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District Court 6 August 2021

R v DAW (No. 3)

[2021] NSWDC 383

Sexual offences
SENTENCING HISTORICAL SEX OFFENCES SANCTIONED’ DUPLICITOUS COUNT

Citation: R v DAW (No. 3) [2021] NSWDC 383
Court: District Court of New South Wales
Date: 6 August 2021
Judge: Abadee DCJ

Background

Following a jury trial, an offender was convicted of multiple historical sexual offences committed against his daughter over several decades. The offences spanned the victim's childhood (from age 7), her adolescence, and ultimately a single offence committed when she was an adult aged 44. The convictions covered offences under various provisions of the Crimes Act 1900 (NSW), including maintaining an unlawful sexual relationship with a child, sexual assault causing actual bodily harm, non-consensual sexual intercourse, and incest.

The central and most serious count (count 1) charged the offender with maintaining an unlawful sexual relationship with the victim under s 66EA of the Crimes Act 1900. That count was "duplicitous" in the sense that it was supported by four particularised "ingredient" incidents of penile vaginal intercourse occurring at various points between 1979 and 1988. Because the statute does not require jurors to agree on which specific acts established the relationship, the jury returned a general verdict on count 1 without specifying which of the four particularised incidents it accepted.

This created a doctrinal difficulty at sentencing: the court could not determine from the verdict which ingredient incidents the jury had found proved beyond reasonable doubt. The sentencing remarks address both that controversy and the ultimate sentence imposed.

  • Whether, when sentencing on a s 66EA "maintaining an unlawful sexual relationship" count supported by multiple particularised ingredient incidents, the court should sentence on the basis of all particularised incidents or only those least serious in nature.
  • Whether the inscrutability of the jury verdict on count 1 required any special factual approach to the sentencing exercise.
  • What the appropriate sentence was, having regard to the nature and extent of the offending, the offender's age and ill-health, and the relevant sentencing principles under the Crimes (Sentencing Procedure) Act 1999 (NSW).

Decision

The duplicitous count controversy

Abadee DCJ identified a live doctrinal debate in the NSW District Court as to how a sentencing judge should approach a s 66EA count where the jury has not specified which particularised ingredient incidents it accepted. Two approaches existed in recent unreported decisions: one favouring sentencing only on the least serious ingredient offences (Latham SC ADCJ in R v RB, which was subject to a Crown appeal at the time); the other favouring consideration of all particularised ingredient incidents (R v RW and R v A). Both the Crown and defence counsel submitted the latter approach was correct.

His Honour engaged with the controversy but ultimately found it did not materially affect the outcome in this case. Three of the four ingredient incidents involved identical offences with materially similar facts; the fourth carried a higher maximum penalty than the others. In those circumstances, it was practically impossible to identify any single incident as clearly least serious. The theoretical debate, while noted, did not determine the result.

Sentencing reasoning

His Honour took into account the serious and prolonged nature of the offending, the profound harm caused to the victim, the breach of trust inherent in offending by a parent against a child, and the fact the offending spanned childhood through to the victim's adulthood. The court accepted that mechanically accumulating full sentences would be "crushing" given the offender's elderly age and declining health, and that each year of a sentence represented a substantial portion of the remaining life of an elderly first-time offender. Special circumstances were found to apply, reducing the proportion of the sentence to be served before parole eligibility.

Indicative sentences

The court set indicative sentences for each count: 15 years for count 1, 1 year for count 6, 3 years for count 8, and 3 years for count 10, before arriving at a total effective sentence through partial concurrency.

Orders Made

  • Total term of imprisonment: 17 years, commencing 29 January 2021 and expiring 28 January 2038.
  • Non-parole period: 10 years, 2 months, and 14 days, expiring 11 April 2031, after which the offender is eligible for release on parole.
  • 190 days already spent in custody was taken into account.

Key Takeaways

  • The District Court identified, but did not definitively resolve, a doctrinal controversy as to whether sentencing for a s 66EA "maintaining an unlawful sexual relationship" count should proceed on the basis of all particularised ingredient incidents or only the least serious. His Honour noted the issue was the subject of a Crown appeal in a concurrent case.
  • Under s 66EA(5), jurors are not required to agree on which specific acts constituted the unlawful sexual relationship, meaning the jury verdict on such a count will often be inscrutable as to the constituent facts. This inscrutability creates a sentencing difficulty that the court must address.
  • A sentencing court retains the power to form its own view of the facts following a jury verdict, provided those findings do not conflict with the verdict itself, applying R v Olbrich (1999) 199 CLR 270 and Savvas v The Queen (1995) 183 CLR 1.
  • Where the particularised ingredient incidents underlying a s 66EA count are substantially similar in nature and seriousness, the theoretical distinction between competing sentencing approaches may have no practical effect on the outcome.
  • Offender-specific factors including advanced age, poor health, and first-offender status remained relevant mitigating considerations even against a background of serious and prolonged sexual offending, including in the assessment of whether special circumstances existed to adjust the parole ratio.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59, 61C, 61D, 66EA, 78A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A
- Criminal Procedure Act 1986 (NSW), s 293A
- Crimes Act 1914 (Cth), s 43

Cases
- Chiro v The Queen (2017) 260 CLR 465
- Cheung v The Queen (2001) 209 CLR 1
- Savvas v The Queen (1995) 183 CLR 1
- R v Olbrich (1999) 199 CLR 270
- KMC v DPP (SA) (2020) 267 CLR 480
- Blundell v The Queen (2008) 70 NSWLR 660
- Burr v R [2020] NSWCCA 282
- Hillman v The Queen [2021] NSWCCA 43
- Gould v R [2021] NSWCCA 92
- EG v R [2015] NSWCCA 21
- Jackson v R [2020] NSWCCA 230
- R v Van Ryn [2016] NSWCCA 1
- R v Gavel (2014) 239 A Crim R 469
- R v RB (District Court (NSW), 4 June 2021, unrep)
- R v RW (District Court (NSW), 1 April 2021, unrep)
- R v A [2021] NSWDC 232
- R v Hudson (NSWCCA, 30 July 1998, unrep)
- R v JVP (NSWCCA, 6 November 1995, unrep)
- R v Varner; R v Holyoak; R v Gallagher (NSWCCA, 29 November 1995, unrep)