R v Grant

[2022] NSWDC 718

District Court

New South Wales

Medium Neutral Citation:

R v Grant [2022] NSWDC 718

Hearing dates:

15 December 2022, 20 December 2022

Date of orders:

20 December 2022

Decision date:

20 December 2022

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Sentence of six years nine months imprisonment with a non-parole period of three years four months

Catchwords:

CRIME – Adult maintain an unlawful sexual relationship with a child

SENTENCING - Relevant factors on sentence – offending by female school teacher on primary school pupil – multiple acts of indecency and sexual intercourse over 2 year period – delay of over 45 years - significant increase in maximum penalty - impact of retrospective increase in maximum penalty - early guilty plea and acceptance of responsibility – offender otherwise of exemplary good character - offender’s choice not to challenge complainant’s version of events - no extra curial punishment in media attention – delay - offender’s age and ill health - assistance to course of justice- special circumstances - victim vindication – retribution - community abhorrence- need to balance many competing principles – what sentence does common humanity require

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999.

Cases Cited:

AJB v R (2007) 169 A Crim R 32

Burr v R [2020] NSWCCA 282

Clarkson [2011] VSCA 152

GP (a pseudonym) vR [2021] NSWCCA 180

Hili v The Queen, (2010) 242 CLR 520; [2010] HC 45

Magnussen v R [2013] NSWCCA 50

Mill v The Queen (1988) 166 CLR 59

Paterson v R [2021] NSWCCA 273

Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57

R v Burrell (2000) 114 A Crim R 207

R v Cattell [2019] NSWCCA 297.

R v Charlton, unreported NSW CCA 27/2/1976

R v Clarkson [2011] VSCA 152

R v D (1997) 69 SASR 413

R v Daetz [2003] NSWCCA 316

R v Engert (1995) 84 A Crim R 67

R v Fitzgerald {2004] NSWCCA 5; (2004) 59 NSWLR 493.

R v Gannon NSWCCA unreported, 19/8/84

R v Gavel [2014] NSWCCA 56

R v Gavel [2014] NSWCCA 56

R v Herring (1956) 73 WN (NSW) 203

R v Holyoak (1995) 82 A Crim R 502

R v Hornhardt [2017] NSWCCA 186

R v Kneedy [2000] NSWCCA 527

R v L, NSWCCA unreported, 17/6/96.

R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368

R v RB [2022] NSWCCA 142

R vSmith (1987) 44 SASR 587

R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309

R v Todd [1982] 2 NSWLR 517

R v Towse [2022] NSWCCA 252

R v Van Ryn [2016] NSWCCA 1.

R v Wilson (2003) 139 A Crim R 398

Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74

The Queen v Pham (2015) 256 CLR 550: [2015] HCA 39

Wright v R [2008] NSWCCA 91

Xerri v R [2021] NSWCCA 268

Young (a pseudonym) v R [2022] NSWCCA 111

Texts Cited:

New South Wales Legislative Assembly, Second Reading Speech, Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018 (NSW) (Hansard), 6 June 2018

Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (2017)

Sentencing - New South Wales Law Reform Commission 1999 - Report 79

Sentencing Violent Offenders in NSW South Wales, I Potas, The Law Book C Ltd 1980

The social dynamics and impacts of institutional child sexual abuse D T Kenny Judicial Officer’s Bulletin, September 2017, Volume 29 No 8

Category:

Sentence

Parties:

Gaye Grant (the offender)
Director of Public Prosecutions

Representation:

Counsel:
Mr R Steward (for the offender)
Ms N Keay, Deputy Senior Crown Prosecutor

Solicitors:
Kells the Lawyers (for the offender)

File Number(s):

2021/00182084

Publication restriction:

Pursuant to s15A Children (Criminal Proceedings) Act 1987, there is to be no publication of any information, picture or other material, including the name of the school, 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.

SENTENCE – EX TEMPORE REVISED

Introduction

1. Gaye Grant, now 77, has never been before a court before. With one serious exception she has led a blameless life as a primary school teacher, wife, mother, and grandmother. That exception relates to period of over two years, about 46 years ago, where she sexually abused one of her students. Now old and frail she faces sentence for crimes that in the 1970s carried maximum penalties of five years imprisonment. However, due to changes in the law and attitudes to crimes against children this century, Grant is for sentence today for an offence that carries a maximum penalty of life imprisonment - adult maintain an unlawful sexual relationship with a child: s 66EA(1) Crimes Act 1900.

