R v DD

District Court of NSW|2022-10-28

red when TF was at home with the offender. She asked him if he could purchase a game for her and he agreed on condition that she kiss him. She kissed him on the cheek then on the lips. The offender then requested a kiss with tongue which she refused stating that it was 'gross': Agreed Facts at [62].

The offence occurred in the sanctity of the home, was manipulative but opportunistic and did not involve threats or violence.
It is an element of the offence that the offender occupied a position of authority and so this cannot be double counted.

The Form 1 matters, being sequences 27 and sequence 55, must place some upward pressure on the sentence for sequence 52 referred to above. Sequences 27 and 55 involve sexual misconduct on two separate occasions. In addition, the criminality for sequence 27 was not minor.
In relation to sequence 31:

Sequence 31 occurred when TF was between 13 to 15 years of age: Agreed Facts at [63]. She was closer to the upper age threshold for the charge.
The offence occurred at the home when the offender was massaging TF's leg. He caused her underwear to move to the side and placed one of his fingers on her genitals for a number of minutes: Agreed Facts at [63].
The contact was not of short duration. It was minutes not seconds. It involved skin to skin direct contact with her genitals. In those circumstances, the physical contact was significant.
The offence was opportunistic rather than planned.
The offending was not accompanied by threats or physical violence which is not mitigating for the reasons indicated at [56(f)].
The fact that the offence occurred at the home of the victim is an aggravating factor under s. 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999.
It is not an element of the offence that TF was under the authority of the offender. Accordingly, the fact that the offence involved a breach of trust/authority is an aggravating factor under s. 21A(2)(k) Crimes (Sentencing Procedure) Act 1900

General Principles - Public Justice Offences

Sequence 43 is a charge of perverting the course of justice contrary to s. 319 Crimes Act 1900. Perverting the course of justice is a public justice offence. Such offences are singled out as offences of the most serious kind: Taylor v R [2007] NSWCCA 99 at [23]. They strike at the very heart of the justice system and must be severely punished whenever detected: Marinellis v R [2006] NSWCCA 307 at [10].
In Harrington v R [2005] NSWCCA 449 at [47], the Court endorsed the statement of McClellan J (as he then was) in the decision of R v Giang [2001] NSWCCA 276 at [21] where His Honour stated in relation to offences of perverting the course of justice: "In every case the court has been concerned to emphasise the need to impose a sentence which not only punishes the offender but will deter others from a similar course of action".
The fact than an attempt to pervert the course of justice did not succeed or was doomed to failure is of far less significance than in the case of sentencing for an attempt to commit some other substantive offence: Taylor v R [2007] NSWCCA 99 at [25]; Marinellis v R [2006] NSWCCA 307 at [8] and R v Taouk (1992) 65 A Crim R 387 at 392. It is therefore an error to take into account the fact that the acts were unsuccessful when assessing the objective seriousness of such offences: R v PFC [2011] NSWCCA 117 at [66]-[67]. It is the tendency of the conduct which is decisive, and it is irrelevant whether the conduct does or does not bring about a miscarriage of justice: Marinellis v R [2006] NSWCCA 307 at [8].

Application of the above principles to the pervert the course of justice offence

In essence, the offender had conversations with members of his family and JD, the mother of the victims, requesting them to speak to the victims and ask them to drop the charges. In relation to JD, this was requested under the pre-text that he would then be in a position to help JD out financially: Agreed Facts at [76]-[78]. The conversations occurred when the offender was in gaol and therefore were recorded.
In this case, the pervert the course of justice falls towards the higher end of the low range of objective gravity for the following reasons:

The offence was unsophisticated and easily detected.
Unlike many of cases where this offence is charged, the offender did not hold a public office or position.
The purpose of the requests was to try and get some or all of the charges against him withdrawn in order to get a reduced sentence and/or be freed.
There were repeated requests involving 3 different people. He specifically requested 2 of those persons to speak to the victims to achieve this.
The suggestion to the third person, JD, that he could help her out financially if the charges were dropped involved a degree of manipulation by the offender during what must have been an incredibly difficult, confusing and upsetting period for JD.
The pervert the course of justice offence was committed in breach of an ADVO which is a significant source of aggravation: Kennedy v R (2008) 181 A Crim R at [8]. The breach of the ADVO is the s. 166 matter which is to be dealt with at the end of the sentence. Offences committed in breach of an ADVO are not offences committed in breach of conditional liberty simpliciter, they breach a form of conditional liberty designed to protect the same victim from further attacks by the offender: Cherry v R [2017] NSWCCA 150 at [80].

