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District Court 8 June 2018

R v Geoffrey Brown

[2018] NSWDC 146

Sexual offences
CRIMINAL LAW SENTENCING INDECENT ASSAULT CHILD VICTIM LONG DELAY CONFLICTING PURPOSES OF SENTENCING VICTIM IMPACT

Citation: R v Geoffrey Brown [2018] NSWDC 146
Court: District Court of New South Wales
Date: 8 June 2018
Judge: Haesler SC DCJ

Background

The offender, a man aged 75 at the time of sentencing, pleaded guilty to two counts of aggravated indecent assault against his four-year-old granddaughter. The offences occurred in October 1997 when the offender was 54 years old. The victim disclosed the conduct to her mother shortly after it occurred, but the matter was not reported to police until 2016 after the victim received counselling and spoke to her father about formally reporting it.

The offences involved the offender, while alone with the child, removing her underwear and touching her genitals, and then taking her to another room where he made her hold and manipulate his penis. The offender initially made some admissions to family members and, in a police interview in 2016, admitted to one of the acts while denying recollection of the other.

The guilty plea was entered late, only the week before the matter was listed for trial for a second time. The original trial had not proceeded in 2017. A pseudonym order applied to protect the victim's identity, and as a consequence also concealed the offender's identity in the published version of the judgment.

  • What sentence is appropriate for serious child sexual offences committed approximately 20 years before sentencing, where the offender is aged, in ill health, and has not reoffended?
  • How should sentencing standards applicable at the time of the offence be applied, given that current sentencing levels are higher?
  • What weight should be given to general deterrence, denunciation, and rehabilitation when a lengthy delay separates the offence from sentencing?
  • How should the court balance the gravity of the offending against the subjective hardship of imprisonment for an elderly, unwell offender?
  • Whether special circumstances existed to justify a non-parole period that departs from the statutory norm.

Decision

Haesler SC DCJ found that the offences were objectively serious and that full-time imprisonment was the only appropriate outcome. The victim was four years old, entirely defenceless, and the offender held a position of trust as her grandfather. The court accepted that the victim had suffered lasting psychological harm, as described in her Victim Impact Statement. Both counts were treated as equally serious despite differing in nature.

The court applied the well-established principle that an offender must be sentenced according to the standards prevailing at the time of the offending, not current higher sentencing levels. Drawing on statistical data from the Judicial Commission and a body of appellate case law, Haesler SC DCJ found that sentencing for comparable offences in the late 1990s reflected a lower regime than exists today, which informed the court's approach to the indicative sentences.

Central to the sentencing reasoning was the principle from R v Moon, cited with approval across multiple Court of Criminal Appeal decisions, that where there has been a substantial delay and the offender is rehabilitated with no reoffending, "it is the fact of imprisonment rather than the length of the sentence which will be of greatest significance to punish the offender and denounce his conduct." The court found the offender had led an otherwise blameless life and that custody would have a considerable adverse impact on him given his age and health.

The court found special circumstances existed, justifying a non-parole period shorter than the statutory default proportion. An aggregate sentence of two years imprisonment with a non-parole period of six months was imposed. The court acknowledged the victim's request for a gaol sentence but noted that victim opinions, while to be considered, cannot determine sentencing outcomes, and that a victim should not measure her injury against the punishment imposed.

Orders Made

  • Conviction recorded on each count.
  • Indicative sentence on count one: 1 year 7 months imprisonment.
  • Indicative sentence on count two: 1 year 9 months imprisonment.
  • Aggregate sentence of 2 years imprisonment imposed, with a non-parole period of 6 months.
  • Sentences to date from 7 June 2018, with eligibility for release to parole on 6 December 2018.
  • Sentence to expire 6 June 2020.
  • Copies of the medical reports (Dr Westacott and Dr Ashkar) to accompany the warrant.

Key Takeaways

  • The District Court confirmed that offenders sentenced for historical sexual offences must be sentenced by reference to sentencing standards prevailing at the time of the offence, not current higher benchmarks, consistent with R v MJR and AJB v R.

  • Where a substantial delay separates offending from prosecution and the offender has not reoffended, the fact of imprisonment itself carries the primary punitive and denunciatory weight, rather than the length of the sentence imposed (following R v Moon).

  • A victim's request for a custodial sentence is a matter to be considered but cannot determine the sentencing outcome; nor should a victim equate the severity of her injury with the length of the punishment actually imposed.

  • Special circumstances allowing a non-parole period below the standard proportion can be established where the offender is elderly, in poor health, and the hardship of custody is likely to be acute.

  • Notwithstanding mitigating factors including delay, age, ill health, and rehabilitation, the court affirmed that indecent assaults of this nature by a grandfather on a four-year-old grandchild could only result in full-time imprisonment, both at the time of the offence and at the time of sentencing.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes Act 1900 (NSW), ss 61M(2), 578A
- Evidence Act 1995 (NSW)

Cases
- AJB v R [2007] NSWCCA 51; 169 A Crim R 32
- Barbaro v The Queen (2014) 253 CLR 58
- Burrell (2000) 114 A Crim R 207
- Clarkson [2011] VSCA 152
- Devaney [2012] NSWCCA 285
- Hili v The Queen (2010) 242 CLR 520
- Hopkins [2010] NSWCCA 105
- JDX [2017] NSWCCA 9
- Kutchera [2007] NSWCCA 121
- Markarian v The Queen (2005) 228 CLR 357
- Mill v The Queen (1988) 166 CLR 59
- Nguyen v The Queen (2016) 256 CLR 656
- PH v R [2009] NSWCCA 161
- PWB [2011] NSWCCA 84
- Queen v Pham (2015) 265 CLR 55
- R v Gavel [2014] NSWCCA 56
- R v MAK [2006] NSWCCA 381
- R v MJR [2002] NSWCCA 129; 54 NSWLR 368
- R v Moon [2000] NSWCCA 534; 117 A Crim R 497
- R v Todd (1982) 2 NSWLR 517