2. When she was before the Local Court Grant indicated that she would plead guilty to this offence. She adhered to that plea when she appeared before this Court last week by video link. At the time she was in COVID quarantine. She has appeared in court today for sentence. I will, as I am required to do, reduce the sentence that I find otherwise appropriate by 25% to reflect the utilitarian value of that early guilty plea. The plea has other values to which I will refer.

3. There are agreed facts before the Court. They are detailed. I will not be reading out all of the details. The Court documents note that 16 specific incidents were originally charged. The facts as agreed refer to 12 of them. It is accepted that the incidents described are not an exhaustive list of the offences committed against the complainant by Grant and that they are representative counts.

4. Grant has trouble accepting all the details that are disclosed in these facts in; her conversation with the complainant in a pretext call, in admissions made to police and to her psychiatrist. But it is important to note that when the matter was before the Local Court, and today, her plea of guilty was entered on the basis of those facts. As is her right, Grant chose not to challenge the version put forward by the prosecution; a version based upon the complaints made by the victim in this matter.

Agreed facts

5. Gaye Grant was born in 1946. The complainant was born in 1967. Between 1967 and 1998 the offender was employed by a local Catholic school as a lay teacher. She was known amongst her students as the “cool” teacher. The complainant’s family knew her socially outside of school.

6. In 1977, the complainant, then aged ten, commenced year 5. The offender was his teacher. She treated him like a teacher’s pet and would at times drive him home from school. He appreciated her concern for him and confided in her about assaults inflicted upon him by an older sporting colleague. The offender provided him emotional support that he was not receiving from his parents. He felt comfortable being with her.

7. In April 1977 Grant arranged for him to come to her home. At the home she asked him to sit on her lap and encouraged him to fondle her breasts. The activity progressed to another room. It involved fondling and sucking on the breasts. Events like this occurred on many occasions until October 1977.

8. One offence particularised occurred during that period which involved the offender both kissing the complainant and masturbating his penis. Other occasions particularised involved breast fondling and masturbation. This then then led to penile/vaginal sexual intercourse - the first instance particularised being in October 1977.

9. The complainant would at times stay in the offender’s bed overnight. Other offences particularised involved an offence in a caravan on the side of the home of the offender, which occurred when her husband was not home. It progressed from kissing and fondling to penile/vaginal intercourse with the offender telling the child that she loved him.

10. They did not have sex on every occasion, but the complainant would spend a lot of time at the offender’s home hanging out and listening to music. The facts note between December 1977 and January 1978 there were multiple occasions when the two had penile/vaginal sexual intercourse in the caravan.

11. Another incident occurred during a camping trip to the South Coast. The offender’s husband did not stay as he had work and during that time the offender had penile/vaginal intercourse with the child. Oral intercourse is also detailed on another occasion.

12. The offender would buy the complainant expensive Christmas gifts.

13. In June 1979 there was another incident involving fondling of genitals and penile/vaginal intercourse was particularised. Other multiple incidents of sexual intercourse are referred to during that period. The offender coached the complainant about what he would say if her husband caught them together

14. By this time the complainant was in high school. As he matured, he realised that what was occurring was not normal or right. He started to distance himself from the offender. Eventually while at a party at the offender’s home he spoke to her and told her he was “breaking it off” and was not doing it anymore. What he said made Grant become visibly upset and cry.

15. In mid‑1979 she wrote to him apologising and saying that she loved him.

16. After this the two met a couple more times at family celebrations but there was no further sexual activity.

17. The complainant told a friend what had occurred. He also confessed at church - he was told to make penance. He later told his wife. He did not tell his parents as he did not believe they would believe him, as they were devout Catholics.

18. Eventually in 2020 he did tell them, but he still did not receive the support he felt he needed. He took the matter to the police and a surveillance device warrant was granted by a justice of the Supreme Court.

19. On 21 June 2021 there was a covertly recorded exchange. He raised the issue and the offender said, “Please don’t do anything terrible to me, I know I’ve been saying to God all the pain has given me, back problems, and everything else, I take it as penance because I am very sorry for anything I ever did, you know I’m very sorry…If I could turn back time nothing would ever happen. I’ve had my issues. It was nothing intentional ever to hurt you, I thought the world of you, you know that”.

20. During that pretext call the complainant said, “I wish it didn’t happen as well, I want to talk about why it happened, you know, why it ended up being sexual”.

