plaintiff. The offender was sentenced to 16 years’ imprisonment from 27 June 2017, with a 12-year non-parole period, and a final apprehended violence order was made for five years from 11 December 2020.
Key principles
In sentencing for three separate sexual offences committed successively against the same child during one episode, the sentencing court treated the offences as distinct acts...
The first and second offences were assessed as above the mid-range and close to, but below, the high range of objective gravity. The third was assessed as approaching the upper...
The 15-year standard non-parole period was a legislative signpost, not a determinative sentence for a particular category of offending; the court retained sentencing discretion...
Issues before the court
How serious were the three offences for sentencing purposes?
How should the three sentences be structured under the totality principle?
What weight should be given to the standard non-parole period?
What significance should be given to the offender's psychological circumstances?
Plain English Summary
The District Court sentenced the offender after convicting him of three acts of aggravated sexual intercourse with a seven-year-old child. The judge treated the first two offences as above the middle range of seriousness and the third as more serious because the child was prevented from leaving and was threatened with death. The court recognised that the acts were separate offences but made most of the sentences concurrent to avoid a crushing total. It imposed 16 years' imprisonment with a 12-year non-parole period and made a five-year apprehended violence order.
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Deep Dive
2,179 words · generated 30/09/2026
What happened
R v DLW (No. 5) [2020] NSWDC 754 is a sentencing judgment of Abadee DCJ in the District Court of New South Wales. The offender had been convicted, after a judge-alone trial, of three offences under s 66A(1) of the Crimes Act 1900 (NSW). The charge period in the indictment ran from 23 July 2009 to 22 July 2010. The sentencing judge found the offences occurred during one night, probably towards the end of 2009, at premises in Budgewoi. The complainant was seven years old.
Cited legislation
3 cited instruments linked from this judgment.
The judge directed that the sentencing remarks be read consistently with the conviction reasons, published as R v DLW (No. 4) [2020] NSWDC 284. In the sentencing judgment, the judge summarised the findings: during a social gathering attended mainly by adults, the offender took the child into a nearby bedroom, locked the door, pushed him to the ground and committed three consecutive acts of sexual intercourse. The acts involved coercive force in the face of protest and resistance. The judgment describes the first act as penile-anal penetration, the second as forcing the child to engage in fellatio, and the third as the offender putting the child's penis in his mouth.
The episode lasted probably between half an hour and three quarters of an hour. Before the third act, the child thought he could leave, approached the door, and was grabbed and pushed back onto the bed. At the end, the offender threatened to kill him if he did not remain silent. The judge treated the threat as linked to the third offence.
The court identified features that increased seriousness, including the complainant's young age, the large age and physical-maturity disparity, the use of force, the duration and succession of the acts, and the threat. It also identified features that distinguished the case from some others: there was no apparent premeditation, grooming, physical injury, or prior relationship of trust between the offender and child.
The judgment then assessed the offender's subjective circumstances, including his psychological material, criminal history, remorse, rehabilitation prospects and claimed hardship in custody. It concluded that those matters did not materially reduce the sentence that the objective offending and sentencing purposes otherwise called for. The court imposed a total sentence of 16 years' imprisonment, with a 12-year non-parole period, and made a five-year apprehended violence order.
Why the court decided this way
The court's assessment of objective gravity was offence-specific. It rejected a strict hierarchy in which one type of sexual intercourse would invariably be treated as more serious than another. Instead, it identified a range of relevant circumstances: how the offence occurred, the period of offending, the degree of force or coercion, threats or pressure designed to secure compliance or silence, and any immediately apparent effect on the child. These were the factors the judge drew from R v AJP [2004] NSWCCA 434.
The judge considered that most of those features were present. The offences were committed against a seven-year-old, in a bedroom during a social event, and involved coercive force. The complainant's age mattered both because the judgment treated younger age as relevant to the likely harm and because it increased the age disparity. The judge also noted that the offender had no prior relationship of trust with the child, there was no grooming or apparent planning, and no physical injury was suggested.
