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District Court 17 February 2023

R v Davidson (a pseudonym)

[2023] NSWDC 101

Sexual offences

Citation: R v Davidson (a pseudonym) [2023] NSWDC 101
Court: District Court of New South Wales
Date: 17 February 2023
Judge: Haesler SC DCJ

Background

The offender, referred to by the pseudonym Davidson, was convicted by jury on 15 November 2022 of two counts of sexual intercourse with a child under 16 years in circumstances of aggravation, specifically that the child was under his authority, contrary to s 66C(2) of the Crimes Act 1900 (NSW). The complainant was the niece of the offender's partner and had been living in the family home in southern Wollongong while in the care of the Minister for relevant child welfare purposes.

The offences occurred approximately two to three months before Australia Day 2020. On the first occasion, the offender digitally penetrated the complainant while she was seated on a lounge watching television. On the second occasion, three days later, he entered her bedroom and repeated the conduct. The complainant was 15 years old at the time. The offending came to light on Australia Day 2020, when the complainant disclosed it to a cousin at Wollongong Railway Station following a family altercation, and was subsequently taken to hospital and interviewed by police.

Following conviction, the offender's bail was revoked. His sentence ran from 15 November 2022.

  • How to assess the objective seriousness of two counts of aggravated child sexual intercourse under s 66C(2), having regard to the particular facts and the statutory maximum and standard non-parole period
  • Whether the circumstance of aggravation (child under authority) should also be counted separately as a breach of trust, or whether doing so would constitute impermissible double counting
  • How to weigh the offender's criminal history against the mitigating features of his personal circumstances
  • The proper role of retribution and victim vindication in sentencing for child sexual assault
  • Whether special circumstances existed justifying a variation from the standard ratio of non-parole period to head sentence
  • Whether an aggregate sentence was appropriate

Decision

Objective seriousness: Haesler SC DCJ assessed each offence as falling in the lower range of objective seriousness, relative to other more serious offending of this type. The act of penetration was described by the Crown as "fleeting," and there was an absence of commonly occurring aggravating features such as prolonged conduct or additional demeaning acts. Nonetheless, the Court emphasised that any act of sexual penetration of a child by someone in authority over her is very serious. The location of the second offence in the complainant's own bedroom, a place she was entitled to feel safe, and the offender's role as a trusted carer, were treated as significant.

Double counting: The Court accepted the Crown's submission that taking into account breach of trust separately from the statutory aggravating circumstance (that the child was under the offender's authority) would amount to double counting, and declined to do so.

Criminal history: The offender had a prior criminal record, including time in custody decades earlier, though no prior offences of a sexual nature. His record disentitled him to the leniency sometimes afforded first offenders, though the Court noted that such leniency is rarely extended in cases of this kind in any event.

Victim impact and purposes of sentencing: The Court received and considered a victim impact statement, read to the Court by the complainant's aunt. Haesler SC DCJ emphasised the community expectation of severe punishment in cases of this nature, the court's obligation to vindicate the dignity of child victims, and the deterrent and protective functions of structuring a sentence to include a period of supervised parole. Relying on Munda v Western Australia and R v Herring, the Court held that retribution and victim vindication were central sentencing considerations. Research indicating that parole supervision reduces reoffending rates informed the decision to structure the sentence to allow for a supervision period on release.

Orders Made

  • Count 1 (indicated): 4 years imprisonment, with a non-parole period of 2 years and 5 months
  • Count 2 (indicated): 4 years imprisonment, with a non-parole period of 2 years and 5 months
  • Aggregate sentence: 5 years imprisonment, with a non-parole period of 3 years
  • Sentence commences: 15 November 2022
  • Earliest parole eligibility: 14 November 2025 (subject to State Parole Authority determination)
  • Balance of sentence (2 years): commences 15 November 2025, expires 14 November 2027

Key Takeaways

  • The District Court confirmed that every act of sexual penetration of a child by a person in authority over that child is treated as very serious, with the statutory maximum of 12 years and standard non-parole period of 5 years under s 66C(2) providing the relevant sentencing benchmarks.
  • Where the statutory aggravating circumstance is that the child was under the offender's authority, a court must not also separately count the related breach of trust as an additional aggravating feature, as doing so would constitute impermissible double counting.
  • Under Muldrock v The Queen and Markarian v The Queen, a staged sentencing approach (comparing the actual offence to a hypothetical mid-range offence before applying mitigating and aggravating factors) is not required and may be unhelpful; the standard non-parole period functions instead as a legislative guidepost to be balanced against all relevant sentencing considerations.
  • Retribution and victim vindication are expressly recognised as central purposes of sentencing in child sexual assault cases, with courts bearing an obligation to mark community disapproval and protect vulnerable persons, including through structuring sentences to allow for supervised parole on release.
  • A prior criminal record that predates and is unrelated in nature to the current offending does not necessarily attract significant weight, but it will generally preclude the leniency sometimes afforded true first offenders.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61HA, 66C(2)
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases
- Clarkson v R [2011] VSCA 152
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 5
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 25
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- R v Gavel [2014] NSWCCA 56
- R v Herring (1956) 73 WN (NSW) 203
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- R v Van Ryn [2016] NSWCCA 1
- Tepania v R [2018] NSWCCA 247