21. There was a second call the following day the complainant said, “I don’t understand why ever it happened, why the relationship became sexual over that period of time and how long it went on for but anyway it is what it is”. He told Grant he was really struggling with why, “I really questioned why it was me sort of.” She replied, “I don’t know why either to be honest, I don’t know why either, I don’t know anyway”.

22. The offender was spoken to by police on 24 June 2021. She declined an offer of legal advice. She participated in an electronically recorded interview. She admitted to writing a letter, although the content she remembered differently to what the complainant recalls it said.

23. The allegations of multiple sexual misconduct were put to her. She said she could not recall the incidents, but she admitted she had had sexual intercourse with the complainant but not on as many times as he has made out. She later made further admissions about having penile/vaginal sexual intercourse at her home and that she was aware of the complainant’s age at the time. She told police she accepted that she had said what was recorded in the surveillance device and said she was “sorry.”

Objective seriousness

24. An offender maintains a sexual relationship with a child if there is a course of sexual activity involving successive acts committed frequently enough to provide an element of connection, a continuity so coherent that sexual activity may be seen to be maintained by the perpetrator; R v RB [2022] NSWCCA 142 at [54].

25. Factors that bear on an assessment of the objective seriousness of s 66EA include:

1. The number of sexual offences which were committed on separate occasions by the offender against the victim.

2. The nature of the sexual offences committed by the offender against the victim.

3. The age of the victim at the time of the ingredient offences.

4. The period of time during which the ingredient offences were committed.

5. The age of the offender at the time of the commission of the ingredient offences.

6. The age differential

7. The context in which the offender had access to the victim to commit the ingredient offences.

8. The time which constituted the offence; GP (a pseudonym) v R [2021] NSWCCA 180 at [63]; Burr v R [2020] NSWCCA 282 at [106].

26. Here the offending comprised of; kissing, masturbation of the child’s penis, fellatio and penile/vaginal sexual intercourse. The offences commenced when the child was in year 5, aged 9 or 10, and continued until he was in year 7 at school aged 12 or13. There was an extended period of offending of over two years. Grant was about 20 years older than the child. Sixteen (16) counts were charged but twelve (12) are particularised in the agreed facts. They are indicative of a course of conduct involving many instances of similar activity.

27. As his teacher the complainant looked to Grant for support and mentoring; support he was not getting from his parents. She exploited that relationship and his age and his vulnerability. She abused her position of authority as a respected schoolteacher, who had control over the lives of her pupils.

28. Individually each instance of abuse was serious. Collectively this means that this matter, taking into account its objective features only, is a very serious example of a maintained sexual relationship offence.

29. I was not asked to, nor do I, place the offender’s conduct within a graded scale of objective seriousness. Such scales involve a high level of imprecision as judges weigh various factors, most of which are impressionistic differently. In some cases, an attempt to locate the objective serious offence on a hypothetical range of seriousness can be unhelpful: Paterson v R [2021] NSWCCA 273 at [32] to [33]. As said I trust it is clear that I do not underestimate the seriousness of what occurred and what was done to this young child.

Maximum Penalty and pattern of sentencing

30. Careful attention to the maximum penalty, here, life imprisonment, is required. That maximum operates retrospectively: Xerri v R [2021] NSWCCA 268. That maximum penalty reflects what is known about the lifelong impact of such offending on a child: GP (a pseudonym) v R, at [18]. It is a sentencing measure to be balanced with all other relevant factors.

31. Section 66EA is a relatively new offence with retrospective operation. The individual offences which make up the current offence at the time carried five years imprisonment: s 81 Crimes Act.

32. The history of s 66EA, is set out in the decisions of the Court of Criminal Appeal in Burr, R v Towse [2022] NSWCCA 252 and R v Fitzgerald {2004] NSWCCA 5;(2004) 59 NSWLR 493.

33. Although I am sentencing in 2022 for offences that occurred between 1977 and 1979, I must sentence the offender in accordance with the sentencing patterns and practices at the time of sentencing: s 21B Crimes (Sentencing Procedure) Act 1999. Today’s sentencing practices have been influenced by the significant increases in maximum penalties for offences against children since the 1970s and the removal of provisions that in the 1970s distinguished between offences against male and female victims.

34. Today’s sentencing practices have been informed by many things but most recently by the Royal Commission into Institutional Responses to Child Sexual Abuse: Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (2017).

35. While I must have regard to the duration of the offending, the seriousness of the offences involved and the frequency of the offending I do not fix on a sentence by multiplying the number of individual offences identified by the then applicable maximum penalty; see R v Fitzgerald at [13], citing Doyle CJ in R v D (1997) 69 SASR 413 at 419.