The distinction between the counts turned primarily on the third offence. The child had thought he might leave, but the offender stopped him and pushed him back onto the bed. The judge described the lost prospect of escape and the later death threat as adding another layer of harm. The first and second offences were assessed as above the mid-range and close to, but not at, the high range. The third approached the upper end of objective gravity.
The judge also considered the impact on the complainant. The victim impact statement referred to difficulties involving schooling and behaviour, anger, and difficulty trusting others. The judge noted that there was no independent medical evidence linking the complainant's ADHD diagnosis to the offending. The judgment separately referred to the complainant's conduct, years later, in mimicking the offender in his dealings with his brother, treating that conduct as indicative of lingering psychological effects. The Crown did not submit that the harm should be treated as an aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The offender's psychological material received limited mitigating weight. The psychologist's report described possible mental-health and emotional-development issues, but the judge found no clear causal link between those issues and the offending, and no suggestion that the offender lacked control, could not make reasoned judgments, or failed to appreciate the wrongfulness of his conduct. The judge noted the offender had told the psychologist that it was not acceptable for adults to engage in sexual acts with children. On that material, the court did not find a basis for substantial moderation of culpability, general deterrence or specific deterrence.
The judge considered the standard non-parole period of 15 years, but treated it as a legislative signpost, not a fixed result. Relying on Muldrock v The Queen (2011) 244 CLR 120 and s 54B(2), the court stated that the standard period did not mandate a particular sentence for a category of offending. The judge also gave significant weight to general deterrence, denunciation and accountability, referring to the vulnerability of young children and the long-term effects of child sexual assault.
Finally, the court applied the totality principle to the three consecutive offences. It considered that fully concurrent sentences would fail to acknowledge the separate harm caused by the different acts, referring to Carlton v The Queen (2008) 189 A Crim R 332. But it also considered substantial concurrency necessary to avoid a crushing total sentence. The outcome was limited notional accumulation, rather than fully concurrent or fully consecutive sentences.
Before and after state of the law
This judgment does not purport to announce a new general rule of sentencing law. It applies existing statutory provisions and appellate authorities to the circumstances of this offender and these offences. The supplied text identifies s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) as setting out sentencing purposes, including harm to victims, and refers to ss 5, 21A, 24A and 54B in addressing sentencing limits, aggravating and mitigating factors, extra-curial consequences, and standard non-parole periods.
On objective seriousness, the judgment relies on the existing proposition that there is no strict hierarchy of seriousness based solely on the kind of sexual intercourse involved. It assesses the individual circumstances instead. It also draws on authorities concerning child victims, age, psychological harm and general deterrence, including Ingham v R [2014] NSWCCA 123, Shannon v R [2006] NSWCCA 39, and RJA v R [2014] NSWCCA 89. Its application is fact-sensitive: the complainant's age, the coercion and the death threat contribute to the court's assessment, while the lack of grooming, planning, physical injury and prior trust relationship are also recorded.
On accumulation and concurrency, the judgment applies Carlton v The Queen to recognise the separate harm caused by different offences even when they occur in a single episode. It does not treat that principle as requiring fully consecutive sentences in this case. Rather, the court balances recognition of each act with the need to avoid a crushing aggregate term.
On standard non-parole periods, the judgment applies Muldrock and s 54B(2) in treating the 15-year standard period as a guidepost rather than a presumptive outcome. The judgment therefore reflects the law as the court understood it at the date of sentencing. The material supplied does not establish any later change in law or describe subsequent appellate consideration of this decision, so no later change or effect can be stated here.
Key passages with plain-English translation
The judgment states, “There is no strict hierarchy of seriousness based on the type of sexual intercourse, such as penile-vaginal intercourse being at the apex.” In plain English, the judge did not decide seriousness by assigning a fixed ranking to the physical forms of the acts. The assessment turned on the circumstances of the offences as a whole.
