R v GC

Background

1. The offender is the uncle of the victims by marriage, that is to say that he married the victims' mother's sister.
2. The majority of the offences occurred when the victims were staying at the offender's home, which was a common weekend and school holiday occurrence (counts 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18, and 19). Two of the offences occurred at the victim's home (counts 1 and 2). One offence occurred at the offender's then place of work (count 3). Two offences were committed when the victim was in the offender's car (counts 9 and 10).
3. There were three victims, EG, DG and JG. As I have indicated, the victims were the offender's nieces. The first offence against DG occurred in 1982 or 1983 when she was about 7 years of age. The offending against her continued for 3 or 4 years. All offences against EG occurred in the period between 17 March 1992 and 28 February 1993 when she was 8 years of age. The offending against JG began when she was about 4 years old and extended over a 5 year period between 1993 and 2000.
4. The offending thus occurred over a period of about 18 years.

The Offences

1. I shall briefly summarise the circumstances and nature of the offending as found by the jury. There was agreement between the parties as to the findings which must be attributed to the jury.

Offences Committed Against the Victim DG 1. Count 1 - DG was watching television in her parent's bed while her brother slept next to her. The offender entered the room and pulled back the covers on the bed, exposed his erect penis, and placed DG's hand on it. He held her hand on his penis and caused her to masturbate him. (S 61E(1)). 2. Count 2 - This occurred at the same time as count 1. The offender then moved and placed his hand under DG's pyjama pants. He put his fingers between the lips of her vagina and slipped them slightly inside her vagina. Counts 1 and 2 occurred in or around 1982 and 1983 when DG was about seven years of age. (S 61D(1)). 3. Count 3 - Between 27 August 1985 and 26 August 1987 when DG was ten or eleven years old the offender took DG to his then workplace, at Qantas Airlines at Kingsford Smith Airport at Mascot. He had taken her there to show her parts of the airport. While in an office at his place of work he nibbled on DG's vagina from the outside of her clothing while making a growling sound. (S 61E(1)).

Offences Against EG

1. Each of counts 4 to 12 are offences committed against EG and occurred during a three month period between 1 January 1992 and 28 February 1993. 1. Count 4 - EG was playing cards with the offender. She was wearing a nightdress and underpants. The offender put one of his hands under her nightdress and touched her vagina over her underpants. She was told not to reveal their secret. (S 61M(2)). 2. Count 5 - Some weeks later while the offender was again playing cards with EG, the offender asked EG to stand on a chair and proceeded to touch her vagina through her clothing. (S 61M(2)). 3. Count 6 - On the same occasion as count 5, the offender then proceeded to digitally penetrate EG's vagina. (S 66A). 4. Count 7 - This offence occurred in the same incident as counts 5 and 6. The offender kissed EG's vagina and licked it. The licking lasted a matter of seconds. (S 66A). 5. Count 8 - While, at his request, EG was sitting on the offender's lap, the offender put his exposed penis a little inside EG's vagina before withdrawing. This caused EG pain. She said "It hurts, stop." The offender complied. (S 66A).
2. Counts 9 and 10 occurred in the offender's vehicle when he was parked away from home in a secluded spot en route to obtaining fish and chips. 1. Count 9 - The offender pulled out his erect penis and grabbed EG's hand by the wrist, placed it on his penis and caused her to masturbate him. (S 61M(2)). 2. Count 10 - The offender then put his hand inside EG's underpants and touched her vagina with a finger, then inserting it in and out a couple of times. (S 66A). 3. Count 11 - The offender rubbed EG's vagina and inserted a finger inside, moving it in and out digitally penetrating her several times. (S 66A). 4. Count 12 - The victim EG was sleeping over at the offender's home. While his wife was in another room the offender engaged in penile/vaginal intercourse with EG, using some force to penetrate her. The victim experienced pain. (S 66A).
3. Shortly after the last incident the offender told EG that his friend had killed a little girl who talked. The offender said to EG "Do you want that to happen to you? If you say that to anyone, I will kill you." This understandably caused EG to be very apprehensive of the offender and for that reason, EG did not report his conduct.

