R v GC

R v GC - [2020] NSWDC 186 - NSWDC 2019 case summary — Zoe

[6]

Offences Against EG

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).
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).
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.

[10]

Objective Seriousness of the Offending

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.
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.
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".
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.
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]).
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.
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.
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.
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.
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.
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.
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).

[12]

The Offender

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.
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

These issues are being treated adequately within the custodial system.
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.
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.
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.

[22]

Aggregate Sentence

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.
Accordingly, I formally indicate that such a sentence is being imposed (s 53A(2)(a) Sentencing Act).
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).
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.
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.
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.
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.
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].
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
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.

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Judgment (23 paragraphs)

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Legislation Cited (2)

Cases Cited (10)