R v Gommeson [2014] NSWCCA 159

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Gommeson [2014] NSWCCA 159 Hearing dates: 20 June 2014 Decision date: 15 August 2014 Before: Johnson J at [1]; [138] Harrison J at [136]; [138] Garling J at [137]; 138] Decision: 1. Crown appeal allowed. 2. The sentences imposed in the Sydney District Court upon the Respondent on 11 October 2013 are confirmed with respect to the offence against JH of attempt aggravated sexual assault of a child contrary to s.61J(1) Crimes Act 1900 (Sequence 49), and the offence against JH of aggravated sexual intercourse with a child contrary to s.66C(4) Crimes Act 1900 (Sequence 29) (taking into account an offence of aggravated indecent assault under s.61M(2) Crimes Act 1900 on a Form 1 (Sequence 61)). 3. All other sentences of imprisonment passed on 11 October 2013 are quashed and, in their place, sentence the Respondent to the following terms of imprisonment: (i) for the offence against BW of aggravated indecent assault contrary to s.61M(2) Crimes Act 1900 (Sequence 50), imprisonment comprising a non-parole period of two years commencing on 15 July 2014 and expiring on 14 July 2016 with a balance of term of one year commencing on 15 July 2016 and expiring on 14 July 2017; (ii) for the offence against JW of aggravated indecent assault contrary to s.61M(2) Crimes Act 1900 (Sequence 51), imprisonment comprising a non-parole period of two years commencing on 15 July 2015 and expiring on 14 July 2017 with a balance of term of one year commencing on 15 July 2017 and expiring on 14 July 2018; (iii) for the offence against LW of aggravated sexual intercourse under s.66C(2) Crimes Act 1900 (Sequence 39), and taking into account an offence of aggravated indecent assault under s.61M(2) Crimes Act 1900 on a Form 1 (Sequence 62), imprisonment comprising a non-parole period of five years and three months commencing on 15 July 2015 and expiring on 14 October 2020 with a balance of term of one year and nine months commencing on 15 October 2020 and expiring on 14 July 2022; (iv) for the offence against JK of aggravated sexual intercourse under s.66C(2) Crimes Act 1900 (Sequence 52), imprisonment comprising a non-parole period of five years commencing on 15 July 2016 and expiring on 14 July 2021 with a balance of term of one year and nine months commencing on 15 July 2021 and expiring on 14 April 2023; (v) for the offence involving JG of possession of child abuse material under s.91H(2) Crimes Act 1900 (Sequence 3), a fixed term of imprisonment for 12 months commencing on 15 July 2021 and expiring on 14 July 2022; (vi) on each of seven offences involving JG, being offences of aggravated sexual intercourse contrary to s.66C(2) Crimes Act 1900 (Sequences 19, 21, 23, 26, 43, 44 and 45), concurrent terms of imprisonment comprising a non-parole period of five years and three months commencing on 15 July 2016 and expiring on 14 October 2021 with a balance of term of one year and nine months commencing on 15 October 2021 and expiring on 14 July 2023; (vii) for an offence involving JG of aggravated sexual intercourse contrary to s.66C(2) Crimes Act 1900 (Sequence 27), and taking into account on a Form 1, three offences of aggravated sexual intercourse under s.66C(2), two offences of aggravated indecent assault under s.61M(2) and one offence of aggravated act of indecency under s.61O(1) Crimes Act 1900 (Sequences 17, 53, 54, 55, 56 and 57), imprisonment comprising a non-parole period of six years commencing on 15 July 2016 and expiring on 14 July 2022, with a balance of term of two years commencing on 15 July 2022 and expiring on 14 July 2024; (viii) for offences against KG, for each of four offences of aggravated sexual intercourse under s.66C(4) Crimes Act 1900 (Sequences 13, 16, 46 and 48), concurrent terms of imprisonment comprising a non-parole period of four years commencing on 15 July 2020 and expiring on 14 July 2024, with a balance of term of one year and three months commencing on 15 July 2024 and expiring on 14 October 2025; (ix) for an offence against KG of aggravated sexual intercourse under s.66C(2) Crimes Act 1900 (Sequence 7), taking into account two offences of aggravated indecent assault under s.61M and one offence of indecent assault under s.61L Crimes Act 1900 on a Form 1 (Sequences 58, 59 and 60), imprisonment comprising a non-parole period of four years commencing on 15 July 2020 and expiring on 14 July 2024 with a balance of term of five years commencing on 15 July 2024 and expiring on 14 July 2029. 