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

1. 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.

2. 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.

3. 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

4. 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 entered at an early stage in the Local Court. The pleas were entered at the earliest opportunity and accordingly the full 25% discount is applicable. The indicative sentences that I will announce in these reasons for judgment will have been discounted by 25%. I also make the observation that the course adopted by the offender has spared the necessity for the victims to give evidence which would have been severely traumatic and hurtful.

VICTIM IMPACT STATEMENTS

5. S 25AA(3) of the Act requires the Court to have regard to the trauma of sexual abuse on children. Exhibit 2 is a victim impact statement of IS. It details severe anxiety and depression. It has damaged his mental health irrevocably and it has affected his schooling and his application to his studies. He is currently in year 11. He has experienced relationship issues and the simple matter of touching. Exhibit 3 is a victim impact statement from AS. She is unable to tolerate men touching her in any form. She has anxiety and panic attacks. She wonders when her trauma will be over. She describes the offender as a monster.

6. It is appropriate to record what was said by the president of the Royal Commission into Institutional Response to Child Sex Abuse at the opening hearing of the Royal Commission on 16 September 2013. In his opening address McClellan J said:

"What many may consider to be low levels of abuse of boys and girls can have catastrophic consequences for them leading to a life which is seriously compromised from what might otherwise have been. Both boys and girls are left with a distrust of adults and difficulties with intimacy. Inappropriate touching of boys may leave them with confusion as to their sexual identity. This can result in lifelong difficulty in relationships which can cause problems in other aspects of their lives. Although the impact on the lives of abused persons has been reported within the academic literature I have no doubt that it is not well understood by the general community. In my role as a judge I have been called upon to review many of the sentences imposed upon people convicted of sexual abuse of children but I readily acknowledge that until I began my work with the commission I did not adequately appreciate the devastating and long lasting effect which sexual abuse, however inflicted, can have on an individual's life."

7. I agree with the Commissioner.

THE OFFENDING

8. In assessing the objective seriousness of the offending I take into account the following factors in relation to each offence individually:

1. The form of conduct or intercourse (not to be regarded as the sole consideration).

2. The degree of violence.

3. The physical hurt afflicted.

4. Any circumstances of humiliation.

5. The duration of the offences.

6. The age difference between the offender and the victim.

7. The inequality of the relationship (if any existed) between the offender and the victim.

9. The agreed facts demonstrate predatory behaviour on the part of the offender. Predatory in the lead up to and the commission of the offences. The gravity of the offending conduct is elevated by the breach of trust inherent in a relationship with the victims and where it occurred in their homes. The offender took advantage of each of the victims. He was their maternal grandfather. He was able to access each of the victims because of his familial relationship.

10. I have considered and applied the principle referred to in EG v The Queen [2015] NSWCCA 21 at [42] where Hoeban CJ at CL said:

"General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the Courts is to send a message to those who would sexually abuse children intentionally and repeatedly that their actions will not be tolerated and that they will receive significant punishment."

AGREED FACTS AND OBJECTIVE SERIOUSNESS

11. The agreed facts are contained at tab 9 of exhibit 1. I will summarise those agreed facts.

Offences against TG

H985047090/2, aggravated indecent assault

12. In 2007 the offender then 62 took the victim, then 14, fishing. While in the car he grabbed the victim's penis on the outside of his clothing and rubbed his penis for a little while. The offending was spontaneous and of short duration. It did not involve skin to skin contact. It is at the low end of objective seriousness.

Form 1 H985047090/4, aggravated indecent assault

13. On Boxing Day 2007 there was a family outing on the Hawkesbury River by boat. The victim was in the front passenger seat and the offender was now in the front driver's seat. He reached inside the victim's pants and pulled his penis out. He masturbated the victim's penis for about one to two minutes. He had only stopped when the offender heard the victim's brother. This was objectively serious offending.

H985047090/30, sexual intercourse without consent, maximum penalty of 14 years, standard non parole period of seven years

14. The victim was between 15 and 16 years of age. The offender was 62 to 63 years of age. The victim went to the offender's residence after school. In the absence of the victim's grandmother the offender grabbed the victim's penis removing it from his shorts. The offender masturbated the victim's penis then he got on his knees and put the victim's penis into his mouth. He sucked until the victim told him to stop. The conduct was objectively very serious.

H985047090/14, indecent assault, maximum penalty five years, no standard non parole period

15. The victim was between 17 and 18, the offender 65. The victim from time to time would stay overnight at the offender's house to watch soccer. On one occasion the victim woke up and the offender was masturbating his penis under the covers. It eventually stopped and the victim went to sleep. It was a serious example of offending. The victim was initially asleep and vulnerable. It involved skin to skin contact. It was predatory to the extreme.

