//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2008] NSWCCA 112
Court of Criminal Appeal (NSW)
2008-05-13
Beazley JA, Johnson J, McCallum J, Mr J, Callum J
Original judgment source is linked above.
The Applicant's Subjective Circumstances 13 The Applicant was 49 years old at the time of the offences and 61 years at the time of sentence. He had four adult children from his first marriage. He had married again but, since becoming aware of the offences, his wife had separated from him. Likewise, the Applicant had become estranged from most of his children because of his offending. 14 The only entry in the Applicant's criminal history involved a fine and good behaviour bond imposed for an offence of receiving in the Penrith District Court in October 1975. 15 After leaving school, the Applicant maintained employment in various sales and managerial roles. He ceased working in 1998 in order to take care of his wife who was ill at the time. At the time of sentence, the Applicant was in receipt of the disability pension. 16 A number of references were tendered in the District Court which spoke, amongst other things, of the Applicant's good works over years with church-associated activities, including the establishment in 1996 of a soup kitchen for lonely and homeless people which operated for five years in the Fairfield area. The Applicant's first wife, his brother, his son and a minister of religion from the Seventh Day Adventist Church gave evidence on his behalf in the sentencing proceedings. 17 A letter from the Applicant's medical practitioner stated that he was under the care of a cardiologist for a small ventricular septal defect and atrial fibrillation. He had suffered a stroke in 2004. At the time of sentence, the Applicant took blood-thinning medication and medication to regulate his heart beat and required ongoing medical treatment.
Some Findings of the Sentencing Judge 18 Her Honour observed that each of the s.61J offences involved digital penetration for a brief time in the Applicant's car, that there was no real force or coercion used over and above that necessarily involved in the commission of the offences and no threats made nor pressure applied to ensure the victim's compliance or subsequent silence. Her Honour noted that the victim felt pain on each occasion and cried throughout the first two incidents (ROS3). 19 In relation to the s.61M count, her Honour found that the offence involved touching the victim's vagina for a number of minutes, that the offence was committed during the day when the victim's younger brother was in the back seat of the car, and that no force or coercion was used nor threats made nor pressure applied. There was no evidence of any immediately apparent effect on the victim (ROS4). 20 Her Honour concluded that each of the s.61J offences was in the low-to-mid range of objective seriousness and that the s.61M offence was "more towards the middle of the range" (ROS4). 21 Her Honour found that the offences were aggravated by the abuse by the Applicant of his position of trust in relation to the victim: s.21A(2)(k) Crimes (Sentencing Procedure) Act 1999. 22 Her Honour found a number of mitigating features - the Applicant did not have any significant record of previous convictions, he was a person of good character, he was unlikely to re-offend and there were good prospects of rehabilitation whether by reason of his age or otherwise (ROS4). 23 Her Honour took into account that the Applicant had done much good work through the church, including setting up the soup kitchen in Fairfield in 1996, and that the discovery of the Applicant's offending had led to the break up of his second marriage and had detrimental effects upon his relationship with his children (ROS4-5). 24 Her Honour accepted the medical evidence concerning the Applicant's health and the need for ongoing treatment, and accepted that custody would weigh more heavily on him because of those conditions (ROS6-7). 25 Her Honour noted that statistics for sentences imposed before 1 February 2003 for s.61J and s.61M offences had been provided to the court and that, although a "blunt tool", they were of some value as a reference point (ROS7). 26 Her Honour took into account the need for general deterrence in matters of this kind (ROS8). 27 Her Honour found special circumstances as it was to be the Applicant's first prison sentence and he would need assistance with his re-integration into the community upon his release (ROS8). 28 Her Honour determined to partly accumulate the sentences as the offences were distinct and were committed at different times (ROS8).
