Citation: R v Dean [2021] NSWDC 676
Court: District Court of New South Wales
Date: 30 September 2021
Judge: Buscombe DCJ
Background
The offender was convicted by jury of two offences committed in Galston between March 2016 and March 2017. The first was sexual intercourse with a child aged 11 or 12 years (count 2), and the second was indecent assault of a child of the same age (count 3). The jury acquitted the offender on three other counts, including one alleging use of a vibrator on the victim during the same incident.
The offender was a long-term family friend of the victim, who had known her since birth. After the victim's parents divorced, she and her father came to live at the offender's premises. The offending occurred at night, in the bedroom where the victim was sleeping. The victim first disclosed the conduct to her stepbrother in late 2018 and made a formal police statement in September 2019.
The court was required to find the facts for sentencing consistently with the jury's verdicts. To the extent any fact was adverse to the offender, it had to be established beyond reasonable doubt.
Legal Issues
- What facts could be found beyond reasonable doubt for sentencing purposes, given the partial acquittals?
- How should the objective seriousness of each offence be assessed?
- Which statutory aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) were established?
- What aggregate sentence and non-parole period were appropriate, having regard to both objective and subjective factors?
Decision
Fact-finding after mixed verdicts. Buscombe DCJ carefully limited the factual findings to what was consistent with the jury's verdicts. The acquittal on count 4, which alleged use of a vibrator during the same incident, led the court to reject beyond reasonable doubt that the offender had given the victim a vibrator or had discussed sex toys with her when she was around four years old. The court did accept, however, that the offender had spoken to the victim about sexual matters over several years and had on one occasion shown her a pornographic website, constituting some degree of grooming.
Objective seriousness. The court assessed both offences as sitting a little below the mid-range of objective seriousness. For count 2, the sexual intercourse involved digital penetration, which is generally treated as less serious than penile penetration or fellatio. The incident appeared to be of limited duration. For count 3, the indecent assault involved skin-on-skin contact and sucking of the child's nipple, an intimate part of the body. Both offences took place while the victim was sleeping in her own bedroom at the offender's home.
Aggravating factors. The court found two aggravating factors under s 21A: breach of trust, arising from the offender's longstanding friendship with the victim and her father; and that the offences occurred in what was effectively the victim's home. These factors were incorporated into the assessment of objective seriousness rather than applied separately, to avoid double counting.
Subjective case and sentence. The offender was 62 years old at the time of sentencing and had a psychological report before the court. He did not give evidence on sentence. Taking all objective and subjective factors into account, the court imposed an aggregate sentence of five and a half years' imprisonment with a non-parole period of three years and four months. The sentence was backdated by four days to account for pre-sentence custody.
Orders Made
- Offender convicted of both offences following the jury's verdicts.
- Count 2 (sexual intercourse with a child aged 10 to 16 years): indicative sentence of 4 years and 6 months imprisonment, with an indicative non-parole period of 2 years and 9 months.
- Count 3 (indecent assault of a person under 16 years): indicative sentence of 3 years imprisonment, with an indicative non-parole period of 1 year and 10 months.
- Aggregate sentence of 5 years and 6 months imprisonment, with a non-parole period of 3 years and 4 months.
- Sentence commences 26 September 2021 and expires 25 March 2027.
- Non-parole period expires 25 January 2025.
Key Takeaways
- Where a jury returns mixed verdicts, the sentencing court must confine its findings of adverse facts to those established beyond reasonable doubt, and acquittals on related counts can inform what additional conduct the court is prepared to accept.
- Grooming conduct admitted as context evidence may be taken into account at sentencing to the extent it is established beyond reasonable doubt, even where the counts to which that evidence was most directly relevant resulted in acquittal.
- A breach of trust aggravating factor under s 21A can arise from a long-term personal relationship between an offender and a victim's family, without requiring any formal or institutional relationship.
- The District Court treated digital penetration as generally less serious than penile penetration or fellatio for the purpose of assessing the objective gravity of a sexual intercourse offence, while still finding the conduct warranted a substantial custodial term.
- Under the aggregate sentencing regime, the non-parole period does not simply result from adding the indicative non-parole periods together; the aggregate term is assessed as a whole with reference to all objective and subjective factors.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 66C(1) (sexual intercourse with child aged 10 to 14 years; maximum 16 years; standard non-parole period 7 years)
- Crimes Act 1900 (NSW), s 61M(2) (indecent assault of child under 16 years; maximum 10 years; standard non-parole period 8 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A (purposes of sentencing)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A (aggravating and mitigating factors)
Cases cited: No cases were cited in the judgment text provided.