R v SH [2019] NSWDC 889

District Court New South Wales

Medium Neutral Citation: R v SH [2019] NSWDC 889 Hearing dates: 18 June 2019 – 24 July 2019 (Trial)6 September 2019 (Sentence Hearing) Date of orders: 11 October 2019 Decision date: 11 October 2019 Jurisdiction: Criminal Before: Weber SC DCJ Decision: (1) The offender is sentenced to a term of imprisonment of 12 years with a non-parole period of 7 years.

(2) Pursuant to the provisions of section 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Court directs that such term of imprisonment shall commence on 30 July 2019 and that the non-parole period shall expire on 29 July 2026 with the balance of the sentence to expire on 29 July 2031. Catchwords: SENTENCING – Child sex offences – Persistent sexual abuse of a child – indecent assaults, inciting acts of indecency, carnal knowledge and sexual intercourse without consent – where offender the paternal uncle of the two victims – where offender and victims lived in the same house for the majority of the offending – where offending occurred over 5 year and 11 year periods in respect to the two victims - where victims were as young as 6 and 7 years old at the time the offending commenced SENTENCING – large majority of facts agreed by the parties - contested finding of fact in respect to counts 23, 24 and 25 – where the occurrence of the act incited not an essential element of the offence SENTENCING – Relevant factors on sentence – Objective seriousness – upper range – Aggravating factors – large number of the offences committed in the victims' home – substantial emotional harm – abuse of trust or authority – vulnerability of victims – length of time of offending conduct – Mitigating factors – no record of previous convictions – good character not available to offender – impact of protective custody – low risks of reoffending – advanced age of offender – Deterrence - No remorse or contrition SENTENCING – Penalties – Imprisonment – no standard non-parole period – accumulation, concurrency and totality – aggregate sentence appropriate – indicative sentences - where "special circumstances" warranted Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Cases Cited: Clinton v R [2009] NSWCCA 276 Dimian v R [2016] NSWCCA 223 Elhassan v R [2018] NSWCCA 118 Markarian v The Queen (2005) 228 CLR 357 R v Durocher-Yvon (2003) 58 NSWLR 581 R v Evans (unrep, 24/3/88, NSWCCA) R v Fisher (1989) 40 A Crim R 442 R v Hudson (unrep, 30/7/98, NSWCCA) R v McNaughton (2006) 66 NSWLR 566 R v Way (2004) 60 NSWLR 168 RWB v R [2010] NSWCCA 147 Category: Sentence Parties: Regina (Crown) SH (Offender) Representation: Counsel: Mr C. Evans (Crown) Mr A. Moutasallem (Offender)