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District Court 19 August 2022

R v Rose

[2022] NSWDC 705

Sexual offences
CRIME CHILD SEX OFFENCES PERSISTENT SEXUAL ABUSE OF A CHILD CARNAL KNOWLEDGE MAXIMUM PENALTY OF LIFE IMPRISONMENT

Citation: R v Rose [2022] NSWDC 705
Court: District Court of New South Wales
Date: 19 August 2022
Judge(s): Sutherland SC DCJ

Background

The offender, a motor mechanic in Grafton, was tried on a principal count of maintaining an unlawful sexual relationship with a child contrary to section 66EA(1) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is life imprisonment following 2018 amendments. The indictment also contained three alternative counts of unlawful carnal knowledge, to one of which the offender pleaded guilty.

The victim, referred to by the pseudonym Ms Fay White, was a child aged approximately 12 at the commencement of the offending in 1980. The offender had established himself as a trusted father figure following the breakdown of the victim's parents' marriage, taking the victim camping on weekends and socialising with both families regularly. He exploited that position of trust over a period of approximately two years.

The jury returned a verdict of guilty on the principal count on 22 February 2022. The sentencing proceedings addressed the nature and extent of the offending, the victim's harm, and the offender's subjective circumstances, including his advanced age of 75 years and significant medical history.

Legal Issues

  • What facts underlying the jury's verdict could be found beyond reasonable doubt for the purpose of sentencing?
  • Where on the spectrum of objective seriousness did the offending fall, having regard to the factors relevant to section 66EA(1) offences?
  • What weight, if any, should be given to the offender's guilty plea to count 4, his prior good character, his advanced age, and the claimed extra-curial punishment?
  • What sentence appropriately reflected the objective seriousness of the offending, the applicable maximum penalty, and all relevant subjective considerations?

Decision

Factual Findings

The court found beyond reasonable doubt that the offending began around Easter 1980 when the victim was approximately 12 years old, and that the first act of sexual intercourse occurred in approximately July 1980 (at [18]-[21]). The court found that regular sexual intercourse then occurred both at the victim's home on Friday nights and during camping trips (at [22]-[23]), and that one further act of intercourse occurred at the Speedway at Grafton Showground (at [24]-[25]). The unlawful sexual relationship extended over approximately two years, ceasing prior to January 1983 (at [32]-[33]). The court described the relationship as involving literally scores of separate acts of intercourse (at [36]).

Objective Seriousness

The court assessed the offending as falling within the upper portion of the mid-range of objective seriousness (at [38]). Relevant factors included the duration of approximately two years, the very young age of the victim, the age differential between the parties, the frequency and repetition of the acts, and the circumstance that many of the sexual assaults occurred in the victim's own home (at [36], [42]). The offender had installed himself as a trusted father figure and took deliberate advantage of the victim's disrupted family circumstances (at [37]).

Mitigating and Aggravating Factors

The guilty plea to count 4 was given little weight as a mitigatory factor, as the court found it was not a true reflection of remorse or contrition, appearing instead to be a recognition of the inevitable in light of a pretext phone call and prior family disclosures (at [53]-[54]). The court did, however, recognise the offender's cooperation with the administration of justice under section 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) for permitting a narrowing of the issues at trial (at [54]). The offender's prior good character was found to have assisted in the commission of the offences by enabling him to be placed repeatedly in a position of trust (at [45]), though his blameless conduct over the following 40-odd years was afforded some credit (at [46]). The claimed extra-curial punishment, based on community and family reactions to the conviction, was rejected as not constituting a proper mitigatory factor (at [49]).

Advanced Age

The offender's age of 75 years and significant medical history, including a prior embolic stroke, cardiac surgery, and ongoing cardiac conditions, were taken into account as subjective considerations (at [50]-[52]). The court noted that serving imprisonment is likely to be more than usually onerous for a person of the offender's age and health, but confirmed that this consideration does not displace the need to impose a sentence reflecting the objective seriousness of the offence (at [50]-[52]). The statutory ratio between the non-parole period and the balance of the sentence was varied slightly in light of the offender's age and the fact that this was his first term of imprisonment (at [134]).

Orders Made

  • Term of imprisonment of 15 years, with a non-parole period of 9 years, backdated to 6 May 2022; non-parole period expires 5 May 2031, balance of term expires 5 May 2037.

Key Takeaways

  • Under section 66EA(1) of the Crimes Act 1900 (NSW), a sentencing judge must find the facts underlying a guilty verdict to the criminal standard and may consider all evidence adduced at trial, consistent with the principles in R v Olbrich [1999] HCA 54, following recent clarification by the Court of Criminal Appeal in R v RB [2022] NSWCCA 142 (at [4]-[6]).

  • The District Court confirmed that a guilty plea lacking genuine remorse, entered in circumstances where conviction appeared inevitable, warrants little weight as a mitigatory factor, though cooperation that narrows trial issues may still attract recognition under section 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (at [53]-[54]).

  • Prior good character in a child sexual offending context may itself be treated as a factor that facilitated the commission of the offences where it enabled the offender to obtain and maintain access to the child victim through a position of community trust (at [45]).

  • Community disapprobation directed at an offender or the offender's family following conviction does not constitute extra-curial punishment and carries no mitigatory weight in sentencing (at [49]).

  • Advanced age and poor health are relevant subjective factors in sentencing, and may justify a slight variation to the standard statutory ratio between non-parole and parole periods, but they do not override the court's obligation to impose a sentence commensurate with the objective gravity of the offending (at [50]-[52], [134]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Bugmy v The Queen [2013] HCA 37
- Burr v R [2020] NSWCCA 282
- DPP v De La Rosa [2010] NSWCCA 155
- GP (a pseudonym) v R [2021] NSWCCA 180
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Mills v R [2017] NSWCCA 87
- R v A [2021] NSWDC 232
- R v Bradshaw (a pseudonym) [2021] NSWDC 476
- R v DAW (No. 3) [2021] NSWDC 383
- R v Gavel (2014) 239 A Crim R 469
- R v GP [2019] NSWDC 493
- R v Graham (a pseudonym) [2020] NSWDC 747
- R v Holyoak (1995) 82 A Crim R 502
- R v Jarvis (a pseudonym) [2020] NSWDC 396
- R v McLean (2001) 121 A Crim R 484
- R v NK [2021] NSWDC 275
- R v Olbrich [1999] HCA 54; 199 CLR 270
- R v O’Toole (No. 5) [2021] NSWDC 64
- R v PGM (2008) 187 A Crim R 152
- R v RB [2022] NSWCCA 142
- R v RM [2020] NSWDC 52
- R v TH [2019] NSWDC 793
- R v Tuala [2015] NSWCCA 8
- R v Yates (1984) 13 A Crim R 319