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District Court 26 February 2021

R v G

[2021] NSWDC 78

Sexual offences
CRIMINAL LAW CHILD SEX OFFENCES AGGRAVATED INDECENT ASSAULT SEXUAL TOUCHING OF A CHILD AGGRAVATING FACTORS MITIGATING FACTORS

Citation: R v G [2021] NSWDC 78
Court: District Court of New South Wales
Date: 26 February 2021
Judge: Hatzistergos DCJ

Background

The offender, born in 1968, appeared for sentencing on multiple child sexual offences involving four victims. Three of the victims were his step-grandchildren, aged one, three, and eight years respectively at the time of the offending. The fourth victim was his stepdaughter, whom he had raised from infancy and who was between approximately eight and thirteen years old when the offending against her began in the mid-1990s.

The offending spanned roughly from 1995 to 2019 and took place primarily in Bulahdelah and surrounding areas of New South Wales. The conduct included sexual touching of very young children, aggravated indecent assault, using children in the production of child abuse material, using a carriage service to publish that material, maintaining an unlawful sexual relationship with a child, and possessing child abuse material. Notably, the offender's stepdaughter later had two children of her own, both of whom became victims of his offending. A child was also conceived as a result of the sexual relationship with the stepdaughter.

The offender entered early guilty pleas to the charges and, in some instances, provided assistance to law enforcement authorities. He had prior convictions involving child pornography offences, including disseminating, possessing, and making child pornography using a carriage service.

  • How the aggravating and mitigating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) applied to each count, including the offender's position of trust and the vulnerability of the victims
  • Whether the offence of maintaining an unlawful sexual relationship (s 66EA of the Crimes Act 1900 (NSW)) should be sentenced under the version of that provision as it stood before or after the 2018 amendments
  • The application of s 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW) to State offences, requiring a court to take into account the standard non-parole periods
  • The extent of any discount for early guilty pleas and, separately, for assistance to law enforcement authorities, where discounts varied across different counts
  • How to structure an aggregate sentence across both Commonwealth and State charges, particularly given partial accumulation, and whether special circumstances existed to justify a different non-parole period ratio
  • Whether the offender's elevated risk of reoffending, his prior related criminal history, and his expressed remorse and contrition were properly reflected in the sentences

Decision

His Honour found that the offending was of the utmost gravity. The position of trust was a heavily aggravating factor across all victims: the offender stood in the role of grandfather and father figure to his victims, exploiting the most intimate family relationships over an extended period. The extreme youth and vulnerability of the child victims, including one infant aged just one year, was also treated as a significant aggravating consideration. The prior criminal record, which included prior convictions specifically related to child pornography, elevated the assessed risk of reoffending.

On the issue of which version of s 66EA applied to the count involving the stepdaughter, the court determined that the offender was to be sentenced under the provision as it stood prior to the 2018 amendments, given that the offending predated those changes. The court worked through the applicable maximum penalties and standard non-parole periods for each State offence, applying s 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW) where required.

Discounts for early guilty pleas were applied in accordance with established Thomson and Houlton principles. In some instances, the discount for assistance to law enforcement was substantial, though it varied depending on the nature and value of the assistance provided in relation to particular charges. The court accepted that the offender had demonstrated genuine remorse and contrition, and this was treated as a mitigating factor.

Special circumstances were found to exist, arising from the partial accumulation of the Commonwealth and State aggregate sentences. This justified adjusting the ratio between the non-parole period and the total sentence beyond the standard one-third proportion, to ensure the offender would have an adequate period of supervised release given the complexity and extent of the overall sentencing structure.

Orders Made

• Non-parole period of 10 years and 9 months commencing 2 August 2021 and expiring on 1 May 2032
• Additional term of 4 years and 3 months from 2 May 2032 to 1 August 2036 during which the offender is eligible to be released to parole
• Earliest release date: 1 May 2032

Key Takeaways

  • Where an offender held a position of parental or grandparental trust over victims, the District Court treated this as a weighty aggravating factor that elevated the objective seriousness of every offence, particularly when the victims were very young children.
  • A charge under s 66EA of the Crimes Act 1900 (NSW) for maintaining an unlawful sexual relationship must be sentenced under the version of the provision in force at the time of the offending, not under any subsequent amendment that increased the maximum penalty.
  • Discounts for assistance to authorities under State and Commonwealth sentencing frameworks are not uniform across all charges; they depend on the nature and value of the assistance specific to each offence.
  • Special circumstances under the Crimes (Sentencing Procedure) Act 1999 (NSW) can be established where partial accumulation of Commonwealth and State sentences produces a total sentence that warrants a longer supervisory tail, beyond the standard non-parole period ratio.
  • Prior convictions specifically related to child pornography offences are directly relevant to an elevated risk of reoffending assessment and are treated as a significant consideration against the offender at sentencing.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M, 66DA, 66EA, 91G, 91H
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 23, 25AA, 28, 30E, 33, 44
- Crimes Act 1914 (Cth), ss 16A, 19AC, 20
- Criminal Code Act 1995 (Cth), s 474.19

Cases
- Burr v R [2020] NSWCCA 282
- Eacott (a pseudonym) v R [2019] NSWCCA 158
- R v BJW (2000) 112 A Crim R 1
- Shannon v R [2006] NSWCCA 39
- R v Gavel (2014) 239 A Crim R 469
- R v Nelson [2016] NSWCCA 130
- R v T (1990) 47 A Crim R 29
- R v Catell [2019] NSWCCA 297
- R v PGM [2008] NSWCCA 172
- R v JDB (2005) 153 A Crim R 164
- R v Boulad [2005] NSWCCA 289
- ARS v R [2011] NSWCCA 266
- R v Hutchinson [2018] NSWCCA 152
- Minehan v R [2010] NSWCCA 140; 201 A Crim R 243
- R v Leeuw [2015] NSWCCA 183
- R v Freedman [2017] NSWCCA 201
- R v Thomson and Houlton (2000) 49 NSWLR 383; [2000] NSWCA 309
- Buckley v R [2021] NSWCCA 6
- Panetta v R [2016] NSWCCA 85