R v JRN [2019] NSWDC 496

District Court New South Wales

Medium Neutral Citation: R v JRN [2019] NSWDC 496 Hearing dates: 5 September 2019 Decision date: 13 September 2019 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Full-time custodial sentence. For orders see [59] Catchwords: Multiple offences of indecent assault and aggravated sexual intercourse against children; aggregate sentence Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 R v Van Ryn [2016] NSWCCA 1 WAP v R [2017] NSWCCA 212 Category: Sentence Parties: Director of Public Prosecutions (Crown) JN (Offender) Representation: Counsel: M Hay (Crown) D Brogan (Offender)

Solicitors: E Brown (Crown) D Davidge (Offender File Number(s): 17/190461 Publication restriction: NB s 578A(2) of the Crimes Act 1900 applies to this matter – no publication of any matter which identifies the complainants or may lead to the identification of the complainants.

REMARKS ON SENTENCE 1. On 16 May 2019 at the Griffith District Court, a jury returned verdicts of guilty on the following seven counts on the Indictment: 1. Between 22 March 2007 and 30 April 2007, at Deniliquin in the State of New South Wales, did assault RN, a person then under the age of 10 years, namely, 5 years of age and at the time of such assault did commit an act of indecency on the said RN. This offence is pursuant to s 61M(2) of the Crimes Act 1900 and carries a maximum penalty of 10 years imprisonment with a Standard Non-Parole Period of 5 years imprisonment. 1. On or about 1 July 2010, in Deniliquin in the State of New South Wales, did have sexual intercourse with RN, who was at that time under the age of 10 years, namely, 7 years of age. 1. This offence is pursuant to s 66A(1) of the Crimes Act 1900 and carries a maximum penalty of 25 years imprisonment with a Standard Non-Parole Period of 15 years imprisonment. 1. On or about 3 September 2011, at Goulburn in the State of New South Wales, did assault RN, a person then under the age of 16 years, namely, 9 years of age and at the time of such assault did commit an act of indecency on the said RN. This offence is pursuant to s 61M(2) of the Crimes Act 1900 and carries a maximum penalty of 10 years imprisonment with a Standard Non-Parole Period of 8 years imprisonment. 1. Between 2 February 2012 and 13 February 2012, in Deniliquin in the State of New South Wales, did have sexual intercourse with RN, the said RN being a person of the age of 10 years and under the age of 14 years, namely 10 years of age, in circumstances of aggravation, namely, at the time of the offence RN was under the authority of JRN. This offence is pursuant to s 66C(2) of the Crimes Act 1900 and carries a maximum penalty of 20 years imprisonment. There is no Standard Non-Parole Period proscribed. 1. Between 22 January 2002 and 21 January 2003, at Mathoura in the State of New South Wales, did assault TN, a person then under the age of 10 years, namely, 5 years of age and at the time of such assault did commit an act of indecency on the said TN. This offence is pursuant to s 61M(2) of the Crimes Act 1900 and carries a maximum penalty of 10 years imprisonment. There is no Standard Non-Parole Period proscribed. 1. Between 1 January 2008 and 31 December 2008, in Deniliquin in the State of New South Wales, did have sexual intercourse with TN, the said TN being a person above the age of 10 years and under the age of 14 years, namely, 10 or 11 years of age, in circumstances of aggravation, namely, the said TN was under the authority of JRN. This offence is pursuant to s 66C(2) of the Crimes Act 1900 and carries a maximum penalty of 20 years imprisonment. There is no Standard Non-Parole Period proscribed. 1. On or about 24 December 2012, in Narromine in the State of New South Wales, did have sexual intercourse with TN without his consent, and knowing that he was not consenting to the sexual intercourse, in circumstances of aggravation, namely, that at the time of the offence TN was under the authority of JRN. This offence is pursuant to s 61J(1) of the Crimes Act 1900 and carries a maximum penalty of 20 years imprisonment with a Standard Non‑Parole Period of 10 years imprisonment. 