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District Court 16 October 2024

R v HW

[2024] NSWDC 479

Sexual offences
SENTENCE CHILD SEXUAL ASSAULT PLEA GUILTY REMORSE 2 VICTIMS OFFENDER ASSAULTED IN CUSTODY

Citation: R v HW [2024] NSWDC 479
Court: District Court of New South Wales
Date: 16 October 2024
Judge: Lerve DCJ

Background

The offender, a man born in November 1991, pleaded guilty to seven child sexual assault charges and asked the court to take into account additional matters on Form 1 documents. The offending involved two victims: his stepsister (TW) and his stepdaughter (LJ). The charges spanned offending between 2010 and 2023.

The offending against TW began when she was five years old and the offender was 18. It included aggravated indecent assault and sexual intercourse with a child under 10, as well as a later incident in 2020 involving sexual intercourse with a child aged between 14 and 16. The offending against LJ, who was the offender's stepdaughter, occurred between December 2021 and January 2023 when she was aged between approximately eight and nine years old and involved multiple acts of sexual intercourse with a child under 10.

The offender was committed for sentence to the Wagga Wagga District Court and was sentenced on 27 September 2024. His early guilty pleas, entered in the Local Court and adhered to at the sentence hearing, attracted the full 25 percent discount for utilitarian value.

  • What was the appropriate objective seriousness of each offence, having regard to the nature of the acts, the ages of the victims, and the circumstances?
  • Whether the offending could be characterised as opportunistic so as to reduce its seriousness
  • What weight should be given to the offender's youth at the time of the earlier offending
  • Whether a finding of paedophilic disorder was established on the evidence, and its relevance to sentencing
  • Whether the offender's assault in custody constituted extra-curial punishment warranting a reduction in sentence
  • How the individual sentences should be structured in an aggregate sentence, including whether special circumstances existed warranting adjustment of the standard non-parole period ratio

Decision

Lerve DCJ assessed the objective seriousness of each offence individually, applying the settled principle from the Court of Criminal Appeal that forms of sexual intercourse cannot be ranked in a hierarchy. The court assessed seriousness by reference to the totality of facts and circumstances in each case, including the ages of the victims and the nature of the conduct. The judge also noted that the absence of aggravating features such as physical violence did not operate as mitigation, reaffirming the principle that an offence is not made less serious simply because it could have been worse.

The court rejected the submission that the offending was opportunistic. The onus rested on the offender to establish that characterisation on the balance of probabilities, and the psychological evidence and the offender's own account did not satisfy that onus. The court found that the offender met the clinical criteria for paedophilic disorder, a finding supported by psychological reports, and treated this as a relevant consideration in assessing the risk of re-offending and the need for supervision.

The court accepted that the offender's relative youth at the time of the earlier offending against TW was a mitigating factor, reducing his moral culpability for that conduct to some extent. The court also accepted that the offender had been assaulted while in custody, and treated this as extra-curial punishment, giving it some weight in reducing the overall sentence.

Finding special circumstances, the court set the non-parole period at approximately 66.6 percent (two thirds) of the total sentence rather than the standard three quarters. The primary reason identified for that finding was the need for an extended period of supervised parole, given the nature of the offending and the paedophilic disorder finding.

Orders Made

  • Aggregate sentence of 14 years imprisonment imposed
  • Non-parole period of 9 years and 4 months, commencing 25 January 2023 and expiring 24 May 2032
  • Balance of term (parole period) of 5 years and 8 months, commencing 25 May 2032 and expiring 24 January 2037
  • The court recommended the offender's release at the expiration of the non-parole period
  • The court strongly recommended that parole be conditioned on supervision by the Department of Community Corrections and compliance with all reasonable directions, including participation in any sex offender programme recommended by that Department
  • Finding of special circumstances recorded, reflecting the need for an extended supervisory period

Key Takeaways

  • Objective seriousness of child sexual assault offences is assessed by reference to the totality of the facts and circumstances of each case; forms of sexual intercourse cannot be ranked in a hierarchy to determine relative seriousness.
  • The burden of establishing that offending was opportunistic rests on the offender on the balance of probabilities; characterising conduct as merely taking advantage of presented opportunities is not sufficient without evidence satisfying that onus.
  • Where an offender has been clinically assessed as meeting criteria for paedophilic disorder, that finding is relevant to the sentencing exercise, particularly in assessing risk of reoffending and the need for structured post-release supervision.
  • An assault suffered by an offender while in custody can constitute extra-curial punishment and is a recognised basis for some reduction in the sentence that would otherwise have been imposed.
  • Under the Crimes (Sentencing Procedure) Act 1999, a finding of special circumstances permits a court to adjust the standard non-parole period ratio; here the District Court identified the need for extended supervised parole as sufficient justification for that finding.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 66A(1), 66C(3), 66DA(a), 91H(2), 61H
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- The Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No 1 of 2002 (2002) 56 NSWLR 146 (Guideline Judgment on Form 1)
- Muldrock v The Queen [2011] HCA 39
- R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434
- R v PGM [2006] NSWCCA 310
- MLP v R (2006) 164 A Crim R 93
- RJA v R (2008) 185 A Crim R 137; [2008] NSWCCA 137
- R v KT [2008] NSWCCA 51
- Locke v R (2010) 207 A Crim R 34
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Jolly v R [2013] NSWCCA 76
- Bravo v R [2015] NSWCCA 302
- Mills v R [2017] NSWCCA 87