R v Danvers (a pseudonym)

[2023] NSWDC 314

District Court

New South Wales

Medium Neutral Citation:	R v Danvers (a pseudonym) [2023] NSWDC 314
Hearing dates:	4 August 2023
Decision date:	18 August 2023
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment of 6 years 6 months with a non parole period of 3 years 10 months.
Catchwords:	CRIME - SENTENCE - indecent assault against a child under the age of 16 years - visiting restrictions to offender's children - exceptional hardship to third parties - special circumstances.
Legislation Cited:	Crimes Act 1900 (NSW), s61M(2), Crimes Sentencing Procedure Act 1999, ss25AA and 30E(5)
Category:	Sentence
Parties:	Rex (Crown) Mr Danvers (a pseudonym) (Offender)
Representation:	Ms James, Solicitor Advocate (DPP Parramatta) Mr Edwards SC (Offender)
File Number(s):	2022/00143119
Publication restriction:	Statutory Non-publication order of the names of the offender, victims or any other matter that may identify any of them, directly or indirectly.

Judgment

1. Mr Danvers (a pseudonym), on 10 May 2023, you were arraigned upon indictment 9.4 before a jury panel in waiting.

2. That indictment contained seven Counts.

3. Upon your arraignment, you pleaded not guilty to each of those seven Counts.

4. At the conclusion of the trial which commenced by that arraignment, the jury found you not guilty of Counts 2, 3, 4 and 6; and guilty of Counts 1, 5 and 7.

5. The Counts of which you were found guilty were in the following terms:

1.	Between 11 December 2011 and 29 January 2014, at Greystanes in the State of New South Wales, [you] did assault E (a pseudonym) and at the time of the assault committed an act of indecency on E, a child then under the age of 16 years, namely, 4-5 years of age.
5.	Between 27 March 2016 and 26 March 2018, at Guildford in the State of New South Wales, [you] did assault C (a pseudonym) and at the time of the assault committed an act of indecency on C, a child then under the age of 16 years, namely, 8-9 years of age.
7.	On or about the 3rd day of January 2017, at Palm Beach or elsewhere in the State of New South Wales, [you] did assault N (a pseudonym) and at the time of the assault committed an act of indecency on N, a child then under the age of 16 years, namely, 14 years of age.

6. The offence of indecent assault involves a contravention of s61M(2) of the Crimes Act 1900 (NSW). The maximum penalty for each offence is 10 years imprisonment; and there is a standard non-parole period of 8 years imprisonment.

7. After the jury returned its verdicts:

1. your bail was revoked; and

2. 4 August 2023 was fixed as the sentence hearing date.

8. At the commencement of that sentence hearing, and of course in your presence, I made findings of fact (of which I was satisfied beyond reasonable doubt) consistent with the jury’s verdicts of guilty. It is not necessary for me to repeat those findings today. I incorporate them by reference. I note that they are also subject to the statutory non-publication order which applies to these Remarks on Sentence. It needs to be noted that each of the 3 victims was your niece.

9. It is necessary for the Court to make findings as to the objective seriousness of each offence for an offence of its kind.

10. Count 1 is somewhere equidistant between the middle and the bottom of the range. Count 5 is at the mid-range. Count 7 is just below the mid-range.

11. Count 1 is additionally aggravated by the following considerations: first, it occurred in the home of the victim; and secondly, and notwithstanding the opportunistic nature of the offending, it involved a significant breach of trust.

12. Counts 5 and 7 are each additionally aggravated because, and again notwithstanding the opportunistic nature of the offending, it involved a significant breach of trust.

13. No victim impact statement was provided by any of the (young) victims of your offending. However, the absence of any such statement does not give rise to any inference that the relevant offence had little or no impact on the relevant victim – see s30E(5) of the Crimes (Sentencing Procedure) Act 1999. Moreover, I have also had regard to s25AA of the Crimes (Sentencing Procedure) Act 1999.

14. You did not give direct or sworn evidence in the sentence hearing on 4 August 2023. Rather, your subjective circumstances were advanced through the report of a psychologist (Mr Borkowski) dated 17 July 2023; a character reference prepared by your cousin dated 19 July 2023; an affidavit made by your wife dated 2 August 2023; and email correspondence between your solicitor (Mr Vo) and the Parklea Correctional Facility.

15. By having regard to those documents, I am satisfied of the following facts on the balance of probabilities.

16. You were born in March 1986 and you are, therefore, now 37 years of age.

17. As I earlier noted on 4 August 2023, you have been married since 2011. You and your wife have two young children.

18. With one important qualification, you were raised in a loving and supportive environment until you left your parents home in 2011 when you married your wife.

