AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
4
Court of Criminal Appeal 18 March 2019

R v DP

[2019] NSWCCA 55

Sexual offences
CRIME APPEALS CROWN APPEAL AGAINST SENTENCE

Citation: R v DP [2019] NSWCCA 55
Court: Court of Criminal Appeal, New South Wales
Date: 18 March 2019
Judge(s): Simpson AJA, Fullerton J, Wilson J

Background

The respondent was convicted after a judge-alone trial of one count of aggravated sexual intercourse without consent with a child aged 11 years, contrary to s 61J(1) of the Crimes Act 1900 (NSW). The statutory circumstance of aggravation was the complainant's age (between 10 and 16 years). The respondent was 47 at the time of the offence and was, in effect, the complainant's great uncle, with the complainant regularly staying at his home for respite care and sharing a bed with him.

The prosecution case rested on DNA evidence, which established it was approximately 2.3 billion times more likely that the child born to the complainant was fathered by the respondent than by an unknown unrelated male. The complainant conceived at age 11 and gave birth at age 12, without prenatal care or support. The child was taken into State care at birth.

The District Court sentenced the respondent to 7 years' imprisonment with a non-parole period of 4 years. The maximum penalty for the offence is 20 years, with a standard non-parole period of 10 years. The Director of Public Prosecutions appealed under s 5D(1) of the Criminal Appeal Act 1912 (NSW), contending the sentence was manifestly inadequate.

  • Whether the sentencing judge erred in his assessment of the objective seriousness of the offending, including by failing to treat the resulting pregnancy as a defining circumstance of aggravation
  • Whether the sentencing judge erred by failing to make a specific finding that the complainant suffered substantial emotional harm from giving birth while herself a child, as a further statutory aggravating factor
  • Whether the overall sentence of 7 years was manifestly inadequate given the gravity of the offending

Decision

The Court of Criminal Appeal, in reasons delivered by Fullerton J (with Simpson AJA and Wilson J agreeing), upheld the Crown appeal. The Court found that the sentencing judge had made a critical error by failing to treat the complainant's pregnancy as a defining circumstance of the offending, and by failing to make a finding about the substantiality of the psychological harm she suffered as a consequence.

The sentencing judge had acknowledged the invidious position of the complainant in giving birth without support, and her subsequent traumatic separation from her child. However, the Court found that despite these acknowledgments, the judge did not give those matters adequate weight in the sentencing exercise. A pregnancy resulting from a sexual assault on a child of 11 years was, in the Court's view, a factor that substantially elevated the objective seriousness of the offending.

The Court also found that the sentence failed to adequately reflect the principles of sentencing, including general and specific deterrence, given the gravity of the offending, the absence of any remorse, and the profound physical and psychological impact on the complainant. These cumulative errors justified intervention and the substitution of a fresh sentence.

On re-sentencing, the Court applied orthodox sentencing principles and took into account all the mitigating factors found by the sentencing judge, including the respondent's age, health, and low actuarial risk of reoffending. The Crown did not seek a different finding on special circumstances, and the altered ratio between non-parole period and head sentence was maintained.

Orders Made

  • The Crown appeal is allowed.
  • The sentence imposed in the District Court is quashed.
  • The respondent is sentenced to 9 years' imprisonment, comprising a non-parole period of 5 years and 3 months commencing 24 March 2018 and expiring 23 June 2023, with a balance of term of 3 years and 9 months expiring 23 March 2027.

Key Takeaways

  • A pregnancy resulting from the sexual assault of a child constitutes a defining circumstance of aggravation that must be given substantial weight in the sentencing exercise, not merely acknowledged as a background fact.
  • Where a sentencing judge identifies serious aggravating features but then imposes a sentence that does not adequately reflect them, the Court of Criminal Appeal may find manifest inadequacy and intervene.
  • Under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentencing court is required to make an explicit finding as to whether emotional harm suffered by a victim is "substantial" before treating it as a further statutory aggravating circumstance; omitting that finding is a sentencing error.
  • Absent remorse following a conviction after trial, sentencing courts must ensure the sentence reflects the full weight of general and specific deterrence, particularly in serious child sexual assault matters.
  • In allowing a Crown appeal under s 5D(1) of the Criminal Appeal Act 1912, the Court of Criminal Appeal re-sentenced rather than merely offering guidance, consistent with the statutory requirement that intervention must produce a different sentence, not simply a statement of what the correct sentence should have been.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61J(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 44(1)
- Criminal Appeal Act 1912 (NSW), s 5D(1)

Cases:
- Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- CMB v Attorney General for New South Wales [2015] HCA 9; 256 CLR 346
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- R v Baker [2000] NSWCCA 85
- R v Barker [2016] NSWCCA 193
- R v Darwich [2018] NSWCCA 46
- R v KB; R v JL; R v RJB [2011] NSWCCA 190
- R v Phelps [2018] NSWCCA 191
- R v Pullen [2018] NSWCCA 264
- R v RD [2014] NSWCCA 103
- Yeung v R [2018] NSWCCA 52