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District Court 5 February 2010

R v Van Der Baan

[2010] NSWDC 25

Sexual offencesAssault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW SENTENCE PARTICULAR OFFENCES OFFENCES AGAINST THE PERSON SEXUAL OFFENCES RAPE AND SEXUAL ASSAULT

Citation: R v Van Der Baan [2010] NSWDC 25
Court: District Court of New South Wales
Date: 5 February 2010
Judge(s): King SC DCJ

Background

The offender pleaded guilty to seven offences: six counts of aggravated sexual assault under s 61J(1) of the Crimes Act 1900 and one count of robbery while armed with an offensive weapon under s 97(1). The offences were committed against two separate female victims on two separate occasions, in April 1995 and August 1996 respectively. The offender was not arrested and charged with these offences until January 2009, when DNA evidence linked him to the crimes.

The first set of offences involved an 18-year-old woman (BH) whom the offender lured to a parkland area near the Parramatta River under false pretences. He committed three serious sexual assaults at knifepoint before using the victim's bra to restrain her and taking her property. The second set involved a 15-year-old victim (SP), also assaulted at knifepoint. The aggravating circumstances across the offences included the use of an offensive weapon and, in the offences against SP, the victim's age.

The offender already had a significant prior criminal history involving sexual violence. While serving a sentence for an aggravated sexual assault committed in October 1996 (offence against LE), DNA linked him to a further aggravated sexual assault against a third victim (JL) in May 1996, for which he was separately sentenced in 2002 by Tupman DCJ. The current proceedings addressed the earliest two series of offences, which had only been identified through DNA analysis.

  • What sentences were appropriate for six counts of aggravated sexual assault and one count of armed robbery, having regard to the objective seriousness of each offence?
  • How should the principle of totality apply when structuring sentences across multiple offences against different victims, and in light of time already served under previous sentences?
  • What weight should the offender's prior convictions for similar sexual offences carry as an aggravating factor in sentencing?
  • Whether special circumstances existed to justify departing from the statutory ratio between the non-parole period and the balance of term for the offences against SP.

Decision

King SC DCJ treated the offences against BH as serious matters. The three sexual assaults were committed with a weapon, involved sustained degradation and physical violence, and had a significant impact on the victim. Notwithstanding that the offences were committed some 14 years before sentencing, the court did not regard the delay as warranting leniency in a way that undermined the gravity of the conduct. The plea of guilty was given weight as a mitigating factor, as was the fact that the guilty pleas were entered at an early stage in the Local Court.

For the offences against BH, the court imposed fixed terms of 6 years and 9 months on each of the three sexual assault counts, to be served concurrently, backdated to reflect time already served. The fixed terms (with no parole component) were imposed because the sentences were structured to run within the period already being served and were designed to avoid double punishment while still reflecting the seriousness of those offences.

For the offences against SP, the court imposed 12-year terms on each count (with a non-parole period of 9 years), concurrent with each other and partially concurrent with the earlier sentences. The court took into account that the victim was 15 years old, that the offender was armed with a knife, and that these offences were committed by an offender who had, by then, committed multiple sexual offences against women and girls. The prior similar offending was treated as an aggravating factor, though the court was careful to avoid punishing the offender a second time for conduct already sentenced.

The court declined to find special circumstances in relation to the SP offences. The practical result of all sentences, taken together, was a total period of imprisonment running from 23 May 2007 to 22 August 2024 (approximately 17 years and 4 months), with the offender first eligible for parole on 22 August 2021.

Orders Made

  • Robbery (armed with offensive weapon): Fixed term of 18 months, commencing 23 May 2007 and expiring 22 November 2008.
  • Aggravated sexual assault x3 (BH): Fixed term of 6 years and 9 months on each count, commencing 23 November 2007 and expiring 22 August 2014; sentences concurrent with each other.
  • Aggravated sexual assault x3 (SP): 12 years imprisonment on each count, comprising a non-parole period of 9 years commencing 23 August 2012 and expiring 22 August 2021, and a balance of term expiring 22 August 2024; sentences concurrent with each other and partially concurrent (by 2 years) with the BH sentences.
  • Eligible for release to parole on 22 August 2021.
  • Convicted on each count.

Key Takeaways

  • Prior convictions for offences of the same type are a recognised aggravating factor in sentencing, but a sentencing court must ensure there is no element of double punishment for conduct already the subject of a sentence.
  • The totality principle requires a court to assess the overall effect of all sentences imposed, particularly where an offender is already serving a lengthy term. Partial concurrency was used here to avoid a crushing total sentence while still reflecting the gravity of the individual offences.
  • Fixed terms (with no parole period) may be appropriate where sentences are structured to be served within a period already being served and a parole component would have no practical operation.
  • No special circumstances were found to arise merely from the length of the total period of imprisonment before first parole eligibility, consistent with the approach in Thomson & Houlton and related authority.
  • Where DNA evidence links an offender to historical offences many years after commission, the delay in prosecution does not, of itself, reduce the objective seriousness of the offending or require significant mitigation beyond the utilitarian value of a guilty plea.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J(1), 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- R v Hibberd [2009] NSWCCA 20
- Ibbs v The Queen (1987) 163 CLR 447
- R v Allpass (1994) 72 A Crim R 561
- R v Youkhana [2004] NSWCCA 412
- R v Qutami [2001] NSWCCA 353
- R v Woodgate [2009] NSWCCA 137
- Veen v R (No 2) (1988) 164 CLR 465
- R v MJR (2002) 54 NSWLR 368
- R v Shore (1992) 66 A Crim R 37
- R v Moon (2000) 117 A Crim R 497
- Thomson & Houlton (2000) 49 NSWLR 383
- SGJ v R [2008] NSWCCA 258