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District Court 10 May 2023

R v CG

[2023] NSWDC 383

Sexual offences
CRIME CHILD SEXUAL ASSAULT HISTORICAL CHILD SEX OFFENCES WHEN OFFENDER JUVENILE CRIME CHILD SEXUAL ASSAULT PURPOSES OF SENTENCING

Citation: R v CG [2023] NSWDC 383
Court: District Court of New South Wales
Date: 10 May 2023
Judge: Buscombe DCJ

Background

The offender pleaded guilty to three counts of indecent assault committed against his younger siblings in the mid-1970s in Western Sydney. The victims were two sisters and a brother. The offending occurred when the offender was aged between approximately 12 and 15 years old, and the victims were very young children at the time.

The offences involved serious sexual conduct, including oral sexual abuse, attempted anal penetration, and digital and manual sexual contact. The offender used threats and physical coercion to silence the victims. A number of additional offences were taken into account on Form 1s (a procedural mechanism by which an offender acknowledges further offences to be considered at sentencing without additional convictions being recorded for them).

The allegations first came to light in the late 1970s. Police were notified at that time but elected not to charge the offender, and child welfare authorities removed him from the family home for a period. No similar offending occurred in the decades that followed. The matter proceeded to a guilty plea before the District Court more than 40 years after the offences were committed.

  • What sentence is appropriate where serious sexual offences against children were committed by an offender who was himself a juvenile at the time?
  • What weight should be given to the elapsed time of more than 40 years between the commission of the offences and the guilty plea?
  • Whether a causal connection existed between the offender's severely disadvantaged and violent childhood and the commission of the offences, and what effect that connection has on moral culpability.
  • Whether imprisonment was the only appropriate sentence, or whether a Community Correction Order was open on the facts.

Decision

Buscombe DCJ found that the offending was serious, involving sustained sexual abuse of three younger siblings over several years with threats and physical coercion. The court acknowledged the profound and lasting harm to the victims. At the same time, the court was required to weigh those factors against the significant mitigating circumstances.

The court found a causal connection between the offender's deeply dysfunctional and violent upbringing and the commission of the offences, applying the principles from Bugmy v R (2013) 249 CLR 571, which recognises that a deprived childhood can reduce moral culpability even for serious offences. The offender's age at the time, being between 12 and 15 years old, was also a significant mitigating consideration. The court noted that if the offender had been charged in the 1970s, he would likely have been dealt with in the Children's Court.

The court further took into account the very long passage of time since the offences, the offender's guilty plea, his lack of any similar reoffending in the intervening decades, his limited criminal record, and his ongoing engagement with psychological treatment. Weighing all of these factors together, the court concluded that imprisonment was not the only appropriate sentence and that Community Correction Orders were warranted for each offence.

Orders Made

  • Count 1 (offence against SG): Community Correction Order for 2 years, commencing 10 May 2023 and expiring 7 June 2025, with standard conditions and an additional condition requiring the offender to continue psychological treatment for the duration of the order.
  • Count 4 (offence against AG): Community Correction Order for 18 months, commencing 10 May 2023 and expiring 7 December 2024, with standard conditions.
  • Count 6 (offence against MG): Community Correction Order for 2 years, commencing 10 May 2023 and expiring 7 June 2025, with standard conditions.

Key Takeaways

  • The District Court confirmed that where an offender committed serious sexual offences as a juvenile in a dysfunctional household, a causal connection between that background and the offending can reduce moral culpability at sentencing, consistent with Bugmy v R.
  • A passage of more than 40 years between the commission of offences and a guilty plea is a relevant sentencing consideration, particularly where there has been no similar reoffending in the intervening period.
  • Where a juvenile offender would likely have been dealt with in the Children's Court at the time of the original offending, that counterfactual is a legitimate factor in assessing the appropriate sentence decades later.
  • Imprisonment is not an automatic outcome for historical child sexual assault offences, even serious ones, where a combination of factors including the offender's youth at the time, background disadvantage, the passage of time, rehabilitation, and a guilty plea collectively support a lesser sentence.
  • Community Correction Orders with conditions including mandatory continuation of psychological treatment were available as an outcome, though the court's conclusion rested firmly on the particular combination of facts in this case.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 76 and 81 (as in force at the time of the offences)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Child Welfare Act 1939 (NSW)
- Criminal Records Act 1991 (NSW)

Cases:
- Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
- WB v R [2020] NSWCCA 159