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District Court 14 September 2020

R v GN (No 2)

[2020] NSWDC 524

Sexual offences
CRIME SENTENCING SEXUAL ASSAULT CHILD UNDER 10 AGGRAVATED INDECENT ASSAULT SENTENCED AFTER TRIAL

Citation: R v GN (No 2) [2020] NSWDC 524
Court: District Court of New South Wales
Date: 14 September 2020
Judge: Lerve DCJ

Background

Following a judge-alone trial on 24 March 2020, the offender was convicted of two counts of sexual intercourse with a child under 10 years of age and 17 counts of aggravated indecent assault. The trial judgment is published separately as R v GN [2020] NSWDC 59. The offender had pleaded not guilty to all counts and was convicted after the Crown proved its case.

The offending involved two child victims. The first victim (TWN) was the offender's step-granddaughter, who was aged 7 or 8 at the time of the offending against her. The second victim (KN) was the offender's paternal granddaughter, who was as young as 4 or 5 years old at the time of some of the offending against her. The offending against each victim involved multiple episodes and a range of conduct of escalating seriousness.

The offender was on bail until the date the verdicts were delivered, at which point bail was revoked. Both parties agreed the sentence should commence from 24 March 2020.

  • What aggregate sentence was appropriate across 19 counts of serious child sexual offending?
  • How should objective seriousness be assessed across a large number of counts involving two victims of different ages?
  • How did the statutory aggravating factors, including breach of trust and offending in a victim's home, bear on the sentences?
  • Did special circumstances exist justifying a non-parole period that is less than the standard proportion of the total sentence?

Decision

Lerve DCJ assessed the objective seriousness of each count individually, applying the principle that no hierarchy of sexual acts exists for ranking seriousness. Rather, the totality of the facts and circumstances of each instance of offending governs the assessment. His Honour drew on a consistent line of Court of Criminal Appeal authority, including R v AJP, Jolly v R, and Bravo v R, confirming that the absence of additional aggravating features does not operate in mitigation.

His Honour found beyond reasonable doubt that a significant breach of trust was established in respect of all counts, given the close family relationships between the offender and each victim. That factor was treated as a statutory aggravating circumstance under s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 and was factored into the seriousness assessment throughout. The very substantial age difference between the offender and each victim, measured in decades, was also identified as a significant feature of the offending.

For the offending against KN, Lerve DCJ gave particular weight to her extreme youth, noting she was as young as 4 or 5 at the time of some incidents. The court also found that the statutory aggravating factor in s 21A(2)(eb), relating to offending committed in a victim's home, was established in respect of counts 11 to 14.

The individual sentences ranged from 18 months to 7 years 6 months across the 19 counts, with non-parole periods set for each. His Honour found special circumstances existed, resulting in a non-parole period that represents two thirds of the total aggregate sentence rather than the standard proportion. The reasons for that finding are set out in the judgment but were not reproduced in the available text. As no guilty plea was entered, no sentencing discount was applied, though his Honour confirmed this did not amount to the penalty being increased for putting the Crown to proof.

Orders Made

  • The offender is convicted on each of the 19 counts.
  • An aggregate sentence of 17 years is imposed.
  • Non-parole period of 11 years and 4 months, commencing 24 March 2020 and expiring 23 July 2031.
  • Balance of term of 5 years and 8 months, commencing 24 July 2031 and expiring 23 March 2037.
  • The court recommends release to parole at the expiration of the non-parole period.
  • A copy of the report of Professor Woods (exhibit 1 on sentence) is to be annexed to the warrant forwarded to the Department of Corrective Services.

Key Takeaways

  • The District Court confirmed that objective seriousness in child sexual assault matters is not determined by ranking the type of sexual act but by assessing all facts and circumstances of the specific offending, applying consistent Court of Criminal Appeal authority.
  • Where an offender is convicted after trial rather than by guilty plea, no sentencing discount applies, though the absence of a discount is distinct from any increase in penalty for contesting the charges.
  • Breach of trust under s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 was established across all counts given the familial relationships, and was incorporated into the objective seriousness assessment without requiring separate repetition for each count.
  • A finding of special circumstances permitted the non-parole period to be set at two thirds of the total aggregate sentence, departing from the standard statutory proportion.
  • Under established sentencing principles, the absence of additional aggravating features does not reduce the seriousness of the offending; as the Court of Criminal Appeal put it in Saddler v R, it does not make what was done less serious because it could have been worse.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 66A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(eb), s 21A(2)(k)
- Crimes (Administration of Sentences) Act 1999 (NSW)

Cases
- Bravo v R [2015] NSWCCA 302
- Brown v R [2020] VSC 60
- Burchell (1987) 34 A Crim R 148
- Chamseddine v R [2017] NSWCCA 176
- Hermann v R (1988) 37 A Crim R 440
- Hopley v R [2008] NSWCCA 105
- Jolly v R [2013] NSWCCA 76
- LN v R [2020] NSWCCA 131
- Maxwell v R [2020] NSWCCA 94
- MC v R [2017] NSWCCA 316
- Mills v R [2017] NSWCCA 87
- MLP v R (2006) 164 A Crim R 93
- R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434
- R v Despotovski [2020] NSWDC 110
- R v GN [2020] NSWDC 59
- R v Muldoon (unreported, NSWCCA, 13 December 1990)
- R v PGM [2006] NSWCCA 310
- R v Tuala [2015] NSWCCA 8
- R v TWP [2006] NSWCCA 141
- R v Van Ryn [2016] NSWCCA 1