1. A fair summary of facts, which are consistent with the jury verdicts in respect of each count, is as follows: 1. Count 1 concerned an occasion between 22 March 2007 and 30 April 2007 at Deniliquin, when RN was aged five. RN had gotten into bed with her mother and father as she was scared of the dark. She was lying between her parents and whilst lying in bed the offender started to rub her on the leg outside of her clothing. He then put his hand down the front of her pants and started to rub on the outside of her vagina. This occurred for about half an hour. The offending ceased when RN's mother woke to attend work. 2. Count 2 concerned an occasion on 1 July 2010 at Deniliquin when RN was aged seven years as RN was sleeping in the top bunk bed in her brother TN's bedroom. The offender came to say goodnight to her and stood near the bed. Whilst he was there, he put his hands inside her pants, down the side of her hip, and moved his hand to the front of her pants on her vagina and rubbed her on the outside of her vagina. He then put his fingers inside her vagina. The insertion of the offender's fingers into the vagina of his daughter constituted sexual intercourse. The offending ceased when RN's mother came to the room. 3. Count 3 occurred on 3 September 2011 at Goulburn at a time when RN was nine years of age. On this occasion RN was staying with her siblings and the offender and his fiancée at a motel in Goulburn. When everyone else was asleep, the offender knelt down beside RN's bed and started touching the inside of her thigh with his hand. He pulled her pants down and started to rub the outside of her vagina with his hand for a period of some 10 minutes. Whilst the offender was touching RN, he had his other hand down the front of his pants, moving it back and forth on his penis. 4. Count 4 concerns an occasion between 2 February 2012 and 13 February 2012 at Deniliquin at a time when RN was aged 10 years. At that time, RN was staying at the offender's house and was in her sister Heidi's room lying on the bottom bunk bed. The offender entered the bedroom when others had gone shopping and said: "If you ever tell anyone what I've done, I'll kill you and I'll get someone to kill or hurt you." He then held her down on the bed, with his forearm across her shoulders, and pulled her pants down. He then put his fingers inside her vagina. This constituted sexual intercourse in circumstances of aggravation, namely, she was under the authority of the offender at that time. 1. Count 5 concerns an occasion between 22 January 2002 and 21 January 2003 at Mathoura. TN was aged five and he was in the bath when the offender came into the bathroom and closed the door. The offender started to rub and pull TN's penis. The offender was supposed to be washing TN, but did not touch any other parts of TN's body except his penis. 2. Count 6 concerned an occasion between 1 January 2008 and 31 December 2008 at Deniliquin when TN was in year six at school. TN was asleep in his bedroom, lying on his stomach. The offender came into the bedroom and pulled the covers off TN. The offender then pushed TN's head into the pillow with his hand and held it there. He removed TN's pyjama pants with his other hand, and got onto the bed and knelt behind him. The offender then put his penis in TN's anus and moved it in and out, causing TN immediate pain. This constituted sexual intercourse, at a time when TN was under the authority of the offender. 3. Count 7 constituted an occasion on 24 December 2012 at Narromine. TN was lying on his bed in his bedroom during the afternoon when the offender came into the bedroom and punched TN in the head. He then rolled TN onto his stomach and pulled his tracksuit pants down. The offender was holding TN's hands above his head and putting all his weight on him. He then inserted his penis into TN's anus and moved it backwards and forwards. The offender said:"If you tell anyone I will cut your throat". After 20 minutes the offending stopped and the offender said to TN, "No one needs to know about this. If anyone finds out I will kill you." 1. This constituted sexual intercourse without TN's consent, knowing he was not consenting, and in circumstances of aggravation, namely, that TN was under the authority of the offender at the time. 2. The offender's case was that none of the offences occurred and that he never inappropriately touched or sexually assaulted either of his children, RN or TN. By its verdicts, the jury rejected the denials made by the offender to police, and his evidence in the trial denying the offences.