R v CG - [2020] NSWDC 107

District Court

New South Wales

Medium Neutral Citation: R v CG [2020] NSWDC 107
Hearing dates: 14 February 2020
Date of orders: 06 March 2020
Decision date: 06 March 2020
Jurisdiction: Criminal
Before: Hatzistergos DCJ
Decision:
See [87]

Catchwords: SENTENCING – Indecent assault – Committed over a period of 6 years – Two children involved – Children between ages of 5 and 12 years old throughout duration of the offences – Offender uncle to the children – Breach of position of trust or authority – Offences not isolated – Where complainants provided victim impact statements – Plea of guilty on first day listed for trial – 10% discount applied – Limited evidence remorse – Prior good character – First time in custody – Good prospects of rehabilitation – Evidence of impact on family members – Finding of special circumstances – Application of section 25AA of Crimes (Sentencing and Procedure) Act 1999 (NSW)
Legislation Cited: Children’s (Criminal Proceedings) Act 1987 (NSW), s 15A
Crimes Act 1900 (NSW), ss 61E(1), 76, 76A, 578A(2)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A, 22, 25AA, 28, 44, 53A
Cases Cited: Dipangkear v R [2010] NSWCCA 156
Georgopolous v R [2010] NSWCCA 246
Helboski v R [2006] NSWCCA 168
MC v R [2017] NSWCCA 316
Mill v The Queen (1988) 166 CLR 59
R v Bednarz [2000] NSWCCA 553
R v Borkowski [2009] NSWCCA 102
R v Christoff (2003) 140 A Crim R 45
R v Daley [2010] NSWCCA 223
R v Fidow [2004] NSWCCA 172
R v Gavel (2014) 239 A Crim R 469
R v Holder [1983] 3 NSWLR 245
R v Nelson (2016) NSWCCA 130
R v PGM [2008] NSWCCA 44
Wright v R [2006] NSWCCA 122
Category: Sentence
Parties: Regina (Crown)
CG (Offender)
Representation:
Counsel:
Ms F. Sullivan (Regina)
Mr G. Hoare (CG)
Solicitors:
Director of Public Prosecutions

File Number(s): 2017/270916
Publication restriction: Section 578A(2) of the Crimes Act 1900 (NSW) and s15A of the Children’s (Criminal Proceedings) Act 1987 (NSW) apply. Pseudonyms S and T are used for the victims, B for S’ brother and CG for the Offender

Judgment

The Offender has entered a plea of guilty and is to be sentenced in respect of 12 Counts as follows:-

Counts 1 and 2, being charges in the same terms: that between 1 January 1979 and 31 December 1981, at Leumeah in the State of New South Wales, he assaulted S and at the time of the assault committed an act of indecency on S, she being then a female under the age of 16 years, namely between 10 and 12 years. These are offences pursuant to s 76 of the Crimes Act 1900 (NSW), [1] and carry a maximum penalty of 6 years imprisonment;
1. Hereinafter referred to as “the 1900 Act”.

Count 3: that between 1 January 1979 and 31 December 1981, at Leumeah in the State of New South Wales, he committed an act of indecency towards S, a girl then under the age of 16…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v CG

Details

AGLC: R v CG [2020] NSWDC 107
Case: [2020] NSWDC 107
Decision Date: 06 March 2020

CaseChat Overview and Summary

In the case of R v CG, the defendant was convicted for multiple instances of indecent assault against two children, who were his nieces, spanning a period of six years. The victims were between the ages of 5 and 12 throughout the duration of the offences. CG breached his position of trust and authority as an uncle, committing these acts repeatedly against the children. The matter was heard in the NSW District Court, where the primary focus was on the sentencing of the offender who had pleaded guilty on the first day his trial was listed.

The legal issues before the court included determining the appropriate sentence for the defendant's serious and persistent offending behaviour, as well as assessing whether any special circumstances existed that warranted a reduction in his sentence. The court needed to consider the impact of the offences on the victims, the offender's degree of remorse, his prior good character, and his prospects for rehabilitation. Additionally, the court had to decide whether the statutory provision for a reduction in sentence under section 25AA of the Crimes (Sentencing and Procedure) Act 1999 (NSW) applied.

The court found that the case involved significant breaches of trust and authority over an extended period, causing substantial harm to the victims. Despite limited evidence of remorse, the offender's guilty plea on the first day of his trial was considered a mitigating factor. The victims' statements highlighted the profound impact of the assaults, and there was evidence of the lasting effect on family members. The court also acknowledged CG's prior good character and his prospects for rehabilitation. The special circumstances found included the significant impact on the victims and the family, leading the court to apply a 10% discount to the sentence. Consequently, the court passed a sentence reflecting these considerations.

The final orders were made at [87] of the judgment, taking into account all mitigating and aggravating factors, and applying the statutory provision for special circumstances.

Orders

Orders of the court

See [87]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v CG [2020] NSWDC 107
Hearing dates:	14 February 2020
Date of orders:	06 March 2020
Decision date:	06 March 2020
Jurisdiction:	Criminal
Before:	Hatzistergos DCJ
Decision:	See [87]
Catchwords:	SENTENCING – Indecent assault – Committed over a period of 6 years – Two children involved – Children between ages of 5 and 12 years old throughout duration of the offences – Offender uncle to the children – Breach of position of trust or authority – Offences not isolated – Where complainants provided victim impact statements – Plea of guilty on first day listed for trial – 10% discount applied – Limited evidence remorse – Prior good character – First time in custody – Good prospects of rehabilitation – Evidence of impact on family members – Finding of special circumstances – Application of section 25AA of Crimes (Sentencing and Procedure) Act 1999 (NSW)
Legislation Cited:	Children’s (Criminal Proceedings) Act 1987 (NSW), s 15A Crimes Act 1900 (NSW), ss 61E(1), 76, 76A, 578A(2) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A, 22, 25AA, 28, 44, 53A
Cases Cited:	Dipangkear v R [2010] NSWCCA 156 Georgopolous v R [2010] NSWCCA 246 Helboski v R [2006] NSWCCA 168 MC v R [2017] NSWCCA 316 Mill v The Queen (1988) 166 CLR 59 R v Bednarz [2000] NSWCCA 553 R v Borkowski [2009] NSWCCA 102 R v Christoff (2003) 140 A Crim R 45 R v Daley [2010] NSWCCA 223 R v Fidow [2004] NSWCCA 172 R v Gavel (2014) 239 A Crim R 469 R v Holder [1983] 3 NSWLR 245 R v Nelson (2016) NSWCCA 130 R v PGM [2008] NSWCCA 44 Wright v R [2006] NSWCCA 122
Category:	Sentence
Parties:	Regina (Crown) CG (Offender)
Representation:	Counsel: Ms F. Sullivan (Regina) Mr G. Hoare (CG) Solicitors: Director of Public Prosecutions
File Number(s):	2017/270916
Publication restriction:	Section 578A(2) of the Crimes Act 1900 (NSW) and s15A of the Children’s (Criminal Proceedings) Act 1987 (NSW) apply. Pseudonyms S and T are used for the victims, B for S’ brother and CG for the Offender