Citation: R v DS [2017] NSWDC 229
Court: District Court of New South Wales
Date: 17 March 2017
Judge: Berman SC DCJ
Background
The offender was convicted by jury of having homosexual intercourse with a child under the age of ten, an offence carrying a maximum penalty of 25 years imprisonment. The offence occurred during the Christmas holidays of 1985 to 1986, when the offender, then aged 18 and a half, performed fellatio on his nine-year-old nephew while the family was gathered at the paternal grandparents' home in Rozelle.
The offender was not charged until many years after the offence occurred. He pleaded not guilty and was convicted after a short trial. Two other counts of a similar nature were also charged, but the jury could not reach a verdict on those counts and they were discharged without a verdict.
Sentencing proceeded on the single count of conviction. A central issue was whether that offence was isolated or formed part of a pattern of similar conduct.
Legal Issues
- Whether the offence on the conviction count was an isolated incident, given the jury's inability to agree on the other two counts
- Whether uncharged acts could be taken into account, and to what factual standard
- The weight to be given to the offender's age at the time, his subsequent history, and his claimed bipolar disorder as mitigating factors
- How to approach sentencing a historical offence, including the application of sentencing practices and principles that existed at the time the offence was committed
- Whether special circumstances existed to justify a non-parole period of less than three-quarters of the head sentence
Decision
Was the offence isolated? Berman SC DCJ found, beyond reasonable doubt, that the offence was not isolated. The judge noted that the jury's failure to agree on counts one and two did not preclude an independent finding that those events occurred. The inability to agree may have turned on whether the complainant correctly identified the occasion and location, rather than on whether the conduct itself took place. The court was satisfied that the conviction offence was one of a small number of similar acts of fellatio.
Objective seriousness and aggravating features. The court assessed the offending as objectively very serious. The act of fellatio was described as a particularly intimate form of sexual intercourse, and the court expressly rejected any general proposition that fellatio is less serious than penile-anal penetration. The offender held a position of trust as the complainant's uncle, and the offence occurred in the complainant's grandparents' home where the child was staying over the holidays. The harm to the complainant, while not all attributable solely to this offending, was substantial and foreseeable.
Mitigating factors. The offender's age of 18 and a half at the time was treated as relevant mitigation, on the basis that legal adulthood does not equate to full maturity. The court accepted that the offending appeared connected to the offender's sexual development. Although a psychologist raised a possible link to bipolar disorder, the court found the offender had not discharged the burden of proving on the balance of probabilities that a manic episode reduced his moral culpability. The offender's complete absence of similar conduct in the decades since was taken as strong evidence of good rehabilitation prospects, reducing the weight given to personal deterrence, though general deterrence remained of great importance.
Historical sentencing practices. The court's most significant sentencing adjustment arose from the requirement to apply sentencing practices as they existed at the time the offence was committed. This produced a materially lower sentence than current principles and practices would have yielded, particularly given that the maximum penalty for equivalent modern offences has since increased to life imprisonment and that the offender would likely have been eligible for remissions and would not have faced the three-quarter rule for non-parole periods. The court also found special circumstances, taking into account that this was the offender's first time in custody, the risk that he would serve the sentence on protection in harsher conditions, and the historical sentencing context.
Orders Made
- Head sentence of five years imprisonment, commencing 2 December 2016
- Non-parole period of two and a half years, expiring 1 June 2019, on which date the offender becomes eligible for release on parole
Key Takeaways
- A jury's failure to reach a verdict on particular counts does not prevent a sentencing court from finding, to the requisite standard, that the underlying conduct occurred when determining whether an offence was isolated or part of a pattern.
- Where an historical sexual offence is prosecuted many years after the fact, the sentencing court must apply the sentencing practices and principles that existed at the time the offence was committed, which can result in a substantially lower sentence than current law and practice would produce.
- No general rule exists that fellatio is less serious than penile-anal penetration; the court assessed the act as a particularly intimate form of sexual intercourse warranting the same objective gravity.
- A claimed link between a mental health condition and the commission of an offence will not reduce moral culpability unless the offender proves on the balance of probabilities that the condition actually operated at the time of the offending.
- A lengthy offence-free period following historical child sexual offending, with no recurrence, can support a finding of good rehabilitation prospects and reduce the emphasis placed on personal deterrence, even where the offender does not acknowledge guilt.
Legislation and Cases Referenced
Legislation:
- Sentencing Act 1989 (NSW)
- Parole of Prisoners Act 1966 (NSW)
Cases cited: No specific cases were cited in the judgment text.