R v Osborne

[2025] NSWDC 118

District Court

New South Wales

Medium Neutral Citation:

R v Osborne [2025] NSWDC 118

Hearing dates:

19/2/25

Date of orders:

19/2/25

Decision date:

19 February 2025

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Re Seq 1 Sexual intercourse with child under 10 - Convicted and sentenced to a term of imprisonment of 5 years 9 months with a NPP of 3 years 6 months (27/12/23-26/6/27).

I find special circumstances.

A 25 percent discount has been taken into account.

I make a Final Apprehended Domestic Violence Order in the same terms as the Interim ADVO made on 7 March 2024.

Catchwords:

Crime – Sentence – Sexual intercourse with child under 10 years

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Bugmy v R (2013) 249 CLR 571

DPP (Cth) v De La Rosa [2010] NSWCCA 194

R v Gavel [2014] NSWCCA 56

R v Millwood [2012] NSWCCA 2

Category:

Sentence

Parties:

NSW DPP – Crown
Timothy Osborne - Offender

Representation:

Ms S Edin for Crown
Mr P Cranney for Offender

File Number(s):

23/468780

Publication restriction:

Statutory non-publication order in relation to the identity of the victim.

remarks on sentence

1. Timothy Osborne has committed a serious offence for which he must be sentenced today. The offence before the Court is one of sexual intercourse with a child under the age of ten years. That offence carries a maximum penalty of life imprisonment and furthermore a standard non-parole period of 15 years is specified. The maximum penalty and the standard non‑parole period are important guideposts in the sentencing exercise to which I have had regard.

2. He has pleaded guilty to the offence and therefore will be given a 25% discount on account of the utilitarian value of that plea of guilty as is required by the legislation.

FACTS

3. The facts of the offence are agreed and are, in essence, as follows. The offender was the de facto stepfather of the victim, who was seven years of age at the time of the offence. On 27 December 2023 the offender was in an intimate relationship with the mother of the victim and had been so for about 18 months. At that time they also had a two month old son, the victim being the daughter of the mother from a previous relationship.

4. Between about 2 and 3pm on Wednesday 27 December the victim and the offender were playing in the victim’s bedroom while the mother of the victim was breastfeeding the male child in a bedroom opposite. At about 3.15pm the victim came to her mother, upset and crying. She told her mother that she and the offender had been playing “boyfriend and girlfriend”. The mother asked the victim what the game “boyfriend and girlfriend” involved and the victim told her that she and the offender were pretending to be “boyfriend and girlfriend in Bali”, which involved them holding hands and kissing. The victim said to her mother that the offender had kissed her on the lips before licking her, and she then pointed to her vagina. The mother asked if the victim was sure about what she had said and she replied, “Yes.”

5. The mother then confronted the offender. He made some admissions at that time, namely, that he had been playing the game “boyfriend and girlfriend in Bali”. He also said that the victim kissed him on the lips and that he had “kissed her on the stomach and down there over her clothes.” The mother of the victim immediately told the offender to leave the house and she called the police.

6. After police arrived, the victim’s clothing was gathered and some exhibits were seized for examination. The victim was taken to the John Hunter Hospital and an examination was conducted of her. She was also interviewed by investigators. During her interview she disclosed that she and the offender had been playing in her bedroom that afternoon in a “fort” in the bedroom. The fort consisting of a large blanket that was situated at the end of her bed and hung between a desk and a dolls house which created a private space underneath. She told investigators that she was lying down on her back inside the fort and the offender was lying next to her. She said the offender was naked from the waist up and that as they were lying in the fort, the offender started to lick her vagina underneath her clothes and had said, “Beautiful” to her.

7. Testing was done of the victim’s clothes, or parts of them, which resulted in a positive DNA match to the offender on the front waist area and genital area of her shorts. Furthermore, the testing confirmed the presence of the offender’s DNA on a swab taken from the genital area of the victim.

8. The facts go on to state that the victim said she had felt embarrassed and walked out of the fort and the offender had said, “Okay, do you want to go and watch a movie?” However, the victim was in a state of distress and immediately went and told her mother what had happened.

