R v BQL

District Court of NSW|2022-06-24

remarks on sentence

On 31 January 2022, the offender pleaded not guilty to Count 1 on the Indictment, an offence pursuant to s 66EA(1) of the Crimes Act 1900 that he between 1 January 2017 and 16 October 2020 at L in the State of New South Wales maintained an unlawful sexual relationship with SL, then a child under 16 years of age, namely 9 to 12 years of age, in which BQL engaged in two or more unlawful sexual acts.
The sexual acts were particularised as kissing SL on the breasts; kissing SL on the vagina; touching SL on the breasts; inserting his penis into SL's mouth and inserting his fingers into SL's vagina.
The offender also pleaded not guilty to three alternative counts, however, on 10 February 2022 the jury found him guilty of Count 1 on the Indictment.
The maximum penalty for the offence is life imprisonment and there is no standard non-parole period prescribed.
The offender was arrested on 16 October 2020 and has been in custody since his arrest.

The Crown's written submissions

The Crown's written submissions outlined that on 10 February 2022, a jury found the offender guilty on one count of persistent sexual abuse of a child, pursuant to s 66EA of the Crimes Act 1900, namely that between 1 January 2017 and 16 October 2020, he maintained an unlawful sexual relationship with SL, then a child under 16 years of age, namely 9 to 12 years of age. The Indictment was composed of one s 66EA count alleging five types of unlawful sexual acts, with three alternative counts.
The Crown submitted the maximum penalty of life imprisonment applies, notwithstanding that some of the activity occurred at a point where a predecessor offence carried a maximum penalty of 25 years imprisonment, relying on Xerri v R [2021] NSWCCA 268.
The Crown set out well-established principles applicable to the finding of facts following a jury trial and advocated for a number of findings of fact.
The Crown referred to s 66EA(8) and submitted the court would take into account the following unlawful sexual conduct: "(a) Touching and kissing the victim's breasts (from 1 January 2017 to 30 November 2018 s 61M(2) of the Crimes Act 1900 maximum penalty 10 years imprisonment - standard non parole period 8 years, It is noted that whilst the 2018 amending legislation omitted s61M(2) from the table relating to standard non parole periods, that same legislation contained a savings provision in relation to s61M(2) offences committed prior to 1 December 2018, see Crimes Legislation Amendment (Child Sexual Abuse) Act 2018 No 33 Schedule 3 Parts [8] and [10]. From 1 December 2018 s 66DB(a) Crimes Act 1900 maximum penalty 10 years imprisonment with no standard non-parole period applicable. It is noted that whilst s61M(2) applied to complainants under the age of 16, s66DB(a) applies where the complainant is aged between 10 and 16. (b) Aggravated sexual intercourse (digital vaginal intercourse, fellatio, cunnilingus) without consent victim under 16 s 61J(1) Crimes Act 1900 maximum penalty 20 years standard non parole period 10 years. There was a statutory alternative relied upon, s 66C(2) Crimes Act 1900 aggravated (under authority) sexual intercourse with child aged 10-14 years, maximum penalty 20 years standard non parole period 9 years."
The Crown referred to GP (a pseudonym) v R [2021] NSWCCA 180, where Cavanagh J at [63]-[64] referred to the following factors which will bear upon the assessment of objective seriousness of an offence of persistent sexual abuse of a child under the predecessor of s 66EA: "(a) the number of sexual offences which were committed on separate occasions by the offender against the victim; (b) the nature of the sexual offences committed by the offender against the victim; (c) the age of the victim at the time of the ingredient offences; (d) the period of time during which the ingredient offences were committed against the victim; (e) the age of the offender at the time of the commission of the ingredient offences against the victim and the age differential; and (f) the context in which the offender had access to the victim to commit the ingredient offences over the period of time which constituted the s 66EA offence."
