Citation: R v DH [2022] NSWDC 209
Court: District Court of New South Wales
Date: 26 May 2022
Judge: Hatzistergos DCJ
Background
The offender and the victim had been close friends since around 2009 or 2010. The victim understood there had never been any intimate or physical relationship between them. The offending came to light on 18 August 2020 when police attended the offender's Potts Point address and discovered a USB drive containing a video recording originating from an Apple device.
The video, approximately seven and a half minutes long, was filmed in the victim's bedroom at Queens Park. It showed the victim lying unconscious or asleep, at times audibly snoring, while the offender performed a series of sexual acts on her. The victim's eyes remained closed throughout, and her body movements were consistent with a person who was asleep and unaware of what was occurring.
Following a trial commencing 7 December 2021, the jury convicted the offender on 15 December 2021 on three counts: two counts of sexual intercourse without consent (digital penetration and penile/vaginal intercourse respectively), and one count of indecent assault by touching and kissing the victim's breasts. The sentencing hearing followed in May 2022.
Legal Issues
- Where on the scale of objective seriousness the sexual assault and indecent assault offences fell, having regard to the victim's sleeping state and the recording of the conduct
- What weight to give the victim impact statement
- Whether the offender's claimed history of childhood sexual abuse could be established
- Whether the offender's health conditions, depression, and substance and gambling issues bore on the sentence
- Whether special circumstances existed justifying a departure from the standard non-parole period
- How the principles of accumulation, concurrency, and totality applied to arriving at an aggregate sentence
Decision
Objective seriousness. Hatzistergos DCJ assessed counts 1 and 3 (sexual intercourse without consent) as sitting around the mid-range of objective seriousness. The court took into account the duration of the offending shown on the recording, the circumstances of humiliation, and the fact that the offender had recorded his conduct. The assault on a sleeping victim was regarded as a significant aggravating feature. Count 2 (indecent assault) was assessed as below the mid-range of objective seriousness, though the same principles about a sleeping victim applied.
Subjective factors. The offender could not establish, on the evidence, that he had been a victim of childhood sexual abuse. The court accepted, however, that he suffered from depression and had a history of drug, alcohol, and gambling problems. These factors provided limited mitigation. The offender's health conditions also made his period in custody more burdensome than it would otherwise be.
Prior sexual offending. The offender had previous convictions for sexual offences. In accordance with established principles, the court noted that prior convictions of this nature are relevant to the purposes of sentencing, particularly specific deterrence and community protection, though they cannot be used to punish the offender again for past conduct. The court assessed him as presenting an average risk of re-offending.
Special circumstances and aggregate sentence. The court found special circumstances, warranting a departure from the standard non-parole period. This finding reflected the offender's health conditions, the need for an adequate period of supervised parole to support rehabilitation, and the earlier period of pre-sentence custody already served. The court imposed an aggregate sentence after applying the principles of accumulation, concurrency, and totality, and also took into account the impact of COVID-19 on the conditions of the offender's incarceration.
Orders Made
- The offender was convicted on all three counts.
- An aggregate sentence of 5 years and 3 months imprisonment was imposed, commencing 19 December 2020 and expiring 18 March 2026.
- Non-parole period: 3 years and 4 months, from 19 December 2020 to 18 April 2024.
- Additional term: 1 year and 11 months, from 19 April 2024 to 18 March 2026, during which the offender is eligible for parole.
- Earliest possible release date: 18 April 2024.
Indicative sentences for individual counts were:
- Count 1 (digital penetration): 3 years 6 months, non-parole period 2 years 4 months.
- Count 2 (indecent assault): 12 months.
- Count 3 (penile/vaginal intercourse): 4 years 6 months, non-parole period 3 years.
Key Takeaways
- Committing sexual acts on a sleeping or unconscious victim is treated as a significant aggravating feature when assessing objective seriousness, with prior Court of Criminal Appeal authority placing such assaults at the upper end of the range for indecent assault.
- The recording of sexual offending by the perpetrator is a further aggravating circumstance the sentencing court weighs in assessing objective seriousness.
- Prior convictions for sexual offences inform the purposes of sentencing, particularly deterrence and community protection, but established principle (confirmed in Veen v The Queen [No 2]) prohibits their use to punish the offender again for past conduct.
- Special circumstances can be found where an offender's health conditions make custody more onerous and where an extended parole period is needed to support rehabilitation, permitting departure from the standard non-parole period.
- Unsubstantiated claims of childhood sexual abuse will not be accepted as mitigation where the offender fails to establish the claimed history on the available evidence.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW) ss 61I, 61L
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 21A, 30E
- Crimes (Administration of Sentences) Act 1999 (NSW) s 276
Cases
- Zhao v R [2019] NSWCCA 203
- R v Hibberd [2009] NSWCCA 20
- EJDG v R [2012] NSWCCA 251
- Veen v The Queen [No 2] (1998) 164 CLR 465
- Moodie v R [2020] NSWCCA 160