R v JH [2025] NSWDC 314 | Case summary | Zoe

NSWNSWDC

R v JH

[2025] NSWDC 314

District Court of NSW|2025-07-15|Before: Fitzsimmons SC DCJ

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General information, not legal advice.

At a glance

Source facts

Court

District Court of NSW

Decision date

2025-07-15

Before

Fitzsimmons SC DCJ

Catchwords

CRIME — sentencing — sexual offences against children —
juvenile at the time of offending— aggravated sexual
assault —
victim <16 years — deprivation of victim’s liberty —

Source

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Catchwords

CRIME — sentencing — sexual offences against children —juvenile at the time of offending— aggravated sexualassault —victim <16 years — deprivation of victim’s liberty —infliction of actual bodily harm CRIME – sentencing —multiple victims — sexual intercourse with person above 10 years and under14 years —intentionally sexually touch child above 10 years under 16years — take or detain person with intent to commit serious indictableoffence — indecent assault of person under 16 years CRIME– sentencing — offending spanning over years — Form 1offences CRIME — sentencing — subjective considerationson sentence — age of offender — mental health – deprivedupbringing - special circumstances

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation:

(a) H96721672/2: Indecent assault person under 16 years of age contrary to s 61M(2) of the Crimes Act 1900. This offence carries a maximum penalty of 10 years’ imprisonment. The offender asks the Court to take into account one count of commit act of indecency with person under 16 years (H96721672/13) contrary to s 61N(1) of the Crimes Act 1900 when passing sentence with respect to H96721672/2. (b) H96721672**/11:** Have sexual intercourse with person aged 10 years or over and under 14 years contrary to s 66C(1) of the Crimes Act 1900. This offence carries a maximum penalty of 16 years' imprisonment. The offender asks the Court to take into account one count of indecent assault person under 16 years of age (H96721672/18) contrary to s 61M(2) of the Crimes Act 1900 when passing sentence with respect to H96721672/11. (c) H96721672**/12:** Take or detain person with intent to commit serious indictable offence contrary to s 86(1)(a1) of the Crimes Act 1900. This offence carries a maximum penalty of 14 years’ imprisonment. The offender asks the Court to take into account one count of indecent assault person under 16 years of age (H96721672/19) contrary to s 61M(2) of the Crimes Act 1900 when passing sentence with respect to H96721672/12. (d) H96721672**/14:** Aggravated sexual assault (victim under 16 years) contrary to s 61J(1) of the Crimes Act 1900. This offence carries a maximum penalty of 20 years’ imprisonment. The offender asks the Court to take into account three counts of indecent assault person under 16 years of age (H96721672/4, H96721672/5, H96721672/6, H96721672/8) contrary to s 61M(2) of the Crimes Act 1900 and one count of common assault (H96721672/8) contrary to s 61 of the Crimes Act 1900 when passing sentence with respect to H96721672/14. (e) H96721672**/15:** Aggravated sexual assault (victim under 16 years and deprivation of liberty) contrary to s 61J(1) of the Crimes Act 1900. This offence carries a maximum penalty of 20 years’ imprisonment. The offender asks the Court to take into account one count of indecent assault person under 16 years of age (H96721672/16) contrary to s 61M(2) of the Crimes Act 1900 and one count of common assault (H96721672/20) contrary to s 61 of the Crimes Act 1900 when passing sentence with respect to H96721672/15.

(a) H90662432**/9, Count 1**: Have sexual intercourse with child 10 years or older and under 14 years contrary to s 66C(1) of the Crimes Act 1900. This offence carries a maximum penalty of 16 years' imprisonment with a standard non-parole period of 7 years. The offender asks the Court to take into account two counts of intentionally sexually touch child older than 10 years and younger than 16 years (H90662432/2 and H90662432/3), contrary to s 66DB(a) of the Crimes Act 1900 when passing sentence with respect to H90662432/9. (b) H90662432/10**, Count 4****:** Have sexual intercourse with child 10 years or older and under 14 years contrary to s 66C(1) of the Crimes Act 1900. This offence carries a maximum penalty of 16 years’ imprisonment with a standard non-parole period of 7 years. The offender asks the Court to take into account one count of intentionally sexually touch child older than 10 years and younger than 16 years (H90662432/5), contrary to s 66DB(a) of the Crimes Act 1900 when passing sentence with respect to H90662432/10. (c) H90662432/12**, Count 8**: Have sexual intercourse with child 10 years or older and under 14 years contrary to s 66C(1) of the Crimes Act 1900. This offence carries a maximum penalty of 16 years' imprisonment with a standard non-parole period of 7 years. The offender asks the Court to take into account one count of intentionally sexually touch child older than 10 years and younger than 16 years (H90662432/8), contrary to s 66DB(a) of the Crimes Act 1900 when passing sentence with respect to H90662432/12. (d) Ex officio – count 10: Intentionally sexually touch child 10 years or older and under 16 years contrary to s 66DB(a) of the Crimes Act 1900. This offence carries a maximum penalty of 10 years' imprisonment. The offender asks the Court to take into account one count of intentionally sexually touch child older than 10 years and younger than 16 years (H90662432/6), contrary to s 66DB(a) of the Crimes Act 1900 when passing sentence with respect to Count 10 – ex officio.