The Crown submitted that the offender commenced the unlawful sexual relationship some time in 2017 by touching and kissing the victim's breasts. That appears to have occurred about once or twice a fortnight. Some time in 2018 when the victim was in Year 5 or 2019 when the victim was in Year 6, the oral sexual activity commenced. The Crown submitted that on the evidence, the act of fellatio occurred less frequently than cunnilingus, which the victim said occurred "a lot". The Crown submitted further that whilst fellatio occurred less frequently, there was a suggestion of force.
The Crown submitted that some time in 2020 when the victim was in Year 7 and had moved upstairs, the digital vaginal penetration commenced although the frequency with which this occurred was unclear.
The Crown submitted that the unlawful sexual activity occurred over a number of years, graduated from touching to penetration and occurred more frequently in 2020, coinciding with the offender having more access to the victim when she was living upstairs.
The context in which the offences occurred is that they were all committed in the home of the victim in circumstances where the offender was in a position of trust and authority. Thus, these two factors were statutory aggravating features pursuant to s 21A(2)(eb) and s 21A(2)(k) of the CSPA.
The Crown submitted that having regard to all of those factors, the offending was within or just below the mid-range of objective seriousness for an offence pursuant to s 66EA.
The Crown then referred to well-established sentencing principles. General deterrence is of prime importance in sentencing for child sexual offences, particularly when the offender is in a position of trust in relation to the victim. Denunciation of the crime was also important.
Notwithstanding the absence of a Victim Impact Statement, the court would take into account the profound and deleterious effects child sexual offences have upon victims for many years, if not the whole of their lives, relying on R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56 at [110].
The Crown submitted that the prior good character of the offender is of less significance in child sex cases, relying on R v PGM (2008) 187 A Crim R 152 at [43]-[44].
Finally, the Crown submitted that it was open to the court to make a finding of special circumstances pursuant to s 44(2) of the CSPA and to backdate the sentence to 16 October 2020.
In his oral submissions, the Crown referred to the conflict between the Crown and the offender as to the length of time the unlawful sexual relationship was maintained. The Crown conceded that the evidence would tend to support a finding supporting the period of two years and eleven months, advocated by the offender. However, the difference was not significant. What was significant was that the conduct had endured over several years.
The Crown rehearsed its submissions in respect of the objective seriousness, which was relatively consistent with the offender's submission of just below mid-range.
In relation to the fact finding exercise, the Crown submitted that the last incident which occurred on 15 October 2020 was interrupted by the victim's mother. However, the evidence supported a finding that there was skin on skin contact by the offender to the breast of the victim and what the mother observed had occurred after that incident when the offender was hugging the victim from behind.
Whilst the Crown did not rely on any comparable verdicts, it was inherent in the offence that the offending here had escalated from touching to sexual acts including digital penetration, fellatio and cunnilingus. Thus it was submitted this was a serious example of this type of offending.

