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District Court 2 September 2016

R v RD

[2016] NSWDC 200

Sexual offencesDomestic & family violence
AGGREGATE SENTENCING

Citation: R v RD [2016] NSWDC 200
Court: District Court of New South Wales
Date: 2 September 2016
Judge: Mahony SC DCJ

Background

The offender, a man in his late thirties, was in a de facto relationship with a woman who had two children from a previous marriage. The woman worked night shifts, leaving her daughter, BH (born August 2004), in the offender's care. Between January 2015 and January 2016, the offender committed repeated acts of sexual abuse against BH while she slept.

On 9 January 2016, BH's seven-year-old cousin, JC, was staying overnight. The offender sexually assaulted JC while she slept alongside BH. Both girls reported the offending the following day. DNA evidence obtained from JC supported the allegations.

The offender was arrested on 12 January 2016. He denied all allegations during a recorded police interview, claiming he had no memory of events and suggesting he may have been "set up." He was committed for sentence to the District Court at Taree in May 2016.

  • How to construct an appropriate aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 for ten offences of varying maximum penalties
  • What weight to give the standard non-parole periods for each offence category
  • The relevance of the offender's significant drug and alcohol use at the time of offending as a mitigating factor
  • The significance of the offender's mental health history, dysfunctional background, and lack of prior sexual offences
  • The adequacy of remorse and insight, given the offender's continued denial and minimisation of the offending
  • How to balance specific and general deterrence, community protection, and the prospects of rehabilitation

Decision

His Honour found the offending to be of the utmost seriousness. The abuse of BH involved four separate occasions across approximately one year, each comprising both an indecent assault and an act of sexual intercourse without consent. The offending was committed in BH's own bedroom while she slept, in a household where the offender occupied a position of trust as her mother's partner and carer. His Honour regarded the pattern of repeated offending and the gross breach of trust as significant aggravating features.

The assault on JC was treated as particularly serious. JC was only seven years old, and the offending against her occurred in the same bedroom while BH was present. The presence of DNA evidence, together with JC's immediate complaint to BH, provided strong corroboration. The s 66A offence (sexual intercourse with a child under ten) carries a maximum of 25 years imprisonment and a standard non-parole period of 15 years, reflecting the legislature's view of its gravity.

His Honour gave limited weight to the offender's methamphetamine and alcohol use as a mitigating factor. While the offender claimed the offending would not have occurred but for his drug and alcohol use, his conduct over multiple separate occasions demonstrated a persistent pattern rather than an isolated intoxicated episode. The offender's mental health history and difficult upbringing were noted as background matters but did not significantly reduce his culpability. His continued minimisation and partial denial reduced the weight given to any expression of remorse.

Applying the aggregate sentencing regime under s 53A, His Honour arrived at a total term that reflected the overall criminality of all ten offences without simply accumulating individual sentences.

Orders Made

  • Convicted of four counts of aggravated sexual intercourse without consent (s 61J(1), Crimes Act 1900) concerning BH
  • Convicted of four counts of aggravated indecent assault on a person under 16 years (s 61M(2), Crimes Act 1900) concerning BH
  • Convicted of one count of aggravated indecent assault on a person under 10 years (s 61M(2)) concerning JC
  • Convicted of one count of sexual intercourse with a person under 10 years of age (s 66A(1)) concerning JC
  • Aggregate sentence imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999: non-parole period of 4 years, commencing 18 February 2016 and expiring 17 February 2020, with a balance of term of 2 years and 6 months, expiring 17 August 2022; total term of 6 years and 6 months imprisonment

Key Takeaways

  • Aggregate sentencing under s 53A of the Crimes (Sentencing Procedure) Act 1999 requires the court to fix a single non-parole period and balance of term that reflects the totality of the offending, rather than accumulating individual sentences for each count.
  • Repeated sexual offending against a sleeping child in a domestic setting, committed by a person in a position of trust, constitutes a significant aggravating feature going to the nature and circumstances of the offences.
  • A claim of drug-induced amnesia or voluntary intoxication receives limited mitigating weight where the offending occurred on multiple separate occasions, suggesting a pattern of deliberate conduct rather than an isolated loss of control.
  • Continued denial or minimisation by an offender at the time of sentencing diminishes the weight a court may give to any purported expression of remorse.
  • Where an offender commits serious sexual offences against a child under ten, the applicable standard non-parole period under the Crimes Act 1900 reflects the legislature's assessment of the particular gravity of such offending and forms a relevant reference point in the sentencing exercise.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J(1), 61M(2), 66A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A

Cases
- JM v R (2014) ACrimR 528
- McIntosh v R [2015] NSWCCA 184
- Mill v The Queen (1988) 166 CLR 59
- RJA v R [2008] NSWCCA 137
- R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41
- R v Caldwell [2016] NSWCCA 55
- R v Engert (1995) 84 ACrimR 67
- R v Hammond [2008] NSWCCA 138
- R v Loveridge [2014] NSWCCA 120
- R v Rae [2013] NSWCCA 9
- R v Stewart [2012] NSWCCA 183
- R v T (1990) 47 ACrimR 29
- R v Van Ryn [2016] NSWCCA 1