Citation: R v Ward [2021] NSWDC 779
Court: District Court of New South Wales
Date: 19 February 2021
Judge: Sutherland SC DCJ
Background
The offender was convicted by a jury of three sexual offences committed against a child victim who was five or six years old at the time. The offending occurred on a single occasion in approximately 2009, when the offender was living in a caravan at a motor vehicle wrecking yard in the Hunter Valley. The victim, who lived across the road, was a frequent visitor to the yard and had stayed overnight in the offender's caravan on several occasions before the offending took place.
The three counts reflected three discrete sexual acts committed during that one occasion: indecent touching of the victim's penis, compelling the child to perform fellatio, and digital penetration of the child's anus. The offender made threats to harm the victim's family if he told anyone. The victim did not disclose the abuse until he was approximately 13 or 14 years old, following a falling out with the offender, and initially did not wish to report it to police.
The offender had previously stood trial on these same three counts, along with additional counts relating to this victim and a separate complainant, in December 2019. At that trial, the jury acquitted him of all counts relating to the other complainant and two additional counts involving the present victim, but was unable to reach a verdict on the three counts now before the court. This sentencing decision followed his conviction at the retrial in October 2020.
Legal Issues
- What was the appropriate sentence for three child sexual offences arising from a single occasion of offending, applying the principles of accumulation and concurrence?
- How should the standard non-parole periods under the Crimes Act 1900 (NSW) inform the sentence, given that the offences predated legislative amendments?
- What weight should be given to the offender's prior acquittals on related counts at the first trial?
- Whether special circumstances existed justifying a departure from the standard ratio between the non-parole period and the head sentence?
- How should the offender's maintenance of innocence, mental health, and prospects of rehabilitation affect the sentence?
Decision
The court accepted the victim's account of the three sexual acts and was satisfied of each count beyond reasonable doubt, consistent with the jury's verdicts. The court noted that context evidence of continuing sexual misconduct over subsequent years had been admitted at trial without objection, but made clear that this evidence played no part in assessing the criminality to be sentenced. That evidence was relevant only to rebut a suggestion that the offending was a one-off event.
On the question of the prior acquittals, the court held that those verdicts could not be used to contradict the jury's findings at the retrial. The fact of acquittal on related counts at the first trial did not reduce or otherwise affect the culpability to be assessed in respect of the three counts of which the offender had now been convicted.
Regarding rehabilitation and the offender's continued denial of guilt, the court applied the principle from Alseedi v R that offenders convicted after trial are not automatically deprived of a finding of reasonable rehabilitation prospects simply because they maintain their innocence. The court ultimately assessed the offender's prospects of rehabilitation as guarded, having regard to his mental health conditions and the nature of the offending.
The court imposed an aggregate sentence, finding that while the three separate acts required some degree of accumulation to recognise their legal distinctiveness, substantial concurrence was appropriate given they arose on the one occasion. Special circumstances were found to exist, having regard to the offender's mental health conditions, the fact that this was his first sentence of imprisonment, and the likely level of isolation he would face in custody as a person convicted of child sexual offences.
Orders Made
- Aggregate sentence of 11 years imprisonment
- Non-parole period of 7 years (reflecting a finding of special circumstances)
- Both the non-parole period and head sentence backdated to commence 19 February 2019, accounting for time already served in custody
- Non-parole period to expire 18 February 2026
- Head sentence (additional term) to expire 18 February 2030
- Indicative sentences: Count 1, 6 years (non-parole period 4 years); Count 2, 9 years (non-parole period 6 years); Count 3, 9 years (non-parole period 6 years)
Key Takeaways
- Context evidence of continuing sexual misconduct, admitted to explain delayed complaint, does not aggravate the sentence for the discrete charged offences and plays no part in assessing criminality for sentencing purposes.
- Prior acquittals at a first trial on related counts cannot be used to diminish or contradict findings made at a subsequent retrial resulting in conviction.
- Under the principle affirmed in Alseedi v R, a sentencing court does not automatically find poor rehabilitation prospects merely because an offender maintains innocence after conviction at trial; the assessment requires a broader consideration of individual circumstances.
- Where multiple sexual offences arise from a single occasion, the sentencing court must impose some accumulation across counts to recognise their legal distinctiveness, while also applying substantial concurrence to avoid a disproportionate overall sentence.
- Special circumstances justifying a reduced non-parole period relative to the head sentence can be established by a combination of factors, including diagnosed mental health conditions, the status of the sentence as a first term of imprisonment, and foreseeable isolation in custody.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 66A(1)
Cases
- Alseedi v R [2009] NSWCCA 185
- Doe v R [2013] NSWCCA 248
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- R v AJP (2004) NSWCCA 434
- R v Gavel (2014) 239 A Crim R 469