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District Court 9 June 2023

R v Dorsett

[2023] NSWDC 537

Sexual offences
CRIMINAL SENTENCE 4 VICT IMS FORM 1 MATTER OFFENDER AGED 21 23 YEARS AT TIME OF OFFENDING

Citation: R v Dorsett [2023] NSWDC 537
Court: District Court of New South Wales
Date: 9 June 2023
Judge: King SC DCJ

Background

The offender, aged 21 to 23 at the time of offending, was sentenced for a series of child sexual offences committed between February 2020 and October 2021 in and around Port Macquarie. The offences involved four victims, three aged 15 and one aged 10 to 12, and ranged from sexual intercourse with children aged 14 and under 16 years to intentional sexual touching of a child aged under 16.

The offender had been diagnosed with a mild intellectual disability, which was a significant factor in the sentencing proceedings. He had no prior criminal history and had been engaging positively with prison programs and employment while on remand. The matter proceeded to sentence following agreed facts.

The court was required to balance the serious nature of the offending, the number of victims, and the involvement of a Form 1 offence, against the offender's considerable subjective circumstances, including his intellectual disability, his age at the time of offending, and the prospect of rehabilitation.

  • What sentence appropriately reflected the objective seriousness of multiple child sexual offences across four victims, including offences at different levels of the statutory hierarchy
  • How the offender's mild intellectual disability bore on the principles of general and specific deterrence
  • The relevance and weight to be given to uncharged conduct in the sentencing exercise
  • How to structure the aggregate sentence, including the non-parole period, to accommodate the offender's rehabilitative needs and his limitations in accessing relevant programs in custody
  • The appropriate weight to give victim impact statements from multiple complainants

Decision

The court convicted and sentenced the offender across eight charges, with one further offence taken into account on a Form 1. The charges included six counts of sexual intercourse with a child aged 14 and under 16 years (maximum ten years each, no standard non-parole period), one count of intentionally sexually touching a child aged 10 and under 16 years (maximum ten years, no standard non-parole period), and one count of sexual intercourse with a child under 10 or under 16 in circumstances of aggravation (maximum 16 years, standard non-parole period of seven years).

King SC DCJ considered the objective gravity of each offence carefully, noting the exploitation of vulnerable young people, the use of alcohol to facilitate offending, and the fact that the offending occurred across multiple incidents and victims over an extended period. The court also acknowledged the contextual relevance of uncharged conduct in understanding the full picture of the offending, consistent with the principles discussed in the relevant authorities.

On subjective matters, the court placed meaningful weight on the offender's mild intellectual disability, his lack of prior offending, and his positive conduct in custody. The intellectual disability was found to reduce the weight given to general deterrence, though the court was careful not to treat it as an excuse or to eliminate the principle entirely. The court also noted that the offender was unlikely to receive meaningful treatment for his sexual attraction to minors while in custody, which informed the decision to impose a longer-than-usual parole period.

The court imposed an aggregate sentence with a non-parole period commencing 4 November 2021, the earliest date of custody, with the earliest release date set at 3 November 2026 and the total term expiring 3 November 2031. The lengthy parole component reflected the court's assessment that the offender would require substantial supervision and assistance upon release.

Orders Made

  • Aggregate sentence of ten years' imprisonment imposed
  • Non-parole period commencing 4 November 2021
  • Earliest date of eligibility for parole: 3 November 2026
  • Total term expiring: 3 November 2031

Key Takeaways

  • A mild intellectual disability does not eliminate general or specific deterrence as sentencing considerations, but it does reduce the weight those principles carry, particularly where there is evidence the offender lacked full appreciation of the legal and social consequences of the conduct.
  • Where an offender with significant rehabilitative needs is unlikely to access appropriate programs in custody, a court may impose a longer parole period to facilitate supervised support in the community after release.
  • Uncharged conduct remains contextually relevant in a sentencing exercise, consistent with established New South Wales authority, even where it does not form part of the formal charges.
  • Victim impact statements from multiple complainants were considered by the District Court in assessing the harm caused, reinforcing the significance courts place on the cumulative effect of offending across multiple victims.
  • Positive conduct in custody, including participation in work and education programs, was acknowledged as a relevant subjective factor, though it did not alter the fundamental seriousness of the objective offending.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66C(1), 66C(3), 66DB(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Attorney-General's Application Number 1 of 2002 (2002) NSWCCA 518
- Ibornone v R [2017] NSWCCA 144
- R v Nelson [2016] NSWCCA 130