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District Court 17 April 2009

R v Mabbott, Glenn

[2009] NSWDC 133

Sexual offences
CRIMINAL LAW SENTENCING HISTORIC SEXUAL ASSAULTS PEADOPHILE CONDUCT INSTANT CHARGES PRE DATE CURRENT SENTENCED MATTERS

Citation: R v Mabbott, Glenn [2009] NSWDC 133
Court: District Court of New South Wales
Date: 17 April 2009
Judge(s): Nicholson SC DCJ

Background

The offender, a self-confessed paedophile, appeared for sentencing on four counts of sexual intercourse with a child under ten years of age, together with several related Form 1 matters. The offences were committed against a seven to eight year old girl between January 1999 and January 2000. The offender had insinuated himself into the complainant's family by presenting as the boyfriend of a relative, using that position to gain access to the child.

The offending involved digital penetration, penile-vaginal penetration, cunnilingus, and acts of indecency. The penile-vaginal penetration was identified as the most serious count. The victim provided a statement describing lasting physical and psychological harm.

The offender had previously been sentenced in 2001 by another judge for a separate series of paedophile offences committed against a different child victim during a later period. The current charges pre-dated those earlier sentenced matters, creating the unusual circumstance of sentencing for earlier offending after a substantial sentence was already being served.

  • How should objective seriousness be assessed for multiple historic sexual offences against a young child?
  • What discount, if any, was warranted for the offender's guilty pleas?
  • How should the principle of totality apply when sentencing for offences that pre-date matters already being served?
  • What weight should be given to delay between offending and sentencing?
  • What weight should be given to rehabilitation progress, including participation in the CUBIT sex offenders program, against an assessed high risk of reoffending?
  • Whether special circumstances existed to justify adjusting the standard ratio of non-parole period to total sentence?
  • How should the primary sentencing objective of community protection be balanced against other considerations?

Decision

The court found the offending to be serious at the higher end of the range. The most grave single act was the penile-vaginal penetration of a seven year old child, an offence the court described in terms reflecting its gravity and the lasting harm caused to the complainant. The additional counts and Form 1 matters demonstrated a pattern of repeated exploitation during a defined period.

The court applied a 25 percent discount across the sentences to reflect the guilty pleas, reducing what would otherwise have been individual sentences of five to seven years on the principal counts. The court identified the penile-vaginal penetration count as the head sentence, imposing a term of seven years and six months with a non-parole period of three years.

On the question of rehabilitation, the court acknowledged that the offender had made significant progress in the CUBIT sex offender treatment program. However, the court expressed concern that the offender's use of program terminology appeared to minimise his offending and reduce genuine insight, rather than demonstrating authentic acceptance of responsibility. The court assessed the risk of reoffending as high.

Applying the totality principle, all sentences were ordered to run concurrently with each other and with the sentences already being served. The court structured the non-parole periods to align with the existing parole eligibility date of 22 July 2010. The total effective non-parole period from the commencement of the earlier sentence in 2001 would amount to nine years, with a total sentence of thirteen years and six months.

Orders Made

  • Count 1 (penile-vaginal penetration, age 7): 7 years 6 months imprisonment, non-parole period of 3 years commencing 23 July 2007, expiring 22 July 2010; balance of term expiring 22 January 2015. Concurrent with sentences already being served.
  • Second committed-for-sentence matter (digital penetration, age 7): 3 years 9 months imprisonment, non-parole period of 2 years commencing 23 July 2007, expiring 22 July 2009; balance of term expiring 22 April 2011. Concurrent.
  • Third committed-for-sentence matter (cunnilingus, age 7): 4 years 6 months imprisonment, non-parole period of 2 years 6 months commencing 23 July 2007, expiring 22 January 2010; balance of term expiring 22 January 2012. Concurrent.
  • Fourth committed-for-sentence matter (digital penetration, age approximately 8): 3 years 9 months imprisonment, non-parole period of 2 years commencing 23 July 2007, expiring 22 July 2009; balance of term expiring 22 April 2011. Concurrent.
  • Form 1 matters taken into account in sentencing.
  • First eligible for parole: 22 July 2010.
  • Total effective sentence: 13 years 6 months; total effective non-parole period: 9 years (from 23 July 2001).

Key Takeaways

  • The District Court confirmed that community protection stands as the primary focus in sentencing for serious paedophile offending, to be weighed against, but not displaced by, rehabilitation and other subjective factors.
  • Where an offender is already serving a sentence for related paedophile conduct, the totality principle requires the court to consider the overall criminality and the cumulative effect of concurrent sentences rather than simply imposing further cumulative terms.
  • Rehabilitation progress in a structured sex offender program carries mitigatory weight, but the court scrutinised whether reliance on program language masked genuine insight; apparent minimisation of offending reduced the weight given to that progress.
  • A 25 percent discount for guilty pleas was applied across each count, illustrating the court's approach to quantifying the utilitarian value of the plea in a case involving a vulnerable child victim where the evidence against the offender was strong.
  • Delay between historic offending and sentencing was identified as a relevant factor requiring separate assessment, including its impact on the offender's circumstances and the proceedings generally.

Legislation and Cases Referenced

Legislation
- Crimes Act (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 37

Cases
- R v Gladue [1999] 1 SCR 688
- R v Cuthbert (1967) 2 NSWR 329
- R v Hayes [1984] 1 NSWLR 740
- The Queen v Zappalla (unreported, NSW CCA)
- Walden v Hensler (1987) 163 CLR 561
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (2004) 61 NSWLR 305
- R v Ellis (1986) 6 NSWLR 603
- R v Pearce (1998) 194 CLR 610