Citation: R v Page [2022] NSWDC 697
Court: District Court of New South Wales
Date: 12 December 2022
Judge(s): Colefax SC DCJ
Background
The offender, a 74-year-old man, appeared for sentence on a single charge of assaulting a female and committing an act of indecency upon a person under 16 years of age, contrary to the then-section 76 of the Crimes Act 1900 (NSW). The offending occurred between 1973 and 1975, when the victim was approximately three years old. The offender had befriended the victim's family while living in the same boarding house in Sydney, and later visited their home in Strathfield.
On one such visit, while the victim's mother briefly left the room, the offender removed the child's clothing and performed cunnilingus on her. The victim's sister witnessed the act and alerted their mother. The offender fled the premises immediately and the family had no further contact with him. Police were informed on two occasions shortly after the offending but chose not to act, leaving the matter undetected for decades. The offender was not arrested in connection with this offence until August 2018.
His criminal history included prior convictions for sexual offences against other children, for which he was sentenced by Grove J in the Supreme Court in 1988. The present proceedings were prolonged, involving 28 court listings and a guilty plea entered only on the fourth trial date in June 2022, effectively at the last moment.
Legal Issues
- The objective seriousness of the offending and its proper categorisation within the range for indecent assault
- The relevance of significant prosecutorial delay, none of which was attributable to the offender, to the appropriate sentence
- The weight to be given to the offender's very late guilty plea
- Whether the offender's physical health (Parkinson's disease and depression) constituted special circumstances justifying a reduced non-parole period
- Whether any genuine rehabilitation or remorse existed, given the offender's consistent denial of criminality
- The effect of the absence of medico-legal evidence despite multiple opportunities to obtain it
Decision
His Honour assessed the offending as above the mid-range and towards the upper end of the range for an act of indecent assault of its kind. Two aggravating features were identified: the offending occurred within the victim's home, and the victim was of extremely young age. The court also noted that, if committed today, the same conduct would constitute sexual assault and attract a substantially higher maximum penalty.
The offender's attitude to his offending was characterised as deeply concerning. He entered his guilty plea for what he described as "convenience only," denied criminality to the author of the sentencing assessment report, and alleged the complaint was fabricated by police. His Honour observed that this pattern of denial stretched back to the 1988 proceedings before Grove J. As a result, the court found no genuine rehabilitation, concluding that non-offending since the 1980s was simply non-offending, not evidence of change. A slight residual risk of reoffending was nonetheless identified.
The most significant mitigating factor was the lengthy delay between the offending and arrest, attributable entirely to police inaction. The court accepted joint submissions from the Crown and defence that this delay required considerable leniency beyond what the offender's physical and mental condition alone would warrant. The absence of medico-legal evidence was noted, but the court declined to draw any inference favourable to the offender from the failure to produce expert reports that had been promised on multiple occasions and never delivered.
His Honour determined that only full-time imprisonment was appropriate. A starting point of three years and three months was reduced to two years and six months to account for the delay, and then further reduced by five percent for the late guilty plea, producing a total term of two years and four months. Special circumstances were found by reason of the offender's serious health conditions, reducing the non-parole period from the standard 75 percent to 50 percent.
Orders Made
- Total term of imprisonment of two years and four months, commencing 12 December 2022
- Non-parole period of one year and two months, expiring 11 February 2025
- Balance of sentence of one year and two months, commencing 12 February 2025 and expiring 11 April 2026
- The collection of documents filed on the offender's behalf (Exhibit 2) to accompany the warrant
Key Takeaways
- Significant prosecutorial delay, where none of the delay is attributable to the offender, can warrant a substantial reduction in what would otherwise be an appropriate sentence, even for serious sexual offending against a child.
- A guilty plea entered at the last available opportunity, accompanied by a stated qualification that it was entered "for convenience only," attracted only a five percent discount, reflecting the minimal utilitarian value and the absence of genuine acceptance of criminality.
- Under the sentencing framework applied, genuine rehabilitation requires demonstrated remorse, insight into the offending, and steps taken to address its causes. Mere non-reoffending over many years does not, without more, constitute rehabilitation.
- Special circumstances justifying a reduction in the proportional non-parole period can be established where serious physical health conditions, such as advanced Parkinson's disease, will make imprisonment materially more burdensome.
- Where an offender repeatedly fails to file expert evidence after multiple court-ordered deadlines and many years of opportunity, a sentencing court may proceed without that evidence and decline to draw any inference favourable to the offender from its absence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 76 (as it stood at the time of offending, 1973 to 1975)
Cases:
- Remarks on sentence of Grove J (Supreme Court, 14 July 1988, unreported) referenced in the judgment