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District Court 14 February 2020

R v Drenkhahn

[2020] NSWDC 113

Sexual offencesFirearms & weapons
SENTENCING AFTER TRIAL INDECENT ASSAULT SEXUAL ASSAULT OLD OFFENCES. SENTENCING RELEVANT FACTORS ON SENTENCE

Citation: R v Drenkhahn [2020] NSWDC 113
Court: District Court of New South Wales
Date: 14 February 2020
Judge: Haesler SC DCJ

Background

The offender, a 69-year-old trawler skipper from Eden on the NSW far South Coast, was convicted by jury after a seven-day trial of four sexual and indecent assault offences committed against two brothers between 2000 and 2003. The offender was a close family friend and the godfather of one of the boys. Both complainants were aged 13 to 14 at the time of the offending.

The offences involved acts of indecency and sexual intercourse committed against the younger brother ("Barry") on separate occasions, and an act of indecent assault against the older brother ("Robert") during an overnight trip to Wagga Wagga. The jury acquitted the offender of the aggravated form of one count, and he was entitled to the full benefit of that acquittal in sentencing.

The offender also pleaded guilty, via a certificate, to possessing an unauthorised and unregistered firearm found at his home at the time of his arrest.

  • What was the appropriate objective seriousness of each offence, given the nature and circumstances of the acts, the ages of the complainants, and the relationship of trust the offender held?
  • How should significant subjective factors (including the offender's age, prior good character, and community standing) be weighed against the seriousness of the offending?
  • How should delay between the offences (2000 to 2003) and prosecution (trial concluded December 2019) affect the sentence?
  • What were the applicable maximum penalties under the relevant historical versions of the Crimes Act 1900, and how should they inform the sentence?
  • Whether special circumstances existed to justify a variation in the ratio of non-parole period to head sentence.
  • What was the appropriate aggregate sentence having regard to totality, accumulation, and concurrency?

Decision

Haesler SC DCJ assessed the objective seriousness of each count individually. Count 3 (sexual intercourse with a child) was treated as the most serious matter, given it involved oral intercourse to ejaculation performed on a 13-year-old who was alone and isolated in the offender's home. Count 1 (indecent assault involving skin-on-skin contact) was assessed as next in seriousness. Counts 4 and 5, while still serious, involved briefer episodes that stopped when the children objected, and did not involve skin-on-skin contact.

The court accepted that the offender had a strong subjective case. His age, prior good character, and genuine contributions to his community were acknowledged. The court also recognised that the delay between offending and prosecution was a relevant mitigating factor, as the offender had lived without re-offending for many years. However, the court was clear that positive subjective features could not reduce the sentence to a level disproportionate to the gravity of the conduct.

The victim impact statement from Barry detailed lasting psychological harm, including depression, confusion, and substance use as a coping mechanism. The court noted that the absence of a statement from Robert did not indicate his experience was without impact, as s 30E of the Crimes (Sentencing Procedure) Act 1999 expressly provides. The court acknowledged the community's legitimate expectation that adult offenders who sexually abuse children in positions of trust will face serious punishment.

On the firearm offences, the court convicted the offender on the basis of his guilty pleas but found it inexpedient to impose any further penalty beyond the conviction itself, applying s 10A of the Crimes (Sentencing Procedure) Act 1999.

Orders Made

  • Firearms offences (possession of unauthorised firearm and unregistered firearm): convicted; no penalty beyond conviction recorded, pursuant to s 10A Crimes (Sentencing Procedure) Act 1999.
  • Count 1 (aggravated indecent assault, victim under 16): indicative sentence of 2 years 3 months.
  • Alternative Count 3 (sexual intercourse with person aged 10 and over but under 16): indicative sentence of 3 years 3 months.
  • Count 4 (aggravated indecent assault, victim under 16): indicative sentence of 12 months.
  • Count 5 (aggravated indecent assault, victim under 16): indicative sentence of 12 months.
  • Aggregate sentence of 4 years imprisonment, with a non-parole period of 2 years, commencing 4 December 2019.
  • Eligible for parole consideration from 3 December 2021; total sentence expires 3 December 2023.

Key Takeaways

  • The District Court confirmed that every act of sexual exploitation of a child is treated as serious, and that the form of sexual intercourse does not automatically determine objective seriousness. Each offence must be assessed on its own facts and circumstances.
  • Strong subjective factors, including prior good character, community standing, advanced age, and a lengthy gap between offending and prosecution, are relevant to mitigation but cannot reduce a sentence to a level disproportionate to the gravity of child sexual offending.
  • Under s 30E of the Crimes (Sentencing Procedure) Act 1999, the absence of a victim impact statement does not support an inference that a complainant suffered little or no harm.
  • Where historical offences are charged, sentencing courts must apply the maximum penalties that were in force at the time of the offending, treating them as a measure to be balanced alongside all other relevant factors.
  • A section 10A conviction without further penalty remained available for firearm offences where the circumstances warranted, even alongside a sentence of imprisonment for the principal offences.

Legislation and Cases Referenced

Legislation:
- Children's (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes Act 1900 (NSW), ss 61M(1), 66C(1), 578A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 28, 30B(2), 30E
- Criminal Procedure Act 1987 (NSW), s 166
- Firearms Act 1996 (NSW)

Cases:
- Mill v The Queen (1988) 166 CLR 59
- Moon v R [2000] NSWCCA 534; (2000) 117 A Crim R 497
- MPB v R [2013] NSWCCA 213
- R v Cattell [2019] NSWCCA 297
- R v MJR (2002) 54 NSWLR 388
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704