9. At about 7pm that same day police attended the address where the offender was living and arrested him and returned him to Newcastle Police Station. There he consented to a forensic procedure and an interview with police, however he did not make any admissions to the offence other than confirming that he had lived with the victim and her mother for about 11 months and that the victim referred to him either as Dad or Tim. Those are the agreed facts in summary upon which the offender is to be sentenced.

OBJECTIVE SERIOUSNESS

10. The offence before the Court is obviously a serious one which is clear from the maximum penalty of life imprisonment which is specified and also from the standard non-parole period set by Parliament. Both of those things, as I have said, of course, are important guideposts in the sentencing exercise.

11. Any sexual offence committed against a child must be regarded with extreme seriousness, especially given the prevalence of such offences and the harm that often, if not almost always, results from such offences.

12. However, it is important that I make some assessment of the objective seriousness of the particular offence which this offender has committed and determine where on a theoretical scale of seriousness it lies. As I have already set out, this offence carries a maximum penalty of life imprisonment, but that potential penalty is reserved for the worst type of case and, while the offence before the Court is very serious, there is no suggestion that it comes close to a “worst case”.

13. There is no strict hierarchy of seriousness for acts amounting to “sexual intercourse” as that term is defined in the relevant legislation. Rather, the circumstances of each case must be considered based on their particular facts. The offence in this case involved an act of cunnilingus in a form of skin on skin contact between the offender’s tongue and the victim’s genitalia. The duration of this contact is not known, although I conclude that it was certainly not momentary or fleeting. However, in any event, and as was said in R v Gavel [2014] NSWCCA 56, “Sexual offences of even a short duration can have serious and long term effects.” All the more so, I add, where the victim is a child.

14. At the time of the offence the victim was just seven years of age and so well under the ten year upper limit for this type of offence. The offender, on the other hand, was aged 40 and so there was a very considerable age gap.

15. Also, and more seriously, the offence involved a breach of trust. The offender was trusted by the victim, her mother and family and the community generally, and he clearly broke that trust in a most disgraceful way. It might also be said that the offence involved a breach of authority, given that the offender was performing a quasi-parental role. While that might be so, there is in this case a great deal of overlap between the aspects of trust and authority and in my view it would be double counting to conclude that the offences are made more serious by reason of a breach of both.

16. Also. the offence was committed in the home of the victim where she was entitled to have been safe from predatory conduct like this.

17. The Crown submitted that it is of relevance that the offender engaged in “preparatory sexual offending” by kissing the victim on the lips and stomach in the moments prior to licking her genitals. The Crown argued that the offence was therefore not isolated and that this should have an impact on the degree of leniency which the offender might appropriately otherwise be afforded. However, in my view it is appropriate to regard these preparatory acts as being part of the one incident, and I understood the Crown in oral submissions to accept this approach. It remains appropriate, therefore, in my view to approach the offending behaviour on the basis that it represents a one off aberration in an otherwise law abiding life.

18. I am also satisfied that the offence was relatively spontaneous and was not the subject of planning or sophistication. It did not involve any gratuitous violence and it did not involve the infliction of physical pain, although I do note that the victim became emotionally upset and almost immediately told her mother.

19. Having regard to the various matters I have discussed, I regard the offence as being one that is comfortably above the low-range, but below the mid-range of objective seriousness.

SUBJECTIVE MATTERS

20. I turn then to consider subjective matters relating to the offender himself. His subjective case has been placed before the Court by means of his affidavit and the psychological report of Dr Fritchley. The offender is now aged 42. He was born in Newcastle and has three older sisters. He described his childhood as “poor” in a financial sense, with his father working as a boilermaker and his mother as a part time cleaner.

21. However, when he was six or seven, the family were involved in a serious car accident which left his mother with significant handicaps, such that the offender’s care fell largely to his oldest sister. The family home, according to the offender, was often dirty and disorganised and the offender’s clothes would often not be clean which led to his being bullied by other children. The offender had a fairly distant relationship with his parents and described his father as a strict disciplinarian who beat the offender often. The offender moved out of home to live with an uncle when he was aged about 14, at which time he had ceased attending school. He found the experience of living with his uncle better, but became somewhat estranged from family.

