Citation: R v Williams (No.2) [2024] NSWDC 9
Court: District Court of New South Wales
Date: 2 February 2024
Judge: Abadee DCJ
Background
The offender, a man now aged over 73, was convicted following a judge-alone trial of four counts of indecent assault and one count of buggery. The offences were committed against a single victim, who was a young child at the time of the offending in 1981 and 1982. The offender was a longstanding friend of the victim's father and had been entrusted with the victim's care on the relevant occasions.
The victim, now aged 48, has since changed name and gender. The court referred to the victim using her currently preferred pronouns throughout the sentencing remarks. The victim provided both a handwritten and a typed victim impact statement.
The offender had been acquitted on eleven other counts on the indictment, including some involving a different victim. He was detained following conviction on a successful Crown application, and had spent 255 days in pre-sentence custody by the date of sentencing.
Legal Issues
- What is the appropriate objective gravity of the offending for the purposes of sentencing?
- What statutory aggravating factors applied?
- How should the offender's advanced age and physical infirmity bear on the sentence?
- Did special circumstances exist justifying a variation to the standard non-parole period ratio?
- How should totality be applied across five separate counts, some arising from a single criminal episode?
Decision
Objective gravity: Both the Crown and defence accepted that each offence fell just above the mid-range of objective seriousness, and the court agreed. Although the victims' age was not an element of the historical offences charged, the court confirmed there was no impediment to treating the very young age of the victim (6 to 7 years) as a relevant consideration when assessing seriousness.
Aggravating factors: The court accepted both statutory aggravating factors raised by the Crown. The offender's position as a trusted family friend who had been entrusted with the victim's care constituted, at least to a minor degree, a position of authority. The victim's placement in foster care rendered her vulnerable within the meaning of the relevant statutory provision.
Age and health: The court acknowledged the offender's elderly age and declining health, including conditions such as gout and arthritis, but cautioned against giving those matters excessive weight. Common ailments of old age were not to be treated as significant mitigating factors. The court accepted that the offender's age and infirmity would make imprisonment more onerous than it would otherwise be, and that this was a minor factor reducing the weight of general deterrence. However, the court noted that the risk of spending later years in custody is a consequence the offender had brought on himself, partly because the nature of the offending discouraged early reporting by the victim.
Sentencing principles and special circumstances: The court emphasised that for child sexual offences, general deterrence, denunciation, retribution, and holding the offender accountable are the dominant sentencing purposes. Courts proceed on the basis that sexual abuse of children will cause enduring psychological harm to victims. Specific deterrence, community protection, and rehabilitation were described as subordinate considerations given the offender's age and infirmity. The court found special circumstances, noting the offender was effectively a first-time offender with significant treatment needs, justifying a departure from the standard non-parole period ratio.
Totality: Counts 13 to 16 arose from a single criminal episode and attracted substantial concurrency, though some accumulation was required given the discrete nature of each act. Count 12, which occurred approximately a year earlier, warranted a degree of accumulation on that basis.
Orders Made
- The offender was sentenced to a total term of 8 years and 3 months imprisonment, commencing 23 May 2023 and expiring 22 August 2031.
- Non-parole period of 5 years, expiring 22 May 2028, after which the offender is eligible for release on parole.
- The sentence was backdated to account for 255 days of pre-sentence custody.
Indicative sentences per count:
- Count 12 (indecent assault): 2 years and 3 months
- Count 13 (indecent assault): 2 years and 6 months
- Count 14 (indecent assault): 2 years and 8 months
- Count 15 (buggery): 4 years and 6 months
- Count 16 (indecent assault): 2 years
Key Takeaways
- Advanced age and associated health conditions do not automatically operate as significant mitigating factors. The District Court here treated the offender's elderly age as a minor consideration reducing the weight of general deterrence only, and declined to give undue weight to common age-related ailments.
- A court may have regard to a victim's young age when assessing the objective seriousness of historical child sex offences, even where age was not a formal element of the offence charged.
- For child sexual offences, general deterrence, denunciation, and retribution are the dominant sentencing purposes. Rehabilitation, specific deterrence, and community protection are subordinate where the offender is elderly and infirm.
- Enduring psychological harm to child victims of sexual abuse is effectively presumed by the courts, consistent with the approach confirmed in R v Gavel [2014] NSWCCA 56, and a sentence must acknowledge that harm even where the special statutory aggravating factor of actual harm is not formally relied upon.
- Where multiple offences form a single criminal episode, the principle of totality points toward substantial concurrency, but discrete acts within that episode may still justify some degree of accumulation.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61C, 79, 81 (since repealed), 61KD, 66C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 25AA(3)
Cases:
- R v Cattell [2019] NSWCCA 297
- R v Gavel [2014] NSWCCA 56
- R v Williams [2023] NSWDC 490 (the trial verdict decision)
- R v Totten [2003] NSWCCA 207