36. I note that s 55 of the Crimes (Sentencing Procedure) Act still notes that absent a judicial direction, sentences should be concurrent. That provision reflects the recommendations of the 1999 New South Wales Law Reform Commission Report Sentencing which noted that offenders should not be subject to a penalty that is excessively severe having regard to the total criminality of the incidents concerned, or because a maximum sentence is not available to make the effective total sentence for all offences long enough to reflect the principle of totality or to denounce separate crimes; [8:30] – [8:31]..

37. However, since Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, a judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrency as well, of course, as questions of totality and that the practice has been to partially accumulate individual sentences.

38. These matters must all be taken into account when I consider the application of s 66EA. But importantly here I must also apply s 66 EA (8) Crimes Act:

39. A court when imposing a sentence for an offence under this section constituted by an unlawful sexual relationship, that existed wholly or partly before the commencement of the relevant amendments, must take into account but is not limited by the maximum penalty for the unlawful sexual acts engaged in by the accused during the period in which the unlawful sexual relationship existed.

40. When originally introduced in 1998 section 66EA’s maximum penalty of 25 had retrospective operation. That maximum was increased in 2018 to life imprisonment following a suite of reforms based on the specific recommendations of the Royal Commission. In introducing the Bill and when referring to s 66EA the Attorney General said;

“The offence will apply retrospectively as long as the sexual acts that make up the unlawful sexual relationship were illegal at the time they were committed. This was a key part of the Royal Commission’s recommendation that will ensure that the new provision can be used from the time of its commencement to prosecute long‑term ongoing abuse.

The Royal Commission recommended that the offence amended so that “the offence applies retrospectively but only to sexual acts that were unlawful at the time they were committed”, and, “on sentencing regard is to be had to relevant lower statutory maximum penalty if the offence is charged with retrospective application”; New South Wales Legislative Assembly, Second Reading Speech, Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018 (NSW) (Hansard), 6 June 2018. Cited in Xerri .

41. The retrospective application of maximum penalties well in excess of those that applied at the time the offences were committed means that principles of general deterrence must be moderated. Offenders are presumed to know the consequence of their criminal actions and the punishment that the law will extract if they offend. This principle, often referred to under the rubric ‘fairness”. Itis reflected in s 19 Crimes (Sentencing Procedure) Act, which I note does not apply here.

42. Even if general deterrence is a theoretical rather than an evidence-based concept, it cannot occur when the sentence is increased after the offending. It cannot have its full and anticipated application when the maximum sentence available is increased after the offending. Generally, when maximum penalties are increased, they are not retrospective. But where Parliament manifests an intention that a new sentencing regime operate retrospectively the Courts will give effect to that intention: Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74 at 662. But I repeat, principles of fairness must apply, and that principle of perceived fairness is not narrowly confined: R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368.

43. During the period 1974 to 1976 sentences for matters of offences pursuant to s 81 Crimes Act, as it then was, were more likely to result in the offender being placed on a recognizance than any other disposition with two out of three offenders receiving bonds. With regard to imprisonment no tariff was discernible with the penalties spread evenly up to the prescribed maximum with the use of imprisonment commonly at about half the maximum penalty level: Sentencing Violent Offenders in NSW South Wales, I Potas, The Law Book C Ltd 1980, at 2057 – 2066.

41. A case review by Mr Potas, as might be expected, revealed no cases involving a female perpetrator let alone a female schoolteacher. At the time only offences by male schoolteachers were specifically prescribed in the Crimes Act in ss 73 & 74. The cases reviewed did not contain as many counts as those particularised here. The Court of Criminal Appeal, at the time, did note the need to protect young people from assaults of this nature: R v Charlton, unreported CCA NSW 27/2/1976.

Other cases

45. I have been referred to Judicial Commission statistics and a number of authorities, many of which were summarised in Towse and Burr. I accept the guidance offered by those decisions, but the consistent application principle requires careful consideration be given to other decisions. However, sentencing is a discretionary judgment and the mix of factors that must be weighed in determining the appropriate sentence will never be precisely the same as in a past case or past cases: The Queen v Pham (2015) 256 CLR 550: [2015] HCA 39; at [46], applying Hili v The Queen, (2010) 242 CLR 520; [2010] HC 45.

