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Court of Criminal Appeal 28 May 2008

Green v R

[2008] NSWCCA 112

Sexual offences
SENTENCING OFFENDER A SENIOR CHURCH ELDER YEAR OLD VICTIM GROSS BREACH OF TRUST SENTENCES NOT MANIFESTLY EXCESSIVE

Citation: Green v R [2008] NSWCCA 112
Court: NSW Court of Criminal Appeal
Date: 28 May 2008
Judge(s): Beazley JA, Johnson J, McCallum J

Background

The appellant was a 49-year-old senior elder of the Fairfield Seventh Day Adventist Church who was convicted by a jury of three counts of aggravated sexual intercourse without consent and one count of aggravated indecent assault. The offences were committed in 1995 against a 12-year-old girl who had come to know him through the church after her father married a congregation member. The victim came from an unhappy home life, and the appellant had cultivated a relationship with her by inviting her to his house and taking her on outings.

Each of the three aggravated sexual intercourse offences involved the appellant digitally penetrating the victim in his car after driving her home. The indecent assault occurred at the end of a church barbecue, when the appellant touched the victim's vagina while her younger brother sat in the back seat.

Following conviction, the District Court sentenced the appellant to a total effective term comprising a non-parole period of two years and a balance of term of one year. The appellant sought leave to appeal against sentence, arguing the sentences were manifestly excessive. No appeal was brought against conviction.

  • Whether the sentences imposed by the District Court were manifestly excessive in all the circumstances
  • Whether the sentencing judge gave insufficient weight to the appellant's subjective circumstances, including his ill health, age, prior good character, and community contributions
  • Whether the sentencing judge placed undue weight on the principle of general deterrence

Decision

The Court of Criminal Appeal granted leave to appeal but unanimously dismissed the appeal. Johnson J (with whom Beazley JA and McCallum J agreed) held that the appellant had not demonstrated any error on the part of the sentencing judge. To the contrary, Johnson J expressed the view that the sentences were lenient rather than excessive.

The Court affirmed that the maximum penalties for such offences reflect the community's abhorrence of adult sexual abuse of children, and that general deterrence carries particular weight where the offender held a position of trust over the victim. The appellant had access to the victim solely because of his senior role in the church, and rather than protect her, he exploited that access for his own sexual gratification. The Court found that the offending involved an element of grooming.

On the question of the appellant's prior good character and community works, including his establishment of a soup kitchen in the Fairfield area, the Court held that the weight to be given to those matters was tempered by the fact that his position of trust within the church was the very means by which he gained access to the victim. The sentencing judge had appropriately balanced that consideration against the positive subjective factors, including his age and poor health.

The Court found no error in the sentencing judge's treatment of general deterrence or her passing reference to sentencing statistics. The sentences fell within the proper range given the objective seriousness of the crimes and the circumstances in which they were committed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that general deterrence carries heightened significance when a sexual offence against a child involves a gross breach of trust by a person in authority over the victim.
  • A sentencing court is entitled to reduce the weight given to an offender's prior good character and community contributions where those qualities were directly connected to the position of trust through which the offending occurred.
  • In dismissing the appeal, the Court of Criminal Appeal characterised the sentences as lenient rather than manifestly excessive, reinforcing the difficulty of succeeding on manifest excess grounds in serious child sexual abuse matters.
  • Grooming conduct, such as cultivating a relationship with a vulnerable child and her family before committing offences, is a recognised aggravating feature in sentencing.
  • The significant age gap between a middle-aged offender and a 12-year-old victim was identified as a further aggravating factor, particularly in the context of a breach of trust.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J(1) (aggravated sexual intercourse without consent, maximum 20 years) and 61M(1) (aggravated indecent assault, maximum 7 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 50
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- R v BJW (2000) 112 A Crim R 1
- R v Ball [2001] NSWCCA 352
- Ryan v The Queen (2001) 206 CLR 267