AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 13 June 2024

R v DW

[2024] NSWDC 380

Sexual offences

Citation: R v DW [2024] NSWDC 380
Court: District Court of New South Wales
Date: 13 June 2024
Judge: Coleman SC DCJ

Background

The offender, born in 1946, was the step-grandfather of two young girls. Both victims regularly visited and stayed overnight at the offender's home during their childhood. The offending spanned several years across two properties in south-western Sydney.

The first victim was subjected to a series of sexual offences beginning when she was approximately seven years old, including digital penetration and cunnilingus. The second victim was subjected to offending from around the age of six or seven, including being used to masturbate the offender, being shown pornography, and being subjected to indecent assaults and cunnilingus. The offending against each victim occurred in domestic, family settings, often while the offender's wife and other family members were present nearby.

The offender pleaded guilty to 13 counts in total, comprising eight counts of sexual intercourse with a person under 10 years (the most serious charge, carrying a maximum of 25 years imprisonment), three counts of indecent assault, and one count of committing an act of indecency. Two further offences were attached on a Form 1 (taken into account in sentencing without separate conviction).

  • What sentences were appropriate for each individual count, having regard to the maximum penalties, standard non-parole periods, and the objective seriousness of each offence?
  • What discount applied to reflect the guilty pleas entered by the offender?
  • How should the totality principle operate to produce an aggregate sentence that was proportionate and not crushing, given the number and gravity of the offences?
  • What aggravating and mitigating factors applied under the Crimes (Sentencing Procedure) Act 1999 (NSW)?
  • Whether a non-parole period should be set, and if so, at what length?

Decision

Coleman SC DCJ sentenced the offender on each count individually, then applied the totality principle to arrive at an aggregate custodial term. The offending was assessed as ranging from moderate to above moderate objective seriousness across the various counts. The most serious individual offences attracted head sentences of between eight and twelve years before discount, with standard non-parole periods of 15 years applying to the sexual intercourse charges.

A 25% discount was applied to all sentences to reflect the utilitarian value of the guilty pleas. This discount reduced, for example, the head sentence for the most serious count (Count 20, cunnilingus) from 12 years to 9 years. Each count carried a non-parole period set at one half of the head sentence.

Multiple significant aggravating factors were identified under the Crimes (Sentencing Procedure) Act 1999, including that the offences were committed against victims under the authority of the offender as their grandparent, that there were multiple victims, and that the offences involved a pattern of conduct over an extended period. The domestic and familial setting, and the abuse of trust it involved, featured prominently in the assessment of objective seriousness.

The court applied the totality principle to ensure that the cumulative effect of the sentences was proportionate to the overall criminality. The sentencing table in the judgment sets out each count, the applicable maximum and standard non-parole period, the head sentence before and after discount, and the non-parole period imposed for that count.

Orders Made

No orders were made in this decision.

Note: The judgment contains a detailed sentencing table for each count. The key figures from that table are as follows:

  • Count 1 (indecent assault, victim under 10): 18 months head sentence (after 25% discount); 9 months non-parole period
  • Count 2 (sexual intercourse, victim under 10, digital penetration): 6 years (after discount); 3 years non-parole
  • Count 5 (sexual intercourse, victim under 10, digital penetration): 6 years (after discount); 3 years non-parole
  • Count 8 (sexual intercourse, victim under 10, digital penetration): 6 years 9 months (after discount); 3 years 5 months non-parole
  • Count 10 (sexual intercourse, victim under 10, cunnilingus): 7 years 6 months (after discount); 3 years 9 months non-parole
  • Count 11 (sexual intercourse, victim under 10, digital penetration): 6 years (after discount); 3 years non-parole
  • Count 13 (indecent assault, victim under 16): 1 year 6 months (after discount); 9 months non-parole
  • Count 14 (act of indecency, showing pornography): 13 months (after discount); no standard non-parole period
  • Count 16 (indecent assault, kissing of breasts): 2 years (after discount); 1 year non-parole
  • Count 17 (sexual intercourse, cunnilingus): 7 years 6 months (after discount); 3 years 9 months non-parole
  • Count 18 (sexual intercourse, cunnilingus): 7 years 6 months (after discount); 3 years 9 months non-parole
  • Count 20 (sexual intercourse, cunnilingus): 9 years (after discount); 4 years 6 months non-parole
  • Counts 15 and 23 (Form 1 matters): taken into account in Counts 16 and 20 respectively

Key Takeaways

  • The District Court treated the abuse of a grandparental relationship of authority as a significant aggravating factor under s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999, contributing to the seriousness of each individual offence.

  • Multiple victims and a pattern of repeated offending over several years, under s 21A(2)(g) and related provisions, elevated the overall assessment of criminality beyond what any single offence would reflect.

  • A 25% sentencing discount was applied consistently across all counts to reflect the utilitarian value of the guilty pleas, consistent with the approach in cases such as R v MAK [2006] NSWCCA 381 and Liu v R [2023] NSWCCA 30.

  • The totality principle required the court to impose individual sentences for each count while ensuring the aggregate did not exceed what was proportionate to the total criminality, a task complicated here by the large number of counts spanning two victims over multiple years.

  • Where Form 1 offences are attached to a head count, the sentencing court takes those matters into account in fixing the sentence for the attached count rather than imposing a separate penalty, meaning their seriousness is absorbed into the head sentence rather than disappearing from the exercise entirely.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 61O(2), 66A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2)(g), 21A(2)(k), 21A(2)(l), 21A(3)(e), 21A(3)(f), 21A(3)(i), 21A(3)(k), 21A(5A), 25D(2), 53A
- Crimes (High Risk Offenders) Act 2006 (NSW)

Cases:
- Johnson v The Queen [2004] HCA 15
- Liu v R [2023] NSWCCA 30
- PN v R [2024] NSWCCA 86
- R v MAK [2006] NSWCCA 381
- R v Mammone [2006] NSWCCA 138
- R v PGM [2008] NSWCCA 172
- R v Sopher (1993) 70 A Crim R 570
- RH McL v The Queen (2000) 203 CLR 452