R v Gray

Case [2019] NSWDC 550

District Court


New South Wales

Medium Neutral Citation: R v Gray [2019] NSWDC 550
Hearing dates: 4 October 2019
Decision date: 09 October 2019
Jurisdiction:Criminal
Before: Haesler SC DCJ
Decision:

Sentenced to a term of imprisonment of 3 years. Non parole period of 1 year 6 months.

Catchwords: SENTENCING - sentence after trial - sexual intercourse with child under 10 - maximum penalty life imprisonment - need to give content to maximum penalty - full benefit of acquittal on another count - child offender - brother of victim use of dildo - any penetration of a 5 year old objectively serious - victim impact statement - special circumstances adult gaol could harm prospects of rehabilitation - special circumstances found - sentence should be served in juvenile detention.
SENTENCING – relevant factors on sentence - offender in family home - brother trusted to baby sit sister - child offender - immature offender - mental illness - autism spectrum disorder – impact on moral culpability – rehabilitation prospects - impact of denial of offending- rehabilitation programmes available - victim vindication – guidance offered by maximum penalty - retribution or rehabilitation - one factor can be determinative.
Legislation Cited: Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Cases Cited: Blackman & Walters [2001] NSWCCA 121
BP v R [2010] NSWCCA 159
Campbell v R [2018] NSWCCA 87
Clarke-Jeffries v R [2019] NSWCCA 56
DM v R [2005] NSW CCA 181
DPP v De La Rosa [2010] NSWCCA 194.
Engert v R (1995) 84 A Crim R 67
Hearne v R (2001) 124 A Crim R 451
Howard v R [2019] NSWCCA 109
JM v R [2012] NSWCCA 83
KT v R (2008) 182 A Crim R 571
Munda v Western Australia (2013) 249 CLR 600
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
Ryan v The Queen (2001) 206 CLR 267
Veen v The Queen No 2 (1988) 64 CLR 465
Yardley v Betts (1979) 22 SASR 108
Texts Cited: Juvenile sex offenders in the criminal justice system; D Kenny, Judicial Officers’ Bulletin, Vol 27 No 4, 2015
Sentencing for the offence of sexual intercourse with a child under 10; P. Poletti, P. Mizzi and H. Donnelly: Sentence Trends and Issues. no 44, 2015
Category:Sentence
Parties: John Gray - a pseudonym (the offender)
Director of Public Prosecutions
Representation:

Counsel:
Ms K Stares (for the offender)
Mr D Scully, Deputy Senior Crown Prosecutor (for the Director of Public Prosecutions)

  Solicitors:
Children’s Legal Service, Legal Aid NSW (for the offender)
File Number(s): 2017/00359952
Publication restriction: Pseudonyms have been used for the names of the child 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, including names of witnesses or places that identifies or is likely to lead to the identification of any child. Identifying information has been removed from this version of the judgment to comply with the statute

Judgment

Introduction

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AGLC
R v Gray [2019] NSWDC 550
Case
[2019] NSWDC 550
Decision Date

CaseChat Overview and Summary

In the case of R v Gray, the respondent was charged with engaging in sexual intercourse with a child under 10 years of age, an offence that carries a maximum penalty of life imprisonment. The case was heard by the Court of Appeal, which was required to determine the appropriate sentence for the offender following his acquittal on a separate charge. The respondent, a 15-year-old child himself, had engaged in sexual acts with his 5-year-old sister. Given the maximum penalty and the need to give it content, the court considered whether the full benefit of the acquittal on the other charge should be given to the respondent. The court also needed to weigh the special circumstances that could potentially harm the prospects of rehabilitation if the respondent were to serve his sentence in an adult gaol.

The court's reasoning focused on several factors, including the offender's position in the family home, his role in babysitting his sister, and his own status as a child. The court acknowledged the respondent's mental illness and autism spectrum disorder, which impacted his moral culpability and rehabilitation prospects. The court also considered the impact of the respondent's denial of the offending, the availability of rehabilitation programmes, and the need for victim vindication. The court found that the special circumstances warranted a sentence that would be served in juvenile detention rather than an adult gaol, given the potential harm to the respondent's rehabilitation prospects.

The court ultimately sentenced the respondent to a term of imprisonment of 3 years, with a non-parole period of 1 year and 6 months. The court considered the maximum penalty as guidance but ultimately determined that the factors of retribution and rehabilitation, along with the unique circumstances of the case, warranted this sentence. The court's decision emphasised the importance of striking a balance between these factors in determining an appropriate sentence for a child offender in such circumstances.

Orders

Orders of the court

Sentenced to a term of imprisonment of 3 years. Non parole period of 1 year 6 months.

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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