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District Court 26 November 2021

R v SM

[2021] NSWDC 786

Sexual offences
CRIME SENTENCE OFFENDER THE FATHER OF THE VICTIM VICTIM HAD AN INTELLECTUAL DISABILITY

Citation: R v SM [2021] NSWDC 786
Court: District Court of New South Wales
Date: 26 November 2021
Judge(s): Sutherland SC DCJ

Background

The offender, a 40-year-old man, appeared for sentencing following guilty pleas to multiple serious sexual offences committed against his own daughter. A non-publication order applied to the offender's name to protect the victim's identity. The offending occurred in a small town on the NSW/Queensland border and at a rural property where the offender worked.

The victim had been diagnosed with autism and ADHD at age five. The offender's wife travelled regularly to Brisbane for medical treatment, sometimes for periods of two to three days on at least 30 occasions. During those absences, the victim and other children were left in the offender's care, and he exploited those opportunities to commit the offences.

The offending commenced with a physical assault in approximately April or May 2019, when the victim was under 16, and escalated into a pattern of sexual abuse extending into early 2021. The offences included repeated anal penetration, sexual touching, an attempted sexual assault, and aggravated incitement of a sexual act.

  • What aggregate sentence, including a non-parole period, was appropriate for the totality of the offending across eight substantive charges and related Form 1 matters?
  • What weight should be given to the 25% discount for early guilty pleas, the offender's lack of prior criminal history, and other subjective factors?
  • What were the appropriate indicative sentences for each individual offence before arriving at an aggregate term under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW)?
  • How should the victim's intellectual disability and the offender's position of authority as the victim's father be treated as aggravating features?

Decision

The District Court recorded guilty pleas to eight substantive charges. The offences covered a period from approximately mid-2019 to early 2021. The court noted that each act of aggravated sexual assault involved anal penetration, a particularly serious form of sexual violence, compounded by the offender's position as the victim's father and her vulnerability arising from her autism and ADHD.

His Honour treated the offender's parental authority over the victim, and her intellectual disability, as significant aggravating factors. The victim's dependence on her father during her mother's medical absences placed her in a position of particular vulnerability that the offender systematically exploited. The court observed that the offender's prior good character was of little significance in the circumstances of this offending.

A 25% discount was applied across all indicative sentences to reflect the early indication of guilty pleas. The court proceeded by way of an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), setting indicative sentences for each count before arriving at the final aggregate term, and noted that the length of the sentence would provide adequate supervision on release without requiring a separate extended supervision order.

Orders Made

  • Non-publication order made with respect to the offender's name, to protect the identity of the victim.
  • Aggregate term of 16 years imprisonment imposed, commencing 23 February 2021.
  • Non-parole period of 12 years, expiring 22 February 2033.
  • Additional term expiring 22 February 2037.
  • Indicative sentences for individual counts (each discounted by 25% for early guilty pleas):
  • Sequence 8 (common assault): 6 months
  • Sequence 22 (sexual touching): 2 years 3 months
  • Sequence 10 (aggravated sexual assault under authority): 10 years, non-parole 7 years
  • Sequence 13 (attempted aggravated sexual assault under authority): 6 years
  • Sequence 14 (aggravated sexual assault under authority, with Sequence 4 on Form 1): 8 years, non-parole 6 years
  • Sequence 16 (aggravated sexual assault): 7 years 6 months, non-parole 5 years
  • Sequence 15 (aggravated sexual assault under authority, with Sequence 17 on Form 1): 11 years, non-parole 8 years
  • Sequence 18 (aggravated inciting a person to commit a sexual act): 12 months

Key Takeaways

  • The District Court treated the combination of parental authority and the victim's intellectual disability as serious aggravating features that significantly increased the objective gravity of the offending.
  • Under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), an aggregate sentence requires the sentencing court to set out indicative sentences for each substantive count before arriving at a final term that reflects the totality of the criminal conduct.
  • A 25% discount for an early indication of a guilty plea applied across all indicative sentences and was expressly incorporated into the final aggregate term.
  • Prior good character carries limited mitigating weight where an offender has committed sustained sexual abuse against a vulnerable family member in a position of complete trust.
  • Sufficient features existed in this case, including the first-time custody status and COVID-19 conditions, to satisfy the court that the length of the aggregate sentence would provide adequate post-release supervision without additional orders.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61, 61J(1), 61KC(a), 61KD(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A

Cases cited:
- Franklin v R [2016] NSWCCA 319
- MRW v R [2011] NSWCCA 260
- R v Gavel [2014] NSWCCA 6
- R v GWM [2012] NSWCCA 240
- R v PGM [2008] NSWCCA 172
- R v Slater [2003] NSWCCA 178
- R v Tuala [2015] NSWCCA 8
- Walsh v R [2015] NSWCCA 83