for child sexual offences. Specific deterrence was also important to make clear to the offender that if he yielded to his sexual impulses towards children, then he will meet with severe punishment.

55. In relation to the aggravating factor pursuant to s 21A(2)(k) of the CSPA, that the offender abused a position of trust or authority, the Crown elaborated its submission that the offender took advantage of the trust reposed in him by the victim’s mother by being allowed to look after the victim when her mother was working in the mornings and evenings, and being trusted to watch movies alone with her in the lounge room and her bedroom. The Crown submitted, relying on MRW v R [2011] NSWCCA 260 at [77] and [78], that the court should be cautious in giving undue weight to an abuse of a position of trust where abuse of authority is an aggravating factor. The Crown also relied on well-known authorities to submit that abuse of a position of trust or authority is a significant aggravating factor.

56. In relation to the aggravating factor pursuant to s 21A(2)(eb), that the offence was committed in the home of the victim, the Crown relied on Jonson v R [2016] NSWCCA 286 to submit that the purpose of the provision is that a home is a place which should be safe and secure for persons, and in particular, children to reside in.

57. The Crown submitted that the victim was a vulnerable victim by virtue of her age.

58. In relation to the offence pursuant to s 66EA, the Crown referred to Hillman v R [2021] NSWCCA 43 to submit that an assessment of the underlying ingredient offences and their maximum penalties provides a guide to the sentencing court. The gravamen of the offence is reflected in the maximum penalty, whether that be 25 years (pre 1 December 2018), or life imprisonment. The sentencing principles outlined in Hillman v R and Burr v R, supra, were applied by me recently in R v O’Toole (No 5) [2021] NSWDC 64.

59. In relation to the Victim Impact Statement, the Crown submitted that child sexual assault offences are apt to produce psychological consequences, relying on the well-known passage in R v Gavel [2014] NSWCCA 56 at [110], together with other authorities. Here, the victim had expressed in her statement, the damage caused to her, making her feel depressed and suicidal, the impact on her relationships with the people around her, and a feeling of isolation. The Crown submitted that whilst this does not amount to an aggravating factor under s 21A, it remains a matter to be taken into account in assessing the objective seriousness of the offences.

60. The Crown generally agreed with the defence submissions as to mitigating factors, however, it was submitted that good character is of less significance in child sex cases than other types of offences, relying on R v PGM (2008) 187 A Crim R 152; [2008] NSWCCA 172 at [43] – [44].

61. The Crown submitted that it was open for the court to find special circumstances pursuant to s 44(2) of the CSPA, and agreed with the commencement date proposed by the offender, namely, 11 August 2020.

62. In his oral submissions, the Crown referred to evidence given by the victim that the offender had been engaged in sexual misconduct with her for a period of “2 years maybe”, with respect to the sexual touching, however, it was submitted that the Crown now more readily agrees the commencement date of that misconduct was around Christmas 2018.

63. With respect to the maximum penalty to be applied, the Crown also referred the court to s 80AF of the Crimes Act, which took effect from 1 December 2018, which had the effect that if there was an issue about the age range of a victim, then the available maximum penalty at the time of the offence applied to the relevant offence.

64. The Crown submitted that, in respect of the assessment of the offender as a low risk of re-offending, given that he had at no time acknowledged the offending conduct which had occurred frequently and for a period of over six months, there would always be a question mark over his risk of re-offending.

65. The Crown rehearsed his submissions in relation to the objective seriousness of the offending in that the offending, which occurred over a period of six months, involved increasingly serious offences involving cunnilingus and digital and penile penetration of the victim occurring several times per week. Further, there was violence associated with the last occasion in his bedroom where the victim was held by the hips and flipped over by the offender and then penetrated from behind.

Offender’s submissions in reply

66. Counsel for the offender noted that the commencement date was now agreed, and submitted that age was a factor in the offence and it was therefore relevant to the assessment of objective seriousness, with which the Crown agreed.

The maximum penalty prescribed for s 66EA

67. Section 66EA in its present form commenced on 1 December 2018. It provides as follows:

66EA Persistent sexual abuse of a child

(1) An adult who maintains an unlawful sexual relationship with a child is guilty of an offence.

