R v GS - [2019] NSWDC 605

District Court

New South Wales

Medium Neutral Citation: R v GS [2019] NSWDC 605
Hearing dates: 9 August, 2 September 2019
Date of orders: 02 September 2019
Decision date: 02 September 2019
Jurisdiction: Criminal
Before: GRANT DCJ
Decision:
An aggregate sentence of 12 years imprisonment with a non parole period of eight years. The sentence is to commence from 4 May 2017. The offender will be eligible for parole on 3 May 2025. The head sentence will expire on 3 May 2029.

Catchwords: CRIME — Child sex offences — multiple victims
SENTENCING — Relevant factors on sentence — Multiple offences — Totality
Legislation Cited: Crimes (High Risk Offenders) Act of 2006
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Cases Cited: Denham v The Queen [2016] NSWCCA 309
EG v The Queen [2015] NSWCCA 21
R v Holder, R v Johnson (1983) 3 NSWLR 245
R v Holyoak (1995) 82 A Crim R 502
Texts Cited: Royal Commission into Institutional Response to Child Sex Abuse
Category: Sentence
Parties: Regina (Crown)
GS (Offender)
Representation: Counsel:
Constantino (Solicitor Advocate, Crown)
S Goodwin (Offender)

File Number(s): 2017/00013449
Publication restriction: Indentifiers of victims

Judgment

INTRODUCTION

The offender has pleaded guilty to the following: Six sexual offences committed upon his grandson, TG, with two offences to be taken into account via Form 1. Six sexual offences committed upon his grandson, DG, with another five offences to be taken into account via Form 1. One sexual offence committed upon his granddaughter AS. One sexual offence committed upon his grandson IS.
In terms of the nature of the offences he stands to be sentenced for they comprise four offences of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 carrying a maximum penalty of 14 years imprisonment with a standard non parole period of seven years. Three offences of aggravated indecent assault contrary to s 61M of the Crimes Act 1900 carrying a maximum penalty of seven years imprisonment with a standard non parole period of five years. Six offences of indecent assault contrary to s 61L of the Crimes Act carrying a maximum penalty of five years imprisonment, there is no standard non parole period. One offence of commit act of indecency person under 16 years contrary to s 61N(1)of the Crimes Act carrying a maximum penalty of two years imprisonment, there is no standard non parole period.
There are seven offences to be taken into account via a Form 1. Three of aggravated indecent assault, three of indecent assault and one of attempted sexual intercourse without consent. The maximum penalties and the standard non parole periods are an important guidepost in the assessment of sentence. A judge should steer by the maximum penalty but not aim for it.

THE PLEA OF GUILTY

The guilty plea and the timing of the plea are to be taken into account on sentence pursuant to s 21A(3)(k) and s 22 of the Crimes (Sentencing Procedure) Act 1999 (‘The Act’). The guilty plea was indicated and…

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 GS

Details

AGLC: R v GS [2019] NSWDC 605
Case: [2019] NSWDC 605
Decision Date: 02 September 2019

CaseChat Overview and Summary

The appellant, GS, appealed against his sentence for multiple child sex offences. The appellant had pleaded guilty to the charges which involved three victims over a period of several years. The trial judge handed down a sentence of 12 years imprisonment, with a non-parole period of eight years, to be served from 4 May 2017. The appellant challenged the severity of the sentence on the grounds of its disproportionality and that the trial judge had failed to properly consider the totality principle in imposing the sentence.

The appellant submitted that the cumulative sentence was excessively punitive and did not adequately reflect the principles of proportionality and totality. He argued that the trial judge did not adequately consider the individual circumstances of the offences and the overlap between them. The appellant contended that the sentence imposed was unduly harsh, particularly given his early guilty plea and the fact that the offences were committed over a prolonged period. The respondent, the Crown, contended that the sentence was appropriate and reflected the seriousness of the offending, the protection of society, and the need for deterrence.

The court considered the totality principle, which requires that the cumulative sentence for multiple offences should not be greater than the sum of the appropriate sentences for each offence if they were to be sentenced consecutively. The court found that the trial judge had appropriately considered the totality principle and had not erred in imposing an aggregate sentence. The court also found that the sentence was proportionate to the seriousness of the offending and took into account the appellant's early guilty plea. The court rejected the appellant's submission that the sentence was unduly harsh and found that the sentence was appropriate and reflected the need to protect society and deter future offending.

The appeal was dismissed, and the original sentence was upheld. The appellant's sentence of 12 years imprisonment with a non-parole period of eight years was affirmed. The sentence is to commence from 4 May 2017, with parole eligibility on 3 May 2025 and the head sentence expiring on 3 May 2029.

Orders

Orders of the court

An aggregate sentence of 12 years imprisonment with a non parole period of eight years. The sentence is to commence from 4 May 2017. The offender will be eligible for parole on 3 May 2025. The head sentence will expire on 3 May 2029.

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 GS [2019] NSWDC 605
Hearing dates:	9 August, 2 September 2019
Date of orders:	02 September 2019
Decision date:	02 September 2019
Jurisdiction:	Criminal
Before:	GRANT DCJ
Decision:	An aggregate sentence of 12 years imprisonment with a non parole period of eight years. The sentence is to commence from 4 May 2017. The offender will be eligible for parole on 3 May 2025. The head sentence will expire on 3 May 2029.
Catchwords:	CRIME — Child sex offences — multiple victims SENTENCING — Relevant factors on sentence — Multiple offences — Totality
Legislation Cited:	Crimes (High Risk Offenders) Act of 2006 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900
Cases Cited:	Denham v The Queen [2016] NSWCCA 309 EG v The Queen [2015] NSWCCA 21 R v Holder, R v Johnson (1983) 3 NSWLR 245 R v Holyoak (1995) 82 A Crim R 502
Texts Cited:	Royal Commission into Institutional Response to Child Sex Abuse
Category:	Sentence
Parties:	Regina (Crown) GS (Offender)
Representation:	Counsel: Constantino (Solicitor Advocate, Crown) S Goodwin (Offender)
File Number(s):	2017/00013449
Publication restriction:	Indentifiers of victims