District Court
New South Wales
Medium Neutral Citation: R v Graham (a pseudonym) [2020] NSWDC 747 Hearing dates: 16 October 2020 Decision date: 16 October 2020 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Sentenced to a term of imprisonment of 15 years. Non parole period of 11 years.
Catchwords: CRIME — Child sex offences — Sexual intercourse with child <10 - Sexual intercourse with child >10 <14 - Sexual offences - Indecent assault - Circumstances of aggravation - Persistent sexual abuse of a child
SENTENCE – Maximum penalty life imprisonment
SENTENCE - Relevant factors on sentence – father and daughter- escalating abuse - age of child - period over which abuse occurred - abuse of position authority over the victim - breach of trust - need for care to double count aggravating features series of criminal acts – admissions on arrest - early guilty plea - impact of abuse on child – remorse or regret - COVID 19 not eligible for early release – impact of offender’s intellectual disability - special circumstances not required.
Legislation Cited: Crimes Act 1900
Cases Cited: DPP vDe La Rosa [2010] NSWCCA 155
R vHerring (1956) 73 WN (NSW) 203
Category: Sentence Parties: John Graham (the offender)
Director of Public ProsecutionsRepresentation: Counsel:
Solicitors:
Mr S Fraser, Public Defender (for the offender)
Mr D Scully, Deputy Senior Crown Prosecutor
Legal Aid NSW (for the offender)
File Number(s): 2019/00375480 Publication restriction: Pseudonyms have been used for the names of the accused and the complainant. Pursuant to s15A Children (Criminal Proceedings) Act 1987 and s578A Crimes Act 1900, 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 complainant. Identifying information has been removed from this version of the judgment to comply with the statutes
SENTENCE – ex tempore revised
Facts for sentence
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John Graham was born in 1983. His eldest daughter, the complainant, was born in July 2004. The family lived close to where Graham had grown up in southern Wollongong. The complainant is the eldest of his three children.
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In November 2019 a report was received by police about the possibility the complainant had been involved in sexual activity with Graham. The complainant disclosed to police that the offender had engaged in sexual activity with her from the age of eight. He had told her that this was normal. And, because she was young, she believed him. As she grew older she came to realise that what was happening was not normal, but the offender would still force her to do what he wanted. The events would usually occur in one of the bedrooms of the family home.
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Touching in a sexual manner became regularised. The acts included penile-vaginal intercourse. Sometimes a condom was used, sometimes it was not. The complainant said the offender took care not to…
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- AGLC
- R v Graham (a pseudonym) [2020] NSWDC 747
- Case
- [2020] NSWDC 747
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was to determine the appropriate term and non-parole period for Graham's sentence. The court considered several factors, including the escalating nature of the abuse, the age of the victim, the duration of the abuse, Graham's abuse of his position of authority, the breach of trust, and the need to ensure that aggravating features were not double-counted. Additionally, the court considered the impact of the abuse on the child, Graham's admissions on arrest, his early guilty plea, and the impact of his intellectual disability.
The court found that the appropriate sentence for Graham was a term of imprisonment of 15 years, with a non-parole period of 11 years. The court noted that while Graham had shown some remorse, this was not sufficient to warrant a reduced sentence. Furthermore, due to the severity of the crimes, early release was not an option. The court also noted that while Graham's intellectual disability was a mitigating factor, it did not warrant a special circumstances sentence. Overall, the court found that the sentence was commensurate with the gravity of the crimes committed.
The court ordered that Graham be sentenced to a term of imprisonment of 15 years, with a non-parole period of 11 years. The court also noted that Graham was not eligible for early release due to the nature of his crimes.
Orders
Orders of the court
Sentenced to a term of imprisonment of 15 years. Non parole period of 11 years.
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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