Victim Impact

46. Today the complainant read his Victim Impact Statement to the Court. One cannot but be moved by it. He said the offending stripped him of his innocence and restricted his full potential both in education and other aspects of his life. He said it changed his personality, his physical and mental health, culminating in him leaving work early due to mental illness.

47. He has had to live with the embarrassment and shame. He believes he will carry the memories of what occurred to his grave - a lifelong burden.

48. He says that he did reveal what occurred inside the confessional but received nothing other than some sort of prayers, which he had to perform.

49. He says he developed trust issues because of the control and grooming by the offender and because he had been deliberately isolated by her. He says her words “I love you” still reverberate to this day. Now, as a mature man he sees his younger self as a “toy doll” that she could pick up and play with.

50. Once he became a father the impact of this offending really came home to him. To this day he has nightmares and has sought to deal with the problems by maladaptive use of drugs and alcohol.

51. He feels a burden, the burden he has carried all of his life. In his statement he details the impact the permanent stress has had on him psychologically and physically, things he refers to as “scars.” He notes psychological conditions he has been diagnosed with but says he has been fortunate to receive excellent counselling. He details the physical harms and the economic loss he has suffered.

52. He speaks positively of the future, of; “Having the courage and being brave enough to speak out about my abuse has given me the strength to stand up for myself and ensure that justice is served in other areas of my life as well”. He thanks the many people who have provided support to him.

53. A report from a psychologist was attached to the Victim Impact Statement. It notes that the offending had a significant impact psychological impact on him and also impacted on his academic potential and career trajectory. The psychologist notes that he will have ongoing difficulties but that he will be assisted by the ongoing treatment he is receiving.

54. A Victim Impact Statement attests to the personal harm suffered as a direct result of the offence. I have no difficulty accepting what is set out in the Victim Impact Statement and the supporting psychologist’s report. Both documents serve the very practical purpose of drawing to the offender’s, the Court’s, and the community’s attention the personal and economic harm caused by this crime.

55. 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. Sexual offences have always been treated seriously by the courts, but in recent years the available maximum penalties have increased significantly to recognise the fact that every act that involves the sexual exploitation of a child is serious. There is and was an absolute prohibition on sexual activity with a child. That prohibition is intended to protect children from the psychological and physical harm taken to be caused by premature sexual activity: Clarkson [2011] VSCA 152; R v Gavel [2014] NSWCCA 56; R v Van Ryn [2016] NSWCCA 1.

56. The diversity of abuse experiences means that the outcome of child sexual abuse will also be diverse. The effects of child sexual abuse depend on many factors, including the age and gender of the child, the age and gender of the perpetrator, the nature of the relationship between the child and the perpetrator and the nature, number, frequency, and duration of the abuse experiences. Symptom constellation varies depending on the age, family environment and amount of love and support the child feels, the degree of disruption to the family and the child that follows disclosure or the degree of reconciliation and repair that can follow such disclosure. Whether a child is believed or believes they will be believed is another matter: The social dynamics and impacts of institutional child sexual abuse, D T Kenny, Judicial Officer’s Bulletin, September 2017, Volume 29 No 8.

57. Here, I accept, because of all those factors, the harm done to the complainant as described in his Victim Impact Statement. By coming forward he is now getting the support he should have got decades ago, and his life is improving.

58. As I noted when the statement was read, the sentence I impose is only one indicator of the seriousness with which the Court views the crime committed. A sentencing court must take into account all relevant considerations. This means that a direct correlation between the harm done and the time to be served is impossible. A complainant of a sexual crime, particularly a child complainant, should never equate or measure his injury with the punishment actually inflicted.

Case for the offender

59. Grant did not give evidence. I received some documents that went to the issue of extra curial punishment. I received the criminal antecedents, which note she has no criminal antecedents. I received three written references from people who know her well. I received a helpful report from a respected forensic psychiatrist, Dr Olav Nielssen.

Extra curial punishment considered

60. On the issue of extra-curial punishment: a court may when sentencing properly take into account that the offender has already suffered some serious loss or detriment as a result of having committed the offence. This can include instances where an offender has suffered substantially from personal harassment by the media or received a large volume of what could be described as hate communications, as commonly occur now with Twitter, Facebook and the like. In such cases it is recognised that punishment can commence, in a real sense, before sentence: R v Daetz [2003] NSWCCA 316; R v Wilson (2003) 139 A Crim R 398 at 411; R v Holyoak (1995) 82 A Crim R 502.

