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District Court 28 February 2020

R v DS

[2020] NSWDC 66

Sexual offences
CRIME SEXUAL OFFENCES AGGRAVATED INDECENT ASSAULT SENTENCING PENALTIES IMPRISONMENT AGGREGATE SENTENCE

Citation: R v DS [2020] NSWDC 66
Court: District Court of NSW
Date: 28 February 2020
Judge: Letherbarrow SC DCJ

Background

The offender, a man aged 45 at the time of the offending, was found guilty by a jury of two counts of aggravated indecent assault against his 12-year-old niece by marriage, contrary to s 61M(2) of the Crimes Act 1900 (NSW). The offences occurred on two separate evenings at the offender's home in Shoal Bay in early 2018 while his wife was absent on each occasion. The victim was asleep in a bedroom shared with the offender's young daughter when each assault took place.

The jury returned verdicts on counts 2 and 4 of the indictment but was unable to reach verdicts on counts 1 and 3, which alleged the more serious offences of sexual intercourse with a child aged 10 to 16 under s 66C(1). The offender carried no prior criminal history.

The matter proceeded to a sentence hearing in February 2020. The offender had been on conditional bail since the day after his arrest in April 2018, apart from two days of pre-sentence custody, and bail was continued at the conclusion of the sentence hearing.

  • Whether count 2 involved skin-on-skin contact with the victim's vagina or touching over clothing, given the jury's inability to reach verdicts on the more serious counts that also involved alleged skin-on-skin contact
  • What objective and subjective circumstances should inform the aggregate sentence for the two offences
  • Whether special circumstances existed to justify departing from the standard non-parole period ratio
  • What indicative and aggregate sentences were appropriate, having regard to the maximum penalty, the standard non-parole period, and the totality principle

Decision

The factual finding on count 2: The defence argued that because the jury could not reach verdicts on counts 1 and 3 (which both involved allegations of skin-on-skin contact), the court could not be satisfied beyond reasonable doubt that count 2 also involved skin-on-skin touching. Letherbarrow SC DCJ rejected that reasoning, noting that the reason for the jury's inability to agree on counts 1 and 3 was unknown. Having reviewed the victim's JIRT interview and pre-recorded evidence, his Honour was satisfied beyond reasonable doubt that count 2 did involve direct skin-on-skin digital touching of the victim's vagina, lasting no more than a few seconds. Count 4 likewise involved the offender pulling the victim's clothing aside and touching her vagina directly with a finger, also briefly.

Objective and subjective factors: Both offences were aggravated by the victim's age of 12 and the significant breach of trust, the offender being a family member in whose home the victim was staying. The victim's impact statement described serious consequences commonly experienced by child victims of sexual assault. On the subjective side, the offender was a person of entirely good character with no prior criminal history, though his Honour noted, consistent with Dousha v R, that good character carries reduced weight in the context of child sexual offences. The offender was assessed as having above-average prospects of rehabilitation.

Special circumstances: The court found that special circumstances existed, warranting a departure from the standard non-parole period ratio. Two factors supported this: the finding of above-average rehabilitation prospects, which would be better supported by a longer supervision period on parole, and the fact that this would be the offender's first time in custody.

Sentencing approach: Applying the instinctive synthesis method endorsed by McHugh J in Markarian v R, and standing back to apply totality principles as discussed in Pearce v The Queen and Postiglione v The Queen, his Honour arrived at an aggregate sentence of 3 years and 6 months with a non-parole period of 2 years and 1 month. The sentence was backdated to 26 February 2020 to account for the two days of pre-sentence custody.

Orders Made

  • The offender was convicted of counts 2 and 4 in the indictment.
  • Indicative sentence for count 2: 3 years imprisonment with a non-parole period of 1 year and 9 months.
  • Indicative sentence for count 4: 3 years imprisonment with a non-parole period of 1 year and 9 months.
  • Aggregate non-parole period: 2 years and 1 month, commencing 26 February 2020 and expiring 25 March 2022.
  • Aggregate head sentence: 3 years and 6 months, commencing 26 February 2020 and expiring 25 August 2023.
  • Bail was continued at the conclusion of the sentence hearing.

Key Takeaways

  • A jury's failure to reach a verdict on related counts does not, of itself, preclude a sentencing court from finding beyond reasonable doubt a specific factual element (here, skin-on-skin contact) in the counts on which a guilty verdict was returned, where the evidence independently supports that finding.
  • The District Court confirmed the established principle from Dousha v R that good character carries less weight as a mitigating factor where the offences are of a sexual nature against children.
  • Under s 21A(5A) of the Crimes (Sentencing Procedure) Act 1999, prior good character is only available as a mitigating factor where that character was not a positive enabler of the offending; here, the provision was agreed not to apply.
  • Special circumstances justifying a reduced non-parole period ratio were established where the offender had above-average rehabilitation prospects and would be serving his first custodial term, making extended post-release supervision appropriate.
  • Applying the totality principle requires the sentencing court to assess, after forming indicative individual sentences, whether the overall aggregate sentence proportionately reflects the full criminality of the conduct.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(5A)
- Bail Act 2013 (NSW), s 50

Cases:
- Dousha v R [2008] NSWCCA 263
- R v Fisher (1989) A Crim R 442
- Markarian v R (2006) 228 CLR 357
- Pearce v The Queen (1998) 194 CLR 610
- Postiglione v The Queen (1997) 189 CLR 295