Defence Submissions on the Objective Seriousness of the Pervert the Course of Justice Offence

The defence written submissions do not contain any reference to this charge and there was scant reference to it in oral submissions other than that they were calls "made in desperation" and "not accompanied by threat" and that the court should find that it falls in the lower rage of objective seriousness for such an offence.
I accept, for the reasons expressed by the Crown at [85], that the offence can be regarded as falling "towards the higher end of the low range of objective gravity" despite the fact that it involved multiple efforts to multiple persons to assist the offender to achieve a result favourable to him as well as relying on manipulation by a suggested financial benefit to an intermediary.
In addition, the offence was committed while subject to conditional liberty, the offender being subject to an Apprehended Violence Order (S166 matter) designed to protect the victims from the offender. Any breech of any form of conditional liberty is a matter of aggravation. Kennedy v R (2008) 181 A Crim R 85 at [8]; Cherry v R [2017] NSWCCA 150 at [80]. (s21A(2) (j))

Subjective Matters

The offender did not give evidence on sentence making it difficult for the court to assess whether he is genuinely remorseful or contrite in respect of the offending.
There is little material before the court in respect of subjective matters. What is available is limited to:

Summary of the ERISP as referred to in the Agreed Facts.
NSW Criminal History.
NSW Dept of Corrective Services Conviction, Sentence and Appeals Report, dated 18 August 2022.
Psychological Report of Ms Diana Grujoska of Duffy Robilliard Psychologists dated 12 July 2022.

Subjective matters are drawn from that limited material.
The offender is now 54 years of age and was born in Parkes NSW. His parents separated when he was 6 or 7 years of age, and he was raised by his mother on the Central Coast. He had a younger sister who died at 5 years of age from Leukemia and one older sister who he now refers to as his "rock". He also has a stepsister, half-sister and half-brother.
He reports as a child being physically abused by his mother and stepmother but not in any gross fashion. His father died 7 years ago. He reports little love or support as a child.
At about 11 or 12 years of age he was sexually assaulted by a nanny forcing intercourse on two occasions.
As his mother's relationships changed from time to time he attended a number of different schools in Middleton, the Entrance, Berowra and Parkes. In high school he attended Sydney from years 7 to 9 where he was regularly physically reprimanded with the cane and bullied because of his small size. He struggled with learning but has no problem reading and writing'
He completed a diesel mechanics course at TAFE following school and drove trucks for 22 years. He worked for his father driving trucks and eventually took over the business for a period after his father's death.
He first married in 1992 due to his then partner falling pregnant and they had three children who he remains close to and regards as supportive.
The offender has no particularly significant health issues, physical or mental. He uses a sleep apnoea machine when sleeping.
He has no drug or alcohol issues.
The offender has no antecedent criminal history and has not since being placed in custody on 6 May 2021 breeched any Corrective Services regulations. s. 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.
He was exposed to heterosexual pornography tapes at about 11 year of age and around that time sexually assaulted by his nanny and regularly and frequently masturbated from that time. He informed the psychologist that he had never watched pornography involving children and was not sexually attracted to children.
That he was not sexually attracted to children cannot be accepted in circumstances where he concurrently committed sex offences against each of his three stepchildren over a period of approximately eight and a half years commencing when PF was approximately 7 years of age and continuing until she was approximately 16 years of age, JF commencing at approximately 9 years of age and continuing until she was approximately 13 years of age and commencing with TF when she was approximately 12 years of age and continuing until she was approximately fourteen years of age. I do not accept that his serious concurrent and continuing offending could have occurred in the absence of a significant sexual attraction to female children. The psychologist, Ms Grujoska, is simply repeating a self-serving statement made by the offender without endeavouring to evaluate it in any way. Also, contrary his credibility and to accepting this statement is the fact that he informed the psychologist that he thought conduct of this nature was "normal at the time" yet engaged in threats and requests to achieve the victim's silence.
The offender expressed to the psychologist that he was suffering from anxiety, depression, and paranoia but these appear to be the entirely normal result of the circumstances that he now finds himself in. That is, in custody awaiting sentence in respect of a significant raft of very serious offences in respect of which he must be anticipating the imposition of a substantial sentence of imprisonment. "Mr Dunn appears to currently be experiencing symptoms relating to mood and anxiety which is likely triggered by his difficulties with adjusting to the present circumstance of being arrested and the Court process."
Ms Grujoska opined that the offender would require extensive counselling and intervention to treat his long-standing childhood trauma from the sexual abuse he suffered as a child and that on Static-99R he is a "below average risk of reoffending" and on STABLE-2007 he has "moderate needs" for treatment.

