AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 15 November 2024

R v WP

[2024] NSWDC 544

Sexual offencesAssault & violenceDomestic & family violence
CRIME SENTENCING FOLLOWING TRIAL ADDITIONAL PLEAS AFTER GUILTY VERDICT SEXUAL INTERCOURSE CHILD UNDER 10 YEARS FORM 1 MATTERS

Citation: [2024] NSWDC 544
Court: District Court of New South Wales
Date: 15 November 2024
Judge: Fitzsimmons SC DCJ

Background

The offender was sentenced following jury verdicts of guilty on three child sexual offences committed against two of his daughters over a period of approximately nine years. The victims were aged between approximately four and twelve years at the times of the relevant offending. The offender was also found not guilty of one further count.

Following the trial verdicts, the offender pleaded guilty to two further counts of assault occasioning actual bodily harm (domestic violence) against two of his daughters. A number of additional assault offences were placed on Form 1 (meaning they were taken into account when passing sentence, without separate convictions being recorded for each). The sentencing hearing dealt with all matters together.

The offender had been in custody since 3 November 2021, accumulating 1,109 days of pre-sentence custody referable to these proceedings.

  • What findings of fact could be made to the required standard for the purposes of sentencing on each count from the trial indictment?
  • What weight should be given to the standard non-parole periods for the child sexual offences as sentencing guideposts?
  • How should the individual sentences be structured and accumulated to reflect the totality of the offending without producing a crushing or disproportionate aggregate sentence?
  • What discount, if any, applied to the assault offences arising from the guilty pleas?
  • How should time already spent in pre-sentence custody be accounted for?

Decision

Fitzsimmons SC DCJ made findings of fact for each count beyond reasonable doubt, drawing on the agreed facts and the trial evidence. The sexual offending against the older daughter (Counts 1 and 3 on the trial indictment) involved oral intercourse committed on multiple occasions, with the first and last occasions forming the subject of those two counts. Count 4 involved sexual offending against a younger daughter. The court noted the offending spanned roughly nine years and involved two victims.

On the trial indictment, the court assessed indicative sentences for each count individually before determining the aggregate. The standard non-parole periods for the child sexual offences served as sentencing guideposts under sections 54A and 54B of the Crime (Sentencing Procedure) Act 1999, representing the non-parole period for offending at the middle range of objective seriousness by reference to objective factors only.

For the assault offences arising from the guilty pleas, the court applied a ten percent discount for the pleas of guilty, reducing the pre-discount sentences of two years and two years six months to one year nine months and two years three months respectively. The Form 1 matters were taken into account in fixing those indicative sentences.

In fixing the aggregate, the court applied the totality principle, requiring that the overall sentence reflect the full extent of the offending without being crushing. The court noted that the most serious sexual offences involved different victims and that a reasonable degree of accumulation was therefore required. Some accumulation also applied to the assault offences, though to a lesser degree, given those offences involved two victims over a relatively short period.

Orders Made

  • The offender is convicted of all offences.
  • A total aggregate sentence of 16 years imprisonment is imposed, expiring on 2 November 2037.
  • A non-parole period of 10 years and 5 months is imposed, expiring on 2 April 2032.
  • The earliest date for parole eligibility is 2 April 2032.
  • In relation to a separate contravene prohibition/restriction in AVO charge (H86191580/5), the offender is convicted without any further penalty being imposed.

Key Takeaways

  • The District Court confirmed that, for sentencing purposes, adverse facts must be established beyond reasonable doubt, while facts favourable to the offender need only be proved on the balance of probabilities, applying the principles from R v Olbrich (1999) 199 CLR 270 and R v Storey [1998] 1 VR 359.
  • Standard non-parole periods under sections 54A and 54B of the Crime (Sentencing Procedure) Act 1999 function as reference points representing mid-range objective seriousness, and are one consideration among many in determining an appropriate sentence.
  • Where multiple serious offences are committed against more than one victim, a reasonable degree of accumulation of individual sentences is required when constructing an aggregate sentence.
  • The totality principle requires that the aggregate sentence be just and appropriate across all offending conduct, and courts must remain alert to the potentially crushing effect of a lengthy total sentence: R v MAK; R v MSK [2006] NSWCCA 381; Hall v R [2021] NSWCCA 220.
  • A ten percent discount for guilty pleas was applied to the assault offences arising after the trial, reflecting the utilitarian value of those pleas at a late stage.

Legislation and Cases Referenced

Legislation
- Crime (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2)(d), 21A(2)(db), 21A(2)(k), 25A(3), 25D, 54A(1), 54A(2), 54B(2)
- Crimes Act 1900 (NSW), ss 59(1), 66A(1), 66A(2), 66C(2)

Cases
- Burr v R [2020] NSWCCA 282
- Collier v R [2012] NSWCCA 213
- DH v R [2022] NSWCCA 200
- EG v R [2015] NSWCCA 21
- Giles-Adams v R; Preca v R [2023] NSWCCA 122
- Grange v R [2023] NSWCCA 6
- HA v R [2023] NSWCCA 274
- Hall v R [2021] NSWCCA 220
- KM v R [2023] NSWCCA 10
- Pender v R [2023] NSWCCA 291
- R v De Simoni (1981) 147 CLR 383
- R v Eaton [2023] NSWCCA 125
- R v Gavel (2014) 239 A Crim R 469
- R v JRD [2007] NSWCCA 55
- R v Little [2013] NSWCCA 288
- R v Lulham [2016] NSWCCA 287
- R v MAK; R v MSK (2006) 167 A Crim R 159
- R v Olbrich (1999) 199 CLR 270
- R v Sharrouf [2023] NSWCCA 13
- R v Storey [1998] 1 VR 359