R v GS

Sequences 9 (victim A) and 10 (victim B)

1. Between 1 May 2017 and 30 June 2017 the victims were being looked after by the Offender at his house. At some point during the day, the victims asked to play 'Doctors' with the offender for the first time. The two victims took off their clothes and the Offender also took off his clothes. While A was naked she grabbed the Offender's hand and placed it down on her vagina. The Offender touched A on the outside of her vagina for a period of time.
2. At some point during the game, B became the 'patient' and the Offender touched her on the outside of the vagina for a period of time.

Sequences 11 (victim A) and 12 (victim B)

1. At some point the Offender took A's hand and placed it on his erect penis. A then put velcro straps around his penis pretending that they were band aids.
2. During the game the Offender also took B's hand and placed it on his erect penis.
3. At the time of sequences 9 and 11, A was 4 years of age and at the time of sequences 10 and 12, B was 2 years of age.

Sequences 13 (victim A) and 14 (victim B)

1. Between 1 July 2017 and 31 December 2017, the victims were staying with the Offender at his house. At some point during the day, the Offender and the victims began playing 'Doctors'. The Offender and the victims took off their clothes. While the Offender was 'examining' A, he touched her on the outside of her vagina for a period of time.
2. During the game he also touched B on the outside of her vagina for a period of time.

Sequences 15 (victim A) and 16 (victim B)

1. During the game, the Offender took A's hand and placed it on his erect penis.
2. He also took B's hand and placed it on his erect penis.
3. At that time of sequences 13 and 15, A was 4 to 5 years of age and at the time of sequences 14 and 16, B was 2 to 3 years of age.

Sequences 17 (victim B) and 18 (victim B)

1. On 6 April 2018, B was at the Offender's house, as she had not gone to school as she was sick and the Offender had been asked to look after her. A had gone to school as usual.
2. At some point during the day, the Offender and B began playing 'Doctors' together. During the game, the Offender was examining B and he touched her on the outside of her vagina. Later in the game he also took B's hand and placed it on his erect penis.
3. At the time of sequences 17 and 18, B was 3 years of age.

Arrest and ERISP

1. At about 11:30am on 12 April 2018 the Offender attended Campbelltown Police Station and said he would like to speak to an Officer in private. The Offender was then taken into an interview room and asked a series of questions. The Offender made admissions to sexually touching the victims and he was placed under arrest.
2. The Offender was later taken to an interview room where he participated in an electronically recorded interview. During the interview he made admissions to indecently assaulting the victims. The Offender was also asked whether anything similar had happened with any other children, to which he replied there had been "some incidents with my own daughter many, many years ago" but they weren't "exactly the same". The Offender declined to provide any further detail about these incidents.

JIRT Interviews

1. On 12 April 2018, A was interviewed by police. During the interview, A made no specific disclosures; however, she did say that the Offender sometimes put her hand on his penis. A was 5 years old at the time of the interview.
2. On 12 April 2018, B was interviewed by police. During the interview she made no disclosure of sexual abuse by the Offender. B was 3 years old at the time of the interview.

