R v RJ [2023] NSWDC 22

District Court New South Wales

Medium Neutral Citation: R v RJ [2023] NSWDC 22 Hearing dates: 18 November 2022 Date of orders: 10 February 2023 Decision date: 10 February 2023 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Full-time custodial sentence. For orders see [85]-[89] Catchwords: CRIME – Indecent assault person under 16 years of age (DV) – aggravated sexual intercourse with child between 10 and 14 years of age (DV) – common assault (DV) – aggravated sexual intercourse with child between 14 and 16 years of age (DV) Legislation Cited: Crimes Act 1900 Children (Criminal Proceedings) Act 1987 Crimes (Sentencing Procedure) Act 1999 Cases Cited: R v Achurch (2011) 216 A Crim R 152; [2011] NSWCCA 186 R v Cahyadi [2007] NSWCCA 1 R v Gavel [2014] NSWCCA 56 R v Tuala [2015] NSWCCA 8 R v Youkhana [2004] NSWCCA 412 Category: Sentence Parties: Director of Public Prosecutions (Crown) RJ (Offender) Representation: Mr Cohen (Offender) Ms Sullivan (Crown) File Number(s): 2018/89346 Publication restriction: Section 578A of the Crimes Act 1900 and s15A of the Children (Criminal Proceedings) Act 1987 apply so as to prohibit the publication of any material which may identify or is likely to lead to the identification of the complainants in the proceedings.

