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District Court 6 March 2025

R v Douglas (a pseudonym)

[2025] NSWDC 126

Sexual offencesAssault & violenceDomestic & family violence
RANGE OFFENDING.

Citation: R v Douglas (a pseudonym) [2025] NSWDC 126
Court: District Court of New South Wales
Date: 6 March 2025
Judge: Sutherland SC DCJ

Background

The offender (referred to by the pseudonym Paul Douglas) stood trial on 29 counts of sexual and domestic violence offences alleged to have been committed against two complainants over approximately 21 years. The first complainant was his former wife, against whom the offending was alleged to have occurred episodically between 2000 and 2019. The second complainant was a subsequent partner, and the alleged offending against her occurred between June 2020 and October 2021.

After a trial before a jury, the offender was convicted of 17 of the 29 counts. These included two counts of aggravated sexual assault, one count of sexual intercourse without consent, one count of attempting to choke, and multiple counts of common assault, assault occasioning actual bodily harm, intentionally suffocating, and intimidation. The jury acquitted on the remaining counts.

A Statement of Agreed Facts placed before the jury confirmed that the offender had previously admitted assaulting the first complainant, that multiple Apprehended Domestic Violence Orders had been made against him over the years, and that he had breached those orders on a number of occasions. With respect to the second complainant, the offender had also admitted damaging her property and committing physical assaults. At the sentencing hearing, the offender continued to maintain his innocence, and letters from the offender, a family member, and the second complainant were received by the Court protesting his innocence.

  • How a sentencing judge must determine facts following a jury trial where both guilty and not guilty verdicts were returned, including where a co-complainant recanted her evidence at trial.
  • Whether the offender's continued denial of all offending and absence of remorse affected findings on rehabilitation prospects.
  • What sentence was appropriate having regard to the number of counts, the two separate victims, the prolonged period of offending, and the principle of totality.
  • Whether the standard non-parole periods applicable to aggravated sexual assault applied to the relevant counts, and how mid-range offending was to be assessed.
  • How an aggregate sentence under section 53A of the Crimes (Sentencing Procedure) Act 1999 should be structured, including indicative sentences for individual counts.

Decision

Fact-finding after mixed jury verdicts. His Honour applied the principle from Cheung v The Queen that a sentencing judge's findings cannot be inconsistent with the jury's verdicts, including the not guilty verdicts. Where the jury was confronted with opposing accounts on identified occasions and was not satisfied to the criminal standard, the appropriate approach was to sentence on the basis of the guilty verdicts while ensuring any factual findings were not inconsistent with the acquittals. The continued protestations of innocence from the offender, a family member, and the second complainant were noted but set aside for sentencing purposes, save insofar as they reflected a complete absence of remorse and contrition.

Rehabilitation and remorse. Because the offender maintained total denial of all offending, his Honour could not find good prospects of rehabilitation. The absence of any contrition was treated as a relevant sentencing consideration, consistent with the established principle that rehabilitation is difficult to assess positively where an offender continues to deny the conduct for which he has been convicted.

Standard non-parole periods. The Court was satisfied that the aggravated sexual assault counts represented mid-range offending, engaging the standard non-parole period provisions under section 54A of the Crimes (Sentencing Procedure) Act 1999. His Honour indicated that the circumstances of those offences required the imposition of the standard non-parole periods specified by Parliament, and set out indicative non-parole periods for those counts accordingly.

Totality and aggregate sentence. Given the breadth of the offending across two relationships and over two decades, the Court applied the totality principle to arrive at a final aggregate sentence of 16 years, with a non-parole period of 12 years. The offender had spent limited time in pre-sentence custody, and the sentence was backdated to 13 July 2024 to account for the two days spent in custody before that date.

Orders Made

  • Aggregate sentence of 16 years imprisonment.
  • Non-parole period of 12 years.
  • Sentence backdated to 13 July 2024.
  • Eligible for release to parole on 12 July 2036.
  • Balance of term expires on 12 July 2040.
  • Indicative sentences imposed for each individual count, including:
  • Count 12 (aggravated sexual assault): 13 years, indicative non-parole period 10 years
  • Count 14 (aggravated sexual assault): 14 years, indicative non-parole period 10 years
  • Count 11 (attempt to choke): 5 years
  • Count 29 (sexual intercourse without consent): 4 years, indicative non-parole period 3 years
  • Count 28 (intentionally suffocate): 18 months
  • Various assault and intimidation counts ranging from 3 to 15 months

Key Takeaways

  • A sentencing judge following a jury trial with mixed verdicts must sentence consistently with both the guilty and not guilty verdicts, not simply the guilty verdicts in isolation. Where verdicts may appear inconsistent, the judge must identify facts that are not inconsistent with any verdict returned.

  • Continued denial of all offending following conviction, with no expression of remorse or contrition, precludes a finding of good prospects of rehabilitation as a mitigating factor at sentencing.

  • Under section 54A of the Crimes (Sentencing Procedure) Act 1999, where the offending on aggravated sexual assault counts falls within the mid-range of objective seriousness, the District Court confirmed that the standard non-parole period applies and cannot be departed from without proper justification.

  • The totality principle operates to ensure that an aggregate sentence reflects the overall criminality of the conduct without producing a crushing result. Here, 17 counts spanning 21 years across two relationships were ultimately reflected in a single aggregate sentence of 16 years.

  • A co-complainant's recantation of her evidence at trial does not override a jury's guilty verdicts. The sentencing court is bound by those verdicts and must sentence accordingly, noting only that such circumstances can complicate the sentencing exercise.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), including s 578A (publication prohibition)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 53A (aggregate sentences) and 54A (standard non-parole periods)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Evidence Act 1995 (NSW)

Cases
- Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1
- Abbas v R [2024] NSWCCA 228
- Ali v R [2010] NSWCCA 35
- Alseedi v R [2009] NSWCCA 185
- Armstrong v R [2017] NSWCCA 323
- Baker v R [2022] NSWCCA 195
- BP v R [2010] NSWCCA 159; 201 A Crim R 379
- Bugmy v The Queen [2013] HCA 387; (2013) 249 CLR 571
- Doolan v R [2006] NSWCCA 29; (2006) 160 A Crim R 54
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Patsan v R [2018] NSWCCA 129
- R v Chehab [2015] NSWCCA 44
- R v Cortese [2013] NSWCCA 148
- R v DN [2023] NSWCCA 39
- R v Berry [2000] NSWCCA 451