GC v The Queen

[2019] NSWCCA 241

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	GC v R [2019] NSWCCA 241
Hearing dates:	10 April 2019
Decision date:	18 October 2019
Before:	Payne JA; Wilson J; Ierace J
Decision:	(1)   Leave to appeal granted.  (2)   Appeal dismissed.
Catchwords:	CRIME – Appeals – Appeal against sentence – Whether the sentencing judge erred in the application of the principle of totality – where the applicant had been sentenced for similar offences previously
Legislation Cited:	Criminal Appeal Act 1912 (NSW), ss 6(3), 12 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 25AA, 25A, 33 Sentencing Act 1989 (NSW)
Cases Cited:	Abdulrahman v R [2016] NSWCCA 192 DL v R (2018) 358 ALR 666; [2018] HCA 32 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 R v Todd [1982] 2 NSWLR 517
Category:	Principal judgment
Parties:	GC (Applicant) Regina (Respondent)
Representation:	Counsel: P Segal (Applicant) K Ratcliffe (Respondent)   Solicitors: Criminal and Traffic Law (Applicant) Office of the Director of Public Prosecutions (NSW) (Respondent)
File Number(s):	2015/194013
Publication restriction:	Non-publication order made on 27 October 2017 in respect of the identities of the complainants, extending to include the name of the applicant
Decision under appeal	Court or tribunal: District Court Date of Decision: 15 December 2017 Before: North DCJ File Number(s): 2015/194013

Judgment

1. THE COURT: The applicant seeks leave to appeal an aggregate sentence imposed in the District Court on 15 December 2017, of 15 years imprisonment with a non-parole period (“NPP”) of 9 years, for eight sexual offences involving three complainants, who were three of his four step-daughters: AC, JC and SC. The offences occurred between about October 1975 and October 1983, at which time each complainant was aged between 11 and 16 years.

2. The applicant entered pleas of guilty on the day that the trial was set to commence, following negotiations with the Crown, which resulted in 10 of the 18 counts on the original indictment being dealt with pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Act”), namely, by the offences being taken into account on a “Form 1”.

3. All of the counts and Form 1 matters were for offences pursuant to the Crimes Act 1900 (NSW) that have since been repealed and replaced with alternative offences.

4. The repealed offences and their maximum penalties at the relevant times are as follows:

• Section 61D(1): sexual intercourse without consent with a person under the age of 16 years (maximum penalty 10 years imprisonment);

• Section 71: carnal knowledge of a girl above the age of 10 years and under the age of 16 years (maximum penalty 10 years imprisonment);

• Section 73: carnal knowledge of step-child above the age of 10 years and under the age of 17 years (maximum penalty 14 years imprisonment);

• Section 76 (which was replaced in 1981 by s 61E(1)): assault of a female under the age of 16 years and commit an act of indecency (maximum penalty 6 years imprisonment); and

• Section 76A (which was replaced in 1981 by s 61E(2)): incite a girl under the age of 16 years to commit an act of indecency (maximum penalty 2 years imprisonment).

5. The offences and indicative sentences for each, together with the Form 1 matters that were taken into account with the relevant count, were as follows:

Count	Complainant	Age	Offence (repealed sections)	Date of Offence	Indicative Sentence
Count 1	AC	11 or 12 years	Section 71	October 1975 – November 1975	7 years
3 Form 1 matters	AC	11 or 12 years	Section 76 (two counts) Section 76A (one count)	October 1975 – November 1975
Count 2	AC	11 or 12 years	Section 71	January 1976 – December 1976	7 years
3 Form 1 matters	AC	10 or 11 years	Section 76 (three counts)	October 1975 – November 1975
Count 3	AC	12, 13, 14, 15 or 16 years	Section 73	January 1977 – December 1980	8 years
1 Form 1 matter	AC	12, 13, 14, 15 or 16 years	Section 73	January 1977 – December 1980
Count 4	AC	13, 14 or 15 years	Section 73	January 1978 – December 1979	8 years
1 Form 1 Matter	AC	12, 13, 14, 15 or 16 years	Section 73	January 1977 – December 1980
Count 5	SC	11, 12 or 13 years	Section 76 or s 61E(1)	January 1981 – February 1983	3 years
Count 6	SC	13 or 14 years	Section 61D(1)	February 1983 – October 1983	4 years
Count 7	JC	12 or 13 years	Section 61E(1)	January 1982 – February 1983	3 years
Count 8	JC	13 or 14 years	Section 61D(1)	February 1983 – October 1983	4 years
2 Form 1 Matters	JC	12 or 13 years	Section 61D(1) (one count) Section 61E(1) (one count)	January 1982 – February 1983

6. The applicant was aged 66 at the time of sentence. His criminal record comprised two counts of “carnal knowledge of a step-daughter under 17 years” pursuant to historical s 73 of the Crimes Act, for which he was sentenced in 1984, receiving wholly concurrent sentences of 6 years imprisonment with a NPP of 2 years.

