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District Court 18 June 2019

R v OA (pseudonym)

[2019] NSWDC 264

Sexual offences
CRIME SENTENCE

Citation: R v OA (pseudonym) [2019] NSWDC 264
Court: District Court of New South Wales
Date: 18 June 2019
Judge(s): Colefax SC DCJ

Background

The offender, identified by pseudonym to protect his victims' identities, appeared for sentencing on nine principal sexual offences committed against his three children over a period spanning nearly 18 years, from December 1999 to November 2017. The victims, also referred to by pseudonyms, were a daughter from a first marriage and a son and daughter from a subsequent de facto relationship. All three children were minors at the time of the offending, with some offences occurring when victims were under the age of ten.

The offences included acts of indecency, indecent assault, and sexual intercourse, committed in the context of the offender's parental relationship with each child. Following the death of his de facto partner in 2013, the offender became the sole carer for two of the three victims. A non-publication order covered the names of the victims and any information that might identify them, including the offender's own name.

In addition to the nine principal counts, the offender asked the court to take into account three further matters under Form 1 (a sentencing mechanism that allows additional related offences to be considered without separate conviction). The agreed statement of facts set out the circumstances of each offence in detail.

  • What sentences were appropriate for each of the nine principal offences, having regard to the maximum penalties, the presence or absence of standard non-parole periods, and the objective seriousness of the conduct?
  • How should the Form 1 matters affect the overall sentencing exercise?
  • Whether a standard non-parole period applied to Count 4 (indecent assault on a child under ten), given that the offending may have occurred before or after the standard non-parole period was introduced on 1 February 2003?
  • Whether special circumstances existed to justify varying the statutory ratio between the head sentence and non-parole period?
  • How the principle of totality should be applied when sentencing for multiple serious offences of this kind?

Decision

The District Court convicted the offender on all nine counts and proceeded to impose an aggregate sentence. His Honour noted the profound gravity of the offending: it was committed against the offender's own children, involved a sustained breach of parental trust, and spanned the better part of two decades. The Form 1 matters attracted meaningful additions to the relevant indicative sentences, reflecting the court's view that those accompanying acts were not merely incidental.

On Count 4, the court declined to apply the standard non-parole period of five years introduced on 1 February 2003 because the agreed facts placed the offending within a timeframe that straddled the commencement date, and the court could not be satisfied beyond reasonable doubt that the offence occurred after that date. The offender received a 25 percent discount on each indicative sentence reflecting his guilty pleas.

The court found special circumstances, warranting a variation to the standard ratio between the head sentence and the non-parole period, on the basis that the offender's prospects of rehabilitation would be enhanced by a longer period on parole. However, His Honour expressly limited the reduction so that it would not understate the objective seriousness of the offending. The Crown itself supported a modest adjustment on this basis.

Applying the principle of totality, the court declined to simply accumulate all indicative sentences and instead imposed a single aggregate term. The indicative sentences ranged from 2 years 3 months (Count 7) to 6 years (Count 3), and the court determined that meaningful accumulation would have been warranted absent the aggregate approach.

Orders Made

  • The offender was convicted of all nine principal offences.
  • An aggregate sentence of 14 years imprisonment was imposed.
  • A non-parole period of 9 years and 6 months was fixed, commencing 7 March 2018 and expiring 6 September 2027.
  • A balance of term of 4 years and 6 months was fixed, commencing 7 September 2027 and expiring 6 March 2032.
  • Non-publication orders as to the names of the victims and any identifying information, including the offender's name, were confirmed.

Key Takeaways

  • Where a sentencing court cannot determine beyond reasonable doubt on which side of a standard non-parole period commencement date an offence occurred, it will decline to apply that standard non-parole period to the offender's detriment.
  • A guilty plea discount of 25 percent was applied to each indicative sentence, reflecting the utilitarian value of the pleas across all nine counts.
  • Form 1 matters involving conduct closely connected to principal offences can attract meaningful sentence increases, particularly where the accompanying conduct is itself serious and repeated.
  • The District Court found special circumstances to extend the parole period on rehabilitation grounds, but explicitly calibrated the adjustment to avoid understating the gravity of the objective criminality.
  • Under the totality principle, an aggregate sentence is the appropriate vehicle where individual accumulation of multiple serious historical child sexual offences would produce a result disproportionate to the overall offending conduct.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 61O(1), 61O(2), 66A, 66C(3)

Cases and Other References:
- Royal Commission into Institutional Responses to Child Sexual Abuse, opening address (referenced in the judgment)