The judge described the offending as “opportunistic to the point of being brazen”. That characterisation reflects that the acts occurred during a social gathering, out of sight of others. It did not amount to a finding of advance planning: the judge expressly noted there was no apparent premeditation or grooming.
On the individual counts, the judge said that the first and second offences were “above the mid-range” and “close to, but not quite at, the high range” of objective gravity. The third offence approached the upper end because the child’s apparent chance to leave was taken away and the offender threatened him with death.
On the total sentence, the judge stated: “I propose to allow for some relatively minor level of notional accumulation.” In plain English, the sentences were not all treated as entirely overlapping. Some additional punishment reflected that three offences had been committed, but concurrency remained substantial to avoid an excessive total sentence.
The judgment also states that the 15-year standard non-parole period “does not mandate a particular period for a particular category of offence”. That means the court treated the standard period as a relevant statutory marker, not an automatic minimum or a prescribed outcome in this case.
What fact patterns trigger this precedent
The most direct relevance of this decision is to sentencing fact patterns involving several distinct sexual offences against one child, committed successively during one episode. Its reasoning is especially pertinent where the sentencing court must distinguish between individual counts while also deciding how much of the sentences should overlap.
The judgment may be relevant where the circumstances include coercive force, threats designed to secure silence, a marked age disparity, or a young complainant whose opportunity to escape is interrupted. In this case, the threat and the thwarted attempt to leave were treated as making the third offence more serious than the first two.
It is also relevant where the offender argues that a lack of grooming, planning, physical injury, or a prior relationship of trust affects the assessment. The judge recorded those absences, but still assessed the first two offences as above the mid-range and the third as approaching the upper end. The decision therefore shows how the court weighed those features alongside the force, age, duration and threats; it does not establish that any one feature will produce the same assessment in another case.
The decision may also assist in understanding arguments about the totality principle where several offences form one course of conduct. It records the competing considerations: distinct acts and separate harm on one side, and the need to avoid a crushing sentence on the other. The judgment does not prescribe a formula for the amount of accumulation in other cases.
How later courts have treated it
The supplied judgment contains no references to later decisions treating R v DLW (No. 5) as applied, followed, distinguished, or otherwise considered. It was delivered on 11 December 2020, and the material supplied gives no subsequent case history. It would therefore be unsupported to make claims about how later courts have treated it.
The judgment itself discusses earlier authorities. It applies Carlton v The Queen to the question of partial accumulation, and Muldrock v The Queen to the role of the standard non-parole period. It cites several Court of Criminal Appeal decisions concerning objective seriousness, victim harm, deterrence, remorse and custodial hardship. Those authorities are part of the reasoning in this sentencing decision, but their citation here does not establish how later courts have regarded this judgment.
Still-open questions
The supplied text leaves several matters unresolved beyond the facts of this sentencing exercise. It does not provide later appellate consideration of the sentence or any later treatment of the judgment. It also does not set out a general sentencing tariff for three offences of this kind. The judge made individual assessments and imposed a particular sentence after considering the evidence and submissions in this case.
The judgment records that the Crown did not rely on the complainant's age as an aggravating factor under s 21A(2), while the judge treated the child's age as relevant to objective gravity. The decision does not comprehensively address how those distinct sentencing concepts should interact in other cases.
The psychological evidence was described as limited and equivocal, with no established causal link between the offender's reported conditions and the offences. The judgment does not determine how different or more complete expert evidence might affect culpability or sentence in another matter.
Finally, the reasons describe the sequence and relative gravity of the three offences, and the indicative sentences for each count, but do not provide a mathematical method for calculating partial accumulation. The decision explains the balancing exercise in this case, not a fixed percentage or rule for future cases.
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Judgment (17 paragraphs)
[1]
Pseudonyms have been used for the name of the complainant, the complainant's family and the offender.
