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District Court 13 September 2016

Regina v DJH

[2016] NSWDC 211

Sexual offences
CRIMINAL LAW SENTENCING CHILD SEXUAL ASSAULT

Citation: Regina v DJH [2016] NSWDC 211
Court: District Court of New South Wales
Date: 13 September 2016
Judge(s): Lerve DCJ

Background

The offender pleaded guilty before a Magistrate on 14 October 2015 to numerous child sexual assault offences involving seven complainants. The offending spanned approximately twenty years. The victims were children at the time of each offence, and many shared a familial relationship with the offender.

The charges encompassed a range of serious sexual offending, including penile-vaginal intercourse, indecent assault, acts of indecency, and possession of child abuse material. Several charges carried standard non-parole periods. For a number of complainants, additional related offences were listed on Form 1 documents to be taken into account on sentence without a separate conviction being recorded.

The matter came before the District Court for sentencing following the committal of those guilty pleas. A non-publication order was made in respect of each victim's identity, and the name of the offender was also suppressed given his familial connection to many of the victims.

  • What aggregate sentence was appropriate across numerous charges involving seven complainants and approximately twenty years of offending?
  • How should Form 1 matters be properly taken into account in setting the sentence, consistent with the Court of Criminal Appeal's Guideline Judgment?
  • Whether a finding of special circumstances was warranted to adjust the statutory ratio between the non-parole period and the balance of term.
  • How to assess the objective seriousness of each individual offence for the purpose of determining indicative sentences, including where standard non-parole periods applied.

Decision

Lerve DCJ sentenced the offender using the aggregate sentencing mechanism under section 53A of the Crimes (Sentencing Procedure) Act 1999, setting out indicative sentences for each offence before arriving at a single combined sentence. His Honour noted that, where standard non-parole periods applied, the sentencing process involved a one-step instinctive synthesis with the maximum penalty and standard non-parole period as principal guideposts.

The offender received the full 25% utilitarian discount on each charge for his early guilty pleas. The Form 1 matters were treated as having a meaningful impact on the overall sentence, consistent with the Guideline Judgment, given both the seriousness of the conduct listed on those documents and the volume of that additional offending.

Each individual offence was assessed for objective seriousness at the time of addressing the relevant victim's facts. Specific aggravating features included the young age of victims (some under ten years), the nature and duration of acts, the use of threats or coercion, the breach of positions of trust, and the physical harm caused. His Honour declined to make a finding of special circumstances, meaning the standard statutory ratio between non-parole period and balance of term was maintained.

Orders Made

  • The offender was convicted of each offence to which he pleaded guilty.
  • An aggregate sentence of 22 years was imposed, comprising a non-parole period of 16 years and 6 months commencing 16 June 2014 and expiring 15 December 2030, followed by a balance of term of 5 years and 6 months expiring 16 June 2036.
  • No finding of special circumstances was made.
  • The offender will be eligible for release to parole at the expiration of the non-parole period, with that release recommended by the Court.

Key Takeaways

  • The District Court applied the aggregate sentencing regime under section 53A of the Crimes (Sentencing Procedure) Act 1999, setting indicative sentences for each individual charge before arriving at a single combined term across a large and complex multi-victim indictment.
  • A full 25% utilitarian discount for guilty pleas was available where pleas entered before a Magistrate were maintained in the District Court.
  • Form 1 matters must have a "meaningful impact" on the final sentence where the conduct on those documents is itself serious and the volume of additional offending is significant, consistent with the Court of Criminal Appeal's Guideline Judgment on Form 1 matters.
  • Where some charges carry standard non-parole periods and others do not, a consistent seriousness assessment scale can be applied across all charges to facilitate comparison and the construction of an aggregate sentence.
  • Declining to find special circumstances preserved the standard statutory ratio between the non-parole period and the balance of term, meaning no adjustment was made to extend the period of supervision on parole beyond what the legislation ordinarily provides.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), including ss 61E(1), 61M(2), 61N, 66C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 37, 53A
- Classification (Publications, Films and Computer Games) Enforcement Act 1995 (NSW), s 14(1)

Cases
- The Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 (Guideline Judgment on Form 1 matters)
- AH v The Queen [2015] NSWCCA 51
- R v BJW (2000) 112 A Crim R 1
- Brown v The Queen [2014] NSWCCA 215
- R v Burchell (1987) 34 A Crim R 14
- R v CMB [2014] NSWCCA 5
- R v MJR (2002) 130 A Crim R 481
- R v Muldoon (unreported, NSWCCA, 13 December 1990)
- PWB v The Queen [2011] NSWCCA 84
- R v Van Ryn [2016] NSWCCA 1
- Veen v The Queen (No 2) (1988) 164 CLR 465