District Court New South Wales Medium Neutral Citation: R v RG [2020] NSWDC 492 Hearing dates: 21 February 2020 Date of orders: 21 February 2020 Decision date: 21 February 2020 Jurisdiction: Criminal Before: M L Williams SC DCJ Decision: An aggregate term of imprisonment of 3 years with a non-parole period of 2 years: at [33]. Catchwords: SENTENCING — Penalties — Imprisonment SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Relevant factors on sentence — Circumstances of offence — Deterrence — Factual basis for sentence — General principle — Maximum penalty — Multiple offences — Objective seriousness SENTENCING — Subjective considerations on sentence — Special circumstances — Age of offender Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Bugmy v The Queen (2013) 249 CLR 571 Imbornone v R [2017] NSWCCA 144 R v Thomas [2007] NSWCCA 269 R v Qutami (2001) 127 A Crim R 369 Veen v The Queen (No 2) (1988) 164 CLR 465 Texts Cited: Nil Category: Sentence Parties: Regina (Crown) RG (Offender) Representation: Mr P Lynch (Crown) Mr T Thorpe (Counsel for the offender) File Number(s): 2016/185134 Publication restriction: STATUTORY NON-PUBLICATION APPLIES Any matter which may identify the complainant: s 15A Children (Criminal Proceedings) Act 1987; s 578A Crimes Act 1900 Judgment 1. RG, now aged 74, pleaded guilty at the time of a trial being listed in November 2019 to a number of historic sexual offence counts. I accept Mr Thorpe's submission that a discount of 15% should be allowed for the utilitarian value of the plea, given that it eliminated the victims having to recount their experiences in evidence. 2. It is clear that an aggregate sentence of fulltime imprisonment should be imposed, and no other alternatives need be considered when I carry out the sentencing exercise in accordance with s 3A of the Crimes (Sentencing Procedure) Act 1999 and what the High Court said in Veen v The Queen (No 2) (1988) 164 CLR 465, as Mr Thorpe helpfully pointed out in his written submissions. 3. The agreed facts show that the offences relate to offences committed against two cousins RS and PF. The victim's grandmother, JS, lived with the offender during the 1970s and 1980s. RS lived with JS between1986-1988. 4. The offences to which he has pleaded guilty are under a number of repealed sections which carry lower maximum penalties than the maximum penalties that are now applicable for the same type of offence, namely s 61E(1) of the Crimes Act 1900, (Counts 1,2,5,6) which carried a maximum penalty of six years imprisonment, with no standard non-parole period; s 61E(2) of the Crimes Act 1900 (Count 3) which carried a maximum penalty of two years imprisonment, with no standard non-parole period; and s 61M(1) of the Crimes Act 1900 (Count 4) which carried a maximum penalty of seven years imprisonment, with no standard non-parole period. These maximum penalties are of course legislative guideposts in the sentencing exercise. Facts on Sentence Victim 1 – RS (Counts 1 – 4) 1. Count 1 (s 61E(1)) of indecent assault involving the first victim, RS, occurred in about 1986-1988 when she was 2, 3 or 4. She was in the kitchen of the home where the offender came in, took her outside to the garage. She was lying on the bed with him next to her. He started to fondle her vagina while he had his arm round her. This was part of a regular course of conduct by the offender. She could see his exposed penis which he was fondling while touching her vagina. She cannot remember how long it lasted but it felt normal to her because she saw him doing it all the time. 2. Count 2 (s 61E(1)) also involved RS at around the same age. She saw the offender standing in her aunt's bedroom, where she was sleeping, with his hands down the front of his pants. He put his other hand down her pants and touched her vagina. She was trying to block out what was happening by looking at a picture of a tiger on the wall. 3. Count 3 (s 61E(2)) involves the offender taking RS to work where he was employed as a cleaner at the Blacktown PCYC. The offender locked her in a sauna with him and she had to hold his penis. 4. Count 4 (s 61M(1)) involved an incident two or three years later when JS and RS moved into a mobile home at Lake Munmorah. The offender followed shortly thereafter. He repeatedly entered her room and engaged in indecent conduct. When she was about 12 years of age he came into the room with his penis exposed. He forced her onto the bed and was pulling at her pants to try and remove them. She tried to push him off and he stopped when her grandmother walked into the room. Victim 2 – PF (Count 5 – 6) 1. Count 5 (s 61E(1)) was the first of the offences against the second victim, PF, which occurred in about 1988 during winter. He told her to sit on his knee and he grabbed her between the legs. He used one hand to massage her crotch on the outside of her clothes until she jumped off his lap. 2. Count 6 (s 61E(1)) occurred a couple of months after count 5. She was visiting JS and the offender with her mother. They were playing and the offender grabbed both PF and RS as they ran past and sat them down on his knees. He was holding PF firmly and rubbed the outside of her vagina outside of her clothing for about 20 seconds; she could see him doing the same thing to RS. 3. In about 1992, PF was at home with her mother when she asked her mother said, "Is sexual assault when you just grab someone or is it only the more serious things?" .Her mother said, "Touching is bad", PF then said, "Well, [RG] did that to me." 4. He was arrested by the Police in relation to these matters on 17 June 2016. He has previous convictions for offences involving JS's daughters, TH, born in 1986, and TS, who was born in 1967 or thereabouts. 