[2]
INTRODUCTION
On 9 June 2020, after sitting alone, I convicted the offender of three counts on an indictment that in the period from 23 July 2009 and 22 July 2010, at Budgewoi, he had committed acts of aggravated sexual intercourse, being sexual intercourse with a child, who was at that time under the age of 10 years, namely 7 years of age, contrary to s 66A(1) of the Crimes Act 1900 (NSW).
The maximum punishment for that offence, at the relevant time, was 25 years' imprisonment, with a standard non-parole period of 15 years' imprisonment.
[3]
CIRCUMSTANCES OF OFFENDING
My reasons for convicting the offender were set out in my judgment, published as R v DLW (No. 4) [2020] NSWDC 284. These remarks must be read consistently with those reasons for convicting the offender (the 'Conviction Reasons'). A summary of the findings appeared at [272] of the Conviction Reasons. Necessarily, the Conviction Reasons involved substantial acceptance of the evidence of the victim.
In partial paraphrase, I found that on a certain night between 23 July 2009 and the end of that calendar year, more probably towards the end of the year when the weather was warmer, the victim, his brother, his natural-born mother, and her mother, visited premises in Budgewoi occupied by the offender and his father. As it happens, the group lived not far away. They got to and left the premises in Budgewoi by foot.
The offender was known to and was, indeed, a friend at that time of the victim's mother. The extent of that friendship was a matter of some factual dispute at the trial. At any rate, the occasion was a social gathering. It was a party mainly attended by adults. The victim and his brother were very young. The victim's mother assisted at the gathering by serving drinks.
The victim had not recalled meeting the offender prior to this social occasion but knew of him. There was some evidence that the victim, his brother and his mother had visited the place before. The place had a pool.
The victim's evidence as to what occurred is described in detail at [30]-[33] of the Conviction Reasons. At a point during the gathering, the offender grabbed the victim and took him to a nearby bedroom, locked the door and pushed the victim to the ground. Thereafter, he engaged in three consecutive acts of sexual intercourse with the victim which constituted the commission of the three offences. All of them involved acts of coercive force in the face of protest and resistance.
The first involved penetrating the victim's anus with his penis.
The second involved forcing the victim to engage in fellatio with the offender's penis.
The third act involved the offender putting the victim's penis in his mouth. At the end of the episodes, the offender threatened to kill the victim if he did not remain silent. As Ms Crown noted, I had found that before the third offence occurred, the victim thought he was allowed to leave the room and approached the door, but he was grabbed and pushed back onto the bed.
[4]
OBJECTIVE GRAVITY
There is no strict hierarchy of seriousness based on the type of sexual intercourse, such as penile-vaginal intercourse being at the apex (Ingham v R [2014] NSWCCA 123 at [41].
A relevant factor is also whether or not physical injury was inflicted by the act of intercourse. The Crown does not suggest any physical injury to the victim in this case. I will return to the matter of psychological harm later in these remarks.
Other relevant factors indicative of the objective gravity of offending include: how the offence took place; the period of time of the offending behaviour; the degree of force or coercion; the use of threats or pressure before or after the offence to ensure the victim's compliance with the demands made, and subsequent silence; and any immediately apparent effect on the victim (R v AJP [2004] NSWCCA 434 at [25]).
Most of these matters were present here and, as Ms Crown and Counsel for the offender agreed, there was little to distinguish the three offences. The overall period of offending embracing the three offences was probably in the vicinity of between half an hour, or three quarters of an hour. Force was exerted to get the victim into the bedroom, where the offending occurred; shoving him and forcing him to unclothe.
Plainly, also, there was the large discrepancy in age and physical maturity between the offender, as a young man, and the victim, a young boy. However, there was, as Counsel for the offender emphasised, an absence of a common feature of this offence, being a breach of trust, or abuse of authority, arising from a prior relationship between offender and victim.
The overall offending (embracing all three counts) was opportunistic to the point of being brazen; occurring as it did surreptitiously during the course of a predominantly adult social gathering. There was, however, no apparent pre-meditation or planning and no actual bodily harm resulting to the victim. There was nothing to suggest, for example, that the offender was informed, in advance, of the victim's attendance at the home. There had been no grooming.