The offender's written submissions

The offender by his learned counsel noted that the unlawful sexual relationship is established if the jury found two or more of the particularised sexual acts to be proven. The jury was not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence. Further, there was no requirement of "extended unanimity" amongst the jury as it did not have to agree on which two sexual acts they found to be proven. It was submitted the question for the sentencing Judge was where the offence should lie on the statutory scale, relying on R v Fitzgerald [2004] 59 NSWLR 493.
It was submitted there was nothing to suggest that Parliament intended sentencing for an offence pursuant to s 66EA to be harsher than sentencing for the same course of conduct had it crystallised into convictions for a number of representative offences, referring to R v Manners [2004] NSWCCA 181 at [21].
Counsel submitted s 66EA is capable of applying to a wide range of conduct constituting sexual offences against children. He then referred to well-established principles concerning the fact-finding process. As outlined above, the offender advocated that the period during which the offending occurred was in a range of approximately two years and eleven months. In respect of the allegation in the alternative Count 2, digital penetration, there was no evidence that it caused pain and there was a lack of any substantial detail in respect of the offending. In respect of the alleged act in the alternative Count 3, the victim had told police that the offender had taken her bra and underpants off, but in doing so he did not take her shirt or shorts off. It was submitted it was highly improbable that the offender could remove the victim's bra without removing her shirt, which raised a reasonable doubt in respect of that allegation. In respect of the incident on 15 October 2020, there was a conflict in the evidence between the victim and her mother. The victim alleged that the touching was on the inside of her bra, yet the victim's mother said nothing about hands being under the victim's top. The court would therefore have some reasonable doubt about whether some or all of the alleged incidents occurred. It was submitted that it would follow that the offender is to be sentenced for the balance of the generalised sexual acts outlined in the Crown case.
Counsel referred to Burr v R [2020] NSWCCA 282, where the Court held that an offender was not to be sentenced for uncharged conduct. The Court's assessment of the objective seriousness of the offending pursuant to s 66EA will turn in large part on the fact finding exercise, including the number and nature of the unlawful sexual acts, the maximum penalty for the unlawful sexual acts found to have been committed, the victim's age when the sexual offending began, whether physical force or coercion were utilised by an offender and the period of time over which the sexual offending was committed.
It was submitted that none of the sexual acts alleged against the offender involved the use of physical force, intimidation or any real planning.
It was conceded that the offender was in a position of trust and violated that trust by sexually assaulting the victim. It was further accepted that he stood in loco parentis to the victim and that his authority was exploited.
Having regard to all of the circumstances, it was submitted that the court would find that the offending fell into the lower range of objective seriousness, albeit at the upper end.
Counsel noted the profound and deleterious effects that sexual offending has on child victims referred to in R v Gavel (supra). Here, in the absence of a Victim Impact Statement, it was submitted the court would not find that the level of harm was an aggravating factor.
Counsel relied on the report of Ms North (Ex 1) as to the subjective circumstances to be taken into account. The offender was assessed as a low risk of self-harm but the court would take into account the adjustment disorder, mild anxiety and depression which meant any sentence would be more onerous on the offender than for the general prison population. Further, the offender's first language is Mandarin and he had limited ability to communicate in English. His ability to access courses and programs will be hindered by his poor English and for that reason the court would reduce the length of his non-parole period by finding special circumstances. The court would also take into account the impact of the COVID-19 pandemic giving rise to restrictions upon the prison population.
Counsel submitted that the offender's good character should be taken into account in extending some leniency to him. It was submitted that his good character did not assist him in the commission of the offence, pursuant to s 21A(5A) of the Crimes (Sentencing Procedure) Act 1999 ("CSPA"). It was submitted the offender should be entitled to some leniency by reason of his prior good character and absence of prior convictions, relying on Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21.
Counsel conceded that a sentence of full-time imprisonment had to be imposed, with a commencement date of 16 October 2020. It was accepted that general deterrence, denunciation and protection of the community were all relevant principles relating to cases involving child sexual abuse, referring to R v Van Ryn [2016] NSWCCA 1.
Counsel submitted that specific deterrence and protection of the community would have a lesser role to play in this case. Notwithstanding his continued denial of the offending and lack of contrition, his offending was against a single victim with whom he will have no further contact. He presented as a below average risk of reoffending because of his age, and therefore the need to protect the community was also reduced. Finally, a finding of special circumstances should be made.
In his oral submissions, counsel for the offender noted that his characterisation of the objective seriousness of the offending was very close to that of the Crown. It was submitted that the offender would be sentenced for generalised sexual acts, the frequency of which was unclear. Further, the Court would not accept there was force involved in any of the offending as an aggravating factor. For example, in relation to the act of fellatio relied on by the Crown, there was a suggestion of force which was inherent in the act. Counsel conceded that the s 5 threshold had been crossed and the offender would serve a significant period of imprisonment, however, a finding of special circumstances should be made, with which it was noted the Crown did not disagree.

