R v Greenaway [2020] NSWDC 97

Citation: R v Greenaway [2020] NSWDC 97
Court: District Court of New South Wales
Date: 9 April 2020
Judge: Weinstein SC DCJ

Background

The offender, born in October 1937, was a former employee of the NSW Department of Child Welfare who worked in senior administrative roles at two institutions housing vulnerable teenage girls. He held the position of Relieving Deputy Superintendent at Parramatta Girls Training School (PGTS) between 1964 and 1967, and later worked at the Ormond School at Thornleigh between 1971 and 1973. The girls at both institutions had been committed by court order, many on grounds of being "uncontrollable" or "neglected."

Following a trial in the Sydney District Court in 2019, a jury returned guilty verdicts on 18 counts of historical sexual and physical offences committed against five victims aged between 13 and 17 at the time of the offending. The offences spanned two periods: the mid-1960s at PGTS and the early 1970s at Ormond. The offender denied all allegations and maintained his innocence throughout.

The sentencing proceedings required the court to resolve a range of factual and legal questions before determining the appropriate sentence, including questions about the applicable sentencing regime for historical offences, the weight to be given to the offender's age and declining health, and the significance of general deterrence in the context of institutional child sexual abuse.

Legal Issues

Which sentencing regime applied: historical sentencing patterns or current sentencing principles, given that some victims were under 16 and some were older?
How should the court approach fact-finding at sentence, particularly regarding victims' ages and uncharged acts?
What weight should be given to the offender's advanced age, declining health, and the possibility that he may die in custody?
What role did general deterrence play given the delay between offending and prosecution?
Whether special circumstances existed justifying a departure from the statutory non-parole period ratio?
What aggregate sentence and non-parole period were appropriate having regard to totality?

Decision

Issue 1: Applicable sentencing regime

Section 25AA of the Crimes (Sentencing Procedure) Act 1999 required the court to apply current sentencing patterns and practices for child sexual offences, reflecting the modern understanding of trauma caused to children by sexual abuse (at [46]-[47]). This applied to the counts involving JK, who was under 16 at the time of the offending (at [50]). For the offences committed against AB, CD, EF and GH, who were all aged 16 or older at the time, the court was guided by sentencing principles as they existed at the time of the offending (at [49]).

Issue 2: Fact-finding at sentence

The court sentenced the offender only on the counts of which he was convicted (at [10]). Where the evidence did not permit a precise finding as to a victim's age at the time of a particular offence, the court sentenced on the basis that the victim was the older of the two possible ages (at [12]). The court accepted that JK was 13 years old at the time of two particular counts, supported by her evidence linking the offending to a tattoo-removal operation (at [11]).

Issue 3: Objective seriousness and abuse of authority

The court found the offender's abuse of his position of authority to be profound (at [53]). Each victim was unable to remove herself from the institution or the offender, and this significantly increased the objective gravity of each offence (at [54]). The victims were recognised as vulnerable under section 21A(2)(l) of the Sentencing Act, being institutionalised young women estranged from their families and unable to escape the abuse (at [55]-[56]). The court found that each instance of offending was of a high order of objective seriousness (at [58]).

Issue 4: Subjective factors, including age and health

The court found the offender showed no remorse and no insight into his offending, continuing to protest his innocence and to characterise the victims as "delinquent girls" seeking payback (at [60]-[61]). His prior good character was given only limited weight, given the nature, seriousness and duration of the offending against five young women over several years (at [64]-[65]). The court found the offender's health to be largely unremarkable for a man of his age, approached the evidence of the geriatrician with some caution, and acknowledged the possibility that the offender may die in custody (at [72]).

Issue 5: Delay, general deterrence, and the Todd principle

The court held that general deterrence retained a significant role in sentencing for serious institutional sexual offending, notwithstanding the decades-long delay in prosecution (at [66]-[68]). The "Todd principle," which can operate to reduce a sentence where a person has lived under a prolonged period of uncertain suspense about potential prosecution, did not apply here, as the offender had remained silent and hoped his offending would go undetected (at [74]). The court noted the offender had benefited from his victims' reluctance to report, escaping justice for decades (at [76]).

Issue 6: Special circumstances and aggregate sentence

The court found special circumstances existed, given the offender's advanced age, the more onerous conditions of custody for an elderly man, and the need for supervision upon release (at [83]). The court imposed an aggregate sentence of 20 years imprisonment with a non-parole period of 10 years, representing a departure from the standard statutory ratio of 75% to 50%, commencing 30 September 2019 (at [90]-[95]).

Orders Made

Aggregate term of imprisonment for 20 years, commencing 30 September 2019.
Non-parole period of 10 years, expiring 29 September 2029.
Head sentence expiring 29 September 2039.
Special circumstances found; non-parole period set at 50% of the head sentence, departing from the standard 75% ratio.

Key Takeaways

Section 25AA of the Crimes (Sentencing Procedure) Act 1999 requires a court to apply current sentencing patterns and practices for child sexual offences, regardless of when the offending occurred, reflecting the legislature's recognition of the modern understanding of harm caused by child sexual abuse (at [46]-[47]).
Where the evidence does not permit a precise finding as to a victim's age at the time of historical offending, the offender is entitled to be sentenced on the basis of the older of the two possible ages (at [12]).
A finding of special circumstances may be warranted where an elderly first-time offender will experience custody more onerously than a younger person, and where supervision upon release remains necessary, justifying departure from the standard non-parole period ratio (at [83]).
The Todd principle, which may reduce a sentence for prolonged uncertainty and anxiety about possible prosecution, does not apply to an offender who remained silent hoping the offending would go undetected (at [74]).
General deterrence retains a significant role in sentencing for serious historical institutional child sexual abuse, even after substantial delay in prosecution, particularly where the delay itself resulted from the offender's exploitation of his victims' vulnerability and estrangement from family (at [66]-[68], [76]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999
- Child Welfare Act 1939

Cases
- Brown v R [2020] VSC 60
- EG v R [2015] NSWCCA 21
- Elchiekh v R [2016] NSWCCA 225
- Hornhardt v R [2017] NSWCCA 186
- Hughes v R [2017] HCA 20
- Magnuson v R [2013] NSWCCA 50
- Markarian v The Queen [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120
- O’Sullivan v R [2019] NSWCCA 261
- R v Achurch [2011] NSWCCA 186
- R v BJW [2000] NSWCCA 60
- R v Cattell [2019] NSWCCA 297
- R v Cattell [2019] NSWCCA 297
- R v Moon (2000) 117 A Crim R 497
- R v Sopher (1993) 70 A Crim R 570
- R v Spiers [2008] NSWCCA 107
- R v Todd [1982] 2 NSWLR 517
- R v Van Ryn [2016] NSWCCA 1