Background to the offences

7. According to an agreed statement of facts that was tendered in the sentence hearing, the applicant commenced a relationship with the children’s mother (“BC”) and moved into their household in 1974, when he was aged approximately 22 years.

8. Shortly afterwards, the applicant began sexually touching AC, who was then about 10 years old. The applicant began sexually assaulting SC and JC, who are twins, in 1982, when they were in their first year of High School and aged 13 years.

9. The offending against all the complainants came to an end in October 1983, when JC alerted a school counsellor. Police then interviewed JC, SC and SAC. Both JC and SC recollected their mother urging them not to go through with making formal complaints. JC recollected telling police that the applicant had last digitally penetrated her about four months before.

10. During the course of submissions on sentence, the sentencing judge was informed that the two counts from 1984 on the applicant’s criminal record of “carnal knowledge of a step-daughter under 17 years” were in respect of the applicant’s fourth step-daughter, SAC. There was no other material or information before the sentencing court as to the circumstances of those two offences.

11. The three complainants made victim impact statements that eloquently expressed the terror they experienced at the time of the offences and the heavy impact of the offending on their lives as they unfolded.

12. Tendered on behalf of the applicant was a psychological assessment that was carried out between the time the applicant entered pleas of guilty and the sentence hearing. The applicant’s history, as related to the psychologist, was to the effect that he had two traumatic events in his childhood. The first was that when he was 4 years old, he and his sister, who was a year younger, were playing near a main road when his sister was hit by a car and killed. The applicant said that thereafter he had felt responsible for her death.

13. Following his sister’s death, the applicant was sent to live with his paternal grandmother for a period of time. She sexually abused him, by coming into his bedroom at night, hugging him and requiring him to touch her in a sexual manner. The abuse was repeated when, at age 10, the applicant was again required to live with his grandmother. The forensic psychologist opined that the applicant’s perception that his grandmother’s sexual abuse was normal and part of a loving relationship, may have contributed to him normalising adult-child sexually abusive relationships.

14. The applicant demonstrated a lack of insight into his offending behaviour, telling the psychologist that the victims were “affectionate” and “clingy” and suggesting his offending “unfolded from the closeness”. The psychologist recommended that the applicant partake in “offence-specific treatment” to assist him in developing awareness of his offending precipitants and potential future risk situations. She made other recommendations in relation to the applicant processing his grief over his sister’s death.

15. The applicant’s relationship with BC ended with the criminal charges in 1983. Shortly afterwards, he commenced a relationship with his current wife. The applicant has a good work history and did not report any issues with substance abuse. The applicant and BC had a child, a daughter born in 1975. A letter by her was tendered at the hearing, in which she described her father as kind, caring and hardworking.

16. The applicant gave sworn evidence. He expressed shame and remorse for his offences, saying he did not realise the impact his offending had on his victims’ lives. He said that he resided with his wife and his father-in-law, who had significant disabilities. The applicant had been his father-in-law’s full-time carer for two years. His wife worked full-time and would have to relinquish that if the applicant received a prison sentence.

The remarks on sentence

17. The sentencing judge outlined the applicant’s offending behaviour, the offences and the maximum penalties that pertained to them at that time, noting that their current counterparts have significantly higher penalties. His Honour carefully considered the objective seriousness of each count and the circumstances of each Form 1 matter, both individually and collectively, concluding that it was “a course of sexual molestation involving three young complainants over a period of eight years. It is therefore very serious criminal conduct”. His Honour fixed the seriousness of each count by reference to the range, finding that in relation to the offences against AC, counts 1, 2 and 3 fell mid-way between mid-range and high-range. His Honour appeared to have made a similar finding in respect of count 4, finding that it “really is similar to count 3”. His Honour found that the two counts against SC, being counts 5 and 6, were in the mid-range and that, of the two counts against JC, count 7 was mid-range and count 8 was just below mid-range.

18. His Honour found as aggravating features that most of the offences were committed in the complainants’ own bedrooms, and that the offences constituted a significant breach of trust, in light of the applicant being in a relationship with the complainants’ mother.

