R v McGarrigle

Standard non-parole periods and maximum penalties

1. The sexual touching offences carry maximum penalties of 16 years imprisonment. There is a standard non-parole period of 8 years. The sexual intercourse offences carry maximum penalties of life imprisonment. There is a standard non parole period of 15 years. The child abuse material offence has a maximum penalty of 10 years imprisonment. The procure child under the age of 14 for sexual activity has a maximum penalty of 12 years and a standard non-parole period of 5.
2. In any sentencing exercise a judge must pay close attention to the maximums and, where applicable, standard non-parole periods. Content must be given to both. The maximums and the standard non-parole periods indicate how seriously Parliament, on behalf of the community, views offences of this type.
3. It needs to be stated from the outset, there is an absolute prohibition on sexual contact with a child. That prohibition recognises the profound harm premature exposure to sexual activity can cause. Here, the offender had assumed the grandfatherly role in the life of a young girl aged between seven and nine or seven and ten. He professed to care for her and take an interest in her wellbeing. Her allegations were accepted by the jury. He exploited the child for his own sexual interest, and he breached the trust that his then partner, the child's grandmother, had placed in him.

Facts for sentence

1. McGarrigle was born in 1959. The complainant was born in 2013. He would spend about three nights a week at the home she shared with her grandmother. He would often stay up late playing on his phone. Often the complainant would get up and join him. They also spent time together at a caravan on the Coast. In police interviews played to the jury, the child revealed that McGarrigle would show her pornography on his phone and on a number of occasions he would rub her leg and touch her vaginal area. He would also lick her vaginal area.
2. The following incidents were particularised and resulted in counts put before the jury.

Events at the child's home

1. Each of these incidents was of relatively short duration. The child was sufficiently upset by one incident that she complained to her older sister and spent the night in her bed.

• Count 1 - McGarrigle touched the child on the outside of her pyjamas: Crimes Act 1900 (NSW), s 66DA(a).
• Count 2 - He touched the child on the inside of her pants and vagina over her underpants: Crimes Act, s 66DA(a).
• Count 6 - He rubbed her vagina on the inside of her pants: Crimes Act, s 66DA(a).
• Count 7 - While the child was laying on her back on a couch at the home the offender licked the vaginal area: Crimes Act, s 66A(1).

Events at the caravan park

1. Three offences occurred at a coastal caravan park while the complainant and the offender were fishing at a nearby lake.

• Count 3 - McGarrigle had the child remove her clothes and lay on her back. For a relatively brief period he licked her vaginal area: Crimes Act, s 66A(1).
• Count 4 - Count 3 was preceded by his touching the child's vaginal area: Crimes Act, s 66DA(a).
• Count 5 - This was a similar incident of sexual intercourse to Count 3: Crimes Act, s 66A(1).

Other offences

1. Other offences were put before the jury.

• Count 8 - In July 2020 McGarrigle showed his son's partner a recording taken on his phone of the complainant under a blanket exposing her genital area to the camera: Crimes Act, s 91H(2).
• Count 9 - The complainant also said that on a number of occasions he showed her pornography accessed by his phone: Crimes Act, s 6EB.

Evidence at trial

1. At trial, the offender denied each allegation. He said that he had never touched the child improperly. He said he had told others his phone was being used to search pornography and that he found the recording on his phone. He said he showed it to others out of concern for the child.
2. The prosecution's argument was that his disclosures about the video and the child's exposure to pornography were made to "cover his tracks". The jury obviously rejected the offender's evidence and accepted what the complainant said beyond reasonable doubt.
3. Although the trial was conducted expeditiously by the defence, it still required a young child to go through, and be tested, on each of the allegations. McGarrigle is not to be punished for going to trial or for his continued denial of his offending. That is his right. He does not, however, receive any of the benefits in the reduction of sentence often given to those who accept the responsibility at an early stage, plead guilty, and show genuine remorse.
4. He did, however, make concessions during the trial that avoided a considerable number of witnesses being called. His facilitation of the course of justice and cooperation in the conduct of the trial will be taken into account when I synthesise all relevant features: Crimes (Sentencing Procedure) Act 1999 (NSW), s 22A.