22. While living with his uncle, the offender commenced working on repairing refrigeration and he later worked for another company and commenced, but did not complete, a certificate in refrigeration and air conditioning. He continued to work in this field up until his arrest.

23. The offender has a history of a number of relationships with women and he has two children. While he has some contact with his older son, he apparently has no contact with the younger son, the mother of whom is also the mother of the victim.

24. The offender was himself a victim of sexual abuse as a child. The first instance was when he was about seven where he was sexually assaulted by a male connected with the church where the offender attended. This abuse occurred over some months. The other abuse occurred when he was aged about ten, the perpetrator being one of his older sisters.

25. The psychologist states that the offender has a long history of significant mental health concerns including Attention Deficit Hyperactivity Disorder, Post-Traumatic Stress Disorder, anxiety and depression. The offender reported instances of suicidal thoughts and at least one apparent attempt. An assessment of his intellectual abilities places the offender in the lowest 4% of the population, which is indicative of a person with difficulties in problem solving, emotional regulation, social functioning, receptive language, insight, self-expression and in understanding abstract or complex concepts. The psychologist also says that the offender’s ADHD impacts negatively on his capacity for self-control.

26. Counsel for the offender made submissions referring to the well known principles discussed in Bugmy v R (2013) 249 CLR 571 and R v Millwood [2012] NSWCCA 2. While the offender’s childhood background might not be described as involving “profound” deprivation, neglect or abuse, I accept that it was very far from ideal, and involved significant deprivation of both an emotional and physical kind. As was said in Bugmy and other cases, an offender with such a compromised start in life may not have available to them the same mental and emotional resources as a person from a “normal” or “advantaged” upbringing, and this may mean that the moral culpability or blameworthiness for their offending is reduced.

27. I further note the psychologist’s comments on p 21 of her report which suggest the commission of the offence can be attributed to some degree to the offender’s mental difficulties and to his limited capacity to control impulsive behaviour. This engages some of the principles in DPP (Cth) v De La Rosa [2010] NSWCCA 194, where it was said, amongst other things, that where mental health contributes to the commission of an offence, an offender’s moral culpability may be reduced.

28. In this case, I accept that the offender’s difficult childhood, combined with his compromised mental state at the time of the offence, has the effect of reducing his moral culpability to a material degree. I also accept that the offender’s compromised mental state reduces, to some degree, the weight that should be given to general deterrence which is ordinarily of very significant importance in sentencing for offences like this. However, while the weight to be given to general deterrence is reduced, it still remains an important aspect to which I have given appropriate weight.

29. I further accept that the sentence I impose must give considerable weight to the importance of deterring this offender from committing similar acts in the future.

REMORSE

30. The offender has expressed regret and remorse in his affidavit and to the psychologist. I accept that these expressions of remorse are genuine. They are given some further support by the partial admissions that the offender made to the victim’s mother when confronted with the allegation. It is the experience of the Court’s that admissions of this kind are not common.

31. The Crown raised a concern about the language used by the offender in his affidavit and pointed out that his use of the word “beautiful” was something that he had said to victim at the time of the offence. I have considered this submission, however the offender’s use of the word “beautiful” in his affidavit needs to be read in context. What the offender said in full I note was as follows,

“I am deeply, deeply, deeply sorry. You are a beautiful strong willed kid. I hope I didn’t change that. I hope you have the support to deal with this better than me. I hope you know that you’ve done nothing wrong. I'm here because this is all my fault and you have done nothing wrong. I love you very much and I just want you to have a beautiful life. I am sorry to … and my little boy for the hurt and shame I have brought. I'm sorry I couldn’t tell … the full truth about what happened. I was ashamed. The embarrassment of it all was too much to say to her face, but I do not deny anything that … said. Nobody told me I had to plead guilty. I pleaded guilty because it is true and I am sorry.”