Offences Against JG 1. Count 13 - When JG was approximately 4 years old she was staying at the house of the offender, his wife and her siblings. Both the offender and JG were in swimming attire. The offender grabbed JG's hand by the wrist and put it inside his swimming shorts at the front until it touched his penis. (S 61M(2)). 2. Count 14 - When JG was approximately five years of age she was sitting on the offender's lap at his and his wife's home. The offender put his hand inside her pyjama pants and moved his fingers across JG's vagina a few times before withdrawing his hand. (S 61M(2)). 3. Count 15 - A few weeks after JG's fifth birthday the offender inserted his erect penis in JG's mouth and started thrusting. (S 66A). 4. Count 16 - JG was about 6 to 7 years of age and staying at the offender's house. She was woken at some point by the offender. The offender put his hand over her mouth and told her not to make a sound. The offender then pulled down her pants and started to rub her vagina with his fingers. He inserted his finger into her vagina, but not for a lengthy period. This action caused JG pain. (S 66A). 5. Count 17 - At the same time, the offender engaged in penile/vaginal intercourse with JG. The offender told JG that this was their little secret. (S 66A). 6. Count 18 - In 1999 when JG was about eight or nine years of age, she visited her aunt and the offender. While she was alone in the offender's presence, the offender told JG to take off her clothes and then instructed her to put her hand on her vagina and rub herself. JG complied with the request because she was scared. (S 61O(2)). 7. Count 19 - In the same incident the offender then got astride JG and engaged in penile/vaginal penetration for a period of time which was not fleeting. (S 66A).

Victim Impact Statements

1. Each of the victims provided the Court with victim impact statements which described in detail the devastating effect which the offender's offending conduct has had on them. These effects, to a significant degree, subsist to this day. I will not elaborate on the deleterious effects of the offending on the victims, as they are understandably of a personal nature. It is sufficient for present purposes to say that these effects may justifiably be described as profound.

The Approach to Sentencing

1. Section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Act") makes clear the seven purposes sought to be advanced by the sentencing process. They are well known and do not require repetition. Punishment, denunciation, and recognition of the harm done to the victims loom large in sentencing in this matter. As has been made clear by the authorities, broader considerations than those relating to the particular offending are called for consideration in child sexual offence cases of this nature.
2. The principles of sentencing for child sexual offences were authoritatively stated in R v Van Ryn [2016] NSWCCA 1 where R A Hulme J. at [179] referred to EG v R [2015] NSWCCA 21 where Hoeben CJ at CL said: General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually abuse children intentionally and repeated that their actions will not be tolerated and that they will receive significant punishment.
3. To similar effect, in R v Fisher (1989) 40 A Crim R 442 at 445 (R v Fisher), the Court said: This court has said time and time again that sexual assaults upon young children, especially by those who stand in a position of trust to them, must be severely punished, and that those who engage in this evil conduct must go to gaol for a long period of time, not only to punish them, but also in an endeavour to deter others who might have similar inclinations … This court must serve notice upon judges who impose weakly merciful sentences in some cases of sexual assault upon children, that heavy custodial sentences are essential if the courts are to play their proper role in protecting young people from sexual attacks by adults …