61. Here, the consequences noted in the exhibits tendered are in the general sense common to all offences subject to custodial sentences for offences of this type. Obviously, the rarity of offending by a female schoolteacher against a primary school pupil and the time delay have attracted the attention of the media and others in the community, including local Catholic schools noting the Catholic Church now takes such matters very seriously. Local schools now advise that anyone in a similar position can go to the police and receive the school’s support.

62. But a fair report of the proceedings of the Local Court and a letter from a local school could not rise to the level requiring a reduction of sentence because of extra-curial punishment.

Family Impact

63. I accept and will take into account the impact on the offender’s family. She understandably feels for them as they are innocent of any offending themselves, have had to endure the shame and humiliation that she has brought on the family.

Otherwise of good character

64. As I have noted, the offender did not give evidence. Her referees speak of a kind, selfless and loving person, involved in community activities. She is a mother and grandmother, and she is described as an excellent citizen who is generous with her time, including fundraising for many committee activities. She has always been there whenever a family member or neighbour needs help.

65. Apart from this extended period of offending, that seems to be the pattern of her life. I have not heard from immediate family members, but I am told, in a low-key way, that they will still provide prosocial support for her.

66. While the prosecution accepts that Grant was otherwise, and I emphasise that word “otherwise,” a person of good character, that good character carries less weight where, as here, there was a determined and conscious course of offending over years: R v Kneedy [2000] NSWCCA 527 at [21] – [22]

Psychiatric opinion

67. Dr Nielssen, a respected forensic psychiatrist, reviewed Grant’s personal history, psychological history, and medical history. The only controversial aspect of his report was Grant’s statement that some offences described by the complainant did not match her memory of events, as she now believes some of what the complainant described, to be impossible. She nevertheless adhered to her guilty plea and accepts she is to be sentenced, based upon the agreed facts that are before the Court.

68. Grant reports a disturbed childhood where both parents had their problems and were very distant towards her. She reports one incident of inappropriate sexual behaviour towards her. She describes her early family life as sheltered and restricted by her Catholic education. That continued during her married life.

69. She married young and continued to love her husband, “in their own way,” despite some abusive behaviour. They remain married after 53 years together.

70. She reports being depressed after the birth of her children and what she regards as an unfounded complaint against her for hitting a child in 1978.

71. She worked as a primary school teacher for about 32 years from 1968. Her sister reported to Dr Nielssen that she remembers a change in Grant’s behaviour in the early seventies after her second child was born. At that time, she was having difficulties with her husband. She does not now drink alcohol or use illicit drugs and she rarely drank when she was younger.

72. Dr Nielssen reviewed Grant’s medical and other documentation. She was treated for thyroid cancer in 1980. She has had knee and hip replacements. She has been treated for colonic polyps, diabetes, hypertension, spinal curvature of the neck and narrowing lumbar nerve outlets. She takes a variety of medications for her many conditions. A mental health assessment from 17 March 2022 noted “thoughts of not wanting to be here...likely suffered from depression in the past, a lot of trauma in her life”. She was referred to a psychologist.

73. In Dr Nielssen’s opinion Grant has an anxiety disorder with symptoms including panic attacks, and in the past, she has suffered severe depression which resolved without treatment. He considered the possibility she had some form of psychotic illness at the time of the commission of the offence, but her history did not match the few cases he had seen of similar behaviour by women towards prepubescent boys where psychotic symptoms could be found.

74. Dr Nielssen concluded Grant does not have a disorder of abnormal sexual interest or any other proclivity for which specialised sexual offender counselling is recommended. It was likely, he said, that at the time of offending she had significant anxiety about sexual matters because of events in her upbringing and the effect of being taught by nuns during the 1950s, a period of particularly severe repression of sexual expression by the church. He found that the probability of further similar offences is low, given her age and poor health.

75. Grant, he said, had no impairment in her cognitive functions despite some disorganised thinking and a number of chronic conditions for which medication and treatment are available. He noted, however, that such medication and treatment would not be as accessible in custody as in the community. In gaol one cannot simply pop down to the chemist or to visit a GP, one is totally reliant upon facilities provided by Justice Health.

76. Dr Nielssen noted that her experience of gaol will be more onerous than most other prisoners because of her age and her poor health, including chronic physical discomfort and limited mobility. He said she will benefit from ongoing supportive psychological counselling and advice on management of anxiety symptoms.

COVID

77. Grant will enter custody during the COVID pandemic. It is uncontroversial that she will be subject to; quarantine, regular lockdowns in cells, restrictions on visits and limited access to programs as a consequence of measures taken by Community Corrections to reduce the impact of the pandemic on prisoners.

