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District Court 23 March 2022

R v Alfred (a pseudonym)

[2022] NSWDC 494

Sexual offencesDomestic & family violence
CRIME RELEVANT FACTORS ON SENTENCE MULTIPLE CHILD VICTIMS PLEAS OF GUILTY DISCLOSURE OF UNKNOWN GUILT SIGNIFICANT REDUCTION IN SENTENCE

Citation: R v Alfred (a pseudonym) [2022] NSWDC 494
Court: District Court of New South Wales
Date: 23 March 2022
Judge: Haesler SC DCJ

Background

The offender (referred to by pseudonym to protect the victims' identities) was born in 1979. He was the biological father of one complainant and the stepfather and biological father of two further complainants, all young girls. The offences were committed in New South Wales between 2014 and 2019, with some additional conduct occurring interstate.

The offending came to light after the offender voluntarily disclosed his conduct to his partner in March 2020. His partner subsequently notified interstate authorities. The offender then drove back to New South Wales and, on 11 September 2020, presented himself to Wollongong Police Station, was arrested, and provided detailed admissions in a recorded interview. Prior to those admissions, no victim had provided police with particulars of any offence.

The offender pleaded guilty to multiple charges, including indecent assault of a person under 16, sexual intercourse with a child under 10, and intentionally carrying out a sexual act with a child under 10. All offences were committed in a domestic violence context. He had been in custody since 11 September 2020.

  • What aggregate sentence was appropriate across multiple serious child sexual offences involving three victims?
  • What weight should be given to guilty pleas entered in circumstances where the offender's disclosures revealed offending that was otherwise unknown to police?
  • How should the principles of accumulation, concurrency, and totality be applied to arrive at a just aggregate sentence?
  • Whether any finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 was warranted.

Decision

Haesler SC DCJ identified the offending as serious across all three victims. The offences involved a gross breach of parental trust, multiple child victims of very young ages, and a pattern of repeated conduct over an extended period. The court noted the particular vulnerability of the victims given their ages, and the circumstance that the youngest victim was only two or three years old at the time of the offences against her.

The court gave significant weight to the offender's guilty pleas and, critically, to the fact that his voluntary disclosures had revealed offending that would otherwise have remained unknown. No victim had provided police with sufficient particulars before the offender himself came forward. The court treated this as an important mitigating factor going to both the utilitarian value of the plea and the offender's assistance to authorities.

The court applied the principles of totality, accumulation, and concurrency to the individual sentences to arrive at an aggregate term. It declined to make a special circumstances finding. The court was transparent in recording that its starting point, before applying reductions for the plea of guilty and assistance, was 22 years' imprisonment. The combination of those factors produced a 50% reduction, yielding the aggregate sentence imposed.

Orders Made

Ivy Brown
- Count 1 (indecent assault, person under 16): 2 years 6 months, non-parole period 1 year 10 months

Rose Green
- Sequence 2 (sexual intercourse, child under 10): 4 years 6 months, non-parole period 3 years 4 months
- Sequence 9 (including Form 1 matters): 6 years, non-parole period 4 years 6 months
- Sequence 16: 1 year 6 months
- Sequence 17: 4 years 6 months, non-parole period 3 years 4 months
- Sequence 18: 4 years 6 months, non-parole period 3 years 4 months

Violet Alfred
- Sequence 5: 5 years, non-parole period 3 years 9 months
- Sequence 11 (including Form 1 matters): 6 years, non-parole period 4 years 6 months
- Sequence 7: 4 years 6 months, non-parole period 3 years 4 months

Aggregate sentence
- 11 years' imprisonment
- Non-parole period: 8 years 3 months, commencing 11 September 2020 and expiring 10 December 2028
- Balance of sentence: 2 years 9 months, commencing 11 December 2028 and expiring 10 September 2031
- Sequence 1 withdrawn and dismissed
- The offender was warned he is subject to the High Risk Offenders Act, which may result in extended custody or additional conditions post-sentence if he fails to cooperate with authorities

Key Takeaways

  • A voluntary disclosure that reveals offending previously unknown to police, combined with guilty pleas, can produce a substantial reduction in sentence. Here, the District Court applied a 50% reduction from a starting point of 22 years, resulting in an 11-year aggregate term.

  • Where an offender's admissions provide the primary evidentiary basis for charges (because victims were too young or unable to provide particulars), courts treat that disclosure as a significant mitigating factor in the sentencing calculus.

  • The court declined to make a special circumstances finding, applying standard non-parole period ratios across the relevant counts, with the aggregate non-parole period representing approximately 75% of the total term.

  • Parental or step-parental relationship to victims is a significant aggravating factor in child sexual offences, reflecting a gross breach of the trust and care owed to children in the offender's household.

  • Totality principles operate to moderate what would otherwise be a crushing accumulation of sentences across multiple victims and multiple counts, but courts will still impose substantial aggregate terms where the overall criminality is serious and repeated.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW)
- High Risk Offenders Act (NSW)

Cases
- Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
- AG v R [2016] NSWCCA 102
- Arvinthan v R [2022] NSWCCA 44
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Barbaro v The Queen (2014) 253 CLR 58
- BR v R [2015] NSWCCA 255
- BS v R [2021] NSWCCA 39
- BT v R [2010] NSWCCA 267
- Cahyadi v Regina [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Clarkson v R [2011] VSCA 152
- CMB v Attorney General for New South Wales [2015] HCA 9
- Corby v R [2010] NSWCCA 146
- DBW v R [2007] NSWCCA 236
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Donald (a pseudonym) v R [2021] NSWCCA 198
- DPP (Cth) v Beattie [2017] NSWCCA 301
- Engert (1995) 84 A Crim R 67
- Facer v R [2019] NSWCCA 180
- Gibbon v R [2019] NSWCCA 150