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District Court 18 August 2023

R v Danvers (a pseudonym)

[2023] NSWDC 314

Sexual offences
CRIME SENTENCE EXCEPTIONAL HARDSHIP TO THIRD PARTIES SPECIAL CIRCUMSTANCES.

Citation: R v Danvers (a pseudonym) [2023] NSWDC 314
Court: District Court of New South Wales
Date: 18 August 2023
Judge: Colefax SC DCJ

Background

The offender (referred to by the pseudonym "Danvers") was tried before a jury on seven counts of indecent assault against children under 16 years of age, contrary to s 61M(2) of the Crimes Act 1900 (NSW). The jury returned not guilty verdicts on four counts and guilty verdicts on three. Each of the three victims was a niece of the offender, and the offending occurred across a period of approximately six years between 2011 and 2017.

The three offences involved victims aged between 4 and 14 years at the time of the relevant conduct. The offending took place at different locations and, in each instance, was aggravated by a significant breach of trust. Count 1 was additionally aggravated by the offending occurring in the victim's own home.

The matter came before Colefax SC DCJ for sentencing on 4 August 2023. A notable feature of the sentencing proceedings was evidence that Parklea Correctional Centre, where the offender was being held following the revocation of his bail, had a policy preventing any person under 18 years of age from visiting. The offender's two children were aged 4 years and 18 months.

  • What was the objective seriousness of each offence, and how should the sentences be structured across three victims?
  • Whether the offender's subjective circumstances, including prior abuse, absence of mental illness, and first-offender status, should moderate the sentence.
  • Whether the correctional facility's visiting restriction, which prevented the offender's young children from seeing him, constituted "exceptional hardship to third parties" and a basis for finding "special circumstances" to reduce the non-parole period below the statutory 75% benchmark.

Decision

Colefax SC DCJ assessed the three offences as sitting between the lower and mid-range of objective seriousness for offences of their kind. Each offence carried a maximum penalty of 10 years' imprisonment and a standard non-parole period of 8 years. The judge found all three counts were aggravated by a significant breach of trust, given the familial relationship between the offender and his victims.

On subjective circumstances, the offender was treated as a first offender, though that consideration was of reduced weight given the offending spanned six years and involved three separate victims. The offender had reported being sexually abused in childhood, but the psychologist's report did not establish a causal connection between that history and the offending. The judge assessed the offender's prospects of rehabilitation as guarded, noting the absence of any expression of remorse and the lack of expert explanation for the offending behaviour.

The visiting restriction at Parklea attracted significant attention. Colefax SC DCJ described the policy as "concerning" and expressed the view that it was likely to harm rehabilitation prospects and constituted "highly exceptional hardship" to the offender's young children as third parties. The judge held that this finding warranted an ameliorating effect on the sentence through a reduced non-parole period, and specifically that it constituted "special circumstances" for the purposes of the Crimes (Sentencing Procedure) Act 1999.

An aggregate sentence was imposed across the three counts, with the judge stating that first-time imprisonment alone would not have been sufficient to establish special circumstances. The combination of the visiting restriction and its impact on the children was the determinative factor in reducing the non-parole period below the standard 75% of the head sentence.

Orders Made

  • Aggregate term of imprisonment of 6 years 6 months imposed across Counts 1, 5 and 7.
  • Non-parole period fixed at 3 years 10 months, commencing 25 May 2023 and expiring 24 March 2027.
  • Balance of term fixed at 2 years 8 months, commencing 25 March 2027 and expiring 24 November 2029.
  • Sentence backdated to 25 May 2023 (date bail was revoked following jury verdicts).

Key Takeaways

  • The District Court held that a correctional facility's policy barring children under 18 from visiting an offender convicted of child sexual offences constituted "highly exceptional hardship" to the offender's own young children as third parties, warranting a reduction in the non-parole period.
  • A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 may be supported by the combination of the harshness of imprisonment caused by a visiting restriction and the consequential impact on innocent third parties, even where first-time imprisonment alone would not suffice.
  • Under s 30E(5) of the Crimes (Sentencing Procedure) Act 1999, the absence of a victim impact statement does not give rise to any inference that an offence had little or no impact on the victim.
  • First-offender status carries reduced weight in child sexual offence matters and is further diminished where the offending occurred repeatedly over an extended period and against multiple victims.
  • Breach of trust remains a distinct aggravating factor in child sexual offending even where the individual acts were opportunistic in nature.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61M(2) (indecent assault of a child under 16 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 25AA (victim impact statements and children)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 30E(5) (no adverse inference from absence of victim impact statement)

Cases cited: No cases cited in the judgment.