R v Jessica McGAW

[2007] NSWDC 100

CITATION:	R v Jessica McGAW [2007] NSWDC 100
HEARING DATE(S):	20 April 2007
JUDGMENT DATE:	20 April 2007
EX TEMPORE JUDGMENT DATE:	20 April 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Sentenced to imprisonment to be served by way of periodic detention.; See paragraph [24]
CATCHWORDS:	Criminal Law - Sentence - Aggravated indecency
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act
PARTIES:	Crown Jessica McGaw
FILE NUMBER(S):	06/21/1090
COUNSEL:	B. Hughes (Crown) M. Paish (Offender)
SOLICITORS:	NSW DPP Chris Outzen Solicitors

SENTENCE

1 HIS HONOUR: Jessica McGaw appears for sentence today after having pleaded guilty, on an earlier occasion, to an offence of, whilst in company with a number of other people, inciting a man, who I will refer to by the initials DS, to commit an act of indecency with her, at the time DS being sixteen years of age.

2 The maximum penalty for that offence is, perhaps surprisingly, only three years. Although I am surprised at the maximum penalty which applies for that sort of offence I will of course not allow those feelings to influence the sentence I will shortly announce on Ms McGaw. The maximum penalty is of course reserved for those cases which fall into the worst case, and this is not such a case. It is however, as my sentence will demonstrate, a very serious example of criminal conduct.

3 On 2 August 2005 a large group of young people met up at the Mt Druitt shops. At this time DS walked past and began talking to them. He lived nearby, having recently moved to the location from Western Australia. Things were amicable and DS was invited to go to a nearby unit to have a drink with members of the group. They all went to an address in Mt Druitt. Later on that evening the offender, DS, and another man walked to Westfields to get some more alcohol. They then came back to the premises and continued drinking.

4 At one stage DS was sitting on a kitchen chair within the lounge room. For reasons which I fail to understand one of the group, a man by the name of Dickson, became aggressive and without warning hit DS with a closed fist to his face. He fell to the ground. He got up, but was pushed down again. Mr Dickson continued to assault DS, kicking and punching into him, again hitting him in the head. Not surprisingly, DS started to cry. Rather than those who were also in the premises assisting DS, two of them joined in, LK and the offender’s brother, Gavin. They too punched and kicked DS whilst he was on the ground. Not surprisingly he suffered a number of injuries as a result of those assaults. One of the members of the group left the premises, but then DS was assaulted once more.

5 These assaults occurred in the presence of the offender. She was no part of them. She is not to be sentenced as though she were in any way an accessory to those assaults or criminally responsible for them. But they are important because they put what later occurred in context. After these two separate assaults on DS, and after he had suffered a number of injuries, Ms McGaw decided to inflict an indignity upon DS. She pulled her pants down and told DS to kiss her on her vagina while she had her underpants on. DS said he did not want to, but the offender insisted.

6 At the time this occurred there were three other young men and another young woman present in the room. DS was forced to kiss the offender on the outside of her underpants in the area of her vagina. Ms McGaw was laughing while this occurred. At some stage after this Ms McGaw left the premises.

7 I know from two sources about what happened to DS after Ms McGaw left. Again she is not criminally responsible for the most serious assaults which were committed upon DS after the offender had left the premises. But they are nevertheless relevant, primarily, because the offender has agreed to give evidence for the crown against a number of the people who were involved in the later assaults.

8 I recited what occurred to DS after the offender left when I sentenced her brother, Gavin McGaw, on 22 February 2007. For the purposes of these remarks it is enough to note that he was subject to serious violence, serious indignity, and was treated as though he was inhuman, with no thought being given to his welfare by those involved. The offences committed upon him after the offender left were very serious indeed. In the event that any of those involved in those later assaults is convicted lengthy sentences will no doubt be imposed.

9 Police inquiries led to them believing that the offender was involved. Before she could be picked up by police however she voluntarily went to the Penrith police station. She was arrested and interviewed. She did not tell the complete truth in that interview. In particular, she denied that DS had been forced to kiss her on the outside of her underpants. She also said some other things that were not true, which will diminish her credibility when she later gives evidence for the crown. The offender was denied bail and has spent two months and thirteen days in custody. She was released on bail and has spent some time on bail pending today’s sentencing date.

10 The offender was nineteen years age at the time of the offence. She has had a very volatile upbringing. Mr Paish described her as a ping pong ball, bouncing between her parents, who are separated, and both of whom have serious drug and alcohol issues. As a result Ms McGaw has become friendly with the family of her ex-partner and they appear to have acted as a substitute family.

11 Ms McGaw was, at the time that a pre-sentence report was prepared, and certainly at the time of the offence, a serious drinker. She told the author of the probation and parole report that she had consumed about twelve beers before the offence occurred. She said that she commenced drinking alcohol when she was about sixteen and that her consumption had escalated until her social activities centred around alcohol. At the time of the offence Ms McGaw said that she was drinking both daily and heavily. She recognises the contribution that alcohol has had to her offending behaviour. I note in passing that there is further evidence of the offender’s problems with alcohol in the form of a conviction for a PCA matter. The offence occurred before this offence and she was sentenced for it afterwards.

12 The offender has, despite leaving school at year 9, and despite having problems with alcohol, been able to work. For about two years she was employed as a casual cleaner, her employer describing her as a reliable good worker. She lost that job when she was unable to tell her employer whether she would be able to attend for work because she had been subpoenaed to give evidence for the crown in trials relating to other alleged offenders. It is not her fault therefore that she has lost the job. The fact that she has been able to work and keep a job and be described as a reliable good worker is an important matter when I come to assess her prospects of rehabilitation. I am satisfied that they are good.

