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District Court 28 November 2008

R v DJR (2)

[2008] NSWDC 324

Sexual offences
CRIMINAL LAW SENTENCING AGGRAVATED INDECENT ASSAULT ON CHILD STANDARD NON PAROLE PERIOD EFFECT

Citation: R v DJR (2) [2008] NSWDC 324
Court: District Court of New South Wales
Date: 28 November 2008
Judge(s): Goldring DCJ

Background

A jury convicted the offender, a 58-year-old man, on three counts of aggravated indecent assault against a 10-year-old girl. The complainant was the granddaughter of the offender's wife and came into contact with the offender on family visits during the first half of 2007. Each offence occurred while the complainant was counting coins in the offender's bedroom.

On each of the three occasions, the offender pulled down the complainant's jeans and underpants and touched her naked genitals. The complainant did not immediately disclose the conduct, explaining that the offender had told her to say nothing and that, at the time, she was uncertain whether what had happened was right or wrong.

The offences came to light after the offender's wife discovered a large amount of child pornography on a shared computer. The offender had already been sentenced in the Local Court for possession of that material and was serving that sentence at the time of this hearing.

  • What sentence was appropriate for three counts of aggravated indecent assault on a child, having regard to the standard non-parole period of five years?
  • How should the standard non-parole period operate where it bears an unusually close relationship to the maximum penalty of seven years?
  • Whether the offences fell at, above, or below the mid-range of objective seriousness, and what weight to give mitigating factors including prior good character, the offender's health, and his history?
  • How should the sentences be structured to reflect the principle of totality, given the offender was already serving a sentence for the pornography offence?

Decision

Goldring DCJ identified a structural difficulty with the legislation: the standard non-parole period for this offence is five years, while the maximum penalty is only seven years. Because the maximum is reserved for the worst cases, the sentencing range in practice is compressed, leaving little room between the standard non-parole period and the appropriate sentence for moderately serious cases. The judge noted that the drafters of the legislation appear not to have fully appreciated this consequence.

Despite that difficulty, the court was required to apply the law and have regard to the standard non-parole period. Goldring DCJ found the offences were serious but fell somewhat below the mid-range of seriousness. The touching was indecent, but the complainant was not exposed to the offender's penis or required to perform any other act that would also constitute aggravated indecent assault.

The court identified several mitigating factors. The offender had no relevant prior criminal history, this was his first time in custody, and he had an unhappy and somewhat dysfunctional upbringing. The court also found special circumstances warranting a longer parole period, partly because the offender had not received medical treatment for a significant leg injury while in custody, and partly because it was his first period of imprisonment.

The three sentences were partially accumulated to reflect the separate nature of each offence while also observing the totality principle, given the offender was already serving the sentence for the pornography matter.

Orders Made

  • Count 1: Non-parole period of four years commencing 14 December 2008, expiring 13 December 2012; total term of six years expiring 13 December 2014.
  • Count 2: Non-parole period of four years commencing 14 April 2009, expiring 13 April 2013; total term of six years expiring 13 April 2015.
  • Count 3: Non-parole period of four years commencing 14 August 2009, expiring 13 August 2013; total term of six years expiring 13 August 2015.
  • Recommendation made that the offender be subjected to a full medical examination while in custody.

Key Takeaways

  • A standard non-parole period set close to the statutory maximum for an offence can create a structural sentencing difficulty, because the maximum is reserved for worst-case offending and the available range is therefore compressed. Goldring DCJ expressly noted this appeared to be an unintended consequence of the drafting.
  • Where offences of aggravated indecent assault fall below the mid-range of seriousness, a non-parole period below the five-year standard may be appropriate, provided the sentencing court gives proper reasons.
  • Special circumstances justifying a longer parole period (and therefore an adjusted ratio between non-parole period and total sentence) can arise from a combination of factors, including a first period of custody and untreated medical needs.
  • Prior good character remains a relevant mitigating factor in serious sexual assault matters, even where child pornography offences have also been established.
  • The totality principle requires that accumulated sentences, even where the structure of the standard non-parole period limits flexibility, reflect an overall sentence proportionate to the total criminality involved.

Legislation and Cases Referenced

The judgment does not cite specific legislation or cases by name. The relevant statutory framework includes the provision establishing a standard non-parole period of five years for aggravated indecent assault on a child, with a maximum penalty of seven years' imprisonment, under the applicable New South Wales criminal legislation in force at the time.