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Court of Criminal Appeal 6 September 1999

Regina v Mark Andrew Grech

[1999] NSWCCA 268

Sexual offences
CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE CRIMES ACT 1900 (NSW) S 66F IMPORTANCE OF DETERRENCE

Citation: Regina v Mark Andrew Grech [1999] NSWCCA 268
Court: Court of Criminal Appeal, New South Wales
Date: 6 September 1999
Judge(s): Levine J, Carruthers AJ

Background

The applicant was employed as a team leader at a group home operated by the Department of Community Services, caring for adults with intellectual disabilities. He was convicted on two counts of having sexual intercourse with a male resident of that home, contrary to s 66F(2) of the Crimes Act 1900 (NSW). That provision makes it an offence for a person in authority over someone in a facility or programme serving people with intellectual disabilities to have sexual intercourse with that person, regardless of consent.

The complainant had been diagnosed in early childhood with autistic features and was assessed as functioning at a communication age of approximately ten years and a socialisation age of approximately eight years. The sexual relationship between the applicant and the complainant was prolonged and frequent. Both parties described it as loving and consensual, and at the time of trial the complainant expressed a continuing wish to maintain the relationship.

At sentencing, the District Court imposed concurrent sentences comprising a minimum term of three years and an additional term of two years on each count. The applicant sought leave to appeal, arguing the sentences were excessive.

  • Whether the sentences imposed for two offences under s 66F(2) of the Crimes Act 1900 were manifestly excessive.
  • Whether the alleged mutual and loving nature of the relationship between the applicant and the complainant was a mitigating factor warranting a reduction in sentence.
  • Whether the trial judge's reliance on two earlier Court of Criminal Appeal decisions, including one that was incorrectly cited, distorted the sentencing outcome to the applicant's disadvantage.
  • How the principle of deterrence applies to s 66F(2) offences, particularly where the offender held a position of care and authority.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, affirming the sentences imposed by Sides DCJ in the District Court.

The Court rejected the argument that the apparent mutuality of the relationship operated as a meaningful mitigating factor. Carruthers AJ noted that the very existence of the relationship raised serious questions about the complainant's capacity to protect his own interests. Expert evidence established that the complainant's cognitive functioning in communication and socialisation was equivalent to that of a child well under ten years of age. That level of vulnerability, the Court found, made reliance on "mutual love" as amelioration difficult to sustain.

The Court acknowledged that the trial judge had incorrectly stated the adjusted sentence in one of the two comparable cases he cited. Carruthers AJ agreed with the submission that neither prior case was a realistic comparator. However, the Court was not persuaded that the erroneous reference had actually distorted the sentencing outcome. Having weighed both the objective and subjective factors carefully, the Court concluded the sentences fell well within the available discretion.

On deterrence, the Court was emphatic. Carruthers AJ held that the deterrent element necessarily looms very large in s 66F(2) offences. The provision exists to protect those who cannot fully protect themselves from exploitation by the very people society entrusts with their care. A gross and prolonged breach of that trust, the Court held, deserved condign punishment.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Under s 66F(2) of the Crimes Act 1900 (NSW), consent is irrelevant to liability; the offence is constituted by sexual intercourse between a person in authority and a person with an intellectual disability who is under that authority.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that deterrence carries particular weight in sentencing for s 66F(2) offences, given the deliberate legislative purpose of protecting a vulnerable class of persons from exploitation by their carers.
  • A claimed mutual and loving relationship between offender and complainant does not readily operate as mitigation where the complainant's level of intellectual disability raises serious doubt about their capacity to protect their own interests.
  • No error was established in the sentencing outcome despite the trial judge's misstatement of a comparable case; what matters is whether the sentence itself fell within the proper range, not whether every reference in the remarks on sentence was accurate.
  • The Court characterised the conduct as a gross and prolonged breach of trust, reflecting the significance it attached to the power imbalance inherent in a carer-client relationship.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66F

Cases:
- Regina v Parsons (Court of Criminal Appeal, unreported, 17 December 1990)
- Regina v Moore (Court of Criminal Appeal, unreported, 12 April 1994)