R v Grech

[2022] NSWDC 721

District Court of NSW|2022-12-15

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At a glance

Source facts

Court

District Court of NSW

Decision date

2022-12-15

Source

Original judgment source is linked above.

Judgment (22 paragraphs)

[1]

Introduction

Vincent Grech (a pseudonym) is for sentence today for five serious offences. Four of them involve offences against the wife he professed to love and care for, and did, at least for a period of their relationship, love, and care for.
At the age of 35 he changed his behaviour. What caused the change, as his counsel said, is a mystery. Courts have a limited capacity to delve into the genesis of matters such as this. What courts must do is deal with the consequences, particularly where those consequences resulted in serious crimes being committed. And there is no doubt that the offences committed against the complainant were serious crimes.
There is also a matter involving possession of child abuse material, which is an offence against the community. That offence, when it came to light, led to an early plea of guilty by Grech and I will reduce its otherwise appropriate sentence by 25% to take into account that early plea: s 25D Crimes (Sentencing Procedure) Act 1999.
There is in New South Wales an early guilty plea scheme with a statutory regime for guilty plea reduction of sentence: ss s25C & s25D Crimes (Sentencing Procedure) Act. The strict application of that regime would, in the circumstances of this case, result in a miscarriage of justice to the offender; a point made by the Court of Criminal Appeal in Green v R [2020] NSWCCA 230. There will be a statutory discount of 5%, but it is conceded by the Crown that, out of fairness to the offender, a further reduction for facilitation of the course of justice, which was impeded only by listing arrangements in the Court. Effectively, the otherwise appropriate sentence for the indictment matters will be reduced by 10%.
The plea of guilty meant that the complainant in this matter did not have to give evidence and, no matter how sensitively a trial was conducted, to give evidence in a matter such as this is an ordeal, a matter that was recognised by the Court of Criminal Appeal; R v Thompson [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [3].

[2]

Agreed Facts

There are agreed facts before the Court. Ultimately the offender signed those facts. Those facts are particularly detailed and, given the hour and the time, I cannot not read them onto the record. I will summarise them as best I can.
During the course of detailing them the offender appeared distressed and left the AVL suite. AVL links were disrupted. On their restoration I noted; "Mr Grech, I do not want to cause you or your family additional distress, but I'm obliged to put my reasons so that the public and everyone else can know the circumstances and why you're receiving your sentence. I will put you on mute for the moment, but please, if you could stay in the room. If you do need to go, wave, attract our attention and I will give you a break. I will try and keep it as short as I possibly can, but the agreed facts are very, very lengthy… Mr Grech, I'm trying to be as quick as I can. I did the matter today because of everyone gathered today and you should know you fate as quickly as possible."
The complainant and Grech have known each other since they were teenagers. The complainant had two sons from a previous relationship. In 2007 she formed what was described as a loving and caring relationship with the offender. They had a child in 2008 and married in 2012. They moved to the complainant's home. Both were working and there were nearby relatives who they cared for. In 2014 the complainant was diagnosed with breast cancer. Substantial medical intervention was called for, including a mastectomy, chemotherapy, drug treatment and, some years later, an ovariectomy.
That diagnosis, understandably, caused major stress within the family and emotional turmoil to everyone. Particularly, of course, the complainant, who was told that she may not survive the treatment to see her children grow up. The treatment itself involved drug treatment and other treatments which caused her pain, nausea, fatigue.
The relationship between the offender and the complainant began to change in early 2015. They started with him making derogatory comments about her. It would appear that at that time the offender was also accessing pornography, some of it illicit, and inconsistent with behaviour of a man of his previous good character. He kept making sexual demands that his wife, because of her cancer and the treatment, simply could not meet. Constant arguments occurred. The complainant took that additional burden on herself and blamed herself. She would, however, continue to have consensual sexual intercourse with the offender.

[13]