If there were distinguishing features as between the offences, then I accept the Crown's submission that the third offence was more serious than the first and second in two respects. In connection with the third offence, there was also an element of humiliation and mental torture in that the victim thought he was permitted to leave, but was taken back by the offender and pushed onto the bed. Further, as he eventually left, the victim was threatened to be killed if he spoke up. Counsel for the offender agreed that the death threat should be regarded as being linked only with the third offence and I so treat it in that fashion.
[5]
IMPACT ON VICTIM
Section 3A(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('CSP Act') indicates that harm to the victim is a relevant sentencing principle.
Spigelman CJ in DBW v R [2007] NSWCCA 236 at [39] said that "the public and the courts have become much more aware of, and knowledgeable about, the effects of child sexual abuse". His Honour said earlier that the judge "…would have been entitled to act on the basis that there was a substantial harm": at [38]. The Court in R v King [2009] NSWCCA 117 at [41] put the position in the following terms:
"It should not be assumed, without evidence to the contrary, that there is no significant damage by way of long-term psychological and emotional injury resulting from a sexual assault of a child…"
In R v MJB [2014] NSWCCA 195, Adamson J acknowledged that the damage done to children who are victims of sexual assault by adults was well-known and could be assumed. In R v Gavel [2014] NSWCCA 56, the Court of Criminal Appeal said at [110] (citations omitted):
"…child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives. Sexual abuse of victims will inevitably give rise to psychological damage... The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity."
The Crown tendered a victim impact statement from the victim. He spoke of trouble with the police, his disrupted schooling causing him to move to different schools, including a behavioural school, on account of misbehaviour, and issues affecting his capacity to control his anger. He mentions that he has Attention Deficit Hyperactivity Disorder (ADHD) (although there was no independent medical evidence linking that disorder to the offending behaviour) and has a difficulty in trusting others.
In this case, I noted in the Conviction Reasons (at [232]-[235]) the victim's own disturbing conduct in effectively mimicking the offender in his dealings with his brother many years after the event. The victim's conduct, in this regard, itself bespoke the lingering psychological effects of his being violated by the offender.
He acknowledges, however, his pride in the way that he gave his evidence and desire to 'move on'. The Court takes this opportunity to commend the victim for giving the statement and his positive attitude and encourages him to look to the future and not dwell upon the harm perpetrated upon him in the past.
[6]
Age & background
The offender was born in 1988. He was 21 years of age at the time of offending.
[7]
Psychological condition
The offender relied upon the report of a psychologist, Ms Katie Martens, dated 6 December 2020. Ms Martens is a forensic psychologist with expertise in violent and sexual offending. She assessed the offender, by audio visual link, on 20 November 2020.
In her report, Ms Martens recorded the fact, not otherwise known to the Court, that the offender was convicted of some additional counts of aggravated sexual assault against a different victim. As I indicted at the sentencing hearing, I place no reliance upon this when assessing the appropriate sentence for the current offences.
She noted that the offender had reported to her having been the subject to some level of abuse and corporal punishment by his parents and even sexual abuse from the age of four. He reported leaving home at 14. His schooling career was troubled. He attended four schools and was eventually expelled in year 9 or 10. It appears that from about this time, he began to regularly imbibe alcohol.
His employment history up to the point of his offending conduct was sporadic, doing only 'cash in hand' roles, such as collecting trolleys or work in the construction industry.
Ms Martens reported upon the offender's description of his 'psychosocial history'. At the time of his arrest, he had apparently been in an intimate relationship with a woman, and prior to that he had several short-lived relationships. The offender had said that he had four sexual partners. He denied ever having had a sexual interest in children, or males in general.