An agreed table with the various offences and maximum penalties, with corresponding facts and Form 1 offences, is annexed to these remarks.
The maximum penalty for each of the offences acts as a sentencing guidepost or reference point and reflects the seriousness of each of the offences.
Section 54A(1) of the Crime (Sentencing Procedure) Act 1999 (CSPA), provides that the standard non parole period is that which is included in the table of provisions. Section 54A(2) provides that the standard non-parole period represents the non-parole period for an offence that falls within the middle range of objective seriousness taking into account only the objective factors affecting the relative seriousness of the offence. Section 54B(2) provides that the standard non-parole period is a matter to be taken into account when determining an appropriate sentence without limiting the matters that are otherwise required or permitted to be taken into account. The fixing of a non-parole period is only one aspect of the task when determining what is an appropriate sentence.
With respect to the offences against the victims BM and EA, the offender was 15 and 16 at the time of the offending. If a court is sentencing an offender who was under 18 years at the time a standard non-parole period offence was committed, Division 1A of the Crimes (Sentencing Procedure) Act 1999 (CSPA) does not apply pursuant to s 54D(3). The Court is to “disregard [the standard non-parole] … entirely” and even “oblique usage … entails error”: BP v R (2010) 201 A Crim R 379 at [36]; citing McGrath v R (2010) 199 A Crim R 527 at [37], [60]; AE v R [2010] NSWCCA 203 at [23]. Accordingly, the standard non parole period does not apply with respect to the offending against BM and EA. It is only applicable to the three offences contrary to s 66C(1) with respect to the offending against JJ (counts 1, 4 and 8).
The guilty plea was adhered to at sentence hearing.
Admitted on behalf of the Crown were the following:
Exhibit C1 - Signed indictment dated 3 April 2025 (H90662432)
Exhibit C2 - Form 1 (H90662432)
Exhibit C3 - Agreed Statement of Facts (H90662432)
Exhibit C4 - Victim Impact Statement of JJ
Exhibit C5 - Charge Certificate (H82442585)
Exhibit C6 - Form 1 offences (H82442585)
Exhibit C7 - Agreed Statement of Facts on Sentence for victims EA and BM (H96721672, H82442585)
Exhibit C8 - Victim Impact Statement of BM
Exhibit C9 - Charge Certificate (H96721672)
Exhibit C10 - Form 1 offences (H96721672)
Exhibit C11 - Criminal History
Exhibit C12 - Custodial History
Exhibit C13 - Charge Summary Table
Admitted on behalf of the Defendant were the following:
Exhibit O1 – Report of Dr Sharon Klamer dated 20 June 2025
Exhibit O2 – Letter of Peter Green dated 2 April 2025
Exhibit O3 – Letter from CB
Exhibit O4 – Letter from CP

Dr Klamer assessed the offender in June 2025 via audiovisual link from a correctional facility. The offender described a disadvantaged developmental period during which he was exposed to parental and caregiver instability and abuse, illicit substance abuse, frequent house relocations, financial stress and use of antisocial behaviours, and foster care placement by DOCS, during which time the offender recalled being locked in an aviary by his foster mother. He was subjected to sexual abuse by another male at a caravan park where they were residing. There were often periods where there was a lack of food in the house resulting in him and his sister stealing food from local shops to support themselves. At the age of 17, the offender’s mother passed away from an accidental drug overdose. In more recent times, since 2019, the offender has had some support through his partner and their family.
Unsurprisingly, the offender’s schooling was significantly interrupted given his family circumstances. At one stage in year 6 he recalled attending a behavioural school in Bathurst when his family relocated there. He left school prematurely during year nine and has completed various TAFE courses since. He had managed to secure and maintain stable employment over some years in the retail industry prior to his arrest for these offences. He had recently sought to engage with a psychologist.
Whilst there was some suggestion the offender may have suffered from oppositional defiant disorder and attention deficit hyperactivity disorder, there was insufficient information to enable a diagnosis of these conditions. However, the offender was diagnosed with major depressive disorder. The psychologist was satisfied that this disorder was present prior to and during the commission of the relevant offences. Dr Klamer considered that this condition likely contributed to the offending in that the offender was attempting to cope with his underlying negative feelings in maladaptive and anti-social manners.
The offender “partially" accepted responsibility for his actions, acknowledging what he did at the time was wrong. The offender demonstrated some insight into the potential impact of his offending on the victims, referring to “the possibility" of long-term effects on their mental health. The psychologist, however, observed that the offender externalised responsibility for his actions, expressing the view that they were “consenting, intimate and sexual interactions". There was further possible externalisation of responsibility to a “higher than normal testosterone level."
The psychologist concluded that the offences were committed on the background of significant developmental trauma which impacted the offender’s development of prosocial problem-solving, coping and sexual scripts. Given the offender was suffering from major depression at the time of the offending, he was likely to gain some benefit from perceived sexual and nonsexual intimacy needs when committing the offences, perceiving he was in a relationship with the victims and those victims “enjoying the behaviours also." Further, the offender’s emotional regulation deficits and underlying tolerance of antisocial behaviours were likely to be evident by reason of engaging in physical violence to control the victims on occasions and ignoring their request to cease the offending.
The offender’s underlying psychological difficulties were likely compounded by the unexpected death of his mother in 2017 from an accidental overdose. However, it should be noted that the offending with respect to two of the three victims occurred prior to his mother's death.
On the STATIC-99R assessment, the offender was assessed at above average risk for reoffending. On the Dynamic Risk Assessment, the offender was assessed as posing a moderate to high risk of reoffending. The offender’s primary risks related to deficits in intimacy skills, sexual self-regulation, general self-regulation, problem-solving and coping, developmental challenges, exposure to antisocial behaviours, cognitive distortions supportive of offending, and limited social network at the time of the offending. Future risks revolved around committing offences against female children known to him such as through family friends or his own children when feeling socially isolated, unsupported, during conflict or deterioration in his support network or due to difficulties coping with lifestyle stressors.