Objective seriousness

1. A judge is required to identify all the factors relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence to be indicated and the appropriate time of sentence: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [51]. 1. Sentences must be proportionate to what was done. Accordingly, an assessment of objective seriousness of an offence is essential in setting the parameters of an appropriate sentencing outcome. In matters such as these: 2. I have to focus of the actual character of each incident, particularly those that involved an assault on a child; 3. The degree of physical contact is of considerable significance; 4. The character of both sexual assaults is indecent, and sexual intercourse had to be considered. There are no ranking of sexual intercourse matters but I do have to consider the degree of penetration of the child, or the nature here, of the cunnilingus allegations; 5. I have to consider whether there was any pain or physical hurt or harm; here that appears to have been absent. A degree of psychological harm is presumed; 6. Some offences occurred in the child's home and others in places where she was entitled to feel safe and protected; 7. The age of the child relative to the range is important as is, of course, the difference in age between the perpetrator and the child; and 8. Of particular importance here is the relationship between the offender and the child. The offender, as I said, played a grandfatherly role in her life.
2. All facts and circumstances have to be considered. While I do not find it helpful to fix on a label as to where I subjectively assess objective seriousness or where on some notional range it might fall, I acknowledge that others do, especially for standard non-parole periods offences.
3. Here, suggestions were made by the defence. I accept those suggestions. As discussed with counsel, so far as the individual counts of sexual touching or sexual intercourse are concerned there is little, objectively, to distinguish between them. Similar penalties should be imposed for each sexual touching: Counts 1, 2, 4 and 6. Each sexual touching offence was of a relatively brief duration and the contact with the genitals was generally over the child's clothing of some sort.
4. Similar considerations apply to the sexual intercourse offences. I accept the defence submission that each offence falls just below the mid-range for matters involving sexual intercourse with a child. The acts of intercourse were of brief duration, the child reported no overt distress, no force, other than that necessary, to carry out the acts themselves was required. The offender relied upon his relationship with the child, and her obedience to him, she complied with his directions. I accept the defence submission that it falls just below the middle of the range.

Possess child abuse material

1. This is not a produce offence. It is unusual, in the sense that he showed it to others and did not otherwise disseminate it, but its use was part of, I accept, a grooming process. I note that there was only one short video. When I consider the many matters that can be dealt with under the section, I find it is low in the range of what is serious offending.

The s 66EB offence, procure a child.

1. Exposure to pornography prematurely sexualised the child. That exposure was starkly revealed in the offence as it involved the child making a video of herself. The offending could only have occurred as a product of the offender's conduct towards the child; a grooming process. Care has to be taken because this grooming process culminated in the significant offences for sentence, the other counts, and that fact cannot be double counted against the offender. I accept the submission that it is below mid-range.

Other matters

1. The offender on one occasion exuded his control over the child by telling her she would not be believed or get into trouble if she told anyone. As there are family members of the child in Court, I note that it is important that she understand that she was believed and when she told what had occurred she did not get into trouble.
2. The absence of many aggravating features here relating to force or threats does not mitigate. Nor do they mean that McGarrigle's criminal conduct was not objectively serious. However, they are considerations which differentiate these offences from any others that would be regarded as much more serious. That said, each offence involved the violation of a child. And, the violation of the adult / child relationship. The presumed consequences to the child make each matter very serious. These crimes were undoubtedly serious. It is accepted that no penalty other than imprisonment could adequately punish the offender for what occurred.

Victim impact

1. A Victim Impact Statement about the child and the impact of the offending on her was read to the Court by her grandmother. She speaks of the child undergoing "a life changing experience". The child is still apprehensive and anxious. She is still seeing a paediatrician and receives medication to help her sleep. She does not wish to engage in counselling at the moment and she still struggles in some aspects of her life.
2. The Victim Impact Statement sadly reflects what is commonly brought to the Court's attention in consequence of crimes such as this. The statement serves the very practical purpose of drawing to the offender's, the Court's and the community's attention the personal and psychological harm caused by crimes such as this.