Objective Seriousness

1. The Crown submitted that each of the offences involved a breach of trust, being a breach of a position of trust, which was an aggravating factor under s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the '1999 Act'). [3] The Crown made no submission that the nature of the breach of a position of trust varied in respect of the respective sequences. The Defence conceded the presence of this aggravating factor.
2. The Crown also drew attention to the coercion involved in directing the victims' hand to touch the Offender's penis in sequences 11, 12, 15, 16 and 18.
3. Counsel for the Offender conceded that the specific age of the victims were very young within the spectrum of ages covered by the offences. He drew attention the absence of escalation to genital to genital contact and the absence of coercion, where the offending occurred in context of a game. Notwithstanding that, it was conceded that the touching of the vagina and having the children touch the Offender's penis, involved skin on skin contact that was more indecent than some other forms of indecent assault.
4. Each of the offences took place in the context of behaviour that sought to normalise the conduct in the eyes of the children by conducting a game. In the case of sequences 9, 10, 11 and 12 the precipitator for the game was a request by the victims. It is not apparent who precipitated the game in the remaining Sequences. Sequences 9 and 10 occurred in the context of the B being at the Offender's home because she was sick. In the circumstances I am unable to determine that there was much in the way of planning on the part of the Offender.
5. The various offences were nevertheless committed in the context of what were described as full body checks. Each instance involved the Offender and the victims undressing themselves. Each occurred in circumstances where the Offender was in a position of trust; an aggravating factor under s 21A(2)(k) of the 1999 Act.
6. Sequence 9 involved the victim taking the Offender's hand to her vagina and the Offender touching it for a period of time.
7. Sequences 11, 12, 16 and 18 involved some coercion to the extent of guiding the victims' hand to touch the Offender's penis. Sequence 11 also involved A using Velcro straps around the Offender's penis. It was not submitted that this latter feature of Sequence 11 elevated its objective seriousness.
8. All offences involved skin on skin contact, although not genital to genital contact.
9. The duration of the touching is not described beyond reference to "a period of time" in the cases of sequences 9 and 10 and 13 and 14 and the fact that all sequences occurred in the context of a game. The Crown conceded however that the time in each instance would not be lengthy. In the case of sequence 18 there is a reference to touching the vagina without a reference to a period of time. In the circumstances I have inferred that this was of relatively shorter duration that the other sequences.
10. I have borne in mind the age of the victims, being in each case at the lower end of the spectrum of ages embraced by the section. Bearing in mind the age proximity to each other and where they both fall on the spectrum of ages, I have not distinguished the offending to each victim on that basis and no submission was advanced that I should do so.
11. Sequences 9, 10, 11, 12, 13, 14, 15 and 16 appear to have been committed in the presence of the other victim. However, no argument was advanced that this aggravated the offending on the basis that they were committed in the presence of a child under the age of 18 years, [4] and I have proceeded accordingly.
12. Overall, the Crown submitted that each of the offences fell in the mid-range of objective seriousness or above. The Defence made no specific submission.
13. The range of offending embraced by the section covers a very broad spectrum of conduct.
14. It is of considerable significance when assessing the objective seriousness of an indecent assault against a child to consider the actual character of the assault including the degree of physical contact. [5] However I also bear in mind the other features I have referred to including the age of the victims and the acknowledged breach of trust and duration as far as this can be determined.
15. I am satisfied that for each of the offences the objective factors affecting relative seriousness fall somewhere towards the mid-range of seriousness although I would regard Sequences 11, 12, 15, 16 and 18 as relatively more serious than the touching of the vagina by the Offender. [6]

Plea of Guilty

1. The Offender pleaded guilty to the offences at the earliest opportunity. It is accepted that he is entitled to a 25% discount in this regard. [7]

Assistance

1. The Defence sought a further discount of 15% on account of the Offender's voluntary disclosure of guilt and willingness to facilitate justice. [8] The Crown submitted that a lesser discount was appropriate, bearing in mind the circumstances which included the fact that A had confirmed in a JIRT interview that the Offender sometimes put her hand on his penis.
2. In Panetta v R, [9] Adams J (with whom Ward JA agreed) stated: [50] The very logic that accepts that sentences should be set to deter crime, by parity of reasoning, is set to deter persons who have committed crimes from voluntarily coming forward and admitting to them. The circumstances, of course, vary enormously. In some cases, the offender will already be a suspect and may think that by coming forward their likely or inevitable conviction and sentence can be significantly discounted. Where, however, the crime itself is not suspected and unlikely in the extreme to be detected, different considerations arise. The only motivation in such a case, as here, appears to be the attempt to assuage serious feelings of guilt. This may be regarded in some sense as an advantage but this does not qualify, to my mind, the essential reality that coming forward involves considerable cost with no countervailing advantage. ……. Persons who are minded to come forward should not be deterred from doing so by the prospect of too lengthy a gaol sentence.
3. In considering the matters specifically raised in section 23(2)(b) of the 1999 Act, I am required to have regard to the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered. The Offender in this instance made, what would appear to be, full admissions which were useful, particularly in the context where both the victims were very young and A could not make specific disclosures and B made none. There is nothing to suggest that the Offender's admissions were not truthful, complete and reliable. [10] In particular, no evaluation has been made by any authority.
4. In considering the nature and extent of the assistance, it arose out of the Offender attending on the Police Station after he had been informed by his son of the allegations and had made some admissions to him on the telephone. There is no suggestion that the Offender has gained any other benefit from his assistance.
5. Ordinarily, the discount provided for a guilty plea and assistance would not be more than 40%, unless there is evidence that the Offender would serve the sentence in more difficult or disadvantaged conditions. [11] Furthermore, any other lesser penalty that is imposed under section 23 in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence. [12]
6. In all of the circumstances I accept that the events that led the Offender to come forward are relevant in a general sense although I would not accept that the limited disclosure made by A justifies a lesser discount in respect of those offences to which it can relate.
7. Overall I am satisfied that the appropriate discount to be given on account of assistance is 10%, making the total discount with the plea, one of 35%. Assistance is also a relevant matter going to the Offender's prospects of rehabilitation and remorse, which I address below.

