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District Court 13 September 2019

R v DRM

[2019] NSWDC 495

Sexual offences
MULTIPLE CHILD SEXUAL ASSAULT OFFENCES MULTIPLE VICTIMS AGGREGATE SENTENCE

Citation: R v DRM [2019] NSWDC 495
Court: District Court of New South Wales
Date: 13 September 2019
Judge: Mahony SC DCJ

Background

A jury convicted the offender on 26 counts of child sexual offences following a trial concluded on 27 June 2019. The offences involved three victims and spanned roughly seven years, from late 1997 to April 2004. The primary victim was subjected to offending that began when she was seven years old and continued across multiple locations and time periods.

The offences ranged from indecent assault to sexual intercourse with a child under ten, attempted sexual intercourse with a child under ten, and inciting a child under ten to commit an act of indecency. Two additional victims were the subject of separate counts of indecent assault arising from a single occasion in April 2004.

The sentencing remarks addressed the appropriate aggregate penalty for this pattern of serious offending against vulnerable young children.

  • What aggregate sentence was appropriate for 26 counts of child sexual offences spanning multiple victims, multiple locations, and approximately seven years?
  • How should the totality principle (the requirement that a combined sentence not be crushing or disproportionate to the overall criminality) be applied in the context of such extensive and serious offending?
  • What weight should be given to aggravating and mitigating factors, including the age of the victims, the duration and nature of the offending, and any relevant personal circumstances of the offender?

Decision

Mahony SC DCJ sentenced the offender by way of an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999. This provision allows a court to impose a single combined sentence covering multiple offences, rather than constructing a series of individual consecutive or concurrent terms.

The court identified the gravity of the offending as substantial. The primary victim was subjected to repeated sexual abuse beginning at age seven, with the conduct escalating over time to include sexual intercourse and attempted sexual intercourse. The presence of multiple victims and the extended duration of the offending were significant aggravating features.

Balancing the seriousness of the overall criminality against the totality principle and any mitigating factors, the court imposed an aggregate non-parole period of 7 years and 6 months, with a balance of term of 2 years and 6 months, producing a total head sentence of 10 years.

Orders Made

  • The offender was convicted of all 26 counts as charged, including offences under ss 61M(1), 61M(2), 61O(2), 66A, and 66B of the Crimes Act 1900.
  • An aggregate sentence was imposed pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999.
  • Non-parole period: 7 years and 6 months, commencing 27 June 2019 and expiring 26 December 2026.
  • Balance of term: 2 years and 6 months, commencing 27 December 2026 and expiring 26 June 2029.
  • Total head sentence: 10 years imprisonment.

Key Takeaways

  • The District Court applied s 53A of the Crimes (Sentencing Procedure) Act 1999 to impose a single aggregate sentence across 26 counts, a sentencing mechanism designed to reflect the overall criminality without constructing an unwieldy series of individual terms.
  • Offending that begins against a very young child, escalates in seriousness over time, and extends across multiple victims will carry substantial weight in the aggregate sentencing calculus.
  • Under the totality principle, the final sentence must reflect the full criminality of the conduct taken as a whole, without becoming so severe as to be crushing or disproportionate. The court's aggregate here resulted in a 10-year head sentence.
  • A non-parole period of 7 years and 6 months (75 percent of the head sentence) was imposed, reflecting that the balance-of-term ratio departed from the standard one-third commonly applied, consistent with the seriousness of the offending.
  • Multiple cited Court of Criminal Appeal authorities, including Cahyadi v R, R v Gavel, and WAP v R, informed the court's approach to structuring aggregate sentences for serious child sexual abuse matters.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 61M(1), 61M(2), 61O(2), 66A, 66B
- Crimes (Sentencing Procedure) Act 1999 (NSW): s 53A

Cases
- Beavis v R [2018] NSWCCA 248
- Cahyadi v R [2007] NSWCCA 1; 168 ACrimR 41
- Hornhardt v R [2017] NSWCCA 186
- Matthews v R [2018] NSWCCA 186
- Porter v R [2019] NSWCCA 117
- R v Gavel [2014] NSWCCA 56
- R v Hall [2017] NSWCCA 313
- R v Van Ryn [2016] NSWCCA 1
- WAP v R [2017] NSWCCA 212