H985047090/15, sexual intercourse without consent, maximum penalty 14 years, standard non parole period seven years

16. The victim was between 18 and 20, the offender 65 to 67. The offender took the victim to his place of work. He took the victim into a storage room. He took the victim's penis out of his pants and sucked it until he ejaculated into a paper towel. The offender then took his penis out and put the victim's hand on it. The victim was required to masturbate the offender's penis until he ejaculated. It was a very serious example of offending involving ejaculation. It was objectively more serious than H985047090/30 (sexual intercourse without consent).

H985047090/18, sexual intercourse without consent, maximum penalty 14 years, standard non parole period seven years

17. The victim was 18 to 20, the offender 65 to 67. At the offender's workplace he took the victim into the storage room. He pulled the victim's pants down and rubbed himself against the victim's buttocks. He then bent the victim forwards over a couch and tried to put his penis into the victim's anus. The tip of the penis went into the anus. It caused a lot of pain. The offender stopped and the victim masturbated his penis until he ejaculated. It was a serious example of offending involving pain. It involved degradation of the victim.

H98047090/28, sexual intercourse without consent, maximum penalty 14 years, standard non parole period seven years

18. The victim was 22 to 24 years of age, the offender was 69 to 71 years. In the early hours of the morning after a fishing trip the offender entered the bedroom of the victim. The victim was asleep. The offender started sucking his penis causing the victim to wake up. The offending was objectively very serious. It was predatory behaviour upon a sleeping victim.

Form 1 H985047090/29, attempt sexual intercourse without consent

19. After a fishing trip the offender entered the victim's bedroom. The victim was asleep. The offender tried to put his penis into the victim's anus while he was asleep waking him up. It was objectively very serious. It was predatory behaviour upon a sleeping victim.

20. The above offences were not committed in isolation. The victim complained of other unparticularised sexual acts committed on him by the offender between 2007 and 2016.

Offences against DG

21. The offender would take the victim fishing. The victim was 15 years of age. The offender would provide alcohol and cigarettes to the victim.

Form 1 H66979386/2, aggravated indecent assault

22. The offender took his penis out of his shorts. He asked the victim to take out his penis. The victim refused. The offender put his penis back into his shorts and leant over and tried to grab the victim's penis. The offender did not manage to grab the victim's penis only his shorts. The offence was at the lower end of the scale.

Form 1 H66979386/26

23. He asked the victim to find pornography on his phone but due to reception difficulties they could not load. The offender removed his penis from his pants and held it in his hand. He asked the victim to get his penis out. The victim refused and the offender put his penis back inside his shorts. He tried to grab the victim's penis but the victim kept moving to prevent this happening.

H66979386/5, aggravated indecent assault, maximum penalty ten years, standard non parole period eight years

24. The victim was 14 to 15 years of age. The offender was 63 to 64. The offender told the victim when fishing that it was normal for men to show each other their penises. The offender pulled the victim's penis out of his pants. He tried to masturbate the victim but his penis did not become erect. Eventually the victim put his penis back inside his pants. The offending was objectively serious involving skin to skin contact and the telling of a lie to facilitate the crime. The offending was predatory. There was a significant age difference between the victim and the offender.

H66979386/16, indecent assault, maximum penalty five years, no standard non parole period

25. The offender had taken the victim who was then 16 to an office that he was cleaning. After the cleaning was finished the offender drove the victim towards Blacktown. While driving the car the offender put his hand under the victim's underpants and took hold of the victim's penis. The offender eventually stopped when he had to use his hands to continue driving. The offending was objectively serious. It involved skin to skin contact and was predatory. There was a significant age gap between the offender and the victim.

H66979386/17, indecent assault, maximum penalty five years, no standard non parole period

26. The victim and the offender arrived at Blacktown and cleaned the office. On the drive home the offender put his hand inside the victim's underpants and started masturbating his penis. The offender stopped when he had to change gears. The offending was objectively serious involving skin to skin contact including masturbation. It was predatory with the purpose of sexual gratification for the offender.

H66979386/19, indecent assault, maximum penalty five years, no standard non parole period

27. The offender and the victim were travelling in a car. The offender grabbed the victim's penis under his underpants and started to masturbate it. The masturbation went on for about 20 minutes. The offending was objectively serious involving skin to skin contact including masturbation that went for a considerable period of time. It was predatory with the sole object of sexual gratification for the offender.