Prior Good Character

1. The Offender has no prior convictions of any kind, a matter I take into account pursuant to s 21A(3)(e) of the 1999 Act.
2. There was no evidence that the Offender's good character was used to assist him in the commission of the offences. The Defence in these circumstances submitted that I should take his prior good character into account.
3. Whilst I am prepared to do so, I am unable to afford it significant weight as the offending progressed over a period of time in the course of an ongoing relationship between the Offender and the victims. [13]

Social Circumstances

1. The Offender is currently 77 years of age. He has a health history that includes allergic Rhinitis, glucose intolerance, impaired hearing and diabetes mellitus type 2. [14] It was not submitted that the Offender's medical circumstances were such that they could not be managed in custody.
2. Nevertheless I have borne these factors in mind to the extent appropriate bearing in mind the objective circumstances of the offending. [15]
3. Notwithstanding being divorced the Offender resided with his ex-wife up until his incarceration.
4. The Court has before it a statement from Dr Phillip Lu, General Practitioner, dated 6 June 2019. [16] Dr Lu stated that he has been treating the Offender since 2016 after the retirement of his long term GP. He further states that as far as he is aware, he is the principal carer of his ex-wife, who suffers from a mental illness that is not able to be optimally treated due to a refusal of services. Dr Lu records that the Offender and his ex-wife both still live in the same house, and the Offender assists her in daily activities of cooking, shopping and cleaning, and watches her for her personal safety.
5. The Court also has before it a statement from the Offender's daughter, [17] being the victims' aunt, referring to the fact that her mother has suffered from schizophrenia and bi-polar for as long as she could recall. She stated that her mother is unable to support herself financially, and the absence of the Offender will mean that her mother will have great difficulty in undertaking the tasks of general living. She states that her mother relies on the Offender almost completely for companionship and that she would find it very difficult to understand why he is no longer present.
6. Counsel for the Offender did not submit that the circumstances of the Offender's ex-wife amounted to exceptional circumstances. The Crown submitted that there was no evidence that others could not assist the Offender's ex-wife. Notwithstanding this I accept that the familiarity of the Offender to his ex-wife is such that the sentence may impact on her; a matter I bear in mind.

