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District Court 29 October 2024

R v McGarrigle

[2024] NSWDC 620

Sexual offences

Citation: R v McGarrigle [2024] NSWDC 620
Court: District Court of New South Wales
Date: 29 October 2024
Judge: Haesler SC DCJ

Background

Following a jury trial, the offender was convicted of nine offences involving the sexual abuse of a child aged between seven and ten years old. The child was the granddaughter of the offender's then partner, and the offender had occupied a grandfatherly role in her life, spending approximately three nights a week at the family home.

The offences included four counts of intentional sexual touching, three counts of sexual intercourse with a child under ten (in the form of cunnilingus), one count of possessing child abuse material (a video recording of the child's genital area stored on the offender's phone), and one count of procuring or grooming a child under 14 for unlawful sexual activity by showing her pornography. Several offences occurred in the child's home; others occurred at a coastal caravan park.

The offender denied all allegations at trial, claiming others had used his phone and that he had shown the video to others out of concern for the child. The jury rejected this evidence and accepted the complainant's account beyond reasonable doubt.

  • How to assess the objective seriousness of each individual offence, having regard to the nature and duration of the conduct, the age of the child, the relationship between the parties, and the circumstances of each incident.
  • How to apply the principles of instinctive synthesis in arriving at individual sentences and an aggregate sentence across nine counts.
  • Whether the offender was entitled to any sentencing discount, including for facilitation of the course of justice during the trial.
  • How to structure an aggregate sentence that is proportionate and avoids being crushing, while reflecting the purposes of sentencing including general and specific deterrence.
  • What weight to give to subjective factors including the offender's age, health, prior record, and background of institutionalised childhood sexual abuse.

Decision

Haesler SC DCJ assessed the objective seriousness of each offence by reference to the nature and degree of physical contact, the age of the child, the relationship of trust the offender held, and the locations where the offending occurred. The sexual intercourse offences were assessed as falling just below the midrange of objective seriousness. The acts were of brief duration, no force beyond that inherent in the conduct was used, and no overt physical injury was reported, though psychological harm was presumed. The sexual touching offences were assessed at a similar level relative to each other, with contact occurring generally over the child's clothing.

The court noted the offender did not plead guilty and maintained his denial throughout, meaning he received no sentence reduction for remorse or an early plea. However, concessions made during the trial that avoided the calling of a significant number of witnesses were taken into account as facilitation of the course of justice under s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The court weighed a range of subjective factors, including the offender's age (born 1959), health issues, mental disorders, and his own history of institutionalised childhood sexual abuse. These matters were acknowledged but did not reduce the weight given to general deterrence, which the court identified as of particular importance in cases of this kind.

The court applied the principle from Markarian v The Queen, identifying all relevant factors and conducting an instinctive synthesis to arrive at appropriate individual sentences. An aggregate sentence was then constructed, with the court taking care to avoid a crushing outcome while still reflecting the gravity and multiplicity of the offending.

Orders Made

  • Count 1 (sexual touching): 2 years 6 months imprisonment, non-parole period 1 year 7 months.
  • Count 2 (sexual touching): 2 years 6 months imprisonment, non-parole period 1 year 7 months.
  • Count 3 (sexual intercourse with a child): 6 years imprisonment, non-parole period 3 years 10 months.
  • Count 4 (sexual touching): 2 years 6 months imprisonment, non-parole period 1 year 7 months.
  • Count 5 (sexual intercourse with a child): 6 years imprisonment, non-parole period 3 years 10 months.
  • Count 6 (sexual touching): 2 years 6 months imprisonment, non-parole period 1 year 7 months.
  • Count 7 (sexual intercourse with a child): 6 years imprisonment, non-parole period 3 years 10 months.
  • Count 8 (possess child abuse material): 1 year imprisonment.
  • Count 9 (procure child under 14 for sexual activity): 2 years imprisonment, non-parole period 1 year 3 months.
  • Aggregate sentence: 14 years imprisonment, non-parole period 9 years 6 months.
  • Sentence backdated to 28 September 2022; eligible for parole consideration from 27 March 2032; total sentence expires 27 September 2036.
  • The offender was classified as a High-Risk Offender, with a warning that failure to cooperate with authorities or continued risk to children could result in additional conditions being imposed.

Key Takeaways

  • The District Court applied the instinctive synthesis method from Markarian v The Queen, identifying all relevant objective and subjective factors before arriving at individual and aggregate sentences across nine counts.
  • Where an offender occupies a position of familial trust in relation to a child victim, that relationship is treated as a significant aggravating feature in assessing the objective seriousness of child sexual offences.
  • An offender who is acquitted of the need to challenge the evidence of every witness at trial, by making concessions that limit the witnesses called, may still receive a modest sentencing benefit under s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW), even where no guilty plea is entered and all allegations are denied.
  • Psychological harm to a child victim of sexual offending is presumed, even where no overt physical injury is established.
  • General deterrence carries particular weight in sentencing for child sexual offences, and a history of childhood sexual abuse experienced by the offender, while acknowledged as a subjective factor, does not displace the primacy of deterrence and the protection of children.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66A(1), 66DA(a), 91H(2), 6EB
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 22A
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases:
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- MAK v R; MSK v R [2006] NSWCCA 381
- Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
- Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600
- R v Burrell (2000) 114 A Crim R 207
- R v Herring (1956) 73 WN (NSW) 203
- R v Smith (1987) 44 SASR 587