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District Court 20 December 2022

R v Grant

[2022] NSWDC 718

Sexual offences
CRIME RELEVANT FACTORS ON SENTENCE DELAY OF OVER 45 YEARS SIGNIFICANT INCREASE IN MAXIMUM PENALTY DELAY OFFENDER’S AGE AND ILL HEALTH

Citation: R v Grant [2022] NSWDC 718
Court: District Court of New South Wales
Date: 20 December 2022
Judge: Haesler SC DCJ

Background

The offender, a woman now aged 77, was a primary school teacher at a Catholic school in the 1970s. Between approximately April 1977 and mid-1979, when she was in her early thirties, she sexually abused a male student in her class who was aged between nine and thirteen at the time. The offending encompassed a sustained course of conduct including fondling, masturbation, oral intercourse, and repeated penile/vaginal sexual intercourse, occurring at her home, in a caravan on her property, and during a camping trip.

The complainant confided in a friend and a priest at the time but did not go to police until 2020, over four decades later. Following a covertly recorded pretext telephone call in which the offender made admissions and expressed remorse, police interviewed her in June 2021. She declined legal advice, participated in a recorded interview, and admitted to having sexual intercourse with the complainant while aware of his age.

The offender indicated a guilty plea in the Local Court and maintained that plea in the District Court. She appeared for sentencing aged 77 and in poor health.

  • What is the appropriate sentence for the offence of maintaining an unlawful sexual relationship with a child under s 66EA(1) of the Crimes Act 1900, where the conduct occurred approximately 46 years ago?
  • How should the court treat the significant retrospective increase in the maximum penalty (from five years to life imprisonment) that occurred after the offending took place?
  • What weight should be given to the offender's early guilty plea, acceptance of responsibility, exemplary character outside the offending, age, and serious ill health?
  • How should the competing sentencing principles of retribution, community denunciation, victim vindication, and common humanity be balanced in the circumstances?
  • Whether special circumstances exist to justify a non-parole period that departs from the statutory ratio.

Decision

The District Court characterised the offending as objectively serious. The offender was a teacher in a position of trust, she initiated and maintained the abuse over more than two years, the victim was as young as nine or ten at the commencement, she coached the child on what to say if her husband discovered them, and she used emotional manipulation including declarations of love and expensive gifts. These features elevated the seriousness of the course of conduct.

The court grappled at length with the retrospective increase in the maximum penalty. At the time of the offending, the maximum was five years. The current offence of maintaining an unlawful sexual relationship with a child carries a maximum of life imprisonment. Haesler SC DCJ acknowledged that sentencing courts must apply the law as it now stands but held that the dramatic increase in the maximum penalty required careful calibration, and that simply applying contemporary sentencing norms without qualification would produce an unjust outcome disproportionate to what the offender faced at the time of the conduct.

In mitigation, the court accepted substantial weight for: the early guilty plea (attracting a 25% utilitarian discount); the offender's choice not to contest the complainant's account; her otherwise exemplary character spanning more than 45 years of community life; her age of 77; her significant ill health; her genuine remorse as evidenced in the pretext call and psychiatric assessment; and the lengthy delay before prosecution. The court found special circumstances, noting the offender's health and age would make the custodial environment particularly burdensome and that a longer period on parole was warranted.

Haesler SC DCJ concluded that, absent the guilty plea, a sentence of nine years would have been appropriate. After the 25% reduction and a significant finding of special circumstances, the court imposed a total sentence of six years and nine months with a non-parole period of three years and four months. The judge acknowledged the tension explicitly: a sentence calibrated purely to modern standards for recent offending would in all probability result in the offender dying in custody, an outcome the court found incompatible with "common humanity," while also recognising that the sentence must reflect the gravity of the harm and vindicate the complainant's dignity.

Orders Made

  • The offender was sentenced to six years and nine months imprisonment.
  • A non-parole period of three years and four months was set, commencing 20 December 2022, with the offender eligible for consideration for release to parole on 19 April 2026 (subject to the State Parole Authority).
  • The balance of term of three years and five months commences 20 April 2026, with the sentence expiring 19 September 2029.
  • A copy of Dr Nielssen's psychiatric report was ordered to accompany the warrant.
  • The remaining s 166 matters were withdrawn and dismissed.

Key Takeaways

  • The District Court confirmed that sentencing for historical offences under provisions now carrying maximum penalties far exceeding those in force at the time of the conduct requires careful calibration, and that applying current sentencing ranges without qualification may produce disproportionate outcomes.
  • A guilty plea carries both utilitarian value (here quantified at a 25% reduction) and additional mitigating significance where the offender's decision not to contest the complainant's account spares a victim from the further burden of a contested hearing.
  • Advanced age and serious ill health can constitute grounds for mitigation as a matter of "common humanity," independent of the statutory provisions addressing the effect of custodial conditions, though this principle operates alongside, not in substitution of, the requirements of retribution, denunciation, and victim vindication.
  • Where an offender would in all likelihood die in custody if sentenced strictly according to contemporary norms for equivalent recent offending, the court retains flexibility to moderate the sentence on humane grounds while still imposing a sentence that reflects the objective gravity of the conduct.
  • Victim vindication and community denunciation remain significant sentencing objectives in historical child sexual abuse cases, and the court held that the complainant's dignity required a substantial custodial sentence regardless of the mitigating factors present.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66EA(1) (maintaining an unlawful sexual relationship with a child)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases cited:
- AJB v R (2007) 169 A Crim R 32
- Burr v R [2020] NSWCCA 282
- R v Clarkson [2011] VSCA 152
- GP (a pseudonym) v R [2021] NSWCCA 180
- Hili v The Queen (2010) 242 CLR 520
- Magnussen v R [2013] NSWCCA 50
- Mill v The Queen (1988) 166 CLR 59
- Paterson v R [2021] NSWCCA 273
- Pearce v The Queen (1998) 194 CLR 610
- R v Burrell (2000) 114 A Crim R 207
- R v Cattell [2019] NSWCCA 297
- R v Charlton, unreported, NSW CCA, 27 February 1976
- R v D (1997) 69 SASR 413
- R v Daetz [2003] NSWCCA 316
- R v Engert (1995) 84 A Crim R 67
- R v Fitzgerald [2004] NSWCCA 5; (2004) 59 NSWLR 493
- R v Gannon, NSWCCA, unreported, 19 August 1984
- R v Gavel [2014] NSWCCA 56
- R v RB [2022] NSWCCA 142