R v Garry SAGE

REMARKS ON SENTENCE 1I am sentencing a young man who at the very commencement of his adult life has committed a series of very serious crimes with damaging consequences for the victim, a person just at that stage commencing her teenage years. 2I am sentencing Garry Sage for six offences and in due course I will have to deal with another two less serious offences. The six offences that I am sentencing him for are these. 3There are four offences of sexual intercourse with a person aged 14 to 16 years. They are offences against s 66C(3) of the Crimes Act 1900. Parliament has fixed a maximum of 10 years imprisonment to that crime. 4I am also sentencing Garry Sage for two offences of possessing or producing child pornography. They are offences against s 91H(2) of the Crimes Act. Again, Parliament regards those crimes as so serious that it has attached a maximum of 10 years imprisonment to the offence. 5In due course I will also have to deal with two offences of contravening an apprehended domestic violence order under s 166 of the Criminal Procedure Act 1986. 6It is important for a judge in sentencing someone to give a brief account of what happened or what the events were which amounted to the crimes so that a proper assessment can be made of how serious the offences were. 7Garry Sage made friends with a girl named Rachel Grey. I say at this stage that that name is not to be repeated outside this courtroom to anyone who is not in the courtroom. The law in this State is that the victim of sexual offences is entitled to their privacy. It is an offence to identify outside the courtroom to anyone who is not in the courtroom, the name of the person or any means of identifying the person who is the victim of sexual assaults. That law applies in this case. 8Garry Sage and Rachel Grey met on 17 September 2011 when Garry Sage took her back to his mother's place where he was living. Garry Sage was then 19 and Rachel Grey was 14. They spent time together later that afternoon and then in his bedroom they began to kiss. They continued up to the point of being about to have sexual intercourse when Garry Sage said "Are you sure you wanted to do this, cause once you do it you can't take it back" and Rachel Grey replied, "Yes, it's fine". They then engaged in sexual intercourse in the conventional sense of penile vaginal sexual intercourse. About a week later they met again and again engaged in sexual intercourse. That was on 24 September 2011. 9A couple of months later on 30 December 2011, Rachel Grey was about to depart on holidays with her family and she and Garry Sage were at her family home. They again engaged in sexual intercourse. On 30 January 2012 the police were granted a search warrant and found some images on Garry Sage's computer. One of the images was a photograph of Rachel Grey's buttocks with a black texta inserted in her rectum. Garry Sage acknowledged that he had placed it there and that it was Rachel Grey. That act by law amounts to sexual intercourse and that is therefore the fourth crime of sexual intercourse that I am sentencing Garry Sage for. 10Police also found on his laptop computer a series of photographs which he had, he said, taken of Rachel Grey. They included photographs of his penis penetrating her vagina and a close-up photograph of her vagina with the writing "The [Mr Sage's nickname] Pussy", written above the vagina. There was also a photograph of her lying face down on a bed. There were other photographs of her as well. 11This was not all. In addition, there were 39 or 40 images of child abuse material or child pornography. These were not of Rachel Grey but of unidentified children. Garry Sage admitted to the police that he had deliberately downloaded the pornography and that he had visited a particular site on numerous occasions. 12On 13 February 2012, the police applied for an apprehended violence order. That was to protect Rachel Grey from Garry Sage. The order was granted. Garry Sage twice breached that apprehended violence order. He wrote a three page letter to Rachel Grey and then in early April 2012 he picked her up from her home and took her for a drive and spoke to her. They were, as I said, breaches of the apprehended violence order which was taken out for Rachel Grey's protection. 13On 13 April 2012, Garry Sage was arrested. He was interviewed. He admitted to the breaches of the apprehended violence order. He admitted to being in a sexual relationship with the 14 year old Rachel Grey. He had in the meantime, I should add, himself turned 20. He admitted having penile vaginal intercourse with her on numerous times at her house and in his house. He admitted filming the sexual intercourse on his phone. He admitted knowing that she was aged 14 and he admitted that he knew the consequences of his actions. 