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District Court 11 October 2019

R v SH

[2019] NSWDC 889

Sexual offences
SENTENCING CHILD SEX OFFENCES PERSISTENT SEXUAL ABUSE OF A CHILD RELEVANT FACTORS ON SENTENCE OBJECTIVE SERIOUSNESS UPPER RANGE

Citation: R v SH [2019] NSWDC 889
Court: District Court of New South Wales
Date: 11 October 2019
Judge: Weber SC DCJ

Background

The offender was the paternal uncle of two victims, referred to as YD and VG. Both families had migrated to Australia from Syria, and for several years in the 1970s the two families shared the same house in Belmore. The offender used that shared domestic environment to commit a series of sexual offences against his nieces, who were as young as six and seven years old when the abuse began.

A jury convicted the offender of 22 counts in total: 16 counts of indecent assault, three counts of inciting an act of indecency, one count of carnal knowledge of a child under ten, one count of sexual intercourse without consent, and one count of assault with an act of indecency. The offending against YD spanned approximately five years; the offending against VG extended over approximately eleven years, continuing well into her teenage years.

The matter came before Weber SC DCJ for sentencing following the jury verdicts delivered on 30 July 2019. The parties agreed on the factual findings to be attributed to the jury in respect of most counts, but contested what the jury must have found regarding three counts involving incitement.

  • What objective seriousness should be attributed to the overall course of offending, and which aggravating and mitigating factors applied?
  • In respect of counts 23, 24 and 25 (inciting acts of indecency), whether the court could find beyond reasonable doubt that the incited acts actually occurred, noting that actual occurrence was not an essential element of those offences?
  • Whether an aggregate sentence was appropriate, and if so, how the principles of accumulation, concurrence and totality should be applied?
  • Whether "special circumstances" existed to justify varying the statutory ratio between the non-parole period and the balance of the sentence?

Decision

Contested factual findings (counts 23, 24 and 25). These counts concerned the offender showing VG pornographic material and repeatedly inciting her to perform an act of cunnilingus on his young daughter. The Crown contended the incited acts had in fact occurred; the defence relied on unequivocal evidence from the offender's daughter that they had not. The judge found merit in the defence position, noting also that VG's evidence placed the daughter washing dishes at an age (approximately three) when that would have been highly improbable. The court was not satisfied beyond reasonable doubt that the incited acts occurred. Nonetheless, sentencing on those counts proceeded on the basis that the incitement itself was established, as actual occurrence was not an element of the offence.

Objective seriousness and aggravating factors. The court placed the overall offending in the upper range of objective seriousness. Key aggravating factors included the large number of offences; the fact that most offences occurred within the victims' home; the extreme youth and consequent vulnerability of the victims; the gross abuse of trust by a family member in a position of domestic authority; and the substantial emotional harm suffered by both victims over prolonged periods.

Mitigating factors and personal circumstances. The offender had no prior convictions and was of advanced age. However, the court declined to give substantial weight to good character, given the pervasive nature and duration of the offending. The offender expressed no remorse or contrition. The court did take into account the impact of protective custody (the need for separation from general prison population) and assessed the risk of reoffending as low.

Aggregate sentence and special circumstances. The court imposed an aggregate sentence as the most proportionate means of reflecting the totality of the criminality across 22 counts involving two victims. The judge found special circumstances existed, warranting a longer-than-usual balance of sentence to allow for an extended period of supervised parole given the offender's age and the need for reintegration support.

Orders Made

  • The offender was sentenced to an aggregate term of imprisonment of 12 years, with a non-parole period of 7 years.
  • The sentence commenced on 30 July 2019; the non-parole period expires on 29 July 2026; the full sentence expires on 29 July 2031.
  • Indicative head sentences were specified for each count, ranging from 1 year (counts 23, 24 and 25) to 6 years (counts 26 and 30).

Key Takeaways

  • An aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) is appropriate where it best accommodates the interplay of proportionality, accumulation, concurrence and totality across a large number of related counts.
  • Where actual occurrence of an incited act is not an essential element of an incitement offence, the sentencing court cannot automatically impute a finding that the act occurred; the Crown must separately establish that fact to the criminal standard before the court can treat it as an aggravating circumstance.
  • Prolonged intrafamilial sexual abuse of very young children, committed within the family home and involving a serious breach of trust, will be assessed in the upper range of objective seriousness.
  • The absence of prior convictions does not automatically attract significant mitigating weight when the offending itself demonstrates a sustained pattern of conduct contradicting claims of good character.
  • Special circumstances justifying a departure from the standard non-parole period ratio can be found where an offender's advanced age and the nature of their custodial experience indicate a need for an extended period of supervised parole.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61D(1), 61E(1), 67, 76, 76A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 47, 53A

Cases
- Clinton v R [2009] NSWCCA 276
- Dimian v R [2016] NSWCCA 223
- Elhassan v R [2018] NSWCCA 118
- Markarian v The Queen (2005) 228 CLR 357
- R v Durocher-Yvon (2003) 58 NSWLR 581
- R v Evans (unrep, 24/3/88, NSWCCA)
- R v Fisher (1989) 40 A Crim R 442
- R v Hudson (unrep, 30/7/98, NSWCCA)
- R v McNaughton (2006) 66 NSWLR 566
- R v Way (2004) 60 NSWLR 168
- RWB v R [2010] NSWCCA 147