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District Court 19 October 2022

R v ML

[2022] NSWDC 485

Sexual offencesAssault & violenceDomestic & family violence
SENTENCING SEXUAL INTERCOURSE WITHOUT CONSENT (DV)

Citation: R v ML [2022] NSWDC 485
Court: District Court of New South Wales
Date: 19 October 2022
Judge: Wilson SC DCJ

Background

The offender, a man born in 1988, pleaded guilty to six offences committed between February 2019 and June 2020. The victims were his adult partner, her son (aged approximately five at the time), and his own biological daughter (aged approximately two at the time). All offences were classified as domestic violence offences.

The offences included photographing a female toddler's genitalia on two occasions (producing child abuse material), manually touching the child's genitalia, filming himself performing non-consensual anal intercourse on his incapacitated partner, and carrying out a sexual act with the toddler. The offender was arrested in December 2020 and had remained in custody since that date.

At the time of the sexual assault on his partner, the offender was on bail for unrelated offences. He was also serving an earlier custodial sentence for unrelated matters when he was arrested for the subject offending, which created a question about the appropriate commencement date for the index sentence.

  • What is the correct commencement date for the aggregate sentence, given the offender had been in custody partly for unrelated matters?
  • Where on the scale of objective seriousness did each offence fall?
  • Whether the standard non-parole periods should be imposed, and if not, what reasons were required to be recorded?
  • How should the totality principle apply to an aggregate sentence covering multiple offences against three separate victims?

Decision

Wilson SC DCJ sentenced the offender following the "instinctive synthesis" approach confirmed by the High Court in Markarian v The Queen and Muldrock v The Queen, identifying all relevant objective and subjective factors and making an overall value judgment rather than treating the standard non-parole period as a mechanical starting point. The court recorded reasons for departing from the standard non-parole periods as required by s 54B(3) of the Crimes (Sentencing Procedure) Act 1999.

The court identified several aggravating features: the extreme youth and vulnerability of the child victims (one of whom had autism and a language delay), the domestic relationship between the offender and all victims, the recording of the assault on the adult victim, and the commission of one offence while on bail. The offender's pleas of guilty were taken into account in mitigation, as was the totality principle given the number of separate acts and victims.

On commencement date, the court accepted that not all time in custody from December 2020 was referable solely to the index offending. To achieve a measure of concurrency consistent with the totality principle, the sentence was backdated to 2 January 2021, which the court characterised as allowing approximately 50% concurrency for time served on unrelated matters.

The court declined to impose a crushing aggregate sentence, applying concurrency across the individual indicative terms, and ultimately imposed an aggregate term of eight years with a non-parole period of four years.

Orders Made

  • Aggregate sentence of eight years imprisonment, commencing 2 January 2021 and expiring 1 January 2029.
  • Non-parole period of four years, expiring 1 January 2025.
  • All convictions recorded as domestic violence offences under s 12 of the Crimes (Domestic and Personal Violence) Act 2007.
  • Final Apprehended Violence Order (AVO) for five years, to commence upon release from custody, protecting all three victims and their families.
  • AVO conditions prohibiting assault, threats, stalking, harassment, intimidation, and property damage; prohibiting contact except through a lawyer; and prohibiting approach to any school, childcare, or study premises attended by the protected persons.

Key Takeaways

  • The District Court confirmed that standard non-parole periods are guideposts, not mandatory outcomes: sentencing requires an instinctive synthesis of all objective and subjective factors, and departure from a standard non-parole period must be accompanied by recorded reasons.
  • Where an offender is in custody for both related and unrelated matters at the time of sentence, the court may backdate the index sentence to a date that allows partial concurrency, provided the degree of concurrency is calibrated to reflect the totality principle rather than to simply reduce the effective sentence.
  • Commission of an offence while on bail is an established aggravating factor under the Crimes (Sentencing Procedure) Act 1999, and the court treated it as such in fixing the overall sentence.
  • The extreme vulnerability of very young child victims, combined with a domestic relationship and the exploitation of that trust, weighed heavily in the court's assessment of objective seriousness across the child-related offences.
  • Under s 39(2)(b) of the Crimes (Domestic and Personal Violence) Act 2007, a final AVO is mandatory upon conviction for a domestic violence offence; here the order extended to all three victims and their families for five years post-release.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 66DA(a), 66DC(a), 91G(1)(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 12, 35, 36, 39
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 4 Division 1A; s 54B(3)

Cases
- Markarian v The Queen [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120
- Chamseddine v R [2017] NSWCCA 176
- JM v R [2014] NSWCCA 297