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District Court 23 March 2018

R v DM

[2018] NSWDC 62

Sexual offences
PERSISTENT CHILD SEXUAL ABUSE PRODUCE CHILD ABUSE MATERIAL

Citation: R v DM [2018] NSWDC 62
Court: District Court of New South Wales
Date: 23 March 2018
Judge(s): Mahony SC DCJ

Background

The offender, a biological father, pleaded guilty to two offences: persistent sexual abuse of a child under section 66EA(1) of the Crimes Act 1900, and producing child abuse material under section 91H(2) of the same Act. The sexual abuse of his daughter spanned approximately 11 years, commencing when she was three or four years old and continuing until she was 14. The family had lived in Tasmania before relocating to Harrington, New South Wales in late 2014, and the offending occurred across both states.

The victim disclosed the abuse to her mother in April 2017. She was interviewed by police the next day and described abuse that had occurred for as long as she could remember. The offender was arrested at his workplace the following day, placed under caution, and made admissions during a recorded police interview. He had been in custody since his arrest on 27 April 2017.

The sentence hearing took place at Taree District Court on 15 March 2018. The court received a Statement of Agreed Facts, a Victim Impact Statement read aloud by the victim, a forensic psychology report, and the offender's recorded police interview.

Legal Issues

  • What was the appropriate objective seriousness of each offence, having regard to the nature, duration, and circumstances of the conduct?
  • What weight should be given to the offender's plea of guilty, expressions of remorse, personal history (including his own childhood sexual abuse), and prospects of rehabilitation?
  • Whether special circumstances existed under section 44(2) of the Crimes (Sentencing Procedure) Act 1999 to justify an extended parole period.
  • How should the sentences for the two offences be structured, including the degree of concurrency and the application of the totality principle?

Decision

Issue 1: Objective seriousness of producing child abuse material (Sequence 9)

The court assessed the offence of producing child abuse material at the lower end of the scale of objective seriousness for offending under section 91H(2) (at [94]). The footage, which captured the victim showering without her knowledge, was deleted shortly after it was created and was not disseminated in any way (at [94]). The court also found this offence formed part of the broader ongoing course of offending perpetrated against the victim (at [94]).

Issue 2: Objective seriousness of persistent child sexual abuse (Sequence 11)

The court placed the persistent sexual abuse offending within the mid-range of objective seriousness for section 66EA(1) (at [95]). The conduct spanned 11 years, beginning when the victim was three or four years old, and the seven particularised acts were representative of a history of almost daily inappropriate touching and fondling (at [95]). Aggravating features included grooming the victim by showing her child abuse material to normalise the conduct, commission of the offences within the victim's home, substantial emotional harm to a vulnerable child of tender years, and a gross breach of trust (at [95]). The court was careful not to double-count factors inherent in the section 66EA(1) offence itself (at [95]).

Issue 3: Subjective factors, plea discount, and remorse

The offender received a 25 percent utilitarian discount for his early plea of guilty, which was also accepted as evidence of some remorse (at [98]). The court accepted that he made admissions at the earliest opportunity, in part to spare the victim from cross-examination (at [98]). His otherwise good character was afforded no leniency given the persistent nature and duration of the offending (at [99]). Similarly, the court found that his own history of childhood sexual abuse did not reduce his moral culpability, as neither the offender himself nor the forensic psychologist drew any causal connection between that history and his offending (at [100]). The court noted that any adjustment to sentence on the basis of remorse would be modest, given the psychologist's finding that he lacked full insight into himself as a perpetrator (at [77]).

Issue 4: Special circumstances and sentence structure

The court found special circumstances existed under section 44(2) of the Crimes (Sentencing Procedure) Act 1999, to allow for an extended parole period to support the offender's rehabilitation and reintegration (at [101]). Although the court assessed the offender as below average risk for sexual recidivism, it noted that such assessments are notoriously unreliable and that considerable rehabilitation work remained necessary (at [101]). The sentence for the child abuse material offence was ordered to be served concurrently, as it formed part of the overall course of conduct and the primary offence was far more serious (at [103]).

Orders Made

  • Convicted of producing child abuse material (Sequence 9, s 91H(2) Crimes Act 1900): fixed term of 18 months imprisonment, commencing 27 April 2017 and terminating 26 October 2018, to be served concurrently.
  • Convicted of persistent sexual abuse of a child (Sequence 11, s 66EA(1) Crimes Act 1900): sentenced to a non-parole period of 7 years imprisonment, commencing 27 April 2017 and terminating 26 April 2024.
  • Balance of sentence of 3 years and 6 months to commence 27 April 2024 and terminate 26 October 2027.
  • Release to parole is not automatic and is subject to a hearing before the State Parole Authority.

Key Takeaways

  • Under section 66EA(1) of the Crimes Act 1900, an offence of persistent sexual abuse of a child carries a maximum of 25 years imprisonment and is treated as more serious than any individual constituent sexual offence; the District Court confirmed that the sentencing court must assess the totality of the conduct across all particularised acts (at [61], [95]).

  • Where particularised acts in a section 66EA charge are representative of a broader pattern of almost daily offending, the sentencing court is entitled to treat those acts as non-isolated and to sentence on that basis, without the uncharged conduct separately increasing the penalty (at [67], [95]).

  • A prior history of childhood sexual abuse suffered by the offender does not automatically reduce moral culpability; the District Court gave it no mitigatory weight where neither the offender nor the forensic psychologist established a causal connection between that history and the offending (at [100]).

  • Producing child abuse material assessed at the lower end of objective seriousness where the footage was deleted promptly, not disseminated, and formed part of a continuous course of conduct comprehended by the more serious concurrent charge (at [94], [103]).

  • Special circumstances under section 44(2) of the Crimes (Sentencing Procedure) Act 1999 may be found where an offender serving a first custodial sentence requires a substantially extended parole period to undergo specialised rehabilitation programs and to reintegrate safely into the community (at [101]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999

Cases
- ARS v R [2011] NSWCCA 266
- Cahyadi v R [2007] NSWCCA 1
- JM v R [2014] NSWCCA 297
- Langbein v R [2008] NSWCCA 8
- R v D [1997] SASC 350
- R v Fitzgerald (2004) 59 NSW LR 493
- R v Gavel [2014] NSWCCA 56