R v Dr

Case [2021] NSWDC 118 12 April 2021

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District Court

New South Wales

Medium Neutral Citation: R v DR [2021] NSWDC 118
Hearing dates: 11 November 2020 – 18 November 2020; 5 March 2021
Date of orders: 12 April 2021
Decision date: 12 April 2021
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision:
Aggregate sentence of 20 years 10 months with a non-parole period of 15 years 6 months. Indicative sentences specified at [155] – [156].

Catchwords:
CRIME – SENTENCING – Historical child sexual abuse – Offender’s natural daughter – Two complainants – Aggregate sentence – Indecent assault (under 16) – Sexual intercourse (under 10) – Late guilty plea – Offences in “presence” of person under 18

Legislation Cited:
Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Crimes Legislation Amendment (Child Sex Offences) Act 2015
Crimes (Sentencing Procedure) Act 1999
Drug Court Act 1998.

Cases Cited:
Alesbhi v R [2018] NSWCCA 30
BR v R [2015] NSWCCA 255
BTvR [2010] NSWCCA 267
FD v R [2013] NSWCCA 139
Franklin v R [2016] NSWCCA 319
Gore v R [2010] NSWCCA 330; (2010) 208 A Crim R 353
Markarian v The Queen (2005) 228 CLR 357
MRW v R [2011] NSWCCA 260
R v Bain [2006] NSWCCA 79
R v Cattell [2019] NSWCCA 297
R v Gavel (2014) 239 A Crim R 469
R v Holder (1983) 3 NSWLR 245
R v MM(No 3) [2018] NSWDC 529
R v Seymour [2012] NSWSC 1010
R v Slater [2003] NSWCCA 178
R v Tuala [2015] NSWCCA 8
R v Youkhana [2004] NSWCCA 412

Category: Sentence
Parties: Regina (Crown)
DR (Offender)
Representation:
Counsel:
F Sullivan (Crown)
D Roff (Offender)
Solicitors:
Office of the Director of Public Prosecutions NSW (Crown)
Benjamin Leonardo - The Defenders (Offender)

File Number(s): 2018/00316962
Publication restriction: No publication of any information that might identify a child. Defendant to be referred to by a pseudonym.

Judgment

The offender, DR, appears for sentence with respect to two groups of sexual offences which were committed against two different victims some years apart. There is a statutory non-publication order with respect to the names or identifying features of either of the complainants who were children at the time of the offending. The nature of the offender’s relationship with each of the victims has the consequence that there is also to be a non-publication order with respect to the name of the offender as his identification would permit ready identification of the victims.
The various offences to which the offender ultimately pleaded guilty will be identified during the description of the factual background to the offending. The offences range in severity from an indecent assault of a person under 16 years of age carrying a maximum penalty of 10 years imprisonment up to several counts of sexual intercourse with a child under 10 years of age whilst being under the authority of the offender. Such offences carry a maximum penalty of life imprisonment with a standard non-parole period of 15 years.
The offender denied both groups of offences with the…

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 Dr

Details

AGLC: R v Dr [2021] NSWDC 118
Case: [2021] NSWDC 118
Decision Date: 12 April 2021

CaseChat Overview and Summary

The matter before the court involved Dr, who was charged with multiple offences of historical child sexual abuse against two complainants, both of whom were his natural daughters. The case was heard in the Supreme Court of [jurisdiction], where the primary focus was on determining an appropriate aggregate sentence for the various offences committed by Dr. The offences included indecent assault under the age of 16 and sexual intercourse under the age of 10, with some of these acts occurring in the presence of a person under 18 years old.

The legal issues at the heart of this case revolved around the principles of sentencing in historical child sexual abuse cases, the relevance of the offender’s relationship with the victims, and the impact of the crimes on the victims. The court needed to consider the severity and gravity of the offences, the delay in Dr pleading guilty, and the cumulative effect of the offences on the victims. Additionally, the court had to address whether an aggregate sentence was appropriate given the nature and circumstances of the offences.

In delivering the judgment, the court meticulously assessed the evidence and the submissions from both the prosecution and defence. The court emphasised the gravity of the offences, the profound impact on the victims, and the need for a sentence that would reflect the seriousness of the crimes and provide deterrence. The court determined that an aggregate sentence was warranted, taking into account the delay in the guilty plea and the cumulative effect of the offences. The final sentence was set at 20 years and 10 months with a non-parole period of 15 years and 6 months, with specific indicative sentences provided at the relevant paragraphs in the judgment.

The final orders of the court included the aggregate sentence of 20 years and 10 months, with a non-parole period of 15 years and 6 months. The indicative sentences were specified at paragraphs [155] and [156] of the judgment, providing clarity on the sentence for each individual offence.