He reported to Ms Martens no history of problematic substance use. But he did report that he had received several mental health diagnoses, including autism, ADHD, schizophrenia, bipolar affective disorder and depression. Although he denied any history of psychotic disturbance, Ms Martens recorded a Justice Health Note of 25 August 2017 indicating that he had presented with delusions and hallucinations. The Crown submitted that the Court should be cautious about accepting out of court statements made by an offender to mental health professionals, in the absence of oral evidence: Imbornone v R [2017] NSWCCA 144 at [57]; R v JDX; JDX v R [2017] NSWCCA 9 at [35]. But the offender's Counsel submitted it was clear that, to the extent that Ms Martens ventured opinions, they were not entirely based upon out of court statements of recollection or opinions of the offender.
[8]
Antecedents
The offender has an extensive criminal record of offences in and beyond the state of New South Wales dating back to offences in 2005. Offences committed in 2012 involved violence. But he has had no prior record of sexual offences.
[9]
Extra-curial punishment
By s 24A(1) of the CSP Act, the Court is enjoined from taking into account, as a mitigating factor, the circumstance that a number of circumstances may befall the offender as a result of his offending which will adversely affect future employment opportunities and, more generally, mark a permanent stain upon him.
[10]
Remorse
The offender elected not to give evidence at the sentence hearing. His Counsel intimated that this was linked to indications he supplied to his psychologist that he intended to appeal his conviction.
There is no evidence of remorse. Even without it, nothing was said by the offender to Ms Martens about harm suffered by the victim for whom I found him to be responsible. The offender maintains his innocence and, as is his right, has expressed an intention to appeal his conviction. No adverse inference is drawn from that indication of his intention to exercise his rights, and the absence of remorse does not aggravate the offending conduct (Roff v R [2017] NSWCCA 208 at [19]). Nevertheless, it is also the case that he is not entitled to the benefit of any leniency that might have been attracted had he shown remorse.
[11]
Prospects for re-offending and rehabilitation
Ms Martens alluded to the circumstance that the offences occurred when the offender was in early adulthood and she thought that he may have attained some developmental maturity since the period of the offending, which could impact upon his propensity to engage in future harm. This evidence is equivocal. There is, in truth, no substantial evidence positively to say that he presents a low risk of re-offending: his statement of belief to his psychologist that he does not think it is ok for adults to commit sex offences against children does not assist after I have found that this is exactly what he did in relation to this victim.
In view of his lack of remorse, it is difficult to ascribe good prospects to his rehabilitation (R v MAK (2006) 167 A Crim R 159 at [41]). At any rate, no material was put before the Court to indicate what steps, if any, the offender had taken whilst in custody to rehabilitate himself.
[12]
Hardship
The Crown does not deny that the circumstance that the offender may experience more onerous conditions than those generally experienced by the prison population is a mitigating factor (R v Totten [2003] NSWCCA 207 at [44]-[47]), but argues that this cannot be presumed and requires proof.
The offender reported to Ms Martens having been the subject of threats and physical assaults and endures a fear of his wellbeing, but there is no evidence that is explicable to the specific circumstances in which he has been incarcerated to date.
[13]
INSTINCTIVE SYNTHESIS
I have regard to the sentencing principles enshrined in s 3A of the CSP Act.
Of course, I also have regard to the maximum penalty, and the length of the standard non-parole period, as legislative signposts. As to the standard non-parole period, the terms of s 54B(2) of the CSP Act indicate that the 15 year standard non-parole period for this offence does not mandate a particular period for a particular category of offence but preserves the Court's discretion to impose a longer or shorter period (Muldrock v The Queen (2011) 244 CLR 120 at [24]-[25]). In other words, it is not to be given determinative significance even where, as here, the offender does not present an especially strong subjective case.
I also have regard to current sentencing practices for offences of this kind. In this regard, the Crown referenced a number of cases which made their way to the Court of Criminal Appeal and which concerned the subject offence where it occurred in the period from January 2009 to 28 June 2015, when the maximum penalty and standard non parole period were the same as they are now.
