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District Court 11 February 2021

R v Williams (a pseudonym) (No 2)

[2021] NSWDC 12

Sexual offences
CRIME COURSE OF CONDUCT PERIOD WERE HE DID NOT OFFEND OFFENCES AGAINST YOUNGER BROTHER OFFENCES AGAINST FEMALE CHILDREN GROOMING

Citation: R v Williams (a pseudonym) (No 2) [2021] NSWDC 12
Court: District Court of New South Wales
Date: 11 February 2021
Judge: Haesler SC DCJ

Background

The offender, referred to by the pseudonym Scott Williams (born 1971), pleaded guilty to nine counts of sexual and indecency offences against three complainants over a period spanning February 1990 to June 2007. The complainants are referred to by pseudonyms: George (his younger brother), Susan, and Lisa. All three were under the age of 16 at the time of the relevant offending.

The offending against George involved forced sexual acts, including anal intercourse accompanied by physical violence, committed when Williams was 19 and George was nearly 14. The offending against Susan, who was as young as 12 when the conduct began, included repeated penile-vaginal intercourse and anal intercourse, and resulted in a pregnancy that was terminated. The offending against Lisa began in 2002 when she was 13, after Williams assumed a parental role in her life by living with her mother. It included digital touching, penile-vaginal intercourse, forced anal intercourse, and continued beyond the period covered by the counts, ultimately resulting in a child born to Williams and Lisa in 2006.

Multiple complaints were made to police and the Department of Community Services over many years, but no police action was taken until Williams was arrested in June 2018. He was committed for trial in 2019, pleaded guilty to nine counts on a fresh indictment in October 2020, and sentence proceedings concluded on 11 February 2021.

  • What aggregate sentence appropriately reflects the objective seriousness of nine counts of child sexual offending against three complainants, committed over seventeen years?
  • How should the principle of totality apply to an aggregate sentence that also accumulates on a prior Local Court sentence of 18 months?
  • What weight should be given to the offender's subjective circumstances, including a dysfunctional childhood, ill-health, and psychological evidence?
  • What weight attaches to a psychologist's report where the contents are based on unsworn statements made by the offender?
  • How do factors such as grooming, assumption of parental responsibility, a gap in offending, delayed complaints, and the absence of rehabilitation progress bear on sentence?
  • To what extent do the purposes of victim vindication and community denunciation inform the sentencing exercise?

Decision

The court found the offending to be of considerable seriousness across all three complainants. The conduct involved deliberate grooming, exploitation of positions of trust and parental responsibility, repeated physical violence in the commission of some offences, and a pattern that persisted without genuine remorse or concern for the harm caused. The court noted that despite a period during the 1990s in which Williams did not offend against children outside his family, offending recommenced and continued for years.

On subjective matters, the court accepted that Williams had an unhappy and dysfunctional childhood and that ill-health can be a mitigating factor. However, the court applied the principle that unsworn statements made to a psychologist carry limited weight, while still acknowledging that a professional psychologist's opinion retains value. The court found that the crimes were stale in the sense that they were committed many years before sentencing, but observed that Williams had made no meaningful progress toward rehabilitation. The absence of rehabilitation, combined with the persistence of the conduct across different victims and different periods, weighed against any significant mitigation on that basis.

The court applied the principle of totality to structure the aggregate sentence, making a modest adjustment to the non-parole period to account for the accumulation on the prior 18-month Local Court sentence. The court also noted that the length of the total sentence meant extended community supervision was important, and directed that the psychologist's report accompany the warrant. A caution under the Crimes (High Risk Offenders) Act 2006 was given.

In closing, the court expressly referenced the obligation under the sentencing framework, as confirmed in Munda v Western Australia, to vindicate the dignity of each complainant, express the community's denunciation of the offending, and afford whatever protection the state can to vulnerable persons against repetition of such conduct.

Orders Made

Individual indicated sentences:
- Count 1 (George, forced sexual act): 1 year 9 months
- Count 2 with Form 1 (George, anal intercourse with violence): 3 years 7 months
- Count 3 (Susan, penile-vaginal intercourse): 4 years 6 months
- Count 4 with Form 1 (Susan, anal intercourse): 3 years 7 months
- Count 5 with Form 1 (Susan, intercourse observed by mother): 4 years 6 months
- Count 6 with Form 1 (Lisa, first penile-vaginal intercourse): 5 years 4 months
- Count 7 (Lisa, intercourse resulting in pregnancy): 5 years 4 months
- Count 8 with Form 1 (Lisa, forced anal intercourse, age 14): 4 years 6 months
- Count 9 with standard non-parole period (Lisa, forced anal intercourse, 2007): 4 years 6 months, non-parole period 4 years

Aggregate sentence:
- Total: 13 years 6 months imprisonment
- Non-parole period: 10 years, commencing 12 January 2021 and expiring 11 January 2031
- Balance of sentence: 3 years 6 months, commencing 12 January 2031 and expiring 11 July 2034
- Eligible for parole consideration from 11 January 2031
- Copy of the psychologist's (Ms Van de Velde's) report to accompany the warrant
- Crimes (High Risk Offenders) Act 2006 caution given

Key Takeaways

  • The District Court confirmed that grooming, exploitation of a position of parental responsibility, repeated physical violence during offending, and a multi-victim course of conduct are all significant factors that increase objective seriousness in child sexual assault sentencing.
  • A gap in offending between discrete periods does not, of itself, substantially reduce the gravity of a course of conduct where offending resumes and continues across different complainants.
  • Unsworn statements made by an offender to a psychologist attract limited weight on sentence, but the professional opinion of the psychologist, formed on the basis of those statements, retains evidentiary value for the court.
  • Staleness of offending (that is, the passage of many years between the commission of offences and sentencing) carries reduced mitigating force where the offender has made no demonstrable progress toward rehabilitation in the intervening period.
  • Under the principle articulated in Munda v Western Australia, sentencing for serious child sexual offending must, so far as possible, vindicate the dignity of complainants, express community denunciation, and afford protection to vulnerable persons against repetition.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61D(1), 61E(1), 61I, 61J(1), 61M(1), 66C(1), 66C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases:
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Muldrock v The Queen (2011) 244 CLR 120
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Hili v The Queen (2010) 242 CLR 520
- Mill v The Queen (1988) 166 CLR 59
- R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159
- MAK v R [2006] NSWCCA 381
- MPB v R [2013] NSWCCA 213
- Magnuson v R [2013] NSWCCA
- R v Cattell [2019] NSWCCA 297
- Kristensen v R [2018] NSWCCA 189
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