The offence of maintaining an unlawful sexual relationship with a child

Before proceeding to sentence, it is important to set out the relevant parts of s 66EA of the Crimes Act, which has been in force from 1 December 2018 in the following terms: "66EA Persistent sexual abuse of a child (1) An adult who maintains an unlawful sexual relationship with a child is guilty of an offence. Maximum penalty - Imprisonment for life. (2) An unlawful sexual relationship is a relationship in which an adult engages in 2 or more unlawful sexual acts with or towards a child over any period. (3) It is immaterial that any of those unlawful sexual acts occurred outside New South Wales, so long as at least one of the unlawful sexual acts occurred in New South Wales. (4) In proceedings for an offence under this section, the prosecution - (a) is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence, and (b) is required to allege the particulars of the period of time over which the unlawful sexual relationship existed. (5) In order for the accused to be convicted of an offence under this section - (a) the jury must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed, and (b) the jury is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence, and (c) the members of the jury are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship. (6) In proceedings for an offence under this section, the judge must inform the jury of the requirements of subsection (5). (7) This section extends to a relationship that existed wholly or partly before the commencement of the relevant amendments, or the predecessor offence, if the acts engaged in by the accused were unlawful sexual acts during the period in which the relationship existed. (8) A court, when imposing a sentence for an offence under this section constituted by an unlawful sexual relationship that existed wholly or partly before the commencement of the relevant amendments, must take into account (but is not limited by) the maximum penalty for the unlawful sexual acts engaged in by the accused during the period in which the unlawful sexual relationship existed."
Since the sentence hearing, the Court of Criminal Appeal delivered its judgment in R v RB [2022] NSWCCA 142, where the court dealt with the question of how a sentencing judge is to determine facts relevant to the objective gravity of the offending after a jury has made a finding of guilt pursuant to the section. At [9], Fagan J (with whom Harrison and Wright JJ agreed) said: "The question arises because s 66EA has been enacted in such terms that a guilty verdict does not require jury unanimity regarding what sexual acts towards a child had been committed to constitute the unlawful sexual relationship. The sentencing judge who is required to assess the seriousness of the offending does not merely face a difficulty of identifying or inferring what sexual acts the jury may have found proved but must proceed upon the basis that, expressly by statute, the verdict does not entail that any finding at all with respect to any sexual act has been made unanimously by the jury."
At [24], his Honour considered the judgment of Johnson J in Burr v R (supra), which concerned sentencing under the earlier form of s 66EA that applied prior to 1 December 2018 and went on to consider a number of comparable statutory provisions and the history of the legislative enactment of s 66EA. His Honour held that the actus reus involved in the offence is the maintenance of a relationship rather than the commission of any minimum number of sexual acts.
His Honour went on to hold at [60]: "Subsections (2) and (5)(c), in combination, have the effect that each juror, individually, must be satisfied that at least two unlawful sexual acts as defined by subsection (15) were committed during the charge period. That threshold does not derogate from the necessity for the Crown to satisfy the jury, unanimously and beyond reasonable doubt, that the accused maintained a sexual relationship with the complainant child according to the ordinary understanding of the words 'maintains' and 'sexual relationship'…"
His Honour went on to state at [62]: "It is an element, indeed it is the gravamen, of the offence that multiple unlawful sexual acts must have been perpetrated not merely in isolated circumstances or sporadically but with such a degree of continuity and habituality as to constitute an ongoing association or connection with respect to sexual activity."
His Honour went on to hold (at [69]) that "…for a sentence to be passed, there have to have evidence-based findings of a tribunal of fact concerning the extent and seriousness of the offending." It is for that reason that I am required to make findings of fact beyond reasonable doubt as to the particular acts which support the jury finding of guilt for maintaining an unlawful sexual relationship.
His Honour also confirmed (at [83]) that the court was bound to follow its previous decision in Xerri v R (supra) and that notwithstanding some of the offending took place here prior to 1 December 2018, the maximum penalty of life imprisonment applied. This was not disputed by the parties.
I have therefore been careful in scrutinising the evidence at trial in coming to my findings of fact, as set out in paragraph [7] above, upon which the offender is to be sentenced.