H66979386/20, indecent assault, maximum penalty five years, no standard non parole period

28. On another occasion while driving together the offender put his hand under the victim's underpants and grabbed his penis and masturbated it for some time. The offending was objectively serious involving skin to skin contact including masturbation. It was predatory behaviour.

Form 1 H66979386/22, indecent assault

29. On a fishing trip the offender after several rebuffed attempts was able to pull the victim's penis out of his pants and masturbated the victim's penis. The victim believes that the offender repeated his actions another four times that night. It was objectively serious persistent predatory behaviour.

Form 1 H66979386/23, indecent assault

30. For almost all of the drive home the offender had his hand inside the victim's pants and was grabbing his penis. It was objectively serious behaviour involving skin to skin contact for a protracted period of time.

H66979386/24, indecent assault, maximum penalty five years, no standard non parole period

31. On a second fishing trip the offender on four to five occasions put his hands in the victim's pants and masturbated his penis. It was objectively serious behaviour involving skin to skin contact. It only stopped because the victim moved away and covered himself up. It was predatory behaviour.

Form 1 H66979386/25

32. While driving home the offender masturbated the victim's penis under his underpants. It only stopped when he had to change gears. It was objectively serious offending. The offences were not committed in isolation. The victim complained of unparticularised sexual acts committed on him by the offender between 2009 and 2012.

Offence against AS

H64651762/1, commit act of indecency towards person less than 16 years, maximum penalty two years, no standard non parole period

33. The victim was ten years of age. The offender took her on a fishing trip. She was watching the fishing rods. The offender walked over to some rocks to urinate. He called out her name. She turned and looked. His penis was hanging out of his pants. She turned away. He put his penis back in his pants. He sat next to her and said, "You're lucky it wasn't hard for you". The offence was of short duration, it involved exhibitionism without masturbation. Although the victim was only ten years of age the offence was at the lower end of the spectrum.

Offence against IS

H6440957/1, aggravated indecent assault on person less than 16 years, maximum penalty ten years, standard non parole period of eight years

34. On 5 January 2017 the offender went to XXXXX .. This was the residence of his daughter RS and her son. IS was 14 at the time. The offender went into the victim's bedroom. The victim's mother was in the house. He touched the victim's penis on the outside of his clothing rubbing his hand against it. This occurred for a minute or two. I accept the Crown's submission that this offence was below the midrange.

SUBJECTIVE CIRCUMSTANCES

35. The offender is 74 years of age. He has no prior convictions. A report of Dr Andrew Ellis, forensic psychologist, dated 2 August 2019 informs me of the following: He was placed in an institution for boys at the age of one. He was placed with his two older brothers. He met his mother twice when he was an adult. He has never met his father. He is unsure why he was placed in State into institutional care. He said that it was all right growing up in the home. He said that he never experienced any form of abuse. He said that he received proportionate corporal punishment from the attendants.

36. He attended school to the age of 14. He was an average student. He said that he had friends including from outside of the institution. He said that he was sometimes teased about being from the institution but this did not bother him. He said there were no discipline problems. He left the institution at the age of 15; he began working on a fishing trawler for six months. He had lived independently since. His longest residence has been for 40 years near Blacktown where he lived with his partner and children. He met his partner through working with her father. He has always worked, his longest employment has been for 20 years at Austral Bricks where he worked as a truck driver. He has until recently a truck driver's licence. He had spent the last 12 years running his own cleaning business.

37. I do not accept the submission on behalf of the offender that the "offender's childhood and his upbringing in such difficult circumstances would somewhat mitigate his culpability and moderate some of the weight that otherwise may be attributed to deterrence in favour of the purposes of sentencing including rehabilitation". Contrary to that submission the offender has overcome whatever adversity he faced and has been in constant employment since he was 15 years of age. There is no evidence to suggest that his upbringing had any influence in relation to his commission of the offences. He has expressed remorse stating he was sorry for the behaviour. He stated that his grandchildren would be doing it tough. He was not able to say whether the offences were opportunistic or planned.

38. He meets the criteria for a diagnosis of paedophilic disorder and hebephilia. Dr Ellis says that none of the offending indicates disorganised behaviour. The most likely motivation for the behaviour is acting on paraphilic sexual fantasy and arousal. In relation to the Static 99R test he has been assessed as below average risk category. Dr Ellis notes, "His limited understanding about his motivation is of concern". Dr Ellis further says that, "Should he be released consideration should be given to anti libidinal medication".