Submissions Concerning Grounds of Appeal 29 The Notice of Appeal identified the following grounds:
(a) Ground 1 - the sentences imposed were excessive;
(b) Ground 2 - the judge gave insufficient weight to the subjective circumstances of the Applicant;
(c) Ground 3 - the judge gave undue weight to the principle of general deterrence;
(d) Ground 4 - the judge gave undue weight to sentencing statistics for offences committed prior to February 2003 notwithstanding that she considered that they are "a blunt tool" . 30 Mr Conomos, counsel for the Applicant, approached the application under the umbrella of the first ground and contends that the sentences imposed were manifestly excessive. He acknowledged that her Honour had not committed any patent error. Rather, he submitted that the sentences disclosed latent error. Having regard to the findings favourable to the Applicant made by the learned sentencing judge and paying due regard to the objective seriousness of the offences and the strong subjective case of the Applicant, he submits that the sentences were manifestly excessive and that lesser sentences were warranted in law and should be imposed. Particular reliance was placed upon the age and health problems of the Applicant. 31 The Crown submits that no error has been demonstrated with respect to the sentences passed, nor has it been demonstrated that the sentences were manifestly excessive. The Crown submits that the offences were objectively serious and that the subjective factors found in favour of the Applicant were appropriately taken into account in determining the quantum of sentence. It was submitted that good character is of limited significance in the context of offences involving the sexual abuse of children. Further, the Crown submits that the Applicant's expressions of remorse and contrition were tempered by his pleas of not guilty and that a trial followed in which the victim was required to give evidence. 32 The Crown submitted that her Honour gave appropriate weight to the need for general deterrence. 33 The Crown submitted that the Applicant was in a position of trust to the victim which was seriously breached, that the offences continued over a period of time and that there was an element of grooming by the Applicant. It was submitted that the Applicant has not demonstrated that lesser sentences were warranted in law and should have been imposed: s.6(3) Criminal Appeal Act 1912.
Decision 34 The maximum penalties which the legislature has set for offences such as these reflect community abhorrence of and concern about adult sexual abuse of children: R v BJW (2000) 112 A Crim R 1 at 6 [20]. General deterrence is of great importance in sentencing such offenders, especially when the offender is in a position of trust to the victim: R v BJW at 6 [20]. 35 The Applicant committed a series of serious sex offences against the victim over a period of months in 1995. He had access to the victim only because of the position of trust he occupied in his church. Rather than protect the victim, he took advantage of his contact with her for his own sexual gratification. 36 The offences involved an element of grooming with the victim being welcomed into the Applicant's house and with an association developing which provided the Applicant with opportunities to sexually exploit the victim whilst she was in his care: R v Ball [2001] NSWCCA 352 at [24]. 37 The age gap between the Applicant (49 years) and the victim (12 years) aggravates the offences, in particular when the offences involved a gross breach of trust. 38 Although the Applicant was entitled to credit for his prior good character and good works with the church, the weight to be given to this factor was tempered by the abuse of his position of trust with the church whereby he gained access to the victim: Ryan v The Queen [2001] 206 CLR 267 at 278. 39 It was necessary that the sentences to be imposed upon the Applicant reflect the objective seriousness of his crimes committed over a period of months against a 12-year old girl in his care. 40 Her Honour took into account the subjective factors operating in the Applicant's favour including his ill health, age and need for medical treatment. Her Honour did not give insufficient weight to the Applicant's subjective circumstances, nor did she give undue weight to the principle of general deterrence. No error has been demonstrated in her Honour's passing reference to sentencing statistics.
41 The Applicant has not demonstrated any error on the part of the learned sentencing judge. The sentences were not manifestly excessive. To the contrary, in my view, the sentences were lenient. 42 I propose that leave to appeal be allowed, but that the appeal be dismissed. 43 McCALLUM J: I agree with Johnson J.
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.
Green
R
R v BJW (2000) 112 A Crim R 1 CASES CITED : R v Ball [2001] NSWCCA 352 Ryan v The Queen [2001] 206 CLR 267