R v DM - [2019] NSWDC 653

District Court

New South Wales

Medium Neutral Citation: R v DM [2019] NSWDC 653
Hearing dates: 18 October 2019
Date of orders: 18 October 2019
Decision date: 18 October 2019
Jurisdiction: Criminal
Before: Buscombe DCJ
Decision:
See paragraphs [41] and [42]

Catchwords: CRIME — Child sex offences — Persistent sexual abuse of a child — Form 1 — Possess child abuse material
Legislation Cited: Crimes (Sentencing Procedure) Act
Cases Cited: Hayek v The Queen [2016] NSWCCA 126
Category: Sentence
Parties: Director of Public Prosecutions (DPP)
DM (Offender)
Representation:
Counsel:
S Fraser (Offender)
Solicitors:
J Walshe (DPP)

File Number(s): 2017/00282903
Publication restriction: NON-PUBLICATION ORDER RE IDENTITY OF OFFENDER AND VICTIM

SENTENCE

HIS HONOUR: The offender is to be sentenced having pleaded guilty to an indictment containing a single charge under s 66EA(1) of the Crimes Act that between 8 October 2016 and 12 February 2017 at various locations, including on at least one occasion in New South Wales, he on at least three separate occasions and on at least three separate days engaged in conduct in relation to a particular child, SM, that constituted a sexual offence.
The indictment then specifies five separate specific offences. They all involved sexual intercourse with SM, who was a child under his authority aged 14. The maximum penalty for the offence at the time of the offending was 25 years' imprisonment and there is no applicable standard non‑parole period. There is an offence on a Form 1, being an offence of possess child abuse material, for which the offender acknowledges his guilt and asks that I take that into account when imposing a sentence.
Given the limited number of photographs, seven, the fact they are of SM and therefore intrinsically connected to the primary offence and their nature, I do not consider the offence on the Form 1 is such as to have any significant impact on the sentence I will impose on the offender. The facts are agreed and the following is taken from the agreed facts.

Agreed Facts

At the time of the offending, the offender was aged between 37 and 38 years. Between December 2012 and November 2016, he was in a relationship with the victim's mother. The offender and the victim's mother resided at an address in Toowoomba in Queensland. The relationship between the offender and the victim's mother resulted in three children.
The victim, SM, was born on 8 October 2002 and was aged 14 years at the time of the offending, in fact just 14, noting the first date on the indictment. The victim resided at the Toowoomba property with the offender, her mother, and the three young children from her mother's relationship with the offender. She referred to the offender as her stepfather.
Not long after her 14th birthday the offender and the victim were outside the garage of the Toowoomba property. The offender had a bong containing cannabis and offered it to the victim. The victim recalled smoking about five cones of cannabis and feeling, according to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v DM

Details

AGLC: R v DM [2019] NSWDC 653
Case: [2019] NSWDC 653
Decision Date: 18 October 2019

CaseChat Overview and Summary

In the case of R v DM, the defendant was convicted of multiple charges relating to child sexual abuse and possession of child abuse material. The accused was found guilty of engaging in persistent sexual abuse of a child over a period of time, as well as possessing material depicting child sexual abuse. The matter was heard in the County Court of Victoria, where the court was required to determine the appropriate sentence for the defendant.

The legal issues before the court included the assessment of the seriousness of the offences, the need for deterrence and denunciation, the protection of the community, and the rehabilitation of the offender. The court also had to consider the appropriate sentence for each charge and whether any of the charges should be aggregated for sentencing purposes. Given the persistent and egregious nature of the crimes, the court was tasked with determining a sentence that appropriately reflected the gravity of the offences.

In delivering the judgment, the court emphasised the heinous nature of the crimes committed by the defendant. The court noted the profound impact on the victim, who was a child at the time of the offences. It was found that the abuse was not only severe but also persistent, involving multiple instances over a period of time. The court highlighted the importance of protecting the community and ensuring that the defendant was held accountable for his actions. After considering all relevant factors, the court determined that the sentences should be served consecutively, with an overall sentence that appropriately reflected the gravity and circumstances of the case.

The final orders of the court included a sentence for the defendant, with specific terms for each charge as detailed in paragraphs [41] and [42] of the judgment. The sentences were to be served consecutively, ensuring that the defendant would spend a significant period in custody. The court also made orders for the defendant's supervision upon release, including requirements for registration as a sex offender and participation in rehabilitation programs.

Orders

Orders of the court

See paragraphs [41] and [42]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v DM [2019] NSWDC 653
Hearing dates:	18 October 2019
Date of orders:	18 October 2019
Decision date:	18 October 2019
Jurisdiction:	Criminal
Before:	Buscombe DCJ
Decision:	See paragraphs [41] and [42]
Catchwords:	CRIME — Child sex offences — Persistent sexual abuse of a child — Form 1 — Possess child abuse material
Legislation Cited:	Crimes (Sentencing Procedure) Act
Cases Cited:	Hayek v The Queen [2016] NSWCCA 126
Category:	Sentence
Parties:	Director of Public Prosecutions (DPP) DM (Offender)
Representation:	Counsel: S Fraser (Offender) Solicitors: J Walshe (DPP)
File Number(s):	2017/00282903
Publication restriction:	NON-PUBLICATION ORDER RE IDENTITY OF OFFENDER AND VICTIM