R v Gavin William McGAW

[2007] NSWDC 33

CITATION:	R v Gavin William McGAW [2007] NSWDC 33
HEARING DATE(S):	22/02/2007
JUDGMENT DATE:	22 February 2007
EX TEMPORE JUDGMENT DATE:	22 February 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	See paragraphs [37], [38], [39], [40], [41] & [42]
CATCHWORDS:	Criminal law - Sentence - Detaining for purposes of advantage - Assault - Joint enterprise - Aiding and abetting aggravated sexual assault
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
PARTIES:	Crown Gavin William McGaw
FILE NUMBER(S):	06/21/1091
COUNSEL:	M Barr (Crown) B Hancock (Offender)
SOLICITORS:	NSW DPP Nikola Velcic & Associates

SENTENCE

1 HIS HONOUR: Gavin McGaw appears for sentence today after having pleaded guilty to five very serious offences. When sentencing him for two of those, the fourth and fifth on the indictment, he asks that I take into account other matters on two separate Forms 1. I will take them into account as indicating a greater need for deterrence and retribution than would otherwise be the case.

2 The relevant events all occurred in the one episode of criminality. It was a period of disgraceful criminality. It involved the abuse of a young man for nothing more than the malicious, gratuitous and cruel enjoyment of a number of people. The young man was abused, and treated as inhuman, with no thought being given to his welfare by those involved, (with one qualification to which I will make reference later on).

3 On the evening of 2 August 2005 the offender was with a number of other young people, the oldest of whom was twenty and the youngest of whom was fourteen. The offender was eighteen himself and he was with his nineteen year old sister as well.

4 This group of people became friendly with a young man by the name of DS. He was only sixteen years of age. He was invited to go to a nearby unit with the group to drink some alcohol that they had agreed to purchase. Once there things were initially friendly and amicable between the group and DS.

5 However, without any apparent reason, a man by the name of Kenneth Dickson, he being the twenty year old, became aggressive. He approached DS and punched him to the face with a closed fist. He fell to the floor and when he tried to get up he was pushed down again. Mr Dickson continued to kick and punch into the complainant, including hitting him in the head.

6 This, not surprisingly, upset DS to the extent that he started to cry. Rather than creating any feelings of empathy on the part of anyone who was there, everyone seems to have almost delighted in the harm that was being caused to him.

7 The youngest of the group, a boy by the name of LK, joined in the assault on DS, punching and kicking him, including while he was on the ground. The offender was one of those who was present and watched what was going on. He watched the complainant cry. He watched the assault upon him but did nothing.

8 DS suffered a number of injuries as a result of this attack upon him. Photographs were tendered before me which show two black eyes, a cut to his eyebrow which required gluing and a number of lacerations as well as swelling.

9 After this assault was completed DS got back up and sat on a chair. He was told to keep his mouth shut and have a few drinks. He was given another drink, but a short time after that Mr Dickson again became aggressive. In fact he said to DS “I’m going to kill you”.

10 LK then told DS to get up and sit on a lounge chair. DS did what he was told but he asked to leave. Mr Dickson, LK and this offender would not allow this to happen. This was the beginning of a period of detention which resulted in the offender being charged with and pleading guilty to, an offence of detaining DS for the purposes of advantage, namely, sexual gratification, while in the company of Mr Dickson and LK immediately before that happening actual bodily harm being occasioned to DS. The injuries that I have referred to also amounted to a wounding but were not the subject of a separate charge.

11 After the detention of DS began LK armed himself with a blue plastic handled knife and fork and he began to stab DS to various parts of his body with these items. Mr Dickson stabbed DS in the head, the leg and the hands with a pair of black handled scissors. Mr Dickson also spat on DS, who put his hands up to defend himself suffering a stabbing to the palm and webbing of his hands as a consequence.

12 Those two attacks by LK and Mr Dickson with those weapons led to the offender being charged with and pleading guilty to an offence of malicious wounding of DS whilst in the company of Kenneth Dickson and LK on the basis that he was a participant in a joint enterprise with them, even though he himself did not actually use any of those weapons upon DS.

13 What was happening at the time that the unfortunate DS was being stabbed was that this offender, far from intervening, far from attempting to protect DS, watched and laughed as DS was repeatedly stabbed. DS constantly asked for the attacks upon him to stop but his requests were in vain.

14 It seems that the group were not satisfied with the indignity and terror they had inflicted upon DS because at this stage Mr Dickson said to LK that they were going to kill DS. LK said to DS “You’re going to be dead at the end of this night”.

15 The statement of facts records that upon hearing this DS became paralysed with fear, too scared to move. That response is entirely understandable. One can all too easily understand the terror that he must have felt upon hearing those words. He begged to be let go. He begged Mr Dickson. He begged LK and most relevantly for the purposes of sentencing Mr McGaw, he begged this offender also, but they all refused.