Objective seriousness - sexual and other domestic violence offences

I have to reflect on the seriousness of each offence. Count 1 involved the continuation of previous consensual sexual acts, involved pain, he ignored her distress, and the act went on for ten minutes. Count 2 involved penile/vaginal intercourse during which ignored the victim's refusals. It occurred after her surgery. He ignored her distress and her struggles, and he used force such that she had difficulty breathing; pain was inflicted. Count 3, the oral intercourse matter, involved him ignoring her rights and her clear stamen of "No." Force was used but it was relatively brief incident. Count 4 involved a hand on the throat, choking, brief with no reported injury, but any grabbing of the throat is serious.
These facts are relevant to my assessment of the objective seriousness of each matter. I have to make a value judgment, given these matters and everything else, as to the appropriate sentence. I have identified the facts extracted from the agreed facts that indicate the seriousness of each of them.
There is no prescribed set of descriptors that must accompany any such assessment. The Crown suggests midrange but in my view use of such statements is often problematic. Mr Clark accepts each was a serious example of the type of offence and I agree with that assessment.
In making that assessment of each matter I have to look at all the facts and circumstances. There is no hierarchy of the seriousness of kinds of sexual intercourse, The Court is more concerned with the fact of penetration and the context, and when it occurred, which I set out here.
I take into account the time over which the offence occurred and, in that each of the sexual intercourse matters, there was a level of violence, and pain and humiliation were inflicted. Each offence involved a level of degradation. There were also aggravating features, such as the fact the offences occurred in her own home and, here particularly, her vulnerable state as a cancer survivor.
The offences, both the sexual offence and the choking offence, occurred in the context of a domestic relationship. They were domestic violence offences. Sexual assault is an offence of violence. In each matter the complainant was personally targeted, and it is clear from my brief recitation of the facts that the offences were part of a larger picture of physical and mental violence and the exercise of control. While the offender accused the complainant of controlling him, his behaviour demonstrated the lie of that statement.
There is material before me which shows that he felt what he did he was justified or excused in doing what he did. In continued beliefs of this nature, beliefs that the person inflicting the violence is the person wronged, carries with it a continued threat. As a consequence, I accept, that the complainant in this matter would never have felt safe in his presence.
Each of these matters is treated with real seriousness because of the exercise of coercive power, and the other matters I have reviewed. enunciation is also required. Men cannot behave as this offender did.
There is room for some discrimination between each of the counts which will be reflected in the penalties ultimately imposed.

[17]

Victim Impact

Today the complainant read to the Court her Victim Impact Statement. That statement had an obvious impact on everyone in the Court including, I accept, the offender.
In her own words she sought to tell the Court how the ordeal, which covered many years, affected her. She said, "What I want is finality." She wants to close a chapter in her life and walk away from a lived nightmare; a nightmare caused by someone who became a complete stranger to her.
She told me how she had stepped back from many of the things she loved and enjoyed in her life and how, impacted already by her breast cancer, what occurred thereafter made her feel worthless, treated as an object, and made to feel she was only useful for someone's sexual gratification.
She told me of her continuing nightmares, sleep difficulties and cognitive problems. She still finds it impossible to express her feelings. She feels she carries shame, and she is fearful of loving and trusting others.
She should not feel ashamed, she came forward and she has been vindicated and will be vindicated by the sentence imposed. But she should not see the sentence imposed as some measure of her worth, there are many factors that have to be taken into account in a sentence and the sentence imposed is not in any way an evaluation of her.
She told me about the impact on her family. She concluded: "The effects of the abuse I endured is like a scar. Scars never go away, but they fade. With the help of regular counselling, I am working hard to make sure my scars fade quickly. I now go home to a house that is safe. Although it is only myself and my two youngest children, my home is now so full of love, happiness, laughter and fun"
I hope that these proceedings allow her to turn down the volume and get on with her life.
The Victim Impact Statement attests to the personal harm she suffered as a direct result of the offence. I have no difficulty accepting it. It served the very practical purpose of drawing to the offender's, the Court's, the community's attention the personal harm caused by these crimes.

[18]

The case for the offender

Turning now to the offender. He has been in custody for a period, and he will be in custody for a longer period. I do not ignore the lived experience of gaol. He has been subject to COVID restrictions; which include lockdowns and restrictions on visits and access to work and programs.
His mother is frail and in ill health and he may never get a chance to see her again. I have medical material before me and references from family members.
I heard from his sister in evidence. She told me about conflict in the family home and how, although his mother was very attached to him, both parents were distant and did not display affection. She told me of the impact on the family of not having contact with his son, something that is not likely to change. I do not ignore the fact that it is unlikely he will ever have contact with his son again.
She expressed remorse on his behalf. When that evidence was given, I made a point that I would not have even accepted genuine remorse as being displayed, even if it had been given on oath. This conclusion was made because of his behaviour during the offending and the material before me in exhibit 2 that reveals that as late as 2021 that he was still victim-blaming.
I accept he had emotional reaction to the reading of the Victim Impact Statement. I also accept, from all the material before me, that there are two parts to the man for sentence: one is the man he was until 2015, loving, caring, working, capable of being a good father and a good brother and son; the other is a man who could treat someone he loved as an object for sexual abuse. And it is that man who is being sentenced today.
I do not ignore his past. His criminal record was effectively non‑existent until 2015, when his behaviour changed markedly. As the Crown pointed out, that court intervention was not the wake-up call it should have been.
His family and other referees speak to the man he was and the man he hopes he will be on release. The continued family support from prosocial members of the community is an important factor in enabling a person, who has served the minimum term the law requires, adjust to normal community life on release. I hope that support continues.
There is evidence that at times the offender is suicidal. There is evidence that he is obviously depressed and upset by his predicament.
There is evidence about his background, which I will take into account. There is also medical evidence before the Court that he suffers ulcerative colitis. This condition means that he can never be far from a toilet and, as one of the reports noted, he cannot pass wind with confidence. He is at risk of constipation and rectal bleeding. He requires regular injections. He requires a special diet. While he is now getting his injections that condition, which is permanent and my deteriorate, will make his time in custody significantly more onerous than a person without such a condition.
He was in custody for a period before being granted Supreme Court bail. It appears that when bailed the conditions of custody, and I presume the stress and lack of an adequate diet and medication, meant that he had to be hospitalised on his release.
These are all matters that require careful consideration. While offenders cannot escape punishment because of the condition of their health, it is a factor that mitigates sentence, particularly as where here imprisonment will be a greater burden and carries a significant risk to him. As well as those specific risks, the realities of prison life should not be overlooked. He will be more vulnerable because of his illness. Gaols are nasty, violent places and because of his demeanour, his lack of experience of the criminal justice system, his prior to 2015 good character and his disability, he will be a vulnerable prisoner in the system, matters I can and will take into account.
I accept that there is evidence that he has accepted responsibility but, as I said, it came late, but I will take it into account for the reasons I outlined earlier.

