R v Duncan [2022] NSWDC 543

R v Duncan [2022] NSWDC 543

The offender was convicted of all eight counts. Counts 9 and 10, involving relatively minor and brief touching of HU, did not justify imprisonment if sentenced alone and were dealt with under s 10A with no further penalty because any community-based order would be subsumed by the imprisonment imposed for other counts. Counts 5, 6, 7, 8, 12 and 13 warranted full-time imprisonment because they were child sexual assault offences involving abuse of trust, vulnerable child victims and opportunistic offending in isolated camping circumstances or against family friends. The Court assessed counts 5, 6, 7, 12 and 13 as slightly below midrange objective seriousness, count 8 as about midrange, and...

Jurisdiction
Australia
Judgment Date
04 November 2022
Procedural Posture
Criminal Sentence for Child Sexual Touching Offences / Sentence Following Jury Trial and Guilty Verdicts on Eight Counts
Outcome
The offender was convicted of all eight counts. Counts 9 and 10 were dealt with under s 10A with no further penalty. Counts 5, 6, 7, 8, 12 and 13 received an aggregate sentence of 5 years imprisonment with a non-parole period of 2 years and 6 months.
Legal Topics
['child Sexual Assault Offences' 'sexual Touching of Children' 'objective Seriousness' 'aggregate Sentence' 'extra Curial Punishment' 'public Opprobrium' "hardship to Offender's Family" 'prospects of Rehabilitation' 'protective Custody' 'high Risk Offenders']
['criminal Law' 'sentencing'] ['child Sexual Assault Offences' 'sexual Touching of Children' 'objective Seriousness' 'aggregate Sentence' 'extra Curial Punishment' 'public Opprobrium' "hardship to Offender's Family" 'prospects of Rehabilitation' 'protective Custody' 'high Risk Offenders']

Case Brief

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Procedural Posture

Criminal Sentence for Child Sexual Touching Offences / Sentence Following Jury Trial and Guilty Verdicts on Eight Counts

Legal Issues

  1. 1 ['What sentences should be imposed for eight counts of sexually touching three children aged between 10 and 16 contrary to s 66DB(a) of the Crimes Act 1900 (NSW).' 'Whether counts 9 and 10 crossed the s 5 threshold for imprisonment or should be dealt with under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).' 'How the objective seriousness of each offence should be assessed, including whether alleged provision of alcohol was proved as an aggravating factor.' "Whether the offender's lack of significant prior convictions, previous good character, age, ill health, prospects of rehabilitation and low likelihood of reoffending mitigated sentence." 'Whether sensational and inaccurate media reporting amounted to public opprobrium and extra curial punishment.' "Whether hardship to the offender's wife and daughters could be taken into account in determining sentence." 'Whether special circumstances justified a non-parole period shorter than the statutory ratio.']

Ratio Decidendi

The offender was convicted of all eight counts. Counts 9 and 10, involving relatively minor and brief touching of HU, did not justify imprisonment if sentenced alone and were dealt with under s 10A with no further penalty because any community-based order would be subsumed by the imprisonment imposed for other counts. Counts 5, 6, 7, 8, 12 and 13 warranted full-time imprisonment because they were child sexual assault offences involving abuse of trust, vulnerable child victims and opportunistic offending in isolated camping circumstances or against family friends. The Court assessed counts 5, 6, 7, 12 and 13 as slightly below midrange objective seriousness, count 8 as about midrange, and...

Court Disposition

The offender was convicted of all eight counts. Counts 9 and 10 were dealt with under s 10A with no further penalty. Counts 5, 6, 7, 8, 12 and 13 received an aggregate sentence of 5 years imprisonment with a non-parole period of 2 years and 6 months.

Orders

  • ['For each of the eight offences, the offender is convicted.' 'For counts 9 and 10, pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999, no further penalty.' 'For counts 5, 6, 7, 8, 12 and 13, an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 is imposed, comprising a...