AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 9 May 2025

R v SD

[2025] NSWDC 174

Sexual offencesDomestic & family violence

Citation: R v SD [2025] NSWDC 174
Court: District Court of NSW
Date: 9 May 2025
Judge: Everson SC, DCJ

Background

The offender, referred to as SD, was tried on an indictment containing 22 counts of sexual offences against his daughter, referred to as GD. The offending occurred within the family home in the Penrith suburb of Glenmore Park, spanning from early January 2019 to July 2023. At the time of the first offence, GD was nine years old; at the time of the last, she was thirteen.

On 27 February 2025, a jury found SD guilty of 19 counts. Verdicts of not guilty by judicial direction had earlier been returned on three counts. The 19 offences encompassed sexual touching of the victim and penile-vaginal intercourse committed across multiple separate incidents, all in domestic settings and in the context of the father-daughter relationship.

The sentencing hearing proceeded on agreed facts broadly consistent with the jury's verdicts. The matter came before Everson SC, DCJ for the imposition of sentence.

Legal Issues

  • What findings of fact were open on sentence, consistently with the jury's verdicts, and what was the objective seriousness of each offence?
  • Whether substantial emotional harm to the victim was established as an aggravating factor under section 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999.
  • Whether the victim's young age constituted vulnerability within the meaning of section 21A(2)(l) as a separate aggravating factor.
  • Whether the victim's age warranted a further increase in sentence, over and above the breach of trust already taken into account.
  • Whether special circumstances justified a non-parole period below three-quarters of the total sentence.
  • What aggregate sentence was appropriate, having regard to the totality of the offending and all relevant subjective factors?

Decision

Objective seriousness and aggravating factors

The court identified several significant aggravating features common to the offending: the offences were committed by a parent against his own child, within the family home, over a prolonged period of approximately four and a half years, across multiple separate incidents, with the offender exploiting his position of trust and authority (at [48]). The court also found that the offender's motive was perverted sexual gratification (at [52]). The court declined to apply range labels such as "mid-range" or "above mid-range" to each offence, preferring instead to assess the relevant factors directly, consistent with guidance from the Court of Criminal Appeal in R v RE and Ragg v R (at [43]-[44]).

Substantial emotional harm: section 21A(2)(g)

The court rejected the Crown's submission that substantial emotional harm had been proved beyond reasonable doubt as a separate aggravating factor. While the court inferred that GD experienced fear, it found that treating the resulting harm as substantial for sentencing purposes would constitute double counting, because the consequences of the offending were typical of this category of offence (at [55]). The court also noted it was not satisfied that harm was not substantial, but the required standard for aggravation was not met.

Victim vulnerability: section 21A(2)(l)

The court rejected the Crown's submission that GD's young age made her a vulnerable victim within section 21A(2)(l). Following Du Plessis v R [2024] NSWCCA 164, the court held that this provision is concerned with vulnerability of a class of persons requiring special protection, such as those with cognitive impairment or sensory disability, and does not extend to vulnerability arising from the circumstances of the offence alone (at [56]-[57]).

Age of victim and double counting

The court accepted that the younger the victim, generally the more serious the offending. However, it found that imposing a further sentencing increase on account of GD's young age would amount to double counting, given that the significance of the breach of trust and parental authority was already a central aggravating consideration (at [58]).

Subjective factors and special circumstances

The offender had no prior convictions in NSW, though he held ACT convictions for drink driving and contravening a family violence order (at [64]). He maintained his innocence throughout, demonstrating no remorse or contrition (at [69]). The court accepted that the offender would serve his sentence in protective custody, and that he had already been transferred to a gaol on the mid-north coast following an assault, making his conditions of imprisonment more onerous, which was a relevant mitigating factor (at [72]). The court found prospects of rehabilitation were at least reasonable despite the absence of remorse (at [74]). It declined to find special circumstances to reduce the non-parole period below the statutory three-quarter ratio, not accepting that being a first-time prisoner was alone sufficient for that purpose (at [80]).

Sentence

The court imposed an aggregate sentence of 20 years imprisonment with a non-parole period of 15 years. The indicative non-parole periods for individual offences were set below the applicable standard non-parole periods, having regard to the relative seriousness of each offence and the fact that the offender would serve his sentence in protective custody (at [85]).

Orders Made

  • The offender is convicted of each of the 19 offences for which he was found guilty by the jury on 27 February 2025.
  • The offender is sentenced to an aggregate sentence of 20 years imprisonment with a non-parole period of 15 years.
  • The non-parole period commences on 19 November 2024 and expires on 18 November 2039.
  • The balance of term of 5 years commences on 19 November 2039 and expires on 18 November 2044.
  • The offender is eligible for release to parole at the expiration of the non-parole period.

Key Takeaways

  • The District Court confirmed that applying range labels such as "mid-range" or "above mid-range" to individual offences adds unnecessary complexity and is generally not useful; the relevant aggravating and mitigating factors themselves are a more meaningful gauge of seriousness than a positional label (at [43]-[44]).

  • Section 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999, which aggravates offending where the victim was vulnerable, applies to vulnerability arising from membership of a class of persons requiring protection, and does not extend to vulnerability deriving from the circumstances of the particular offence (at [56]-[57]).

  • Where the adverse consequences of an offence are typical of that category of offending, treating those consequences as "substantial" harm under section 21A(2)(g) would constitute impermissible double counting; the Crown must prove substantial harm beyond reasonable doubt to enliven the aggravating factor (at [55]).

  • A child victim's young age is generally a factor that increases the seriousness of sexual offending, but an additional sentencing increase on that basis may constitute double counting where a significant breach of parental trust is already treated as a central aggravating feature (at [58]).

  • Evidence that a sentenced offender has been assaulted in custody and transferred to a more distant correctional facility, thereby making conditions of imprisonment more onerous, is capable of constituting a relevant mitigating factor in sentencing (at [72]).

Legislation and Cases Referenced

Legislation
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW)

Cases
- Plessis v R [2024] NSWCCA 164
- R v Wilson (a pseudonym) [2023] NSWDC 354
- R v RE [2023] NSWCCA 184
- Ragg v R [2022] NSWCCA 15
- Zhao v R [2019] NSWCCA 203
- Chamseddine v R [2017] NSWCCA 176
- R v Gavel [2014] NSWCCA 56
- Shannon v R [2006] NSWCCA 39
- R v Boulad [2005] NSWCCA 289
- R v Scott [2003] NSWCCA 28
- R v Burchell (1987) 34 A Crim R 148