5. The facts of those prior convictions are contained in the Crown case and he was dealt with, I am told, by a community service order totalling 400 hours at the Penrith District Court in April 1999. Subjective Material on Sentence 1. The psychological material and subjective case which was presented to the Court more than 20 years ago is part of the Crown bundle here. It includes a report of a psychologist, Katherine Barrier, which sets out a history which is not affirmed or tested and is subject to the usual cautions in accordance with cases such as R v Qutami (2001) 127 A Crim R 369 and Imbornone v R [2017] NSWCCA 144, but the Crown makes no submission to the effect that the history should not be accepted as a reasonable basis upon which to proceed to sentence, there being no indication that it was not accepted by the previous sentencing Court in 1999. 2. The offender grew up in Fairfield in a large family of eight brothers and four sisters. His parents came from Scotland and his father worked as a wharf labourer until his death, when the offender was nine. His mother had battled to raise the children in very trying circumstances. He struggled at school.He thought he was "a bit backward" and left school when he was 14 because his mother could not afford to keep him there. 3. He has been employed as a manual labourer over the years. He has never been married, has no dependents. He lived in the family home until he was 25, when then he met JS, who was 20 years older than him. He had no sexual experience prior to meeting JS. Their sexual relationship was short-lived. 4. When asked about the offences relating to the earlier offences relating to TH, he was at a loss to explain his behaviour. The psychologist opined that this shy, timid man, who at that time was in his late 20s, had limited understanding of sexual drive, and apparently no opportunities to satisfy his sexual desires. His behaviour was opportunistic. 5. His psychological tests put him at the upper end of the borderline retarded range of intelligence or putting it another way, 92% of the general population are more intellectually able than him. So he is in the lowest 8% of the general population. 6. He was well aware then of the inappropriateness of his behaviour and expressed deep remorse. Treatment was suggested at St John of God Hospital, there is no evidence that that was undertaken. 7. There is also presentence report from 1999 containing similar history and similar expressions of regret and remorse. 8. The evidence put on behalf of the offender today is an affidavit, which was not challenged, in which he sets out his family circumstances which were already recounted in the recitation of the psychologist's history. 9. He retired about five or six years ago and lives on the aged pension. He does occasional work as a garbage runner. He takes medication for blood pressure and cholesterol and suffers from asthma and gastric reflux. He has suffered depression in the past but never sought treatment for it. 10. He says that he is sorry for the harm he has caused RS and PF and he hopes that one day they may forgive him. He understands he will be sentenced for a period of time in gaol. 11. His patient health summary from his GP, does not disclose anything remarkable. Victim Impact Statements 1. Victim impact statements have been prepared by RS and PF, the latter of which was read to the Court by her mother. They are taken in the way suggested by Basten JA in R v Thomas [2007] NSWCCA 269, and although not been tested or challenged, they are clearly restricted to the significant deleterious effects of this offending on these women for a very long time. They are eloquent testimony to the way in which this type of offending has lasting effects. One of the purposes of sentencing is to recognise the harm done to the victims of the crime and the sentence process must do so. Sentencing Submissions and Conclusions 1. There are no aggravating factors pointed to by the Crown or apparent. Both the Crown and counsel for the offender submit that a term of imprisonment of some years is appropriate. Mr Thorpe's submissions mention a standard non-parole period in relation to count 4, but it is now been acknowledged that the Crown documents were in error and there is no standard non-parole period to be considered. 2. I find, as Mr Thorpe submitted, that each offence is below the mid-range of objective seriousness. 3. Mr Thorpe suggests that the offender's background was such as to be characterised as one deprived, and thus engaging the principles set out in Bugmy v The Queen (2013) 249 CLR 571 leading to a lessening of moral culpability. However the evidence that I have seen discloses no more than a man who grew up in lower socio‑economic circumstances, but certainly not in the type of profound deprivation, particularly in relation to the Aboriginal community, contemplated by their Honours in Bugmy. 4. I accept, however, that his intellectual disability and low intellectual functioning is a significant matter to be taken into account in the sentencing process. Recognising that it lessens his moral culpability so that general deterrence is given lesser weight in the sentencing process. 5. There is a clear basis for a finding of special circumstances. It will be his first time in custody, he having served no time in custody following his arrest. His age and moderate health difficulties will make his time in custody more onerous than other members of the general prison population and his level of intellectual impairment is a matter to be taken into account as well. 6. In short, these offences occurred prior to him being dealt with in 1999 for other offences in relation to members of the same extended family. He has not committed any other offences for a very long time, but he recognises that he must now pay the price for what he did. 7. Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 I will impose an aggregate sentence of imprisonment. The orders I make are: 1. The offender is convicted of each offence. 2. The indicative sentences are: 1. Count 1 (001): 16 months 2. Count 2 (003): 16 months 3. Count 3 (009): 5 months 4. Count 4 (008): 18 months 5. Count 5 (010): 12 months 6. Count 6 (011): 15 months 1. I impose an aggregate sentence of imprisonment of 3 years, to commence on 21 February 2020. 2. I impose a non-parole period of 2 years expiring on 20 February 2022. 3. I find special circumstances. ********** Amendments 02 September 2020 - Correct party details in Cover Sheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 September 2020