R v JA [2019] NSWDC 641

District Court New South Wales

Medium Neutral Citation: R v JA [2019] NSWDC 641 Hearing dates: 31 October 2019 Decision date: 07 November 2019 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Full-time custodial sentence. For Orders see [51] Catchwords: Sexual assault of child under 16 years; 2 counts; aggregate sentence; special circumstances Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 Carroll v R [2019] NSWCCA 243 R v Van Ryn [2016] NSWCCA 1 Category: Sentence Parties: Director of Public Prosecutions (Crown) JA (Offender) Representation: Counsel: B Campbell (Crown) J Carty (Offender) File Number(s): 18/287662 Publication restriction: NB s 578A(2) of the Crimes Act 1900 applies to this matter – no publication of any matter which identifies the complainant or may lead to the identification of the complainant.

REMARKS ON SENTENCE 1. The offender pleaded not guilty to four charges on an Indictment when arraigned at the Coffs Harbour District Court on 12 August 2019. On 16 August 2019 the jury returned verdicts of not guilty in respect of Counts 1 and 2 on that Indictment, and verdicts of guilty in respect of Counts 3 and 4. 2. Count 3 was an offence pursuant to s 61M(2) of the Crimes Act 1900, that between 1 June 2018 and 19 September 2018, at Wauchope, in the State of New South Wales, the offender did assault SS, a person then under the age of 16 years, namely, 8 years, and at the time of such assault did commit an act of indecency on the said SS. 3. Count 4 was also an offence pursuant to s 61M(2) of the Crimes Act 1900, namely, that between 1 June 2018 and 19 September 2018, at Wauchope in the State of New South Wales, the offender did assault SS, a person then under the age of 16 years, namely, 8 years, and at the time of such assault did commit an act of indecency on the said SS. 4. The offender had formed a relationship with the mother of the victim in July 2018, and shortly thereafter, moved in to live with her. At that time, the victim and her younger sister had been living with their grandmother the majority of the time. However, they moved home to live with their mother and the offender in early September 2018. 5. The Crown case at trial in respect of Counts 3 and 4 was that on Monday 17 September 2018, the victim, SS, was asleep in her bed. She was wearing a onesy, with a bra and underpants underneath. She awoke to the offender touching her leg. He was using his hand to touch her vagina over the top of her underpants. His hand was moving up and down and the victim pretended to be asleep. This was the conduct alleged in Count 3 on the Indictment. 6. The offender grabbed the victim's hand and placed it on his penis. The offender continued rubbing his hand up and down on the victim's underpants, whilst her hand was on his penis. This was the conduct comprised in Count 4 on the Indictment. 7. At trial, the offender's case, as put in his ERISP interview, was that he denied the allegations in Counts 3 and 4. He denied ever touching the victim on her vagina or going into her bedroom. By its verdict, the jury rejected the offender's denial of the allegations in Counts 3 and 4. 8. The maximum penalty for the offences pursuant to s 61M(2) of the Crimes Act 1900 is 10 years imprisonment. There is a Standard Non-Parole Period proscribed of 8 years imprisonment.