R v EC [2018] NSWDC 267

District Court New South Wales

Medium Neutral Citation: R v EC [2018] NSWDC 267 Hearing dates: 16-25 July 2018 Decision date: 21 September 2018 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Suspended custodial sentence. For Orders see [58] Catchwords: Historical sexual offending by juvenile Legislation Cited: Child Welfare Act 1939 Children (Criminal Proceedings) Act 1987 Children's Court Act 1987 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Harris v R [2017] NSWCCA 254 R v GDP (1991) 53 ACrimR 112 R v Todd (1982) 2 NSWLR 517 TC v R [2016] NSWCCA 3 Category: Sentence Parties: Director of Public Prosecutions (Crown) EC (Offender) Representation: Counsel: P Skinner (Crown) W Hussey (Offender)

Solicitors: Mr Dixon File Number(s): 17/124209 Publication restriction: Non-Publication Order pursuant to s 7 for name of complainants and accused.

remarks on sentence 1. On 16 July 2018, the offender pleaded not guilty to six counts on an Indictment, and two alternative counts. On Wednesday 25 July 2018 at Newcastle District Court a jury returned verdicts of guilty on three of those counts as follows: 1. Count 1 – that between 1 January 1976 and 1 January 1978 at Toronto in the State of New South Wales did assault DH, a male person, and at the time of such assault did commit an act of indecency on him. This was an offence pursuant to s 81 of the Crimes Act 1900. 2. Count 3 – that between 1 January 1976 and 1 January 1978 at Toronto in the State of New South Wales did assault DH, a male person, and at the time of such assault did commit an act of indecency on him. This was an offence pursuant to s 81 of the Crimes Act 1900. 3. Count 4 – that between 1 January 1976 and 1 January 1977 at Toronto in the State of New South Wales did carnally know KR, a girl then under the age of 10 years, namely seven or eight years. This was an offence pursuant to s 67 of the Crimes Act 1900. 1. On 19 July 2018, the jury entered a verdict of not guilty by direction on Count 7 on the Indictment, and on 25 July 2018 found the offender not guilty of Counts 6 and 8 on the Indictment. 2. The following factual findings are derived from the jury verdicts. 3. On an occasion during 1976 and 1977, the victim, DH, who was born on 4 April 1971, was staying at his grandparents' house. The offender was the youngest of the victim's grand‑parents five children and his bedroom was located at the rear of the house. In that bedroom were two beds and the victim was in bed and the room in darkness. The offender got into the victim's bed and then had the victim suck his penis. The victim asked the offender "if he was doing it properly" and the offender said, "Yes, treat it like a lolly pop. Just keep doing it the way you are doing it. You are a good boy". That was the conduct that constituted the offence in Count 1 on the Indictment. 4. The offender then used his tongue to lick the penis of the victim. That did not go on for very long at all, and the offender then kissed the victim on the forehead and told him he was a good boy, and got back into his bed in the same room. That was the conduct that constituted Count 3 on the Indictment. 5. Between 1 January 1976 and 1 January 1977, the offender was babysitting the victim KR, who was born on 3 August 1968 and was his niece. She had had a bath when the offender came into the bathroom and got into the bath. He then asked the victim to wash his back and when she went to do so, asked her to get into the bath with him. She got into the bath with him and had her back to the offender when he put his hands on her hips and lowered her to sit on his lap. When he did that, she felt something hard in her vagina area. She described something hard that he was trying to put into her vagina. She then just stood up and got out of the bath. The victim told her aunty, who reported the matter to the victim's mother, who then took her to the family doctor, who examined the victim's vagina. The victim's mother gave evidence that the doctor had told her that there were scratches on the inside of her vagina. That was the conduct that constituted Count 4 on the Indictment.