Mitigating Factors

In relation to mitigating factors I note the following:

The offender does not have any record of previous convictions: s. 21A(3)(e) Crimes (Sentencing Procedure) Act 1999
The offender was a person of good character: s. 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The weight to be given to good character may vary according to all of the circumstances including the nature of the offence: Ryan v R (2001) 118 A Crim R 538 at [25], [143]. In this case, the offender is charged with serious sexual offending against three victims concurrently. Given the nature of the offences only limited weight can be given to the offender's prior good character: Ryan v R (2001) 118 A Crim R 538 at [34] cited in Athos v R [2013] NSWCCA 205 at [36]; R v TWP [2006] NSWCCA 141 at [16] - [17]. Offences of this type are often committed by persons of prior good character and the need for general deterrence is paramount to the sentencing exercise. In this case, the offending was not isolated but extended over a total period of approximately 8 and a half years. In those circumstances, the weight to be attributed to prior good character must be significantly reduced.
The offender's risk of re-offending and prospects of rehabilitation: s. 21A(3)(g)-(h) Crimes (Sentencing Procedure) Act 1999: The offender has the onus of establishing on the balance of probabilities whether he had good prospects of rehabilitation as a mitigating factor. The offender was interviewed by Diana Grujoska, psychologist over a period of about 2.5 hours by AVL whist in custody. The assessment comprised a semi-structured clinical interview in which personal and family background information was gathered. Two psychometric measures were also administered including a Static-99 and STABLE-2007 (Risk Assessment). The offender is now 53 years old. He appears to have the continued support of some members of his family, in particular his older sister who he describes as his "rock": Psychological report at [4]. He doesn't have any friends and prior to his incarceration, he found it difficult to maintain social relationships due to his shift work: Psychological report at [9]. The offender reported that he first learned of sex when he was 11 years old after finding his mother's partners pornography. Around the same time, he started masturbating. At the time he did this daily while watching pornography stating that "I couldn't go a day without it": Psychological report at [15]. The offender reported that his first sexual encounter occurred when he was sexually assaulted by his nanny when he was 11 or 12 years of age. He was sexually assaulted by the nanny twice: Psychological report at [3], [15]. Despite the nature of the offences, the number of offences, the number of victims and the protracted period of offending, the offender denies having a sexual interest in children or adolescents: Psychological report at [15]. This denial flies in the face of a strong body of evidence which points firmly to the contrary. The offender's continued denial that he has a sexual interest in children is indicative of a serious lack of insight into the nature, extent of or reasons for his offending which is highly concerning. Ms Grujoska carried out a Static-99R risk assessment on the offender to determine his likelihood of re-offending: Psychological report at [29]. She reported that the offender received a score of 1 which places him at Level II - Below Average Risk for being charged or convicted of another sexual offence: Psychological report at [31]. At paragraph [32], Ms Grujoska reports: "Although Mr Dunn has been charged with sexual offences, there have been no further charges of this nature. In addition, research indicates that almost all crimes decrease as a person ages, with sexual offending not appearing to be an exception". However, the offending involving PF commenced at 7 years of age and did not stop until she was 16-17 years of age. The offending continued after she asked him to stop at 15-16 years of age and he said he would but continued. He was also concurrently offending against JF and TF. The offender is not now of such an advanced age that would necessarily reduce his risk of re-offending but relevant to this factor is the offender's prospective age at the time of release considering that a sentence of significant duration must inevitably be imposed. The offender scored 11 out of a possible 24 points on the STABLE-2007 risk assessment. This was conducted to determine additional risk factors to recidivism and assess treatment needs. The offender's score placed him as "moderate needs" for treatment. He had dynamic risk factors relating to general social rejection, impulsivity, poor problem-solving skills, sex drive/sex pre-occupation, sex as coping, and deviant sexual interest which would need to be deliberately targeted through intervention to decrease the risk of re-offending: Psychological report at [33]. While the offender had a low score for re-offending on the STATIC-99R, he displayed sexual offending over several years and was identified as having a number of dynamic risk factors which required treatment. The dynamic risk factors identified also bear upon the level of risk he poses and indicate a need to be cautious about accepting the Static-99R risk assessment results. Ultimately, the offender's risk of re-offending is inextricably linked with his willingness to participate and engage in appropriate intervention programs. Whilst he has expressed some willingness to do so at [20] and [41], his willingness is yet to be tested and he continues to demonstrate a lack of insight and tendency to minimise his offending as evidenced by aspects of the psychological report including:
He feels that his shift work contributed to his offending and that he was "seizing an opportunity that was available to him".
He felt "brain dead" and didn't think much about what he was going "until the last 7 years" (i.e., around 2015) when he began to experience remorse and regret and tried to make it up to the victims. This is despite the evidence that he continued to offend against PF after 2015.
That he began to engage in the offending after one of the victims touched his penis when she was a young child to justify his actions. This is akin to victim blaming and demonstrates that the offender has not taken responsibility for what he has done. The offender also downplayed his level of involvement in the offences and attributed blame to the victims in his ERISP. For example, by only admitting part of the conduct at Burrendong Dam involving TF (the cunnilingus) and suggesting that TF was the instigator of that activity, stating "… she went to his bedroom and laid down with her legs open and said, 'Come here Woody' … he really thought she wanted sex." He significantly downplayed the offending against PF and engaged in victim blaming; sexual interaction "didn't happen much"; he could only remember 2 or 3 times in the computer room and one in the toilet, although he never wore a condom he never ejaculated inside her; on the first occasion of penile/vaginal intercourse he "just put the tip in"; "she's the one that started it all" by touching his penis; she "pointed her ass in my face and went to her bed with no pants" in respect of cunnilingus on the Newcastle trip. PF was under 10 years of age when according to the offender she "instigated it" and the sexual conduct commenced. In the call from custody to his son Matthew, the offender also asserted that "She instigated it". In the circumstances the question of the prospects of rehabilitation and the risk of re-offending must be approached with considerable caution. Although it cannot be said in the circumstances of this matter (Number and type of offences, number of victims and period over which the offending occurred.) that there is a low risk of reoffending that is not a finding that reoffending is likely. The risk of reoffending may be significantly reduced by the aging process and the prospective date on which the offender may be released on parole. "In addition, research indicates that almost all crimes decrease as a person ages, with sexual offending not appearing to be an exception." Ms Grujoska at [32] citing Phenix, A., Helmus, L.M, & Hanson, R. K. (October 19, 2016) Static-99R & Static-2002R Evaluators' Workbook.
Remorse: s. 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The conditions in s. 21A(3)(i) must be satisfied before remorse can be taken into account in mitigation. This is for the offender to establish on the balance or probabilities: Naveed v R [2019] NSWCCA 149 at [54]. Remorse means regret for the wrongdoing the offender's actions caused and, as a feature of post offence conduct, may be relied upon to mitigate penalty: Alvares & Farache [2011] NSWCCA 33 at [44]. There is no requirement that the offender give evidence in the proceedings before remorse can be taken into account: R v Butters [2010] NSWCCA 1 [16]-[17]. However, if the offender does not give evidence the court may give less weight to an assertion of remorse in reports: R v Pfitzner [2010] NSWCCA 314 at [33]. Remorse is not demonstrated when an offender fails to provide evidence that he accepts responsibility for his actions: Davis [2018] NSWCCA 67 at [32]. The offender has pleaded guilty to the charges. A plea of guilty in and of itself does not necessarily demonstrate or indicate remorse: AB v R [2014] NSWCCA 31. The extent to which a plea evidences remorse and contrition so as to attract leniency, depends to a large extent upon whether the plea resulted from a recognition of the inevitable: Alvares & Farache 2011] NSWCCA 33 at [46]. The Crown case in relation to the charges was strong. There was clear evidence of opportunity and admissions made by the offender to some of the charged conduct as well as general admissions in the ERISP together with the post offence conduct (namely, the gaol calls) which was consistent with consciousness of guilt. The Crown Case was further strengthened by the availability of tendency reasoning. There is limited evidence of remorse in the psychological report: "The offender reported that he "felt it was normal at the time though can now see that it is wrong" and said, " I'm disgusted with myself": Psychological report at [17] No further detail or explanation has been provided. It does not appear that the offender has in fact accepted responsibility for his wrongdoing or acknowledged the consequences his acts have caused to the victims given his lack of insight and tendency to minimise his offending which appears to have persisted since his arrest.
As indicated above, the offender is entitled to a benefit for his early plea of 25% in respect of each offence: s. 21A(3)(k) and s. 25(d)(2) Crimes (Sentencing Procedure) Act 1999.

