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District Court 8 November 2019

R v DT

[2019] NSWDC 673

Sexual offences
SENTENCING YOUNG OFFENDER CHILD SEX OFFENCES

Citation: R v DT [2019] NSWDC 673
Court: District Court of New South Wales
Date: 8 November 2019
Judge: Hatzistergos DCJ

Background

The offender, referred to as DT, was the older cousin (once removed) of the victim, ET. At the time of the offending in 2014 to 2015, the offender was aged between 16 and 17 years old, and the victim was aged between 9 and 10 years old. The offending occurred on two separate occasions at the victim's family home in Bradbury.

The first incident involved the offender placing the victim on his lap and rubbing his penis against her while touching her thighs and breasts. The second incident, which occurred in the family bathroom, involved the offender inciting the victim to manually stimulate him, forcing the victim to perform oral sex, and attempting to penetrate the victim anally.

The offender was not arrested until January 2019, by which time he was 20 years old. He made full admissions to police and pleaded guilty to all four charges. The victim, by then aged 13, delivered a victim impact statement describing lasting psychological harm, including depression, self-harm, nightmares, and social anxiety.

  • Whether full-time imprisonment was the only appropriate sentencing option given the nature and seriousness of the offences
  • Whether an Intensive Correction Order (ICO) was available as an alternative to full-time imprisonment in circumstances involving offences of this character
  • How the principles of totality, concurrency, and accumulation applied to multiple serious offences arising from two incidents against a single victim
  • What weight to give to the offender's youth at the time of offending, his subsequent maturity, his guilty plea, and his prospects of rehabilitation
  • Whether special circumstances existed to justify a variation of the standard non-parole period ratio

Decision

Hatzistergos DCJ determined that full-time imprisonment was the only appropriate penalty. The Court noted that, by operation of the legislative amendments introduced by the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2018 (NSW), an ICO is not available as a sentencing option for offences of sexual intercourse with a child under 10 years and attempted sexual intercourse with a child under 10 years. Accordingly, the availability of an ICO as an alternative did not arise for the most serious charges.

The Court acknowledged a number of mitigating factors: the offender's youth at the time of offending, his genuine remorse and full admissions, his early plea of guilty, his stable employment history, and what was assessed as strong prospects of rehabilitation. A forensic psychological assessment supported those prospects. These factors reduced the weight given to general and specific deterrence compared to what would ordinarily apply.

The Court also weighed the serious objective gravity of the offending. The offences involved a very young victim, a breach of family trust, a degree of planning, and the exercise of authority over the victim. The victim impact statement confirmed significant ongoing harm to the victim. The Court applied the principle from the Court of Criminal Appeal's decisions that instinctive synthesis, rather than a mathematical approach, governs the assessment of the appropriate sentence.

Special circumstances were found to exist, justifying a departure from the standard two-thirds non-parole period ratio. The Court cited the fact that this was the offender's first term of imprisonment, his age, and his rehabilitation prospects as the basis for that finding. An aggregate sentence was imposed.

Orders Made

  • Aggregate sentence of 3 years and 4 months imprisonment
  • Non-parole period of 1 year and 8 months, commencing 8 November 2019 and expiring 7 July 2021
  • Additional term of 1 year and 8 months, from 8 July 2021 to 7 March 2023, during which the offender is eligible for parole
  • Earliest release date of 7 July 2021, subject to the State Parole Authority
  • Recommendation to the Commissioner of Corrective Services that the offender be placed in the Young Adult Offenders Programme

The individual indicative sentences (prior to aggregation) were:
- Sequence 1 (aggravated indecent assault): 6 months
- Sequence 5 (inciting child under 10 to commit act of indecency): 12 months
- Sequence 3 (sexual intercourse with child under 10): 2 years and 3 months
- Sequence 6 (attempted sexual intercourse with child under 10): 2 years and 3 months

Key Takeaways

  • Under the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2018 (NSW), an ICO is not available for offences of sexual intercourse or attempted sexual intercourse with a child under 10 years, even where the offender was a young person at the time of offending.
  • Youth at the time of offending remains a significant mitigating factor in sentencing, capable of reducing the weight given to general and specific deterrence, but it does not displace the requirement for full-time imprisonment where the offence type precludes community-based alternatives.
  • Special circumstances justifying a departure from the standard non-parole period ratio can be established by reference to an offender's age, rehabilitation prospects, and the fact that a sentence represents their first term of imprisonment.
  • The District Court applied the principle of instinctive synthesis in arriving at an aggregate sentence, taking into account totality, concurrency, and accumulation across offences arising from two incidents against a single victim.
  • A recommendation to place an offender in the Young Adult Offenders Programme is available to the sentencing court and was made here in light of the offender's age and rehabilitation prospects, though it operates as a recommendation only and does not bind the Commissioner of Corrective Services.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW) s 6
- Crimes Act 1900 (NSW) ss 61M(2), 61O(1), 66A(1), 66B
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5, 21A, 54D(3)
- Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2018 (NSW)

Cases
- BP v R [2010] NSWCCA 159
- Paul Campbell v R [2018] NSWCCA 87
- R v Georgopoulos [2010] NSWCCA 246
- R v Seller; R v McCarthy [2013] NSWCCA 42
- R v Zamagias [2002] NSWCCA 17
- Sabra v R [2015] NSWCCA 38