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District Court 11 October 2024

R v Duong (No. 2)

[2024] NSWDC 472

Sexual offences

Citation: R v Duong (No. 2) [2024] NSWDC 472
Court: District Court of New South Wales
Date: 11 October 2024
Judge: Mahony SC DCJ

Background

Following a jury trial, the offender was convicted on 12 counts of sexual offending against his stepdaughter (and biological niece), who was born in 1986. The offending commenced when the victim was just 9 years old and continued until she was nearly 16. The counts included penile-vaginal intercourse, fellatio, digital penetration, cunnilingus, and multiple acts of indecent assault, as well as a principal count under section 66EA of the Crimes Act 1900 (NSW) of maintaining an unlawful sexual relationship with a child.

The abuse occurred in the family home, frequently while the victim's mother was asleep or working night shifts. The offender held a position of trust as the victim's stepfather and exploited that position across a prolonged period. The jury rejected the offender's denials and found the victim to be a credible and reliable witness.

The sentencing hearing took place on 30 August 2024. The court received a Sentencing Assessment Report, a psychologist's case note, a victim impact statement read via audio-visual link, and a letter from the offender's son.

Legal Issues

  • What was the objective gravity of each of the 12 counts, including the section 66EA maintaining an unlawful sexual relationship offence?
  • What aggravating and mitigating factors applied?
  • Did the 20-plus year delay between the offending and sentencing operate as a mitigating factor?
  • How should the totality principle apply when constructing an aggregate sentence across 12 counts, and could Counts 1 to 11 be subsumed into Count 12?
  • Were special circumstances established so as to justify varying the statutory ratio between the head sentence and the non-parole period?

Decision

Objective seriousness of the individual counts

The court assessed Counts 1 and 2 (kissing and breast contact) at the low range of objective seriousness, Count 3 (digital touching) at the mid-range, and Counts 4 to 11 (penile-vaginal intercourse, fellatio, digital penetration, cunnilingus, and related acts) broadly within the low-to-mid range for offences of their respective kinds. Count 12, the maintaining an unlawful sexual relationship offence under section 66EA, was assessed as falling within the mid-range of objective seriousness for that offence type, at the upper end of that mid-range (at [52]). The court took into account the full range of unlawful sexual acts during the relationship period, the absence of any condom use, and the position of trust abused by the offender (at [51]-[52]).

Aggravating factors and personal circumstances

The court identified several aggravating factors: the victim's age and vulnerability, the offender's position of trust as stepfather, the repetitive nature of the conduct, and the fact all offending occurred in the victim's home (at [53]). The offender's lack of prior criminal history was given little weight because good character carries reduced significance in cases of repeated child sexual offending (at [54]). The court accepted the Sentencing Assessment Report's finding that the offender displayed no remorse and no insight into his conduct, and that he continued to blame the victim (at [54]). The offender's family circumstances, including his wife and children residing interstate, were acknowledged but found not to constitute exceptional hardship sufficient to mitigate the sentence (at [58]).

Delay in sentencing

The court rejected the submission that the 20-year delay between offending and sentencing operated as a mitigating factor. The victim did not disclose the offending to police until 2018, during which time the offender lived free of any consequence for his conduct. The court also noted family influences that deterred the victim from earlier disclosure (at [55]). This approach was consistent with Court of Criminal Appeal authority on delay in child sexual abuse matters.

Totality and accumulation

The court rejected the defence submission that Counts 1 to 11 could be subsumed into Count 12, which would have limited accumulation. The court found that the conduct in Counts 1 to 11 extended the unlawful relationship by a further four years and independently increased its objective seriousness, requiring substantial accumulation to properly reflect the totality of the criminality (at [64]). Applying the principles in R v Van Ryn and Cahyadi v R, the court imposed an aggregate sentence of 20 years imprisonment (at [62]-[64]).

Special circumstances

The court found special circumstances under section 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW), citing the offender's first time in custody, the high degree of accumulation within the aggregate sentence, his family's interstate residence limiting visitation, his limited English language ability, and the fact he had self-harmed upon entering custody (at [65]). This justified varying the statutory ratio between the non-parole period and the balance of term.

Orders Made

  • The offender was convicted of all 12 counts on the Indictment.
  • An aggregate sentence of 20 years imprisonment was imposed under section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Non-parole period: 12 years, commencing 28 June 2024 and expiring 27 June 2036.
  • Balance of term: 8 years, expiring 27 June 2044.

Key Takeaways

  • The District Court confirmed that good character carries reduced weight in cases of persistent child sexual offending, and that the absence of prior convictions does not significantly mitigate sentence in such circumstances (at [54]).

  • Under the totality principle, Counts 1 to 11 could not be subsumed into the section 66EA maintaining an unlawful relationship count where those earlier offences independently extended the duration and increased the seriousness of that relationship offence (at [64]).

  • A delay of more than 20 years between offending and sentencing does not automatically operate as a mitigating factor where the offender benefited from that delay by living free from accountability, particularly where family dynamics deterred the victim from earlier disclosure (at [55]).

  • General deterrence is a paramount sentencing consideration in cases of persistent and ongoing child sexual offending, warranting condign punishment regardless of the offender's low-to-medium assessed risk of recidivism (at [56]).

  • Special circumstances justifying variation of the statutory head sentence to non-parole ratio can be established by a combination of factors including a first custodial sentence, significant accumulation in an aggregate sentence, interstate family separation, language barriers, and prior self-harm in custody (at [65]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Bamblett v R [2013] NSWCCA 161
- Burr v R [2020] NSWCCA 282
- Cahyadi v R [2007] NSWCCA 1;(2007) 168 A Crim R 41
- DB v R [2024] NSWCCA 18
- EG v R [2015] NSWCCA 21
- GP v R [2021] NSWCCA 180
- Greenaway v R [2021] NSWCCA 253
- Massaquoi v R [2024] NSWCCA 125
- Mills v R [2017] NSWCCA 87
- MK v R [2024] NSWCCA 127
- R v MAK; R v MSK [2006] NSWCCA 381;(2006) 167 A Crim R 159
- R v PGM [2008] NSWCCA 172;(2008) 187 A Crim R 152
- R v Van Ryn [2016] NSWCCA 1
- RA v R [2024] NSWCCA 149
- Tindall v R [2019] NSWCCA 136
- Towse v R [2022] NSWCCA 252
- Young (a pseudonym) v R [2022] NSWCCA 111;(2022) 298 A Crim R 468