AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
District Court 23 April 2021

R v DSM

[2021] NSWDC 283

Sexual offences
CRIME SENTENCE INDECENT ASSAULT UNDER 16 YEARS

Citation: R v DSM [2021] NSWDC 283
Court: District Court of New South Wales
Date: 23 April 2021
Judge: Bourke SC DCJ

Background

The offender, DSM, stood trial before a jury at Parramatta over nine days in February 2021. He faced ten counts on an indictment. The jury returned not guilty verdicts on counts 5 to 10 but convicted him on counts 1 to 4, all charges of indecent assault upon a person under 16 years of age under s 61M(2) of the Crimes Act 1900.

The victim, identified in the judgment only as MM, was the offender's paternal granddaughter, born in August 2004. On an occasion between 2013 and 2016, while other family members had briefly left the house to buy pizza, the offender led MM to a guest room, placed her on a couch, and committed four distinct acts of indecent assault. He kissed her on the lips, touched her vagina both over and under her underwear, touched her breasts, and placed her hand on his penis through his clothing. He told her not to tell anyone.

MM disclosed the abuse progressively over subsequent years. She first made a partial disclosure to her mother in late 2016, and later, following a sex education class in 2018, told a friend she had been touched inappropriately. In January 2019, she made a fuller disclosure to her mother and the matter was reported to police. The offender denied all allegations in a recorded interview.

  • What was the appropriate objective seriousness to assign to each of the four counts of indecent assault?
  • What subjective factors were relevant to the offender's sentence?
  • How should the principle of totality apply when sentencing for multiple offences arising from a single incident?
  • Whether special circumstances existed to justify adjusting the ratio between the head sentence and the non-parole period.

Decision

Objective seriousness: His Honour assessed each count individually. Count 1, touching the vagina both over and under clothing, was assessed as just within the mid-range. Count 4, placing the victim's hand on the offender's penis through clothing, was placed slightly below the mid-range. Count 3, touching of the breasts, was somewhat below the mid-range. Count 2, the kiss on the lips, was placed below the mid-range and approaching the lower range. Across all counts, the court noted significant aggravating features: the gross breach of trust by a grandfather left in care of his granddaughter, the victim's young age (between approximately 10 and 13 years), and an age differential of roughly 45 years.

General deterrence: The court emphasised the community's abhorrence of child sexual offending and the need to reflect current sentencing patterns. Consistent with the Court of Criminal Appeal's observations in R v MJR, the court noted that sentences in this area have increased over time in response to greater understanding of the long-term harm caused and shifting community attitudes. Section 25AA of the Crimes (Sentencing Procedure) Act 1999 required the court to sentence in accordance with current practices.

Victim impact: The court accepted that the offences had caused significant and likely ongoing emotional harm to MM. The Victim Impact Statement was not treated as a statutory aggravating factor under s 21A(2)(g), but it confirmed the kind of lasting damage such offences characteristically cause, including a fractured sense of safety and altered capacity for trust.

Totality and aggregate sentence: Because all four offences occurred on the same occasion, the court found a significant degree of concurrency was appropriate. However, the conduct was not a momentary act; it was a course of conduct lasting some minutes involving four distinct acts, stopping only when the offender heard others returning. The court found some accumulation was warranted. Finding special circumstances based on the offender's age, health, and the fact that this was his first time in custody, the court adjusted the non-parole period ratio accordingly.

Orders Made

  • Aggregate head sentence of five years and nine months imprisonment, commencing 31 March 2021 and expiring 30 December 2026.
  • Non-parole period of three years and six months, expiring 30 September 2024.
  • Finding of special circumstances to adjust the ratio between head sentence and non-parole period.

Indicative sentences (not the operative orders):
- Count 1 (touching vagina): head sentence 3 years 6 months; non-parole period 2 years 2 months.
- Count 2 (kissing on lips): head sentence 18 months; non-parole period 11 months.
- Count 3 (touching breasts): head sentence 2 years 6 months; non-parole period 18 months.
- Count 4 (touching penis through clothing): head sentence 3 years 3 months; non-parole period 2 years.

Key Takeaways

  • The District Court confirmed that the maximum penalty of 10 years and the standard non-parole period of 8 years under s 61M(2) function as important guideposts, not automatic benchmarks, in the sentencing exercise for indecent assault on a child.
  • A position of familial trust, such as a grandfather left in care of a grandchild, operates as a significant aggravating feature when assessing the objective seriousness of child sexual offending.
  • Under s 25AA of the Crimes (Sentencing Procedure) Act 1999, a sentencing court must apply current sentencing practices and patterns, which in child sexual assault matters have trended upward to reflect community attitudes and better understanding of long-term harm.
  • Victim impact statements, while not automatically treated as a statutory aggravating factor under s 21A(2)(g), may confirm the expected and characteristic harm flowing from offences of this nature, consistent with the approach in R v Nelson.
  • Where multiple counts of indecent assault arise from a single incident, the principle of totality supports significant concurrency in the aggregate sentence, though some degree of accumulation remains appropriate where the conduct involved several distinct acts over a sustained period.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(g), 25AA

Cases:
- R v MJR [2002] 54 ACrimR 368 (NSW Court of Appeal)
- R v Nelson [2016] NSWCCA 130 (NSW Court of Criminal Appeal)