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District Court 4 November 2022

R v Duncan

[2022] NSWDC 543

Sexual offences

Citation: R v Duncan [2022] NSWDC 543
Court: District Court of New South Wales
Date: 4 November 2022
Judge: Tupman DCJ

Background

The offender, a 67-year-old man (aged 64 at the time of the offending), was sentenced following a jury trial in Queanbeyan in May and June 2022. He had lived with his wife and two daughters in the Bega area and was heavily involved in Pony Club activities. The three victims, aged between 10 and 16, were friends of his daughters who shared that equestrian interest.

The offending occurred in two settings: at the offender's home when victims visited his daughters, and during overnight camping and horse-riding trips in the Kosciuszko National Park. The jury returned guilty verdicts on eight of the twelve counts of sexual touching on the indictment. Four counts resulted in not guilty verdicts, and the jury was discharged on two further counts without reaching a verdict.

The offender was sentenced on eight counts of sexual touching contrary to s 66DB(a) of the Crimes Act 1900 (NSW), each carrying a maximum penalty of 10 years imprisonment. The three victims are referred to by initials in the judgment to comply with ongoing non-publication orders.

  • What is the appropriate sentence for eight counts of sexual touching of children aged 10 to 16, assessed across varying levels of objective seriousness?
  • How should general sentencing principles, including general deterrence and the s 5 threshold for imprisonment, apply to these offences?
  • What weight should be given to mitigating factors including the offender's age, limited criminal history, prospects of rehabilitation, hardship to his daughters, and extra-curial punishment arising from media reporting?
  • What obligations arise under s 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW) regarding the trauma of child sexual abuse?
  • Was the offender required to be informed of the potential application of the Crimes (High Risk Offenders) Act 2006 (NSW)?

Decision

Tupman DCJ assessed each count individually for objective seriousness. Two counts fell at the bottom of the range, five fell slightly below the midrange, and one fell at the midrange. The offending was characterised as opportunistic, exploiting the trust and social access provided by the offender's daughters' friendships with the victims. The Court applied s 25AA(3) of the Crimes (Sentencing Procedure) Act 1999, taking into account current understanding of the trauma of sexual abuse on children.

The Court applied the general sentencing purposes under s 3A, with particular emphasis on general deterrence given the nature of the offences. Her Honour noted that for child sexual assault offences, the community message is clear: such conduct will almost always result in full-time imprisonment. The legislative prohibition on community-based service of any sentence for this class of offence was also noted.

Several mitigating factors were considered. The offender had no significant prior criminal record. He was assessed as having good prospects of rehabilitation and little likelihood of reoffending. His age at the time of offending (64) and now (67) was relevant. The Court acknowledged the likely hardship to his teenage daughters resulting from his incarceration, and also found that disproportionate and sensational media reporting constituted extra-curial punishment warranting some weight in the sentencing calculus.

Victim impact statements from all three victims were received and considered. The Court accepted the serious impact the offending had caused. The offender was ultimately sentenced to full-time imprisonment, with the Court constructing an aggregate sentence by applying the totality principle across all eight counts. The offender was also informed of the potential application of the Crimes (High Risk Offenders) Act 2006 (NSW), as required by s 25C of that Act.

Orders Made

• For each of the eight offences, convicted.
• For counts 9 and 10, pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999, no further penalty.
• For counts 5, 6, 7, 8, 12 and 13, aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999: non-parole period of 2 years and 6 months commencing 3 November 2022, expiring 2 May 2025; parole of 2 years and 6 months commencing 3 May 2025, expiring 2 November 2027; overall term of imprisonment of 5 years commencing 3 November 2022, expiring 2 November 2027.
• Counts 3 and 4 adjourned for mention at regional call over on 23 November 2022.

Key Takeaways

  • Under s 66DB(a) of the Crimes Act 1900 (NSW), sexual touching of a child aged 10 to 16 carries a maximum of 10 years imprisonment, and the legislature has mandated that any sentence must be served as full-time imprisonment, not in the community.
  • The District Court confirmed that general deterrence under s 3A(b) of the Crimes (Sentencing Procedure) Act 1999 carries particular weight for child sexual assault offences, reflecting the community's expectation that such conduct will almost invariably result to a custodial term.
  • Extra-curial punishment through disproportionate and sensational media coverage was accepted as a mitigating factor, capable of reducing the sentence that would otherwise be imposed.
  • Hardship to an offender's dependants is a recognised sentencing consideration; here, the likely increase in hardship to the offender's teenage daughters following incarceration was taken into account, though it could not displace the need for full-time imprisonment.
  • Where an offender is sentenced for offences falling within the definitions of "serious sexual offence" under the Crimes (High Risk Offenders) Act 2006 (NSW), the sentencing court is obliged to inform the offender of the potential application of that Act under s 25C, though any failure to do so does not affect the validity of the sentence imposed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): s 66DB(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 3A, 3A(b), 5, 10A, 21A, 21A(3)(e)-(f), 21A(5A), 25AA, 25AA(3)
- Crimes (High Risk Offenders) Act 2006 (NSW): ss 4, 5, 25C

Cases:
- R v Wran [2016] NSWSC 1015
- Doyle v R [2022] NSWCCA 81
- Ragg v R [2022] NSWCCA 150
- Ryan v The Queen (2001) 206 CLR 267
- RO v R [2019] NSWCCA 183