No remorse but assistance to the course of justice

78. There is clear evidence of an acceptance of responsibility, including acceptance of facts about which she still retains personal doubts.

79. Grant’s disclosures and admissions went beyond the purely utilitarian. Not just in the pretext call, and police interview but because she chose not to contest the extent of the complainant’s recall of events.

80. In the pretext call she gave the complainant her personal apology and referred to the penance she feels she has done as reflected in her chronic ill health.

81. That said, from all the material before me, there is no evidence she has shown any insight into the impact of her offending on the complainant.

82. While I cannot find that she has shown remorse, I accept that she now, and perhaps even at the time, she cannot explain to herself, let alone others, why she did what she did. Whether that is because of shame or embarrassment I do not know.

83. I note that in particular cases, especially sexual assault cases and crimes involving children, there is a particular value in avoiding the need to call witnesses, especially victims, to give evidence: R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [3].

84. The practical assistance of the course of justice here has been significant and as it goes beyond the purely utilitarian, it must be taken into account in reduction of sentence.

Ill health

85. Offenders generally cannot escape punishment because of the condition of their health: R vSmith (1987) 44 SASR 587. Ill health is, however, a factor that can mitigate punishment particularly where, as here, imprisonment will be a greater burden on the offender by reason of chronic and difficult to manage conditions.

86. Courts do not underestimate the lived experience of gaol particularly for those who, like Grant, are older with debilitating physical conditions: R v Burrell (2000) 114 A Crim R 207 per Mason P, at [27]. Such factors can warrant a longer period on parole and a finding of special circumstances. Care, however, should be taken not to double-count such mitigating factors and ill health does not necessarily mean that a prison sentence should not be imposed or that the sentence should be less than the circumstances the case would otherwise require: R v L, NSWCCA unreported, 17/6/96.

Delay

87. In some historical sexual assault cases a child sexual offender does not necessarily benefit from the extensive delay in the revelation of offences: R v Hornhardt [2017] NSWCCA 186; R v Cattell [2019] NSWCCA 297.

88. Each sentencing exercise is individual and there is no general principle about the extension of leniency arising from delay. Here the very nature of the offending and the relationship between the complainant and the offender made him reluctant to come forward and make a complaint.

89. Studies before the Royal Commission show it is not uncommon for male victims of child sexual assault not to disclose the abuse for many years. If one feels guilty about an experience it is only a small step for an immature mind to draw the conclusion that one has been bad and it is the child’s fault the abuse occurred. Hiding from consequent shame can be a potent deterrent to disclosure.

90. Grant has not until these matters came to light suffered the opprobrium from the community her crimes deserved. She did not lose her liberty in the 1970s as she surely would have: Magnussen v R [2013] NSWCCA 50, at [62]. She did not lose her job in the 1970s, as she would have if these matters had come to light.

91. The delay does, however, mean she has lost the opportunity to have been dealt with when the maximum penalties were much lower, and sentencing patterns and principles were different prior to the amendments to the sentencing regime brought about long after her crimes were committed: Young (a pseudonym) v R [2022] NSWCCA 111; s 25AA Crimes (Sentencing Procedure) Act.

92. Additionally, she did not offend before these acts occurred and the offending ceased in 1979 and she has not committed any crimes since the complainant told her he did not want it to continue.

93. Sentencing for a stale offence long after the commission of the offence calls for a considerable measure of understanding and flexibility: R v Todd [1982] 2 NSWLR 517 at 519; Mill v The Queen (1988) 166 CLR 59 at [14].

94. The delay in bringing this matter before the Court does operate to the offender’s advantage by providing her the opportunity to demonstrate this offending, serious though it was, was an aberrant period when viewed against the course of her life. She has demonstrated her capacity for rehabilitation by not offending: AJB v R (2007) 169 A Crim R 32; Wright v R [2008] NSWCCA 91.

95. Offenders are entitled to have evaluated in their favour any factors deriving out of their conduct during the period which reflects to their advantage: R v Gannon NSWCCA unreported, 19/8/84.

Special circumstances

96. Grant’s ill health, her strong prospects for rehabilitation and need for support on release, particularly after a lengthy period of custody, the need not to break prosocial supports with others in the community all provide a basis for a significant finding of special circumstances.