The offender acknowledged that he committed a series of offences against three victims and agreed with the facts tendered on the sentence hearing. The offender gave evidence that he had told the psychiatrist the truth and agreed with what was contained in the report. The offender acknowledged what he had done, claiming that he thought about it every day and that he hated what he had put the victims through. He took “full responsibility" for what he had done and wished that he could take it back. He gave evidence that there was no reason to excuse what he had done and that his offending had caused ongoing harm to each of the victims.
He agreed with the proposition that the offending occurred during a period which was not a “happy" time. The offender reiterated the history contained in the psychologist’s report including that his mother used drugs and did not provide for him or his siblings. His mother was not there as she should have been. There was a period, during his parents’ separation, when he was placed into foster care. There was one placement for a period of approximately six months to one year where he confirmed that at times he was punished by being placed into a bird aviary.
The offender’s parents fought a lot whilst together although they were not physically violent to each other. Following the parents’ separation there was minimal contact with his father although he has seen him in more recent times. His mother started using heavier drugs involving needles when with new partners. There was often no food in the home as his mother used money to fund her drug habits. He would steal food for basic sustenance from the age of 12 or 13 until 17. His mother had 2 to 3 partners and they would all use drugs. He was encouraged to steal not only by his mother but also her partners. There were a “few occasions" when the offender was on the receiving end of physical abuse including using a broom or being hit directly. Some of his mother's partners would physically assault him. There were various occasions where the family resorted to staying in a caravan and there was a period where they lived out of his mother's car.
The offender left school at year 9 and had been subject to bullying for what he referred to as “petty school stuff". After leaving school he generally stayed at home. His mother died when he was 17 as a result of illicit drug use and was told of her death whilst staying at his cousin's house. The offender stated that he did not seek any psychological support after his mother's death and felt he continued to struggle emotionally as a result.
Thereafter he lived at his aunt's house, being the location of some of the offending. This was in circumstances where his father took custody of his younger sister. He felt somewhat neglected at his aunt's house where there was not much support from her. The offender stated that he was required to clean various rooms in the house and pay board. He at times was asked for money which was never returned. He still maintained some contact with his extended biological family including his aunt and uncle, grandfather and father.
The offender referred to the relationship with his present partner and that they lived together until his incarceration. His partner and her parents continue to be supportive including regular in-person visits or via video calls. Upon his release he intends to work in retail, hopefully marry his present fiancé and create a life of his own. He accepted that he would engage in any treatment as proposed. The offender referred to periods on bail during which he was subjected to a curfew between 10:00 PM and 6:00 AM. He denied any breach of bail.
In cross-examination the offender was asked questions about the history provided to the psychologist. In response to questions from the Court the offender acknowledged that the psychologist’s report was read to him in full. He agreed that what was contained in the report was an accurate account of what he told the psychologist and that it was truthful. The offender was specifically asked questions on the history recorded in the psychologist’s report that he “partially accepted responsibility for his actions" and that in his discussions with the psychologist he externalised responsibility for his actions, having expressed the view that the conduct constituting the various offences with the young victims were “consenting, intimate and sexual interactions".
When it was suggested to the offender that the contents of the report, arising from a consultation with the offender only two weeks prior to the sentence hearing, was inconsistent with his now acceptance of full responsibility, the offender denied this was the case. He sought to explain the apparent inconsistency by suggesting that those were his feelings at the time of the offending and that he was not asked the specific questions which elicited his responses whilst giving evidence.
In circumstances where the court was cognisant of the contents of the psychologist’s report prior to the sentence hearing, the offender’s evidence was scrutinised with some care. The offender’s explanation for the apparent inconsistencies was unconvincing. The offender’s explanation was inconsistent with the contents of the psychologist’s report where the offender was expressing his attitude towards the offending at the time of the psychological assessment.
It is clear from the contents of the report that the psychologist was asking the offender about his attitude towards the offending at the time of the interview. This finding is reinforced by the psychologist’s further opinion that the offender “presented with some ongoing distortions regarding the victim’s behaviours, minimising the severity of his actions, despite some evidence of insight and acceptance of responsibility” (emphasis added). The psychologist further observed that the offender “demonstrated some ongoing distorted cognitions that allowed the offending to continue, for example, viewing that he was in a relationship with each of the victims and that they were enjoying the sexual contact, open to it continuing” (emphasis added).
Similarly, the offender’s evidence, acknowledging the certain harm occasioned to each of the victims, was somewhat inconsistent with the statements to the psychologist of the “potential" impact on the victims and the “possibility" of long-term effects on their mental health. The psychologist recorded this history, undoubtedly on information provided by the offender, in the context of the offender saying that his conduct constituting the offences against the three young girls were “consenting, intimate and sexual interactions". The author further observed that the offender considered “he was in a relationship with each of the victims and that they were enjoying the sexual contact, open to it continuing”.
Further, the offender’s evidence that there was no reason to excuse his behaviour was also somewhat inconsistent with the psychologist’s observation of the offender’s possible externalisation of responsibility by attributing his behaviour to a “higher than normal testosterone level".
The offender was cross-examined on his apparent criticism of his aunt in circumstances where she had taken him into her care and provided a home following his mother's death. Further, the offender was claiming that the bullying to which he was subjected at school had impacted upon him in circumstances where he had inflicted upon each of the victims an even more significant form of bullying.