Objective Seriousness of the Offending

1. Ms Phelps, for the offender, cautioned me against a finding of objective seriousness beyond the mid-range, drawing my attention to the fact that each of the offences were by their very nature serious. The contention proceeded that it was against a background of the inherent seriousness of each offence, that objective seriousness of the offending, viewed individually and in its totality, needs to be considered. I accept that contention and have attempted to give it expression in these reasons.
2. In commencing consideration of the objective seriousness of the offending it is apt to note that there were certain factors present in the circumstances common to each of the counts. These were: 1. The age of the victims (considered within the age range of each offence); 2. The age difference between the offender and the victims; and 3. The vulnerability of the victims.
3. I consider that these factors are "objective" in the sense that they do not emerge entirely from the circumstances of the offender. As such, in my view, they are best brought into account in the assessment of objective seriousness (See R v McNaughton (2006) 66 NSWLR 566, at [30]-[34], per Spigelman CJ; Elhassan v R [2018] NSWCCA 118, at [13]-[14], per McCallum J (as Her Honour then was). I shall refer to these as "Objective Factors".
4. As a consequence of the approach which I have taken to the objective factors, I do not therefore take them into account as separate aggravating factors pursuant to s 21A of the Sentencing Act, as to do so would involve double counting.
5. It is of course important in assessing the objective seriousness of the offending to consider the actual character of the assault, including the degree of physical contact involved (Corby v R [2010] NSW CCA 146 at [72] - [73]).
6. Certain of the counts involving sexual intercourse, considered in this fashion, must be adjudged to be above the mid-range of seriousness given the extent and nature of penetration, the pain experienced by the victim, and the degree of force involved in achieving penetration. Counts 8, 12, 17, and 19 in my view must be so considered.
7. By parity of reasoning certain offences, in my view, must be considered as below the mid-range of objective seriousness. Counts 3, 4 and 5 should be so considered.
8. As I propose to impose an aggregate sentence on the offender, I believe it is important to come to a view as to the objective seriousness of his offending in a manner which encompasses the totality of the criminality involved. I will attempt to do this while also touching on the objective seriousness of each count. I will return to that latter task within the context of indicative sentences.
9. Viewed in this global manner I agree with the Crown's contention that the objective seriousness of the offending as a whole is above the mid-range of objective seriousness, but not approaching the worst case.
10. In coming to this view I have especially taken into account the following factors, namely; First, the fact that the offender in his offending conduct has grievously breached his position of trust as the victim's uncle (s 21A(2)(k) Sentencing Act). Secondly, and compounding this breach of trust, is the fact that the abuse of his victims on each occasion ceased as they got older, after which time the offender can be seen to turn his attention to the next youngest sibling. The offending can thus be seen as involving a criminal course of conduct extending over lengthy period of years.
11. In order to ensure that I do not double count this aspect of the matter, I make clear that I have not considered the fact that there were multiple victims and a series of criminal acts as a separate aggravating factor pursuant to section 21A(2)(m) of the Sentencing Act.
12. Certain aggravating factors, however, affect particular counts. The first being the very young age of the victim JG in respect of counts 13 to 15 (three to five years of age). This requires specific consideration as an aggravating factor. This was conceded by Ms Phelps. In addition counts 1 and 2 also have a specific aggravating feature, being that these occurred in the victim's home (s 21A(2)(b) Sentencing Act).

The Offending Requires Denunciation

1. The offender's conduct requires the Court's unequivocal and resolute denunciation.
2. Over a long period of time the offender abused the victim's trust in him as their uncle. He did so over time, when he was either at family occasions at the victims' homes (counts 1 and 2), but more usually when he was entrusted with their care while they were staying at his home. As I have indicated, this was a common occurrence. The trust bestowed upon him enabled him to systematically sexually abuse his nieces over a lengthy period of time, for his own perverted sexual gratification. He was able to do so because of the trust-based arrangements which were such that his nieces were available to him to sexually exploit on an opportunistic basis.
3. There can be no doubt that the offender was aware of the depravity of his actions, nor could he possibly have been in any doubt as to the likelihood of serious deleterious physical, social and psychological effects which his actions may have on his nieces. He was selfishly indifferent to these matters.
4. The moving victim impact statements of the offender's victims stand as a salutary statement to the fact that the risks of those traumatic effects on his nieces have come home. This constitutes an aggravating factor pursuant to section 21A(2)(g) of the Sentencing Act, which I have taken into account.
5. The Court in R v Fisher saw fit to describe conduct such as that perpetrated by the offender as "evil". That adjective is equally applicable to the offender's conduct in this case.