Remorse

1. The Defence submitted as part of its subjective case that the Offender had a history of sexualisation and lack of boundaries. In the report of Pastoral Counselling Institute psychologists Graeme Randall, Dr Peter Powell and Ms Sharon van Doorene. dated 30 May 2019 [18] it is recorded that: [GS] revealed a history of early sexualisation and lack of boundaries. He revealed that he was not allowed to have friends and was required to care for his younger siblings. It is unlikely that Mr Smith was exposed to sufficient social interaction by which to learn appropriate skills in relating to others. [GS] revealed a naivety regarding sexual concepts. As a child, [GS] recounts that he understood that he was male, and that he was somehow different to 'girls'. [GS] spoke of his female cousins 'playing' (sexually) with him in the back yard when he was both a pre-teen and in his early teens. According to [GS] this was his only instruction of sexual matters. He said that his parents never spoke about it, expecting the church to give instruction. However, the only instruction from the church was "don't do it until you're married".
2. Given these limitations it was submitted that the Offender had a strong case of remorse. [19]
3. The Offender also drew attention to the fact of his plea, and an email which was sent to the victims' parents on 16 April 2018 apologising for his conduct. [20] In that document the Offender professes to take total responsibility for what had occurred. He make reference to the fact that he had realised that what he had done was totally wrong and decided to hand himself in to give them some consolation that he was "out of the way and would remain so for some years to come."
4. The Crown submitted that whilst it accept that the Offender has provided evidence that he has accepted responsibility for his actions the Offender has no acknowledged the injury, loss or damage within the terms of s 21A(3)(i)(ii) of the 1999 Act as he didn't understand what he was doing was wrong.
5. In this respect the Crown drew attention to the contents of the report prepared by the Pastoral Counselling Institute, which records: Whilst [GS] acknowledges that he has done the wrong thing and committed an offence for which he is being sentence, he appears to have difficulty understanding why it is wrong. Whilst this may indicate a lack of insight by [GS], he has not denied the actions. He has repeatedly expressed that he is willing to accept whatever sentence the court deems appropriate. [21]
6. The report goes on to state that the Offender has gained insight into his offending, and has developed empathy towards those he offended against at an intellectual level. [22] It further records: [GS] is aware of the seriousness of his offence from a legal perspective, though has some difficulty with insight into the reason why it is serious… His limited ability to understand social cues or develop social friendships suggests the possibility of traits consistent with Autistic Spectrum Disorder. [23]
7. Overall, the Offender has written a letter to the victims' parents, entered a plea of guilty, made admissions to the authorities, and had sought treatment in relation to his condition. He accepts what he did was wrong even though his insight into the reasons are limited. The report acknowledges the development of some empathy towards his victims. The Offender was not called to give oral evidence a matter I bear in mind. However overall whilst noting the qualifications earlier referred to in the report I am satisfied that the Offender has provided some evidence of remorse within the terms of section 21A(3)(i), a matter which I take into consideration.

Prospects of Rehabilitation/Likelihood of Reoffending

1. The Pastoral Counselling Institute Report notes that the Offender has undertaken treatment, has a positive attitude towards it and believes that treatment would be beneficial to changes in his behaviour. It affirms that the Offender is likely to respond to continued therapy focused on understanding appropriate behaviours, boundaries and how boundaries impact on an understanding of empathy, and using that empathy to understand the seriousness of the impact of his actions on those he has offended against. [24]
2. The record further records that the Offender's risk of reoffending according to the Static 99R is low. [25] Furthermore, it records that the Offender's risk of reoffending according to SONAR is low. The report qualifies this by stating at [43]: In considering the likelihood of committing a future offence, the above scales need to be placed in the context of the treatment process and [GS]'s insight into appropriate behaviour. [GS] evidences very little understanding of appropriate behaviour and interaction with others. He has difficulty understanding social cues and non-verbal interaction. The concept of personal space, boundaries and privacy was difficult for him to understand. These are all factors which might indicate that [GS] may not be fully aware of what constitutes offending behaviour, or lead to offending behaviour. The observed difficulty with memory (as noted above) may impact the speed at which [GS] learns these concepts. As noted above, this is not due to a pre-occupation with sexual gratification, but an inability to understand what is appropriate or inappropriate interaction, as well as respect for and understanding of the personal boundaries of himself and others.
3. The report recorded that with treatment the Offender's risk of reoffending may be lowered. Furthermore, it would be lowered further by strict monitoring and restrictions regarding interactions with minors. [26]
4. Overall, I would consider that the Offender has reasonable prospects of rehabilitation and would benefit from a more extended period on parole.
5. Notwithstanding the qualifications referred to based on the evidence before me I consider the likelihood overall of reoffending to be low. In so determining I take into account of his continued commitment to received treatment, the advances he has made in obtaining insight together with the deterrent effect of the sentence.

Sentence

1. The sentence needs to provide for general deterrence. In considering the question of general deterrence, I bear in mind the comments of Hamill J in MC v R. [27]
2. I accept that the Offender has a low likelihood of reoffending and there is no particular need for an emphasis on specific deterrence. Whilst the Offender lacks some insight into his offending this is his first occasion before the Courts and the sentence that will follow will provide an adequate personal deterrence.
3. Furthermore the Offender is motivated to address his offending behaviour and I accept that a longer period on parole will assist his rehabilitation.
4. Nevertheless, the Offender's conduct needs to be denounced, the Offender needs to be made accountable, and the harm to the victims and the community must be recognised.
5. Both parties so submitted and I accept that considering all other alternatives no other sentence other than one of imprisonment was appropriate. [28]
6. The maximum penalty for each offence is 10 years and there is a standard non-parole of 8 years. The relationship between the two provisions and the need to be guided by both of them has been referred to in AK v R [29] and Corby v R. [30] There is an obvious tension between the guidance provided by the standard non-parole for these offences and the need also to sentence the Offender in accordance with other sentencing principles including the requirements in respect of parole.

