R v DSM

[2021] NSWDC 283

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v DSM [2021] NSWDC 283

Hearing dates:

15/2/21-25/2/21, 23/4/21

Date of orders:

23/4/21

Decision date:

23 April 2021

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to an aggregate term of imprisonment of 5 years 9 months with a NPP of 3 years 6 months (31/3/21-30/9/24).

I find special circumstances.

The indicative sentences are:

Count 1 – 3 years 6 months with NPP 2 years 2 months

Count 2 – 18 months with NPP 11 months.

Count 3 – 2 years 6 months with NPP 18 months

Count 4 – 3 years 3 months with NPP 2 years.

Catchwords:

Crime – Sentence – Indecent assault under 16 years

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

R v MJR [2002] 54 ACrimR 368

R v Nelson [2016] NSWCCA 130

Category:

Sentence

Parties:

NSW DPP – Crown
DSM - Offender

Representation:

Ms E Curran for Crown
Mr B Levet for Offender

File Number(s):

2019/119653

Publication restriction:

Non-publication order in relation to the identity of the complainant and the offender.

Judgment

1. I note firstly that there is a non-publication statutory provision which applies in this case such that there must be no naming or identification of the victim, who I will refer to in these remarks as MM.

2. The offender DSM stood trial before a jury at Parramatta over nine days from 15 February 2021 on an indictment containing 10 counts. On 25 February 2021 the jury returned not guilty verdicts on counts 5 through to 10 but guilty verdicts on 1 through to 4.

3. Those counts involve four offences under s 61M(2) of the Crimes Act 1900, those being offences of indecent assault upon a person aged under 16 years and it is now necessary for the Court to sentence the offender for those offences.

4. The maximum penalty for each of the offences is 10 years imprisonment and each of them have specified a standard non-parole period of eight years. Of course the maximum penalty and the standard non-parole period are important guideposts in the sentencing exercise which I must undertake.

FACTS

5. A set of suggested facts for sentence has been prepared by the Crown and placed before the Court and has not been the subject of dispute on behalf of the offender. In summary the facts of the four counts are relevantly as follows.

6. The offender is the paternal grandfather of the victim MM who was born in August 2004. On an occasion between 1 January 2013 and 31 December 2016 the victim was staying at the offender’s house at Blacktown. Also present were the victim’s paternal grandmother, younger brother and two cousins. At some point the victim’s grandmother, her younger brother and two cousins left the house to buy pizza. The victim was in the bathroom when they left. However when she walked out of the bathroom she saw the offender standing outside the bathroom. The offender led the victim to…