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Court of Criminal Appeal 4 July 2012

R v DAJ

[2012] NSWCCA 143

Sexual offences
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE CHILD VICTIM STEP DAUGHTER OF RESPONDENT WHETHER SENTENCES MANIFESTLY INADEQUATE

Citation: R v DAJ [2012] NSWCCA 143
Court: NSW Court of Criminal Appeal
Date: 4 July 2012
Judges: McClellan CJ at CL, Hidden J, Hislop J

Background

The respondent, DAJ, was convicted after a judge-alone trial in the District Court of four counts of aggravated indecent assault and two counts of aggravated sexual intercourse without consent. The offences were committed against his step-daughter over a period of years, beginning when she was approximately nine or ten years old and ending when she was thirteen. The respondent was in his early thirties at the time of the offending.

The offences formed part of a wider pattern of abuse and occurred across multiple properties where the family lived. At sentencing, the District Court imposed an aggregate sentence of four years' imprisonment (for the sexual offences alone), with a non-parole period of two years and nine months. The respondent had also been convicted of failing to appear on bail, adding a further six months to the total sentence.

The Crown appealed, contending that the sentences imposed were manifestly inadequate given the objective gravity of the offending.

  • Whether the sentencing judge's assessment of the objective gravity of the offences was appropriate
  • Whether the sentences imposed were manifestly inadequate and warranted intervention by the Court of Criminal Appeal

Decision

Hidden J (with whom McClellan CJ at CL and Hislop J agreed) upheld the Crown appeal. The Court found that the sentences imposed in the District Court failed to reflect the objective seriousness of the offending, which involved sustained sexual abuse of a young child by a person in a position of trust.

The Court acknowledged that a degree of accumulation of sentences had already been applied in the District Court, but found that the overall sentence remained insufficient. In arriving at increased sentences, the Court took into account mitigating factors, including the respondent's personal circumstances and family ties, but found that these did not justify the relatively low sentences originally imposed.

The Court confirmed the sentences on the four aggravated indecent assault counts but substantially increased the sentences on the two counts of aggravated sexual intercourse without consent. Special circumstances were found to exist in relation to the non-parole periods on those counts, primarily because of the accumulation of sentences.

Orders Made

  • Sentences on counts 1 and 2 (aggravated indecent assault): confirmed at 2 years' imprisonment each, with a non-parole period of 18 months, commencing 14 April 2010
  • Sentences on counts 5 and 6 (aggravated indecent assault): confirmed at 2 years' imprisonment each, with a non-parole period of 18 months, commencing 14 October 2010
  • Sentence on count 4 (aggravated sexual intercourse without consent): quashed and re-sentenced to 4 years and 6 months' imprisonment, with a non-parole period of 3 years, commencing 14 April 2011
  • Sentence on count 3 (aggravated sexual intercourse without consent): increased to 5 years' imprisonment, with a non-parole period of 2 years and 9 months, commencing 14 October 2011
  • Total aggregate sentence (including failing to appear): 7 years' imprisonment, with a non-parole period of 4 years and 9 months
  • Respondent eligible for release on parole on 13 July 2014

Key Takeaways

  • The Court of Criminal Appeal confirmed that a Crown appeal on the ground of manifest inadequacy will succeed where the sentencing court's assessment of objective gravity fails to reflect the nature and duration of the offending conduct.
  • Sustained child sexual abuse by a person in a position of parental trust, committed across multiple locations and over several years, warrants significant cumulative sentences that reflect the full extent of the criminality involved.
  • Mitigating factors, including personal and family circumstances, do not override the need for sentences that adequately reflect the objective gravity of serious and repeated sexual offences against a child.
  • Special circumstances justifying a departure from the standard non-parole period ratio may be found where substantial accumulation of sentences results in a lengthy overall non-parole period, preserving an appropriate period of supervised liberty on parole.
  • In re-sentencing, the Court treated count 3 (aggravated sexual intercourse without consent) as somewhat more serious than count 4 on the facts, reflecting the principle that individual offence characteristics within the same charge type can warrant differentiated sentences.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J(1), 61M(1)
- Bail Act 1978 (NSW), s 51(1)

Cases:
- Clinton v R [2009] NSWCCA 276
- Silvano v R [2008] NSWCCA 118; 184 A Crim R 593
- Mulato v R [2006] NSWCCA 282
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120