19. His Honour assessed the subjective features of the case, noting the applicant’s childhood trauma with the death of his sister in circumstances that left him feeling responsible, and his evidence of sexual abuse by his grandmother. His Honour said:

“[The applicant] said he is not trying to make this an excuse for molesting the young girls. He agreed that whatever happened, he knew that what he had been doing was wrong; he did it anyway.”

20. His Honour noted the applicant’s work history and, since his retirement, his responsibilities as his father-in-law’s full-time carer, his reasonably good health and his long relationship with his current wife. Most significantly, his Honour took into account the fact that the applicant had not reoffended in the period of 34 years since his earlier sentence.

21. His Honour found that the applicant had little insight into his offending and that, because it was committed over many years, “he had plenty of time during the course of his offending to think about what he was doing”. His Honour considered that only little weight could be given to genuine remorse and that, because of his lack of insight, “I can only say that his chances of not re-offending will increase as the years go by. He is now 66 and is therefore less likely to offend”.

22. His Honour expressly acknowledged the need for general and specific deterrence and that he would accumulate the sentences. His Honour allowed a discount of 10 per cent for the applicant’s pleas of guilty.

Ground of appeal

23. The single ground of appeal is as follows:

“The learned sentencing judge did not adequately have regard to the principle of totality in that he did not apply that principle to take into account the imprisonment of the applicant in 1984.”

The earlier offending

24. For the purposes of this application, the applicant’s solicitor has obtained copies of some of the original court documents relating to the applicant’s offences against SAC, which he annexed to an affidavit that was read at the hearing. They included a statement made by SAC to police bearing the date 31 October 1983, alleging multiple incidents of sexual intercourse without consent and involving both digital and penile penetration, attempted sexual intercourse without consent and acts of indecency over a four year period.

25. SC made a statement bearing the same date, alleging multiple acts of indecency over a 15 month period.

26. When police approached the applicant, they told him they were making inquiries in relation to “a number of allegations made by your three stepdaughters that you have sexually assaulted them during the past four years”. There are police statements referring to the arrest of the applicant and that he partook in records of interview. There is no indication as to whether the records of interview still exist.

27. A court list for 7 November 1983 at Tamworth Court of Petty Sessions lists five charges against the applicant: four charges of sexual intercourse without consent pursuant to s 61D of the Crimes Act, involving three counts against SAC and one against SC; and a charge of indecent assault pursuant to s 61E(1) in respect of SC.

28. There is a police document dated 26 June 1984, titled “Facts” which is addressed to “Your Honour”, in relation to SAC. It states that SAC gave evidence on 1 May 1984 in the Court of Petty Sessions which was “substantially different to the information she had supplied to police on 13 October 1983”. We consider that it is likely that the reference to the latter date is in fact to the statement made by SAC bearing the date of 31 October 1983. The police document goes on to note that SAC withdrew her allegation that two particular instances of sexual intercourse were non-consensual. Having regard to the criminal procedure of the time, that probably occurred at committal and would explain why the applicant was ultimately dealt with for two counts of carnal knowledge.

29. There is a reasonable inference that the applicant was not charged in relation to the criminal behaviour alleged against him by SC and JC because they did not wish to pursue their allegations. In this context, according to the agreed facts, when their mother became aware that her daughters had complained to the police, she told SC: “He’s my husband, please don’t do that. He’s your father, he loves you”. As well, she told JC: “Your father loves you, think about what you are going to say. I love him, don’t do this”. The children were then aged 14.

30. The Crown has tendered a copy of the remarks on sentence by Judge Ward of the District Court in 1984. His Honour was cognisant that the applicant had admitted to “more deviance than just those two episodes”, and stated that he would sentence him on the basis that the two counts were not isolated acts. However, it is apparent from the remarks that his Honour was referring to the applicant’s uncharged behaviour against SAC, and not the applicant’s criminal offending against his three other step-daughters which is the subject of this application, of which his Honour was presumably unaware.

The principle of totality and consideration

31. The principle of totality requires a sentencing court, when imposing a sentence for more than one offence, to review the aggregate sentence to determine whether it is just and appropriate: “It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences”: Mill v The Queen (1988) 166 CLR 59 at 63; [1988] HCA 70. It is uncontroversial to observe that where an offender has already served a sentence for offences that are closely related in time and character to the offences before the court, regard must be had to the principle of totality: Mill, citing R v Todd [1982] 2 NSWLR 517 at 519 with approval.

32. During the course of submissions, the applicant’s counsel alluded to the need to apply the principle of totality in the sentencing exercise, incorporating the 1984 sentence for the two offences against SAC, as follows:

“[COUNSEL]: … In his favour there has been no offending since he has served his period of custody, some 34 years.

