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District Court 5 December 2023

R v WD

[2023] NSWDC 542

Sexual offences
CRIME CHILD SEX OFFENCES MULTIPLE OFFENCES AGGREGATE SENTENCE

Citation: R v WD [2023] NSWDC 542
Court: District Court of NSW
Date: 5 December 2023
Judge: Coleman SC DCJ

Background

The offender, WD, was a 41-year-old man who had been in a relationship with the mother of the victim, a 14-year-old girl. After meeting the victim's mother through a dating app in April 2022, WD stayed at the family home in Quirindi approximately three to four nights per week, giving him regular access to the victim.

Between August and October 2022, WD committed a series of sexual offences against the victim. The conduct escalated from touching the victim's breasts after pulling away her towel following a shower, to removing her from the shower and placing her on a bed with his naked body on top of hers, to forcing her hand onto his erect penis and digitally touching her vagina while kissing her against her will. The final incident, on 9 October 2022, was partly witnessed by the victim's mother.

WD was arrested on 11 October 2022 and made no admissions in his electronically recorded interview. He subsequently pleaded guilty to three counts of intentionally sexually touching a child aged 10 years or older and under 16 years, contrary to section 66DB(a) of the Crimes Act 1900 (NSW). A fourth offence of the same type was taken into account on a Form 1 (a formal mechanism allowing the court to take related uncharged or additional offences into account when sentencing on the principal charges).

  • What was the objective seriousness of the offending across the four incidents?
  • What weight should be given to mitigating factors, including the guilty plea, the offender's personal circumstances, and his assessed low risk of reoffending?
  • Whether special circumstances existed justifying a departure from the standard ratio between the non-parole period and the total sentence.
  • What aggregate sentence, including a non-parole period, was appropriate?

Decision

Coleman SC DCJ assessed the objective seriousness of the offending by reference to several common features: the victim was 14 years old, placing her in the middle of the 10-to-16 age bracket for the offence; there was a substantial age disparity of approximately 27 years; the offending occurred in domestic settings where the victim was entitled to privacy and safety; and the conduct escalated in seriousness across multiple occasions. The court accepted that the association between the individual incidents and the progressive nature of the offending were relevant to objective seriousness.

The court gave WD credit for his early guilty plea, applying a 25% discount to each notional sentence under section 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW). The court also considered his lack of prior criminal history, references attesting to good character, remorse, and a psychological assessment indicating a low risk of reoffending. The fact that WD had breached the trust of a domestic environment and exploited his position as his partner's child's de facto carer was treated as an aggravating factor.

Special circumstances were found to exist. WD was serving his first period of custody, was held in protection given the nature of his offending, and was assessed as unlikely to access sexual offender programs while incarcerated because of his low-risk classification. The court accepted that a longer parole period would allow for appropriate supervision and program participation in the community. The sentence was backdated to the date of arrest, 11 October 2022.

Orders Made

  • Sequence 3 (with Form 1 offence taken into account): 1 year 3 months imprisonment (pre-discount: 1 year 8 months)
  • Sequence 5: 2 years 6 months imprisonment (pre-discount: 3 years 4 months)
  • Sequence 6: 2 years imprisonment (pre-discount: 2 years 8 months)
  • Aggregate sentence: 4 years imprisonment
  • Non-parole period: 2 years and 2 months
  • Sentence commences: 11 October 2022; expires: 10 October 2026
  • First eligible for parole: 10 December 2024
  • Recommendation that WD engage in sexual offender programs or other rehabilitation programs as directed by Community Corrections upon release to parole

Key Takeaways

  • An offender's position of domestic trust and regular access to a child victim are relevant aggravating considerations in sentencing for child sexual touching offences under section 66DB(a) of the Crimes Act 1900 (NSW).
  • A finding of special circumstances can be supported by the combination of a first custodial sentence, placement in protection, and an inability to access relevant rehabilitation programs while in custody, justifying a longer parole period relative to the total term.
  • The 25% sentencing discount for an early guilty plea under section 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW) applies to the notional sentence for each individual offence before the aggregate term is set.
  • Escalating conduct across multiple incidents, even where each offence is individually assessed, informs the overall objective seriousness of the offending pattern.
  • Where a low-risk assessment makes in-custody program participation unlikely, the court may recommend that rehabilitation programs be undertaken during the parole period under Community Corrections supervision.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66DB
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 25D, 53A

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518
- Bravo v R [2015] NSWCCA 302
- DG v R [2017] NSWCCA 139
- Ibbotson (A Pseudonym) v R [2020] NSWCCA 92
- Johnson v The Queen [2004] HCA 15
- R v Chan [2000] NSWCCA 345
- R v MAK [2006] NSWCCA 381
- RH McL v The Queen (2000) 203 CLR 452