14I have taken this summary of what occurred that resulted in Garry Sage being charged from the agreed facts which are part of exhibit A in this case. 15After he was arrested Garry Sage spent 3 days in custody before he was granted bail. 16The reasons why having sexual relations with a child of Rachel Grey's age is wrong are well known and are the basis for Parliament making the activity illegal. In a case called R v Lee [2010] NSWCCA 88, the Court of Criminal Appeal in this State, through McClellan CJ at CL, quoted a passage from the judge of this Court from whom the appeal was brought. At [15] of the Court of Criminal Appeal judgment, that extract appears. Part of it explains this law. The late Judge Goldring, in the passage quoted, said this: "Offences involving sexual activities with young people under the age of sixteen are regarded as serious because the law presumes that such people do not have the emotional maturity to be able to make informed judgments about activities which may have very serious consequences for them." 17In this case Rachel Grey has provided a victim impact statement regarding the effect which the crimes perpetrated against her have had. I have read that victim impact statement very carefully. It is a very articulate description of the impact of such crimes and why they are made crimes. The victim impact statement comes from a school child who was at the relevant time in Year 8, facing so many of the usual adolescent issues, including friends, family, schoolwork and fitness. It is obviously important to her and to the community that teenagers are able to go through those stages without significant interference and with significant support. As she said, before she met Garry she was "an innocent, happy little girl". She said that she had "everything in the palm of my hand" and included "a happy relationship with my family, amazing friends, best grades at school." She correctly observed that she did not deserve what happened to her. She then said that Garry Sage "took away parts of my life, my innocence, parts of me that I will never get back". She describes, as I said, very articulately, the impact which this crime has had on her. 18I should add this in case it is thought that I am regarding the contents of the victim impact statement as a specially aggravating feature which should aggravate or make more serious the sentence which I have to impose. It is not a specially aggravating feature. It is, I repeat, a very clear statement of why Parliament enacts laws such as the ones that Garry Sage has offended against. 19I have been very much assisted by both Mr A Benetatos, who appeared for Garry Sage and by Ms C Summerfield who appeared for the Director of Public Prosecutions. Both of them have provided me with a good deal of help in what I regard as a difficult sentencing exercise. 20Ms Summerfield, in her written submissions, emphasised certain things which make these crimes especially serious. She submitted, and I accept, that Rachel Grey was in the lower end of the age range of 14 to 16 years for the crime. That is not to say that to commit an offence against a 16 year old is in some way better, but it is to emphasise the obvious point that the younger a person is in the age range provided for by this crime, then the more serious the offence and the impact that it is likely to have upon the victim. 21Ms Summerfield also submitted, and I accept, that there was a relationship of trust between Garry Sage and Rachel Grey. He had asserted his love for her. He was 5 years older and up to 6 years older than she was. As Ms Summerfield said, and I accept, Rachel Grey "should have been able to trust that he would not abuse her adolescent vulnerability, and the legislation is in place to recognise his responsibility in this regard." 22I also agree that there was a degree of exploitation so far as the speed at which the relationship developed into a sexual one. It was on one of their very first meetings as individuals that sexual intercourse occurred. 23I accept Ms Summerfield's submission that overall the sexual intercourse offences fall at the lower end of the middle of the range of seriousness for these kinds of offences. 24There is a pre-sentence report which has been prepared by the Probation and Parole Service about Garry Sage which said that he "tended to minimise the seriousness of his offending behaviour and stated that 'I was in love with the girl and the sex was consensual'". It was pointed out that he seemed to show a lack of empathy for the victim. 25Mr Benetatos called his client to give evidence. During his evidence he expressed his remorse and regret and he said that he had read the victim impact statement and appreciated the damage which he had done to Rachel Grey. He is living at [place] and has some employment at [place]. He had been seeing a psychiatrist in [place] and is looking for another one to see. 26In cross-examination he acknowledged that he had engaged in sex at their first significant physical meeting and said that he thought at the time that Rachel Grey was mature enough for the sexual relationship. He said the photographs of her were used for his own sexual pleasure and it was his idea. He had also written graffiti on her body. He acknowledged that his behaviour had brought about some disruption within her family and in fact that it became a wedge between her and her family. He regarded her personality as very compatible and their friendship as compatible but said that the "age was the problem". He acknowledged that he needs additional therapy for his own benefit. 27There was also made available a report by the respected forensic psychiatrist, Dr Stephen Allnutt. Dr Allnutt saw and examined Garry Sage for the purposes of the sentence proceedings. He regarded Mr Sage as "falling into the lower end of the risk scale for future sexual recidivism." He thought, given the information provided by Mr Sage, that there was a "biological predisposition to a mental condition" and that Mr Sage had demonstrated "significant behavioural problems from a young age in childhood that have persisted through his life". He thought that Mr Sage had an underlying mood disturbance. He held back from making a diagnosis of paedophilia, despite the interest in the child pornography material. 