Counsel for the offender contended that the offender’s age, particularly with respect to the offending against EA and BM, was relevant in the assessment of objective seriousness, in conjunction with or in addition to the mental health condition diagnosed by Dr Klamer. Counsel referred, in support of this submission, to the observations of the Court in BM v R [2019] NSWCCA 223, citing with approval Tepania v R [2018] NSWCCA 247 and R v AA [2017] NSWCCA 84.
I accept that with all the offences, but more so with respect to the earlier offences committed against EA (the offender being aged 14/15) that the offender’s age, in conjunction with the diagnosed major depressive disorder, should be taken into account in assessing the objective seriousness of this offending. This is particularly in the context of the offender’s age together with the opinion of Dr Klamer that the major depressive disorder contributed to the offending in that the offender was attempting to cope with underlying negative feelings in maladaptive and anti-social manners.
The victim EA was aged between 10 and 11 at the time of the offending whilst the offender was aged between 14 and 16. The victim was the friend of the offender’s younger sister. I accept that all the offences involving EA were generally unsophisticated, relatively spontaneous and did not involve any significant planning.
With respect to sequence 14 (aggravated sexual assault - victim under 16 years) the offence involved digital penetration of the victim’s vagina in circumstances where the victim specifically told the offender she did not want him to do so, given her young age (aged 10). The offender ignored the victim, placed his hands under her shorts and moved her underwear to the side. Despite the victim again saying no, the offender digitally penetrated the victim and thereafter rubbed the outside of her genitals. The offending occurred over a relatively short period and did not involve any physical violence or coercion beyond that required for commission of the offence. The victim was significantly below the age of consent of 16.
Sequence 15 (aggravated sexual assault – depriving the victim of her liberty and victim under 16) involved the offender yelling at the victim (aged 10) before locking her in his bedroom with him. The offence was one of fellatio with the victim being made to perform oral sex on the offender despite the victim expressly stating she did not wish to do so. It involved the offender holding the victim's hair and pushing her head down which he continued to do throughout the oral sex. The offending therefore involved the victim being locked in the bedroom and a degree of force being used on her to perform and continue the act. The offence involved two aggravating circumstances being age and deprivation of liberty. I find that this offence is more serious example of the range of offending contemplated by the section than sequence 14.
Sequence 11 (sexual intercourse person aged 10 years or over and under 16 years) occurred when the victim was aged 10, being at the lower end of the age range contemplated by the offence. The offending involved the offender making the victim fully undress before requiring her to perform oral sex. It involved a degree of force which made the offender almost vomit.
Sequence 2 (indecent assault person under 16 years) involved the offender taking the victim, aged 11, inside the bedroom and exposing his penis. The offender then grabbed the victim's hand placing it on his penis and held it there using his own hand before using the victim's hand to masturbate until he ejaculated. The offending involved a slight degree of force and maintaining that force during the relevant act. The victim was at the lower end of the age range contemplated by the offence.
Sequence 12 (take or detain person with intent to commit serious indictable offence) involved the offender locking the victim in his room with him and thereafter performing acts constituting the offence of indecent assault, being sequence 19 on a Form 1 for this offence. The serious indictable offence, being indecent assault on person under 16 years, is not the most serious of indictable offences contemplated by the section. I accept that the detention was relatively short and was impulsive.
I do not accept the offender’s submission that the fact the offending occurred in the home of a person (s 21A(2)(eb)) is irrelevant to the offending because the offences generally occurred in the offender’s bedroom. According to the agreed facts, the victim would regularly attend the offender’s home in circumstances where she would play with the offender’s younger sister. The victim was entitled to feel safe as a young girl attending the home of a friend where the offender resided. The fact that the offences occurred in the offender’s bedroom, as opposed to any other location in the home, does not render the particular circumstance of aggravation any less significant.
With respect to the offences committed against BM, the offender met the victim through a social media app when she was 12 years old and the offences occurred when she was between the ages of 12 and 13. The offender at the time was aged 15 to 16 years.
While messaging on of the "Snapchat" app the offender solicited from the victim sexually explicit photographs and videos, with a specific request that the victim's face be visible in the recordings. The offences for which the offender is to be sentenced occurred in the context of the offender threatening to expose the sexually explicit photographs and videos.
Considering this context in which the offending occurred, there was a degree of sophistication in the offending and involved coercion of a young girl who was even more vulnerable, not only by reason of her age, but by the fact that the offender had in his possession and threatened to expose the sexually explicit material if she did not proceed to his demands for his own sexual gratification.
Sequence 9 (aggravated sexual assault - victim under 16 years) occurred in a public area where the victim was pushed against a tree and kissed before the offender lay her on the ground, exposed his penis, and asked the victim to have sex with him. In the face of the victim's refusals, the offender made a denigrating remark before threatening to expose the sexually explicit material to her mother. The victim only agreed to perform oral sex on the victim due to the threat of the sexually explicit material being exposed. After performing oral sex for some five minutes, and in response to the victim complaining that her jaw was hurting, the offender told her to continue in circumstances where he had not ejaculated.
Despite the victim's ongoing protestations, the offender used a degree of force by pushing the victim's head further onto his penis and began thrusting in and out, causing his penis to hit the back of the victim's throat. Ultimately the offender ejaculated into the mouth of the victim and over her school uniform. The victim was aged 12 at the time, below the upper age bracket for the offence contemplated by some years. Whilst the offence involved a single aggravating circumstance (age) I am satisfied that this offence reflects more serious example of the range of offending contemplated by the section than sequence 14 involving the victim EA.
Sequence 10 (aggravated sexual assault - occasioning actual bodily harm, victim under 16) involved the offender pressuring the victim to leave her grandmother's home under threat that he would kill himself. Upon meeting in a public reserve, the offender began kissing the victim before moving his hands between her legs and moving her underwear aside. Despite the victim repeatedly telling the offender that she did not wish to engage in any sexual acts, the offender forced his fingers inside the victim’s vagina causing immediate pain. Despite the victim telling the offender to stop as it was hurting, he continued to insert his fingers into the victim’s vagina for 5 to 10 minutes to the extent that the victim started bleeding from her vagina. It was only the observation of blood that caused the offender to stop. The victim continued to bleed from the vagina causing bloodstains on the dress she was wearing.
The offence involves two circumstances of aggravation, being age and infliction of actual bodily harm. The victim was still several years under the upper age limit for the aggravating circumstance of age. The offending involved a degree of force in the face of the victim repeatedly saying no and occurred over a period of 5 to 10 minutes. I am satisfied that this offence reflects a more serious example of the range of offending contemplated by the section than sequence 14 involving the victim EA or sequence 9 above.
Sequence 11 (aggravated sexual assault - victim under 16 years) occurred in a public area in the context of the victim demanding that the explicit photos and videos of the victim be deleted by the offender. The offending occurred in circumstances where the offender promised to delete the photos if the victim performed oral sex on him and on a further condition that they would only be deleted if he caused her to ejaculate. The offending involved the victim getting on her knees and performing oral intercourse to the point of the offender ejaculating in circumstances where she believed the explicit material would be deleted. However, after ejaculating into the mouth of the victim the offender instead stated that he would not delete the photos before leaving the crying victim at the reserve.
The offences committed against JJ occurred when the victim was aged 13 and the offender was aged 18 and 19. The offender and victim were cousins, with the offender living in the home of the victim following the death of his mother. All the offending occurred in the victim's home, where the victim was entitled to feel safe, being a discreetly aggravating factor for the purpose of s 21A(2)(eb) of the CSPA. For the reasons already traversed, I do not accept that the fact that one of the offences occurred in the offender's bedroom would render this aggravating factor any less significant. I accept that none of the offences committed against JJ involved any significant degree of planning or was otherwise sophisticated or calculated.
With respect to count 1 (sexual intercourse with a child aged 10 to 14), the victim was towards the upper end of the age range contemplated by the offence. The offending involved the offender placing his right hand into the pants of the victim and digitally penetrating the victim for a period of approximately two or three minutes. At the time the victim was crying.
Count 4 (sexual intercourse with a child aged 10 to 14) similarly reflects the victim at an age towards the upper end of the age range contemplated by the offence. The offending involved the offender digitally penetrating the victim’s vagina for an undefined, although on balance, relatively short period.
Count 10 (sexually touch child between the age of 10 and 16 years) places the victim towards the middle of the age range contemplated by the section. It involved the offender, at the same time as the offence constituting count 6 (Form 1) was committed, the offender placing his hands into the victim's pants and rubbing her genital area whilst grabbing the hand of the victim and using her hand to rub against his penis. The offender then pulled the victim's pants and underpants of the victims to her mid-thigh before the offender pulled out his own penis, with the offender pushing the victim towards the lounge whilst attempting to get on top of her. The offending only stopped due to the presence of a headlight through the bedroom window.
Count 8 (sexual intercourse with a child aged 10 to 14) occurred when the victim was aged 13, being towards the upper end of the age range contemplated by the section. The offending involved offender pulling the victim onto his lap before the offender placed his hand down the front of the victim's pants, rubbing her vagina and thighs before inserting his fingers inside the victim’s vagina. The offending by all accounts was relatively short, involving the single act of digital penetration.
My assessment of objective seriousness of each of the offences committed against the various victims is reflected in the indicative sentences set our in these remarks by reference to relevant features of the offending as discussed.