Maximum penalty—Imprisonment for life.

(2) An unlawful sexual relationship is a relationship in which an adult engages in 2 or more unlawful sexual acts with or towards a child over any period.

(3) It is immaterial that any of those unlawful sexual acts occurred outside New South Wales, so long as at least one of the unlawful sexual acts occurred in New South Wales.

(4) In proceedings for an offence under this section, the prosecution—

(a) is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence, and

(b) is required to allege the particulars of the period of time over which the unlawful sexual relationship existed.

(5) In order for the accused to be convicted of an offence under this section—

(a) the jury must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed, and

(b) the jury is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence, and

(c) the members of the jury are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship.

(6) In proceedings for an offence under this section, the judge must inform the jury of the requirements of subsection (5).

(7) This section extends to a relationship that existed wholly or partly before the commencement of the relevant amendments, or the predecessor offence, if the acts engaged in by the accused were unlawful sexual acts during the period in which the relationship existed.

(8) A court, when imposing a sentence for an offence under this section constituted by an unlawful sexual relationship that existed wholly or partly before the commencement of the relevant amendments, must take into account (but is not limited by) the maximum penalty for the unlawful sexual acts engaged in by the accused during the period in which the unlawful sexual relationship existed.

(9) A person who has been convicted or acquitted of an unlawful sexual act in relation to a child cannot be convicted of an offence under this section in relation to the same child if the unlawful sexual act of which the person has been convicted or acquitted is one of the unlawful sexual acts that are alleged to constitute the unlawful sexual relationship.

(10) A person who has been convicted or acquitted of an offence under this section for having an unlawful sexual relationship with a child cannot be convicted of an unlawful sexual act in relation to the same child if the occasion on which the unlawful sexual act is alleged to have occurred is during the period over which the unlawful sexual relationship was alleged to have existed. This subsection does not prevent an alternative verdict under subsection (13).

(11) A person who has been convicted or acquitted of a predecessor offence in relation to a child cannot be convicted of an offence under this section of having an unlawful sexual relationship with the same child if the period of the alleged unlawful sexual relationship includes any part of the period during which the person was alleged to have committed the predecessor offence.

(12) For the purposes of subsections (9)–(11), a person ceases to be regarded as having been convicted for an offence if the conviction is quashed or set aside.

(13) If on the trial of a person charged with an offence under this section the jury is not satisfied that the offence is proven but is satisfied that the person has, in respect of any of the occasions relied on as evidence of the commission of the offence under this section, committed an unlawful sexual act, the jury may acquit the person of the offence charged and find the person guilty of that unlawful sexual act. The person is liable to punishment accordingly.

(14) Proceedings for an offence under this section may only be instituted by or with the approval of the Director of Public Prosecutions.

(15) In this section—

adult means a person who is of or above the age of 18 years.

child means a person who is under the age of 16 years.

predecessor offence means this section before its substitution by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018.

relevant amendments means the substitution of this section by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018.

unlawful sexual act means any act that constitutes, or would constitute (if particulars of the time and place at which the act took place were sufficiently particularised), any of the following offences—

(a) an offence under section 61I, 61J, 61JA, 61K, 61KC, 61KD, 61KE, 61KF, 66A, 66B, 66C, 66D, 66DA, 66DB, 66DC, 66DD, 66DE, 66DF, 66F or 80A,

(b) an offence under a provision of this Act set out in Column 1 of Schedule 1A,

(c) an offence of attempting to commit an offence referred to in paragraph (a) or (b),

(d) an offence under a previous enactment that is substantially similar to an offence referred to in paragraphs (a)–(c),

(e) an offence under the law of a place outside New South Wales that would, if it had been committed in New South Wales, be an offence referred to in paragraphs (a)–(d).

68. The predecessor of this section provided for a maximum penalty of 25 years imprisonment. Because Count 1 on the indictment provided a date range between 20 May 2018 and 18 June 2019, the question arises as to which maximum penalty applies to the sentencing process here i.e. whether it is 25 years imprisonment or imprisonment for life.

