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District Court 8 August 2025

R v Elmer (a pseudonym)

[2025] NSWDC 390

Sexual offences

Citation: R v Elmer (a pseudonym) [2025] NSWDC 390
Court: District Court of New South Wales
Date: 8 August 2025
Judge: Haesler SC DCJ

Background

The offender (given the pseudonym "Elmer" to protect the identity of the complainant) was tried in the Wollongong District Court on eight counts of serious child sexual offences alleged to have occurred between 2004 and 2011. The complainant was his stepdaughter, born in 1994. The offences were alleged to have occurred when she was between 10 and 16 years of age.

A jury of 11 returned not guilty verdicts on four counts and guilty verdicts on four counts. The guilty verdicts related to two counts of aggravated sexual intercourse with a child aged between 10 and 14, one count of inciting an act of indecency with a child under 16 and under authority, and one count of aggravated indecent assault of a child under 16.

The Court then proceeded to sentencing, at which point a significant procedural difficulty emerged with respect to one of the guilty verdicts.

  • Whether the Court could sentence on a count for which the jury returned a guilty verdict but where no evidence had been led at trial to support the elements of that count
  • What remedy, if any, was available to the sentencing judge in those circumstances
  • How to assess the objective seriousness of the remaining counts and determine a proportionate sentence, including the treatment of delay, subjective factors, and special circumstances

Decision

The evidentiary problem with Count 5

When preparing sentencing remarks, Haesler SC DCJ reviewed the trial transcript and found that the complainant had given no evidence at trial to support Count 5, which alleged that the offender had touched her thighs and vaginal area during an incident at Bombo beach. The allegation had been put to the offender during a police interview (which he denied), and was put to the complainant in cross-examination only in general terms. Neither the denial in the record of interview nor the cross-examination proposition could constitute evidence that the offence occurred.

The judge identified a fundamental difficulty: to impose a sentence, the court would need to make findings of fact about the offence and its seriousness, but there was no evidentiary foundation to do so. The court also had no power to stay proceedings after a jury verdict, and no application for a directed verdict of acquittal had been made during trial. The judge noted that imposing a sentence in these circumstances risked adverse consequences on any appeal, drawing an analogy with the situation in MacDonald v R [2024] NSWCCA 240.

In those exceptional circumstances, Haesler SC DCJ took what he described as the "expedient course" of dealing with Count 5 under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW): recording the jury's finding of guilt, imposing no penalty, and entering no conviction. The judge acknowledged uncertainty as to whether this was technically correct, but treated it as the only available remedy on the facts.

Sentencing on Counts 3, 4 and 6

The offending occurred across two incidents. In the first (Count 3), the offender digitally penetrated his stepdaughter, then aged 10 or 11, while she was sick in bed. In the second incident (Counts 4 and 6), he drove her alone to a beach, produced a pornographic magazine, exposed himself, incited her to touch his penis, and then placed his penis (with a condom) in her mouth.

Haesler SC DCJ assessed the offending as serious, noting every instance of child sexual exploitation carries an absolute prohibition and warrants significant punishment to protect children, denounce the conduct, and vindicate the victim's dignity. Mitigating factors included the offender's prior good character, the substantial delay between the offending and prosecution (which affected the availability of character evidence and had other subjective consequences), and deteriorating mental health and drug use following the offending. The judge found special circumstances justifying a departure from the standard non-parole ratio, given the offender's need for structured supervision and treatment upon release.

Orders Made

  • Count 3 (aggravated sexual intercourse, child aged 10 to 14): 4 years imprisonment
  • Count 4 (incite act of indecency, child under 16 under authority): 2 years imprisonment
  • Count 6 (aggravated sexual intercourse, child aged 10 to 14): 6 years imprisonment
  • Total sentence: 8 years imprisonment, with a non-parole period of 5 years
  • Sentence commences 20 August 2024; eligible for parole 19 August 2029; total sentence expires 19 August 2032
  • Count 5: Jury's finding of guilt noted; matter dealt with under s 10(1)(a) Crimes (Sentencing Procedure) Act 1999 (NSW); no conviction entered, no penalty imposed
  • Dr Dornan's report to accompany the warrant

Key Takeaways

  • A sentencing court cannot impose a sentence on a count, even following a jury's guilty verdict, where there are no facts in evidence to support a finding of guilt; the absence of evidentiary foundation creates an insurmountable difficulty in making the necessary findings of fact and assessing seriousness.

  • Where no directed verdict application was made during trial and no power to stay proceedings exists post-verdict, Haesler SC DCJ treated s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) as the only available remedy, recording the finding without entering a conviction or imposing a penalty. The judge explicitly acknowledged uncertainty about whether this approach was technically correct.

  • An allegation put to a defendant in a police record of interview, and denied, cannot constitute evidence that an offence occurred and cannot found a factual finding on sentence.

  • Significant delay between the commission of offences and prosecution remains a relevant mitigating factor on sentence, as does demonstrated prior good character, even in serious child sexual offending cases.

  • Special circumstances justifying a departure from the standard non-parole ratio may be established where an offender's mental health difficulties and rehabilitation needs point to a requirement for structured community supervision on release.

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes Act 1900 (NSW), ss 61M, 61O, 66C, 578
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10(1)(a)

Cases
- Clarkson v R [2011] VSCA 152
- Cowling v R [2015] NSWCCA 213
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Franklin v R [2016] NSWCCA 319
- Hoare v The Queen (1989) 167 CLR 348
- MacDonald v R [2024] NSWCCA 240
- Magnuson v R [2013] NSWCCA 50
- Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
- R v Cattell [2019] NSWCCA 297
- R v Daley [2010] NSWCCA 223
- R v Gavel [2014] NSWCCA 56
- R v Herring (1956) 73 WN (NSW) 203
- R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- R v Todd [1982] 2 NSWLR 517
- R v Van Ryn [2016] NSWCCA 1
- R v Windle [2012] NSWCCA 222
- Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267
- Way v R [2000] NSWCCA 131
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