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District Court 16 March 2018

R v DH

[2018] NSWDC 64

Sexual offences
MULTIPLE CHILD SEXUAL ASSAULT OFFENCES AGGREGATE SENTENCE

Citation: R v DH [2018] NSWDC 64
Court: District Court of New South Wales
Date: 16 March 2018
Judge: Mahony SC DCJ

Background

The offender was the de facto partner of the complainant's mother. Over a period of approximately seven years, beginning in 2008 when the complainant was eight years old, he committed a series of sexual offences against her. The offending escalated from indecent touching to repeated penile penetration.

The offender was committed for trial in April 2016 and initially pleaded not guilty before a jury in October 2016. That jury was discharged. On 23 August 2017, shortly before a second trial was to begin, the offender entered guilty pleas to four counts on the indictment. He also asked that four further counts be taken into account on a Form 1 (that is, as additional offences considered at sentencing without separate conviction).

The sentence hearing took place at Taree District Court in February 2018. The offender gave sworn evidence expressing remorse and apology. A psychologist's report, a victim impact statement, and the offender's custodial record were also before the court.

  • What aggregate sentence was appropriate having regard to the nature, number, and duration of the offences?
  • What weight should be given to the guilty pleas, given they were entered late in proceedings?
  • How should the court treat the offender's remorse, subjective circumstances, and prior criminal history?
  • How should the standard non-parole periods (SNPPs) for the relevant offences inform the exercise of the sentencing discretion?
  • How should the principles of totality and proportionality be applied across the four conviction counts and the Form 1 matters?

Decision

The court found that the offending was serious and sustained. It spanned roughly seven years, involved a child who was as young as eight at the outset, and occurred in domestic settings where the offender held a position of trust as the de facto partner of the complainant's mother. The most serious single incident, charged as Count 8, involved rape while the complainant's younger sibling was sleeping nearby, followed by an attempt to buy her silence with a cash offer.

On mitigation, the court accepted that the offender had demonstrated genuine remorse. A recorded conversation in which he apologised to the complainant and acknowledged his conduct was treated as corroborating the sincerity of that remorse. The psychologist's report was also taken into account. The guilty pleas attracted some discount, though the lateness of the pleas, entered on the eve of a second trial after an earlier not guilty arraignment, limited the weight they could carry.

The court applied the standard non-parole period framework as a guidepost, not a rigid formula, consistent with the approach confirmed in Muldrock v R. It also applied the principles of totality and proportionality to avoid a crushing sentence while ensuring the aggregate term reflected the full criminality across all counts and Form 1 matters.

Having weighed all aggravating and mitigating factors, Mahony SC DCJ imposed an aggregate sentence of 12 years imprisonment with a non-parole period of 9 years. The sentence commenced on 16 November 2017 to reflect time already spent in pre-sentence custody.

Orders Made

  • Conviction recorded on Count 1 (aggravated indecent assault of a person under 16, s 61M(2) Crimes Act 1900)
  • Conviction recorded on Count 4 (aggravated sexual intercourse without consent, person under 16, s 61J(1) Crimes Act 1900)
  • Conviction recorded on Count 8 (aggravated sexual assault, person under 16, s 61J(1) Crimes Act 1900)
  • Conviction recorded on Count 9 (sexual intercourse without consent, s 61I Crimes Act 1900)
  • Aggregate non-parole period of 9 years imprisonment, commencing 16 November 2017 and terminating 15 November 2026
  • Balance of sentence of 3 years, commencing 16 November 2026 and terminating 15 November 2029
  • Release to parole is not automatic; the State Parole Authority will determine release conditions, which will include restrictions on associations, place of residence, and compliance with parole officer directions

Key Takeaways

  • An aggregate sentence of 12 years with a 9-year non-parole period was imposed for four child sexual assault convictions spanning approximately seven years, with four additional offences taken into account on a Form 1.
  • Late guilty pleas, entered on the eve of a second trial after an earlier not guilty arraignment, attracted only limited mitigation credit; the timing materially constrained the discount available.
  • Genuine remorse can weigh in an offender's favour even in cases of serious and sustained offending, but it does not displace the primacy of general deterrence and the protection of children as sentencing considerations.
  • Under the approach confirmed in Muldrock v R (2011) 244 CLR 120, standard non-parole periods function as legislative guideposts informing the sentencing discretion, not as mandatory minima or starting points.
  • Where offending against a child victim occurs across multiple counts over an extended period, the principles of totality and proportionality require the court to impose an aggregate term that reflects the overall criminality without producing a disproportionate result.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 61J(1), 61M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5, s 9
- Customs Act 1901 (Cth)

Cases
- Muldrock v R (2011) 244 CLR 120
- R v Way (2004) 60 NSWLR 168
- Bao v R [2016] NSWCCA 16
- Berryman v R [2017] NSWCCA 297
- Clinton v R [2009] NSWCCA 276
- JM v R [2014] NSWCCA 297
- MLP v R [2006] NSWCCA 271
- Pham v R [2014] NSWCCA 115
- R v BJW [2000] NSWCCA 60
- R v Cahyadi [2007] NSWCCA 1
- R v Olbrich (1999) 199 CLR 270
- R v Smith [2016] NSWCCA 75
- R v Van Ryn [2016] NSWCCA 1