R v DS [2017] NSWDC 229

R v DS [2017] NSWDC 229

The offence was objectively very serious because the nine-year-old complainant suffered substantial foreseeable harm, the offender was his uncle and in a position of trust, the offence occurred where the complainant was staying over holidays, and fellatio was a serious and intimate form of sexual intercourse. The offence was not treated as isolated because the judge was satisfied beyond reasonable doubt that it was one of a small number of similar acts. The offender's youth at the time, absence of later sexual offending, good prospects of rehabilitation, low need for personal deterrence, historical sentencing practice, risk of harsher protection custody and special circumstances...

Jurisdiction
Australia
Judgment Date
17 March 2017
Procedural Posture
Criminal Sentence / Sentencing After Jury Found the Offender Guilty of Having Homosexual Intercourse With a Child Under the Age of Ten
Outcome
The offender was sentenced to imprisonment with a non-parole period of two and a half years and a head sentence of five years.
Legal Topics
['historical Child Sexual Offence' 'homosexual Intercourse With a Child Under 10' 'fellatio' 'position of Trust' 'general Deterrence' 'non Parole Period' 'special Circumstances']
['criminal Law' 'sentencing'] ['historical Child Sexual Offence' 'homosexual Intercourse With a Child Under 10' 'fellatio' 'position of Trust' 'general Deterrence' 'non Parole Period' 'special Circumstances']

Case Brief

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Procedural Posture

Criminal Sentence / Sentencing After Jury Found the Offender Guilty of Having Homosexual Intercourse With a Child Under the Age of Ten

Legal Issues

  1. 1 ['What sentence should be imposed for the historical offence of homosexual intercourse with a child under the age of ten.' 'Whether the offender should be sentenced on the basis that the offence was isolated.' "How the complainant's harm, the offender's position of trust, and the nature of fellatio affect objective seriousness." "Whether the offender's age at the time of offending and lack of later sexual offending support rehabilitation and reduce the need for personal deterrence." "Whether bipolar disorder reduced the offender's moral culpability." 'How historical sentencing law, sentencing practice and sentencing ranges affect the sentence.' 'Whether special circumstances justified a non-parole period less than three-quarters of the head sentence.']

Ratio Decidendi

The offence was objectively very serious because the nine-year-old complainant suffered substantial foreseeable harm, the offender was his uncle and in a position of trust, the offence occurred where the complainant was staying over holidays, and fellatio was a serious and intimate form of sexual intercourse. The offence was not treated as isolated because the judge was satisfied beyond reasonable doubt that it was one of a small number of similar acts. The offender's youth at the time, absence of later sexual offending, good prospects of rehabilitation, low need for personal deterrence, historical sentencing practice, risk of harsher protection custody and special circumstances...

Court Disposition

The offender was sentenced to imprisonment with a non-parole period of two and a half years and a head sentence of five years.

Orders

  • ['The offender is sentenced to imprisonment.' 'The non-parole period is two and a half years, to date from 2 December 2016.' 'The head sentence is five years.' 'The non-parole period will expire on 1 June 2019, on which day the offender is eligible to be released to parole.']