The Offender

1. The offender is 69 years of age. At the time of his offending, the offender was aged between 32 to 33 years of age, and 46 to 47 years of age. He has no criminal antecedents, which is a mitigating factor (s 21A(3)(e) Sentencing Act). He does not have any terminal health issues, although he does have significant health issues most of which were caused by a serious workplace accident which he suffered in 2004.
2. The medical evidence tendered at sentencing hearing disclosed that the offender suffers from the following:

• He has significant mobility issues arising from the injuries suffered from a serious workplace accident in 2004
• Osteoarthritis of his knees and Spinal Canal Stenosis
• Type II Diabetes Mellitus
• Hypertension and Hypercholesterolemia
• Intracranial Atherosclerosis
• Congenital Single Kidney

1. These issues are being treated adequately within the custodial system.
2. The offender relied on the expert report of Dr Gerald Chew, a psychiatrist, who expressed the opinion that the offender suffers from depression. The Justice Health report tendered by the Crown did not suggest that this was the case. I do not believe it is necessary to make any findings on this issue, as even if the defendant does in fact suffer from depression, this would not be a factor which I would be minded to take into account in the sentencing process.
3. I should also add that Dr Chew's report suggests that the offender may have been sexually abused as a child. There was no direct evidence of this fact. In addition there is no evidence linking this apparent fact to the offender's offending. For this reason, and especially in circumstances where the offender disputes the verdict of the jury and maintains his innocence, I do not take this matter into account in the sentencing task with which I am confronted.
4. I do not take the offender's state of health into account as a mitigating factor, though I propose to consider it in relation to the issue of special circumstances for the purposes of section 44 of the Sentencing Act.

Good Character

1. The offender pointed to the fact that other than for the offences which bring him before the Court, he was otherwise of good character. It was said that this factor should be considered a mitigating factor.
2. I do not accept that this is the case. I believe that the perception of his good character has assisted in the commission of the offending.
3. By this I mean to say that, if the offender had not been a person perceived to be of good character, then notwithstanding the avuncular relationship, in my view it is doubtful he would have been left alone with his nieces to the extent which he was. His character, therefore, in my view, has assisted in the commission of these offences, and is not available to him as a mitigating circumstance (s 21A(5A) Sentencing Act).
4. In any event, the authorities make clear that where the offender is a family member, sentences must be severe, and little leniency can be given, even though the family member has been otherwise of good character: R v Evans (unreported, 24/3/88, NSWCCA); R v Hudson (unreported, 30/7/98, NSWCCA).

Protective Custody

1. The offender initially submitted that given the nature of his offending, it is to be expected that he will serve his sentence in protective custody. He submitted that every year in protective custody is equivalent to a longer loss of liberty than that which would occur under ordinary conditions of imprisonment.
2. This submission of the offender was unsupported by any evidence of the factual matters which underlay it. At least since R v Durocher-Yvon (2003) 58 NSWLR 581, the Court of Criminal Appeal has warned against the adoption of what is in effect a presumption of harsh prison conditions for inmates requiring some degree of protection. See for example: Clinton v R [2009] NSWCCA 276, at [24]; R v Way (2004) 60 NSWLR 168, at [176]-[177]; RWB v R [2010] NSWCCA 147, at [192]-[195].
3. Following debate on this issue, the offender sought an adjournment of the sentencing to allow evidence of the onerous nature of the offender's conditions of incarceration to be obtained. This adjournment, by consent of the Crown, was granted, but at the end of the day the offender, via his counsel, informed the court that he could not make good an evidentiary basis for the submission, which was then properly withdrawn.

Risks of Reoffending

1. I received no submissions on the risk of offender reoffending. Notwithstanding this, I find that given his frail medical condition and his likely age on release, such risk would likely be low. In that regard I also note the fact that there is an absence of any offending by the offender since the year 2000.
2. I thus accept that the offender's risks of reoffending are low (s 21A(3)(g) Sentencing Act).

Remorse/Contrition

1. The offender maintains his innocence, and as such, there can be no room for consideration of contrition, remorse, or any suggestion that he has gained an insight into his offending.

Delay

1. The offender submits that delay in bringing the matter before the Court should be considered a mitigating factor. I do not believe that this is a factor that should be taken into account in the offender's favour as there is no evidence of the delay having been prejudicial to the offender (R v Johnson (Unreported, NSW CCA, 16/5/1997)). Indeed to the contrary, I accept the Crown's submission that the delay about which the offender now complains can be seen to have allowed him a lengthy period in which he has been able to conduct his life without the community opprobrium which accompanies conviction for offences of the nature which bring him before the court.

