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District Court 6 May 2016

R v MS

[2016] NSWDC 65

Sexual offences
SENTENCE HISTORIC SEXUAL OFFENCES AGGREGATE SENTENCING

Citation: R v MS [2016] NSWDC 65
Court: District Court of New South Wales
Date: 6 May 2016
Judge: Mahony SC DCJ

Background

The offender was convicted after two separate trials of seven counts of sexual offences against two child complainants committed between 2002 and 2008 in Cooma, New South Wales. The victims were girls aged 8 to 14 years at the time of the offending. The offender was in a domestic relationship with the mother of one complainant and was a figure of trust in both children's lives.

The first indictment involved five counts relating to one complainant (LM), including one count of sexual intercourse with a child under ten years (digital penetration) and four counts of acts of indecency. The second indictment involved two counts of acts of indecency against a second complainant (CM), aged 10 to 11, on the night the McNaught Comet was visible in the sky.

At the sentencing hearing, the court received a pre-sentence report, a forensic psychology report, victim impact statements from both complainants, and evidence of the offender's deteriorating health following a stroke in August 2015. The offender maintained his denial of the offences throughout and was assessed as low risk of reoffending.

  • What sentences were appropriate for each individual count, having regard to the relevant maximum penalties and standard non-parole periods?
  • How should an aggregate sentence be constructed under section 53A of the Crimes (Sentencing Procedure) Act 1999 to reflect both the individual culpability for each offence and the totality of the criminal conduct?
  • What weight should be given to the offender's age, poor health, denial of offending, and other subjective factors in mitigation?
  • How should the court treat the fact that standard non-parole periods applied to some but not all of the counts?

Decision

The court treated each count separately in the first instance, setting indicative sentences that reflected the gravity of each offence. Count 2 on the first indictment (sexual intercourse with a child under ten, carrying a maximum of 25 years) was treated as the most serious. The court noted the significant breach of trust involved across all offences, the young age of the victims, and the fact that the offending spanned approximately six years.

On subjective factors, the offender's health decline following his stroke was acknowledged, though the court did not treat it as warranting substantial reduction in sentence. His continued denial of the offences and apparent tendency to shift blame onto the victims were noted as diminishing any mitigation that might otherwise have applied. The absence of relevant prior sexual offending was also taken into account.

Applying the totality principle, the court imposed an aggregate sentence under section 53A of the Crimes (Sentencing Procedure) Act 1999, determining that the combined indicative sentences required some accumulation but that the overall sentence must also reflect proportionality and totality. The aggregate sentence was set at 8 years imprisonment with a non-parole period of 5 years, commencing from the date the offender was taken into custody on 9 June 2015.

Orders Made

  • Conviction entered on all seven counts across both indictments, including offences under sections 61M(1), 61M(2), and 66A of the Crimes Act 1900
  • Aggregate sentence of 8 years imprisonment imposed under section 53A of the Crimes (Sentencing Procedure) Act 1999
  • Non-parole period of 5 years, commencing 9 June 2015 and expiring 8 June 2020
  • Balance of sentence (further term) of 3 years, commencing 9 June 2020 and expiring 8 June 2023
  • Release to parole not automatic; subject to determination by the State Parole Authority

Key Takeaways

  • Aggregate sentencing under section 53A of the Crimes (Sentencing Procedure) Act 1999 requires courts to set indicative sentences for each individual count before constructing an overall sentence that reflects both appropriate accumulation and the totality of the criminal conduct.
  • Where an offender's counts carry different maximum penalties and only some attract standard non-parole periods, the sentencing court must carefully calibrate the indicative sentences and the aggregate outcome to avoid double-counting or underweighting individual offences.
  • A sustained denial of guilt and conduct suggesting blame-shifting toward victims can reduce, or eliminate, mitigating weight that might otherwise attach to an offender's personal circumstances.
  • Poor health and advancing age are capable of being mitigating factors in sentencing, but the District Court's treatment here indicates they do not automatically translate into substantial sentence reductions, particularly in cases involving serious and repeated abuse of child victims.
  • Breach of trust is a significant aggravating feature in child sexual offending cases where the offender occupied a domestic or quasi-parental role in the victims' lives.

Legislation and Cases Referenced

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

Cases
- Clarkson v R (2011) VSCA 57
- Eedens v R [2009] NSWCCA 254
- GN v R [2012] NSWCCA 96
- Ibbs v R (1987) 163 CLR 447
- JM v R [2014] NSWCCA 297
- McIntosh v R [2015] NSWCCA 184
- McLaren v R [2012] NSWCCA 284
- Mill v The Queen (1988) 166 CLR 59
- MPB v R [2013] NSWCCA 213
- MRW v R [2011] NSWCCA 260
- Muldrock v R (2011) 244 CLR 120
- Pearce v R (1998) 194 CLR 610
- R v BJW (2000) ACrimR 1
- R v Cahyadi (2007) 168 A Crim R 41
- R v Caldwell [2016] NSWCCA 55
- R v Gavel [2014] NSWCCA 56
- R v Hill (unreported, 7 July 1992)
- R v JCW (2000) 112 ACrimR 466
- R v M [2002] NSWCCA 66
- R v Moon [2000] NSWCCA 354