Orders

Orders of the court

Aggregate sentence of 20 years 10 months with a non-parole period of 15 years 6 months. Indicative sentences specified at [155] – [156].

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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Citations

R v Dr [2021] NSWDC 118

Most Recent Citation

DR v R [2022] NSWCCA 151

Cases Citing This Decision

DR v R [2022] NSWCCA 151
Citation 1 (Para 12)

…The sentencing judge found the facts of the offending to be as follows:[3] 3. R v DR [2021] NSWDC 118 at [9] – [38].…

See all citing cases →

Cases Cited

R v Cattell [2019] NSWCCA 297
Citation 1 (Para 128)

…ly reminded the court of the application of section 25AA Crimes (Sentencing Procedure) Act and, in particular, the judgment of Price J in R v Cattell [2019] NSWCCA 297. I should note in passing that I am conscious of the relevant section and I am familiar with, and will apply, the steps indicated by Justice Price in…
R v Holder [2019] SASCFC 73
Citation 2 (Para 155)

…he principles of totality require a level of concurrence in order to arrive at a proportionate outcome. I note the remarks of Street CJ in R v Holder (1983) 3 NSWLR 245.…
R v MM (No 3) [2018] NSWDC 529
Citation 3 (Para 117)

…-parole periods for these various offences only applied prospectively: see Crimes Legislation Amendment (Child Sex Offences) Act 2015 ; R v MM (No 3) [2018] NSWDC 529 ; cf. BR v R [2015] NSWCCA 255.…
Alesbhi v R; Esbhi v R [2018] NSWCCA 30
Citation 4 (Para 146)

…v R [2010] NSWCCA 330; (2010) 208 A Crim R 353 per Howie J at [100],[104]-[106]; R v Seymour [2012] NSWSC 1010 per Price J at [43]-[44]; Alesbhi v R [2018] NSWCCA 30 per R A Hulme J at [53]-[56].…
Franklin v R [2016] NSWCCA 319
Citation 5 (Para 142)

…with respect to those counts in which the abuse of authority is an element of the offence : see also the observations of R A Hulme J in Franklin v R [2016] NSWCCA 319 at [63]-[75].…
BR v R [2015] NSWCCA 255
Citation 6 (Para 117)

…ous offences only applied prospectively: see Crimes Legislation Amendment (Child Sex Offences) Act 2015 ; R v MM (No 3) [2018] NSWDC 529 ; cf. BR v R [2015] NSWCCA 255.…
R v Tuala [2015] NSWCCA 8
Citation 7 (Para 46)

…by the fact that they are not on oath and are not subject to cross-examination. I note the detailed analysis in this regard by Simpson J in R v Tuala [2015] NSWCCA 8.…
R v CMB [2014] NSWCCA 5
Citation 8 (Para 92)

…rt has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009]…
SW v R [2013] NSWCCA 255
Citation 9 (Para 52)

…f not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the “long term and serious harm, both physical and ps…
FD v R [2013] NSWCCA 139
Citation 10 (Para 138)

…was “the antithesis of the close and loving relationship” that she was entitled to expect from her father: see the remarks of Bellew J in FD v R [2013] NSWCCA 139 at [150].…
R v Seymour [2012] NSWSC 1010
Citation 11 (Para 146)

…y the New South wales Court of Criminal Appeal: see Gore v R [2010] NSWCCA 330; (2010) 208 A Crim R 353 per Howie J at [100],[104]-[106]; R v Seymour [2012] NSWSC 1010 per Price J at [43]-[44]; Alesbhi v R [2018] NSWCCA 30 per R A Hulme J at [53]-[56].…
MRW v R [2011] NSWCCA 260
Citation 12 (Para 141)

…The Chief Justice of New South Wales, Bathurst CJ (James and Johnson JJ agreeing) in MRW v R [2011] NSWCCA 260, noted that an abuse of a position of trust or an abuse of authority as particularised in the aggravating factors set out in the Crimes (Sentencing Procedure) Act 1999, s 21A(2)(k), relate to distinct conce…
Clarkson v The Queen [2011] VSCA 157
Citation 13

…a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364[3], 368–372 [26]–[39].”…
Gore v R; Hunter v R [2010] NSWCCA 330
Citation 14 (Para 146)

…established in accordance with the expressed interpretation of the relevant subsection by the New South wales Court of Criminal Appeal: see Gore v R [2010] NSWCCA 330; (2010) 208 A Crim R 353 per Howie J at [100],[104]-[106]; R v Seymour [2012] NSWSC 1010 per Price J at [43]-[44]; Alesbhi v R [2018] NSWCCA 30 per R…
BT v R [2010] NSWCCA 267
Citation 15 (Para 19)

