Citation: R v DM [2019] NSWDC 653
Court: District Court of New South Wales
Date: 18 October 2019
Judge(s): Buscombe DCJ
Background
The offender pleaded guilty to a single charge of persistent sexual abuse of a child under section 66EA(1) of the Crimes Act. The charge encompassed five particularised offences of sexual intercourse with a 14-year-old girl, who was the daughter of his former partner and whom he regarded as his stepdaughter. The offending occurred between 8 October 2016 and 12 February 2017 across locations in Queensland and New South Wales.
The offending began shortly after the victim's 14th birthday, when the offender offered her cannabis before initiating sexual contact. Multiple further acts of penile-vaginal intercourse followed over approximately four months, including at the family home and, after the offender and victim left the family home together, at various other locations. The victim became pregnant as a result, and DNA testing of the foetus was consistent with the offender being the father. The victim underwent a surgical abortion in April 2017.
A Form 1 offence of possessing child abuse material (seven photographs of the victim) was also before the court. The court took that offence into account but found it had no significant impact on the sentence given the limited number of images and their connection to the primary offending.
Legal Issues
- What was the appropriate sentence for the offence of persistent sexual abuse of a child, having regard to the objective seriousness of the conduct and the offender's subjective circumstances?
- What discount, if any, should be allowed for the utilitarian value of the late guilty plea?
- Whether special circumstances existed to justify a non-parole period shorter than the statutory ratio?
- What weight should be given to the offender's claimed remorse, and his assertion that the victim had coerced him?
Decision
Objective Seriousness
Buscombe DCJ assessed the offence as falling within the lower end of the mid-range of objective seriousness for this type of offending (at [20]). Several factors elevated the gravity of the conduct: the more than 20-year age difference between offender and victim; the offender's position of trust and authority as a stepfather; the use of cannabis before the first offence; the occurrence of multiple acts within the victim's home, a place where she was entitled to feel safe; and the failure to use a condom on any occasion, which caused the victim's pregnancy (at [14]-[17]). The court declined to treat the victim's subsequent abortion as a further aggravating factor (at [17]).
Subjective Circumstances and Remorse
The court found no genuine remorse. The offender had claimed to the forensic psychologist that the 14-year-old victim had "coerced and entrapped him" into ongoing sexual intercourse. Buscombe DCJ rejected that claim entirely, finding it demonstrated a complete absence of insight into the seriousness of his offending (at [33]). The offender's prior criminal history, which included a breach of an apprehended domestic violence order relating to the same victim, did not aggravate the sentence under the Crimes (Sentencing Procedure) Act but disentitled him to leniency (at [23]-[24]). His history of problematic substance abuse, beginning at age 12, was not treated as a mitigating factor given his age and prior opportunities to address the issue, consistent with the approach in Hayek v The Queen (at [31]).
Guilty Plea Discount and Special Circumstances
A 15 percent discount was applied for the utilitarian value of the guilty plea, which was entered 11 days before trial and spared the victim from testifying (at [35]). The court found special circumstances existed, warranting a longer parole period than the statutory ratio, because the offender would require extensive professional assistance and supervision on release to reduce his assessed average (but significant) risk of reoffending (at [37]).
General Deterrence
The court emphasised that general deterrence must be given significant weight when sentencing for child sexual offending, and that the sentence must deter both this offender and others from such conduct (at [39]).
Orders Made
- The offender was convicted of the charge to which he pleaded guilty, with the Form 1 offence taken into account.
- Sentenced to a total term of imprisonment of eight and a half years, comprising a non-parole period of six years and a balance of term of two and a half years.
- Sentence commences 25 July 2017 and expires 24 January 2026.
- Non-parole period expires 24 July 2023.
- Earliest eligibility for release to parole: 24 July 2023, subject to the State Parole Authority.
Key Takeaways
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Under section 66EA(1) of the Crimes Act, a charge of persistent sexual abuse of a child can encompass multiple particularised sexual offences; the maximum penalty at the time of this offending was 25 years' imprisonment with no applicable standard non-parole period (at [1]-[2]).
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The District Court confirmed that an offender's failure to use contraception during repeated acts of sexual intercourse with a child victim, resulting in pregnancy, increases the objective seriousness of the offending (at [17]).
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A claim by an offender that the child victim had coerced or entrapped him was rejected outright as demonstrating a complete absence of insight and genuine remorse, and this weighed against the offender at sentence (at [33]).
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Problematic substance abuse is not automatically a mitigating factor; where an offender has had prior opportunities to address substance issues and has failed to do so, the court will decline to treat substance misuse at the time of offending as mitigation, consistent with Hayek v The Queen [2016] NSWCCA 126 (at [31]).
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Special circumstances may be found where a psychologist assesses an offender's risk of reoffending as significant and recommends offence-specific treatment, supporting a longer parole period to allow for supervision and rehabilitation on release (at [34], [37]).
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act
Cases
- Hayek v The Queen [2016] NSWCCA 126