I am satisfied that full weight should be given to the offender’s deprived upbringing such that his moral culpability ought to be reduced with less weight to be afforded to denunciation and general deterrence.
I further accept, consistent with my earlier remarks, the opinion of Dr Klamer that throughout the period of offending the offender was suffering from a major depressive disorder which likely contributed to his offending, being a way of coping with underlying negative feelings in maladaptive and anti-social manners. In the circumstances, I accept that the offender’s moral culpability is further reduced, again impacting the weight to be afforded to punishment and deterrence.
I accept the submission on behalf of the offender that the offending must be considered through the prism of the offender’s youth, deprivation and his mental disorder, with the offender’s youth having particular significance with the earlier offending. That said, it is well recognised that the offender’s youth is not only dependent upon biological age but rather from the perspective of an offender’s cognitive, emotional and/or psychological maturity: MW v R [2010] NSWCCA 324: Miller v R [2015] NSWCCA 86.
It is submitted that the offender has expressed genuine remorse for his offending and has demonstrated positive prospects of rehabilitation for the reasons identified at [50] of counsel’s submissions. True it is that the offender entered pleas of guilty at the earliest opportunity with respect to EA and BM, the offender has developed stable relationships with his partner and her family over some years since the last of the offending and that his behaviour during the more recent period has generally been law-abiding including compliance with strict bail conditions. These matters are all positive indicators as to the offender’s prospects of rehabilitation. I have also taken into account that the offender has, since the offending, engaged in paid employment prior to his incarceration.
However, for the reasons discussed above, the Court has some reservations in accepting the offender’s evidence of taking full responsibility for his behaviour, acknowledging the wrongdoing and recognising the certain harm occasioned to each of the victims who were subjected to significant sexual abuse during their most formative years. It is concerning that the offender continues to rationalise his offending as involving consenting intimate relations with the young victims who somehow enjoyed the sexual conduct to which they were subjected. This demonstrates continuing distorted perceptions by the offender despite having some years to reflect upon his behaviour through the perspective of an adult. This leads the Court to have some reservations as to the offender’s purported expressions of remorse and ultimately his prospects of rehabilitation.
That said I accept that in determining an appropriate sentence, given the age of the offender, the Court must still place considerable emphasis on the need to provide an opportunity for rehabilitation: KT v R [2010] NSWCCA 51.
I have considered the opinion of Dr Klamer as to the offender’s moderate to high risk of reoffending for the reasons referred to in her report. It would be hoped that the offender’s present support network will be available upon his release although, despite the best intentions of his partner and family, there is no certainty that will be the case. I find there remains a moderate risk of reoffending, noting Dr Klamer did have a history of the offender’s current support network, whilst acknowledging the evidence of the offender, his partner and his partner’s mother on the sentence hearing.
I accept the offender’s underlying mental health condition to which reference has been made will render a custodial sentence more onerous than would otherwise by the case.
The victim impact statements of JJ and BM provide a powerful insight into the impact that the offender’s abuse perpetrated on them has had. It is unsurprising in circumstances where the offender subjected the three victims to repeated and violent abuse during their most formative teenage years. The victim impact statements only serve to reinforce the permanent and untold damage inflicted upon these three young victims.
The courts have consistently recognised the harm inflicted on children that are victims of sexual abuse. In R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56 the Court observed at [110]:

The significant impact on children of the trauma of sexual abuse on them is now statutorily enshrined in s 25AA of the CSPA. The absence of a victim impact statement from EA does not equate to drawing an inference that she has not been impacted by the offending.
Following the sentence hearing, the Court invited further submissions, given the offender was a child at the time of commission of the offences against two of the victims, on whether the Court should take into account that the offender had lost the opportunity to be dealt with under the Children (Criminal Proceedings) Act 1987. This was in circumstances where no such submission was made on behalf of the offender. The Court invited the parties to consider the observations of R A Hulme AJ in BB v R [2024] NSWCCA 13 at [107] that in the circumstances of that case, not dissimilar to the present matter, the Court considered that the failure to take this issue into account was of no practical significance.
In supplementary submissions on behalf of the offender, whilst it was acknowledged that such a consideration might apply, for the reasons identified in BB, the offender disavowed any submission that the delay in prosecution had given rise to a “lost opportunity" of having the matters dealt with under the Children (Criminal Proceedings) Act 1987. Counsel identified several reasons why it is likely, absent any delay, the Court would have, in any event, dealt with the offender according to law. This included the prospect of the offender having been sentenced under two separate regimes leading to a bifurcated approach that was impractical, the offences involved serious offences which made it more likely, absent delay, that the matters would have been dealt with according to law, that if the Court was to impose multiple control orders the maximum period would be three years, militating against the matters being dealt with under the relevant provisions of the Children (Criminal Proceedings) Act, in circumstances where the offending against the first two victims occurred between the ages of 14 and 16.
I consider the offender’s concession was entirely appropriate for the reasons traversed in the supplementary submissions and is consistent with the approach of the Court in BB. However, I otherwise accept that there has been significant delay, particularly in respect of the first of the offences occurring in 2014. I have taken into account the delay, including, consistent with the offender’s submission, that he has had the opportunity to an extent to demonstrate some stability since the most recent offending.
This will be the offender’s first time in custody. Given his underlying mental health disorder, the considerable support that will be available to the offender on his release, and the ongoing need to address the underlying causes for his offending, it is appropriate that a finding of special circumstances be made such as to reduce the non-parole period and provide for an extended period in the community on parole.
I am satisfied the s 5 threshold has been crossed and no sentence other than imprisonment is appropriate with respect to each of the offences for which the offender is to be sentenced. I am satisfied this is a matter for which the Court would impose an aggregate sentence in accordance with s 53A of the Crime (Sentencing Procedure) Act. It is necessary for the Court to indicate what sentences would have otherwise been imposed.
As previously noted, the offender asks that, when passing sentence on the various offences, the Court take into account the various offences on a Form 1. Generally, they are additional offences committed during or at the time of the primary offences for which the offender is to be sentenced. The offences on the Form 1 are generally serious offences carrying 10 years’ imprisonment or more with the exception of sequence 13, being attached to sequence 2 with respect to the offence committed against EA. In determining the appropriate indicative sentences, they provide some context for the offending for which the offender is to be sentenced. The offences on the Form 1 are also relevant to issues of specific deterrence and retribution, although lesser so given the offender’s subjective case, to which reference has been made. In all the circumstances the offences on the various Forms 1 call for a very modest impact on the sentence that would otherwise be imposed, while still conscious of the need for proportionality.
With respect to sequence 14 (EA), aggravated sexual assault, and taking into account three offences of indecent assault person under 16 years and one offence of common assault contained on a Form 1, an appropriate indicative sentence is two years seven months from which is to be deducted 25% for the utilitarian value of the plea of guilty resulting in a sentence of one year 11 months seven days.
With respect to sequence 15 (EA) aggravated sexual assault, and taking into account one offence of common assault and one offence of indecent assault person under 16 years of age contained on a Form 1, an appropriate indicative sentence is three years' imprisonment from which is to be deducted 25% for the utilitarian value of the plea of guilty resulting in an indicative sentence of two years three months.
With respect to sequence 9 (BM), aggravated sexual assault, and taking into account one offence of indecent assault person under 16 years and one offence of cause a child under 14 years to make child abuse material contained on a Form 1, an appropriate indicative sentence is two years seven months from which is to be deducted 25% for the utilitarian value of the plea of guilty resulting in an indicative sentence of one year 11 months seven days.
With respect to sequence 10 (BM), aggravated sexual assault, an appropriate indicative sentence is three years' imprisonment from which is to be deducted 25% for the utilitarian value of the plea of guilty resulting in an indicative sentence of two years three months.
With respect to sequence 11 (BM), aggravated sexual assault, and taking into account one offence of indecent assault person under 16 years contained on a Form 1, an appropriate indicative sentence is two years five months from which is to be deducted 25% for the utilitarian value the plea of guilty resulting in an indicative sentence of one year nine months 23 days.
With respect to sequence 11 (EA), sexual intercourse with a person aged 10 years or over and under 14 years, and taking into account one offence of indecent assault person under 16 years contained on a Form 1, an appropriate indicative sentence is two years’ imprisonment from which is to be deducted 25% for the utilitarian value of the plea of guilty resulting in an indicative sentence of one year six months.
With respect to sequence 9 (count 1) (JJ), sexual intercourse with a person aged 10 years or over and under 14 years, and taking into account two offences of intentionally sexually touch child 10 years or older and under 16 years contained on a Form 1, an appropriate indicative sentence is two years two months from which is to be deducted 10% for the utilitarian value of the plea of guilty, resulting in an indicative sentence of one year 11 months 12 days with a non-parole period of 11 months.
With respect to sequence 10 (count 4) (JJ), sexual intercourse with a person aged over 10 and under 14, and taking into account one offence of intentionally sexually touch child 10 years or older and under 16 years contained on a Form 1, an appropriate indicative sentence is two years one month from which is to be deducted 10% for the utilitarian value of the plea of guilty resulting in an indicative sentence of one year 10 months 15 days with a non-parole period of one year.
With respect to sequence 12 (count 8) (JJ), sexual intercourse with a person aged over 10 years and under 14 years, and taking into account one offence of intentionally sexually touch child 10 years or older and under 16 years, an appropriate indicative sentence is two years one month from which is to be deducted 10% for the utilitarian value of the plea of guilty resulting in an indicative sentence of one year 10 months 15 days with a non-parole period of one year.
With respect to sequence 12 (EA), take or detain person with intent to commit serious indictable offence, and taking into account one offence of indecent assault person under 16 years contained on a Form 1, an appropriate indicative sentence is one year from which is to be deducted 25% for the utilitarian value of the plea of guilty, resulting in a sentence of nine months.
With respect to sequence 2 (EA), indecent assault person under 16 years, and taking into account one offence of commit act of indecency with person under 16 years, an appropriate indicative sentence is one year from which is to be deducted 25% for the utilitarian value of the plea of guilty resulting in a sentence of nine months.
With respect to count 10 (JJ), intentionally sexually touch child above 10 years and under 16 years, and taking into account one offence of intentionally sexually touch child 10 years or older and under 16 years contained on a Form 1, an appropriate indicative sentence is one year from which is to be deducted 10% for the utilitarian value of the plea of guilty resulting in a sentence of 10 months 24 days.
In determining the aggregate sentence, it is necessary to ensure that the overall sentence is just and appropriate in that it reflects the totality of the offending behaviour: Hall v R [2021] NSWCCA 220 at [53] - [63] (per RA Hulme J with whom Leeming JA and Campbell J agreed). The Court must be mindful of the "crushing" effect of a long total sentence which has the potential of inducing a feeling of hopelessness and destroying any expectation of a useful life after release: R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [15] - [17] per Spigelman CJ, Whealy J and Howie JJ; R v Brown [2023] NSWDC 477 at [90].
This was again referred to in RA v R [2024] NSWCCA 149, where the Court noted that “the severity of the sentence increases at a rate that is not linear in comparison with the increase in length. That is, actual imprisonment for a lengthy period is more than twice as severe as imprisonment for half that time.”
I accept that with each of the victims there is some underlying factual commonality, calling for a reasonable degree of concurrency. However, the offending for which the offender is to be sentenced to an aggregate sentence occurred with respect to three victims over a period of more than five years, demanding some accumulation.
In all the circumstances I have determined an appropriate aggregate sentence is 10 years' imprisonment with a non-parole period of six years.
The offender has been in custody solely referable to the offences for which he is to be sentenced for a total of 141 days, and accordingly the sentence is to be backdated reflecting the period of 141 days.