The offender

1. The offender has a criminal history, but it is of a completely different nature to that presently before the Court. He has never served a full-time custodial sentence. His past history is not without consequence. It denies him the leniency often given to first offenders.
2. He gave evidence today. As is his right, he maintains his innocence. He told me that he is on special management area protection. As a result of a threat, he spent two weeks in non-association; that is effectively solitary confinement.
3. Although he is on protection and will likely, because of the nature of the changes, remain on protection he is able to see a counsellor, he is able to work, and he has obtained trusted positions in the various gaols he has been in.
4. He confirmed what he told his psychologist, Mr Borenstein, that he himself was abused as a child. He has commenced civil proceedings because some of that abuse occurred in institutions. He expressed concern for the distress his former partner was put through, but by maintaining his innocence, of course, cannot ameliorate that distress; distress that she displayed as she read the Victim Impact Statement today.
5. His personal history is set out briefly in the report of Mr Borenstein. It is uncontroversial. He described an interrupted childhood and adolescence. He was abandoned by his mother when he was nine. He reports sexual abuse. He took refuge by forming associations with an outlaw motorcycle gang, where he felt safe and included. He left that group without consequence. His criminal record reflects the sort of offences, of a relatively minor nature, associated with the membership of such a group and regular use of a motorcycle. His criminal history is one that reflects a period of turbulence in his life.
6. Dr Borenstein says McGarrigle presents with Complex Post-Traumatic Stress Disorder. That said, he has always been a hard worker. He worked as a concreter for over of 30 years. That, as I understand it, is very hard work.
7. Dr Borenstein notes McGarrigle does not believe he has treatment needs. But Dr Borenstein recommends that he seek professional help as his abuse by his stepmother warrants further psychological treatment. He is currently seeing someone for assistance in dealing with his past sexual abuse. A copy of Dr Borenstein's report will be sent to Community Corrections.
8. I cannot accept his counsel, Mr Yeh's, submission that Mr McGarrigle is of an "advanced age". He is younger than me. But he does have a number of health conditions, including emphysema. He is presently in Long Bay Prison Hospital where he is undergoing tests for a potential heart condition.
9. A person cannot escape just punishment because of ill health: R v Smith (1987) 44 SASR 587. As people age their health needs become greater. A person in custody, while they will be provided with assistance by Justice Health, do not have the same power as those who are not in custody to go to the doctor or chemist and seek help. Long term illnesses will be an extra burden for him during his period in custody.
10. His age and the nature of the charge against him make him vulnerable in custody. There are some in custody who take it upon themselves to inflict harm on others serving sentences for offences such as these. Courts do not underestimate the lived experience of gaols: R v Burrell (2000) 114 A Crim R 207 at [27].

Structure of the sentence

1. There will be an aggregate sentence here. I am required to indicate the appropriate sentence for each offence then structure the sentence, so the aggregate is just and appropriate to the offender's crimes. I have to take into account all factors of sentencing, including maximum penalties and, where applicable, standard non-parole periods.
2. The indicated sentences will be made partly cumulative. Each matter involved a discrete act of criminality against the child victim. Each matter had some common features and the purposes of sentencing apply to each. There are always practical problems when sentencing for formidable offences, particularly against children. A simple arithmetic addition can sometimes lead to an aggregate which is not called for. At the same time there needs to be public confidence in the administration of justice. The community should not be left with the perception of the person who commits a deliberate series of discrete offences against the child can escape punishment.
3. Courts also accept and note that every year in custody is harder than the year before: MAK v R; MSK v R [2006] NSWCCA 38. Motivation is also important. An offender should have the incentive of life after gaol to engage in rehabilitation programs and to engage in activities within the gaol.
4. The cumulative effect of imprisonment can reduce an offender's motivation particularly if they think there is no useful life for them on release. The sentence should not destroy all hope for life on release. But the impact of a sentence is very subjective and depends upon whose perspective is considered; McGarrigle's, his victim's, or the community's: Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301.
5. The length of the sentence I intend to impose will allow for a significant period of time on parole. However, his age, his ill health and the need to help adjust to normal community life on release require a modest finding of special circumstances. I am, however, mindful the minimum period he has to spend in custody must properly reflect the seriousness of each offence and the purposes of sentencing.