Moral Culpability

As indicated above, the offender reported that he had been sexually abused as a child. If it is established that a child sexual assault offender was sexually abused as a child, and that the history of abuse contributed to the offender's own criminality, that is a matter which can be taken into account as a factor in mitigation of penalty: R v AGR (unrep, 24/7/98, NSWCCA) at 13. However, while it is appropriate to take such a circumstance into account, it cannot be regarded as an excuse, notwithstanding the fact that such a link may aid in explaining why the offender committed the offence: R v Lett (unrep, 27/3/95, NSWCCA) per Hunt CJ at CL at [5]. This is because Courts must do what they can to see that the cycle of sexual abuse is broken: R v Reynolds (unrep, 7/12/98, NSWCCA) per Hulme J.
The report of Ms Grujoska does not indicate that there was in fact, a causal link between the offender's own abuse and his offending, or that his own abuse contributed to his offending in any material way. Rather, it is stated: "It is speculative that Mr Dunn's dependent personality style may have contributed to his need for affection or intimacy, which led to feelings of loneliness, fear of rejection from others, and preoccupation with sex. This dependent factor likely led to him feeling needy and less discrimination in his choice of partners. His own experience being a victim of abuse likely affected him and amplified feelings of distress and it is expected that this led to a depleted sense of self-worth… Therefore, with victims younger than him this would have seemed less threatening, and he would have felt more in control": Psychological report at [35]. (Emphasis added)
In those circumstances, any argument that the offender's condition has contributed to the commission of the offence in a material way would be tenuous at best. No submission to the effect that the offender has a contributing condition was made on his behalf either in the written or oral submissions and on the evidence, I am unable to find it did. Regardless, sexual abuse of him as a child is a matter which must be taken into account as part of his personal circumstances and history.

Totality

In cases involving multiple serious offences (and separate victims) some accumulation of sentences may be necessary in order to "strike a balance between the principle of totality and the sentences imposed for the individual counts": R v Bavadra (2000) 115 A Crim R 152. The imposition of wholly concurrent sentences for a series of offences creates the perception that there is not much difference between the effective penalty for one or two offences and the effective penalty for six or seven offences: R v Webster [2005] NSWCCA 110 at [42].
The Court is required to fix an appropriate sentence for each offence and then consider questions of accumulation, concurrence, and totality. The sentence imposed must be an overall aggregate sentence that fairly and justly reflects the totality of criminality involved: Pearce v The Queen (1989) 194 CLR 610, R v Knight (2005) A Crim R 252. Relevant principles were summarised in R v XX (2009) 195 A Crim R 38 at [52] per Hall J.
Consistent with the approach outlined by the Court of Criminal Appeal in Cahyadi v R [2007] NSWCCA 1, the question is: can the sentence for one offence comprehend and reflect the criminality for the other offence? In this case, the answer to that question is plainly no.
The charges before the Court involve a course of offending by the offender over a significant period involving three separate victims and varying acts of sexual misconduct. Each of the offences, whilst at times involving similar conduct were almost all separate and discrete incidents which occurred on separate days. Accordingly, a measure of accumulation is warranted as between each victim and each of the charges.
The totality principle is designed to avoid a Court imposing a "crushing sentence": "… an extremely long sentence may be 'crushing' upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. This effect both increases the severity of the sentence to be served and destroys such prospects as there may be of rehabilitation and reform. Of course, in many cases of multiple offending, the offender may not be entitled to the element of mercy entailed in adopting such a constraint." R v MAK; R v MSK [2006] NSWCCA 381 at [17].