28Mr Sage himself had acknowledged in cross-examination that his interest in it was more because of its illegal nature or the fact that it was regarded as taboo, rather than for sexual pleasure. It was, as he said, its shock value. 29Mr Sage has no record of any earlier criminal convictions. That has limited benefit in a case such as this because he has used his good character, so to speak, as part of a way of getting trust from his victim. 30I accept Mr Benetatos' submission that his client now has more insight into his behaviour and into the impact which he has had on the victim of his crimes, including the victims not known to the Court who were depicted in the general pornographic photographs. 31Mr Benetatos emphasised his client's need for ongoing treatment and I accept that submission. As Mr Benetatos said, his client is still a young man. That is a matter which has concerned me significantly. He has a complex psychological background and make-up and left school at the end of Year 9. He comes from a very supportive family and is complying with his medication. He has expressed remorse and contrition in his evidence and, as he said, has shown some insight into what he has done. He cooperated with the police and as, Ms Summerfield acknowledged, entered his plea of guilty at the earliest available opportunity. 32I have taken into account, the submissions of both Mr Benetatos and Ms Summerfield. 33The main issue, it seems to me, was the question of whether I should sentence Mr Sage to a penalty which involves full-time custody. Mr Benetatos argued that the option was open for a non-custodial sentence. It would have to be a suspended sentence because other non-custodial options or other imprisonment sentences which can be served other than in full-time custody are not available. Ms Summerfield argued that this is a case that should be met with a period of full-time custody. 34This is not a case where the offender has had a one off sexual encounter with a schoolgirl but he has committed a series of acts of sexual intercourse over a period of some months. It is not a case of an offender downloading sexual images of child pornography, a crime in itself, from the internet. He committed that crime but in addition he has taken degrading photographs of the victim of his other offences. 35Each of the six offences I am sentencing him for carries a maximum of 10 years imprisonment. As the Court of Criminal Appeal said through the Chief Judge at Common Law in R v Lee [2010] NSWCCA 88 at [31] - "Our community has indicated through the Parliament that such relationships are forbidden and if they occur the older person will be severely punished. It may be that if the offender was of a significantly younger age than that of the respondent at the time of the offences a more benign attitude would be appropriate." 36In that case the age difference was some nine years. In this case the age difference is five years. I do not regard that as an ameliorating factor so far as Mr Sage is concerned. He was significantly older in my opinion than Rachel Grey, even though he was himself on the threshold of his adult life. 37I have decided, given the number of serious offences and the different kinds of offences which he has committed, that I have no choice but to send Mr Sage to gaol. I will impose sentences of imprisonment, or indicate sentences of imprisonment, for each of the six serious crimes and then I propose to fix one aggregate sentence. 38I regard an appropriate penalty for each of the four offences of sexual intercourse with a child aged 14, as 3 years imprisonment. I regard an appropriate penalty for the child pornography offence involving images of Rachel Grey, as one of 3 years imprisonment. I regard an appropriate penalty for the other child pornography offence involving unidentified children, as one of 2½ years imprisonment. 39I would not have imposed each of those sentences one after the other so that they would amount to a large number of years. But nor would I fix them all to be served over exactly the same period so that there would be a 3 year sentence. I would have commenced each of the 3 remaining sexual intercourse sentences 2 months after the previous one. I would have commenced the child pornography offence of 3 years, 3 months after the last sexual intercourse offence sentence and I would have commenced the last child pornography offence, again after another 3 months. The total result that I would have come to and which I would regard as an appropriate sentence is one of 4 years imprisonment. 40However I have to add this. Mr Sage pleaded guilty. He pleaded guilty at the very earliest opportunity. That means that Rachel Grey did not have to come to Court to give evidence in a contested trial and the resources of the State so far as criminal justice is concerned have been saved. I would therefore reduce the penalty by 25 per cent from 4 years imprisonment to one of 3 years imprisonment. 