It is axiomatic that general deterrence is to be attributed significant weight for child sexual assault: R v CMB [2014] NSWCCA 5 at [47]-[48]. It requires the imposition of a severe sentence because of the particular vulnerability of young children and the well-known long-term effects of child sexual assault: Ingham v R [2014] NSWCCA 123 at [38]. In addition to general deterrence, the considerations of denunciation and holding the offender to account are heightened: EG v R [2015] NSWCCA 21 per Hoeben CJ at CL (Harrison J and RS Hulme J agreeing at [42]). It is also important that the dignity of the victims of offences of this kind be recognised (see the observations in Munda v State of Western Australia (2013) 249 CLR 600 at [54]-[55] which, though directed to victims of domestic violence, are no less apposite to offences of this kind against children). To the extent that subjective circumstances are to be weighed, subjective deterrence is also significant.
There is no dispute that the gravity of the offending conduct is such that the s 5 threshold is crossed.
I am cognisant of the principle of totality. There were three separate acts constituting the offences, albeit that they occurred in a consecutive fashion such that they could be characterised as being part of the same course of criminal offending. In Carlton v The Queen (2008) 189 A Crim R 332 at [122], the Court held that there should have been at least partial accumulation of the sentences, notwithstanding that they occurred as part of one episode. The imposition of totally concurrent sentences failed to acknowledge the separate harm done to the victim by the different acts of the appellant: at [122].
[14]
Special circumstances
Counsel for the offender made no submission that special circumstances applied and, as Ms Crown submitted, no evidence was identified which would suggest that such finding ought to be made.
I do not consider that a case for special circumstances to vary the length of the non-parole period has been made out.
[15]
Apprehended Violence Order
The offence under s 66A(1) of the Crimes Act 1900 (NSW) is a 'serious offence' within the meaning of s 40(5)(c) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
Ms Crown applied for a final apprehended violence order under s 39(1) of the latter legislation for 5 years from today's date, on the basis that the Court has found the offender guilty of a 'serious offence'. She sought the imposition of the conditions located in Schedule 1. No submission was advanced on the offender's behalf that such order should not be made.
[16]
SENTENCE
Could the offender please stand.
I sentence you to a term of imprisonment for a period of 16 years, commencing on 27 June 2017 and expiring on 26 June 2033. The non-parole period of 12 years expires on 26 June 2029, after which you will be eligible for release on parole.
The Indicative sentences are as follows:
Count 1 10 years' imprisonment (non-parole period of 7 years, 6 months)
Count 2 10 years' imprisonment (non-parole period of 7 years, 6 months)
Count 3 12 years' imprisonment (non-parole period of 9 years)
Pursuant to s 39(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), I make a final apprehended violence order for the protection of the person against whom the offence was committed for a period of 5 years commencing from today's date. The conditions to be imposed are that the offender must not:
1. assault, or threaten the protected person (the victim) or any person with whom the protected person has a domestic relationship with;
2. stalk, harm or intimidate the protected person, or any person with whom they have a domestic relationship;
3. intentionally or recklessly damage any property that belongs to the protected person or belongs to or is in the possession of anyone in a domestic relationship with the protected person; or
4. try to find the protected person unless required from the Court.
You must not engage in any conduct in contravention of these conditions. If you do, you will be taken to have committed an offence of contravening an apprehended violence order which will potentially render you liable to punishment for a term of imprisonment. I note, however, that it is possible that this order may be varied or revoked upon application by you in certain circumstances which are set out in s 73 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
[17]
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: 16 December 2020
The offender was sentenced to 16 years’ imprisonment from 27 June 2017, with a 12-year non-parole period, and a final apprehended violence order was made for five years from 11 December 2020.
Ms Crown eschewed reliance upon the age of the victim as an aggravating factor, though she did rely upon the circumstance that the victim's age fell at the lower end of the age range for this offence. His age was relevant in two respects to the objective gravity of the offending. First, inherently, "the younger the victim the more serious the offence" because of the harmful effects it may have upon them (Shannon v R [2006] NSWCCA 39 at [28]; RJA v R [2014] NSWCCA 89 at [6] & [11]), and, secondly, the younger the age of the victim, the more marked the disparity was between the age of the offender and the victim.
