Citation: R v BR [2020] NSWDC 335
Court: District Court of New South Wales
Date: 25 June 2020
Judge: Wilson SC DCJ
Background
The offender, a man born in March 1966, appeared for sentencing on 13 counts of child sexual offences, together with 10 additional charges on 9 Form 1 documents. The offending spanned approximately 19 years, from 1991 to 2010, and took place across four residential properties in western Sydney.
There were three victims: the offender's biological daughter (the First Complainant), his step-daughter (the Second Complainant), and his step-granddaughter (the Third Complainant). The offending against the First Complainant began when she was four years old. The Third Complainant was aged between 11 and 12 at the time of the offending against her.
The offending came to light progressively. The Third Complainant made a disclosure to a family member in September 2014; the First Complainant disclosed to her partner in April 2018; and police approached the Second Complainant in May 2018. The offender was arrested in May 2018, denied the allegations in a recorded interview, and has remained in custody since arrest.
Legal Issues
- What aggregate head sentence and non-parole period were appropriate given the number, nature, and duration of the offences across three victims?
- How should the 10 charges on Form 1 documents be taken into account in determining the appropriate penalty for the principal charges?
- What weight should be given to the standard non-parole period applicable to Count 13 (indecent assault of a person under 16 in a domestic violence context)?
- How should the principle of totality be applied to a large number of serious historical sexual offences?
Decision
Wilson SC DCJ sentenced the offender on 13 counts of child sexual offending under the Crimes Act 1900 (NSW), including five counts of sexual intercourse with a child under 10 years (s 66A, maximum 20 years each), multiple counts of sexual intercourse with a child aged 10 and under 16 under authority (s 66C(2), maximum 10 years each), and counts of aggravated and ordinary indecent assault. His Honour characterised the offender as a paedophile whose conduct involved serious and repeated abuse of children in his own family and household over nearly two decades.
The 10 Form 1 charges were taken into account as required by the Crimes (Sentencing Procedure) Act. His Honour confirmed, applying Re Attorney General's Application (No 1 of 2002) (2002) 56 NSWLR 146, that Form 1 matters are addressed by giving greater weight to personal deterrence and the community's entitlement to retribution for serious offending, rather than by treating them as additional offences for which separate penalties are imposed.
In relation to Count 13, which attracted a standard non-parole period of eight years, His Honour applied the post-Muldrock v The Queen framework. The standard non-parole period was treated as one factor to be weighed in synthesis with all objective and subjective matters, consistent with the approach in Markarian v The Queen [2005] HCA 25.
The principle of totality required that the aggregate sentence reflect the full criminality of the conduct without resulting in a crushing sentence disproportionate to the overall offending. Applying that principle, His Honour imposed an aggregate head sentence and a single aggregate non-parole period. The drug possession charge on the ninth Form 1 was ultimately withdrawn and dismissed.
Orders Made
- Aggregate head sentence of 30 years' imprisonment.
- Aggregate non-parole period of 22 years and 6 months.
- Non-parole period to expire on 16 November 2040, at which time the offender becomes eligible for consideration for parole by the State Parole Authority.
- Balance of term to expire on 16 May 2048.
- Charge of possessing a prohibited drug (Form 1, H938 sequence 25) withdrawn and dismissed.
- Statutory warning given under the Crimes (High-Risk Offenders) Act 2006 regarding the potential for extended supervision orders and continuing detention orders upon release.
Key Takeaways
- The District Court imposed an aggregate sentence of 30 years with a 22-year-and-6-month non-parole period for a series of serious historical child sexual offences against three victims over nearly two decades, reflecting the sustained and grave nature of the conduct.
- Form 1 charges in NSW sentencing proceedings do not result in separate penalties; instead, the court gives increased weight to personal deterrence and retribution when sentencing on the principal charges to which the Form 1 documents attach.
- Under the post-Muldrock framework, a standard non-parole period functions as one factor to be synthesised with all other objective and subjective sentencing considerations, rather than as a rigid benchmark or starting point.
- Where an offender has been in custody from the date of arrest, that period of pre-sentence detention is reflected in the commencement date of the sentence.
- Serious sex offenders sentenced in NSW may be subject to extended supervision orders or continuing detention orders under the Crimes (High-Risk Offenders) Act 2006 following release, depending on the risk they pose at the time parole eligibility arises.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61M, 66A, 66C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 22, 22A, 25AA, 25D
- Drug Misuse and Trafficking Act 1985 (NSW), s 10(1)
- Crimes (High-Risk Offenders) Act 2006 (NSW), s 5
Cases:
- Re Attorney General's Application (No 1 of 2002) (2002) 56 NSWLR 146
- Markarian v The Queen [2005] HCA 25
- Muldrock v The Queen [2011] HCA 39 (referenced in text)
- DPP (Cth) v Dela Rosa [2010] 79 NSWLR 1
- Hornhardt v The Queen [2017] NSWCCA 186
- Mill v The Queen [1988] HCA 70
- MRW v R [2011] NSWCCA 260
- R v Cattell [2019] NSWCCA 297
- R v Holder (1983) 3 NSWLR 245
- R v MK (2006) 164 A Crim R 481
- R v Todd [1982] 2 NSWLR 517
- WM v R [2020] NSWCCA 96
- ZA v R [2017] NSWCCA 132