41For a sentence of 3 years imprisonment the non-parole period - that is, the period that must be served in custody - would normally be 27 months - 2 years and 3 months - but Parliament has permitted a judge to alter that relationship between the non-parole period and the overall sentence where there are special circumstances to make that adjustment. I regard there being special circumstances in this case. It is the first time that he has been in custody. He will need treatment and supervision for a longer period when he is released from custody. However, the most significant special circumstance in my opinion, is related to Mr Sage's age. He is now 21. He has never committed a crime before but, as I said, he has now committed - just after becoming an adult - a series of very serious criminal offences. I am very conscious of the impact of sending such a young person into gaol. However, in my opinion, the offences are so serious that I must impose that sentence. The community would expect it. 42The sentence will be 3 years. However, I propose to take an extraordinary step and reverse the usual ratio for a non-parole period. The non-parole period which I propose to fix is 9 months. The balance of the term will be 27 months. That is, I acknowledge, an extraordinarily short non-parole period but the main factor which I have in mind in fixing that is the age of this young man and the stage he is at in life. I also bear in mind the need that he has to deal with his psychological problems and the issues which have brought about this criminal offending. The best way for that to happen in my opinion will be in the community and supervised by psychologists and psychiatrists. 43I am going to sentence you now, Garry Sage. You need to stand up. I am going to backdate the sentence by 3 days to Tuesday 30 April to make up for the 3 days that you have already served. I fix a non-parole period of 9 months to commence on 30 April 2013 and to expire on 29 January 2014. The balance of the term will be 27 months commencing on 30 January 2014 and expiring on 29 April 2017. Under s 50 of the Crimes (Sentencing Procedure) Act, I make an order directing your release from custody and on parole on 29 January 2014. HIS HONOUR: Okay. Have a seat Garry Sage. Now there's a few things. The first, the dates and things like that. I need you both to check the dates to make sure that I have them correct. It is a sentence of 3 years commencing 30 April 2013, expiring 29 April 2017. Non-parole period, 9 months, 30 April 2013, expiring 29 January 2014. Balance of the term, 27 months, 30 January 2014 to 29 April 2017. SUMMERFIELD: Yes your Honour. BENETATOS: 2016 your Honour. SUMMERFIELD: 29 April 2016. HIS HONOUR: I'm wrong. 44The sentence expires 29 April 2016. HIS HONOUR: Mr Benetatos, there is one thing I forgot or I may have asked you last time. There is a detailed report as we know from Dr Allnutt and the - did I mention this? BENETATOS: Yes you have your Honour. HIS HONOUR: Do you have instructions? BENETATOS: I do. I have instructions to consent to that material being provided to Corrective Services. HIS HONOUR: Thank you very much okay. BENETATOS: That will be very helpful. HIS HONOUR: Now that will probably happen on Monday, I think, when my usual associate is back. She has the contact there. I think exhibit B comprises both of them and I am going to write here, Child Pornography exhibits - not to be opened except by order of a District Court Judge or Judge in a higher jurisdiction. Now conditions of parole. I think I am right. I have ordered his release on parole because it is a sentence of 3 years. So I fix conditions of parole. What should they be? Are you seeing someone down there yet at [place]? No, okay. I guess supervision by the Probation and Parole Service and accept whatever recommendations and directions they give. I think I would leave it up to them. BENETATOS: That would cover it. HIS HONOUR: Do you agree Ms Summerfield? SUMMERFIELD: I think so your Honour. They would normally refer someone to the sex offenders program after an assessment by them. Yes. HIS HONOUR: I think I'll leave that to them to assess. SUMMERFIELD: I think that's appropriate your Honour. BENETATOS: I've got no problem with that. HIS HONOUR: Yes. 45Mr Sage is to be released upon parole on the date 29 January 2014. The conditions of his parole are: (1) That he be of good behaviour; (2) That he attend court if he receives a notice to do so; (3) That he accepts supervision from the Probation and Parole Service and all reasonable recommendations or directions of an officer of that Service. HIS HONOUR: I need to explain it all to Mr Sage in a moment but it's reasonably straightforward so to speak. Are there any other matters that I need to attend to, Mr Benetatos or Ms Summerfield? SUMMERFIELD: Yes. The sentence in relation to the contraventions of the two orders your Honour. HIS HONOUR: What's the penalty? What's the maximum - I think I noted it. SUMMERFIELD: I think it's 2 years and/or 50 penalty units, your Honour. HIS HONOUR: What do you propose that I do, Mr Benetatos? BENETATOS: Given the circumstances, if I can be so bold as to suggest to the rising of the Court. HIS HONOUR: I don't think that's an order anymore but I think there is something equivalent. What do you say Ms Summerfield? SUMMERFIELD: I was thinking a s 10A conviction your Honour. HIS HONOUR: Yes. I think that's right. BENETATOS: Yes that's right. HIS HONOUR: That's it. 46For the two offences referred to in the certificate under s 166(1)(b) of the Criminal Procedure Act 1986, under s 10A of the Crimes (Sentencing Procedure) Act 1999, I convict Garry Sage of those two offences of contravene apprehended domestic violence order and I dispose of the proceedings without imposing any other penalties. HIS HONOUR: I don't need to sign