…nalty of 10 years imprisonment. A standard non-parole period is specified of 8 years. I respectfully adopt the observations of RS Hulme J in BT v R [2010] NSWCCA 267 at [41] with regard to this specified ratio. This offending was count 4 in the indictment to which the offender entered a plea of guilty.…
R v G [2008] UKHL 37
Citation 16 (Para 52)

…CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the “long term and serious harm, both physical and psychological, which premature sexu…
Bain v R [2006] NSWCCA 79
Citation 17 (Para 143)

…or more deleterious than might ordinarily be expected for the specific offence: see R v Youkhana [2004] NSWCCA 412 per Hidden J at [26]; R v Bain [2006] NSWCCA 79; 161 A Crim R 36 per Sully J at [10]-[15]; R v Tuala [2015] NSWCCA 8 per Simpson J at [51]-[82].…
Markarian v The Queen [2005] HCA 25
Citation 18 (Para 127)

…enalty provided a yardstick which invited comparison between the worst possible case and the case before the court at the time: Markarian v The Queen (2005) 228 CLR 357 at [31]. The Crown submitted that the timing of the pleas of guilty and the application of section 25D(2)(c) of the Crimes (Sentencing Procedure) Act…
R v Youkhana [2004] NSWCCA 412
Citation 19 (Para 143)

…stablished beyond reasonable doubt to be greater or more deleterious than might ordinarily be expected for the specific offence: see R v Youkhana [2004] NSWCCA 412 per Hidden J at [26]; R v Bain [2006] NSWCCA 79; 161 A Crim R 36 per Sully J at [10]-[15]; R v Tuala [2015] NSWCCA 8 per Simpson J at [51]-[82].…
R v Slater [2003] NSWCCA 178
Citation 20 (Para 142)

…ear that I am conscious of the qualitative difference between the notion of a breach of trust and the notion of being under authority, see R v Slater [2003] NSWCCA 178 at [53]-[54] per Shaw J (Grove J agreeing), and I will be cautious in not giving undue weight to the clear abuse of the position of trust with respec…
[2009] 1 AC 92 [2009] 1 AC 92
Citation 21 (Para 52)

…A 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the “long term and serious harm, both physical and psychological, which premature sexual activity can…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW) 21A(2)(k)
2 mentions (from Para 127)
Children (Criminal Proceedings) Act 1987 (NSW)
1 mention (from Para 57)
Crimes Act 1900 (ACT)
1 mention (from Para 10)
Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW)
1 mention (from Para 10)
Drug Court Act 1998 (NSW)
1 mention (from Para 87)
Section of Crimes Act 1900 (NSW)
1 mention

Medium Neutral Citation:	R v DR [2021] NSWDC 118
Hearing dates:	11 November 2020 – 18 November 2020; 5 March 2021
Date of orders:	12 April 2021
Decision date:	12 April 2021
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	Aggregate sentence of 20 years 10 months with a non-parole period of 15 years 6 months. Indicative sentences specified at [155] – [156].
Catchwords:	CRIME – SENTENCING – Historical child sexual abuse – Offender’s natural daughter – Two complainants – Aggregate sentence – Indecent assault (under 16) – Sexual intercourse (under 10) – Late guilty plea – Offences in “presence” of person under 18
Legislation Cited:	Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Crimes Legislation Amendment (Child Sex Offences) Act 2015 Crimes (Sentencing Procedure) Act 1999 Drug Court Act 1998.
Cases Cited:	*Alesbhi v R* [2018] NSWCCA 30 *BR v R* [2015] NSWCCA 255 BTvR [2010] NSWCCA 267 *FD v R* [2013] NSWCCA 139 *Franklin v R* [2016] NSWCCA 319 *Gore v R* [2010] NSWCCA 330; (2010) 208 A Crim R 353 *Markarian v The Queen* (2005) 228 CLR 357 *MRW v R* [2011] NSWCCA 260 *R v Bain* [2006] NSWCCA 79 *R v Cattell* [2019] NSWCCA 297 *R v Gavel* (2014) 239 A Crim R 469 *R v Holder* (1983) 3 NSWLR 245 *R v MM*(No 3) [2018] NSWDC 529 *R v Seymour* [2012] NSWSC 1010 *R v Slater* [2003] NSWCCA 178 *R v Tuala* [2015] NSWCCA 8 *R v Youkhana* [2004] NSWCCA 412
Category:	Sentence
Parties:	Regina (Crown) DR (Offender)
Representation:	Counsel: F Sullivan (Crown) D Roff (Offender) Solicitors: Office of the Director of Public Prosecutions NSW (Crown) Benjamin Leonardo - The Defenders (Offender)
File Number(s):	2018/00316962
Publication restriction:	No publication of any information that might identify a child. Defendant to be referred to by a pseudonym.