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District Court 7 May 2020

R v Wright

[2020] NSWDC 411

Sexual offences
CRIME SEXUAL OFFENCES ACT OF INDECENCY

Citation: R v Wright [2020] NSWDC 411
Court: District Court of New South Wales
Date: 7 May 2020
Judge(s): Buscombe DCJ

Background

The offender, a 78-year-old man, pleaded guilty to three historical child sexual offences spanning more than two decades. The offences involved three separate male victims, each aged thirteen or younger at the time of the offending. The offender had worked as a Welfare Officer in the early 1970s and later as an archivist for a local council.

The first offence occurred in 1971 when the offender was a Welfare Officer appointed to the family of a child who was under seven years of age. The second and third offences occurred in 1990 and between 1992 and 1993, when the offender used his council workplace and access to pornographic magazines to groom and sexually abuse two further adolescent boys. The offences came to light in 2016 after the victims made contact with each other and then with police.

The guilty pleas were entered on the day trial was due to commence, after pre-trial legal argument had substantially concluded. Three Form 1 offences (additional matters acknowledged by the offender and taken into account on sentence, but not formally convicted) accompanied the three counts on the indictment.

Legal Issues

  • What is the appropriate objective seriousness of each of the three offences?
  • How does the breach of trust aggravating factor apply to Count 1?
  • What discount, if any, applies for the late guilty plea?
  • Whether the offender demonstrated genuine remorse?
  • Whether special circumstances exist justifying a departure from the standard non-parole period ratio?
  • How does section 25AA of the Crimes (Sentencing Procedure) Act 1999 apply, requiring historical child sexual offences to be sentenced according to contemporary sentencing patterns and practices?
  • What aggregate sentence is appropriate, having regard to totality?

Decision

Objective Seriousness of Count 1 (offence against LH, 1971):
The court found the offence was aggravated by a gross breach of trust, as the offender held a position of authority as a Welfare Officer appointed specifically to the victim's family (at [17]). The victim was under seven years of age at the time, and the offence involved the child being required to put the offender's penis in his mouth (at [18]). Buscombe DCJ assessed the offence as falling a little below the mid-range of objective seriousness, noting that the short duration of an offence is not necessarily a mitigating factor in child sexual offending, citing R v Egan (at [18]).

Objective Seriousness of Counts 2 and 3 (offences against LT and PT):
The court found that both offences involved deliberate grooming of young adolescent boys aged thirteen, conducted over time and at the offender's place of employment (at [20]-[23]). The offender used pornographic magazines as a tool to obtain a sexual response from each victim before fellating them. Buscombe DCJ assessed both offences as falling within the lower end of the mid-range of objective seriousness, noting the brazenness of offending at the workplace and the significant age disparity between a mature-aged man and each victim (at [21]-[23]).

Guilty Plea, Remorse, and Subjective Factors:
The court allowed a 15% discount for the utilitarian value of the plea, which spared the complainants from giving evidence at trial (at [32]). However, Buscombe DCJ found there was no unequivocal remorse: the offender made contradictory statements, at times blamed the victims, and appeared to have entered the plea in recognition of the strength of the Crown's case rather than out of genuine contrition (at [33]). The offender's prior 1972 conviction for indecent assault on a male minor, also committed while he was a Welfare Officer, disentitled him to leniency (at [25]).

Special Circumstances and Aggregate Sentence:
The court found special circumstances based on the offender's advanced age of 78 years, the approximate 27-year gap since his last offence, and his particular vulnerability as an elderly person entering custody during the COVID-19 pandemic (at [34]). Buscombe DCJ applied the aggregate sentencing provisions and had regard to totality across the three separate offences and victims. Under section 25AA of the Crimes (Sentencing Procedure) Act 1999, the court sentenced the offender according to contemporary sentencing patterns and practices, while applying the maximum penalties that were in force at the time of each offence (at [36]-[40]).

Orders Made

  • Indicative sentence of 1 year and 8 months imprisonment recorded on Count 1 (taking into account Form 1 offences).
  • Indicative sentence of 2 years and 6 months imprisonment recorded on Count 2 (taking into account Form 1 offence).
  • Indicative sentence of 2 years and 11 months imprisonment recorded on Count 3 (taking into account Form 1 offence).
  • Aggregate sentence of 4 years and 8 months imprisonment imposed, with a non-parole period of 3 years.
  • Sentence commences 7 May 2020 and expires 6 January 2025; non-parole period expires 6 May 2023.

Key Takeaways

  • Under section 25AA of the Crimes (Sentencing Procedure) Act 1999, a court sentencing for historical child sexual offences must apply contemporary sentencing patterns and practices, but remains bound by the maximum penalties that applied at the time of the offending. The District Court confirmed this approach, following R v Catell [2019] NSWCCA 297, and noted that current courts are far more aware of the serious and long-lasting effects of child sexual abuse than courts were at the time these offences occurred (at [36]-[40]).

  • A late guilty plea entered on the first day of trial, after substantial pre-trial argument, attracted only a 15% utilitarian discount in this case. The court declined to treat the plea as evidence of remorse where it considered the plea was entered from recognition of the strength of the Crown's case rather than genuine contrition (at [32]-[33]).

  • Grooming conduct, even where it does not reach the threshold of a formal aggravating factor under section 21A of the Crimes (Sentencing Procedure) Act 1999, remains relevant to the court's assessment of objective seriousness and reflects upon the deliberate and planned nature of child sexual offending (at [20]-[22]).

  • A prior conviction for a similar offence involving a minor, committed in the same professional context, directly disentitles an offender to leniency and is a significant factor weighing against the offender on sentence (at [25]).

  • Special circumstances may be found where an offender's advanced age, extended gap since the last offence, and vulnerability to health risks in custody (including during the COVID-19 pandemic) collectively justify reducing the proportion of the sentence to be served before parole eligibility (at [34]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 81, 78K
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 25AA, 3A

Cases
- R v Egan [2016] NSWLR 285
- R v Catell [2019] NSWCCA 297