The Crown submits that every one of the offences was at the upper end of the range of objective seriousness.
The offender submits that the objective gravity was not above the mid-range of offending for any of them.
There is, as I have said, little to distinguish the objective gravity of each of the offences. I consider that the first and second are above the mid-range of objective gravity for an offence of this kind, and close to, but not quite at, the high range. In the case of the third offence, accompanied as it was by a death threat to a young boy, and after the prospect of the victim escaping from the offender had been offered then snatched away, another layer of harm was inflicted, so that third offence approached the upper end of objective gravity.
The Crown eschewed any submission that any harm suffered by the victim was an aggravating factor, for the purposes of s 21A(2) of the CSP Act.
Ms Martens frankly observed that it was difficult to gain a clear picture of the offender's mental health but considered that his clinical picture indicated a history of psychotic experience. His symptoms may have been referable to a range of overlapping disorders and she acknowledged that an accurate diagnosis required a longer-term intervention with a mental health professional.
In terms of the effect of the offender's mental health issues and the subject offending, Ms Martens was vague in her opinion: she said it was 'relevant' that he had himself experienced childhood abuse, mental health concerns, lack of coping skills and impaired social skills. I note that there is no clear suggestion by Ms Martens of a causal link between any mental abnormality and the offending. There is no suggestion of any lack of control over his cognitive faculties, any incapacity to make reasoned judgments or lack of appreciation of the wrongfulness of his conduct. Indeed, according to Ms Martens, the offender told her that it was "not ok" for adults to engage in sexual acts with children.
Counsel for the offender acknowledged that it could not be said there was a causal nexus between his mental health issues and his offending. Rather, he relied upon the evidence of psychological issues being apparent when the offender, as a relatively young adult, committed the offences. This, it was said, rendered him relatively less 'mature' than other 21 or 22 year olds. As he developed his submission, the offender's Counsel submitted that these matters were relevant to the degree of culpability in the offender. The Crown submitted that there was no evidence from which the Court could find that, at the time of offending, the offender was more or less mature than other men of that age. At any rate, Ms Crown submitted that any immaturity that he had was immaterial since it was clear that he well knew the seriousness of his wrongdoing. That was evidenced, for example, by his pulling the victim away into a bedroom and then, by the issue of a death threat, attempting to swear the victim into secrecy.
I am prepared to accept, albeit on the scarce materials before me, that the offender may have had issues with his emotional development at the time of the offending, but that does not take him very far, in terms of his culpability, for the reason that Ms Crown advances: that there was nothing to show any lack of awareness in the seriousness of his wrongdoing and nothing to show any difference between his appreciation then, and his appreciation most recently indicated to Ms Martens, when he acknowledged that it was wrong for adults to engage in sexual acts with children.
Overall there is very little in the offender's psychological profile, as indicated by Ms Martens, which would support any substantial moderation of the general considerations concerning his culpability, or the need for general and specific deterrence.
To the extent that his mental health concerns might mean that the experience of punishment may be more severe as a mitigating factor, the indications, for example of psychotic experiences, may elevate the consideration of the need to protect the community.
This was an occasion where consideration of an offender's behaviour being closely related in time should not have obscured the fact that different offences were committed: at [122]. Nevertheless, in this case there remains a significant requirement for concurrency to avoid a sentence which is crushing. I propose to allow for some relatively minor level of notional accumulation.
The offender was taken into custody on 7 June 2017, but released on bail on 13 June 2017 (a period of 7 days). He was then taken back into custody on 4 July 2017 in relation to other matters. The Crown submits that the sentence could be backdated to 27 June 2017, which would allow for the total term he has had in custody, and the previous 7 days to be accounted for. Counsel for the offender endorsed that course and I propose to follow it.