…

I’d also ask your Honour to take into account had these matters been dealt with altogether totality would have been applied and I’d ask your Honour to approach the sentence on that basis.

HIS HONOUR: Well I can deal with the matter by way of an aggregate sentence. There’s got to be some recognition of the fact that there are three completely separate victims but keeping in mind the principles that he has to be sentenced in line [with] if it’s possible to determine what would have happened in the early 80’s an aggregate sentence might be an appropriate way to deal with it. Have you thought about that?

[COUNSEL]: I’d be content with that course but I’d also ask you to have regard to the sentence that has already been served.

HIS HONOUR: … He was in gaol for 18 months, he got two years on the bottom but in those days he probably got out a bit earlier.

[CROWN]: He did yes, 18 months.

HIS HONOUR: That’s what used to happen. That doesn’t happen these days, so whatever he gets for those who are in the back of the court, whatever he gets on the bottom he serves every day of it.”

33. As the transcript indicates, the sentencing judge did not expressly acknowledge the totality point being made by the applicant’s counsel in relation to the earlier offence. In his remarks on sentence, the sentencing judge referred to the offending against SAC, but not in a manner suggesting that he took it into account in fixing the sentence for the instant matters.

34. His Honour referred to the applicant serving gaol sentences in 1984 for similar offences involving the fourth stepdaughter, SAC, but only in the context of considering the applicant’s insight into the extent of his criminal conduct and as part of taking into account his antecedents. His Honour noted that the long parole period in the earlier sentences was a normal part of sentencing practice in that era.

35. Although, as the respondent submits, the various references in his Honour’s remarks to the earlier sentence establish that he was well aware of it, there is, in the Court’s opinion, no basis on which one can be assured that his Honour took it into account, as he was obliged to do in applying the principle of totality.

36. Accordingly, it is the duty of this Court to re-sentence the applicant. In conducting the required resentencing exercise, the Court makes the following findings.

37. The three complainants are sisters, AC and twin sisters, SC and JC. AC is five years older than SC and JC. They have another sister, SAC, who is one year older than SC and JC. Their mother, BC, resided with her four daughters at Hornsby in 1974 when she commenced a relationship with the applicant. Shortly after the commencement of that relationship, the applicant moved into the family home with BC and the children. The applicant was approximately 22 years old and the children were between 5 and 10 years old at the time. In November 1975, the applicant and BC gave birth to the applicant’s natural daughter, RC. The applicant and BC married in November 1976.

38. The applicant began to touch AC's vagina when she was about 10 years old, not long after he moved into their house at Hornsby. The applicant would come into her bedroom in the middle of the night and she would pretend to be asleep. He would take her hand and force her to rub his penis. By 1975, the applicant had begun to have penile/vaginal intercourse with AC. AC found this very painful and would be in pain in the days after it. It would hurt to urinate. In November 1975, when AC was 11 years old, her mother was in hospital for several days to give birth to RC. During that period, the applicant made AC sleep in the matrimonial bed, touched her vagina, made her touch his penis and had penile/vaginal intercourse with her. In 1976, the family moved to a house at Kootingal and AC moved into a bedroom adjoining the kitchen. During the night, after her mother went to bed, the applicant made AC climb through a window into the kitchen and the applicant would touch or kiss her vagina and have penile/vaginal intercourse with her on the kitchen bench.

33. In 1977, AC moved into another bedroom. The applicant would come into her bedroom, touch her vagina, have sexual intercourse with her and make her touch his penis. He would pretend he was assisting her during one of her asthma attacks.

34. The applicant began sexually assaulting SC and JC in 1982 when they were 13 years old. The applicant would come into the bedroom SC and JC shared at Hornsby. SC would be asleep and the applicant would wake her up. On one occasion the applicant put his hand on her vagina. This happened about five times while they were at Hornsby. In 1983, the family moved to Nundle. SC and JC slept on bunk beds and the applicant would come into their bedroom late at night. The applicant would place his hand on SC’s vagina and insert his fingers into her vagina. SC always pretended to be asleep. She was afraid of the applicant and would obey him without question. On other occasions, the applicant would put his finger into SC’s vagina and move it in and out, which caused her pain, or fondle her chest. SC would sometimes try to roll away but the applicant would force her back and continue to penetrate her from behind. Sometimes, the applicant would put her hand down his pants and force her hand up and down his penis.

