AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Local Court 23 April 2009

DPP v Gumbleton

[2009] NSWLC 8

Sexual offences
AGGRAVATED INDECENT ASSAULT SPORTS COACH BREACH OF TRUST OBJECTIVE SERIOUSNESS ELDERLY OFFENDER WHETHER SENTENCE FULL

Citation: DPP v Gumbleton [2009] NSWLC 8
Court: Local Court of New South Wales (Wagga Wagga)
Date: 23 April 2009
Judge(s): Magistrate Dare SC

Background

The offender, a 74-year-old man with a long-standing reputation as an athletics coach, was convicted of two counts of aggravated indecent assault against a 15-year-old female hockey player (referred to in the judgment as AR). AR had sought coaching from the offender to improve her athletic performance and, separately, had received massage treatment from him for shin splints, a painful lower-leg condition. Her parents had been shown a demonstration of the proposed massage technique, which focused on the area below the knee.

On two occasions during the charged periods, the offender moved beyond the demonstrated technique. He commenced massaging above the knee, progressed to the inner thigh, and on each occasion placed his fingers beneath the complainant's running shorts and underwear, rubbing the lips of her vaginal area. The complainant told him on each occasion that he was going too high, and he withdrew his hand. She believed throughout that the touching was related to her shin-splints treatment, and the court accepted that she both believed and trusted him.

The Director of Public Prosecutions prosecuted the matter. The first charge (relating to conduct in 2007) was brought under s 61M(2) of the Crimes Act 1900 because the complainant was under 16. The second charge (relating to conduct in 2008, by which time AR was 16) was brought under s 61M(1) and (3)(c), relying on the circumstance that she was under the offender's authority.

  • Whether the objective seriousness of the offences warranted a custodial sentence, given the offender's age of 74 years
  • Whether the sentence, if custodial, should be served on a full-time basis or suspended
  • Whether the offender's good character and lack of prior convictions could be taken into account as a mitigating factor, given the statutory restriction in s 21A(5A) of the Crimes (Sentencing Procedure) Act 1999 for child sexual offences
  • Whether hardship to third parties was a relevant consideration in determining the sentence
  • What conditions were appropriate for the Apprehended Personal Violence Order (APVO), and whether all existing restrictions were necessary for the complainant's protection

Decision

The court assessed the criminality as falling in the middle-to-lower end of the scale for offences of this type. There was no penetration, and the offender desisted when told to stop. Even so, the court found the conduct was deliberate and plainly indecent. The breach of trust arising from the coach-athlete relationship was identified as a clear aggravating feature, consistent with established Court of Criminal Appeal authority concerning coaches and others in positions of authority over young people.

On the question of good character, the court applied s 21A(5A) of the Crimes (Sentencing Procedure) Act 1999. That provision prevents a court from treating good character or lack of prior convictions as a mitigating factor in child sexual offences where those characteristics assisted the offender in committing the offence. The court was satisfied that the offender's standing and reputation as a coach were precisely what gave him access to the complainant and earned her trust, meaning good character could not be weighed in his favour.

Despite the offender's age and the availability of non-custodial options, the court concluded that no penalty other than imprisonment was appropriate after considering all alternatives. However, the court was satisfied that the sentence could be suspended. The court imposed concurrent 12-month terms of imprisonment, wholly suspended, with the offender released on good behaviour bonds for 12 months.

On the APVO, the court noted the statutory obligation under s 20(3) of the Crimes (Domestic and Personal Violence) Act 2007 to include only those prohibitions and restrictions necessary for the protected person's safety. The court reviewed the existing orders and retained only those it considered necessary for AR's protection.

Orders Made

  • The offender was convicted on each of the two counts under s 61M(1) and s 61M(2) of the Crimes Act 1900
  • On each count, sentenced to 12 months' imprisonment, wholly suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999
  • Released on good behaviour bonds for 12 months, on conditions requiring good behaviour, appearance before the court if called upon, and notification to the court registry of any change of residential address
  • Final Apprehended Personal Violence Order made for 12 months, comprising Mandatory Order 1 and Additional Orders 4 and 7 only

Key Takeaways

  • A position of trust arising from a coach-athlete relationship constitutes a recognised aggravating factor in child sexual assault offences, consistent with Court of Criminal Appeal authority addressing athletics and swimming coaches.
  • Under s 21A(5A) of the Crimes (Sentencing Procedure) Act 1999, good character and absence of prior convictions cannot be treated as mitigating factors in child sexual offences where those attributes assisted the offender in gaining access to or the trust of the victim.
  • Advanced age alone does not preclude a custodial sentence for offences of this nature, though it may remain relevant to whether that sentence is served on a full-time basis.
  • Wholly suspended sentences remain available in the Local Court for offences at the lower end of the seriousness scale, provided the sentencing court is satisfied that imprisonment is nonetheless the appropriate penalty type.
  • When making an APVO, s 20(3) of the Crimes (Domestic and Personal Violence) Act 2007 requires the court to limit prohibitions and restrictions to those genuinely necessary for the protected person's safety, rather than imposing all available conditions as a matter of course.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(1), 61M(2), 61M(3)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 12, 21A(2)(k), 21A(5A), 21A(5B), 21A(6), 44
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 4, 10, 20(3)

Cases
- Regina v AEL (2005) NSWCCA 148
- Regina v Byrne (1998) 104 A Crim R 456
- Regina v Edwards (1996) 90 A Crim R 510
- Regina v Hopley [2008] NSWCCA 105
- Regina v King (2004) 150 A Crim R 409
- Regina v King (Unrep) NSWCCA 20/8/1991
- Regina v Lumsden (Unrep) NSWCCA 31/7/1996
- Regina v MA (2004) 145 A Crim R 434
- Regina v Muldoon (Unrep) NSWCCA 13/12/1990
- Regina v Wirth (1976) 145 SASR 219
- Ryan v The Queen (2001) 206 CLR 267
- R v Zamagias [2002] NSWCCA 17
- Regina v Barlow [2008] NSWCCA 96