Special Circumstances

It has been submitted on behalf of the offender that the Court would find "special circumstances" justifying a reduction in the statutory relationship between the non-parole period and the balance of term and accordingly reduce the on-parole period.
Cited to justify such a course are:

The offender's age; [Both his current age (54) and his prospective age on release are relevant.]
The fact that this would be the offender's first time in custody; and [See following.]
The fact that the offender is expected to serve his time in protective custody. [See following.]

Notwithstanding any features that might amount to special circumstances, the Court must ensure that the effective non-parole period adequately reflects the criminality: R v Simpson [2001] 53 NSWLR 704. The existence of factors justifying reduction of the non-parole period and capable of constituting special circumstances, do not mandate that the Sentencing Judge should make that finding: R v Cramp [2004] NSWCCA 264; Hoskins v R [2016] NSWCCA 157. Before a variation is made, the Court must be satisfied that the circumstances are sufficiently special: R v Fidow [2004] NSWCCA 172.
A finding of special circumstances must be purposeful to justify a longer non-parole period. The purpose must be something other than relieving the offender of the burden of serving the minimum sentence: Hoskins v R [2016] NSWCCA 157.
Caution must be exercised not to take the same factors into account when reducing the head sentence, allowing for a plea of guilty and allowing special circumstances as doing so may result in disproportionate weight being placed on those factors such as to lead a Court into error.
The following comments are relevant to the exercise of the discretion to find special circumstances: 'A finding of special circumstances is appropriate and relevant to a decision by a sentencing judge as to whether to depart from the statutory ratio between the non-parole period and the overall sentence. The authorities are replete with findings by sentencing judges and by this Court of special circumstances. When an offender's history of offending or personal circumstances indicates that he or she would benefit from an extended period of supervision within the community a finding of special circumstances may be appropriate. For my part, as I said in R v Clark [2009] NSWCCA 49 at [12], I have considerable reservations about whether the fact that a person will be in custody for the first time is capable of constituting special circumstances: see also R v Kama [2000] NSWCCA 23; (2000) 110 A Crim 47 at [10]. The fact that a person has no previous criminal record and, accordingly, has not previously been incarcerated is a matter relevant to the total sentence and non-parole period. However, it is unlikely to be a circumstance warranting further leniency to an offender by a reduction in the term of the non-parole period: R v Fidow [2004] NSWCCA 172 at [18] (Spigelman CJ). Many persons who are sentenced will receive a sentence of imprisonment for the first time. That fact alone is unlikely to justify a finding that the offender's circumstances are special.' Collier v R [2012] NSWCCA 213
The Crown submission is that the offences before the Court are serious ones for which the offender is deserving of condign punishment and that to properly address the need for general deterrence, specific deterrence, denunciation, and community protection the Court would impose a "lengthy sentence of full-time custody".
Inevitably and appropriately the defence submissions accepts that a sentence of full-time custody must be imposed and "… it would be inappropriate to impose wholly concurrent sentences". At [52] and [59].
Neither party has sought to draw the Court's attention to any statistics or comparative cases that might assist the process of "instinctive synthesis". I have nonetheless examined what is available on JIRS, including drilling down to individual cases, despite the fact that it is well recognised that the statistics are a "blunt tool".
As to serving any sentence in protective custody there is no evidence, although referred to in the defence submissions as an expectation that any sentence would be served in protection. This caused me to enquire during the sentence hearing as to whether the offender was being held in protection and if so, as to whether this was at his request. I do not have a transcript of the proceedings and my notes are deficient. However, my memory is that the response from Mr Cairns, barrister for the offender, was that he had been offered a choice on admission and elected for "protection". As I understand it this means that he can elect at any time to be returned to the "general prison population". My memory and my understanding may both be wrong. However, I am familiar with the difficulties experienced by prisoners in custody for offences of this nature and I consider it almost inevitable, whether he desired it or not, that he will serve any sentence in 'protection" for a substantial proportion if not all of any sentence imposed. I accept, even in the absence of any relevant specific evidence as to conditions, that any period of time served in protective custody is equivalent to a longer loss of liberty under the ordinary conditions of imprisonment. AB v The Queen (1999) 198 CLR 111 per Kirby J at [105]; R v Howard [2001] NSWCCA 309; R v Rose [2004] NSWCCA 326; R v Patison (2003) 143 A Crim R 118 at [136-137].
I also note that the offender has been in custody during a period that COVID-19 has adversely impacted on the quality of custody and that it appears that problems for prisoners in that regard appear likely to continue for an uncertain further period and this must be taken into account in determining sentence.