Special Circumstances

1. The offender pointed to certain matters which it was contended would satisfy the Court that special circumstances exist for the purposes of s 44 of the Sentencing Act. These factors were: 1. The offender's advanced age; 2. The offender's poor health rendering imprisonment more burdensome on the offender than the average prisoner; 3. The fact that this would be the offender's first time in custody; and 4. The offender's need for supervision. 5. The offender's prospects for rehabilitation. 6. That the offender's health complaints expose him to a greater risk of complications or death resulting from the COVID-19 virus, should it enter the custodial system.
2. I accept the offender's submissions and propose to sentence accordingly.

Sentencing Practices

1. I am cognisant of the fact that I must sentence the offender for these child sexual offences in accordance with the sentencing patterns and practices at the time of sentencing, and not at the time of the offences (s 25AA(1) Sentencing Act).
2. This requires me to have regard to the trauma of sexual abuse on children as understood at the time of sentencing, which may include recent psychological research or the common experience of courts (s 25AA(3) Sentencing Act).

General and Specific Deterrence

1. As the authorities to which I have earlier referred make clear, in sentencing with respect to offences of this nature, consideration must be given to matters of both personal and general deterrence. I have taken these considerations into account.

Gaol the Only Option

1. It was the unstated premise in the sentencing proceedings before me, that gaol was the only conceivably appropriate step. This could hardly be gainsaid, and I unhesitatingly accept that this is the case, and so find for the purposes of section 5 of the Sentencing Act.

Aggregate Sentence

1. As I have earlier indicated, I propose to deal with this matter by way of an aggregate sentence. I have taken this course as, in my view, this approach best accommodates the requirements of proportionality, accumulation, concurrence, and totality.
2. Accordingly, I formally indicate that such a sentence is being imposed (s 53A(2)(a) Sentencing Act).
3. I am also required to indicate the sentences I would have imposed for each offence, had separate sentences been imposed rather than an aggregate sentence (s 53A(2)(b) Sentencing Act).
4. In relation to indicative sentences I should make two matters clear. The first is that the Crown submitted that count 15 should be adjudged to be at the mid-range. And as there was no debate as to this submission, I am prepared to adopt it, notwithstanding that it is in my view generous to the offender.
5. Secondly, the Crown submitted that count 18 was subsumed in the criminality of count 19. I have again adopted the same approach as there was no issue between the parties on that matter.
6. The following is a summary of my findings of the objective seriousness of each count as follows: 1. Below the mid-range, counts 3, 4 and 5. 2. At the mid-range, counts 1, 2, 6, 7, 9, 10, 11, 13, 14, 15 and 16. 3. Above the mid-range, counts 8, 12, 17, and 19.
7. In setting forth the following indicative sentences and the aggregate sentence, I have taken into account the matters set forth earlier in these Reasons in relation to the objective seriousness of the offences. Aggravating and mitigating factors to which I have referred have also been taken into account.
8. In arriving at these sentences and the aggregate sentence, I have attempted to carry into effect the instinctive synthesis described by McHugh J in Markarian v The Queen (2005) 228 CLR 357, at [51].
9. The following indicative sentences are head sentences (Dimian v R [2016] NSWCCA 223, at [49]): Counts in Respect of DG Count 1 3 years Count 2 4.5 years Count 3 2 years Counts in Respect of EG Count 4 2 years Count 5 2 years Count 6 10 years Count 7 9 years Count 8 12 years Count 9 4.5 years Count 10 9 years Count 11 9 years Count 12 12 years Counts in Respect of JG Count 13 5 years Count 14 5 years Count 15 10 years Count 16 10 years Count 17 12 years Count 18 0 years Count 19 12 years
10. GC: 1. You are sentenced to a term of imprisonment of 16 years with a non-parole period of 10 years and 8 months. 2. Pursuant to the provisions of section 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW), I direct that such a term of imprisonment shall commence on 10 September 2019 and that the non-parole period shall expire on 9 May 2030 with the balance to expire on 9 September 2035.

Amendments 15 July 2020 - No amendment made. 01 July 2021 - Statutory non-publication order in respect of the victims specified. 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: 01 July 2021