Special Circumstances

1. The terms of section 44 of the 1999 Act require that the balance of term is not to exceed one third of the non-parole period for the sentence unless the Court decides that there are special circumstances.
2. In this instance, I am satisfied of a need for an extended term on parole and note that this would be the Offender's first time in custody. For these reasons a finding of special circumstances is justified.
3. Beyond that the nature of the offending as well as the subjective circumstances described are such that taking account of the multiple purposes of sentencing, the sentence will depart from the standard non-parole period.

Commencement

1. The Offender came into custody on 27 August 2019 but had previously served 5 days between 12 and 16 April 2018 I propose to commence the sentence from 22 August 2019 to take account of these circumstances.

Totality, Accumulation and Concurrency

1. It is necessary to recognise that the offences involved two victims. Whilst they occurred in the context of a single game, the offences occurred on three different occasions over the period of time indicated.

Orders

1. Overall, I would propose to sentence the Offender to an aggregate term of imprisonment.
2. The indicative terms of imprisonment take into account the 35% discount that I have earlier referred to and are as follows: 1. Sequence 9 - 1 year and 5 months; 2. Sequence 10 - 1 year and 5 month; 3. Sequence 11 - 2 years and 4 months; 4. Sequence 12 - 2 years and 4 months; 5. Sequence 13 - 1 year and 7 months; 6. Sequence 14 - 1 year and 11 months; 7. Sequence 15 - 2 years and 7 months; 8. Sequence 16 - 2 years and 7 months; 9. Sequence 17 - 1 year and 3 months; 10. Sequence 18 - 2 years and 7 months.
3. The Offender is sentenced to an aggregate term of 8 years and 6 months imprisonment comprising:

• A non-parole period of 5 years to date from 22 August 2019 to 21 August 2024;
• An additional term of 3 years and six months from 22 August 2024 to 21 February 2028, during which the Offender shall be eligible to be released to parole;

1. Subject to a decision of the State Parole Authority, the Offender will be eligible to be released on parole on 21 August 2024.

Endnotes

1. S 54D of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Hereinafter the '1999 Act')
2. Exhibit A, Tab 3.
3. Hereinafter referred to as the 1999 Act.
4. S 21A(2)(ea) of the 1999 Act. See also Lloyd v R [2017] NSWCA 303.
5. R v PGM [2008] NSWCCA 172 at [72].
6. S 54B(2) of the 1999 Act.
7. S 21A(3)(k) and 22 of the 1999 Act.
8. S 21A(3)(m) and 23 of the 1999 Act.
9. [2016] NSWCCA 85.
10. Although the reference in the Agreed Facts that the Offender declined to provide any detail about the incidents was not elaborated on.
11. R v Sukkar (2006) 172 A Crim R 151; [2006] NSWCCA 92.
12. Crimes (Sentencing Procedure) Act 1999 (NSW) s 23(3).
13. R v PGM [2008] NSWCCA 172 per Fullerton J at [43]-[44] (Spigelman CJ and Barr J agreeing) and Dousha v R [2008] NSWCCA 263 per Fullerton J at [49] (Bell JA and Latham J agreeing).
14. Exhibit 2.
15. R v Sopher (1993)70 A Crim R 570 at 573.
16. Exhibit 3.
17. Exhibit 4.
18. Exhibit 1.
19. S 21A(3)(i) of the 1999 Act.
20. Exhibit 5.
21. Exhibit 1, [21].
22. Exhibit 1, [34].
23. Exhibit1, [46]. Although note that it is indicated at [32] that there is insufficient evidence for any diagnosis beyond recognising certain traits and indicators.
24. Exhibit 1, [37]-[38].
25. Exhibit 1, [41].
26. Exhibit 1, [44]-[45].
27. [2017] NSWCCA 316 at [57].
28. S 3A of the 1999 Act.
29. [2016] NSWCCA 238.
30. [2010] NSWCCA 146. 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: 18 September 2019