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District Court 25 November 2013

R v Deville

[2013] NSWDC 317

Sexual offences
CRIMINAL LAW SENTENCE OFFENDER'S DYSFUNCTIONAL BACKGROUND RESULTING PREGNANCY OF COMPLAINANT

Citation: R v Deville [2013] NSWDC 317
Court: District Court of New South Wales
Date: 25 November 2013
Judge(s): Berman SC DCJ

Background

The offender was an adult male who moved into the home where the complainant, a young girl, was living. Shortly after moving in, he began a relationship with her that progressed from hugging and kissing to repeated acts of penile/vaginal sexual intercourse committed over a period spanning several years, beginning when she was 12 years old and he was 18.

Three separate offences were charged. The third and final offence occurred in May 2012, after which the complainant was taken to hospital in the early hours of the morning experiencing stomach pain and bleeding. An ultrasound confirmed she was pregnant, and she subsequently delivered a premature baby by emergency Caesarean section at an estimated 30 weeks gestation. DNA testing confirmed the offender was the father.

The offender initially denied the offences but later admitted them to the complainant's mother. He entered pleas of guilty on the day his trial was due to commence, having pleaded not guilty when first arraigned.

  • What sentence was appropriate for three offences of sexual intercourse with a child aged between 10 and 14 years?
  • What weight should be given to the offender's dysfunctional background, psychological profile, and relative youth at the time of offending?
  • What discount was appropriate for late guilty pleas?
  • Whether special circumstances existed justifying a reduction in the non-parole period relative to the head sentence, to allow for extended post-release supervision.

Decision

Berman SC DCJ found the offences were serious, involving penile/vaginal intercourse committed against a vulnerable child in her own home by a person in a trusted position. The resulting pregnancy and premature birth were identified as significant consequences affecting the complainant's life, even though the sexual intercourse on the night of the birth was found not to have caused the labour or any physical injury.

The offender's background was described as markedly dysfunctional: his parents were drug users, supervision was negligible, and several family members had served custodial sentences. Despite a psychological assessment revealing deficits in verbal reasoning, the court found nothing to suggest the offender lacked appreciation of the wrongfulness of his conduct. His expressions of remorse were noted but qualified, given indications he had attributed some responsibility to the complainant.

A 20 percent discount was applied to reflect the utilitarian benefit of the guilty pleas, notwithstanding that they were entered on the day of trial rather than at the earliest opportunity. The court determined that nothing short of full-time custody was appropriate, noting the seriousness of the offences, the need to protect children, and the importance of general deterrence. Sentences were partially accumulated to reflect that each offence caused separate harm.

Special circumstances were found to exist, warranting a reduction in the non-parole period at the expense of parole eligibility. The court's stated purpose was to ensure extended supervision upon release to support rehabilitation and reduce the risk of reoffending, including noting the offender's belief that he faced heightened personal risk in custody due to the complainant's father's occupation.

Orders Made

  • Count 2: Fixed term of 18 months imprisonment, commencing 25 November 2013.
  • Count 4: Non-parole period of 12 months commencing 25 May 2014; head sentence of 2 years.
  • Count 6: Non-parole period of 6 months commencing 25 November 2014; head sentence of 2 years.
  • Overall: Total non-parole period of 18 months; total head sentence of 3 years. Release to parole on 24 May 2015.

Key Takeaways

  • The District Court confirmed that sexual intercourse with a child aged 12 or 13 years will attract significant custodial sentences, with the maximum penalty for each offence being 16 years imprisonment.
  • A dysfunctional upbringing and psychological deficits in verbal reasoning were taken into account as background factors, but neither was accepted as explaining or diminishing the offender's appreciation of the wrongfulness of his conduct.
  • Late guilty pleas, entered on the day of trial, still attracted a utilitarian discount of approximately 20 percent, though this was less than would have been available for an earlier plea.
  • Partial accumulation of sentences was applied across the three counts to reflect the distinct harm caused by each separate offence, rather than treating the overall conduct as a single undifferentiated course of criminal behaviour.
  • Special circumstances were identified to extend the period of post-release supervision, framed not as a benefit to the offender but as a mechanism to promote rehabilitation and reduce the risk of further offending.

Legislation and Cases Referenced

Legislation:
- The offences fall under the category of sexual intercourse with a child above the age of 10 but under the age of 14 (specific provision not cited in the judgment text, but relevant to the Crimes Act 1900 (NSW)).

Cases cited: No cases were cited in the judgment text provided.