Citation: R v SR [2023] NSWDC 431
Court: District Court of New South Wales
Date: 2 March 2023
Judge: Wilson SC DCJ
Background
The offender, referred to as SR to protect the identities of the child complainants, appeared for sentencing on multiple charges of child sexual abuse spanning approximately 21 years. The victims were six girls, ranging in age from approximately six to thirteen at the time of the respective offending. All victims were either SR's biological daughter or children of women with whom he was in a relationship, giving him a position of authority over each child.
The offending fell into three broad chronological periods. The first involved SR's biological daughter EH, between March 2000 and April 2006. The second involved a child known as AC in 2016. The third group of offences took place between 2020 and August 2021 and involved four further victims: TH, EC, AD, and AW.
SR pleaded guilty to eight principal offences under the Crimes Act 1900 (NSW), with a further seven charges placed on Form 1 documents to be taken into account on sentencing. A number of additional charges were withdrawn by the Crown and dismissed.
Legal Issues
- The applicable sentences for eight principal offences, including offences with maximum penalties ranging from seven to twenty years imprisonment
- The role of standard non-parole periods as guideposts, and whether strict application of those periods would produce an unduly onerous result
- The relevance of the aggravating circumstance of abuse of a position of trust or authority
- How the principle of totality should apply in fixing an aggregate sentence where the offending involved multiple victims across multiple episodes over a lengthy period
- The weight to be given to the offender's plea of guilty, absence of insight, absence of remorse, and poor prospects of rehabilitation
Decision
Wilson SC DCJ identified the standard non-parole periods attached to several of the principal charges as guideposts indicating the seriousness with which Parliament views such offending, but found that mechanically applying those periods would produce a sentence that was unduly onerous even after allowing for concurrency. Consistent with the High Court's guidance in Muldrock v R [2011] HCA 39, the sentencing process required a synthesis of both objective and subjective factors rather than an arithmetical calculation.
The circumstances of aggravation applied to several charges on the basis that the victims were under the authority of SR, either as his biological child or as stepchildren. The Form 1 charges were taken into account to increase the penalties attached to the principal offences to which they were linked, with particular weight given to personal deterrence and the community's entitlement to retribution for serious offending.
On totality, the court found that the offending did not constitute a single continuous course of conduct. Different episodes involved different victims across different locations and periods of time. The court applied some concurrency between the offences arising from the single day of offending at one address, where the events were temporally close, but ordered accumulation to reflect the separate acts and separate victims involved across the broader period of offending.
SR received no meaningful mitigation for remorse or rehabilitation prospects, as the court found he demonstrated no insight into his conduct and no genuine remorse. His guilty plea was the principal mitigating factor.
Orders Made
- SR convicted of all eight principal offences
- Aggregate sentence imposed comprising a head sentence of 16 years with a non-parole period of 12 years
- Sentence backdated to 29 September 2021, the date SR entered custody
- Earliest release date: 28 September 2033; head sentence expiry: 28 September 2037
- Form 1 charges signed and taken into account
- Sequences 2, 4, 5, 7, 11, 13, and 18 dismissed following Crown withdrawal
- SR identified as a serious sex offender and warned of the possibility of an extended supervision order or continued detention at the expiration of the non-parole period
- Suppression and non-publication orders made in respect of the child complainants
Key Takeaways
- Standard non-parole periods serve as legislative guideposts rather than mandatory outcomes; the District Court confirmed that applying them mechanically across multiple serious charges can produce a result that is unduly onerous, and the sentencing exercise requires an holistic synthesis of objective and subjective factors as directed by Muldrock v R.
- A position of trust or authority over child victims, whether as a biological parent or stepparent, constitutes a recognised aggravating circumstance under the Crimes Act 1900 (NSW) and attracted that designation across several charges here.
- Where multiple offences involve separate victims across separate episodes, accumulation of sentences is the appropriate default to reflect the distinct criminality involved, even where some degree of concurrency may be justified for temporally proximate offending involving the same group of victims.
- Absence of insight and absence of remorse are material to the assessment of rehabilitation prospects and weigh against a reduced sentence; SR's guilty plea was acknowledged but carried limited mitigating force in light of those findings.
- Offenders sentenced for serious sexual offences against children are subject to the possibility of extended supervision orders or continued detention beyond the non-parole period, and the District Court is required to warn the offender of that prospect at the time of sentencing.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW): ss 60(2), 61M(1), 61M(2), 61O(2), 66C(2), 66D(b), 66DA(a), 66DB(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- Muldrock v R [2011] HCA 39