R v JA [2019] NSWDC 314

District Court New South Wales

Medium Neutral Citation: R v JA [2019] NSWDC 314 Hearing dates: 7 December 2018 Date of orders: 01 February 2019 Decision date: 01 February 2019 Jurisdiction: Criminal Before: Wilson SC DCJ Decision: At [87]-[91] Catchwords: CRIMINAL LAW – sentencing – 3 convictions – one following a jury trial – 2 following guilty plea – historical child sex abuse Legislation Cited: Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Code Act 1995 (Cth) Cases Cited: Barbaro v R; Zirilli v R (2014) 253 CLR 58 Conte v R [2018] NSWCCA 209 Jonson v R (2016) 263 A Crim R 268 Monis v The Queen; Droudis v The Queen (2013) 249 CLR 92 R v AA [2017] NSWCCA 84 R v AJP (2004) 150 A Crim R 575 R v Lulham (2016) 263 A Crim R 287 The Queen v Pham (2015) 256 CLR 550 Texts Cited: None Category: Sentence Parties: Regina (Crown) JA (Offender) Representation: Counsel: Ms E Nicholson (Crown) Ms R Court (Offender)

Solicitors: ODPP (Crown) Panwar Legal (Offender) File Number(s): 2016/154764 Publication restriction: Non-Publication Order with regards to the name of the complainant, the Offender and the Offender's family

Introduction 1. The Offender appears before the Court today for sentencing after pleading guilty to two charges on the Crown Sentence Summary (Exhibit A), and also in relation to a matter which is the subject of jury deliberation and a finding of guilt, which presented itself on indictment. 2. In sentencing the Court has regard to the guideposts of maximum penalties and the standard non‑parole periods if such exists. The maximum penalty is the parliament's assessment of the seriousness of the offending. The standard non-parole period is to be applied unless circumstances justify a departure from it. 3. The offences for which this Offender is to be sentenced and the applicable guideposts are as follows: 1. charge number ending 733 and being sequence 4 that is sexual intercourse with a child under 10 years, in breach of s66A of the Crimes Act. At the time of the commission of the offence had a maximum penalty of 20 years imprisonment and no standard non‑parole period. I note that the offence now carries a maximum sentence of life imprisonment and this is the offence for which the Offender was found guilty after pleading not guilty at trial; 2. charge number ending 733 and is sequence 5 being using a carriage service to menace, harass or offend in breach of s474.17(1) of the Criminal Code which has a maximum penalty of three years imprisonment with no standard non‑parole period; and 3. the further offence for which the Offender is to be sentenced has the same charge number as the other two offences but relates to sequence 2 in respect of that charge, namely being possess child abuse material in breach of s91H of the Crimes Act which has a maximum penalty of ten years imprisonment without a standard non‑parole period. 1. The Offender was born in 1975 and is now 43 years of age. The offending that is the subject of the matter that went before the jury occurred between 30 April 1989 and 31 January 1990 when the Offender was 14 years of age. The use of carriage service offence was committed on 30 October 2014 and the possess child abuse material offending occurred on 8 January 2016. 2. The Offender was arrested and charged on 19 May 2016. On 20 December 2016, the Offender was committed for trial in the District Court. On 20 August 201,8 the Offender was found guilty of the sexual intercourse with a child offence and had at that stage pleaded guilty to two other offences. Those pleas came at a relatively late stage of proceedings, but will nevertheless be taken into account in determining any discount for the value of a guilty plea. 3. The Offender has been in custody for these offence from 19 May 2016 to 15 June 2016 and then since 20 August 2018 when the guilty verdict was delivered by the jury. The sentence having regard to those prior periods in custody will be backdated to commence on 25 July 2018. 4. The evidence on sentence for the Crown comprised the following material: 1. the Crown Bundle (Exhibit A); 2. the Agreed Summary of the complainant's evidence (MFI 1); and 3. the Crown's Submissions on Sentence (MFI 2). 1. The Offender relied upon the following material: 1. a report by Anita Duffy, psychologist dated 25 October 2018 (Exhibit 1); and 2. the Offender's Submission on Sentence (MFI 3).