35. After assaulting SC, the applicant would go to JC. In their house at Hornsby, the applicant would touch JC’s vagina and place his finger into her vagina for five to ten minutes. Sometimes, the applicant would make JC hold his penis and move her hand up and down his penis. In their house at Nundle, the applicant continued to touch JC’s vagina and place his finger into her vagina. This happened on at least four occasions. JC would pretend to be asleep throughout or while waiting for the applicant to finish with SC. She thought she would get into trouble if her mother or the applicant knew she was awake. JC did not tell her mother because she did not feel she would help her. She would be very sore afterwards.

36. In October 1983, JC spoke to a school counsellor and police then spoke to JC and SC. JC told the police that the applicant had last digitally penetrated her about four months before. Between speaking with the police and making their formal statements, both JC and SC recalled their mother telling them to change their versions of events and not to go through with making formal statements.

37. These offences were appalling attacks upon three step-children who were entitled to feel safe in their own home. These offences fall in the mid-range of objective seriousness.

38. Any re-sentence must be conducted on the basis of s 25AA of the Crimes (Sentencing Procedure) Act, which provides as follows:

“25AA   Sentencing for child sexual offences

(1)   A court must sentence an offender for a child sexual offence in accordance with the sentencing patterns and practices at the time of sentencing, not at the time of the offence.

(2)   However, the standard non-parole period for a child sexual offence is the standard non-parole period (if any) that applied at the time of the offence, not at the time of sentencing.

(3)   When sentencing an offender for a child sexual offence, a court must have regard to the trauma of sexual abuse on children as understood at the time of sentencing (which may include recent psychological research or the common experience of courts).

(4)   This section does not affect section 19.

(5)   In this section—

child sexual offence means the following offences regardless of when the offence occurred but only if the person against whom the offence was committed was then under the age of 16 years—

(a) an offence under a provision of Division 10, 10A, 10B, 15 or 15A of Part 3 of the Crimes Act 1900,

(b)   an offence under a provision of that Act set out in Column 1 of Schedule 1A to that Act,

(c)   an offence of attempting to commit any offence referred to in paragraph (a) or (b),

(d)   an offence under a previous enactment that is substantially similar to an offence referred to in paragraphs (a)–(c).”

45. The Court takes into account the sentence served by the applicant in relation to two counts of carnal knowledge involving the applicant’s fourth step-daughter, SAC. That sentence was imposed in 1984 and the applicant received a sentence of 6 years imprisonment with a non-parole period of 2 years. The two offences occurred in the same timeframe as the offences committed against SC and JC. The Court also takes into account the affidavit of Peter Williams affirmed on 13 November 2018, which establishes the facts in relation to the 1984 sentence proceedings in relation to two counts of carnal knowledge in relation to SAC. Also taken into account is the affidavit of Carolyn Griffiths sworn on 26 March 2019, in which Ms Griffiths annexed the reasons for sentence dated 1 November 1984 in those proceedings. Those reasons are also taken into account.

46. It is appropriate to make the same findings as the sentencing judge about the applicant's subjective case. In conducting the required re-sentencing, and in the absence of any challenge by the Crown, all of the findings favourable to GC made by the sentencing judge are accepted. As the High Court has made clear, the interests of justice will generally not be served by permitting either party to make a new or different case on the hearing of the appeal: DL v R (2018) 358 ALR 666; [2018] HCA 32 at [38].

47. Based on the findings made, and taking all of the matters favourable to the applicant that have been described above and taken into account, the Court would nevertheless have imposed a longer sentence and non-parole period upon the applicant.

48. In Abdulrahman v R [2016] NSWCCA 192, Bathurst CJ said:

“3   It seems to me that what is required by Kentwell v The Queen [2014] HCA 37; 252 CLR 601 is that once error on the part of the sentencing judge has been established, it is necessary to re-exercise the sentencing discretion to determine whether a lesser sentence is warranted in law. The Court, however, made it clear it was not necessary to resentence the applicant if it determined that no lesser sentence was warranted, although if it determined to resentence in those circumstances, it should inform the applicant so that he or she had an opportunity to withdraw the appeal: see also Neal v The Queen [1982] HCA 55; 149 CLR 305 at 308; Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 at 290.

4   In these circumstances, if on such a re-exercise the Court is of the view that no lesser sentence is warranted but determines not to resentence, then in my view it is sufficient to simply state this rather than indicating the hypothetical sentence which would have been imposed as a result of the re-exercise of the sentencing discretion.”

49. As the Court would have imposed a higher sentence than the sentencing judge, the Court simply records that matter and will not indicate the hypothetical sentence that would have been imposed.

50. Accordingly, leave to appeal is granted and the appeal is dismissed.

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Decision last updated: 18 October 2019