R v DAW (No. 3) [2021] NSWDC 383

R v DAW (No. 3) [2021] NSWDC 383

The court preferred the approach that s 66EA(1) creates a single offence with one physical element, the maintenance of an unlawful sexual relationship, and that despite the jury's inscrutable verdict the sentencing judge may consider and find the particularised unlawful sexual acts proved beyond reasonable doubt consistently with the verdict. The court found all four particularised sexual acts for count 1 proved, assessed count 1 as slightly above the mid-range, count 6 as low-end, and counts 8 and 10 as towards the lower end, but found serious aggravation through breach of trust and significant harm. Balancing denunciation, general deterrence and accountability against the offender's...

Jurisdiction
Australia
Judgment Date
06 August 2021
Procedural Posture
Criminal Sentencing for Historical Sexual Offences and Assault Offences After Jury Trial / Sentence
Outcome
The offender was sentenced to an aggregate term of imprisonment of 17 years with a non-parole period of 10 years, 2 months and 14 days.
Legal Topics
['historical Sex Offences' 'sexual Offences Against a Child' 'maintenance of Unlawful Sexual Relationship' 'statutorily Sanctioned Duplicitous Count' 'jury Verdict Fact Finding on Sentence' 'breach of Trust' 'objective Seriousness' 'totality' 'special Circumstances']
['criminal Law' 'sentencing'] ['historical Sex Offences' 'sexual Offences Against a Child' 'maintenance of Unlawful Sexual Relationship' 'statutorily Sanctioned Duplicitous Count' 'jury Verdict Fact Finding on Sentence' 'breach of Trust' 'objective Seriousness' 'totality' 'special Circumstances']

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Procedural Posture

Criminal Sentencing for Historical Sexual Offences and Assault Offences After Jury Trial / Sentence

Legal Issues

  1. 1 ['How to sentence for an offence under s 66EA(1) of the Crimes Act 1900 (NSW) where the jury was not required to agree on which unlawful sexual acts constituted the unlawful sexual relationship.' 'Whether the offender should be sentenced on the basis of all particularised ingredient sexual acts or only the least serious acts consistent with the jury verdict.' 'The objective seriousness of the offences committed against the victim when she was a child, adolescent and adult.' "The relevance of aggravating circumstances including breach of trust, harm to the victim, the offender's age, health, absence of prior convictions, low risk of re-offending and onerous custody."]

Ratio Decidendi

The court preferred the approach that s 66EA(1) creates a single offence with one physical element, the maintenance of an unlawful sexual relationship, and that despite the jury's inscrutable verdict the sentencing judge may consider and find the particularised unlawful sexual acts proved beyond reasonable doubt consistently with the verdict. The court found all four particularised sexual acts for count 1 proved, assessed count 1 as slightly above the mid-range, count 6 as low-end, and counts 8 and 10 as towards the lower end, but found serious aggravation through breach of trust and significant harm. Balancing denunciation, general deterrence and accountability against the offender's...

Court Disposition

The offender was sentenced to an aggregate term of imprisonment of 17 years with a non-parole period of 10 years, 2 months and 14 days.

Orders

  • ['The offender is sentenced to a term of imprisonment for a period of 17 years, commencing 29 January 2021 until 28 January 2038.' "The non-parole period is 10 years' 2 months and 14 days', expiring on 11 April 2031, after which the offender will be eligible for release on parole."]