R v AS

Citation: R v AS [2024] NSWDC 54
Court: District Court of New South Wales
Date: 7 March 2024
Judge(s): Priestley SC DCJ

Background

The offender, a man born in 1944, faced sentencing for six child sex offences committed against his granddaughter during 2021 when he was aged approximately 77 and the victim was aged 11 or 12. The offending occurred across multiple occasions in both the offender's home and the victim's home over a period of approximately nine to ten months.

A jury found the offender guilty of five counts following a trial concluded on 31 October 2023. He pleaded guilty to a sixth count, which related to an incident on 15 September 2021 that was observed and interrupted by the victim's mother.

The six offences spanned aggravated sexual intercourse (cunnilingus and digital penetration), penetration using an object, intentional sexual touching, grooming by offering a financial benefit, and inciting the child to perform a sexual act. The sentencing exercise involved weighing the serious nature of the offending and the offender's lack of remorse against significant mitigating factors, chiefly his advanced age and deteriorating health.

Legal Issues

• What was the objective seriousness of each of the six offences, including the application of the standard non-parole period as a legislative guidepost under Muldrock v R (2011) 244 CLR 120?
• What weight should be given to the offender's age, medical condition, and risk of suicide as mitigating factors in sentencing?
• Whether special circumstances existed justifying a departure from the statutory ratio between the non-parole period and the balance of term.
• What aggregate sentence was appropriate having regard to the totality principle and the countervailing sentencing considerations?

Decision

Objective seriousness of each count:

Counts 1 and 2 (cunnilingus and digital penetration) were assessed as falling in the high low range, below the mid range of objective seriousness. The court noted a distinct absence of aggression, violence, or force beyond what was necessary to constitute the offences, and that the offender stopped when asked by the victim (at [9]). Count 3 (penetration by an object) was assessed at the same level but as more serious than counts 1 and 2, given the use of an object for penetration, the precise size and nature of which was unclear on the evidence (at [12]). Count 4 (touching and kissing the victim's breasts) was assessed at approximately the mid range, reflecting the skin-on-skin contact, kissing, and the manipulation used to secure the victim's silence (at [16]). Count 5 (grooming by offering five dollars for sexual intercourse) was assessed in the low range, noting the exchange was brief and the victim refused (at [18]). Count 6 (the guilty plea offence, inciting the victim to expose herself) was assessed as very much towards the low end, involving no physical contact and interrupted by the victim's mother (at [20]). All offending was aggravated by the gross breach of trust inherent in a grandfather's conduct towards his granddaughter and by the locations where it occurred (at [9], [21]).

Mitigating factors and subjective circumstances:

The court accepted the significant medical case advanced for the offender. He had suffered a stroke in 2014, was diagnosed with prostate cancer in 2020, and experienced incontinence, mobility difficulties, depression, and a documented risk of suicide (at [38]). A psychologist's report assessed him as a very low risk of reoffending on the Static 99R and low to moderate on the Sexual Violence Risk-20 (at [28]). The court accepted that custody would be considerably more burdensome for him than for a person in better health, and that optimal medical care would be harder to deliver in a custodial setting (at [38]). The offender's lack of any meaningful prior criminal history was also noted (at [23]).

Remorse and insight:

The offender expressed no remorse and appeared to maintain his innocence even in respect of the count to which he pleaded guilty, with no evidence of insight into the harm caused to his granddaughter (at [40]). The court rejected the suggestion that his belief that penetration required penile-vaginal intercourse had any mitigatory value (at [36]).

Special circumstances and aggregate sentence:

The court found special circumstances under the Crimes (Sentencing Procedure) Act 1999 (NSW) because the offender was entering custody for the first time at age 79, his age and health made the experience far more onerous than it would be for a healthier person, and he would require additional support on release (at [44]). The court described the task as balancing the seriousness of the offending and the absence of remorse against the offender's age and health, noting candidly that the offender may die in prison (at [47]). An aggregate sentence of 8 years imprisonment was imposed with a non-parole period of 4 years, backdated to commence 25 December 2023 (at [48]).

Orders Made

• The offender was convicted of counts 1 to 6 on the indictment.
• The offender was sentenced to an aggregate term of imprisonment of 8 years with a non-parole period of 4 years, commencing 25 December 2023.
• The balance of term is 4 years, expiring 24 December 2031.
• The offender's earliest eligible date for parole is 24 December 2027.

Indicative sentences for each count:

Key Takeaways

• The District Court confirmed that the standard non-parole period operates as a legislative guidepost even where offending is assessed below the mid range of objective seriousness, consistent with Muldrock v R (2011) 244 CLR 120 (at [4], [49]).

• A gross breach of familial trust by a grandparent against a grandchild constituted an aggravating factor applicable to all counts, treated as a subjective rather than objective consideration in the sentencing calculus (at [9], [21]).

• Advanced age, serious physical illness, and a documented risk of suicide in custody can constitute significant mitigating factors, including by informing a finding of special circumstances to adjust the ratio between the non-parole period and balance of term (at [38], [44]).

• Where an offender expresses no remorse, maintains innocence across offences including one to which he pleaded guilty, and demonstrates no insight into harm caused, those matters weigh against mitigation even alongside compelling subjective factors (at [40]).

• Grooming offences assessed in the low range of objective seriousness can still attract a custodial sentence as part of an aggregate where they form part of a broader course of sexual offending against a child over a sustained period (at [18], [34]).

Legislation and Cases Referenced

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

Cases
- Muldrock v R (2011) 244 CLR 120