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District Court 3 May 2013

R v Garry SAGE

[2013] NSWDC 216

Sexual offencesPublic order & justice offences
CRIMINAL LAW PARTICULAR OFFENCE PRODUCE, POSSESS CHILD ABUSE MATERIAL DEGRADING PHOTOGRAPHS OF VICTIM RELEVANT FACTORS GRAVITY OF SEXUAL INTERCOURSE OFFENCES

Citation: R v Garry SAGE [2013] NSWDC 216
Court: District Court of New South Wales
Date: 3 May 2013
Judge: Cogswell SC DCJ

Background

The offender, a young man aged 19 at the time of the first offence, formed a relationship with a 14-year-old girl and engaged in a series of sexual acts with her over several months from September 2011. The offender was approximately five years older than the victim, who was at the lower end of the 14-to-16 age range covered by the relevant offence provision.

Police executing a search warrant on the offender's computer in January 2012 discovered photographs he had taken of the victim in sexual contexts, including images constituting child abuse material. The computer also contained 39 to 40 downloaded images of child abuse material depicting unidentified children unrelated to the victim.

After an apprehended domestic violence order was granted in February 2012 to protect the victim, the offender breached it twice: once by writing her a three-page letter, and once by collecting her from her home and speaking with her. He was arrested in April 2012, at which point he admitted to the offences in a police interview.

  • What was the appropriate sentence for four counts of sexual intercourse with a person aged 14 to 16 years, contrary to s 66C(3) of the Crimes Act 1900, each carrying a maximum of 10 years imprisonment?
  • What was the appropriate sentence for two counts of producing or possessing child abuse material, contrary to s 91H(2) of the Crimes Act 1900, also carrying a maximum of 10 years?
  • How should the sentencing court weigh aggravating factors (victim's age, breach of trust, exploitation, degrading images) against mitigating factors (guilty plea, remorse, cooperation, youth, complex psychological background)?
  • Whether special circumstances existed to justify a non-parole period substantially shorter than the standard ratio.

Decision

The court assessed the four sexual intercourse offences as falling at the lower end of the middle of the range of objective seriousness. Several aggravating features were accepted: the victim was at the younger end of the 14-to-16 age range; the offender had asserted love for the victim and occupied a position of trust that he abused; and the sexual relationship developed very rapidly, indicating a degree of exploitation.

The court gave less weight than usual to the offender's absence of prior criminal history. Because his good character was precisely what had allowed him to gain the victim's trust and exploit her, it could not operate as straightforwardly in mitigation as it might in other cases. However, the court accepted genuine remorse and contrition based on the offender's evidence, his demonstrated insight into the harm caused, and his cooperation with police. A 25 per cent discount was applied for the guilty plea.

The victim impact statement was read carefully by the court. Cogswell SC DCJ described it as articulate and clear, noting it illustrated why Parliament enacts laws of this kind, but expressly declined to treat it as a specially aggravating factor for sentencing purposes.

The court found special circumstances warranting a non-parole period significantly shorter than the standard ratio. The offender's youth, the fact that this was his first time in custody, and the identified need for substantial psychological treatment and supervision on release were the primary drivers. The court imposed a total sentence of three years, with a non-parole period of nine months rather than the standard 27 months, reflecting the court's view that a lengthy supervisory period post-release was in both the offender's and the community's interests.

Orders Made

  • Total sentence of three years' imprisonment, commencing 30 April 2013 and expiring 29 April 2016.
  • Non-parole period of nine months (substantially below the standard ratio), with release on parole on 29 January 2014.
  • Post-release supervision by the Probation and Parole Service for up to 27 months.
  • Separate orders made in respect of two counts of contravening an apprehended domestic violence order (dealt with at the same time but not fully detailed in the provided text).
  • A destruction order in relation to the child abuse material located on the offender's devices.

Key Takeaways

  • The District Court confirmed that a victim's position within the statutory age range of 14 to 16 years is a relevant factor in assessing objective seriousness: the younger the victim within that range, the graver the offence.
  • Good character carries reduced mitigating weight where it was the very quality that enabled the offender to gain access to and exploit the victim.
  • A victim impact statement may powerfully illustrate the harm underlying a statutory prohibition without constituting a specially aggravating factor that increases the sentence beyond what the objective facts warrant.
  • Special circumstances under the Crimes (Sentencing Procedure) Act 1999 s 44 can justify a markedly shortened non-parole period where the offender is young, has no prior custodial experience, and requires extended psychological treatment and supervision following release.
  • Under s 66C(3) of the Crimes Act 1900, "sexual intercourse" encompasses acts beyond penile-vaginal intercourse; in this case, the insertion of an object into the victim's rectum, photographed by the offender, was charged and sentenced as a distinct count of sexual intercourse.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66C(3), 91H(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 50
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (High Risk Offenders) Act 2006 (NSW)

Cases:
- R v Lee [2010] NSWCCA 88