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District Court 16 December 2024

R v Winfield (a pseudonym)

[2024] NSWDC 656

Sexual offences

Citation: R v Winfield (a pseudonym) [2024] NSWDC 656
Court: District Court of New South Wales
Date: 16 December 2024
Judge: Haesler SC DCJ

Background

Following a five-day jury trial at Wollongong District Court, the offender (referred to by the pseudonym "Derrick Winfield") was convicted on two counts of maintaining an unlawful sexual relationship with a child under s 66EA of the Crimes Act 1900 (NSW). The two complainants, referred to as Zara and Hannah (also pseudonyms), were his daughters. A third conviction was entered for filming Zara while she was engaged in a private act, contrary to s 91K(3) of the same Act.

The offending against Zara spanned 2013 to 2021, when she was aged between eight and 16. The offending against Hannah spanned 2008 to 2017, when she was aged between seven and 16. Both relationships involved repeated sexual touching, including digital penetration, occurring predominantly while the children were asleep in their own home.

The offender denied the sexual activity alleged against him, though he conceded some sexual touching of Zara at a later age than that particularised in the charges. His denials were rejected by both the jury and the sentencing judge.

  • How the court should approach sentencing for "maintaining an unlawful sexual relationship" offences under s 66EA, where the focus is on the nature of the relationship rather than discrete enumerated acts
  • The appropriate weight to give to aggravating factors, including the positions of trust and authority held by the offender as a parent, the ages of the victims, and the domestic setting of the offending
  • How to assess objective seriousness and moral culpability across offences spanning many years against multiple child complainants
  • The relevance of mitigating and subjective factors, including prior good character, the offender's Indigenous background, mental health conditions, alcohol addiction, and his own history of childhood trauma and sexual abuse
  • The application of the totality principle to ensure the aggregate sentence was not "crushing," alongside a finding of special circumstances to extend the parole period

Decision

Haesler SC DCJ was satisfied beyond reasonable doubt by the evidence of both complainants, accepting their accounts as clear and credible. The judge noted that the jury had also rejected the offender's denials, and that his concessions and admissions in letters, texts and a telephone call contradicted his claimed lack of sexual interest in Zara. The acquittals on two other counts were given their full benefit and did not undermine the complainants' credibility.

The judge applied an "instinctive synthesis" approach to sentencing, consistent with Markarian v The Queen and The Queen v Pham. His Honour emphasised that sentencing for maintaining an unlawful sexual relationship is not the same as aggregating sentence for a series of representative acts: the focus is on the nature and character of the overall unlawful relationship, not on mathematical calculation from individual incidents. The offending was described as constituting a gross and sustained abuse of parental trust, occurring in the children's home where they were entitled to feel safe, and associated throughout with the offender's intoxication.

The judge considered a range of subjective factors in the offender's favour, including his prior good character and lack of criminal history, his Indigenous background, his history of mental health conditions, alcohol addiction, and his own experiences of childhood sexual abuse and trauma. These were weighed against the objective seriousness of the conduct, the need for general deterrence, and the court's obligation to vindicate the dignity of the two complainants. The judge found special circumstances justifying a departure from the standard ratio between non-parole period and head sentence, to allow for an extended period of supervision on parole.

Orders Made

  • Count 1 (maintaining an unlawful sexual relationship with Zara): 9 years imprisonment
  • Count 12 (filming Zara in a private act): 1 year imprisonment
  • Count 15 (maintaining an unlawful sexual relationship with Hannah): 8 years imprisonment
  • Aggregate sentence: 12 years imprisonment, commencing 12 August 2022
  • Non-parole period: 8 years (eligible for parole consideration from 11 August 2030)
  • Parole period: 4 years (reflecting a finding of special circumstances); sentence expires 11 August 2034
  • The offender was classified as a high-risk offender and made subject to sex offender registration

Key Takeaways

  • Sentencing for maintaining an unlawful sexual relationship under s 66EA requires a holistic focus on the nature and character of the overall unlawful relationship, not a numerical calculation based on individual acts. This principle, confirmed in R v Fisher [2024] NSWCCA 191, shapes the entire sentencing exercise.

  • An offender's position as a parent, combined with the domestic setting of the abuse and the young ages of the children, constitutes a serious aggravation of moral culpability in offences of this kind.

  • Subjective mitigating factors, including prior good character, Indigenous background, mental health conditions, alcohol dependency, and the offender's own childhood trauma, are relevant considerations but cannot diminish the objective gravity of sustained sexual abuse of children within the family home.

  • Where multiple serious offences are sentenced together, the totality principle requires the court to ensure the aggregate term is not "crushing." A finding of special circumstances can extend the parole period beyond the statutory default to facilitate adequate post-release supervision.

  • The District Court acknowledged that the penalty imposed cannot be equated with, or measured against, the harm suffered by the complainants. The correlation between harm and sentence is impossible, given the range of matters a sentencing court must weigh.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66EA(1), 66EA(8), 91K(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases
- Cahyadi v R [2007] NSWCCA 1
- Clarkson v The Queen [2011] VSCA 152
- Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
- Director of Public Prosecutions v DJK [2003] VSCA 109
- Henry v R (1999) 46 NSWLR 346
- MAK v R; R v MSK [2006] NSWCCA 381
- Markarian v The Queen (2005) 228 CLR 357
- Mill v The Queen (1988) 166 CLR 59
- MK v R; RB v R [2023] NSWCCA 180
- Postiglione v The Queen (1997) 189 CLR 295
- R v Clinch (1994) 72 A Crim R 301
- R v Fisher [2024] NSWCCA 191
- R v Gavel [2014] NSWCCA 56
- R v Holder; R v Johnston [1983] 3 NSWLR 245
- R v RB [2022] NSWCCA 142
- R v Simpson (2001) 53 NSWLR 704
- R v Tuala [2015] NSWCCA 8
- R v Van Ryn [2016] NSWCCA 1
- RA v R [2024] NSWCCA 14
- The Queen v Pham (2015) 256 CLR 550