35. On 4 June 2019 the offender was interviewed and examined by Dr Ireland who has been practising in geriatric medicine since obtaining her fellowship with the Royal Australian College of Physicians in 2001. The offender has a number of health issues including chronic obstruction lung disease, abnormal results on blood tests for his prostrate and has undergone ultrasound examination. He has high blood pressure. He has required increasing doses of medication to reduce the risk of heart attack and stroke. She says that his chronic conditions would be frequently encountered in general practice and are being managed in a reasonable way by Justice Health medical and nursing staff. She further reports that his current state of physical health is fair and would probably not be significantly different if he was residing outside of custody. She sees no reason why his health needs cannot be adequately met in custody now and into the future.

Prospects of rehabilitation

40. On the Static 99R test he has been assessed as below average risk category. I do find that he has prospects of rehabilitation.

Totality

41. What do I mean by totality? The principle of totality in sentence was described by Street CJ in R v Holder, R v Johnson (1983) 3 NSWLR 245 at 260 as follows:

"The principle of totality is a convenient phrase descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate in broad sense the overall criminality involved in all of the offences and having done so will determine what, if any, downward adjustment is necessary whether by telescoping or otherwise in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of sentences."

42. I have taken this principle into account in determining the overall sentence. There are four victims, the offences against each victim were separate and discrete from each other. Therefore there should be partial accumulation in order to appropriately comprehend and reflect the criminality of the offender with the overriding principle of relativity between totality of criminality and totality of the sentences.

43. I note that the offender is 74 years of age. However unpalatable as it may be the authorities recognise that an appropriate sentence may involve the risk that the offender spends the rest of his life in custody; R v Holyoak (1995) 82 A Crim R 502 per Allen J at 507. The reasoning in Denham v The Queen [2016] NSWCCA 309 at [103] is apposite to the present case:

"It is true that the applicant will be in his 80s before he is eligible for release on parole. Whilst appropriate to take into account it must be steadily borne in mind that the nature of his crimes was that he abused and took his deviant sexual gratification from young boys who were in most cases too intimidated by his position of authority and by the massive breach of trust that was involved to report it. And so for decades after his offending he continued to live his life while theirs were substantially destroyed. He has been sentenced late in life but that is because of the nature of his crimes."

SPECIAL CIRCUMSTANCES

44. I accept the Crown submission that the combination of the offender's age, first custodial sentence, considerations of rehabilitation and the accumulation of sentences warrants a finding of special circumstances.

AGGREGATE SENTENCE

45. Pursuant to s 53A of the Act I impose an aggregate sentence. The indicative sentences have been reduced by 25%. Where a standard non parole period is applicable I have set out the indicative non parole period.

46. The indicative sentences are:

TG

• H985047090/2, aggravated indecent assault (the grabbing of the penis outside of the clothing), three months with a non parole period of two months.

• H9850470906/30, sexual intercourse without consent (fellatio), four years with a non parole period of 30 months.

• H985047090/14, indecent assault (masturbating penis under the covers), 15 months.

• H985047090/15, sexual intercourse without consent (fellatio until ejaculation), four years and three months with a non parole period of 34 months.

• H985047090/18, sexual intercourse without consent (tried to put his penis into the anus and the tip went in with pain), four years and nine months with a non parole period of 36 months.

• H985047090/28, sexual intercourse without consent (sucking of the penis while asleep), four years and one month with a non parole period of 31 months.

DG

• H66979386/5, aggravated indecent assault (attempt to masturbate), two years with a non parole period of 16 months.

• H66979386/16, indecent assault (hand under underpants and holding the penis), 12 months.

• H66979386/17, indecent assault (masturbating penis), 12 months.

• H66979386/19, indecent assault (20 minutes masturbation in the car), 14 months.

• H66979386/20, indecent assault (masturbation under underpants), 12 months.

• H66979386/24, indecent assault (fishing trip four to five times masturbating under the pants), 14 months.

AS

• H64651762/1, commit act of indecency (flashing of soft penis to victim), one month.

IS

• H6440957/1, aggravated indecent assault (touching penis outside of clothing), 18 months with a non parole period of 12 months.

ORDERS

47. The aggregate sentence is 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.

48. The Crimes (High Risk Offenders) Act of 2006 applies to you, GS. I must advise you of the existence of the Act. What it means is that you could be subject to executive action after your non parole period expires and after the sentence expires. The executive action could if in the context of in the interest of the community an appropriate order is made mean that you could be detained or subject to conditions that you have served after you have served your sentence.

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Decision last updated: 06 November 2019