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District Court 6 August 2019

R v RDW

[2019] NSWDC 488

Sexual offencesDomestic & family violence
CRIMINAL LAW SENTENCE FORM 1 SEXUAL ASSAULT BREACH OF TRUST TOTALITY

Citation: R v RDW [2019] NSWDC 488
Court: District Court of New South Wales
Date: 6 August 2019
Judge: Judge W Hunt

Background

The offender, referred to as RDW, appeared for sentencing on five counts of historical child sexual offences committed against his natural daughter. The offending occurred in the early-to-mid 1980s, when the victim was between five and seven years of age. All offences took place in the family home.

The offences were charged under now-repealed provisions of the Crimes Act. Counts 1 and 5 involved an indecent act with a person under 16 years (s 61E(2), maximum two years imprisonment). Counts 2, 3, and 4 involved sexual intercourse without consent with a person under 16 years (s 61D(1), maximum five years imprisonment). Two additional offences under s 61E(1) of the Crimes Act were listed on a Form 1 to be taken into account on sentencing for count 2.

At the time these proceedings commenced (8 November 2017), the offender was already serving a custodial sentence for unrelated matters. The question of how the new sentence should interact with the pre-existing sentences was therefore central to the sentencing exercise.

  • What were the objective seriousness and appropriate indicative sentences for each of the five counts, taking into account the Form 1 matters?
  • What utilitarian discount, if any, should apply for the offender's plea of guilty?
  • Whether special circumstances existed to justify a departure from the standard ratio between non-parole period and head sentence?
  • What commencement date should be set for the new aggregate sentence, and to what extent should it be concurrent or accumulative with the pre-existing sentences?
  • How should the totality principle be applied to produce a just overall "compound" sentence when the new sentence was combined with existing sentences?

Decision

The court accepted the agreed facts and found all five offences to be serious. Counts 2, 3, and 4 were identified as the most serious given their higher maximum penalties and the nature of the physical conduct involved. Aggravating the offending throughout was the profound breach of trust inherent in a father sexually abusing his very young daughter, with the offending occurring repeatedly in the family home over a period of years.

The court applied a 10 per cent utilitarian discount to reflect the offender's plea. Indicative sentences were: count 1, 16 months; count 2 (including Form 1 matters), five years and four months; count 3, four years and two weeks; count 4, three years and seven months; and count 5, 18 months.

The court found special circumstances, which justified adjusting the ratio between the non-parole period and the head sentence. The adjustment was designed so that, when the new sentence was combined with the pre-existing sentences to form a "compound" sentence, the overall non-parole period would represent 75 per cent of the total, consistent with the requirement in s 44 of the Crimes (Sentencing Procedure) Act.

On the question of commencement, the court determined that the new aggregate sentence would be partially concurrent (by one year) and partially accumulative (by two years) with the non-parole period of the offender's second existing aggregate sentence. The court rejected the approach of simply commencing the new sentence at the earliest possible date, given the absence of any relationship between the pre-existing offences and the current matters.

Orders Made

  • The offender was convicted on all five counts.
  • An aggregate sentence of seven years was imposed pursuant to s 53A of the Crimes (Sentencing Procedure) Act, commencing 25 November 2019 and expiring 24 November 2026.
  • A non-parole period of four years was set, commencing from the sentence start date, with the earliest release date being 24 November 2023.
  • The new sentence was made partially concurrent (one year) and partially accumulative (two years) with the non-parole period of the offender's pre-existing second aggregate sentence.
  • The resulting compound sentence produced a total period of imprisonment of 12 years, with a non-parole period of nine years.

Key Takeaways

  • The District Court applied the totality principle by constructing a "compound sentence," combining the new aggregate sentence with existing sentences to assess the overall justice of the cumulative term across all matters.
  • A breach of parental trust was treated as a significant aggravating feature across all counts, reflecting the particular vulnerability of a very young child abused by her father in the family home.
  • Where an offender is already serving sentences for unrelated matters, the sentencing court retains a discretion over the commencement date of the new sentence and is not bound to commence it at the earliest possible date simply because that date is technically available.
  • Under s 44 of the Crimes (Sentencing Procedure) Act, the court is required to ensure that the aggregate non-parole period bears an appropriate relationship to the total head sentence; findings of special circumstances can be used to calibrate this ratio across a compound sentencing structure.
  • A utilitarian discount of 10 per cent was applied for the guilty plea, consistent with established sentencing practice for offenders who plead guilty in the District Court.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 61D(1), 61E(1), 61E(2) (all now repealed)
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 44, 53A

Cases
- R v BJW [2000] NSWCCA 60