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District Court 15 March 2019

R v George Young (a pseudonym)

[2019] NSWDC 55

Sexual offences
CRIMINAL SENTENCE SEXUAL INTERCOURSE CHILD UNDER 10 GROOM CHILD UNDER 14 STEP FATHER

Citation: R v George Young (a pseudonym) [2019] NSWDC 55
Court: District Court of New South Wales
Date: 15 March 2019
Judge: Haesler SC DCJ

Background

The offender, referred to by the pseudonym George Young, was the stepfather of the complainant (referred to by the pseudonym Helen Hulme), who was born in 2007 and was under ten years of age throughout the relevant period. The offending took place at the family home in the Wollongong area and spanned approximately two and a half years, beginning when Helen was eight years old.

The offending came to light on 13 April 2018 when Helen disclosed to her mother that the offender had masturbated in front of her and made her suck his nipple. After Helen's mother sent the offender a text message about the disclosure, he returned home, apologised, and then voluntarily contacted Wollongong Police to request their attendance. He made immediate admissions to police, including admissions to conduct that Helen had not yet disclosed in her own electronically recorded statement.

Seven charges were brought against the offender, covering sexual intercourse with a child under ten, grooming a child under fourteen for sexual activity, and five counts of aggravated acts of indecency with a child under sixteen. Three additional matters were listed on a Form 1 (matters taken into account at sentencing without separate conviction). The offender entered very early guilty pleas to all charges and accepted responsibility for the Form 1 matters.

  • What was the appropriate objective seriousness of the offences, having regard to their nature, duration, and the circumstances of the offending?
  • What weight should be given to the offender's immediate admissions and very early guilty pleas, including admissions to conduct not yet known to police?
  • How should the so-called "Ellis discount" (a discount for admissions that reveal previously unknown offending) apply alongside the utilitarian discount for a guilty plea?
  • What role did mental illness, remorse, and other subjective factors play in the sentencing assessment?
  • How should the principles of accumulation, concurrency, and totality operate in constructing an aggregate sentence?

Decision

Haesler SC DCJ described the offending as objectively very serious. The conduct involved a sustained course of sexual exploitation of a very young child by a person in a position of trust and authority, with deliberate grooming through exposure to pornography and sex toys. The offender's own admissions confirmed his awareness that his behaviour was wrong and was escalating, and that his actions were motivated entirely by his own sexual gratification.

The court acknowledged significant mitigating factors. The offender made immediate admissions on the day of disclosure, including to the most serious offence (sexual intercourse with a child under ten), which had not been revealed by the child herself. His conduct in voluntarily contacting police was treated as reflecting genuine remorse and as having spared the child from re-interview and from giving evidence in court. The court applied both the Ellis discount (for admissions disclosing previously unknown guilt) and the standard 25% utilitarian discount for the very early guilty pleas.

The court also considered the offender's mental health, as documented in a report from Dr Furst, and his subjective circumstances, including his remorse. However, these considerations did not displace the need for a substantial custodial sentence given the gravity of the offending. The court found special circumstances justifying an adjustment to the standard ratio between the non-parole period and the balance of sentence, reflected in the indicative sentences.

Having applied the principles of accumulation, concurrency, and totality across seven separate offences and three Form 1 matters, the court imposed an aggregate sentence of seven years' imprisonment with a non-parole period of four years and four months, dating from the date of arrest.

Orders Made

  • Convicted on all seven counts.
  • Indicative sentence for offence 1 (sexual intercourse, child under 10, s66A Crimes Act 1900, including three Form 1 matters): 4 years' imprisonment, indicated non-parole period 2 years 4 months.
  • Indicative sentence for offence 2 (grooming child under 14, s66EB(3)): 3 years' imprisonment, indicated non-parole period 1 year 9 months.
  • Indicative sentences for offences 3 to 7 (each: aggravated act of indecency, s61O(1)): 2 years 3 months' imprisonment each.
  • A finding of special circumstances was made in respect of the aggregate and indicative sentences.
  • Aggregate sentence of 7 years' imprisonment, with a non-parole period of 4 years 4 months, commencing 13 April 2018.
  • Eligible for parole consideration from 12 August 2022; sentence expires 12 April 2025.
  • Dr Furst's report to accompany the warrant.

Key Takeaways

  • A stepfather who voluntarily contacts police, makes immediate and full admissions (including to conduct not yet disclosed by the victim), and pleads guilty at the earliest opportunity may receive both an Ellis discount and a standard utilitarian plea discount, provided the court is satisfied that the admissions genuinely revealed previously unknown offending.
  • Deliberate grooming of a child through exposure to adult pornography and sex toys was treated as a distinct and serious aggravating feature of the overall course of conduct, not merely incidental background to the primary offences.
  • The District Court confirmed that the offender's position of trust and authority as a stepfather, and the sustained nature of the offending over approximately two and a half years, elevated the objective seriousness of each offence within its category.
  • Where an offender's admissions spare a young complainant from re-interview and from giving evidence at trial, those practical protective consequences can carry weight as genuine indicators of remorse in the sentencing exercise.
  • In constructing an aggregate sentence across multiple serious offences, the court applied the totality principle to ensure the combined sentence remained proportionate to the overall criminality, while still reflecting the individual gravity of each count.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 61O(1), 66A, 66EB(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes Act 1900 (NSW), s 578A (publication restriction)

Cases
- Alvares v R (2011) 209 A Crim R 297
- Attorney General's Application No. 1 (2002) 56 NSWLR 146
- Butters v R [2010] NSWCCA 1
- Cameron v The Queen (2002) 209 CLR 339
- Clarkson [2011] VSCA 152
- CMB v Attorney General for NSW [2015] HCA 9; (2015) 256 CLR 346
- Courtney v R [2007] NSWCCA 195
- DPP (NSW) v Mawad [2015] NSWCCA 227
- DPP v De La Rosa [2010] NSWCCA 194
- Hameed v R (2001) 123 A Crim R 213
- Hili v The Queen (2010) 242 CLR 520
- Hoare v The Queen (1989) 167 CLR 348
- Imbornone v R [2017] NSWCCA 144
- Markarian v The Queen (2005) 228 CLR 357
- Mill v The Queen (1988) 166 CLR 59
- Muldrock v The Queen (2011) 244 CLR 120
- Munda v Western Australia (2013) 249 CLR 600
- Newman v R [2018] NSWCCA 208
- Nguyen v The Queen [2016] HCA 17
- Panetta v R [2016] NSWCCA 85
- Weininger v The Queen (2003) 212 CLR 629