Synthesis

1. I am indebted to counsel for their written submissions to which they spoke briefly. I have taken them into account, and sought to address, them in these remarks.
2. There are matters in McGarrigle's background, which indicate that he did not have the advantages often expected by children while growing up. These matters ordinarily operate to reduce a person's moral culpability. They can include harsh treatment as a child, and they can include sexual abuse as a child. Here, because he has maintained his innocence, it impossible for me to determine that his moral culpability has been reduced because of these factors.
3. When it was raised with him by Dr Borenstein, he, consistent with his attitude throughout this matter, was mortified. He said: "Do you think I would do anything to a child with what happened to me?" As I said he is entitled to his view, but that is inconsistent with the jury verdict, and I must sentence in accordance with the jury verdict.
4. That said, obviously the man who committed this offence was formed by his background and to that extent I accept that his moral compass must have been askew and that his background must have been an important aspect to forming the person who committed these offences against a young child.
5. The gaol term will deter him from further offending, he is unlikely to be in a similar position again, so far as young children are concerned.
6. Courts have an obligation to take into account all mitigating features, but the Court's obligation also includes vindicating the dignity of a child victim. There is a need to express the community's disapproval of offending and, by the removal of the offender from the community, thus protecting the vulnerable from repetition of the offending: Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600 [52]-[58]. In matters such as this, the maximums and standard non-parole periods, where applicable, make this point very clear.
7. General deterrence is of particular importance. In each matter for sentence today there is a community expectation that those who are found guilty by a jury will suffer punishment and that punishment will be severe. A proper sentence marks the Court's view of the seriousness of the crime. It must let others know that retribution will fall upon them if they commit similar crimes: R v Herring (1956) 73 WN (NSW) 203 at [205].

Orders

1. In relation to each of the matters on the indictment:

• Count 1 - Sexual touching: I indicate a sentence of 2 years and 6 months, with a non-parole period of 1 year and 7 months.
• Count 2 - Sexual touching: I indicate a sentence of 2 years and 6 months with a non-parole period of 1 year and 7 months.
• Count 3 - Sexual intercourse child: I indicate a sentence of 6 years, non-parole period of 3 years and 10 months.
• Count 4 - Sexual touching: I indicate a sentence of 2 years and 6 months, non-parole period 1 year, 7 months.
• Count 5 - Sexual intercourse with a child: I indicate a sentence of 6 years, non-parole period 3 years and 10 months.
• Count 6 - Sexual touching: I indicate a sentence of 2 and a half years, non-period 1 year, 7 months.
• Count 7 - Sexual intercourse with a child: I indicate a sentence of 6 years, non-parole period 3 years and 10 months.
• Count 8 - Possess child abuse material: I indicate a sentence of 1 year imprisonment.
• Count 9 - Procure child under the age of 14 years for sexual activity: I indicate a sentence of 2 years, non-parole period 1 year and 3 months.

1. The aggregate sentence is 14 years imprisonment. The non-parole period is 9 years and 6 months. The sentence will date from 28 September 2022. McGarrigle will be eligible for consideration for release to parole on 27 March 2032. A parole period of 4 and a half years will commence from that date. The total sentence will expire on 27 September 2036.

High-Risk Offender warning

1. The convictions mean that the offender is now classified as a High-Risk Offender.
2. I caution you Mr McGarrigle that if you do not cooperate with the authorities, or if at the conclusion of your non-parole period, or even the conclusion of your sentence, if it is still perceived that you are a risk to children, additional conditions may be placed upon you. That is one reason why I urge people to cooperate with the authorities if they wish to earn release to parole.

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