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District Court 9 July 2021

R v Gladstone

[2021] NSWDC 312

Sexual offences
CRIME SEXUAL TOUCHING. SENTENCING RELEVANT FACTORS ON SENTENCE SENTENCE AFTER TRIAL OFFENCES AGAINST STEP DAUGHTER FIRST OFFENDER

Citation: R v Gladstone [2021] NSWDC 312
Court: District Court of New South Wales
Date: 9 July 2021
Judge: Haesler SC DCJ

Background

The offender was convicted after a jury trial of five sexual offences against his stepdaughter (referred to in the judgment as "Anna"), who was 18 years old at the time. The offending occurred over a single night in October 2019 at a Sydney motel, where the family had gathered to support Anna's mother, who was hospitalised. The offender, then nearly 50, had been a father figure to Anna throughout her life.

The jury found the offender guilty of four counts of sexual touching and two counts of attempted sexual intercourse without consent, all arising from conduct while Anna was asleep in a shared bed. The jury acquitted him of one earlier count of sexual touching relating to a massage earlier that evening.

The offender denied all allegations at trial, including denying that he and Anna had shared a bed. The judgment proceeded to sentence on the basis that the jury accepted Anna's account in full.

  • What was the appropriate objective seriousness of the five offences, taking into account their nature and the surrounding circumstances?
  • How should individual sentences be structured, and what degree of concurrence was appropriate given the offences arose from a single episode of criminality?
  • What weight should be given to the offender's subjective case, including his role as a first offender, the serious illness of his wife, the needs of his disabled son, and hardship to his family?
  • Was a full custodial sentence required, or could a Community Corrections Order (CCO) satisfy the purposes of sentencing?
  • Were special circumstances established to justify a non-parole period shorter than the statutory default of three-quarters of the head sentence?

Decision

Objective seriousness: Haesler SC DCJ assessed the two attempted sexual intercourse offences (involving digital pressure applied to the complainant's vagina without penetration) as falling at the lower end of the range for that offence type, given no penetration occurred and the acts were relatively brief. The four sexual touching offences were, however, assessed as relatively serious examples of their category. Beyond the physical conduct, the judge found significant aggravating features: the offender's age and authority as a stepfather, the breach of trust, the persistent and repetitive nature of the acts, and his exploitation of Anna's apparent sleep.

Sentencing structure: Applying the totality principle from Mill v The Queen (1988) 166 CLR 59 and Nguyen v The Queen [2016] HCA 17, the court was required to impose an appropriate sentence for each offence while ensuring the aggregate was just overall. Because the offences formed part of a single episode of criminality, the judge allowed for considerable concurrence in structuring the sentences.

Subjective case and hardship: The offender presented a substantial subjective case: no prior criminal history, positive character references, evidence of genuine concern for his seriously ill wife and disabled son, and a report from a forensic psychiatrist. His defence counsel submitted that a CCO, having regard to time served and exceptional family hardship, could meet all purposes of sentencing. The judge gave full weight to these factors but concluded they could not displace the need for a custodial term.

Custodial sentence required: The court held that, given the seriousness of the offending, the community's expectation of meaningful punishment for this type of crime, the need for both general and personal deterrence, and the particular importance of vindicating the dignity of the complainant, only a custodial sentence was appropriate. Special circumstances were found to justify a reduced non-parole period, given the short period over which the offending occurred, the limited opportunity for reoffending, and the offender's strong incentive to rehabilitate given his family's dependence on him.

Orders Made

  • Conviction entered on Counts 2, 3, 4, 5, and 6.
  • Indicated sentence on Count 2: 2 years imprisonment.
  • Indicated sentence on Count 3: 2 years 6 months imprisonment.
  • Indicated sentence on Count 4: 1 year 6 months imprisonment.
  • Indicated sentence on Count 5: 2 years imprisonment.
  • Indicated sentence on Count 6: 2 years 6 months imprisonment.
  • Aggregate sentence of 3 years 3 months imprisonment.
  • Non-parole period commencing 1 April 2020 and expiring 31 March 2022.
  • Balance of sentence of 1 year 3 months to commence 1 April 2022 and expire 30 June 2023.
  • Eligible for parole consideration from 31 March 2022.

Key Takeaways

  • The District Court confirmed that mitigating factors, including a strong subjective case, exceptional family hardship, and first-offender status, must be given full weight but cannot override the requirement for a proportionate custodial sentence where the offending involves serious breaches of trust and repeated sexual abuse.
  • Where multiple offences form part of a single episode of criminality, considerable concurrence in the structuring of sentences is permissible, provided the overall aggregate sentence properly reflects the totality of the offender's criminality.
  • A finding of special circumstances (justifying a non-parole period below the statutory three-quarters default) remains available even in serious sexual offence matters, provided the sentencing court is satisfied that the minimum custodial period still properly reflects the gravity of the offending and the purposes of sentencing.
  • The court's reasoning reinforces that, in sexual offence sentencing, the dignity of the complainant and the community's legitimate expectation of condemnation for this type of conduct are independent sentencing considerations, beyond mere punishment and deterrence.
  • Victim impact material formed a recognised part of the sentencing process, with Anna's statement directly informing the court's assessment of harm caused and the need to vindicate the complainant through the sentence imposed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61KC, 344A
- Crimes (Administration of Sentences) Act 1999 (NSW)

Cases:
- Mill v The Queen (1988) 166 CLR 59
- Nguyen v The Queen [2016] HCA 17
- Cahyadi v Regina [2007] NSWCCA 1
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- Gore v R [2010] NSWCCA 330
- Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1
- Dipangkear v R [2010] NSWCCA 156
- Silvano v R [2008] NSWCCA 18; (2008) 184 A Crim R 593
- Hoskins v R [2016] NSWCCA 157
- R v Robertson [2017] NSWCCA 205
- R v Edwards (1996) 90 A Crim R 510
- Brown v R [2020] VSC 60