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District Court 19 July 2024

R v Ware (a pseudonym)

[2024] NSWDC 424

Sexual offences

Citation: R v Ware (a pseudonym) [2024] NSWDC 424
Court: District Court of New South Wales
Date: 19 July 2024
Judge: Haesler SC DCJ

Background

The offender, referred to by the pseudonym Aaron Ware, was sentenced following guilty pleas to multiple child sexual offences committed against his stepdaughter over a period spanning her childhood and early teenage years. The complainant, now 36 years old, had been in the offender's care from approximately one year of age. The offending occurred in family homes across Wollongong and the Central Coast.

The complainant reported the offending to New South Wales police in March 2020. Police arrested the offender in Queensland in June 2023. Three charges proceeded to sentence, with two further offences taken into account on a Form 1 (meaning they were considered when determining the sentence for the principal offence, without attracting separate penalties).

The offences spanned from 1992, when the complainant was five years old, through to her early teenage years. Throughout the offending, the offender occupied a stepfather role and was trusted with the complainant's care.

  • What individual sentences were appropriate for each of the three offences before the court, after applying a 25% reduction for early guilty pleas?
  • How should the two Form 1 offences bear on the sentence for Sequence 1?
  • What weight should be given to subjective mitigating factors, including the offender's age, ill health, alcohol addiction, mental illness, and his own history of childhood abuse and domestic violence exposure?
  • Was a finding of special circumstances warranted, justifying a longer-than-standard parole period relative to the non-parole period?
  • How should the principle of totality be applied when accumulating sentences for multiple offences committed over many years?

Decision

Haesler SC DCJ identified three offences for sentencing. Sequence 1 was a charge of sexual intercourse with a child under ten (s 66A, Crimes Act 1900), committed in 1992 when the complainant was five years old and in the offender's sole care. Sequence 3 was aggravated indecent assault (s 61M(2)) committed when the complainant was six or seven. Sequence 7 was aggravated sexual intercourse with a child aged between ten and fourteen (s 66C(2)), committed when the complainant was thirteen. The maximum penalties applicable at the time of the offences were 20 years for the s 66A offence and 10 years each for the other two charges.

His Honour assessed the objective seriousness of all three offences as high. Each occurred in a home environment where the complainant should have felt safe, each involved a gross breach of the trust inherent in a parental relationship, and each exploited the offender's position of authority over a young child. No overt violence or threats were used, but the court noted that none were necessary given the age of the child and the dynamics of the relationship.

On the subjective side, the court gave weight to the offender's early guilty pleas (attracting a 25% reduction), his own history of childhood sexual abuse by his father, his exposure to alcohol abuse and domestic violence during childhood, his age (born 1964), his ill health, and his alcohol addiction and associated mental health conditions. The court applied the principles from R v Verdins in considering how mental illness and disorder bore on moral culpability and the weight to be given to general deterrence. His Honour also noted the adverse conditions of the offender's imprisonment, including placement on protection, and the negative health impact incarceration was having on him beyond what would ordinarily be expected.

Special circumstances were found, justifying a non-parole period that is a greater proportion of the total sentence than the standard ratio. The court reasoned that a longer period of supervised parole was necessary to support the offender's reintegration into the community and to reduce the risk of reoffending. The aggregate sentence was arrived at through instinctive synthesis, with accumulation across the three indicated sentences to reflect the individual nature of each offence and the extended period over which they were committed, while avoiding a disproportionate total.

Orders Made

  • Sequence 1 (sexual intercourse with a child under ten, taking into account two Form 1 offences): indicated sentence of 6 years and 6 months imprisonment.
  • Sequence 3 (aggravated indecent assault): indicated sentence of 9 months imprisonment.
  • Sequence 7 (aggravated sexual intercourse with a child aged between ten and fourteen): indicated sentence of 2 years and 3 months imprisonment.
  • Total aggregate sentence: 8 years imprisonment, commencing 26 June 2023.
  • Non-parole period: 5 years, expiring 25 June 2028.
  • Parole period: 3 years, commencing 26 June 2028 and expiring 25 June 2031.

Key Takeaways

  • The District Court applied a 25% sentence reduction for early guilty pleas entered in the Local Court, treating the early acceptance of responsibility as having both utilitarian value and broader mitigating weight.

  • Form 1 offences do not attract separate penalties but can significantly increase the sentence for the principal offence to which they relate, particularly by amplifying the weight given to personal deterrence and retribution and by demonstrating that the offending was not isolated.

  • A finding of special circumstances permits a longer parole period relative to the non-parole period; here the court justified that finding by reference to the cumulative health effects of imprisonment on the offender and the need for structured community supervision upon release.

  • Under the instinctive synthesis approach, a sentencing court does not simply add indicated sentences together. Accumulation must reflect the individual nature of each offence and the period over which they occurred, while the totality principle guards against a disproportionate aggregate.

  • Subjective mitigating factors, including an offender's own childhood trauma, addiction, mental health conditions, and the burdens of imprisonment beyond ordinary experience, can reduce moral culpability and limit the weight given to general deterrence, even in cases involving serious child sexual offences.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M, 66A, 66C
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2013] NSWCCA 115
- Carey v R [2024] NSWCCA 90
- Kutchera v R [2007] NSWCCA 121
- Magnuson v R [2013] NSWCCA 50
- Mill v The Queen (1988) 166 CLR 59
- R v Cattell [2019] NSWCCA 297
- R v Todd [1982] 2 NSWLR 517
- R v Verdins [2007] VSCA 102
- Wright v R [2008] NSWCCA 91