Citation: R v Deer [2014] NSWDC 24
Court: District Court of New South Wales
Date: 24 January 2014
Judge(s): Cogswell SC DCJ
Background
The offender was an adult man in his twenties who repeatedly engaged in sexual intercourse with his teenage niece over a period of more than a year in 1996 and 1997. The victim was in her early to mid-teens at the time and had developed a childhood attachment to her uncle. The offending occurred in domestic settings, including in the victim's home and later in a shared residence.
The sexual conduct occurred on many more occasions than the four charges before the court. The additional occasions were placed before the sentencing judge solely to provide context, with the court emphasising that the sentence was imposed only for the four charged offences. During the period of offending, the victim became pregnant. Under pressure from the offender, including being directed to jump from a tree to cause a miscarriage, she ultimately underwent a termination at approximately 18 weeks.
The offender was not charged until January 2013, when he was arrested following a covertly recorded conversation in which he acknowledged the conduct. He pleaded guilty to all four counts at the earliest available opportunity. At the time of sentencing he was 41 years old.
Legal Issues
- What was the objective seriousness of the four offences under s 66C(2) of the Crimes Act 1900 (NSW), and did the conduct fall within the worst category?
- Which statutory aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) applied, particularly the commission of the offence in the victim's home and the causing of substantial emotional harm?
- Whether the victim's young age, being an element of the offence itself, could be separately relied upon as an aggravating circumstance under s 21A?
- What weight should be given to the offender's guilty plea, his personal circumstances (including a dysfunctional background, limited education, and mental health and substance issues), his apparent lack of remorse, and his assessed low risk of reoffending?
- Whether special circumstances existed warranting an adjustment to the balance between non-parole period and head sentence?
Decision
Cogswell SC DCJ characterised the offending as objectively very serious. The conduct was persistent, involved a significant breach of trust by a family member in a position of authority, and caused substantial and lasting harm to the victim. The court found, however, that the offending did not fall within the absolute worst category, a finding relevant to the weight given to the maximum penalty of 10 years imprisonment per offence.
Two statutory aggravating factors under s 21A(2) were identified: the offences were committed in the victim's home, and they caused substantial emotional harm. The court declined to treat the victim's young age as a separately aggravating factor, because age is an element of the offence under s 66C(2) and therefore cannot be double-counted under the sentencing framework. The pregnancy and the offender's pressure on the victim to terminate it were treated as part of the overall context of the harm caused.
The offender received the full 25% sentencing discount available under s 53A of the Crimes (Sentencing Procedure) Act 1999 for his early guilty plea. Against this, the court noted a marked absence of genuine remorse and the offender's demonstrated disregard for the victim's wellbeing, including his conduct surrounding the pregnancy. The offender's background included a dysfunctional childhood, limited education and employment history, and ongoing drug, alcohol, and mental health difficulties, all of which were taken into account as mitigating personal circumstances without displacing the seriousness of the conduct. His prior criminal record, consisting of summary drug offences and a traffic matter, was not treated as a significant aggravating factor.
Special circumstances were found to exist, based on the offender's need for counselling and structured support upon his eventual release into the community. This justified a variation to the standard ratio between the non-parole period and the head sentence, allowing for a longer period on parole than would otherwise apply.
Orders Made
No orders were made in this decision.
Key Takeaways
- Under s 66C(2) of the Crimes Act 1900 (NSW), a victim's young age cannot be treated as a separate aggravating factor at sentencing where age is already an element of the charged offence, as doing so would constitute impermissible double-counting.
- The District Court confirmed that committing a sexual offence in the victim's home and causing substantial emotional harm are both available aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
- An early guilty plea to all charges attracted the maximum 25% sentencing discount, notwithstanding the court's findings regarding the offender's lack of genuine remorse.
- A finding of special circumstances, here grounded in the offender's need for post-release counselling and community support, can justify extending the parole period beyond the statutory default ratio.
- Contextual conduct beyond the charged offences (such as additional uncharged instances of intercourse and pressure on the victim to terminate a pregnancy) may properly inform the sentencing court's assessment of overall harm and the pattern of offending, provided the sentence is imposed only for the offences formally before the court.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 66C(2) (sexual intercourse with a child aged between 10 and 16 under authority)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(g) (aggravating factors); s 53A (guilty plea discount)
Cases:
- King v R [2010] NSWCCA 33
- R v Youkhana [2004] NSWCCA 412