69. The offender by his counsel highlighted s 66EA(7) to make it clear that the section applies in the circumstances of this matter to conduct pre-dating the section, but submitted that the terms of the new s 66EA say nothing to contradict the “accepted approach” that an increase in penalty does not apply if a penalty pre-dates the amendment, relying on s 19 of the Crimes (Sentencing Procedure)Act 1999 (“CSPA”).

70. The offender submitted that where Parliament manifests an intention that a new sentencing regime operates retrospectively, the courts will give effect to that intention, relying on R v MJR (2002) 130 A Crim R 481; [2002] NSWCCA 129.

71. Counsel for the offender referred the court to competing authorities as to the applicability of the increased statutory maximum penalty. In R v Jarvis (a pseudonym) [2020] NSWDC 396, Haesler DCJ concluded the applicable maximum penalty was life imprisonment, despite the offending in that case pre-dating the commencement of the amended section.

72. Bennett DCJ expressed the opposite conclusion in R v TH [2019] NSWDC 793. In so holding, his Honour stated “that a sentence for this offence must be determined according to the benchmark provided by the maximum penalty specified at the time of the misconduct.” The offender submitted that as the prosecution asserted that the offence was committed between 20 May 2018 and 18 June 2019, the relevant maximum penalty is 25 years imprisonment. The offender also relied on the remarks of Haesler DCJ, where his Honour stated that the maximum penalty was only one sentencing measure to be balanced with all other relevant factors and in the circumstances of that case whether the maximum penalty was 25 years imprisonment or life imprisonment would not have made any significant difference.

73. The offender referred to the decision of Johnson J in Burr v R [2020] NSWCCA 282 at [86]-[105] where his Honour stated that the available maximum penalty of 25 years made the offence a more serious one than that of the offences which comprised the individual acts. The offender then referred to s 66EA(8). This meant that the offending particularised on the indictment here was constituted by:

“(i) Three counts of sexual touching contrary to section 66DB(a) of the Crimes Act, where the maximum penalty is 10 years imprisonment and there is no standard non-parole period;

(ii) One count of sexual intercourse with a child over the age of 10 but under the age of 14 in circumstances of aggravation, contrary to section 66C(2) of the Crimes Act, where the maximum penalty is 20 years imprisonment and there is a standard non-parole period of 10 years.

(iii) One count of sexual intercourse without consent in circumstances of aggravation, contrary to section 61J(1) of the Crimes Act, where the maximum penalty is 20 years imprisonment and a standard non-parole period of 10 years applies.”

74. The offender noted that the offence contrary to s 66DB(a) was not in effect until 1 December 2018, however its predecessor offence namely s 61M(2) of the Crimes Act carried the same penalty namely 10 years imprisonment with no standard non-parole period.

75. The Crown submitted that the relevant maximum penalty is life imprisonment. Here, the amended legislation brought in a new offence with significant differences from the previous s 66EA. Further, the offending conduct here essentially began after the amendment had commenced on 1 December 2018. The Crown submitted that the offending in fact commenced after Christmas 2018 in which case there would be no unfairness in utilising the maximum penalty of life imprisonment. It was submitted by the Crown that if I was to find there was offending prior to December 2018, this would not substantially alter the factual matrix as to the majority of the offending, particularly as the more serious offending occurred after 1 December 2018.

76. The Crown went on to note that the maximum penalty for the particularised offences did not change after 1 December 2018, thereby agreeing with the offender’s submissions on that point.

77. I am satisfied beyond reasonable doubt that the sexual misconduct commenced towards the end of 2018 and certainly after 1 December 2018. Prior to that, there had been a process of the offender grooming the victim on some 10 or 20 occasions. From the end of December 2018, I am satisfied that the offender engaged in sexual touching of the victim to her breasts and vagina on the outside of her clothing which then escalated to digital penetration of her vagina and cunnilingus.

78. I am further satisfied to the requisite standard that this occurred on numerous occasions and on a regular basis namely every couple of days.

79. I am satisfied that the first occasion of digital penetration occurred about a month after the first incident of sexual touching and probably in early 2019. This escalated thereafter until 17 June 2019 where I am satisfied beyond reasonable doubt that the offender engaged in penile vaginal intercourse with the victim.