19. The important qualification is that you told Mr Borkowski that, in your “early formative years”, you were sexually assaulted by two of your sisters and one of your brothers. These assaults were not disclosed at the time of the relevant abuse. However, you told Mr Borkowski that, at some later time, you informed your wife and some of your (presumably other) siblings of that abuse.

20. Mr Borkowski does not say that there is any causal connection between the sexual abuse you say was inflicted on you and the sexual offending for which you are to be sentenced today.

21. You left school at the end of Year 10 and have had continuous meaningful employment until your bail was revoked. The revocation of bail has imposed a significant financial strain on your family as you were the primary income earner in that family.

22. You have no prior offences involving sexual offending of any kind. You do, however, have a number of driving offences. Nevertheless, I shall treat you as though you were a first offender. That consideration, in connection with child sexual offences, is of reduced significance but still of some relevance. It is, however, of further reduced significance given the period of time over which the three offences were committed.

23. You have no mental illness or intellectual disability issues. Nor have you any issue with alcohol or illegal drugs.

24. You have made no expression of remorse. You are of course not to be punished for exercising your right to a trial and it may be that, in part, the absence of an expression of remorse is to preserve your position in the event of any appeal in relation to any of the convictions.

25. Nevertheless, you have been convicted and an absence of an expression of remorse is a relevant consideration in assessing your prospects of rehabilitation.

26. There is no expert evidence to explain your offending behaviour which involved three female relatives ranging between 4 and 14 years of age and taking place over a six-year period. In this respect, Mr Edwards SC, who appeared on your behalf, made appropriate and proper concessions during submissions as to the limited utility of Mr Borkowski’s report, especially on the question of causation and the issue of reoffending (T11:29, 4 August 2023).

27. On balance, I regard your prospects of rehabilitation as being guarded. I am unable to conclude, on the balance of probabilities, that they would be enhanced by a longer period on parole.

28. Considerations of general and specific deterrence are fully engaged, as is the need to encourage your rehabilitation.

29. During the sentencing hearing, evidence was adduced on your behalf by your solicitor (not challenged by the Crown) concerning certain administrative procedures at Parklea Correctional Facility where you are currently being held. Your children are aged 4 years and 18 months. Since your bail was revoked, you have not seen your children. This is because the Parklea Correctional Facility has “a child protection restriction, due to [your charges], that doesn’t allow any person under the age of 18 to visit” (see Exhibit 4 on sentence).

30. I am unaware of whether this policy is widespread within the correctional facilities of New South Wales. The Crown did not adduce any evidence in reply that the policy was limited to the Parklea Correctional Facility; or that you would not be likely to serve the balance of your sentence at that facility. At face value, this policy is concerning. Whether widespread or not, it is, in my respectful opinion, a policy which is likely to have an adverse impact on an offender’s prospects of rehabilitation, as well as constituting highly exceptional hardship to third parties (that is, the young children) which will require an ameliorating effect on the sentence to be imposed. This will be taken into account in fixing the non-parole period.

31. No sentence for any offence other than full-time imprisonment is appropriate.

32. As there were three victims, there will need to be meaningful accumulation in relation to the sentences.

33. I shall be imposing an aggregate sentence. It is necessary for me to state the indicative sentences underpinning what will be the ultimate aggregate sentence.

34. In this regard, in relation to Count 1, the indicative sentence is imprisonment for 2 years 6 months; and the indicative non-parole period is 1 year 7 months.

35. In relation Count 5, the indicative sentence is imprisonment for 5 years; and the indicative non-parole period is 3 years 3 months.

36. In relation to Count 7, the indicative sentence is imprisonment for 3 years 6 months; and the indicative non-parole period is 2 years 3 months.

37. You were granted bail on the date of your arrest. That bail was revoked on the return of the jury’s verdicts. Therefore, the sentence of imprisonment will be backdated to 25 May 2023.

38. In the result, and in connection with Counts 1, 5 and 7, and taking totality into account, I sentence you to an aggregate term of imprisonment of 6 years 6 months.

39. Prima facie, the non parole period for that sentence should be 75% of the sentence, i.e. 4 years 10 months. A Judge can reduce the non parole period if there are “special circumstances”. The fact that this will be your first time in prison would not, of itself, have been a sufficient consideration for me to make a finding of special circumstances. Two further factors have led me to make such a finding: first, because imprisonment will be harsher for you because you will not be allowed to see your children; and secondly (and obviously relatedly) because of the exceptional hardship which that circumstance of your imprisonment will have on those children.

40. I fix a non-parole period of 3 years 10 months to date from 25 May 2023 and which will expire on 24 March 2027.

41. I fix a balance of 2 years 8 months to date from 25 March 2027 and which will expire on 24 November 2029.

Decision last updated: 18 August 2023