32. Taken in context, I do not regard the offender’s use of words as raising any concern or as indicative of a lack of insight.

33. In summary, I accept that there is genuine remorse and that the offender’s affidavit indicates that he has demonstrated appropriate insight as to the utterly inappropriate nature of his actions.

RISK AND REHABILITATION

34. The offender has been assessed as an overall low risk of re-offending by a psychologist, Dr Fritchley. Given the combination of untreated mental health issues which affect the offender, I think his future risk needs to be approached with some caution. However, on balance I agree that his risk of re-offending is relatively low. Given his relatively low risk, history of employment and his essentially clean criminal background, I think he has reasonable prospects of rehabilitation.

HARDSHIP IN CUSTODY

35. In determining the sentence, I have had regard to the unchallenged evidence from the offender that his custody to date has involved many days of being locked down in his cell. I have taken into account also that since being in custody the offender has experienced significant isolation with very little contact from family or friends. I accept that this had made and will likely continue to make his time in custody more onerous. His experience of custody has been and will continue to be more difficult for him due also to his various psychological issues and compromised coping skills.

DETERMINATION

36. In determining the appropriate sentence I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. I do not intend to recite those various purposes. Suffice to say that they are all relevant, subject to the comments that I have already made about general deterrence and specific deterrence.

37. I am satisfied for the purposes of s 5 of that Act that no penalty other than one of full time imprisonment is appropriate.

38. I intend to, and have made, a finding of special circumstances for adjusting to some degree the ordinary ratio between non-parole period and head sentence. I have made that finding on the basis that this is the offender’s first experience of custody; secondly, on the basis of my comments about this being a fairly onerous custody for him; thirdly, because of his mental health issues; and fourthly because, in my view, there is a need for a significant period of monitoring once he is released to parole.

39. Mr Osborne, if you just stand up and I will announce the sentence. You are sentenced to a period of imprisonment of five years, nine months. I set a non-parole period of three years, six months. Each of those will date from 27 December 2023. The head sentence therefore will expire 26 September 2029. The non-parole period will expire 26 June 2027.

40. I direct that a copy of the psychological report of Dr Fritchley be sent to Justice Health and that attention be drawn, in particular, to paras 80 to 85 which relate to treatment recommendations.

41. Thank you, the offender will have to be taken back into custody. Anything to raise, Ms Crown?

42. EDIN: Yes, your Honour, there is the matter of the AVO. I believe that those proceedings have travelled--

43. HIS HONOUR: You can take a seat, Mr Osborne.

44. EDIN: --to the District Court. The DPP does not appear strictly in those proceedings. I have the police prosecutors on standby to come and appear in the matter. I understand that the AVO is being made by consent.

45. CRANNEY: That’s correct in the terms.

46. EDIN: But unfortunately the director--

47. HIS HONOUR: Hasn’t it already been made by the Local Court?

48. EDIN: Apparently - no, it hasn’t. Normally that is the course, but in this instance it was sent to follow the sentencing proceedings. Your Honour does have jurisdiction to hear and determine it and make those final orders, but--

49. HIS HONOUR: All right, that’s not opposed?

50. CRANNEY: Not opposed, your Honour, no.

51. HIS HONOUR: Well, I can make that by way of an order in chambers, can't I?

52. EDIN: Yes, it is sought for an indefinite period. Again, I'm appearing amicus, essentially. The Drector - I'm under instructions not to appear at all, but the terms of the order are sought for an indefinite period and that it is all of the provisions--

53. HIS HONOUR: So do I have the relevant - well, is there on file the relevant documents?

54. EDIN: Yes, there should be.

55. HIS HONOUR: Right, well, you can take it that I will make those orders. Assuming that the documents are on file, I will make those orders in chambers. I note that that’s done by consent.

36. EDIN: Thank you, for an indefinite period.

37. HIS HONOUR: Yes.

38. EDIN: Thank you, your Honour.

39. HIS HONOUR: Right, thank you. The Court will adjourn.

**********

Decision last updated: 09 April 2025