80. Given those findings I agree with Haesler DCJ’s conclusion that the applicable maximum penalty is life imprisonment. This is also consistent with the reasoning of Bennett DCJ in R v TH in that it is the maximum penalty specified at the time of the actual misconduct.

81. I note that s 88F was introduced at the same time as the new s 66EA namely 1 December 2018. It provides for uncertainty about the time when a sexual offence against a child occurred by providing that a person may be prosecuted in respect of a child sexual offence notwithstanding there was no time between the period of the alleged conduct that the conduct if proven would not have constituted a sexual offence and regardless of when during that period the conduct actually occurred. That section does not inform the relevant maximum penalty in this case.

82. For the above reasons, the relevant maximum penalty to be taken into account on sentencing here is life imprisonment.

Determination

83. Section 3A of the CSPA sets out the purpose of sentencing as follows:

“3A The purposes for which a Court may impose a sentence on an offender are as follows:

(a) To ensure that the offender is adequately punished for the offence,

(b) To prevent crime by deterring the offender and other persons from committing similar offences,

(c) To protect the community from the offender,

(d) To promote the rehabilitation of the offender,

(e) To make the offender accountable for his or her actions,

(f) To denounce the conduct of the offender,

(g) To recognise the harm done to the victim of the crime and the community.”

84. In assessing the objective seriousness of the offending, I take into account that the unlawful sexual relationship endured for approximately 6 months. During that time from December 2018 until June 2019, the offender was 36 years of age and the victim was aged between 13 and 14 years. The offence was established as it was found beyond reasonable doubt that the offender engaged in two or more unlawful sexual acts which included sexual touching in the earlier period including rubbing the victim’s thigh and breast, touching the victim’s genitals, and escalated to sexual intercourse with the victim by way of digital penetration, cunnilingus and on the final occasion on 17 June 2019 having penile vaginal penetration, rubbing his penis against the victim and licking her breast. During the entire period of the unlawful sexual relationship, the offender was in a position of authority as the victim’s stepfather and all of the offending occurred in the victim’s home. I am not persuaded by the offender’s submission that the objective seriousness is ameliorated by the absence of physical violence, threats or coercion aside from what could be inferred from the conduct constituting the final offence on 17 June 2019. Having regard to the broad range of sexual misconduct encompassed in an offence pursuant to s 66EA of the Crimes Act, I find that the offending fell below the mid-range of objective seriousness for an offence under that section, and in the upper end of the low-range for such an offence. It still constituted very serious offending.

85. I accept the following aggravating features were present namely:

Section 21A(2)(eb) – the offence was committed in the home of the victim.

Section 21A(2)(k) – the offender was in breach of a position of authority.

Section 21A(2)(l) – the victim was vulnerable due to her age.

I also accept the Crown submission that as those factors have been taken into account in assessing the objective seriousness of the offending, they should not be double counted as aggravating factors, and I have not done so.

86. I accept the offender’s submission that the good character of the offender, as outlined in the evidence of the character witnesses at trial, and in the testimonials tendered on his behalf on the sentence hearing, is a mitigating feature to be taken into account on sentencing. I am not satisfied beyond reasonable doubt that the offender’s good character was of assistance to him in the commission of the offence here so as to engage s 21A(5A) of the CSPA. The offender is therefore entitled to some leniency by reason of his prior good character and the absence of any prior conviction. The offender’s good character and the lack of prior convictions are mitigating factors that I am bound to consider however the nature and circumstances of the offence for which the offender is being sentenced is a countervailing factor of the upmost importance, which means the offender’s otherwise good character can only be a small factor to be weighed in the sentencing process – see Ryan v The Queen per McHugh J at 278, and R v PGM at [43].

87. General deterrence is important in the sentencing process for child sexual offending. To conduct an unlawful sexual relationship with a child under the age of 16 years amounts to pernicious offending involving predatory behaviour toward the most vulnerable persons in our society. In prescribing a maximum penalty of life imprisonment, Parliament has sent a clear message to the community that offences pursuant to s 66EA of the Crimes Act are of the most serious type in the criminal calendar, and a clear message must be sent to like-minded members of the community that the courts will impose condign punishment in appropriate cases.

88. Specific deterrence is also important in that the offender must understand the consequences if he were to reoffend. I am not persuaded that specific deterrence is diminished by his considerable family and social support in the community.