| Sequence | Offence | Form 1 | | Section 61J(1) Aggravated sexual assault – maximum penalty 20 years’ imprisonment | | Victim – EA | | H96721672/14 | The offender made the victim sit on top of him whilst in his bedroom. He touched her buttocks over her clothes. The offender then digitally penetrated the victim and rubbed the outside of her vagina. | H96721672/4 Section 61M(2) Indecent assault person under 16 years of age. Maximum penalty – 10 years’ imprisonment. H96721672/5 Section 61M(2) Indecent assault person under 16 years of age. Maximum penalty – 10 years’ imprisonment. H96721672/6 Section 61M(2) Indecent assault person under 16 years of age. Maximum penalty – 10 years’ imprisonment. H96721672/8 Section 61 Common assault. Maximum penalty – 2 years’ imprisonment. | | H96721672/15 | The offender locked the victim in his bedroom and made the victim perform oral sex on him. The victim said, “no I don’t want to do that.” The offender pushed her head down. This continued over the next few months. | H96721672/20 Section 61 Common assault. Maximum penalty – 2 years’ imprisonment. H96721672/16 Section 61M(2) Indecent assault person under 16 years of age. Maximum penalty – 10 years’ imprisonment. | | Victim – BM | | H82442585/9 | Whilst at Reddall Reserve East, the offender pushed the victim against a tree and began kissing her. He then lay down on the ground, exposed his penis and forced the victim to perform oral sex upon him. The offender threatened to tell the victim’s mother that she had sent sexually explicit material to him over “Snapchat” if she did not comply. | H82442585/1 Section 61M(2) Indecent assault person under 16 years of age. Maximum penalty – 10 years’ imprisonment. H82442585/12 Section 91G(1)(b) Cause a child under 14 years to make child abuse material. Maximum penalty – 14 years’ imprisonment. | | H82442585/10 | Whilst at William Carter Reserve, the offender began kissing the victim and moved her underwear to the side. The offender then digitally penetrated the victim’s vagina, causing pain and bleeding. | - | | H82442585/11 | During the same incident as sequence 6, the offender said to the victim that he would only delete the sexually explicit material of her if she performed oral sex on him until completion. The victim performed oral sex on the offender until he ejaculated. She left the reserve crying. | H82442585/6 Section 61M(2) Indecent assault person under 16 years of age. Maximum penalty – 10 years’ imprisonment. | | Section 66C(1) Sexual intercourse with person aged 10 years or over and under 14 years – maximum penalty of 16 years’ imprisonment | | Victim – EA | | H96721672/11 | Whilst at the offender’s house, the offender made the victim get completely naked and perform oral sex on him. The offender pushed the victim’s head down, which made her almost vomit. | H96721672/18 Section 61M(2) Indecent assault person under 16 years of age. Maximum penalty – 10 years’ imprisonment. | | Victim – JJ (standard non-parole period of 7 years’ applies noting the offender was over the age of 18 years at the time of offending against JJ) | | H90662432/9 Count 1 | Whilst in her bedroom, the offender used his right hand to rub the inside and outside of the victim’s vagina for approximately 2 or 3 minutes. The victim was crying. | H90662432/2 Count 2 Section 66DB(a) Intentionally sexually touch child 10 years or older and under 16 years. Maximum penalty – 10 years’ imprisonment. H90662432/3 Count 3 Section 66DB(a) Intentionally sexually touch child 10 years or older and under 16 years. Maximum penalty – 10 years’ imprisonment. | | H90662432/10 Count 4 | Whilst at the victim’s house, the offender hugged the victim and placed his hands inside her pants and rubbed her vagina. He then digitally penetrated her vagina. | H90662432/5 Count 5 Section 66DB(a) Intentionally sexually touch child 10 years or older and under 16 years. Maximum penalty – 10 years’ imprisonment. | | H90662432/12 Count 8 | Whilst at the victim’s home, the offender pulled the victim onto his lap. She could feel his penis against her buttocks. The offender then used his hand to rub her vagina and thighs down the front of her pants. He then digitally penetrated the victim’s vagina. | H90662432/8 Count 9 Section 66DB(a) Intentionally sexually touch child 10 years or older and under 16 years. Maximum penalty – 10 years’ imprisonment. | | Section 86(1)(a1) Take or detain person with intent to commit serious indictable offence – maximum penalty 14 years’ imprisonment | | Victim – EA | | H96721672/12 | The offender locked victim in his bedroom. | H96721672/19 Section 61M(2) Indecent assault person under 16 years of age. Maximum penalty – 10 years’ imprisonment. | | Section 61M(2) Indecent assault person under 16 years – maximum penalty 10 years’ imprisonment | | Victim - EA | | H96721672/2 | The offender exposed his penis to the victim in his bedroom. He forced the victim to masturbate his penis until ejaculation. The offender forced the victim to sit on top of him on his bed and moved her back and forth against his penis (clothed) whilst holding her in place. | H96721672/13 Section 61N Commit act of indecency with person under 16 years. Maximum penalty – 2 years’ imprisonment. | | Section 66DB(a) Intentionally sexually touch child 10 years or older and under 16 years – maximum penalty 10 years’ imprisonment | | Victim – JJ | | Count 10 Ex-officio | Whilst at the victim’s home (during the same incident as count 6/sequence 6), the offender used his hands to rub the victim’s vagina and forced her to rub his penis using her hand. The offender pulled the victim’s pants and underwear down to her mid-thigh and pulled his penis out of his pants. | H90662432/6 Section 66DB(a) Intentionally sexually touch child 10 years or older and under 16 years. Maximum penalty – 10 years’ imprisonment. |

