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District Court 21 November 2024

R v LD

[2024] NSWDC 645

Sexual offences
CRIME SENTENCE AGGRAVATED INDECENT ASSAULT SEXUAL INTERCOURSE 10 INDECENT ASSAULT

Citation: R v LD [2024] NSWDC 645
Court: District Court of New South Wales
Date: 21 November 2024
Judge(s): Bourke SC DCJ

Background

The offender, a man now aged 56, was sentenced for five sexual offences committed against a child over a period of approximately seven years, from September 1994 to January 2002. At the time of the offending, the victim was aged between approximately 9 and 16 years. The offender had been in an intimate relationship with the victim's mother and was a regular presence in the family home and on family trips.

The offending included aggravated indecent assault, indecent assault, and three counts of sexual intercourse with a person aged between 10 and 16 years. Two additional offences were placed on Form 1 documents, meaning they were taken into account at sentencing without recording separate convictions. The offender entered guilty pleas at the earliest opportunity.

The victim is now aged 39. The sentencing judge had regard to the victim's experience of repeated abuse by a trusted adult figure over many years, as well as the offender's personal circumstances at the time of sentence.

  • What discount applied to the sentences by reason of the early guilty pleas?
  • What were the appropriate indicative sentences for each substantive offence, having regard to the maximum penalties and the Form 1 matters?
  • How should the totality principle apply to an aggregate sentence covering five offences against a single victim over approximately seven years?
  • Whether special circumstances existed to justify departing from the standard ratio between the head sentence and the non-parole period?

Decision

The offender received a 25 per cent discount on sentence because he entered guilty pleas at the earliest opportunity. The sentencing judge noted that, because all offences predated the introduction of the standard non-parole period regime, no standard non-parole periods applied. The maximum penalties nonetheless served as important reference points in calibrating the seriousness of each offence.

The court assessed indicative sentences for each of the five substantive offences (inclusive of the Form 1 matters attached to sequences 1 and 2). Those indicative terms ranged from one year eight months (for the indecent assault under s 61L) to two years four months (for the first count of sexual intercourse with a person aged 10 to 16 years).

Applying the totality principle, the judge declined to simply aggregate the indicative sentences. Instead, a degree of notional accumulation was applied to reflect that the offences were committed on separate occasions over approximately seven years, notwithstanding that there was only one victim. The overall sentence was set to capture the full criminality without imposing a crushing penalty.

The court found special circumstances justifying a departure from the standard head sentence to non-parole period ratio. The primary bases were: this was the offender's first experience of custody; he demonstrated genuine remorse when confronted with his offending in 2023; he faced particular hardship in custody due to physical and other difficulties; and a longer period of supervised parole was needed to support his reintegration.

Orders Made

  • Head sentence of four years and nine months, commencing 24 April 2023 and expiring 23 January 2028.
  • Non-parole period of three years, expiring 23 April 2026.

Key Takeaways

  • The District Court confirmed that maximum penalties remain important sentencing guideposts even where no standard non-parole period applies, as was the case for offences predated by the introduction of that regime.
  • A 25 per cent discount for utilitarian value applies where a guilty plea is entered at the earliest opportunity, consistent with the approach under the Crimes (Sentencing Procedure) Act 1999.
  • Where an offender is sentenced for multiple offences against the same victim, the totality principle requires the court to assess overall criminality holistically rather than by simple addition of indicative terms, though separate occasions of offending over an extended period justify a degree of notional accumulation.
  • Special circumstances were established on the basis of first-time custody, genuine remorse, hardship in custody, and the need for an adequate supervised parole period, warranting a non-parole period shorter than the standard ratio would otherwise produce.
  • Form 1 matters, taken into account alongside the relevant head offence, are reflected in the indicative sentence for that sequence rather than generating a separate term.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61L, 61M(1), 66C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Carr v R (2020) NSWCCA 214
- R v Carey (2024) NSWCCA 90
- R v G [2008] UKHL 37
- R v Gavel [2014] NSWCCA 56
- SW v R [2013] NSWCCA 255