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District Court 12 April 2021

R v DR

[2021] NSWDC 118

Sexual offences
CRIME SENTENCING HISTORICAL CHILD SEX UAL ABUSE OFFENDER’S NATURAL DAUGHTER TWO COMPLAINANTS AGGREGATE SENTENCE

Citation: R v DR [2021] NSWDC 118
Court: District Court of New South Wales
Date: 12 April 2021
Judge(s): Sutherland SC DCJ

Background

The offender, identified only as DR due to suppression orders, appeared for sentencing on multiple historical child sexual offences committed against two victims over a period of years. The first victim (Victim 1) was the younger sister of the offender's long-term partner. The second victim (Victim 2) was the offender's own natural daughter, born of that relationship.

Offending against Victim 1 began when she was approximately 11 years old, around 1995 to 1996, and continued across several incidents until she was 15 years of age in 2009. The offences ranged from digital penetration to repeated penile-vaginal intercourse and indecent assault, some committed while other children were asleep nearby. Offending against Victim 2, who was aged 8 or 9 at the relevant time, involved three separate acts of aggravated digital intercourse, each carrying a maximum penalty of life imprisonment.

The matter proceeded to a jury trial in November and December 2020. Partway through Victim 1's evidence-in-chief, having initially pleaded not guilty to all charges, the offender sought to be re-arraigned and entered late guilty pleas to the majority of counts. This meant Victim 2 was not required to give evidence at trial.

  • What aggregate sentence was appropriate given the number, variety, and severity of offences across two victims spanning multiple years?
  • What discount, if any, was warranted for the guilty plea, given it was entered mid-trial during the first complainant's evidence?
  • How should the principles of totality and accumulation apply when sentencing for repeated offences against two separate victims occurring years apart?
  • Whether special circumstances existed justifying a departure from the statutory ratio between the non-parole period and the total sentence.

Decision

The sentencing judge characterised the offending as serious across the board. The offences against Victim 1 included aggravated sexual intercourse with a child aged 10 to 14 (carrying a maximum of 20 years), repeated penile-vaginal intercourse, and an aggravated indecent assault when the victim was 15. The offences against Victim 2 each attracted life imprisonment as the maximum penalty, given her age (under 10) and the aggravating circumstance of being under the offender's authority as her father.

The late guilty plea was acknowledged as carrying some mitigating weight, described as a "limited" demonstration of contrition. Because the pleas were entered mid-trial, only a 5% statutory discount applied. The judge noted that Victim 1 had broken down repeatedly during her testimony and the belated pleas spared Victim 2 from having to give evidence.

On totality, the judge applied the principle that some level of accumulation was required to reflect the separate and repeated nature of the incidents and the involvement of two distinct victims over a prolonged period. At the same time, a degree of concurrence was necessary to produce a proportionate overall sentence. The judge declined to find special circumstances, meaning the standard statutory ratio between the non-parole period and the balance of the sentence was maintained.

Orders Made

  • The offender was convicted of all counts to which he entered a guilty plea.
  • An aggregate sentence of 20 years and 10 months was imposed (incorporating a 5% discount for the guilty plea).
  • Non-parole period: 15 years and 6 months, commencing 15 March 2019 and concluding 14 September 2034.
  • Additional term: 5 years and 4 months, expiring 14 January 2040.
  • The sentence was backdated to 15 March 2019, the date on which the offender became eligible for parole in respect of separate assault and intentional choking offences sentenced at Mount Druitt Local Court on 18 January 2019.
  • Special circumstances were not found.
  • Non-publication orders were made with respect to the names and identifying features of both complainants and the offender.

Key Takeaways

  • A guilty plea entered mid-trial, after one complainant had already given distressing evidence-in-chief, attracted only a 5% sentencing discount rather than any greater concession for utilitarian value or contrition.
  • Offences of sexual intercourse with a child under 10 years, where that child is also under the offender's authority, carry a maximum of life imprisonment and a standard non-parole period of 15 years, reflecting Parliament's assessment of their gravity.
  • Where a standard non-parole period applied to some charges but not others (because earlier offences pre-dated the 2015 legislative amendments), the sentencing court applied the relevant framework on a charge-by-charge basis before constructing an aggregate term.
  • The totality principle required balancing genuine accumulation (to reflect two victims, repeated incidents, and a multi-year span of offending) against concurrence sufficient to produce a proportionate overall result.
  • Non-publication orders protecting the identity of child complainants may also extend to the identity of the offender where his identification would necessarily reveal the victims' identities.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66A(2), 66C(1), 66C(2), 66C(4)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW)
- Drug Court Act 1998 (NSW)

Cases:
- Markarian v The Queen (2005) 228 CLR 357
- R v Holder (1983) 3 NSWLR 245
- Gore v R [2010] NSWCCA 330; (2010) 208 A Crim R 353
- BT v R [2010] NSWCCA 267
- MRW v R [2011] NSWCCA 260
- R v Gavel (2014) 239 A Crim R 469
- BR v R [2015] NSWCCA 255
- R v Tuala [2015] NSWCCA 8
- Franklin v R [2016] NSWCCA 319
- Alesbhi v R [2018] NSWCCA 30
- R v Cattell [2019] NSWCCA 297
- FD v R [2013] NSWCCA 139
- R v MM (No 3) [2018] NSWDC 529
- R v Bain [2006] NSWCCA 79
- R v Slater [2003] NSWCCA 178
- R v Youkhana [2004] NSWCCA 412
- R v Seymour [2012] NSWSC 1010