AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 21 December 2011

R v JD

[2011] NSWDC 256

Sexual offences
CRIME SENTENCING AGRRAVATED INDECENT ASSAULT HARDSHIP HEALTH OF PARENTS WHETHER EXCEPTIONAL CIRCUMSTANCES

Citation: R v JD [2011] NSWDC 256
Court: District Court of New South Wales
Date: 21 December 2011
Judge(s): Letherbarrow SC DCJ

Background

The offender, a man in his early fifties, was found guilty by jury on four counts arising from sexual offences committed against his daughter over a period spanning January 2002 to May 2006. The complainant was aged between five and ten years at the time of the offences; the offender was aged between forty-one and forty-six. All offences occurred in the family home in north-western Sydney.

Three counts were for aggravated indecent assault under s 61M(2) of the Crimes Act 1900, carrying a maximum penalty of ten years imprisonment. The circumstances of aggravation were that the complainant was under ten years of age and, for some counts, that the offender was her father. The fourth count was aggravated sexual intercourse without consent under s 61J(1) of the Crimes Act 1900, carrying a maximum of twenty years. The complainant did not report the offences until September 2010, when she was approximately fourteen and a half years old.

At the sentencing hearing, the court received evidence about the offender's personal circumstances, including his health, the health of his elderly parents, his prior good character, psychological reports, and a late-tendered report from a reverend who had provided counselling. A victim impact statement confirmed the complainant had suffered ongoing psychological harm.

  • Whether the absence of a standard non-parole period affected the sentencing approach for the relevant offences
  • The weight to be given to the offender's prior good character in the context of child sexual offences
  • Whether the health of the offender's elderly parents constituted exceptional circumstances justifying a finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999
  • Whether sentencing patterns at the time the offences were committed were relevant to the sentences to be imposed
  • The structure and totality of the sentences, including the application of concurrency and accumulation

Decision

Because no standard non-parole period applied (the evidence did not establish precisely when during the relevant periods each offence occurred), the court approached sentencing by reference to the maximum penalties and relevant sentencing patterns from the time of the offending. Consistent with established authority, the court looked to sentencing practice at the time the offences were committed rather than applying any later changes.

On the question of good character, the court found that prior good character carries little weight in sentencing for sexual offences against children. The very nature of such offending, commonly committed within a relationship of trust in the domestic setting, tends to diminish the significance of an otherwise clean record and positive standing in the community.

The offender argued that the health needs of his elderly parents (aged seventy-seven and seventy-eight) constituted exceptional circumstances warranting a greater proportion of time on parole under s 44(2) of the Crimes (Sentencing Procedure) Act 1999. The court rejected this, finding that the circumstances, while unfortunate, did not meet the threshold of "exceptional" required by the provision. The court did, however, find special circumstances on other grounds, namely the need for an extended period of supervised parole to support rehabilitation and the offender's reintegration into the community following his first term of imprisonment.

The sentences were structured with a combination of partial concurrency and accumulation to reflect both the individual seriousness of each offence and the overall criminality across the four counts. The total effective sentence was six years imprisonment with a non-parole period of four years.

Orders Made

  • Count 1 (aggravated indecent assault): total term of 2 years 6 months, non-parole period of 20 months, commencing 23 October 2011
  • Count 2 (aggravated indecent assault): total term of 3 years, non-parole period of 2 years, commencing 23 April 2012
  • Count 4 (aggravated indecent assault): total term of 18 months, non-parole period of 12 months, commencing 23 October 2012
  • Count 3 (aggravated sexual intercourse without consent): total term of 5 years, non-parole period of 3 years, commencing 23 October 2012
  • Total effective sentence: 6 years imprisonment; effective non-parole period of 4 years, with eligibility for parole from 22 October 2015
  • Sentence backdated to 23 October 2011 to account for 59 days of pre-sentence custody

Key Takeaways

  • Prior good character is of limited mitigating value in cases involving sexual offences against children, particularly where the offending occurred within a relationship of trust such as a parent-child relationship.
  • Sentencing courts must have regard to sentencing patterns that applied at the time the offences were committed, not solely contemporary patterns, where the offending is historical.
  • The hardship experienced by a third party (here, elderly parents in poor health) does not, without more, constitute exceptional circumstances sufficient to justify a finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999.
  • Special circumstances can be established on other bases, including the offender's need for extended post-release supervision to assist rehabilitation and community reintegration following a first custodial sentence.
  • Where evidence does not establish precisely when during an indictment period an offence occurred, no standard non-parole period applies, and the court must assess the appropriate sentence by reference to the maximum penalty and relevant sentencing patterns.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 61J(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases
- R v Edwards (1996) A Crim R 510
- R v Hart [1999] NSWCA 2004
- R v Alla [2004] NSWCCA 378
- R v Wood [2005] NSWCCA 233
- R v Lo, R v Ouang [2004] NSWCCA 382
- R v Capper [2000] NSWCCA 63
- R v Tobias [2001] NSWCCA 522
- Le v R [2006] NSWCCA 136
- R v Rhule (unreported, 25 July 1995, NSWCCA)
- R v Muldoon (unreported, 13 December 1990, NSWCCA)
- R v H (1983) 3 A Crim R 53
- R v JCW [2000] NSWCCA 209
- MJL v R [2007] NSWCCA 261
- R v MJR (2002) 54 NSWLR 368
- R v Moon (2000) 117 A Crim R 497
- Fisher v R (1989) 40 A Crim R 442
- Georgopolous v R [2010] NSWCCA 246
- Sivill v R [2009] NSWCCA 286
- Khoury v R [2011] NSWCCA 118
- Markarian v R (2005) 228 CLR 357
- Bonwick v R [2010] NSWCCA 177