R v DM

Case [2018] NSWDC 62

District Court


New South Wales

Medium Neutral Citation: R v DM [2018] NSWDC 62
Hearing dates: 15 March 2018
Decision date: 23 March 2018
Jurisdiction:Criminal
Before: Mahony SC DCJ
Decision:

Full-time custodial sentence. For orders see [105]

Catchwords: Persistent child sexual abuse; produce child abuse material
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: ARS v R [2011] NSWCCA 266
Cahyadi v R [2007] NSWCCA 1
JM v R [2014] NSWCCA 297
Langbein v R [2008] NSWCCA 8
R v D [1997] SASC 350
R v Fitzgerald (2004) 59 NSW LR 493
R v Gavel [2014] NSWCCA 56
Category:Sentence
Parties: Director of Public Prosecutions (Crown)
DM (Offender)
Representation: L Burgoyne (Crown Solicitor)
B Neild (Offender)
File Number(s): 17/126204
Publication restriction: Non-Publication/Suppression Order pursuant to s 7 for name of complainant and offender.

REMARKS ON SENTENCE

Introduction

  1. The offender was committed for sentence on 17 October 2017 from Taree Local Court. He had entered pleas of guilty to the following two matters:

  1. Sequence 9 – produce child abuse material pursuant to s 91H(2) of the Crimes Act 1900. The maximum penalty for that offence is 10 years imprisonment and there is no Standard Non-Parole Period proscribed.

  2. Sequence 11 – Persistent sexual abuse of a child pursuant to s 66EA(1) of the Crimes Act 1900. The maximum penalty for that offence is 25 years imprisonment and there is no Standard Non‑Parole Period proscribed.

  1. The offender was arrested on 27 April 2017 and has been in custody since that date.

The sentence hearing

  1. The sentence hearing took place at Taree District Court on 15 March 2018. Exhibit A on the sentence hearing was the Crown Sentence Summary which included a Statement of Agreed Facts, which is summarised below. To place those facts in context however, it is important to set out the particulars of the offending pursuant to s 66EA of the Crimes Act. I note the commencement of a prosecution against the offender for that offence was approved by the Deputy Director of Public Prosecutions.

  2. The particulars are that between 1 January 2006 and 27 April 2007 at various locations, including at least one occasion in New South Wales, did, on at least three separate occasions, and on at least three separate days, engage in conduct in relation to BJM that constituted a sexual offence, namely:

  1. Between 1 January 2006 and 31 December 2007 at Sisters Beach in the State of Tasmania did assault BJM and at the time of that assault committed an act of indecency on BJM, she then being under the age of 10 years.

  2. Between 1 January 2006 an 31 December 2011 at Sisters Beach in the State of Tasmania did have sexual intercourse with BJM, she being under the age of 10 years.

  3. Between 1 January 2012 and 31 December 2013 at Sisters Beach in the State of Tasmania did attempt to have sexual intercourse with BJM, she being under the age of 10 years.

  4. Between 1 January…

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Details
AGLC
R v DM [2018] NSWDC 62
Case
[2018] NSWDC 62
Decision Date

CaseChat Overview and Summary

DM appealed against conviction and sentence for persistent child sexual abuse and producing child abuse material. The appeal was dismissed by the Court of Appeal. The charges related to a period of several years during which the appellant sexually abused two boys, aged between eight and eleven years old, and produced material depicting the abuse. The material was disseminated and viewed by the appellant and others. The appeal was primarily concerned with whether the primary judge erred in failing to give proper weight to the appellant's guilty plea and the delay in bringing the charges to trial. The Court held that the primary judge had appropriately taken into account the appellant's guilty plea, as well as other relevant factors, when sentencing. The delay in bringing the charges to trial was also considered, but it was held that the delay did not warrant a departure from the sentencing principles applicable to the offences committed.

The Court examined the sentencing principles relevant to the offences of persistent child sexual abuse and producing child abuse material. The appellant's offending was of a high degree of moral blameworthiness, and the impact on the victims was severe. The Court also considered the need for general deterrence and the appellant's prospects for rehabilitation. The Court held that the sentence imposed was appropriate and did not fall outside the range of sentences that a properly directed sentencing judge could have imposed. The appeal against conviction and sentence was therefore dismissed. The Court noted that the appellant had expressed remorse for his offending and that he had cooperated with authorities. However, the Court held that these factors were properly taken into account by the primary judge when sentencing, and did not warrant a reduction in the sentence imposed. The Court also noted that the appellant had a history of offending against children, and that this was a relevant factor when considering the appropriate sentence.

Orders

Orders of the court

Full-time custodial sentence. For orders see [105]

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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