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District Court 16 September 2019

R v SR

[2019] NSWDC 479

Sexual offences
CRIMINAL SENTENCE SEXUAL ASSAULT ON CHILD INDECENT ASSAULT ON CHILD ACT OF INDECENCY

Citation: R v SR [2019] NSWDC 479
Court: District Court of New South Wales
Date: 16 September 2019
Judge(s): Lerve DCJ

Background

The offender was convicted after a contested trial of 21 offences of child sexual abuse committed against his four nieces. The offences spanned roughly a decade, from 2000 to 2012, and included sexual intercourse with children under 10, attempted sexual intercourse with children under 10, indecent assault, and acts of indecency. Several of the most serious offences involved the offender acting in a position of authority over the victims, which attracted a maximum penalty of life imprisonment under the relevant provisions of the Crimes Act 1900.

The offender pleaded not guilty to all charges and was found guilty following a jury trial. The trial itself involved contested tendency evidence, and proceedings were delayed pending the High Court's reasons in McPhillamy v The Queen [2018] HCA 52. Sentencing reasons were delivered on 16 September 2019, with the offender having been in continuous custody since 7 September 2017.

Because the offences involved a familial relationship, the court suppressed identifying information and initialised the offender's name. The victims are similarly identified only by initials throughout the judgment.

  • What aggregate sentence was appropriate for 21 offences of child sexual abuse involving four victims over approximately 12 years?
  • How should the objective seriousness of each individual offence be assessed, given the variety of offence types and the ages of the victims at the relevant times?
  • What weight should be given to the standard non-parole periods applicable to several of the offences?
  • Whether, and to what extent, the absence of aggravating features (such as physical violence or threats) could operate to mitigate objective seriousness.

Decision

Lerve DCJ assessed the objective seriousness of each offence individually before arriving at an aggregate sentence. His Honour applied the established principle that there is no hierarchy of types of sexual intercourse for the purposes of assessing seriousness; the assessment must be made by reference to the totality of the facts and circumstances of each individual offence. The court also confirmed that a younger victim generally warrants a finding of greater objective seriousness.

On the question of mitigation, the court applied the well-settled principle, drawn from cases including Saddler v R and Mills v R, that the absence of an aggravating factor does not itself constitute a mitigating factor. The fact that an offence could have been worse does not make what occurred less serious.

Because the offender was convicted after a trial rather than a plea of guilty, no discount for a guilty plea was available or applied. The court was explicit that this did not mean the sentence was increased for contesting the charges; simply that no reduction could be granted.

The court determined that an aggregate sentence was the appropriate sentencing mechanism given the number and variety of counts. In arriving at the aggregate, the court treated the standard non-parole period as one of the principal guideposts alongside the maximum penalty for each relevant offence, while engaging in the instinctive synthesis required by NSW sentencing law.

Orders Made

  • The offender is sentenced to an aggregate term of 30 years imprisonment.
  • The non-parole period is 22 years and 6 months, commencing 7 September 2017 and expiring 6 March 2040.
  • The balance of the term (7 years and 6 months) commences 7 March 2040 and expires 6 September 2047.
  • The offender will be eligible for release to parole at the expiration of the non-parole period, with the court recommending release.
  • A copy of the report of Mr Fordyce (Exhibit 1 on sentence) is to be annexed to the warrant accompanying the offender to custody.

Key Takeaways

  • The District Court confirmed that objective seriousness in child sexual assault matters cannot be determined by ranking types of sexual intercourse in a hierarchy; the entirety of the facts and circumstances of each individual offence governs the assessment.
  • A younger victim will generally, though not automatically, attract a finding of greater objective seriousness, consistent with established Court of Criminal Appeal authority including R v AJP and R v PGM.
  • Under the instinctive synthesis approach applied in NSW, the maximum penalty and the standard non-parole period operate as two principal guideposts rather than mandatory starting points, and the sentencing court must have regard to all relevant factors in arriving at an appropriate result.
  • The absence of aggravating features such as physical violence, threats, or physical pain does not operate as a mitigating factor; the principle that an offence is not less serious merely because it could have been worse is firmly established in NSW sentencing law.
  • Where an offender proceeds to trial and is convicted, no reduction in sentence is available for a guilty plea, though the fact of contesting the charges does not itself increase the sentence imposed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 61M(2), 61O, 61O(2), 66A, 66A(2), 66B, 66C(1), 66C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- McPhillamy v The Queen [2018] HCA 52
- R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434
- Bravo v R [2015] NSWCCA 302
- Mills v R [2017] NSWCCA 87
- Jolly v R [2013] NSWCCA 76
- R v PGM [2006] NSWCCA 310
- RJA v R [2008] NSWCCA 137; (2008) 185 A Crim R 137
- MLP v R (2006) 164 A Crim R 93
- MC v R [2017] NSWCCA 316
- Woodward v R [2017] NSWCCA 44
- R v Van Ryn [2016] NSWCCA 1
- Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
- Holyoak v The Queen (1995) 82 A Crim R 502
- Burchell (1987) 34 A Crim R 148
- R v Muldoon (unreported, NSWCCA, 13 December 1990)
- R v Madely [2018] NSWDC 35