AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 17 April 2020

R v PG

[2020] NSWDC 144

Sexual offences
CRIME CHILD SEX OFFENCES CHILD ABUSE MATERIAL SEXUALLY TOUCH CHILD <10

Citation: R v PG [2020] NSWDC 144
Court: District Court of NSW
Date: 17 April 2020
Judge(s): Priestley SC, DCJ

Background

The offender, a man of approximately 67 years old, appeared for sentencing on four state offences and one Commonwealth offence arising from conduct between 24 November 2018 and 31 January 2019. Two further state offences were placed on a Form 1 (a procedural mechanism allowing related offences to be taken into account when sentencing for the primary offence without recording a separate conviction). The offender had pleaded guilty to all matters.

The offending occurred predominantly at a Seventh-day Adventist church, where the offender had been invited by the father of the primary victim, an 8-year-old girl. The offences included sexual touching of the child victim, production and possession of child abuse material involving that victim, possession and accessing of child abuse material more broadly, and use of a carriage service (the internet or telephone network) to access child abuse material.

The offender had no prior criminal history. Psychological assessment indicated he met the criteria for paedophilic disorder and a relapsing adjustment disorder, though the psychologist assessed his risk of sexual reoffending as low to below average.

Legal Issues

  • Whether the offending was aggravated by an abuse of a position of trust or authority (s 21A(2)(k) Crimes (Sentencing Procedure) Act 1999 (NSW)), and whether the victim's age added further to its seriousness (s 21A(2)(l))
  • Whether the offender's good character had assisted in the commission of the offending under s 21A(5A), which would diminish the mitigating weight of that character
  • The appropriate objective seriousness range for each offence, including the significance of the material being predominantly cartoons and the absence of dissemination
  • How the standard non-parole periods for the sexual touching (s 66DA) and production (s 91G) offences should inform the sentence, given the offences were assessed in the low range
  • How the totality principle and the Form 1 procedure should be applied across five discrete charges with two further Form 1 matters
  • Whether special circumstances existed to justify a departure from the usual ratio between the non-parole period and the head sentence

Decision

Issue 1: Aggravating factors (trust, authority, and victim vulnerability)

The court found the offending was aggravated by a breach of trust. The offender was a friend of the victim's father, had been welcomed into a place of worship, and exploited an environment where a young child would be particularly unsuspecting (at [6]). The court did not find the offender occupied a position of authority in the formal sense (at [6]). The victim's age added to the seriousness of the non-s 66DA offences, where the under-10 element is not itself an ingredient of the charge, but the court gave the vulnerability provision little independent work to do in relation to the sexual touching charge itself (at [5]).

Issue 2: Good character under s 21A(5A)

The court rejected the Crown's submission that the offender's good character had assisted in the commission of the offending. Nothing in the agreed facts demonstrated that his standing or reputation had enabled access to the victim. The invitation to the church could have been motivated by reasons entirely unconnected with his character (at [8]). Accordingly, his good character retained its mitigating weight.

Issue 3: Objective seriousness of each offence

The court assessed the sexual touching as high in the low range. Although the touching was brief (approximately five seconds), was over clothing, and was not skin-on-skin contact, its brazenness and the rough handling of the child elevated it within that range (at [11]). The production of child abuse material involving the victim (sequence 5) was also assessed in the low range, given limited detail in the agreed facts about the nature or number of images (at [19]). Possession of images found on the offender's phone (sequence 3) was placed in the low range, partly because the offender denied taking the photographs and that denial was not contradicted on the agreed facts (at [18]). The possession of more than 10,000 images found at the offender's home (sequence 8), predominantly cartoons but including depictions of babies being penetrated by adults, was assessed as just below the mid-range (at [23]). The Commonwealth carriage-service-access offence (sequence 7) was assessed in the low range given the absence of detail about the material accessed and its predominantly cartoon nature (at [24]).

On the absence-of-dissemination point, the court accepted the Crown's submission: the fact that material was not disseminated does not make an offence less serious, it simply means it is not more serious than the baseline of production or possession alone (at [20]).

Issue 4: Sentencing methodology, standard non-parole periods, and totality

Both the sexual touching and production offences carry standard non-parole periods (8 years and 6 years respectively). Because both were assessed below the midpoint of objective seriousness, those benchmarks did not apply directly, but the court treated them as legislative guideposts indicating parliamentary seriousness, consistent with the High Court's approach in Muldrock (at [29]). The court applied a 25% guilty-plea discount across all matters (at [41]). Special circumstances were conceded and accepted, given this was the offender's first period of custody, justifying a longer supervision period on release (at [60]). Following the approach in Cahyadi, the court structured concurrent and cumulative components to reflect the overall criminality without double-counting (at [55]-[59]).

Issue 5: Final sentences

For the Commonwealth offence, the court imposed 12 months imprisonment with no non-parole period, running from 31 January 2019 (at [69]-[70]). For the state offences, the court imposed an aggregate sentence of 4 years with a non-parole period of 2 years, commencing 31 January 2020, producing an overall effective head sentence of 5 years and a minimum total custody of 3 years (at [75]).

Orders Made

  • The offender was convicted of all charges in the Crown sentence summary.
  • For the Commonwealth offence (sequence 7): 1 year imprisonment, dated from 31 January 2019, expiring 30 January 2020. No non-parole period was set.
  • For the state offences: an aggregate sentence of 4 years imprisonment, dated from 31 January 2020, expiring 30 January 2024.
  • Non-parole period of 2 years for the aggregate state sentence, dated from 31 January 2020, expiring 30 January 2022.
  • Earliest date eligible for release: 30 January 2022.
  • The Form 1 matters (sequences 2 and 6) were taken into account in sentencing for the s 66DA charge.

Key Takeaways

  • A breach of trust can aggravate child sexual offences even where the offender did not hold a formal position of authority. The District Court found that being a trusted friend of the victim's father, welcomed into a place of worship, was sufficient to constitute a breach of trust under s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (at [6]).

  • Under s 21A(5A), good character only loses its mitigating value if the facts affirmatively demonstrate that it assisted in the commission of the offending. Where the agreed facts do not support that inference, good character remains a mitigating factor even in serious child sexual offending (at [8]).

  • The absence of dissemination of child abuse material is not a mitigating factor. The court confirmed, following Turner v R, that non-dissemination simply means an offence is not aggravated further, not that it is less serious than the baseline of production or possession (at [20]).

  • Predominantly cartoon child abuse material can still be assessed near the mid-range of seriousness where the content depicts extreme acts, including the sexual abuse of infants, and exceeds 10,000 images. The court drew a distinction between the nature of the images and their fictional form, declining to treat the cartoon character of the material as determinative of low seriousness (at [23]).

  • Where a first-time offender receives consecutive Commonwealth and state sentences, the absence of a non-parole period on the Commonwealth term can be factored into the special-circumstances analysis for the aggregate state sentence, permitting a proportionally longer parole period to facilitate supervised rehabilitation (at [75]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Commonwealth Criminal Code Act 1995 (Cth)
- Commonwealth Crimes Act 1914 (Cth)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- AH v R [2015] NSWCCA 51
- Minehan v R [2010] NSWCCA 140
- Turner v R [2017] NSWCCA
- Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Muldrock v The Queen [2011] HCA 39
- Xiao v R [2018] NSWCCA 4
- R v PGM [2008] 172
- Taylor v R [2020] NSWCCA 46
- R v Gavel [2014] NSWCCA 56
- R v Porte [2015] NSWCCA 174
- R v Holder [1983] 3 NSWLR 245
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41