REMARKS ON SENTENCE 1. The offender who was born on 9 May 1981 pleaded not guilty on 21 March 2022 when arraigned on an Indictment containing 21 counts. The matter proceeded to trial by judge alone before me and on 9 May 2022 the offender was found guilty of 19 of the 21 counts as follows:- 1. Count 1 between 29 January 2015 and 31 December 2017, at [B] in the State of New South Wales, did assault [LJ] and at the time of the assault committed an act of indecency on [LJ], a child then under the age of 16 years, namely, 11, 12 or 13 years. This was an offence pursuant to s61M(2) of the Crimes Act 1900. 1. Count 2 between 1 June 2015 and 31 December 2017, at [B] in the State of New South Wales, did assault [LJ] and at the time of the assault committed an act of indecency on [LJ], a child then under the age of 16 years, namely, 11, 12 or 13 years. This was an offence pursuant to s61M(2) of the Crimes Act 1900. 1. Count 3 between 1 June 2015 and 31 December 2017, at [B] in the State of New South Wales, had sexual intercourse with [LJ], a child above the age of 10 years and under the age of 14 years, namely, 11, 12 or 13 years, in circumstances of aggravation, namely [LJ] was a person under the authority of [RJ]. This was an offence pursuant to s66C(2) of the Crimes Act 1900. 1. Count 4 between 1 August 2017 and 30 September 2017, at [B] in the State of New South Wales, did assault [LJ] and at the time of the assault committed an act of indecency on [LJ], a child then under the age of 16 years, namely 13 years. This was an offence pursuant to s61M(2) of the Crimes Act 1900. 1. Count 5 between 1 August 2017 and 30 September 2017, at [B] in the State of New South Wales, did assault [LJ] and at the time of the assault committed an act of indecency on [LJ], a child then under the age of 16 years, namely 13 years. This was an offence pursuant to s61M(2) of the Crimes Act 1900. 1. Count 6 between 1 September 2017 and 8 October 2017, at [C] in the State of New South Wales, did assault [LJ] and at the time of the assault committed an act of indecency on [LJ], a child then under the age of 16 years, namely 13 years. This was an offence pursuant to s61M(2) of the Crimes Act 1900. 1. Count 7 between 1 December 2017 and 28 January 2018, at [B] in the State of New South Wales, did assault [LJ] and at the time of the assault committed an act of indecency on [LJ], a child then under the age of 16 years, namely 13 years. This was an offence pursuant to s61M(2) of the Crimes Act 1900. 1. Count 8 between 1 December 2017 and 28 January 2018, at [B] in the State of New South Wales, did assault [LJ] and at the time of the assault committed an act of indecency on [LJ], a child then under the age of 16 years, namely 13 years. This was an offence pursuant to s61M(2) of the Crimes Act 1900. 1. Count 9 between 1 December 2017 and 28 January 2018, at [B] in the State of New South Wales, had sexual intercourse with [LJ], a child above the age of 10 years and under the age of 14 years, namely 13 years, in circumstances of aggravation, namely [LJ] was a person under the authority of [RJ]. This was an offence pursuant to s66C(2) of the Crimes Act 1900. 1. Count 10 between 1 December 2017 and 31 December 2018, at [B] in the State of New South Wales, had sexual intercourse with [LJ], a child above the age of 10 years and under the age of 14 years, namely 13 years, in circumstances of aggravation, namely [LJ] was a person under the authority of [RJ]. This was an offence pursuant to s66C(2) of the Crimes Act 1900. 1. Count 11 between 1 December 2017 and 28 January 2018, at [B] in the State of New South Wales, had sexual intercourse with [LJ], a child above the age of 10 years and under the age of 14 years, namely 13 years, in circumstances of aggravation, namely [LJ] was a person under the authority of [RJ]. This was an offence pursuant to s66C(2) of the Crimes Act 1900. 1. Count 12 between 1 December 2017 and 28 January 2018, at [B] in the State of New South Wales, did assault [LJ]. This was an offence pursuant to s61 of the Crimes Act 1900. 1. Count 13 between 20 January 2018 and 23 January 2018, at [B] in the State of New South Wales, had sexual intercourse with [LJ], a child above the age of 10 years and under the age of 14 years, namely 13 years, in circumstances of aggravation, namely [LJ] was a person under the authority of [RJ]. This was an offence pursuant to s66C(2) of the Crimes Act 1900. 1. Count 14 between 27 January 2018 and 30 January 2018, at [B] in the State of New South Wales, had sexual intercourse with [LJ], a child of or above the age of 14 years and under the age of 16 years, in circumstances of aggravation, namely [LJ] was a person under the authority of [RJ]. This was an offence pursuant to s66C(4) of the Crimes Act 1900. 1. Count 15 between 1 February 2018 and 20 March 2018, at [B] in the State of New South Wales, did assault [LJ] and at the time of the assault committed an act of indecency on [LJ], a child then under the age of 16 years, namely 14 years. This was an offence pursuant to s61M(2) of the Crimes Act 1900. 1. Count 16 between 1 February 2018 and 20 March 2018, at [B] in the State of New South Wales, did assault [LJ] and at the time of the assault committed an act of indecency on [LJ], a child then under the age of 16 years, namely 14 years. This was an offence pursuant to s61M(2) of the Crimes Act 1900. 1. Count 17 between 1 February 2018 and 20 March 2018, at [B] in the State of New South Wales, had sexual intercourse with [LJ], a child of or above the age of 14 years and under the age of 16 years, namely 14 years, in circumstances of aggravation, namely [LJ] was a person under the authority of [RJ]. This was an offence pursuant to s66C(4) of the Crimes Act 1900. 1. Count 20 on 19 March 2018, at [B] in the State of New South Wales, did assault [AH]. This was an offence pursuant to s61 of the Crimes Act 1900. 1. Count 21 on 19 March 2018, at [B] in the State of New South Wales, did assault [LJ]. This was an offence pursuant to s61 of the Crimes Act 1900. 1. In respect of the offences pursuant to s61M(2) of the Crimes Act 1900 ("The Crimes Act") the maximum penalty prescribed is 10 years imprisonment with a standard non-parole period of 8 years imprisonment. For the offences in Counts 3, 9 and 13, offences of aggravated sexual intercourse on a person greater than 10 years and less than 14 years pursuant to s66C(2) of the Crimes Act, the maximum penalty prescribed is 20 years imprisonment and there is a standard non-parole period prescribed of 9 years imprisonment. 2. For the offences pursuant to Counts 14 and 17, offences of aggravated sexual intercourse on a person greater than 14 but less than 16 years of age pursuant to s66C(4), the maximum penalty prescribed is 12 years imprisonment and there is a standard non-parole period of 5 years imprisonment. 3. For the offences in Counts 12, 20 and 21, offences of common assault pursuant to s61 of the Crimes Act the maximum penalty prescribed is 2 years imprisonment and there is no standard non-parole period. 4. As this was a judge alone trial, these remarks on sentence are to be read with my judgment on verdict (see R v RJ [2022] NSWDC 151).