Citation: R v DW (No 1) [2020] NSWDC 461
Court: District Court of New South Wales
Date: 11 May 2020
Judge: Sutherland SC DCJ
Background
The offender, referred to as DW, appeared for sentencing on three substantive counts of sexual offending against two young girls committed in approximately 1991, when DW himself was 15 years old. All parties, including both victims and the offender, were children at the time. Suppression orders apply to prevent identification of any of them.
The offending occurred over roughly nine to ten months in a suburban Illawarra neighbourhood. DW pleaded guilty to one count of sexual intercourse with a child aged between 10 and 16 years (contrary to s 66C(1) of the Crimes Act 1900), one count of attempting sexual intercourse with that same child (contrary to s 66D), and one count of indecent assault of a second child who was under 10 years of age at the time (contrary to s 61M(2)). Three further acts of indecency with the first girl were included on a Form 1 to be taken into account on sentence.
The proceedings took place approximately 29 years after the offending. The core sentencing question was whether the combination of the offender's age at the time, the extensive delay, and his subsequent rehabilitation justified a non-custodial sentence despite the serious nature of the charges.
Legal Issues
- Whether a non-custodial sentence was appropriate for serious historical child sexual offences, given the offender was himself a child (aged 15) at the time of the offending
- How the sentencing court should weigh the significant delay of approximately 29 years, the offender's rehabilitation, and his moral culpability as a child offender
- Whether legislative provisions and Court of Criminal Appeal guidance emphasising the seriousness of child sexual abuse offences precluded the exercise of judicial discretion to impose a non-custodial sentence
- How the standard imposed by s 5 of the Crimes (Sentencing Procedure) Act 1999 (requiring a court to be satisfied that no penalty other than imprisonment is appropriate before imposing a custodial term) applied on these particular facts
Decision
Sutherland SC DCJ imposed Community Correction Orders rather than a term of imprisonment. His Honour was not satisfied, as required by s 5 of the Crimes (Sentencing Procedure) Act 1999, that no penalty other than imprisonment was appropriate after considering all possible alternatives.
Central to the reasoning was DW's age of 15 at the time of the offending. The court treated his likely immaturity as directly relevant to his moral culpability. The extensive delay of nearly three decades, combined with evidence of rehabilitation in the intervening period, weighed heavily against a custodial outcome.
The court also addressed the tension between recent legislative and appellate emphasis on the seriousness of child sexual abuse offences and the continued role of judicial discretion. Relying on observations from cases including R v Tomlinson and the Court of Criminal Appeal's remarks in R v Cattell, the court confirmed that neither the relevant legislation nor appellate guidance was intended to create mandatory custodial sentences or to abolish judicial discretion. Each case must be assessed on its particular facts.
The court was satisfied that the recording of convictions together with the imposition of Community Correction Orders would provide sufficient general deterrence in the specific circumstances of this case.
Orders Made
- DW convicted on each of the three substantive counts
- Pursuant to s 8(1) of the Crimes (Sentencing Procedure) Act 1999, Community Correction Orders imposed for a period of three years, commencing 11 May 2020, in lieu of imprisonment
- Standard conditions apply: the offender must not commit any offence and must appear before the court if called on to do so during the term of each order
Key Takeaways
- The District Court confirmed that judicial discretion in sentencing is preserved even for serious historical child sexual offences; neither the relevant legislation nor Court of Criminal Appeal guidance in R v Cattell creates a mandatory custodial outcome.
- Where the offender was themselves a child at the time of the offending, their age and likely immaturity are directly relevant to the assessment of moral culpability and may support a non-custodial sentence even for grave charges.
- Under s 5 of the Crimes (Sentencing Procedure) Act 1999, a court imposing imprisonment must be satisfied, after considering all alternatives, that no other penalty is appropriate; this threshold was not met on these facts.
- Extensive delay between offending and sentencing, combined with evidence of rehabilitation, formed significant mitigating considerations that weighed against a custodial term.
- A non-custodial sentence (here, a Community Correction Order) can, in appropriate circumstances, satisfy the requirements of general deterrence even for historical child sexual abuse offences committed by an adult offender who was a child at the time.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 61M(1), 61M(2), 66C(1), 66D
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 8(1)
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A(1)
- Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018
Cases
- R v Cattell [2019] NSWCCA 297
- R v Cattell [2019] NSWDC 504
- R v Tomlinson (NSWDC, unreported, 25 February 2019)
- Parente v R [2017] NSWCCA 284; 96 NSWLR 633
- R v Todd [1982] 2 NSWLR 517
- R v MJR (2002) 54 NSWLR 368
- R v BJW (2000) 112 A Crim R 1
- Moon v R [2000] NSWCCA 534; 117 A Crim R 497
- MS2 & Ors v Regina [2005] NSWCCA 397; 158 A Crim R 93
- Knight v The Queen [2015] NSWCCA 222
- Magnuson v R [2013] NSWCCA 50
- Mill v R (1988) 166 CLR 59
- R v Elliott and Blessington [2006] NSWCCA 305
- R v Tepania [2018] NSWCCA 247
- Paul Campbell v R [2018] NSWCCA 87
- R v Campbell (a pseudonym) [2017] NSWDC 359
- R v PGW [2002] QCA 462; 134 A Crim R 593