[20]

Synthesis

I have to formulate an appropriate sentence for each offence and indicate that sentence and its non-parole period where a standard non-parole period applies. I have to accumulate those sentences, so that the overall sentence or aggregate is just and appropriate to the totality of the offender's crimes.
The offences occurred over a number of years. They were not isolated incidents. Each matter for sentence of a sexual nature had, however, some common features. The purposes of sentencing apply to every matter, and those purposes overlap. There should be some individual punishment for each offence, but there can be a measure of just and appropriate concurrence and aggregation.
The severity of the combined sentences should not operate to destroy the offender's prospects of rehabilitation and reform. It is recognised that the severity of a sentence, particularly for someone with ill health and vulnerabilities, increases at a greater rate than any notional increase in the length of the sentence, that is, a sentence of two years is more severe on a prisoner than a sentence of one year and so on: R v Clinch (1994) 72 A Crim R 301 at 306, approved in MAK v R [2006] NSWCCA 381. But public confidence in the administration of justice requires the Court avoiding any suggestion there is some sort of discount for multiple offending.
When I structure the sentence and the minimum period he must spend in custody, I will take into account that; he has the capacity to work, his strong prosocial supports and, as I indicated earlier, his illness and vulnerabilities. The sentence should not destroy his hope for the future, but he must be appropriately punished.
I will give the mitigating factors put before me appropriate weight, but they must not be allowed to lead to the imposition of a penalty which is disproportionate to the seriousness of his individual and collective offending. I cannot ignore how the offender breached the trust and exploited the vulnerability of a woman he had known most of his life and with whom he had previously had a loving and caring relationship.
Courts have an obligation; to vindicate the dignity of victims of sexual and domestic violence to recognise the harm which offences such as this cause the immediate victim, but also her immediate family and the family of the offender and the community. Mr Clark said that these offences were a "wrecking ball" that hit a number of families; and what he said he is correct. But the wrecking ball was this offender, Vincent Grech.
I need to indicate each of the sentences. The sentences take into account discounts noted: see [3] to [5] above. I have rounded the percentages down to the offender's advantage, I have sought to avoid eroding those discounts by the process of accumulation. He went into custody on 27 August 2022, but he spent 135 days on remand before getting Supreme Court bail. That means that the sentence will commence on 14 April 2022.

[21]

Orders

The indicated sentences are: Indictment Count 1- Sexual intercourse without consent (DV): as it carries a standard non parole period, I indicate a sentence of 3 years 7 months with a non-parole period of 2 years 4 months. Indictment Count 2 - Sexual intercourse without consent (DV): I indicate a sentence of 4 years 6 months with a non-parole period of 2 years 11 months Indictment Count 3 - Sexual intercourse without consent (DV): taking into account the matters on the Form 1, in relation to Count 3, I indicate a sentence of 4 years 6 months with a non-parole period of 2 years 11 months. Indictment Count 4 - Intentionally choke etc person without consent (DV): Taking into account the matters on the Form 1, In relation to Count 4, I indicate a sentence of 2 years 3 months. Committal for sentence matter: Possess child abuse material: I indicate a sentence of 1 year 10 months.
The sentence will commence on 14 April 2022. The aggregate term will be eight years imprisonment - the non‑parole period will be five years imprisonment. It will commence on 14 April 2022 which means he will be eligible for consideration to release to parole on 13 April 2027. There will be a parole period of three years from that date, commencing on 14 April 2027 and expiring 13 April 2030.
To repeat- Eight years total five years minimum, commence 14 April 22, eligible for release to parole 13 April 2027, parole period three years. Whether he is released to parole or not will depend upon a decision of the State Parole Authority and that will be determined by them based upon issues relating to community safety: s135 Crimes (Administration of Sentences) Act 1999.
Most s166 Criminal Procedure Act 1987 were taken into account on the form, except sequence 10 which is a related offence involving the breach of a domestic violence order. I deal with that matter pursuant to s 10A Crimes (Sentencing Procedure) Act, with conviction but no further order, because of I have already considered it (at [13] above) and because of the length of the sentences already imposed.
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