16 It is not quite accurate to say that they refused completely, because in response to the request to be let go, Mr Dickson said “Suck my penis and then we will let you go”. DS refused, but he was then made to lick and kiss the exposed penis and testicles, not only of Mr Dickson but also this offender. They took their clothing down to expose their genitals and forced the complainant to undergo the indignity of having to lick and kiss their genitals. If that was not bad enough, whilst he was being forced to do this both Mr Dickson and the accused spat on him, called him names and giggled.

17 The complainant was then made to kiss Jessica McGaw on the outside of her underpants in the vaginal area. Those three acts whereby DS was forced to lick and kiss the genitals of Mr Dickson and the offender, and to kiss the vaginal area of Ms McGaw, have led to the offender being charged with and pleading guilty to: inciting DS to commit an act of indecency upon Kenneth Dickson, DS being sixteen years of age; incite DS to commit an act of indecency upon the offender himself, DS being sixteen years of age; and also one of the Form 1 matters.

18 What I have recited is bad enough but it even gets worse. Although he had been told that he would be released if he performed the indignities I have described, of course he was not let go at all. He was made to remove his pants and underpants and to bend over a two seater lounge. Mr Dickson and LK seemed to be the prime motivators in doing what came next. LK obtained a wooden rolling pin. He obtained some sort of lubricant which he squirted into the hands of the complainant, DS, telling him to rub the cream between the cheeks of his bottom.

19 The complainant complied with these demands because he was told that if he did not do what was required of him he would have his throat slit with the scissors. DS did what he was told. LK hit DS on the head three times with the rolling pin. DS tried to see what was happening to him but every time he did he was hit again. The offender joined in by telling DS what it was that LK was using to hit him.

20 Then LK forced the rolling pin into the anus of DS. Not in a gentle manner but in a way that was seemingly designed to maximise the pain, suffering and injury that would result. He used the sole of his foot to force the rolling pin into DS’s anus, kicking it into him. He did this about three times. Of course this caused DS great pain and he begged LK to stop, screaming out in pain.

21 The offender aided and abetted what Mr Dickson and LK were doing and so he pleaded guilty to an offence of aiding and abetting the offences committed by Mr Dickson and LK that is whilst in the company of each other having sexual intercourse without DS knowing that he was not consenting.

22 Mr Dickson also took the rolling pin from LK and he began forcing the rolling pin into the anus of DS. That has led to the other matter on the Form 1. Again it seems far from doing anything to stop what happened the offender joined in, he assisted through his presence the commission of that offence. DS knew that the offender was nearby and he could hear laughter from other people while he was subject to this grave indignity.

23 Of course he asked for the assaults to stop and of course he asked to be allowed to leave, but of course his pleas were ignored. Eventually the assault with the rolling pin did stop. He turned around and saw that the rolling pin was on the ground covered with blood. The group simply sat around drinking. He was told not to pull his pants up and he was too scared to say or do anything. At this stage it appears that the offender did something that he should have done much earlier. He said to Mr Dickson who appears to have been with LK the leader of the group that they should let DS go.

24 Mr Dickson told the offender that if they did that then DS would go to the police and a fight between the offender and Mr Dickson arose. The offender was punched by Mr Dickson on more than one occasion. At about 2 o’clock in the morning LK took DS to the rear yard of the premises. DS, not surprisingly, thought that his life was about to end. When LK was distracted by urinating he jumped the fence and ran away.

25 He came across a stranger who saw that his face was covered in blood and asked if he was all right. She contacted 000. DS, in fear, ran away but he was located a short distance away trying to get help from local residents and was taken to Nepean Hospital where he was treated and admitted due to his injuries. He suffered a number of wounds and a number of other injuries. Photographs I have mentioned show the extent of some of those injuries. What is not described is any injuries to DS’s rectal area because an examination of that area was not conducted. He required stitches and treatment and dressing of other wounds.

26 I have taken a lengthy time to set out the history of what the offender did. This would be one of the most serious examples of criminal activity. There was a sixteen year old held for the evil gratification of others who, as I mentioned earlier in these remarks on sentence, must have cared nothing for DS as a human being, but regarded him merely as a plaything to be tortured for their own pleasure.

27 The offender, I am satisfied, recognises now how wrong his conduct was. He read to me in evidence today a statement that he had written out. I am satisfied that he is remorseful for what he has done. It is consistent with his attitude that he displayed towards the end of the events of the evening I have described when he, and he alone it seems, made an effort to have DS released. This remorse however was belatedly arrived at, only after the offender had committed those serious offences which I have set out.

28 He is now nineteen years of age. He had what was described as a dysfunctional upbringing. It was certainly difficult. He was exposed as he grew up to drug use, to anti-social behaviour and a psychologist who provided a report suggested that in those circumstances he would have regarded such behaviour as the norm. However it has to be said that even a person brought up in the conditions that Mr McGaw was, would know, and know full well, just how wrong it was to treat DS as he was treated that evening.

29 The offender has a criminal history but this is his first time in gaol. He has committed no earlier offences remotely approaching the gravity of these present offences.

