Citation: The Queen v DLW [2021] NSWDC 319
Court: District Court of New South Wales
Date: 15 July 2021
Judge: Wilson SC DCJ
Background
The offender was found guilty following a judge-alone trial on three counts of aggravated sexual assault of a victim under 16 years of age, contrary to section 61J of the Crimes Act 1900 (NSW). The offending occurred between February 2002 and June 2003. The victim was between 10 and 12 years old at the time, and the offender was approximately 14 years old.
The offences came to light many years later. The offender was arrested in Queensland in June 2017 on an unrelated matter, extradited to New South Wales, and was not arraigned on the subject charges until June 2019. By the time of sentencing, the offender was already serving a 16-year sentence for unrelated child sexual offences.
Because the offender was over 21 when charged, section 16 of the Children (Criminal Proceedings) Act 1987 (NSW) required that he be sentenced as an adult at law, rather than under the more protective children's sentencing regime. Critically, however, the standard non-parole period of 10 years applicable to section 61J offences did not apply because the offending was committed while the offender was a juvenile.
Legal Issues
- Whether the standard non-parole period applied where the offending occurred during the offender's childhood
- How to assess the objective seriousness of each count and the appropriate aggregate sentence
- What aggravating and mitigating factors were relevant, including good character at the time of offending and the absence of remorse
- How to structure the new sentence to run alongside an existing, unrelated term of imprisonment, including the degree of concurrency required to avoid a crushing sentence
- Whether an apprehended violence order was required by operation of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Decision
Wilson SC DCJ confirmed that, because the offending occurred when the offender was a juvenile, the standard non-parole period of 10 years did not apply to the sentencing exercise. The maximum penalty of 20 years' imprisonment for each count remained relevant as a yardstick for objective seriousness.
The court identified actual or threatened violence as an aggravating factor across all three counts, with the additional aggravating factor of the threatened use of a knife in Count 3. The offender was afforded the mitigating benefit of having had no prior criminal record at the time of the offences, permitting a finding of good character. However, the court expressly found no remorse, assessed the prospects of rehabilitation as poor, and characterised the risk of re-offending as at least moderate, given the offender's subsequent offending history.
In structuring the sentence, Wilson SC DCJ was mindful of the principle that a court must not impose a crushing sentence. Given that the offender was already serving a lengthy term for separate child sexual offences, the court allowed a period of four years' concurrency. The new aggregate sentence was therefore ordered to commence on 26 June 2025, part-way through the existing sentence.
An apprehended violence order was also required by statute. The offences constituted "serious offences" within the meaning of section 40(5)(c) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), which engaged the mandatory order-making obligation under section 39(1A) of that Act.
Orders Made
- The offender was convicted on Counts 1, 2, and 3 of aggravated sexual assault of a victim under 16 years, contrary to section 61J of the Crimes Act 1900 (NSW).
- An aggregate sentence of 12 years' imprisonment was imposed, comprising a non-parole period of 6 years commencing 26 June 2025 and expiring 25 June 2031, with a balance of term of 6 years expiring 25 June 2037.
- A 5-year apprehended violence order was made in favour of the victim, prohibiting the offender from:
- Assaulting, threatening, stalking, harming, or intimidating the protected person or any person with whom he has a domestic relationship
- Intentionally or recklessly damaging property belonging to the protected person or any person in a domestic relationship with him
- Attempting to find or contact the protected person or any person with whom he has a domestic relationship by any means
Key Takeaways
- Under section 16 of the Children (Criminal Proceedings) Act 1987 (NSW), an offender who was a child at the time of the offending but over 21 when charged must be sentenced at law as an adult, though the standard non-parole period does not apply.
- A finding of good character at the time of the offence remains available even for serious historical offending, provided the offender had no prior criminal record at the relevant time.
- Where an offender is already serving a substantial sentence for separate offending, the principle against imposing a crushing sentence may warrant a degree of concurrency between the new and existing terms, even where the criminality is distinct.
- The District Court confirmed that section 39(1A) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) mandates the making of an apprehended violence order upon conviction for a "serious offence" as defined in section 40(5)(c) of that Act.
- Subsequent offending after the index period is relevant to the assessment of rehabilitation prospects and reoffending risk at sentencing, even when the earlier offending predates any criminal record.
Legislation and Cases Referenced
Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 16
- Crimes Act 1900 (NSW), s 61J(1)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 39(1A), 40(5)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 5, 21A, 25AA
Cases:
- JA v R [2021] NSWCCA 10
- KT v R [2008] NSWCCA 51
- Mill v The Queen (1988) 166 CLR 59
- R v AA [2017] NSWCCA 84
- R v AEM [2002] NSWCCA 58
- R v Donald [2013] NSWCCA 238
- R v Harrison (2002) 121 A Crim R 380
- R v Voss [2003] NSWCCA 182
- R v Todd (1982) 2 NSWLR 517