Citation: R v DX (No 3) [2011] NSWDC 186
Court: District Court of New South Wales
Date: 11 October 2011
Judge(s): Cogswell SC DCJ
Background
The offender, referred to as DX to protect the identities of his victims, was a 72-year-old man sentenced for historic child sexual offences committed against his two nieces in the late 1970s and early 1980s. The victims were between approximately four and eight years old at the time of the offending. The offences occurred over a sustained period and involved a gross breach of familial trust.
The offending came to light largely because DX himself underwent a process of seeking professional help, confessed to his conduct, and ultimately made admissions to police. He pleaded guilty to all charges, though the precise factual basis of some counts was contested. That factual dispute required both victims to give evidence and be cross-examined at a disputed facts hearing before sentencing proceeded.
DX faced 15 charges in total: one count of assault with an act of indecency on a child under 16 years (under the former s 76 of the Crimes Act 1900, carrying a maximum of six years imprisonment), two counts of committing an act of indecency against the same victim (under the former s 76A, maximum two years each), and twelve further counts of committing acts of indecency against both sisters across six separate occasions (maximum two years each). The offences under ss 76 and 76A no longer appear in the legislation in their original form.
Legal Issues
- What sentences were appropriate for historic sexual offences committed against children, where the offences are no longer in their original legislative form?
- How should sentencing practice at the date of the offences be applied?
- How should the court weigh the seriousness of the offending against significant mitigating factors, including the offender's age, poor health, voluntary confession, genuine remorse, and rehabilitation?
- Whether the sentences could be suspended, given the circumstances of the offender and the nature of the offending.
- Whether conditions of parole relating to contact with children were appropriate, given the potential operation of sex offender registration legislation.
Decision
The District Court found that the most serious offence, the sexual assault under s 76, fell in the mid to high range of seriousness. The offending involved the oral penetration of a young child by an adult in a position of trust, accompanied by deliberate manipulation and grooming. The court also found that the pattern of indecent conduct occurred on multiple occasions and against two victims, compounding its gravity.
The court identified significant mitigating factors. DX was 72 years old, in poor health, and had no prior criminal history. He had voluntarily confessed to police, pleaded guilty, and expressed genuine remorse. The court found he had already substantially rehabilitated himself and that the prospects of further rehabilitation were good. It also found that re-offending was unlikely.
The sentencing exercise required the court to apply the sentencing standards in force at the time the offences were committed, consistent with the principle established in R v Moon and related authorities. The court took into account the victim impact statements from both women, which demonstrated the lasting and profound harm caused by the offending, including damaged family relationships and long-term psychological effects.
The court considered whether sentences could be suspended. Given the combination of factors, including the offender's age, health, rehabilitation, remorse, and the absence of any likelihood of reoffending, the court determined that non-custodial or suspended arrangements were appropriate for at least some of the sentences. The court also noted that DX's convictions would likely engage the sex offender registration regime, which would carry its own protective conditions, and declined to impose specific parole conditions about contact with children on that basis.
Orders Made
• Formal conviction of DX on all offences for which he was sentenced
• Release on parole ordered
• No conditions of parole imposed
• Matter to be re-listed in one to two weeks if the Crown wishes to submit on parole conditions relating to sex offender legislation
Key Takeaways
- When sentencing for historic offences that have since been removed or altered in legislation, the District Court applied the sentencing practice that existed at the date the offences were committed, consistent with established authority including R v Moon.
- A voluntary confession to police, combined with a guilty plea, genuine remorse, and demonstrated rehabilitation, carried significant mitigating weight in the sentencing exercise, even for offences of mid to high seriousness.
- Victim impact statements from both complainants formed part of the sentencing record and were treated as relevant to the court's assessment of the harm caused by the offending.
- Where an offender's convictions are likely to engage the sex offender registration regime, a sentencing court may decline to impose separate parole conditions restricting contact with children, on the basis that the registration framework operates independently.
- A sustained pattern of indecent conduct against two child victims, accompanied by deliberate grooming and manipulation, aggravated the overall seriousness of the offending notwithstanding that individual offences carried low maximum penalties.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 76 (assault with act of indecency on child under 16, as it stood at the time of the offences)
- Crimes Act 1900 (NSW), s 76A (committing an act of indecency, as it stood at the time of the offences)
- Child Sex Offenders Registration Act (NSW) (referred to in sentencing discussion)
Cases:
- R v Ellis (1986) 6 NSWLR 603
- R v Moon (2000) 117 A Crim R 497