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District Court 11 December 2020

R v DLW (No. 5)

[2020] NSWDC 754

Sexual offences
SENTENCE CHILD SEXUAL ASSAULT OFFENCES THREE OFFENCES IN SUCCESSION OBJECTIVE GRAVITY OF OFFENDING TOTALITY PRINCIPLE

Citation: R v DLW (No. 5) [2020] NSWDC 754
Court: District Court of New South Wales
Date: 11 December 2020
Judge: Abadee DCJ

Background

The offender was convicted after a judge-alone trial of three counts of aggravated sexual intercourse with a child under ten years of age, contrary to s 66A(1) of the Crimes Act 1900 (NSW). The offences were committed on a single occasion in 2009 at a social gathering in Budgewoi, when the victim was seven years old. The offender was a friend of the victim's mother.

During the gathering, the offender took the victim to a bedroom, locked the door, and committed three successive acts of sexual intercourse. All three occurred in the face of the victim's protest and physical resistance. At the conclusion of the offending, the offender threatened to kill the victim if he disclosed what had happened.

The sentencing proceedings followed the conviction judgment published as R v DLW (No. 4) [2020] NSWDC 284. The offender had been in custody since 27 June 2017.

  • What was the objective gravity of each of the three offences, and how did they compare to one another?
  • What weight should be given to the psychological harm suffered by the victim, in the absence of expert evidence directly linking the offending to specific diagnosed conditions?
  • How should the totality principle be applied when sentencing for three serious offences committed in rapid succession?
  • Whether an apprehended violence order should be made in favour of the victim.

Decision

Objective gravity. The court found little to distinguish the first and second offences from each other, placing both above the mid-range of objective gravity but short of the high range. The third offence was assessed as approaching the upper end of objective gravity. Two features elevated it: the victim believed he was about to be released but was grabbed and forced back, adding a layer of humiliation and psychological cruelty, and the offender then threatened to kill the victim if he spoke. The death threat was attributed exclusively to the third offence.

The court noted several aggravating features common to all three counts: the victim was at the lower end of the already-young age range for the offence; significant force was used throughout; and the overall conduct was opportunistic and brazen, occurring covertly during a social gathering attended mainly by adults. There was no breach of trust arising from a prior relationship, no grooming, and no actual bodily harm.

Victim impact. Although the victim impact statement described disrupted schooling, anger management difficulties, and ADHD, the court noted the absence of independent medical evidence directly linking those matters to the offending. Consistent with established authority, the court was nonetheless entitled to proceed on the basis that serious psychological and emotional harm flows from child sexual offences of this nature, without requiring proof by specific evidence.

Totality and sentence. Applying the totality principle, the court imposed a single aggregate sentence of 16 years' imprisonment, with a non-parole period of 12 years. The sentence commenced from the date the offender was taken into custody. Indicative sentences were assigned to each count individually before being adjusted to reflect the totality of the offending.

Orders Made

  • Aggregate sentence of 16 years' imprisonment, commencing 27 June 2017 and expiring 26 June 2033
  • Non-parole period of 12 years, expiring 26 June 2029, after which the offender is eligible for parole
  • Indicative sentence for Count 1: 10 years' imprisonment (non-parole period of 7 years, 6 months)
  • Indicative sentence for Count 2: 10 years' imprisonment (non-parole period of 7 years, 6 months)
  • Indicative sentence for Count 3: 12 years' imprisonment (non-parole period of 9 years)
  • Final apprehended violence order in favour of the victim for 5 years from the date of sentence, with standard Schedule 1 conditions prohibiting assault, threats, stalking, intimidation, property damage, and attempts to locate the protected person

Key Takeaways

  • The District Court confirmed that there is no strict hierarchy of seriousness based purely on the type of sexual act involved; context, force, threats, victim age, and psychological impact all bear on objective gravity.
  • A death threat made to secure a child victim's silence was treated as an aggravating feature attached specifically to the offence it accompanied, rather than as a factor applied generally across all counts.
  • Sentencing courts may proceed on the basis that child sexual assault causes serious long-term psychological harm even where expert evidence does not directly link the offending to every symptom described in a victim impact statement, consistent with the Court of Criminal Appeal's approach in DBW v R and R v Gavel.
  • Under the totality principle, where multiple serious offences are committed in a single episode in rapid succession, the aggregate sentence must reflect the overall criminality without becoming a mechanical accumulation of each individual term.
  • A conviction under s 66A(1) of the Crimes Act 1900 (NSW) constitutes a "serious offence" for the purposes of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), enlivening the court's power to make a final apprehended violence order.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 24A, 54B
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 39, 40, 73

Cases
- Carlton v The Queen (2008) 189 A Crim R 332
- DBW v R [2007] NSWCCA 236
- EG v R [2015] NSWCCA 21
- Imbornone v R [2017] NSWCCA 144
- Ingham v R [2014] NSWCCA 123
- R v JDX; JDX v R [2017] NSWCCA 9
- Muldrock v The Queen (2011) 244 CLR 120
- Munda v State of Western Australia (2013) 249 CLR 600
- R v AJP [2004] NSWCCA 434
- R v CMB [2014] NSWCCA 5
- R v DLW (No. 4) [2020] NSWDC 284
- R v Gavel [2014] NSWCCA 56
- R v King [2009] NSWCCA 117
- R v MAK (2006) 167 A Crim R 159
- R v MJB [2014] NSWCCA 195
- R v Totten [2003] NSWCCA 207
- RJA v R [2014] NSWCCA 89
- Roff v R [2017] NSWCCA 208
- Shannon v R [2006] NSWCCA 39