this, do I? SUMMERFIELD: No your Honour. HIS HONOUR: No, but it stays with the court papers. Is there anything else I need to do apart from explain the sentences? SUMMERFIELD: Just one other thing your Honour. The Crown would be seeking destruction orders for a number of items referred to in the property seizure form completed during the search of the offender's house. If I could hand up the property seizure form and seek destruction of the following items. HIS HONOUR: Let's have a look. SUMMERFIELD: On page A18335, items number 1, 2, 3, 4, 5, 7, 8, 9, 10 and 12, and on the following page A18336, items number 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 26 and 28 and in addition, if they're not included there and I couldn't see that they were, the two videos that were the subject of sequence 8 now on indictment. HIS HONOUR: Are they exhibits? SUMMERFIELD: They weren't exhibits no. HIS HONOUR: All right. Have you seen this list - I'll pass it down to Mr Benetatos. BENETATOS: I haven't your Honour. HIS HONOUR: I've just put a red ring around each of the ones that Ms Summerfield named. You have a look at it. Tell me when you've looked and then I'll hear Ms Summerfield again. BENETATOS: If I could be permitted to speak to my client? HIS HONOUR: Yes you may. BENETATOS: Your Honour, I'm told by [Mr Sage], item number 3 is a Sony PlayStation PS3. There was no inappropriate material on that. It's a game console basically and the item number 26 is an 80 gig iPod. That was owned by [Mr Sage's] sister and again there was nothing inappropriate on that. HIS HONOUR: Three and? BENETATOS: Item number 3 and item number 26. HIS HONOUR: Okay show that to - yes? SUMMERFIELD: Your Honour, I understand the officer in-charge is in court. The Crown wouldn't press those two items. HIS HONOUR: Okay thank you. BENETATOS: Thank you your Honour. HIS HONOUR: If that document could be passed back. BENETATOS: If they could be returned perhaps to me. HIS HONOUR: I don't know. You have a talk to Ms Summerfield or with the officer-in-charge. BENETATOS: The instructing officer is nodding at me. I assume that will be him. HIS HONOUR: Okay. Three? BENETATOS: I think it was 28 your Honour. SUMMERFIELD: 26. BENETATOS: 26 sorry. HIS HONOUR: What do I order - under the Evidence Act or-- SUMMERFIELD: I haven't actually got the section with me your Honour. HIS HONOUR: We can look it up later on. 47I order the destruction of the items circled in red with the exception of items 3 and 26 in the document which I mark for identification. MFI #4 ITEMS CIRCLED IN RED WITH THE EXCEPTION OF ITEMS 3 AND 26 IN THE DOCUMENT HIS HONOUR: This is not an offence - there is some legislation called the Crimes (High Risk Offenders) Act 2006. I don't think it applies. SUMMERFIELD: Your Honour, I hadn't quite finished in relation to that destruction order. HIS HONOUR: No thank you go ahead. SUMMERFIELD: There are also electronically recordable devices such as laptops, phones and iPods, and the Crown would be seeking a destruction order in relation to those as well. HIS HONOUR: On the list? SUMMERFIELD: They're not on that list. That's an addition to the list. HIS HONOUR: How do we identify them? SUMMERFIELD: Sorry if I could just get some instructions your Honour. HIS HONOUR: Yes get instructions. They just need to be identified, that's all. So there's clarity in the order. SUMMERFIELD: Sorry your Honour. We don't require any other orders in relation to the destruction order. HIS HONOUR: All right. Is there anything else? SUMMERFIELD: No there's not. HIS HONOUR: Mr Benetatos? BENETATOS: Not that I'm aware of your Honour. 48Garry Sage, I am sending you to gaol for the reasons that I have explained. That is why judges give reasons for their decisions. You have a 3 year gaol sentence. It commenced 3 days ago on 30 April 2013. It therefore finishes on 29 April 2016. The usual non-parole period would be 27 months. I have made it 9 months and that is significantly shorter because mainly of your age. You have the rest of your life to get on with and starting your adult life in gaol is not the best thing at all but for the reasons that I gave I am sending you to gaol. I have ordered your release on parole on 29 January next year, you will be released on parole. After that you have to accept, it is a condition of your parole, supervision by the Probation and Parole Service and let them help you. They are trained to help and let them help you get on with the rest of your life. That supervision may be up to 27 months. Whilst that 27 months is going you are still under your gaol sentence and if you misbehave yourself in some way, you come back before me and you may go back to gaol or the Parole Authority may revoke your parole and you just go back into gaol. I do not think that will happen. The other thing is that at the end of the sentence or whenever the supervision ends, they will discharge you. If you get a notice asking you to come to court during your parole you must come along to court and you must stay out of trouble. Now do you understand all that? OFFENDER: Yes. HIS HONOUR: Okay then. Have you got some family here in court today? OFFENDER: My father. HIS HONOUR: All right. I will go off the Bench in a moment and if he wants to have a quick word with you before you are taken away he may do so but that is up to the Corrective Services officers, not me. It might be easier for him to see you just before you are taken down. Nothing else? I'll now adjourn.