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District Court 21 February 2020

R v RG

[2020] NSWDC 492

Sexual offences

Citation: R v RG [2020] NSWDC 492
Court: District Court of New South Wales
Date: 21 February 2020
Judge(s): M L Williams SC DCJ

Background

The offender, aged 74 at sentencing, pleaded guilty to six counts of historic sexual offences against two young female cousins committed during the 1980s and early 1990s. The victims were connected to the offender through a family arrangement: their grandmother had lived with him during the relevant period. The offences occurred when the victims were very young children.

The offending spanned multiple locations and incidents. It included fondling, indecent touching, and an attempted removal of clothing, and affected both victims over a number of years. The offender had prior convictions from 1999 for similar offences against other members of the same extended family, for which he had received a community service order.

The offences were prosecuted under repealed provisions of the Crimes Act 1900 carrying lower maximum penalties than their modern equivalents. No time in custody had been served following the offender's arrest in June 2016.

  • What discount, if any, should be applied for the utilitarian value of a late guilty plea?
  • What was the objective seriousness of each offence relative to its maximum penalty?
  • Whether the offender's background of lower socio-economic circumstances engaged the Bugmy principles, reducing moral culpability through deprivation?
  • Whether the offender's intellectual disability was a mitigating factor warranting reduced weight on general deterrence?
  • Whether special circumstances existed justifying a non-parole period that was a greater proportion of the head sentence than the statutory default?
  • What aggregate sentence was appropriate across all six counts?

Decision

The District Court accepted that a 15% discount was appropriate for the guilty plea, on the basis that it spared both victims from having to give evidence at trial. The court found each offence to fall below the mid-range of objective seriousness, and determined that the only appropriate sentencing outcome was a term of full-time imprisonment.

On the Bugmy submission, the court declined to find that the offender's upbringing engaged the principles applicable to profound deprivation. Growing up in lower socio-economic circumstances did not reach the threshold contemplated in Bugmy v The Queen (2013) 249 CLR 571, particularly given the High Court's focus in that case on the experience of the Aboriginal community. However, the court accepted that the offender's intellectual disability, placing him in the lowest 8% of the general population, was a significant mitigating factor that reduced his moral culpability and warranted lesser weight being given to general deterrence.

Special circumstances were established on three grounds: it would be the offender's first time in custody; his age and moderate health conditions would make imprisonment more burdensome than for the general prison population; and his intellectual impairment was a further relevant consideration. The court imposed an aggregate sentence of three years, with a non-parole period of two years, reflecting the finding of special circumstances (the non-parole period representing two-thirds rather than the usual three-quarters of the head sentence).

The court also acknowledged the victim impact statements from both victims, noting their testimony as to the lasting harm caused, and consistent with the sentencing purpose of recognising the harm done to victims.

Orders Made

  • Conviction recorded on each of the six counts.
  • Indicative sentences imposed:
  • Count 1: 16 months
  • Count 2: 16 months
  • Count 3: 5 months
  • Count 4: 18 months
  • Count 5: 12 months
  • Count 6: 15 months
  • Aggregate sentence of 3 years imprisonment, commencing 21 February 2020.
  • Non-parole period of 2 years, expiring 20 February 2022.
  • Special circumstances formally found.

Key Takeaways

  • Growing up in lower socio-economic circumstances, without more, does not meet the threshold for the Bugmy principle of deprivation reducing moral culpability. The District Court confined that principle to cases involving the kind of profound disadvantage addressed in the High Court's decision.

  • Intellectual disability at the lower end of the general population range can constitute a significant mitigating factor at sentencing, warranting reduced weight on general deterrence, even where the offender was found to have been aware of the wrongfulness of his conduct.

  • First-time custody, advanced age, and health difficulties can each independently support a finding of special circumstances, and together provide a strong basis for departing from the standard non-parole period ratio.

  • A 15% discount for a guilty plea can be appropriate where the plea, though entered late (on the eve of trial), eliminates the need for victims to give evidence, sparing them the burden of recounting their experiences.

  • Prior psychological material obtained for an earlier sentencing in 1999 may be placed before a later sentencing court, but is subject to the usual cautions regarding untested subjective history, as confirmed in R v Qutami and Imbornone v R.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61E(1), 61E(2), 61M(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 53A

Cases
- Bugmy v The Queen (2013) 249 CLR 571
- Imbornone v R [2017] NSWCCA 144
- R v Thomas [2007] NSWCCA 269
- R v Qutami (2001) 127 A Crim R 369
- Veen v The Queen (No 2) (1988) 164 CLR 465