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District Court 6 March 2020

R v CG

[2020] NSWDC 107

Sexual offences
SENTENCING INDECENT ASSAULT COMMITTED OVER A PERIOD OF 6 YEARS TWO CHILDREN INVOLVED OFFENDER UNCLE TO THE CHILDREN OFFENCES NOT ISOLATED

Citation: R v CG [2020] NSWDC 107
Court: District Court of New South Wales
Date: 6 March 2020
Judge: Hatzistergos DCJ

Background

The offender pleaded guilty to 12 counts of indecent assault and acts of indecency committed against two female relatives, referred to as S and T, who were his nieces. The offences occurred across two locations in New South Wales between 1979 and 1985, spanning approximately six years. Throughout the offending period, S was aged between 10 and 12 years and T was aged between 5 and 12 years.

The offender had regular and trusted access to both children through family arrangements. S's family lived nearby and the offender's household assisted with her after-school care. T's family visited the offender's home several times a year for family gatherings. The offending included repeated touching of the victims' genitals, exposing his penis and masturbating in front of them, forcing them to touch him, and, in one instance, rubbing his penis against a victim's vagina.

The plea of guilty was entered on the first day listed for trial. Both complainants provided victim impact statements detailing the lasting harm caused by the offending.

  • What sentence was appropriate for 12 counts of indecent assault and acts of indecency against two child victims, committed over six years by a person in a position of familial trust?
  • What discount, if any, should apply for the guilty plea entered on the first day of trial?
  • Whether special circumstances existed to justify a non-parole period representing less than the standard three-quarters proportion of the total sentence, pursuant to s 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW)?
  • How the aggregate sentencing provisions under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) should be applied across 12 counts?

Decision

Hatzistergos DCJ identified a number of significant aggravating factors. The offending was not isolated: it occurred repeatedly against two young children over approximately six years. The offender held a position of trust as an uncle with regular caring responsibilities, and he exploited that position to gain access to the victims. The ages of the victims at the time, some as young as five years old, the multiplicity of counts, and the lasting psychological harm evident in the victim impact statements all weighed heavily in the sentencing exercise.

In mitigation, the court accepted that the offender was of prior good character, had no prior criminal history, and was a first-time custodial offender. There was also evidence of the potential impact of the sentence on family members who depended upon him. A psychologist's report was considered in assessing prospects of rehabilitation, which the court found to be good. However, the court found only limited evidence of genuine remorse, noting the late timing of the plea and that the offender had minimised aspects of his conduct.

A discount of 10% was applied for the guilty plea, reflecting its entry on the first day of trial rather than at an earlier opportunity. The court applied the principle that a plea must be assessed in light of its utilitarian value and timing, consistent with the approach in R v Borkowski and s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The court found special circumstances existed under s 25AA, given that the offender was a first-time custodial offender who would require an extended period of supervision on parole to assist with reintegration. This justified a non-parole period of less than the three-quarters proportion that would otherwise apply under s 25AA(3). An aggregate sentence of six years was imposed, with a non-parole period of three years and eight months.

Orders Made

  • The offender was convicted of all 12 counts.
  • An aggregate sentence of six years imprisonment was imposed.
  • Non-parole period of three years and eight months, commencing 13 February 2020 and expiring 12 October 2023.
  • Additional parole-eligible period of two years and four months, from 13 October 2023 to 12 February 2026.
  • Earliest possible release date: 12 October 2023.
  • Indicative individual sentences recorded pursuant to s 53A(2)(b), ranging from 7 months (Counts 3, 4, 5, and 7) to 2 years and one month (Count 11), each reflecting the 10% plea discount.

Key Takeaways

  • A guilty plea entered on the first day of trial attracted only a 10% discount, significantly less than would have been available for an earlier plea, reflecting the limited utilitarian value of a late plea under s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Breach of a position of trust or authority is a statutory aggravating factor under s 21A(2)(ea) of the Crimes (Sentencing Procedure) Act 1999 (NSW), and the court treated the offender's exploitation of his familial role as a caregiver as a significant factor increasing the seriousness of the offending.
  • Special circumstances under s 25AA can be established where an offender is a first-time custodial offender with good rehabilitation prospects, justifying a departure from the standard non-parole period proportion to allow for adequate supervision on release.
  • Prior good character, while relevant to mitigation, carried reduced weight given the sustained and repeated nature of the offending and the limited evidence of genuine remorse.
  • Where an aggregate sentence is imposed under s 53A, the court is required to record indicative individual sentences for each count, providing transparency about how the overall term was constructed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61E(1), 76, 76A, 578A(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A, 22, 25AA, 28, 44, 53A
- Children's (Criminal Proceedings) Act 1987 (NSW), s 15A

Cases:
- R v Borkowski [2009] NSWCCA 102
- R v Gavel (2014) 239 A Crim R 469
- R v Nelson [2016] NSWCCA 130
- R v Daley [2010] NSWCCA 223
- R v PGM [2008] NSWCCA 44
- MC v R [2017] NSWCCA 316
- Mill v The Queen (1988) 166 CLR 59
- R v Holder [1983] 3 NSWLR 245
- R v Bednarz [2000] NSWCCA 553
- Helboski v R [2006] NSWCCA 168
- Dipangkear v R [2010] NSWCCA 156
- Georgopolous v R [2010] NSWCCA 246
- R v Christoff (2003) 140 A Crim R 45
- R v Fidow [2004] NSWCCA 172
- Wright v R [2006] NSWCCA 122