4.The earliest date upon which the Respondent will be eligible for release on parole is 14 July 2024. Catchwords: CRIMINAL LAW - Crown appeal against sentence - Respondent pleaded guilty to 20 serious child sexual abuse offences contrary to Crimes Act 1900, ss.66C(2), 66C(4), 91H(2), 61M(2) and 61J(1) and 344A - representative counts - 11 further Form 1 offences taken into account on sentence - offences committed against seven male victims between 2005 and 2011 - victims aged nine to 16 years - Respondent aged 55 to 62 years - Respondent friendly with families of several victims - offences occurred while victims under authority of Respondent - offending conduct involved calculated grooming of victims through provision of money, gifts, alcohol, cigarettes, cannabis and interstate trips - Respondent directed sexually explicit questionnaires to victims - questionnaires designed in part to identify further prospective victims - total effective sentence of 12 years and six months' imprisonment with non-parole period of eight years and six months - significant degree of concurrency in relation to individual sentences imposed - sentences with respect to two victims wholly concurrent - no period of imprisonment referable solely to offences committed against two other victims - whether sentences imposed on Respondent for offences committed against one particular victim manifestly inadequate - manifest inadequacy not demonstrated - whether Respondent's overall sentence manifestly inadequate - large number of offences with substantial maximum penalties - Respondent's age not significant mitigating factor given pattern of offending up to time of arrest - s.91H(2) offence of considerable objective gravity - need for sentences in child sexual abuse cases to reflect the long term and serious harm done to individual victims - sentencing to reflect fact there were several victims of separate criminal conduct - sentences manifestly inadequate due to insufficient accumulation of individual sentences - residual discretion not exercised - Respondent resentenced - total effective sentence of imprisonment for 17 years with non-parole period of 12 years Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Criminal Appeal Act 1912 Cases Cited: Abbas v R [2013] NSWCCA 115 BT v R [2012] NSWCCA 128 Cahyadi v R [2007] NSWCCA 1; 168 A Crim 41 Collier v R [2012] NSWCCA 213 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Doyle v R; R v Doyle [2014] NSWCCA 4 Giles v Director of Public Prosecutions [2009] NSWCCA 308; 198 A Crim R 395 Green v The Queen [2011] HCA 49; 244 CLR 462 Hili v The Queen [2010] HCA 45; 242 CLR 520 Jeffries v R [2008] NSWCCA 144; 185 A Crim R 500 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Paxton v R [2011] NSWCCA 242; 219 A Crim R 104 R v Brown [2012] NSWCCA 199 R v CMB [2014] NSWCCA 5 R v Gavel [2014] NSWCCA 56 R v Hamid [2006] NSWCCA 302; 165 A Crim R 179 R v JCW [2000] NSWCCA 209; 112 A Crim R 466 R v JW [2010] NSWCCA 49; 77 NSWLR 7 R v PFC [2011] NSWCCA 117 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Thalari [2009] NSWCCA 170; 75 NSWLR 307 R v Wheeler [2000] NSWCCA 34 R v Wilson [2005] NSWCCA 219 Ta'ala v R [2008] NSWCCA 132 Vaovasa v R [2007] NSWCCA 253; 174 A Crim R 116 Texts Cited: --- Category: Principal judgment Parties: Regina (Appellant) Robert William Gommeson (Respondent) Representation: Counsel: Ms V Lydiard (Appellant) Mr CJG Smith (Respondent) Solicitors: Solicitor for Public Prosecutions (Appellant) Legal Aid NSW (Respondent) File Number(s): 2012/219701 Publication restriction: --- Decision under appeal Citation: --- Date of Decision: 2013-10-11 00:00:00 Before: Her Honour Judge HL Syme File Number(s): 2012/219701