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District Court 24 February 2023

R v DD

[2023] NSWDC 19

Sexual offences
CRIMINAL SENTENCE CHILDREN GENERAL PRINCIPLES OBJECTIVE SERIOUSNESS MITIGATING FACTORS

Citation: R v DD [2023] NSWDC 19
Court: District Court of NSW
Date: 24 February 2023
Judge: King SC DCJ

Background

The offender, a man then aged 54, appeared for sentencing on multiple child sexual assault offences committed against his three stepdaughters over a prolonged period. The complainants were born in 2000, 2001, and 2003. The offending began when the youngest complainants were primary school aged and continued across several years within the family home and at a family holiday cabin.

The offending encompassed a wide range of serious conduct, including repeated acts of sexual intercourse and indecent assault against each child. The offender also faced one charge of doing an act intending to pervert the course of justice, which arose after his initial arrest in May 2021. That charge, along with a contravention of an Apprehended Domestic Violence Order, was committed after the ADVO had been served on him following arrest.

The offender entered guilty pleas in the Local Court on 10 June 2022. He asked the court to take into account three additional child sexual assault charges on two Form 1 documents, and a related ADVO contravention offence. In total, fifteen charges were before the court.

  • What discount applied for the guilty pleas, and at what point in the proceedings were they entered?
  • How should the objective seriousness of the offending be assessed, given the number of victims, the duration of offending, and the nature of the acts?
  • What subjective and mitigating factors were relevant to sentence?
  • How should the totality principle be applied when imposing an aggregate sentence across multiple serious offences involving multiple complainants?
  • Whether the offender qualified as a "serious offender" under the Crimes (Administration of Sentences) Act 1999 and whether the Crimes (High Risk Offenders) Act 2006 applied.

Decision

The court accepted that guilty pleas entered at the committal stage attracted a 25% discount under the mandatory regime in s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999, as the proceedings commenced after 30 April 2018. That discount was applied to each plea.

King SC DCJ assessed the objective seriousness of the offending as very high. The offending involved three child victims, commenced when the eldest complainant was approximately six or seven years old, and persisted for up to seven years in one case. The conduct was systematic, opportunistic, and involved repeated breach of the trust placed in the offender as a stepfather and authority figure in the household.

In considering subjective matters, the court weighed any available mitigating factors against the gravity and duration of the abuse. The court then applied the totality principle to ensure the aggregate sentence reflected the overall criminality without becoming disproportionate.

The court determined that the sentence would commence on 6 May 2021, the date of arrest, as the pre-sentence custody was solely referable to the current charges. The offender was warned that his sentences qualified as serious sexual offences under the Crimes (High Risk Offenders) Act 2006, meaning the State could apply to the Supreme Court for continued detention or supervision beyond the aggregate term if he was assessed as posing an unacceptable risk of further serious offending.

Orders Made

• Sentence of imprisonment commencing on 6 May 2021 with a non-parole period of 21 years and a balance of term of 7 years
• First eligibility for parole on 5 May 2042 (completion of non-parole period)
• Balance of term expires on 5 May 2049
• Direction pursuant to s 12(2) of the Crimes (Domestic and Personal Violence) Act 2007 that each offence be recorded on criminal history as a "domestic violence offence" except for Sequence 43
• Warning that s 25C of the Crimes (High Risk Offenders) Act 2006 applies in respect to all sequences except Sequences 43 and 44

The court did, however, record the following formal directions and notifications:

  • Sentence to commence 6 May 2021, reflecting pre-sentence custody solely referable to these charges.
  • A 25% discount applied to each guilty plea entered at committal.
  • The offender was noted to fall within the definition of a "serious offender" under s 3(1) of the Crimes (Administration of Sentences) Act 1999, with the Parole Authority empowered to extend supervision by up to three years at a time under cl 214A(3) of the Regulation.
  • The offender was warned of the application of s 25C of the Crimes (High Risk Offenders) Act 2006 in respect of all sequences except Sequences 43 and 44.
  • All sentenced offences (except Sequence 43) were directed to be recorded on the offender's criminal history as domestic violence offences pursuant to s 12(2) of the Crimes (Domestic and Personal Violence) Act 2007.

Key Takeaways

  • The District Court applied the mandatory 25% guilty plea discount under s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999 where pleas were entered at committal in proceedings commenced after 30 April 2018.

  • Prolonged sexual offending against multiple child victims within a domestic setting, carried out by a person in a position of authority and trust, will attract an assessment of very high objective seriousness.

  • Under s 25C of the Crimes (High Risk Offenders) Act 2006, conviction for serious sexual offences exposes an offender to the possibility of Supreme Court orders for continued detention or supervision beyond the sentence imposed, where the court finds a high probability of unacceptable future risk.

  • Pre-sentence custody is deducted by backdating the commencement of sentence only where that custody is solely referable to the charges being sentenced, consistent with established NSW sentencing practice.

  • An aggregate sentence across multiple offences and multiple complainants must still satisfy the totality principle, ensuring the combined sentence is proportionate to the overall criminality rather than merely the sum of its parts.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Crimes (Administration of Sentences) Regulation 2014 (NSW)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW)

Cases:
- Elias v The Queen (2013) 248 CLR 483
- Markarian v The Queen (2005) 228 CLR 357
- AB v The Queen (1999) 198 CLR 111
- AB v R [2014] NSWCCA 31
- Alvares & Farache [2011] NSWCCA 33
- Athos v R [2013] NSWCCA 205
- Beavis v R [2018] NSWCCA 248
- Bravo v R [2015] NSWCCA 302
- BT v R [2010] NSWCCA 267
- Burr v R [2020] NSWCCA 282
- Cahyadi v R [2007] NSWCCA 1
- Chamseddine v R [2017] NSWCCA 176
- Cherry v R [2017] NSWCCA 150
- Collier v R [2012] NSWCCA 213
- Corby v R [2010] NSWCCA 146
- Davis v R [2018] NSWCCA 67
- Dousha v R [2008] NSWCCA 263
- Dunn v R [2007] NSWCCA 312
- GP (a pseudonym) v The Queen [2021] NSWCCA 180
- Harrington v R [2005] NSWCCA 449
- Hoskins v R [2016] NSWCCA 157