SENTENCE

I intend to impose an aggregate sentence and accordingly must first determine and specify an indicative sentence in respect of each individual offence and an indicative non-parole period in respect of each offence in respect of which the legislation provides a standard non-parole period. A discount of 25% has been applied to each indicative sentence for the utility of the plea alone. (s. 25D(2)(a) Crimes (Sentencing Procedure) Act 1999. I have taken into account all of the matters referred to above, and that the offender's pleas have relieved his three stepdaughters from what would have been for them a gruelling and destructive process had the matters proceeded to trial. DD INDICATIVE SENTENCE SCHEDULE (126754, rtf)

AGGREGATE SENTENCE

I have taken into account the principle of totality and the extent to which the criminality of any offence overlaps with the criminality any other offence. You are sentenced to a term of imprisonment commencing on 6 May 2021 with a non-parole period of 21 years and a balance of term of 7 years. Accordingly, you will first be eligible for parole on completion of the non-parole period - 5 May 2042. The balance of term of 7 years will expire on 5 May 2049.

SPECIAL CIRCUMSTANCES

It will be evident that I have not found special circumstances as submitted I should by Mr Cairns on behalf of the offender to assist in DD's treatment/rehabilitation or to avoid institutionalization. I am fully aware of the discretion to do so, Callaghan v R [2006] NSWCCA 58. That I have not done so is not the result of "error or oversight" Dunn (2007) NSWCCA 312; Lyndon (2003) NSWCCA 152; Ibrahim (2005) NSWCCA 43; Wakefield (2010) NSWCCA 12 at [26].
The 7-year balance of term is already 4 years more than the anticipated maximum period of supervision pursuant to the regulations and provides a more than adequate period for treatment/rehabilitation and reintegration into the community. In my view any lesser sentence would fail to meet the objectives of sentencing or the seriousness of the offending.
You should take note that because the sentence I have imposed means that you will come within the definition of a "serious offender" in s3(1) Crimes (Administration of Sentences) Act 1999 (NSW), the Parole Authority, while a parole order is in force, may extend the period of supervision by, or impose a further period of supervision of up to 3 years at a time, cl 214A(3) of the Crimes (Administration of Sentences) Regulation 2014 (NSW).

Crimes (High Risk Offenders) Act 2006

Mr DD, I am required to warn you that s 25C of the Crimes (High Risk Offenders) Act 2006 applies to you in respect of all sequences, with the exception of Sequences 43 and 44, as each is a Serious Sexual Offence as defined in s 4 of the Crimes (High Risk Offenders) Act of 2006. Application can be made by the State to the Supreme Court and if that Court concludes to a high degree of probability that you pose an unacceptable risk of committing another serious offence if not kept in detention or under supervision then an order can be made for your continued detention or supervision than might apply because of the aggregate sentence that I have just imposed.
What that means is that if you wish to be released at the earliest time possible or subject only to the period of supervision represented by the parole period I have provided, you need to ensure that you conduct yourself in prison as a model prisoner and take every opportunity available to you to receive assistance and treatment for your problems while in custody or on parole.
I note that since your arrest in May 2021 you have not been found in breach of prison regulations and there is no evidence you are regarded as a management problem. You have also indicated to the psychologist that you are open to accessing sex offender treatment. You need to be able to demonstrate over time that you are prepared to accept assistance and have genuinely addressed your issues.

Crimes (Domestic and Personal Violence) Act 2007

I direct pursuant to s 12(2) of the Crimes (Domestic and Personal Violence) Act 2007 that each of the offences of which you have now been sentenced be recorded on your criminal history as a "domestic violence offence" except for Sequence 43.

Amendments 01 March 2023 - Amended in line with NPO, and to reflect correct paragraph numbering. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 March 2023

At a glance

Court

Decision date

Source

Judgment (15 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (30)