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District Court 15 February 2013

R v MM

[2013] NSWDC 49

Sexual offencesDomestic & family violence
CRIMINAL LAW SENTENCE AGGRAVATED INDECENT ASSAULT COMPLAINANT UNDER AUTHORITY OF OFFENDER BREACH OF TRUST

Citation: R v MM [2013] NSWDC 49
Court: District Court of New South Wales
Date: 15 February 2013
Judge(s): Berman SC DCJ

Background

The offender, a father in his early fifties, was sentenced for two counts of aggravated indecent assault against his daughter, committed when she was aged between 12 and 14. The charges were described as representative, covering a wider course of repeated conduct that occurred in the complainant's bedroom late at night over an extended period.

The offending came to light after the complainant's mother died by suicide in March 2011. Following her mother's death, the complainant moved out of the family home and later disclosed the abuse to police. At police suggestion, the complainant engaged her father in a Facebook conversation in which he made generalised admissions to the conduct she had described.

The offender pleaded guilty on the first day of trial, rather than at an early stage of proceedings. He had no prior criminal history, had ceased the offending voluntarily before the abuse was reported, and held long-term responsible employment.

  • What sentence was appropriate for two counts of aggravated indecent assault under s 61M(1) of the Crimes Act, where the circumstance of aggravation was that the complainant was under the authority of the offender?
  • What weight should be given to the utilitarian value of a guilty plea entered on the first day of trial?
  • Whether different discount levels applied to the two counts, given count 2 was substituted from a more serious charge shortly before the plea was entered.
  • Whether special circumstances justified a departure from the standard non-parole period.
  • How to structure partial accumulation of sentences across two counts without double-counting.

Decision

Berman SC DCJ characterised the offending as a severe breach of trust, noting that the complainant was entitled to look to her father for protection rather than abuse. The circumstance of aggravation relied upon by the Crown was that the complainant was under the authority of the offender at the relevant times. The court declined to treat the complainant's age (under 16) as a further aggravating feature, because the statutory regime applicable across the period covered by the indictment was uncertain and the age factor would have added little to the underlying gravity in any event.

The late guilty pleas attracted a more limited utilitarian discount. However, the court accepted that the pleas served an important purpose beyond their utilitarian value: they demonstrated remorse, spared the complainant from giving evidence, and validated her account. Defence counsel accepted that no separate, higher discount was warranted for count 2, despite it having been substituted from a more serious charge only shortly before the plea.

The court found special circumstances justifying a longer-than-standard parole period, noting primarily that this was the offender's first time in custody. The court also identified positive rehabilitation prospects, based on the fact that the offender had voluntarily stopped the offending before any police involvement. The court emphasised, however, that general deterrence was of crucial importance given the serious harm these offences cause, and that a custodial sentence was unavoidable.

Partial accumulation of the two sentences was ordered. The court was careful to avoid double-counting when structuring the overall sentence, recognising that the charges were representative rather than isolated incidents, but limiting accumulation to reflect the existence of two distinct offences.

Orders Made

  • Count 1: non-parole period of 2 years commencing 15 February 2013; head sentence of 4 years.
  • Count 2: non-parole period of 2 years commencing 15 August 2013; head sentence of 4 years.
  • Overall effective sentence: non-parole period of 2 years and 6 months; head sentence of 4 years and 6 months.
  • Eligible for release to parole on 14 August 2015.

Key Takeaways

  • A father's repeated sexual abuse of his daughter constituted one of the most serious forms of breach of trust possible, a factor the District Court treated as central to the sentencing exercise.
  • Where representative charges are used, the offender does not receive the benefit of being treated as having committed only isolated acts of criminality, even though he is sentenced specifically for the conduct covered by the charged offences.
  • Voluntary cessation of offending prior to detection is a relevant factor in assessing rehabilitation prospects, and may support a finding of special circumstances warranting adjustment to the non-parole period.
  • The utilitarian value of a late guilty plea may be modest, but the plea can still carry significant weight in sentencing if it spares the complainant from giving evidence and amounts to a genuine acceptance of responsibility.
  • Under s 61M(1) of the Crimes Act, the maximum penalty of 7 years and a standard non-parole period of 5 years signal the seriousness with which Parliament and the courts treat aggravated indecent assault, particularly where the victim is under the authority of the offender.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), s 61M(1) (aggravated indecent assault)

Cases:
- No specific cases were cited by the court in the judgment text provided. The court noted, in general terms, guidance from the Court of Criminal Appeal to the effect that no two sentencing cases are alike, and referred to a comparative sentencing table from the Public Defender's website.