13 The question as to whether she is remorseful is related to whether she is likely to rehabilitate herself. There was no evidence put before me that the offender was remorseful, apart from a reference to it in a probation and parole report, and even that suggested that although she was embarrassed and regretful for her behaviour she did not volunteer remorse. It may well be that the offender does not even now appreciate the seriousness of her misconduct. She will understand how serious the courts treat the matter after she is sentenced by me.

14 The crown put before me a Victim Impact Statement prepared by DS. I do not understand why objection was not taken to it, because it is, if objection had been taken, inadmissible. It must be remembered that DS was subject to horrific indignant sexual assaults for which Ms McGaw is not being sentenced. Clearly no-one could separate out from the effects that DS has suffered, those that relate only to the offence for which the offender is to be sentenced. DS has obviously suffered a great deal as a result of everything that occurred to him, but there is no assistance in the Victim Impact Statement as to how much of those consequences are the responsibility of the offender. In those circumstances the Victim Impact Statement is of little weight. That will, however, not effect the sentence that I impose upon the offender. Anyone forced to do what DS was forced to do in circumstances where he had already been assaulted twice and suffered injuries would experience significant consequences as a result of that offence.

15 As I have mentioned the offender has undertaken to give evidence for the crown in trials which are due to commence very shortly, indeed, on 7 May this year.

16 The material put before me on that issue includes reference to facts which are not in a document headed “agreed facts” also tendered to me. The material relating to the assistance provides a much more serious picture of events than that related in the agreed facts. I recall that there is authority which says that in those circumstances I cannot use the material to be found in the information relating to the assistance against the offender. I will sentence her by assessing the objective facts, as they are to be found in the statement headed agreed facts. I appreciate that this is somewhat artificial but it is something that I am required to do.’

17 Also artificial is the fact that I must ignore things I learnt when I sentenced the offender’s brother. The statement of facts tendered in that case also referred to the events being much more serious, even before the offender left, than the statement of facts tendered in this case. As I explained to Mr Paish earlier that is something which sentencing judges are required to confront regularly. I repeat I will sentence the offender on the basis of the material that is before me on this occasion, not on the basis of material that was before me on an earlier occasion.

18 The offender’s assistance extends beyond implicating others in what occurred before she left the premises. Her evidence will be of assistance to the crown in proving the guilt of those who are alleged to have done things to DS after she left. As I have said on many occasions in these remarks on sentence what occurred after the offender left was grave indeed. But when I come to assess the value of the offender’s assistance as I must I have to recognise that her assistance is not of the same level as it would have been if she had been present for the entirety of the events.

19 When I raised this issue with Mr Paish he made some submissions to me about the relevance of the fact that the offender’s assistance is limited in that way. I will state my understanding of the law as clearly as I can so that if I am wrong then I will be seen to be wrong.

20 It is not the offender’s fault that she left earlier. So she is not being punished for having done so but it remains the fact that her assistance is less than it would have been had she remained there. I consider that that is a relevant matter in assessing the discount that should be given to the offender for that assistance. When I look at s 23 Crimes (Sentencing Procedure) Act the list of factors that I must take into account refers not only to truthfulness, completeness and reliability of information but also the usefulness of information. The offender’s assistance is not as useful as it would have been had she been able to give evidence as to what occurred after she left. Also in assessing her usefulness, taking into account her earlier false denials to police, I must recognise that her credibility will be affected by the fact that she has not been completely truthful with the authorities.

21 I will not quantify the discount that I will impose for the assistance separately from the discount for the plea of guilty. I will however note that when I compare the discount for this offender with the discount I allowed for her brother’s assistance, she can provide lesser assistance than her brother could. On the other hand her plea was entered earlier than her brother’s. The offender was committed for trial in June last year, there was an offer to plead to a lesser charge than that to which the offender has ultimately pleaded in July. The matter was in this court on five or six occasions before a plea was entered. In those circumstances the discount I will allow for the plea of guilty and the assistance is thirty percent.

22 I should mention the question of parity in relation to the sentences I imposed upon the offender’s brother. This particular matter for which the offender is to be sentenced has a counterpart in a matter on a Form 1 attached to one of the offences which Mr McGaw was sentenced, and I repeat that he was sentenced on the basis of different facts. Parity is really of no application in those circumstances, there being nothing really to compare the sentence I will impose on this offender with any sentence I imposed on Mr McGaw. Of course I will take into account that the offender has spent some considerable time in fulltime custody. I can say considerable time because two months and thirteen days in fulltime custody for an offender going to gaol for the first time is considerable.

23 It is a fundamental rule in sentencing that a sentence must reflect the objective gravity of an offender’s conduct. This was grave conduct indeed. The offence is to be placed in it’s proper context when I assess it’s criminality. This was not a case where nothing at all had happened to DS before he was incited to kiss the outside of the offender’s vaginal area. To the contrary at the time the offender did what she did, DS has already been subject to acts of violence. He was crying at times and he was injured. This places the offender’s actions in it’s proper context and makes her behaviour serious indeed.

24 Taking into account the periods of imprisonment already served I will sentence the offender to imprisonment but order that it be served by way of periodic detention. The offender is sentenced to imprisonment. I set a non-parole period of six months with a head sentence of twelve months. That sentence is to be served by way of periodic detention. The offender is therefore to report to the Norma Parker Periodic Detention Centre at 8.30am on 5 May 2007 in order to commence serving her sentence.

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