89. I take into account the Victim Impact Statement made by the victim in which she outlines the deleterious impact the offender’s criminal conduct has had on her life and her relationships, particularly with those closest to her. She expressed feeling “extremely depressed and suicidal, I felt isolated and controlled” and describes how this has impacted on her ongoing issues of trust with people in her life.

90. In R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56, the Court of Criminal Appeal said at [110]:

“This court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G (2008) UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the ‘long term and serious harm, both physical and psychological, which premature sexual activity can do’. The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R (2011) VSCA 157; 32 VR 361.”

91. I take into account the Victim Impact Statement as yet another example of the substantial, profound and enduring psychological impact that child sexual offending has on victims. I note however that the Victim Impact Statement is not supported by medical evidence and so I do not take it into account so as to increase the offender’s moral culpability.

92. The offender has significant subjective features to be taken into account. He was 36 years at the time of the offending and is now 39 years of age. He had led an exemplary life, had a good employment record, was heavily involved in his family’s business affairs and was well regarded both by his employer and friends. He has excellent family support and prosocial factors to assist in his re-entry into the community. For those reasons I find that he has reasonable prospects of rehabilitation, notwithstanding that he has denied the offending. I find that he is at low risk of recidivism following his incarceration for the index offence.

93. I take into account the maximum sentence of life imprisonment pursuant to s 66EA as a guidepost in the sentencing process. I have also taken into account pursuant to s 66EA(8) the maximum penalty (and standard non-parole period where relevant) for each of the unlawful acts engaged in by the offender during the period of the unlawful sexual relationship (which are set out in [73] above).

94. I also take into account that the offender will suffer some hardship whilst in custody. First, the fact of the COVID-19 pandemic has necessitated restrictions upon correctional inmates including limitation of visiting rights and access to programs has been acknowledged by the courts as a factor to be taken into account – see Valentine v R, supra. Secondly, the offender’s family are from interstate and are unable to regularly visit. Thirdly, he has been in protective custody and will remain so. Given that it is his first time in custody, and having regard to the above factors, I make a finding of special circumstances pursuant to s 44(2) of the CSPA and intend to vary the statutory ratio between head sentence and non-parole period.

95. I am satisfied pursuant to s 5 of the CSPA, and having considered all possible alternatives, that no penalty other than imprisonment is appropriate in this case. Having regard to the objective seriousness of the offending, together with the subjective features set out above, I intend to sentence the offender to a sentence of imprisonment for 8 years, with a non-parole period of 4 years and 6 months commencing on 11 August 2020.

Orders

96. I hereby order as follows:

1. You are convicted of an offence pursuant to s 66EA of the Crimes Act 1900 in that you:

Between the 20^th day of May 2018 and the 18^th day of June 2019, at Pomona in the State of New South Wales, did maintain an unlawful sexual relationship with NS, then a child under 16 years of age, namely, 13 or 14 years of age, in which you engaged in the following two or more unlawful sexual acts:

1.1   Rubbing NS’ thigh

1.2    Rubbing NS’ breast

1.3    Touching NS’ genitals

1.4   Sexual intercourse with NS by digitally penetrating NS’ genitals

1.5   Sexual intercourse with NS, namely, cunnilingus

1.6   Rubbing your penis against NS

1.7   Licking NS’ breast

1.8   Sexual intercourse with NS by penetrating NS’ genitals with your penis

2. I sentence you to a non-parole period of 4 years and 6 months to commence on 11 August 2020 and to terminate on 10 February 2025.

3. The balance of term will be a period of 3 years and 6 months commencing on 10 February 2025 and ending on 10 August 2028.

97. You should understand that release to parole is not automatic. The State Parole Authority will hold a hearing sometime before that date and decide whether they are going to release you to parole on that date or some other date. You should understand that your parole will be subject to stringent conditions, one of which is not to commit offences whilst on parole. Other conditions will include things such as who you associate with, where you live and doing what your parole officers direct. If, during the time you are on parole, you breach any conditions of parole, the State Parole Authority will revoke your parole and you will have to go back to gaol to serve the balance of your sentence.

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Decision last updated: 25 June 2021