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District Court 11 August 2023

R v RM (No. 6)

[2023] NSWDC 305

Sexual offences
CRIMINAL LAW SENTENCING CHILD SEXUAL OFFENCES

Citation: R v RM (No. 6) [2023] NSWDC 305
Court: District Court of New South Wales
Date: 11 August 2023
Judge: Abadee DCJ

Background

Following a jury trial at Parramatta, the offender was convicted of eleven counts of sexual offences committed against his biological daughter over a period spanning from 2011 to 2020. The offences occurred when the victim was between approximately 9 and 18 years of age, and included indecent assault, aggravated sexual intercourse without consent, sexual intercourse with a child under authority, sexual touching, and a sexual act without consent.

The offending took place at the family home, where the victim lived with both parents. Nine discrete incidents gave rise to the eleven counts. The final incident was precisely dated to 19 July 2020; the earlier incidents were established by reference to date ranges, with the victim's open heart surgery on 21 July 2014 serving as a significant temporal marker in her evidence.

At sentencing, the parties accepted most of the Crown's proposed facts, with some exceptions. The court was required to determine the appropriate sentence having regard to the nature, duration, and circumstances of the offending, and to resolve several contested legal questions.

  • How to approach fact-finding at sentencing following a jury verdict, particularly where facts are disputed
  • Whether the aggravating factors of abuse of a position of trust or authority and victim vulnerability could be applied where "under authority" was already an element of certain charges (to avoid double-counting)
  • How evidence at trial of an uncharged act against a third party affected findings of good character and prospects of rehabilitation
  • Whether special circumstances existed to justify varying the statutory ratio between the non-parole period and the total sentence
  • How the totality principle should be applied across eleven counts arising from nine separate incidents

Decision

Fact-finding after the verdict. His Honour applied the established principles from Savvas v The Queen and Cheung v The Queen, noting that a sentencing judge may form an independent view of the facts provided that view does not conflict with the jury's verdict. The jury's verdicts across all eleven counts were taken to reflect their acceptance of the victim's credibility and reliability on the essential elements of each offence. Disputed facts adverse to the offender required proof beyond reasonable doubt; disputed facts favourable to the offender required proof on the balance of probabilities, following R v Olbrich.

Aggravating factors and double-counting. For counts charged under s 66C of the Crimes Act 1900 (NSW), the circumstance that the victim was "under the offender's authority" was an element of the offence itself. His Honour was therefore required to take care not to treat that same circumstance as a further statutory aggravating factor at sentencing, which would constitute impermissible double-counting. The broader aggravating factor of abuse of trust remained relevant, but its application had to be calibrated against what was already captured within the elements of particular counts.

Good character and the uncharged act. During the trial, evidence emerged of an uncharged sexual act committed by the offender against a third party. His Honour found this evidence significantly qualified any claim to good character and diminished the offender's prospects of rehabilitation. Although the offender had no prior convictions, the uncharged conduct meant that a finding of genuinely good character could not be made without qualification.

Special circumstances and totality. His Honour found that special circumstances existed warranting a variation of the statutory non-parole period ratio, having regard to the offender's status as a first-time offender, some evidence of depression and a reference to self-harm in his custodial history, and the likelihood that imprisonment would be more onerous for him than for the general prison population. Applying the totality principle, the court ordered a substantial degree of concurrency for counts involving the same incident (counts 7 and 8, and counts 10 and 11), while imposing partial accumulation across the remaining separate incidents to reflect the full range of the offender's criminality.

Orders Made

  • The offender was convicted of all eleven counts (counts 1 to 11 inclusive)
  • An aggregate sentence of 12 years' imprisonment was imposed, commencing 3 January 2023 and expiring 2 January 2035
  • Non-parole period of 8 years and 5 months, expiring 2 June 2031, after which the offender is eligible for release on parole
  • The sentence was backdated to account for 220 days of pre-sentence custody

Key Takeaways

  • Where a statutory aggravating circumstance (such as the victim being "under the offender's authority") forms an element of the offence charged, a sentencing court must not also apply it as a separate aggravating factor at sentence, as this would constitute impermissible double-counting.

  • Evidence at trial of an uncharged sexual act against a third party is capable of significantly qualifying or displacing a claim to good character at sentencing, even where the offender has no prior convictions.

  • The District Court confirmed that the totality principle requires meaningful concurrency where multiple counts arise from the same incident, while still permitting partial accumulation across distinct, separate incidents to reflect the overall criminality involved.

  • Special circumstances justifying a variation of the statutory non-parole period ratio need not be established by direct evidence from the offender; other evidence, including custodial records referencing self-harm and depression, may be sufficient to support the necessary inference.

  • A jury's verdict across multiple counts is treated at sentencing as a finding of the victim's credibility and reliability on the essential elements of each charge, consistent with the principles in Savvas v The Queen and Cheung v The Queen.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A
- Crimes Act 1900 (NSW), ss 61J, 61KC, 61KE, 61M, 66C

Cases
- Bhatia v R [2023] NSWCCA 12
- Cheung v The Queen (2001) 209 CLR 1
- Culbert v R [2021] NSWCCA 38
- DH v R [2022] NSWCCA 200
- DPP (NSW) v Presnell [2022] NSWCCA 146
- GL v R [2022] NSWCCA 202
- Muldrock v The Queen (2011) 244 CLR 120
- PC v R [2022] NSWCCA 107
- R v AJP (2004) 150 A Crim R 575
- R v Nelson [2016] NSWCCA 130
- R v Olbrich (1999) 199 CLR 270
- R v PC [2022] NSWCCA 59
- RH v R [2019] NSWCCA 64
- Savvas v The Queen (1995) 183 CLR 1
- Smith v R [2022] NSWCCA 267
- Stevenson v R [2022] NSWCCA 133