Citation: R v Mullins [2024] NSWDC 672
Court: District Court of New South Wales
Date: 3 October 2024
Judge: Sutherland SC DCJ
Background
The offender, a man now in his mid-eighties, was sentenced on 11 counts of child sexual offences committed against two female complainants. The offending spanned a period of roughly thirteen years: the first set of offences occurred in 2006, when the offender was approximately 68 years old and the first complainant was eight; the second set occurred between 2017 and 2019, when the offender was between approximately 79 and 81 years old and the second complainant was aged ten and eleven.
The offender had no prior criminal history. He held a position of trust in relation to both complainants, having established a friendship with the first complainant's father through volunteer work at a museum, and having a separate relationship of trust with the second complainant. The offending involved elements of grooming: the offender gave gifts to the first complainant and paid the second complainant for sexual acts.
The offender pleaded guilty to three of the twelve counts before trial and was convicted by jury on a further eight counts. He expressed no contrition or remorse. The sentencing remarks were subject to statutory publication restrictions under section 578A of the Crimes Act 1900, with victim names redacted.
Legal Issues
- What individual sentences were appropriate for each of the eleven proven offences, having regard to the relevant maximum penalties and standard non-parole periods?
- How should an aggregate sentence be structured under section 53A of the Crimes (Sentencing Procedure) Act 1999 to reflect the principle of totality?
- What weight should be given to the offender's advanced age, first-time custody status, absence of prior criminal history, and lack of remorse?
- Whether the offender's personal circumstances warranted a finding of "special circumstances" so as to vary the statutory ratio between the non-parole period and the balance of term?
- What significance should general deterrence carry in the sentencing of serious child sexual abuse offences?
Decision
His Honour sentenced the offender across all eleven counts, with indicative sentences ranging from 12 months (counts 5 and 12) to 6 years (count 9). A 5% discount applied to counts 8, 10, and 11 in recognition of the guilty pleas entered before trial. For the most serious offences (counts 2, 6, 7, 8, 9, and 10), indicative sentences of between approximately 5 years 8 months and 6 years were imposed, reflecting the gravity of sexual intercourse offences involving children under 14.
On the question of the offender's age and circumstances, Sutherland SC DCJ acknowledged that the offender was a first-time prisoner whose increasing age would make imprisonment more onerous than for younger offenders. His Honour declined to find special circumstances when fixing the individual indicative non-parole periods, but did make a finding of special circumstances in determining the aggregate non-parole period, which permitted a departure from the standard statutory ratio.
On the question of remorse and sympathy, His Honour was direct. The offender had shown no contrition, having contested the majority of charges at trial. His Honour stated that the principles of general deterrence and the need to recognise the indignity inflicted on two children were not matters to be outweighed by sympathy for an elderly offender who would spend a significant portion of his remaining years in custody.
Applying the totality principle, His Honour imposed an aggregate head sentence of 10 years with a non-parole period of 6 years and 6 months, commencing from the date the offender first entered custody on 16 May 2022.
Orders Made
- Aggregate head sentence of 10 years imprisonment.
- Aggregate non-parole period of 6 years and 6 months, commencing 16 May 2022 and expiring 15 November 2028.
- Balance of term of 3 years and 6 months, expiring 15 May 2032.
- Special circumstances found in relation to the aggregate non-parole period, varying the statutory ratio.
Key Takeaways
- The District Court confirmed that general deterrence retains significant weight in the sentencing of child sexual abuse offences and is not to be displaced by sympathy for an offender's advanced age or the hardship of a first custodial sentence.
- An offender's elderly status and the additional burden that imprisonment places on older persons can justify a finding of special circumstances at the aggregate level, even where no such finding is made at the level of individual indicative non-parole periods.
- Where an offender pleads guilty to some counts but contests others at trial and is convicted, the absence of remorse across the contested charges is a material consideration in sentencing, carrying negative weight against subjective factors that might otherwise reduce a sentence.
- Abuse of a position of trust and elements of grooming, including the provision of gifts or money to child victims, are aggravating features that the court weighed in assessing the objective seriousness of the offending.
- Under section 53A of the Crimes (Sentencing Procedure) Act 1999, an aggregate sentence may be structured with an adjusted non-parole ratio where the totality of subjective circumstances, including first-time custody and age, warrants departure from the standard statutory ratio.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61M, 61N, 66A, 66C, 66DD, 578A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
Cases:
- Anastasiou v R [2010] NSWCCA 100
- GAT v R [2007] NSWCCA 208
- GS v R [2016] NSWCCA 266
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- R v Antin (a pseudonym) (No 2) [2021] NSWDC 584
- R v BJW (2000) 112 A Crim R 1; [2000] NSWCCA 60
- R v Fisher (1989) 40 A Crim R 442
- R v MJ [2023] NSWCCA 306
- R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129
- R v PGM (2008) 187 A Crim R 152; [2008] NSWCCA 172
- R v Thomas [2007] NSWCCA 269
- Scrimshaw (a pseudonym) v R [2021] NSWCCA 81