Submissions

97. I am indebted to Ms Keay, Deputy Senior Crown Prosecutor, and Mr Steward, counsel for Grant, for their comprehensive written submissions and the oral submissions which occurred today. I hope this judgment does justice to them.

98. There was little difference between them on matters of principle and law, although considerable difference in emphasis on the application of those principles.

99. I do not intend to explicitly refer to each of the matters raised, but I have considered and attempted to address them in coming to my determination as to the appropriate sentence.

Synthesis

100. This sentencing exercise is another example of where the interplay of the considerations relevant to sentencing are complex and intricate because the applicable principles point in different directions: R v Engert (1995) 84 A Crim R 67. Here, the objective seriousness of what occurred is relatively high, whether assessed according to 2020s’ or 1970s’ sentencing patterns and principles.

101. I am, however, obliged to take into account the maximum penalty available for each discrete act of offending, at the time five years, and also take into account the current maximum as guides to the exercise of my discretion.

102. I must also apply current sentencing patterns and practices. They reflect not only the new appreciation of the harm caused by child sexual assaults but also the new penalty regimes. That new appreciation applies not just to judges but to all in the community, including those like Grant, who offended against a child decades ago.

103. I must balance these new practices and maximums with the need to make proper allowance for the retrospective operation an offence that was not current in the 1970s (with a maximum penalty that could not have applied back then), and the application of fairness principles, to which I have already referred.

100. The current sentencing practice that would have required accumulation beyond the maximum available for a single offence would have been rare in 1978, but cases such as this would have been rare in the 1970s, as they are now. Had they come to light then a deterrent sentence would have been expected and imposed, as would now.

101. While there is no need for this sentence to specific deter the offender, as she has not offended since, a retributive sentence is still required. A proper sentence marks the Court’s view of the seriousness of the crime and lets other wrongdoers know the retribution which will fall upon them if they commit similar crimes: R v Herring (1956) 73 WN (NSW) 203 at 205. But that principle has to take into account the matters I referred to earlier.

102. I must take into account; the delay, the offender’s age and ill health and the impact of the pandemic restrictions on her. She is not the young woman who committed these offences over 40 years ago. She is not robust nor is she well‑equipped for prison life.

103. While offenders cannot escape punishment because of the condition of their health, here, I find, imprisonment will be a greater burden on her and carries with it a significant risk to her, than a younger, healthier woman prisoner. Judges do not ignore the lived experience of gaol. In addition, as Dr Nielssen notes, Grant will have real trouble getting appropriate treatment for her many medical conditions. I must trust Justice Health to provide proper services to her.

104. Were I to impose the sentence the current maximum and current practices demand for an offence committed in recent years Grant would in all probability die in custody. I cannot do so for the reasons I have outlined.

105. Judges are given considerable flexibility in sentencing. There are cases in which an offender’s age and illness call for leniency as a matter of common humanity, quite apart from any effect of the conditions of custody. It is not common this century to mention mercy. I believe it better to use the term common humanity.

106. Common humanity requires mitigation of sentence by reduction of the sentence and, in particular, its non-parole period. But what common humanity requires really depends on the perspective of the observer; the offender and her supporters, the complainant, his family and friends and the community. And common humanity was not shown by Grant to the child in her care in the 1970s - she thought only of herself.

107. That said, sentences by their severity operate to express the community’s repugnance and disapproval of offending of this type. The sentence must by its severity reflect the gravity or objective seriousness of what was done and, by its severity, attempt, so far as is possible, to vindicate the complainant and recognise the harm that was done to him and the community. His dignity has to be respected and the only way we can do that in the modern times is by imposing a significant sentence of imprisonment.

Orders

112. The sentence reflects a 25% reduction for the utilitarian value of the plea and a significant finding of special circumstances. Had it not been for the utilitarian value of the plea I would impose a sentence of nine years.

113. The term of the sentence is six years and nine months imprisonment.

114. The formal orders of the Court are:

There will be a non-parole period of three years and four months. It will commence today, 20 December 2022, making the offender eligible for consideration for release to parole on 19 April 2026. That release is subject to a determination of the State Parole Authority. The balance of the term of three years and five months will commence on 20 April 2026, the sentence will expire on 19 September 2029.

115. To repeat - Six years nine months, non- parole period three years four months, from 20 December 2022 to 19 April 2026. Total sentencing expiring 19 September 2029.

116. A copy of Dr Nielssen’s report to accompany the warrant.

117. The remaining s166 matters are withdrawn and dismissed.

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Decision last updated: 10 March 2023