Citation: R v SC [2024] NSWDC 162
Court: District Court of New South Wales
Date: 10 May 2024
Judge: Newlinds SC DCJ
Background
The offender, a 64-year-old man, pleaded guilty to eight counts of serious sexual offences against children spanning from the 1980s through to 2013. The offences included indecent assault of a child under 16, aggravated indecent assault of a child under 16, sexual intercourse with a child under 16, and aggravated sexual intercourse with a child under 10. Nine additional offences of a similar nature were taken into account on various Forms 1 (a procedural mechanism allowing related offences to be acknowledged without separate conviction).
There were five victims in total. One was the offender's biological daughter; others were relatives, friends of relatives, or a babysitter. Offences against four of the victims occurred in the 1980s on the New South Wales South Coast, while offences against the fifth victim occurred between 2010 and 2013 in the Hunter Valley region.
The offender maintained a plea of not guilty until after a jury was empanelled and the Crown had opened its case at trial in the Bega District Court in November 2023. He then entered guilty pleas and agreed to a statement of facts with the prosecution.
Legal Issues
- What was the objective seriousness of each of the eight charged offences, individually and in aggregate?
- What weight should be given to the offender's subjective circumstances, including his age, deteriorating health, lack of prior convictions, guilty plea, and expressions of remorse?
- What discount applied to the sentence for the late guilty plea, and what additional leniency (if any) was warranted for sparing victims from giving evidence?
- How should the sentences be structured under the aggregate sentencing provisions, and was the standard non-parole period ratio to be adjusted by reason of "special circumstances"?
- What role did general deterrence play relative to specific deterrence, rehabilitation, and community protection?
Decision
Newlinds SC DCJ characterised the overall criminality as extreme. Taken individually, each offence was objectively serious. Taken together, they demonstrated sustained, dreadful conduct across many decades, with profound and ongoing consequences for all five victims. Victim Impact Statements from three victims were described as powerful, compelling, and distressing.
On the subjective case, his Honour gave significant weight to the offender's advanced age and deteriorating health, accepting that custody would be more onerous than it would be for a younger, healthier person. The offender's lack of prior convictions was accorded no weight, given the extent of the offending. Expressions of remorse were given only limited weight, the court finding them more reflective of the offender's circumstances in custody than of genuine empathy for or understanding of the harm caused to victims.
The offender received a 5% statutory discount for the utilitarian value of his guilty pleas. A modest additional concession was granted because the late pleas spared five victims and other witnesses from giving evidence at trial. His Honour found that specific deterrence, rehabilitation, and community protection played only limited roles given the offender's age and health, though general deterrence remained a significant sentencing consideration.
On the question of special circumstances (which allows a court to depart from the standard minimum ratio of non-parole period to head sentence), his Honour found that the offender's first time in custody and poor health were sufficient to justify a modest adjustment in the offender's favour. The sentence was backdated to 16 December 2021, the date from which the offender had been in custody referable solely to these charges.
Orders Made
- Aggregate term of imprisonment of 20 years, commencing 16 December 2021 and expiring 15 December 2041.
- Non-parole period of 14 years, commencing 16 December 2021 and expiring 15 December 2035.
- Indicative sentences per count (after 5% guilty plea discount):
- Count 1: 4 years
- Count 2: 4 years
- Count 3: 3 years
- Count 4: 6 years
- Count 5: 5 years
- Count 6: 5 years
- Count 7: 6 years (non-parole period 4 years 6 months)
- Count 8: 8 years (non-parole period 6 years)
Key Takeaways
- A late guilty plea entered after jury empanelment and Crown opening attracted only the minimum 5% statutory discount, though a modest additional allowance was made for sparing victims the trauma of giving evidence.
- Where an offender has no insight into the reasons for their offending and expressions of remorse appear connected primarily to their own custodial circumstances rather than genuine empathy, a sentencing court may give that remorse only limited weight.
- Advanced age and serious ill health were treated as significant subjective factors warranting some leniency, but the District Court held that these matters could not displace the need for a lengthy custodial sentence where the overall criminality was extreme.
- The risk of reoffending was assessed as low not because of any rehabilitation or acceptance of wrongdoing, but solely because of the offender's age and deteriorating physical health.
- Under the aggregate sentencing approach, the court is required to evaluate the totality of criminality, including Form 1 matters, and arrive at a sentence that reflects that totality without being crushing or disproportionate: Cahyadi v R [2007] NSWCCA 1; R v Holder [1983] 3 NSWLR 245.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 61E(1) and related provisions
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
Cases
- AK v R [2016] NSWCCA 238
- Cahyadi v R [2007] NSWCCA 1
- LN v R [2020] NSWCCA 131
- Muldrock v R (2011) 244 CLR 120
- Nguyen v R [2016] NSWCCA 209
- R v Holder [1983] 3 NSWLR 245
- R v KNL [2005] NSWCCA 260
- R v Smith [2000] NSWCCA 140
- Ragg v R [2022] NSWCCA 150
- Van Ryn v R [2016] NSWCCA 1