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District Court 9 September 2019

R v GS

[2019] NSWDC 509

Sexual offences
SENTENCING SEXUAL OFFENDING PATERNAL GRANDFATHER OFFENDER MULTIPLE OFFENCES AND COMPLAINANTS

Citation: R v GS [2019] NSWDC 509
Court: District Court of New South Wales
Date: 9 September 2019
Judge: Hatzistergos DCJ

Background

The offender, a paternal grandfather referred to as GS, pleaded guilty to ten counts of indecent assault of a child under 16 years of age, contrary to section 61M(2) of the Crimes Act 1900 (NSW). The two victims, referred to as A and B, were his granddaughters, aged approximately 4 and 2 years old at the commencement of the offending.

The offending occurred over roughly 12 months from mid-2017 to April 2018. GS repeatedly engaged the children in a game he called "Doctors," which involved all parties undressing and taking turns as "doctor" and "patient." During this game, on approximately ten occasions, GS touched each child's genitalia and directed each child to touch his erect penis.

The offending came to light after the victims' aunt raised concerns with the family based on her own prior experience of sexually inappropriate behaviour by GS. Following a disclosure by the elder child to her mother, the victims' father confronted GS by telephone and GS admitted the conduct. GS then attended Campbelltown Police Station, made further admissions, and participated in a recorded interview. During that interview he also acknowledged some prior unspecified incidents involving his daughter "many years ago."

  • What was the objective seriousness of each offence, having regard to the victims' ages, the breach of trust involved, and the nature of the physical contact?
  • What weight, if any, should be given to mitigating factors including the guilty plea, the offender's age, his health, and his social and cultural circumstances?
  • Whether the offender's social and cultural background meaningfully supported findings of remorse and prospects for rehabilitation.
  • How should the totality principle (avoiding a crushing aggregate sentence while reflecting the full criminality) be applied across ten separate offences?
  • What discount was appropriate for the guilty plea and what departure, if any, from the standard non-parole period was warranted?

Decision

His Honour found that each offence involved a significant breach of trust, given GS's role as the children's paternal grandfather and carer. The extremely young ages of the victims (the youngest as young as 2 years old) placed the offending toward the more serious end of the spectrum. The conduct of directing the children's hands to touch his erect penis was identified as an element of coercion. The normalisation strategy of framing repeated offending as a game was also treated as a feature that aggravated the overall criminality.

In assessing subjective matters, the court accepted that GS's early guilty plea, his cooperation with police, and his lack of prior convictions were mitigating factors. A 35% discount was applied to reflect the utilitarian value of the plea. His Honour also considered the offender's age, health difficulties, and the effect that imprisonment would have on him as an elderly man, finding special circumstances warranting a departure from the standard non-parole period ratio.

The court addressed the relevance of the offender's social circumstances to findings of remorse and prospects for rehabilitation. His Honour treated these matters with some caution, noting the disclosure of prior incidents involving his own daughter, albeit undetailed, as a complicating factor in assessing genuine remorse and rehabilitation prospects. The court acknowledged reports suggesting certain psychological traits and indicators in GS, though no formal diagnosis was made on the available evidence.

Applying the totality principle, His Honour imposed an aggregate sentence rather than accumulating individual terms, to ensure the overall punishment reflected the full criminality of the offending without producing a result that was disproportionately crushing given the offender's age and health.

Orders Made

  • Aggregate term of imprisonment of 8 years and 6 months
  • Non-parole period of 5 years, commencing 22 August 2019 and expiring 21 August 2024
  • Additional term of 3 years and 6 months, from 22 August 2024 to 21 February 2028
  • Eligibility for release on parole on 21 August 2024, subject to a decision of the State Parole Authority

Indicative sentences per sequence (each incorporating the 35% plea discount):
- Sequence 9: 1 year 5 months
- Sequence 10: 1 year 5 months
- Sequence 11: 2 years 4 months
- Sequence 12: 2 years 4 months
- Sequence 13: 1 year 7 months
- Sequence 14: 1 year 11 months
- Sequence 15: 2 years 7 months
- Sequence 16: 2 years 7 months
- Sequence 17: 1 year 3 months
- Sequence 18: 2 years 7 months

Key Takeaways

  • A breach of a position of trust under section 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 (NSW) was established on the facts and was conceded by the defence; the familial relationship of grandfather and carer was sufficient to ground this aggravating factor across all ten counts.
  • The very young ages of the victims (as young as 2 years old) placed the offending toward the more serious end of the range for indecent assault under section 61M(2), even in the absence of penetration or escalation to genital-to-genital contact.
  • Where an offender frames repeated sexual abuse as a children's game, that conduct is properly treated as an attempt to normalise the offending and is relevant to the assessment of objective seriousness.
  • A prior undisclosed history of sexual misconduct involving the offender's own daughter, even where details were not provided, was a relevant consideration limiting the weight otherwise available to claims of remorse and rehabilitation.
  • The District Court applied the totality principle by imposing an aggregate sentence, reflecting the need to account for the cumulative criminality of ten offences while avoiding a disproportionate outcome given the offender's age and health.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 61M
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 23, 47, 54, 54B

Cases:
- AK v R [2016] NSWCCA 238
- Corby v R [2010] NSWCCA 146
- Lloyd v R [2017] NSWCA 303
- MC v R [2017] NSWCCA 316
- Panetta v R [2016] NSWCCA 85
- R v PGM [2008] NSWCCA 172
- R v Sopher (1993) 70 A Crim R 570
- R v Sukkar [2006] NSWCCA 92