R v JH

At a glance

Court

Decision date

Before

Catchwords

Source

Email me a plain-English summary of this case

Catchwords

Judgment

JUDGMENT

Agreed facts – victim EA

Sequence 4: Indecent assault person under 16 years

Sequence 5: Indecent assault person under 16 years of age

Sequence 6: Indecent assault person under 16 years of age

Sequence 14: Aggravated sexual assault (victim under 16 years)

Sequence 8: Common assault

Sequence 20: Common assault

Sequence 15: Aggravated sexual assault (depriving the victim of her liberty)

Sequence 16: Indecent assault person under 16 years of age

Sequence 11: Sexual intercourse with person aged 10 years or over and under 14 years

Sequence 18: Indecent assault person under 16 years of age

Sequence 13: Incite act of indecency – victim under 16 years

Sequence 2: Indecent assault person under 16 years of age

Sequence 12: Take or detain person with intent to commit serious indictable offence

Sequence 19: Indecent assault person under 16 years of age

Agreed facts - victim BM

Sequence 1: Aggravated indecent assault - victim under 16 years

Sequence 12: Cause a child under 14 to produce child-abuse material

Sequence 9: Aggravated sexual assault - victim under 16 years

Sequence 10: Aggravated sexual assault - occasioning actual bodily harm

Sequence 6: Aggravated indecent assault - victim under 16 years

Sequence 11: Aggravated sexual assault - victim under 16 years

Agreed facts - victim JJ

Incident one: The victim's bedroom

Count 1, sequence 9: Sexual intercourse with a child aged 10 to 14

Count 2, sequence 2: Sexually touch child 10-16 years

Count 3, sequence 3: Intentionally sexually touch child 10-16 years

Incident 2: The bathroom

Count 4, sequence 10: Sexual intercourse with a child aged 10-14

Count 5, sequence 5*:* I**ntentionally sexually touch child 10-16 years

Incident 3: Lounge room

Count 6, sequence 6*:* I**ntentionally sexually touch child 10-16 years

Count 10: I**ntentionally sexually touched child 10-16 years

Incident 4: The offender’s bedroom

Count 8, sequence 12*:* S**exual intercourse with a child 10-14 years

Count 9, sequence 8*:* Intentionally sexually touch child 10-16 years

Victim impact statement - BM

Victim impact statement – JJ

Subjective evidence

Report of Peter Green – psychologist

CP

CB

Report of Dr Sharon Klamer – consultant forensic psychologist

The offender’s evidence

Submissions and consideration

Objective seriousness

Other sentencing considerations

Orders

Annexure

Parties

Legislation Cited (2)

Cases Cited (1)

*Count 5, sequence 5**:* *I**ntentionally sexually touch child 10-16 years*

*Count 6, sequence 6**:* *I**ntentionally sexually touch child 10-16 years*

Count 10: *I**ntentionally sexually touched child 10-16 years*

*Count 8, sequence 12**:* *S**exual intercourse with a child 10-14* years

*Count 9, sequence 8**:* Intentionally sexually touch child 10-16 years