30 Let me deal now with a specific issue. Count 5 on the indictment is, as I have said, an offence of aiding and abetting an aggravated sexual assault. I was told that that carried with it a standard non-parole period of ten years. I confess to having some doubts as to whether that is the case. The offence is described in the table to s 54D of the Crimes (Sentencing Procedure) Act as aggravated sexual assault. That may be a shorthand expression intended to cover aiding and abetting an aggravated sexual assault. However, I do note that it was the crown submission and Mr Hancock accepted, that the standard non-parole period would apply to an offence of aiding and abetting an aggravated sexual assault. However, of course, in this case the standard non-parole period is not of direct application because Mr McGaw pleaded guilty to count 5 on the indictment. The standard non-parole period nevertheless remains as a guide post to the appropriate non-parole period in the present case. Although the offence itself was an offence which I am satisfied was above the middle range in its objective gravity, the fact that the offender was an aider and abetter rather than a principal means that the objective gravity of the offender’s conduct was below the middle range of objective criminality of offences covered by the standard non-parole period. The offences are aggravated by the circumstance that they involve gratuitous cruelty. That includes those threats to DS in which he was told that he would be killed. They also include the way in which the sexual assault, the subject of count 5 was carried out. Although the penetration of DS’s anus with an object is an element of the offence, and thus it would be wrong for me to take that into account as a circumstance of aggravation, the particular manner in which the rolling pin was used, is such that I am satisfied that it did involve gratuitous cruelty and the particular manner of its use does thus amount to an aggravating circumstance which I will take into account.

31 I turn now to those matters of most assistance to the offender. It is to be noted that as far as I can determine, he was a follower rather than a leader this evening. As I have said, Mr Dickson and LK were the ones who seem to have decided what would happen to DS, and it was they who actually inflicted most of the harm upon DS.

32 The offender has not only pleaded guilty but offered to assist the authorities. I have read material relating to that issue and I am satisfied that the offender’s assistance will be of considerable value. Already one of the others involved has pleaded guilty but three trials remain. The offender’s assistance extends to him undertaking to give evidence for the prosecution in those three trials. That evidence will provide valuable and substantial support for the evidence of DS. I assess the value of Mr McGaw’s assistance quite highly. His assistance will also have the consequence that there is at least a risk that he will do his time in custody harder because of his cooperation with the authorities. Nor is this a matter which will be capable of being kept quiet. The three offenders against whom this offender will be giving evidence will know very shortly, if they do not already, of the offender’s cooperation with the authorities. His assistance is also further evidence of his remorse and the extent of the remorse he feels for what he has done. It is one matter as the offender did, to come into the witness box and express his sorrow, but it is another matter, and a further step which the offender has taken, to demonstrate that remorse by offering to give assistance and by offering to give evidence against others involved in this disgraceful episode.

33 I will not quantify the discount I have allowed for the plea of guilty separately from the discount I will allow for the combination of the assistance and the plea of guilty. I note that it was a late plea of guilty and so the discount I have allowed for assistance and the plea of guilty is forty percent.

34 These offences all occurred over the one course of criminal conduct but that does not mean that the offender should receive no extra punishment for his separate and individual acts of criminality. I am satisfied that it would be quite wrong to ignore the fact that the offender committed multiple acts of criminality: Five separate offences on the indictment and two on separate Forms 1. The fact that the offender has performed separate acts of criminality will be reflected in the partial accumulation that I have allowed for all five offences.

35 The offender is but nineteen years of age. There are principles which I must follow if I were to be sentencing the offender as a seventeen year old. Those principles do not fall by the wayside as soon as the offender reaches his eighteenth birthday. The developing maturity of a human being is a continuum rather than a bright line, and so I will take into account in the offender’s favour that he was more easily led than he would have been at an older age, and there are good prospects of rehabilitation which effect the sentence I will shortly announce on the offender. It will be substantially less than it would have been if the offender were an older man.

36 Mr Hancock asked me to find special circumstances in this case. I will do so. They relate to the offender’s youth, that this is his first time in custody, and that he has good prospects of rehabilitation. He will be assisted, and so the community will benefit, upon his release from custody for an extended period of supervision on parole. The sentences are as follows:

37 Count 1 on the indictment I sentence the offender to a fixed term of one year to date from 12 August 2005.

38 On count 3 on the indictment I sentence the offender to imprisonment for a fixed term of one year to date from 12 February 2006.

39 On count 4 on the indictment the offender is sentenced to imprisonment for a fixed term of one year to date from 12 August 2006. Those are fixed terms because of other sentences I will shortly announce.

40 On count 5 of the indictment I set a non-parole period of eighteen months with a head sentence of three years to date from 12 February 2007.

41 On count 2 of the indictment I set a non-parole period of one year with a head sentence of three years to date from 12 August 2007.

42 The non-parole periods of counts 5 and 2 will thus expire on 11 August 2008 on which day the offender is eligible to be released to parole. Those sentences on counts 4 and 5 are taking into account the matters on the Forms 1.