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District Court 8 December 2017

R v DS (No 2)

[2017] NSWDC 358

Sexual offencesAssault & violenceDomestic & family violence
CRIMINAL LAW SENTENCE AGGRAVATING FACTORS OBJECTIVE SERIOUSNESS MITIGATING FACTORS NO PRIOR RECORDED CONVICTIONS

Citation: R v DS (No 2) [2017] NSWDC 358
Court: District Court of New South Wales
Date: 8 December 2017
Judge(s): Hatzistergos DCJ

Background

Following a judge-alone trial, the offender was convicted of 21 counts of sexual intercourse without consent, one count of attempted sexual intercourse without consent, and one count of recklessly causing grievous bodily harm. The convictions arose from a series of offences committed against the offender's wife within the context of their marriage. The trial judgment is reported as R v DS (No 1) [2017] NSWDC 207.

The offences occurred after the victim falsely confessed, under sustained interrogation, to having an affair. The offender subsequently told her that she must submit to 18 "punishments" if she wanted to be forgiven and the family to remain together. The sexual offences constituted those punishments. The court found that the victim had submitted out of fear, economic dependence, and a desperate hope of preserving her family.

The grievous bodily harm offence arose from a separate incident in which the offender pursued the victim and forced her to jump from the top of a carport at their home, causing her injury. The court found the offences did not arise in isolation but formed part of a broader history of domestic violence during the marriage.

  • The appropriate sentences for 21 counts of sexual intercourse without consent (s 61I, Crimes Act 1900), one count of attempted sexual intercourse without consent (s 61P), and one count of recklessly causing grievous bodily harm (s 35)
  • The identification and weight of aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether mitigating factors, including absence of prior convictions and character evidence, applied
  • The assessment of the offender's prospects of rehabilitation and likelihood of reoffending
  • Whether remorse had been established
  • The application of the De Simoni principle (R v De Simoni (1981) 147 CLR 383) in determining the appropriate basis for sentencing
  • The structuring of sentences, including whether and how sentences should be accumulated or run concurrently

Decision

The court accepted the victim's account as honest and generally reliable, notwithstanding some inaccuracies in her recollection. It found that the offences reflected an escalation of violence and an elevated level of fear experienced by the victim, who was economically dependent on the offender and had been reluctant to report the conduct to authorities. These circumstances formed the backdrop against which objective seriousness was assessed.

Several aggravating factors were identified under s 21A of the Crimes (Sentencing Procedure) Act 1999, including that the offences occurred in the context of a domestic relationship and involved the use of threats and intimidation. The court considered the cumulative nature of the offending across 23 counts to be a significant feature of the objective gravity of the conduct.

In mitigation, the offender had no prior recorded convictions. However, the court found that good character had not been established as a mitigating factor, and that remorse had not been demonstrated. The offender's prospects of rehabilitation were described as guarded, and his likelihood of reoffending was assessed as low to medium.

The court applied established principles regarding the accumulation of sentences for multiple counts of a similar nature, drawing on authorities including Gore v R [2010] NSWCCA 330 and McLaughlin v R [2013] NSWCCA 152. The sentencing remarks addressed each count individually before arriving at an overall sentence reflecting the totality of the offending.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The District Court found that a sustained domestic campaign of sexual violence framed as "punishments," administered to a victim acting out of fear and economic dependence, attracted significant objective seriousness across all counts.
  • Absence of prior recorded convictions does not automatically establish good character as a mitigating factor; the court must be satisfied that good character is affirmatively demonstrated.
  • Remorse is not to be inferred merely from a claim of innocence or the absence of aggression; where the offender did not accept responsibility, the court held that remorse had not been established.
  • Under the De Simoni principle, a sentencing court cannot take into account, as an aggravating factor, conduct that would constitute a more serious offence than that for which the offender is being sentenced.
  • Where multiple counts of sexual intercourse without consent arise from a pattern of related offending in a domestic context, the court must structure sentences to reflect both the gravity of individual offences and the totality of the criminality involved.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 24, 53A, Div 1A Table
- Crimes Act 1900 (NSW), ss 35, 61I, 61P

Cases
- R v DS (No 1) [2017] NSWDC 207
- R v De Simoni (1981) 147 CLR 383; [1981] HCA 31
- Gore v R; Hunter v R [2010] NSWCCA 330; (2010) 208 A Crim R 353
- McLaughlin v R [2013] NSWCCA 152
- R v CTG [2017] NSWCCA 163
- Coles v R [2016] NSWCCA 32
- Sabra v R [2015] NSWCCA 38
- R v Lulham [2016] NSWCCA 287
- R v Jonson [2016] NSWCCA 286
- McCullough v R [2009] NSWCCA 94
- Aguirre v R [2010] NSWCCA 115
- R v Hibberd [2009] NSWCCA 20
- R v Mosegaard [2005] NSWCCA 361
- ZZ v R [2013] NSWCCA 83
- R v Hamid [2006] NSWCCA 302
- R v Schwabegger [1998] 4 VR 649