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District Court 23 February 2024

R v MacDonald

[2024] NSWDC 136

Sexual offences

Citation: R v MacDonald [2024] NSWDC 136
Court: District Court of New South Wales
Date: 23 February 2024
Judge: Haesler SC DCJ

Background

The offender, a man born in 1949 and aged 73 at sentencing, was a neighbour and family friend of two complainants referred to in this summary as Heather and Dawn. During the 1980s, both women were children living in a Wollongong suburb where the offender resided. The families socialised regularly, and the children spent time unsupervised at his home, including on occasions overnight.

In 2020, Heather made allegations to police about historical sexual abuse she said the offender had committed against her during the 1980s. She also identified Dawn as another victim. Dawn subsequently made her own complaints. Following a police investigation, the offender was arrested in 2021.

In November and December 2023, the matter proceeded to a six-day jury trial at the Wollongong District Court. The offender did not give evidence but relied on comprehensive denials he had made in a police interview and in recorded conversations obtained under a listening device warrant. The jury acquitted him of one count but convicted him on 11 remaining counts, spanning three categories of offence under now-repealed provisions of the Crimes Act 1900 (NSW).

  • What was the appropriate aggregate sentence for 11 historic child sexual offences committed against two complainants over a period spanning roughly a decade?
  • How should the sentencing court weigh aggravating factors (including breach of trust and a series of criminal acts) against mitigating factors (including age, health, absence of prior convictions, low risk of reoffending, and no recent offending)?
  • What role did the delay between the offending and sentencing play, including the application of past maximum penalties applicable at the time of the offences?
  • Whether special circumstances existed to justify extending the non-parole period beyond the standard ratio, and if so, by how much.
  • How should general deterrence and community denunciation be reflected in the sentence alongside the individual circumstances of an elderly offender?

Decision

The District Court accepted that the jury's verdicts required sentencing on the basis of the complainants' evidence, which the jury had clearly accepted. The offending spanned from 1980 to 1989 and involved Heather from as young as approximately four or five years old, and Dawn from approximately eight years old. The conduct ranged from indecent touching to repeated forced oral intercourse in the offender's garage, with the offender exploiting his position as a trusted family friend and neighbour.

Haesler SC DCJ identified significant aggravating features: the offending involved a gross breach of trust, it was repeated and sustained over many years against two vulnerable children, and it caused serious and lasting harm to both complainants as described in victim impact statements. The offender received no discount for a guilty plea or expressions of remorse, having maintained his denials throughout. However, the court did give some credit for his facilitation of the efficient conduct of the trial under section 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

On the mitigating side, the court took into account the offender's age of 73, his lack of any prior criminal record, his low likelihood of reoffending, the absence of any recent offending, and his health issues. His age and health were relevant to the weight of imprisonment as a punishment and to the question of special circumstances. The court also noted that, because the offences were historic, it was constrained to apply the maximum penalties that applied at the time of the offending, which were lower than current maxima. This limitation meant a longer sentence might otherwise have been warranted.

Haesler SC DCJ applied the principle of instinctive synthesis across all relevant factors. The court found that the sentence had to express the community's repugnance at this type of offending and serve as a signal of general deterrence, while not becoming a crushing sentence disproportionate to the offender's circumstances. A finding of special circumstances was made, reducing the minimum custodial period below the standard two-thirds ratio to allow for an extended period of supervision on parole given the offender's age and health needs upon release.

Orders Made

  • Count 1 (Heather): 1 year and 6 months imprisonment
  • Counts 2, 3 and 12 (Heather): 1 year imprisonment each
  • Count 4 (Dawn): 2 years imprisonment
  • Count 5 (Dawn): 2 years imprisonment
  • Counts 6, 7, 8 and 10 (Dawn, oral intercourse matters): 3 years imprisonment each
  • Count 11 (Dawn): 2 years imprisonment
  • Aggregate sentence: 9 years imprisonment
  • Minimum non-parole period (reflecting special circumstances): 5 years and 6 months, commencing 4 December 2023 and expiring 3 June 2029
  • Balance of sentence: 3 years and 6 months, commencing 4 June 2029 and expiring 3 December 2032
  • Release to parole is subject to a decision of the State Parole Authority, with community safety identified as a significant consideration

Key Takeaways

  • Historic child sexual offences must be sentenced by reference to the maximum penalties in force at the time of the offending, even where current maxima are significantly higher. This constraint can limit the sentence a court would otherwise impose.
  • A gross breach of trust, sustained offending over many years, and the involvement of multiple victims are significant aggravating features that carry substantial weight even where other mitigating factors are present.
  • Age, poor health, absence of prior convictions, and low risk of reoffending are recognised mitigating factors for elderly offenders, but they do not diminish the weight given to general deterrence and community denunciation in serious child sexual abuse cases.
  • Special circumstances under the Crimes (Sentencing Procedure) Act 1999 (NSW) may be found where an offender's age and health mean that a longer period of post-release supervision is warranted, resulting in a reduced minimum custodial term relative to the aggregate sentence.
  • An offender who maintains a not-guilty plea and denials throughout trial is not punished for doing so, but equally receives none of the sentencing discounts available to those who plead guilty, accept responsibility, or demonstrate genuine remorse.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61D(1), 61E(1), 76 (all now repealed)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22A

Cases
- AJB v R (2007) 169 A Crim R 32
- Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162
- Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
- Engert v The Queen (1995) 84 A Crim R 67
- KM v R [2023] NSWCCA 10
- MAK v R; MSK v R [2006] NSWCCA 381
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
- Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600
- O'Sullivan v R [2019] NSWCCA 261
- Paterson v R [2021] NSWCCA 273
- R v Cahyadi [2007] NSWCCA 1; 168 A Crim R 41
- R v Cattell [2019] NSWCCA 297
- R v Harris [2007] NSWCCA 130; 171 A Crim R 267
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v Herring (1956) 73 WN (NSW) 203