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District Court 8 April 2022

R v JDS (No. 2)

[2022] NSWDC 103

Sexual offencesAssault & violenceDomestic & family violence
HISTORICAL CHILD SEXUAL OFFENCES AGGREGATE SENTENCE.

Citation: R v JDS (No. 2) [2022] NSWDC 103
Court: District Court of New South Wales
Date: 8 April 2022
Judge: Mahony SC DCJ

Background

Following a judge-alone trial, the offender was convicted of five counts of historical child sexual offences committed between 31 December 1989 and 10 April 1992. The victims were two of his stepsons, referred to as DE and DSE, who were aged between 7 and 11 years, and between 5 and 7 years respectively, at the time of the offending.

The offences occurred in a domestic context marked by sustained physical violence and alcohol abuse. The court found at trial that the offender drank daily, had a bad temper, was physically violent toward both the complainants and their mother, and had regular unsupervised access to the children. The circumstances of the offending are set out more fully in the earlier verdict judgment, R v JDS [2021] NSWDC 579.

The offender had a prior criminal history spanning three decades, including convictions for assault occasioning actual bodily harm, maliciously inflicting grievous bodily harm in company, and two domestic violence offences in 2019 for which he was serving a sentence at the time of his arrest on these charges.

  • What aggregate sentence was appropriate for five counts of historical child sexual offending against two child victims in a domestic setting?
  • How should the commencement date of the sentence be calculated, accounting for periods of pre-sentence custody and a concurrently running sentence?
  • Whether a final apprehended violence order should be made, given a Local Court order was already in place.

Decision

The District Court sentenced the offender to an aggregate sentence under section 53A of the Crimes (Sentencing Procedure) Act 1999. The five convictions spanned offences under sections 66A, 66C(2), and 61E(1A) and 61E(2A) of the Crimes Act 1900, carrying maximum penalties ranging from 4 to 20 years imprisonment. None of the offences attracted a standard non-parole period.

The court fixed a non-parole period of 4 years and 3 months, commencing on 24 August 2021, with a balance of term of 2 years and 3 months, producing a total aggregate sentence of 6 years and 6 months expiring on 23 February 2028. The commencement date reflected the court's calculation of relevant pre-sentence custody and the overlap with the earlier domestic violence sentences.

On the question of an apprehended violence order, the court declined to make a final order. It was satisfied, under section 39(2) of the Crimes (Domestic and Personal Violence) Act 2007, that a final order protecting the relevant persons had already been made in the Local Court.

Orders Made

  • The offender was convicted of five offences: two counts of sexual intercourse with DE (aged 7 to 11 years) under s 66C(2) of the Crimes Act 1900; inciting DSE (aged 5 to 7 years) to commit an act of indecency under s 61E(2A); committing an act of indecency on DSE under s 61E(1A); and sexual intercourse with DSE (aged under 10 years) under s 66A.
  • An aggregate sentence was imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999.
  • Non-parole period: 4 years and 3 months, commencing 24 August 2021, expiring 23 November 2025.
  • Balance of term: 2 years and 3 months, commencing 24 November 2025, expiring 23 February 2028.
  • The court declined to make a final apprehended violence order, being satisfied a final Local Court order was already in force under s 39(2) of the Crimes (Domestic and Personal Violence) Act 2007.

Key Takeaways

  • The District Court applied aggregate sentencing under s 53A of the Crimes (Sentencing Procedure) Act 1999 across five counts of historical child sexual offending involving two separate victims, producing a total term of 6 years and 6 months.
  • Where a final apprehended violence order is already in force from a Local Court, s 39(2) of the Crimes (Domestic and Personal Violence) Act 2007 permits a sentencing court to decline to make a further final order.
  • A sustained pattern of domestic violence, alcohol abuse, and physical abuse of the victims was treated as part of the relevant factual matrix at sentencing, consistent with the court's findings at trial.
  • The calculation of the sentence commencement date required careful accounting for overlapping periods of pre-sentence custody and a concurrently running sentence arising from separate domestic violence convictions.
  • No standard non-parole period applied to any of the five counts, leaving the court with a broader discretion in fixing the non-parole period relative to the total term.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61E(1A), 61E(2A), 66A, 66C(2), 578A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 39(2)

Cases Cited
- Aryal v R [2021] NSWCCA 2
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- Carrol v R [2019] NSWCCA 243
- Droudis v R [2020] NSWCCA 332
- Fisher v R [2008] NSWCCA 129
- GP v R [2017] NSWCCA 200
- Jonson v R (2016) A Crim R 268
- Merkel v R [2019] NSWCCA 212
- R v Cattel [2019] NSWCCA 297
- R v Edwards (1996) 90 A Crim R 510
- R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56
- R v JJ [2019] NSWCCA 148
- R v JDS [2021] NSWDC 579 (verdict judgment)
- R v King [2009] NSWCCA 117
- R v KNL [2005] NSWCCA 260
- R v Mailes (2003) 142 A Crim R 353
- R v T (1990) 47 A Crim R 29
- R v Tangi (No 12) [2020] NSWSC 547
- R v Van Ryn [2016] NSWCCA 1