A man who sexually assaulted his niece when he was a teenager - while suffering significant abuse himself at the hands of his own father - has had his prison sentence cut on appeal.
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The Illawarra man, who cannot be named for legal reasons, was jailed in Wollongong District Court last year for three years with a minimum of 18 months.
He had pleaded guilty to two counts of sexual intercourse with a person aged between 10 and 16 years, and one charge of attempted sexual intercourse with a person aged between 10 and 16 years, in relation to offences committed against his niece when she was aged between nine and 11 and he was in his mid-teens.
The offences occurred on two occasions, when both the offender and victim were living in the same home.
The man appealed his sentence to the Court of Criminal Appeal, arguing it was "manifestly excessive" given such factors as his dysfunctional upbringing, his young age at the time of his crimes, and delay.
Both the offender and the victim were sexually assaulted by the victim's father, who was also physically and psychologically abusive.
A report submitted to the District Court said the offender's father perpetrated regular beatings with a belt and other objects against both the children in the house and the offender's mother, who was left disabled as a result of the violence.
The offender's mother described one occasion on which the boy was beaten around the head with a cattle prod, then his father painted his head with shoe polish to cover the patches where his hair had been ripped out.
The Court of Criminal Appeal's Chief Justice Andrew Bell, Justice Richard Button and Justice Natalie Adams noted that had the offender - now aged in his 30s - been charged soon after the crimes, he would have been dealt with in the Children's Court.
However, that opportunity was lost once he turned 21 and he had to be sentenced as an adult.
Delivering the decision, Justice Adams said this limited the sentencing options available and meant rehabilitation was no longer the primary sentencing principle.
In the years since the offending against his niece, the man had committed several other crimes; none of these were of a sexual nature, but Justice Adams said this denied him the opportunity to come before the court as a person of good character.
The period of the delay also saw changes to the law that meant he could not be sentenced under the principles that applied at the time of his crimes, which would have allowed for more leniency, nor serve his sentence in the community by way of an intensive corrections order.
"It is common ground in this matter that the delay, the applicant's age at the time of the offending, and the context in which the offences occurred meant that his Honour [the sentencing judge] was faced with an extremely difficult sentencing exercise," Justice Adams said.
The justices found the sentencing judge had not erred in finding that a jail term was the only appropriate sentence, but the term he imposed did "not reflect the exceptional accumulation of subjective factors".
"It is to be accepted that the aggregate sentence is only three years' imprisonment and that a finding of special circumstances was made," Justice Adams said.
"Despite this, I am satisfied that a lesser period of imprisonment was warranted in the highly unusual circumstances of this case."
The man was re-sentenced to two years' imprisonment, dating from February 2021, with a non-parole period of 16 months.
This made him eligible for parole in early June 2022.
For 24-hour confidential sexual assault and family violence counselling, call 1800RESPECT on 1800 737 732. Lifeline provides mental health crisis support on 13 14 23. If someone is in danger, call triple-0.
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