R v Garry Sage - [2013] NSWDC 216

District Court

New South Wales

Medium Neutral Citation: R v Garry SAGE [2013] NSWDC 216
Decision date: 03 May 2013
Before: Cogswell SC DCJ
Decision:
For 6 offences - sexual intercourse with person aged 14 to 16 (x 4), produce, disseminate or possess child abuse material (x 2) - an aggregate sentence of 3 years imprisonment, non-parole period 9 months. Order directing offender's release on parole on 29 January 2014.
For 2 offences of contravene apprehended violence order under s 166 of the Criminal Procedure Act 1986, s 10A dismissal.

Catchwords: CRIMINAL LAW - Particular offence - sexual intercourse with person aged 14 to 16 - series of acts of consensual sexual intercourse over months - sexual intercourse filmed on offender's mobile phone - produce, possess child abuse material - degrading photographs of victim - contravene apprehended domestic violence order - offender wrote to and made contact with victim. Sentence - relevant factors - gravity of sexual intercourse offences - offences low end of middle of range of objective seriousness - victim at lower end of 14 to 16 years age range - breach of trust - offender 5 years older than victim - degree of exploitation - no prior criminality given less weight as good character allowed offender into position of trust he abused - response to charges - remorse and contrition expressed in evidence - insight into behaviour and its impact - co-operation with police - guilty plea - 25 per cent discount - nature and circumstances of offender - complex psychological background and make-up. Sentence orders - exceptionally short non-parole period - special circumstances - impact of sending young person to gaol - first time in custody - need for lengthy period of psychological treatment and supervision upon release. Sentencing procedure - relevant material - victim impact statement - articulate - not specially aggravating.
Legislation Cited: Crimes Act 1900, s 66C(3), s 91H(2).
Crimes (High Risk Offenders) Act 2006.
Crimes (Sentencing Procedure) Act 1999, s 10A, s 50.
Criminal Procedure Act 1986, s 166.
Cases Cited: R v Lee [2010] NSWCCA 88.
Category: Sentence
Parties: Regina (Crown)
Garry Sage (Offender)
Representation: Solicitors:
C Summerfield, Office of Director of Public Prosecutions (Crown)
Benetatos White (Offender)

File Number(s): DC 2012/117558
Publication restriction: Pseudonyms have been used for the names of the offender and the child victim. Pursuant to s15A Children (Criminal Proceedings) Act 1987, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child victim. Identifying information has been removed from this version of the judgment to comply with the statute. Pursuant to s578A Crimes Act 1900 there is to be no publication of the victim's name or anything that may lead to identification of the victim. Identifying information has been removed from this version of the judgment to comply with the statute.

REMARKS ON SENTENCE

I am sentencing a young man who at the very commencement of his adult life has…

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 Garry Sage

Details

AGLC: R v Garry Sage [2013] NSWDC 216
Case: [2013] NSWDC 216
Decision Date: 03 May 2013

CaseChat Overview and Summary

The case of R v Garry Sage involved the defendant, Garry Sage, who was charged with multiple offences, including sexual intercourse with a person aged between 14 and 16, producing and possessing child abuse material, and contravening an apprehended domestic violence order. The offences arose from a series of consensual sexual acts that occurred over several months, during which the defendant filmed the acts on his mobile phone. The court was tasked with determining the appropriate sentence for these offences, taking into account various factors including the gravity of the offences, the impact on the victim, and the defendant's background and response to the charges.

The primary legal issues revolved around the objective seriousness of the offences, the age of the victim, the breach of trust, the defendant's character and background, and his response to the charges. The court needed to balance these considerations to arrive at a just sentence. The defendant's age, being five years older than the victim, and the exploitation inherent in the breach of trust, were key factors that the court considered. The court also noted the defendant's lack of prior criminal history, which, while positive in terms of character, was given less weight because it allowed him to gain the victim's trust. The defendant's remorse, insight into his behaviour, cooperation with the police, and a guilty plea were all considered mitigating factors.

The court concluded that the offences, though serious, fell towards the lower end of the middle range of objective seriousness. It took into account the victim's age, being at the lower end of the specified age range, and the complex psychological background of the defendant. The court decided that a 25% discount was appropriate due to the defendant's guilty plea. Given the special circumstances, including the impact of imprisonment on a young person and the need for psychological treatment and supervision upon release, the court imposed an exceptionally short non-parole period of nine months. The court also dismissed the charges related to the contravention of an apprehended domestic violence order.

The final orders included an aggregate sentence of three years imprisonment with a non-parole period of nine months for the sexual offences and child abuse material charges. The court ordered the defendant's release on parole on 29 January 2014. Additionally, the charges related to the contravention of an apprehended domestic violence order were dismissed.

Orders

Orders of the court

For 6 offences - sexual intercourse with person aged 14 to 16 (x 4), produce, disseminate or possess child abuse material (x 2) - an aggregate sentence of 3 years imprisonment, non-parole period 9 months. Order directing offender's release on parole on 29 January 2014.

For 2 offences of contravene apprehended violence order under s 166 of the Criminal Procedure Act 1986, s 10A dismissal.

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 Garry SAGE [2013] NSWDC 216
Decision date:	03 May 2013
Before:	Cogswell SC DCJ
Decision:	For 6 offences - sexual intercourse with person aged 14 to 16 (x 4), produce, disseminate or possess child abuse material (x 2) - an aggregate sentence of 3 years imprisonment, non-parole period 9 months. Order directing offender's release on parole on 29 January 2014. For 2 offences of contravene apprehended violence order under s 166 of the Criminal Procedure Act 1986, s 10A dismissal.
Catchwords:	CRIMINAL LAW - Particular offence - sexual intercourse with person aged 14 to 16 - series of acts of consensual sexual intercourse over months - sexual intercourse filmed on offender's mobile phone - produce, possess child abuse material - degrading photographs of victim - contravene apprehended domestic violence order - offender wrote to and made contact with victim. Sentence - relevant factors - gravity of sexual intercourse offences - offences low end of middle of range of objective seriousness - victim at lower end of 14 to 16 years age range - breach of trust - offender 5 years older than victim - degree of exploitation - no prior criminality given less weight as good character allowed offender into position of trust he abused - response to charges - remorse and contrition expressed in evidence - insight into behaviour and its impact - co-operation with police - guilty plea - 25 per cent discount - nature and circumstances of offender - complex psychological background and make-up. Sentence orders - exceptionally short non-parole period - special circumstances - impact of sending young person to gaol - first time in custody - need for lengthy period of psychological treatment and supervision upon release. Sentencing procedure - relevant material - victim impact statement - articulate - not specially aggravating.
Legislation Cited:	Crimes Act 1900, s 66C(3), s 91H(2). Crimes (High Risk Offenders) Act 2006. Crimes (Sentencing Procedure) Act 1999, s 10A, s 50. Criminal Procedure Act 1986, s 166.
Cases Cited:	R v Lee [2010] NSWCCA 88.
Category:	Sentence
Parties:	Regina (Crown) Garry Sage (Offender)
Representation:	Solicitors: C Summerfield, Office of Director of Public Prosecutions (Crown) Benetatos White (Offender)
File Number(s):	DC 2012/117558
Publication restriction:	Pseudonyms have been used for the names of the offender and the child victim. Pursuant to s15A Children (Criminal Proceedings) Act 1987, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child victim. Identifying information has been removed from this version of the judgment to comply with the statute. Pursuant to s578A Crimes Act 1900 there is to be no publication of the victim's name or anything that may lead to identification of the victim. Identifying information has been removed from this version of the judgment to comply with the statute.