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District Court 6 April 2018

R v DER

[2018] NSWDC 98

Sexual offences
CRIMINAL LAW HISTORICAL OFFENCES VICTIMS VULNERABLE BY REASON OF AGE POSITION OF TRUST OPPORTUNISTIC NO THREATS OF VIOLENCE

Citation: R v DER [2018] NSWDC 98
Court: District Court of New South Wales
Date: 6 April 2018
Judge: Hatzistergos DCJ

Background

The offender pleaded guilty to eight historical sexual offences against four female victims, all children at the time. The offences were committed across a period spanning approximately 1968 to 1985, in and around the offender's home at Dundas, NSW. The victims were aged between 5 and 12 years at the time of the offending.

The victims were known to the offender through family and neighbourhood connections. They included his sister-in-law, several nieces, and a family friend of his children. The offending involved indecent touching, rubbing, and on one occasion masturbating in front of a child. The victims reported the conduct to police in early 2016, and the offender was arrested in December 2016.

Five offences proceeded on indictment. The remaining three were dealt with on a certificate under s 166 of the Criminal Procedure Act 1986, which had the practical effect of capping the maximum available penalty for those counts at two years imprisonment under s 168(3) of that Act.

  • Whether statutory aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 were made out, in particular whether the offender was "in company" and whether the victims were "under the offender's authority"
  • Whether the significant delay between the offending (1968 to 1985) and prosecution constituted a mitigating factor
  • What weight should be given to the guilty plea, the offender's personal circumstances, remorse, and prospects of rehabilitation
  • Whether "special circumstances" existed to justify departing from the standard non-parole period ratio under s 44 of the 1999 Act
  • The appropriate aggregate sentence under s 53A of the 1999 Act

Decision

Hatzistergos DCJ identified that the victims were rendered particularly vulnerable by their young age and the offender's position of trust as a family member or family friend. The offending was characterised as opportunistic, occurring in domestic settings where the offender had legitimate access to the children. The court found no threats of violence were used.

The Crown had pressed certain aggravating factors but ultimately did not pursue the "in company" argument under s 21A(2). His Honour found that the victims were not "under the authority" of the offender within the meaning of the sentencing legislation, drawing on the Court of Criminal Appeal's analysis in Karl Suleman v R [2009] NSWCCA 70 and Peiris v R [2014] NSWCCA 58. Accordingly, no statutory aggravating factors under s 21A(2) were formally made out, although the position of trust remained relevant to the objective seriousness of the offending.

On delay, His Honour rejected any suggestion that the lengthy gap between offending and prosecution operated in the offender's favour as a mitigating factor. The court accepted the guilty plea as a mitigating consideration and noted the offender had no prior criminal history. However, remorse was assessed as limited, and psychological reports indicated limited insight into his offending. The court assessed the likelihood of reoffending as low and the prospects of rehabilitation as good.

His Honour found special circumstances existed, justifying a variation to the standard statutory ratio between non-parole period and additional term. An aggregate sentence of four years imprisonment was imposed under s 53A of the 1999 Act, with a non-parole period of two years.

Orders Made

  • The offender was convicted on each count.
  • An aggregate term of imprisonment of four years was imposed, commencing 6 April 2018 and expiring 5 April 2022.
  • Special circumstances were found, and the statutory ratio under s 44 of the Crimes (Sentencing Procedure) Act 1999 was varied.
  • A non-parole period of two years was set, from 6 April 2018 to 5 April 2020.
  • An additional term of two years commences 6 April 2020 and expires 5 April 2022, during which the offender is eligible for parole.
  • The offender's earliest release date is 5 April 2020.

Key Takeaways

  • A position of familial or social trust, while highly relevant to the objective gravity of historical child sexual offending, does not automatically constitute the statutory aggravating factor of victims being "under the offender's authority" under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999.
  • Delay between the commission of historical offences and prosecution does not, of itself, operate as a mitigating factor in sentencing.
  • Under s 168(3) of the Criminal Procedure Act 1986, offences dealt with by way of a s 166 certificate are subject to a capped maximum penalty of two years imprisonment, regardless of the maximum applicable on indictment.
  • Special circumstances justifying departure from the standard non-parole period ratio under s 44 of the 1999 Act may be established where the offender is an elderly first-time offender with good rehabilitation prospects who requires structured supervision upon release.
  • An aggregate sentence under s 53A of the 1999 Act is available in cases involving multiple historical counts spanning different legislative regimes, allowing the court to impose a single coherent term reflecting the totality of the offending.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61E, 61M, 76, 76A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 5, 9, 12, 21A, 30, 44, 53A
- Criminal Procedure Act 1986 (NSW), ss 166, 168

Cases
- R v Pearson [2005] NSWCCA
- Karl Suleman v R [2009] NSWCCA 70
- Peiris v R [2014] NSWCCA 58
- Alesbhi v R; Esbhi v R [2018] NSWCCA 30
- R v PGM [2008] NSWCCA 44
- R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225
- R v Bednarz [2000] NSWCCA 553
- Elsobky v R [2006] NSWCCA 168
- Dipangkear v R [2010] NSWCCA 156
- Mottram v R [1989] NSWCCA 210
- AJB v R [2007] NSWCCA 51
- PWB v R [2011] NSWCCA 84
- Baines v R [2016] NSWCCA 132
- R v Hall [2017] NSWCCA 313
- R v Moon [2000] NSWCCA 534
- MC v R [2017] NSWCCA 316