Determination

Section 3A of the CSPA sets out the purposes of sentencing as follows: "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community."
In assessing the objective seriousness of the offending, I have taken into account that the relationship endured over a period of almost three years and that during that period, the offender on numerous occasions touched the victim on her breasts, kissed her on her breasts, performed cunnilingus, digitally penetrated her vagina, inserted his penis into her mouth and required her to perform fellatio on him. The victim was aged between 9 and 12 years and during the period of the offending the offender was aged between 39 and 42 years. I have taken into account the fact that the evidence established that the offending first occurred when the victim's mother was not present in the home and that it occurred with a frequency of one or two times per fortnight.
I further take into account that the offending escalated in 2020 when the victim moved to a bedroom upstairs in her home, adjacent to the offender's bedroom and that following her move upstairs, there was an escalation in offending involving aggravated sexual intercourse by way of digital penetration of her vagina.
All of the offending took place after the offender had formed an intimate relationship with the victim's mother and was in a position of authority over the victim. I am not satisfied that any physical force was used in respect of any of the offending, however, it still constituted pernicious offending, the objective seriousness of which fell below the mid-range for an offence pursuant to s 66EA and in the upper end of the lower range for such an offence. Pursuant to s 66EA(8), I take into account the following maximum penalties for unlawful sexual conduct committed on a child throughout the relevant period: 1. Touching and kissing the victim's breasts from 1 January 2017 to 30 November 2018, pursuant to s 61M(2) of the Crimes Act 1900, maximum penalty 10 years imprisonment with a standard non-parole period of 8 years. 2. Touching and kissing the victim's breasts from 1 December 2018 pursuant to s 66DB(a) of the Crimes Act 1900, maximum penalty 10 years imprisonment with no standard non-parole period. 3. Aggravated sexual intercourse (digital vaginal intercourse, fellatio, cunnilingus) without consent, victim under 16, pursuant to s 61J(1) of the Crimes Act 1900, maximum penalty 20 years imprisonment with a standard non-parole period of 10 years. 4. I note there was a statutory alternative relied upon by the Crown pursuant to s 66C(2) of the Crimes Act 1900, being aggravated (under authority) sexual intercourse with a child aged 10-14 years, maximum penalty 20 years with a standard non-parole period of 9 years.
I am satisfied that it was an aggravating factor pursuant to s 21A(2)(eb) of the CSPA that all of the offences were committed in the home of the victim and further pursuant to s 21A(2)(k) that the offender was in a position of trust and authority throughout the whole period of the offending, given that he was in an intimate relationship with the victim's mother, and living in the same home.
I accept that the offender was otherwise a person of good character, and I am not satisfied beyond reasonable doubt that the offender's good character was of assistance to him in the commission of the offence here so as to engage s 21A(5A) of the CSPA. The offender is therefore entitled to some leniency by reason of his prior good character and the absence of any prior conviction, however, the nature and circumstances of the offence for which the offender is being sentenced is a countervailing factor of the upmost importance, which means the offender's otherwise good character can only be a small factor to be weighed in the sentencing process (see: Ryan v The Queen per McHugh J at 278, and R v PGM (2008) 187 A Crim R 152; [2008] NSWCCA 172 at [43]).
General deterrence is important in the sentencing process for child sexual offending. To conduct an unlawful sexual relationship with a child under the age of 16 years amounts to pernicious offending involving predatory behaviour towards the most vulnerable persons in our society. In prescribing a maximum penalty of life imprisonment, Parliament has sent a clear message to the community that offences pursuant to s 66EA of the Crimes Act 1900 are of the most serious type in the criminal calendar, and a clear message must be sent to like-minded members of the community that the courts will impose condign punishment in appropriate cases.
Specific deterrence is also important in that the offender must understand the consequences if he were to reoffend.
It is clear that such offending has profound and deleterious effects on victims and I take into account what the Court of Criminal Appeal said in R v Gavel (supra) at [110]: "This court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G (2008) UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the 'long term and serious harm, both physical and psychological, which premature sexual activity can do'. The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R (2011) VSCA 157; 32 VR 361."
I have taken into account the maximum sentence of life imprisonment pursuant to s 66EA as a guidepost in the sentencing process. I have also taken into account, pursuant to s 66EA(8), the maximum penalty and standard non-parole period where relevant for each of the unlawful acts engaged in by the offender during the period that the unlawful sexual relationship was maintained.
I take into account the subjective features outlined in the report of Ms North. The offender is now 44 years of age and had a good employment record. I accept that he is a low risk of reoffending and that he has reasonable prospects of rehabilitation, notwithstanding that he has denied and continues to deny the offending.
I am satisfied pursuant to s 5 of the CSPA, having considered all possible alternatives, that no penalty other than imprisonment is appropriate in this case. I do, however, take into account that the offender has suffered and will continue to suffer hardship in custody by reason of the fact that he speaks Mandarin only, has no visitors and that the COVID-19 pandemic has necessitated restrictions on inmates including limitation of visiting rights and access to programs. I therefore make a finding of special circumstances pursuant to s 44(2) of the CSPA and intend to vary the statutory ratio between head sentence and non-parole period.
Having regard to the objective seriousness of the offending, together with the subjective features set out above, I intend to sentence the offender to a sentence to imprisonment of seven years and six months, with a non-parole period of four years commencing on 16 October 2020.

Orders

I hereby order as follows: 1. You are convicted of an offence pursuant to s 66EA of the Crimes Act 1900 in that you: Between the 1st day of January 2017 and the 16th day of October 2020, at [L] in the State of New South Wales, maintained an unlawful sexual relationship with SL, then a child under the age of sixteen years of age, namely 9 to 12 years of age, in which you engaged in the following two or more sexual acts: Kissing SL on the breasts; Kissing SL on the vagina; Touching SL on the breasts; Inserting your penis into SL's mouth; Inserting your fingers into SL's vagina. 1. I sentence you to a non-parole period of four years to commence on 16 October 2020 and to terminate on 15 October 2024. 2. The balance of term will be a period of three years and six months, commencing on 16 October 2024 and terminating on 15 April 2028.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 July 2022

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