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District Court 8 May 2020

R v GC

[2020] NSWDC 186

Sexual offences
SENTENCING CHILD SEX OFFENCES MULTIPLE VICTIMS PERSISTENT SEXUAL ABUSE OF A CHILD RELEVANT PRINCIPLES OF SENTENCING OBJECTIVE SERIOUSNESS

Citation: R v GC [2020] NSWDC 186
Court: District Court of New South Wales
Date: 8 May 2020
Judge: Weber SC DCJ

Background

The offender was the uncle by marriage of three victims, referred to as DG, EG and JG. The victims regularly stayed at his home on weekends and during school holidays, and the offending took place predominantly in that domestic setting, though also in the victims' own home and in the offender's car and workplace.

A jury convicted the offender of 19 counts of serious child sexual offences. The offending spanned approximately 18 years, from around 1982 to 2000. The victims were as young as four, seven and eight years old respectively when the abuse against each of them began.

The charges included 10 counts of sexual intercourse with a child under 10 years, 5 counts of indecent assault of a child under 10 years, 2 counts of assault with an act of indecency, 1 count of inciting an act of indecency, and 1 count of sexual intercourse without consent with a person under 16. The maximum penalties across these offences ranged from 6 to 20 years' imprisonment. There were no standard non-parole periods applicable to any of the offences.

  • What was the objective seriousness of each count, and how should the counts be categorised (below, at, or above the mid-range)?
  • What aggravating and mitigating factors applied to the sentencing exercise?
  • How should the principles of accumulation, concurrency and totality operate across 19 counts involving three victims?
  • Was an aggregate sentence the appropriate mechanism, and were "special circumstances" warranted to adjust the non-parole period proportion?
  • What weight should be given to general deterrence, denunciation, punishment and community protection in the context of child sexual offending?

Decision

Weber SC DCJ assessed the objective seriousness of each count individually, placing the majority at the mid-range and several of the most serious counts (including penile/vaginal intercourse with very young children, and offences involving force or threats) above the mid-range. Counts 8, 12, 17 and 19 were assessed above the mid-range; counts 3, 4 and 5 were assessed below.

The court identified multiple aggravating factors: the extreme youth of the victims, the commission of offences in the victims' home and other trusted environments, the abuse of a position of trust as the children's uncle and carer, the vulnerability of the victims, the substantial and enduring emotional harm caused, and the prolonged duration of the offending. The offender had no prior criminal convictions, which is ordinarily a mitigating factor, though the court noted that good character was not available as a mitigating consideration given the nature and extent of the offending. Other mitigating factors included the offender's advanced age, low assessed risk of reoffending, and the impact of protective custody.

The court found there was no remorse or contrition. The victim impact statements described profound and ongoing harm to each of the three victims. Applying the sentencing purposes of punishment, denunciation, recognition of harm and community protection, and following the principle of instinctive synthesis described in Markarian v The Queen (2005) 228 CLR 357, the court set indicative sentences for each count and then imposed an aggregate sentence.

Special circumstances were found to exist, warranting a departure from the standard non-parole period ratio, given the length and complexity of the offending and the rehabilitation considerations appropriate to the offender's age. The aggregate sentence of 16 years was structured with a non-parole period of 10 years and 8 months.

Orders Made

  • Aggregate term of imprisonment of 16 years imposed.
  • Non-parole period of 10 years and 8 months.
  • Term of imprisonment to commence 10 September 2019.
  • Non-parole period to expire 9 May 2030.
  • Balance of sentence to expire 9 September 2035.
  • Bail, previously revoked on 10 September 2019, was not reinstated.

Key Takeaways

  • The District Court confirmed that general deterrence, denunciation and community protection carry particular weight in sentencing for child sexual offences, as established by the Court of Criminal Appeal in EG v R [2015] NSWCCA 21 and R v Van Ryn [2016] NSWCCA 1.
  • Where an offender has no prior convictions, that fact does not automatically operate as a mitigating factor in cases of serious and prolonged child sexual abuse; the court found good character unavailable as a mitigating consideration on the facts here.
  • An aggregate sentence is an appropriate mechanism where an offender is sentenced on a large number of counts involving multiple victims, provided indicative sentences for each count are set out.
  • Threats made by an offender to silence a victim, including death threats, formed part of the factual matrix informing the court's overall assessment of the offending conduct and the harm caused.
  • Special circumstances justifying a non-parole period below the standard one-third balance can be found in cases involving elderly offenders with complex, multi-count sentencing exercises, even where the objective seriousness of the offending is high.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 61D(1), 61E(1), 61M(2), 61O(2), 66A
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 3A, 47

Cases
- Markarian v The Queen (2005) 228 CLR 357
- R v Van Ryn [2016] NSWCCA 1
- EG v R [2015] NSWCCA 21
- Dimian v R [2016] NSWCCA 223
- R v McNaughton (2006) 66 NSWLR 566
- R v Way (2004) 60 NSWLR 168
- Clinton v R [2009] NSWCCA 276
- Corby v R [2010] NSW CCA 146
- Elhassan v R [2018] NSWCCA 118
- RWB v R [2010] NSWCCA 147
- R v Durocher-Yvon (2003) 58 NSWLR 581
- R v Fisher (1989) 40 A Crim R 442
- R v Evans (unrep, 24/3/88, NSWCCA)
- R v Hudson (unrep, 30/7/98, NSWCCA)