Citation: R v Darling (a pseudonym) [2019] NSWDC 784
Court: District Court of New South Wales
Date: 12 December 2019
Judge: Colefax SC DCJ
Background
The offender, referred to by the pseudonym Mr Darling, appeared for sentencing on three counts of indecent assault on a person under 16 years, contrary to s 61M(2) of the Crimes Act 1900 (NSW). Each offence carried a maximum penalty of 10 years' imprisonment and a standard non-parole period of 8 years.
In 2017, the offender was in his early fifties and living a transient lifestyle. He resided with a friend across two successive households, and in each household children were present. The three victims, referred to as Hope, Grace, and Faith, were aged between six and eight years at the time of the offences. In each instance, the offender entered a child's bedroom and engaged in sexual touching, using his physical weight to prevent the child from moving rather than any overt threat or violence.
The offences were not isolated incidents. They occurred across two separate households involving three separate victims, establishing a pattern of conduct over a period spanning 2017 to mid-2018.
Legal Issues
- What was the appropriate sentence for three offences of indecent assault on children, taking into account objective seriousness, subjective circumstances, and sentencing purposes?
- Whether an aggregate sentence was appropriate, and how partial accumulation should apply to reflect the existence of three discrete victims.
- Whether a finding of special circumstances should be made to vary the ratio between the head sentence and the non-parole period.
- What weight should be given to the offender's early guilty plea, lack of remorse, limited insight, and assessed risk of reoffending?
Decision
His Honour assessed the objective seriousness of each offence as falling approximately midway between the bottom and the middle of the range for offences of this kind. Each offence was further aggravated by the fact that it was committed in the victim's own home. The pattern of offending across two households and three victims precluded any characterisation of the conduct as isolated or out of character.
The Court considered the offender's subjective circumstances through a psychological report. The offender is of Aboriginal descent on his mother's side and was raised in a stable, loving household. He had a long employment history and experienced personal difficulties following the breakdown of a long-term relationship in 2012. However, the report revealed a marked absence of insight, minimisation of his offending, and conduct amounting to victim-blaming. The offender expressed no remorse, and the psychologist assessed him as presenting a moderate risk of reoffending. His Honour described the report as disturbing and assessed the offender's prospects of rehabilitation as guarded.
A 25% discount was applied to the indicative sentences in recognition of the early guilty plea. Without that discount, His Honour indicated he would have imposed 3 years' imprisonment for each offence. After the discount, each indicative sentence became 2 years and 3 months, with an indicative non-parole period of 1 year and 8 months. The sentences were not made fully concurrent, with partial accumulation applied to reflect the three separate victims.
His Honour declined to make a finding of special circumstances to alter the standard ratio between the head sentence and the non-parole period, finding that the parole period as calculated would be sufficient to support rehabilitation. The Court observed that the purposes of sentencing pulled in different directions in this case: general and specific deterrence, community protection, and the encouragement of rehabilitation each pointed to different considerations.
Orders Made
- Aggregate sentence of 5 years and 6 months' imprisonment imposed for the three offences.
- Non-parole period fixed at 4 years, commencing 20 February 2019 and expiring 19 February 2023.
- Balance of term fixed at 1 year and 6 months, commencing 20 February 2023 and expiring 19 August 2024.
- Sentence backdated to the date of arrest: 20 February 2019.
- No finding of special circumstances made.
Key Takeaways
- The District Court confirmed that a pattern of offending across multiple victims and multiple households prevents an offender from characterising the conduct as isolated, though such a pattern is not treated as a separate aggravating factor in itself.
- Committing an indecent assault in the victim's own home constitutes an additional aggravating factor under the sentencing framework applied here.
- Where an offender demonstrates a complete lack of insight, minimises their criminality, engages in victim-blaming, and expresses no remorse, those matters weigh heavily against a favourable assessment of rehabilitation prospects, even where subjective circumstances are otherwise unremarkable.
- A victim impact statement from one of the three victims reinforced the court's observation that even offending previously regarded as lower-level child abuse can produce serious and lasting psychological harm, a principle Parliament has now embedded in the relevant legislation.
- Partial accumulation of sentences, rather than full concurrency, remains available and appropriate where offences involve discrete victims, even when an aggregate sentencing approach is adopted.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 61M(2) (indecent assault on a person under 16 years; maximum penalty 10 years' imprisonment; standard non-parole period 8 years)
Cases cited: No cases were cited in the judgment.