Gavin Ward was found guilty by a jury of three offences relating to sexual misconduct with a child following a trial at Newcastle District Court which proceeded between 12 October and 15 October 2020. The three offences which he committed related to three separate sexual acts on the one occasion in around 2009 with a child victim who was five or six years of age at the time.
Given the statutory prohibition on publication of the name or identifying features of the victim, any reference to the victim by name will be anonymised and the precise location of the offending will not be identified.
[2]
Factual background
The victim lived together with his mother and two older sisters in a home located in a Hunter Valley town. Directly over the road was a motor vehicle wrecking yard. The wrecking yard ran as a business owned by the offender's father from approximately 2005 until it was sold in 2016. The offender's father lived at a home which was located approximately a 10 minute drive away and it would appear that one of his sons and the partner of that son lived on the premises, in effect as a caretaker.
In approximately 2008 the offender, who was aged about 25, moved into the caravan located in the wrecking yard. He took over being the effective on-site caretaker.
The victim, who was born in July 2003, was approximately five years of age when the offender moved into the caravan.
In the years before the offender moved in to live in the wrecking yard the young victim had spent a substantial amount of time, even as a toddler, at the wrecking yard. He was, by all accounts, a frequent visitor. A question as to the precise frequency of such visits and the nature of them, namely whether the child simply wandered over there regularly of his own accord or whether, as indicated by his mother in evidence, he went across there with her permission and on occasion following a request by her, is unnecessary to be definitively resolved.
I accept, in broad terms, the evidence given at trial by the offender's father. He described the victim as having spent very extensive periods of time on a daily basis at the wrecking yard. Such attendances would appear to have ultimately continued over a period of perhaps eight to ten years when the victim was between about four years of age and up until his early teens. When the victim was still comparatively very young, he was regularly in the wrecking yard which would appear to have been used, in effect, as a playground as well as a refuge. Evidence was given of a number of other children who were the grandchildren of the offender's father also being in frequent attendance at the yard. One of those children was a similar age to the victim and the two regularly played together in and around the yard.
The offender had known the victim before he commenced to live in the caravan in 2008 or 2009. Following the commencement of his residence in the yard, various of his father's grandchildren, ie. the nieces and nephews of the offender, are said to have slept over on a reasonably regularly basis with their uncle in his caravan on site. The evidence established, and I am satisfied beyond reasonable doubt of the fact, that the victim also slept over on occasions in the caravan.
It is not necessary for present purposes to come to a firm determination as to the precise number of occasions, or the precise frequency of such sleepovers during the period of years that the offender was resident on site. It suffices to be satisfied that it was a regular occurrence.
The victim said that he had stayed overnight on about 3 or 4 occasions before the offender ever touched him. He gave evidence that on the occasion that he was touched the offender initially asked him if he was able to keep a secret. He then pulled the victim's shorts down and played with the victim's penis. After some little time the offender pulled his own pants down and made the victim suck the offender's penis. He told the victim to keep going or he would hurt him. The offender, in the victim's words, then started playing with his 'arse' and inserted two fingers into the anus of the victim. The victim in due course said "stop, it hurts, stop".
The victim then said he was going to go home and the offender told him not to say anything or he would kill the victim's family.
The victim said that he was 5 or 6 years of age at the time of these events. He thought that he was in Kindergarten at the time which would place the events in 2009.
The three discrete sexual acts described form the basis for the allegations in the indictment presented at trial.
Count 1 related to the touching of the victim's penis, and constituted an offence contrary to the provisions of section 61M(2) of the Crimes Act 1900 (NSW) and carried a maximum penalty of 10 years imprisonment. A standard non-parole period of 8 years is specified.
Count 2 related to the fellatio of the offender's penis and constituted an act of intercourse contrary to the provisions of section 66A(1) of the Crimes Act 1900.
Count 3 related to the insertion of the fingers into the victim's anus and similarly constituted an act of sexual intercourse contrary to the same provision. Each of these counts carried a maximum penalty of 25 years and a standard non-parole period of 15 years as at the time of the commission of the offences.
The jury were satisfied beyond reasonable doubt of each of those three counts and returned verdicts of guilty. Consistent with those verdicts I am similarly so satisfied and accept the account given by the complainant.
In the evidence given at trial, the victim gave evidence that similar conduct had occurred on a regular basis over the ensuing years. He at no time during those years made complaint about the sexual misconduct of the offender towards him. Such generalised evidence of continuing sexual offending was led in the trial, without objection, as context evidence. It should be noted that the offender is to be sentenced only with respect to the three acts with which he has been charged and convicted and which occurred on the one occasion which has been identified. The criminality attaching to that offending is not aggravated or increased by virtue of the evidence that the conduct was thereafter ongoing. It was placed before the jury in accordance with established principles regarding context evidence and a substantial delay in making complaint. It plays no part in an assessment of criminality for present purposes. It does, however, operate to deny the suggestion that the offending was a "one-off" occurrence.
In due course when the victim was approximately 13 or 14 years of age and after a falling out between himself and the offender, the victim made complaint of having been molested by the offender, first to his older sister and subsequently to his mother. Such complaint was made in approximately 2017.
He described in his evidence having come to a realisation as he got older that the conduct which he had endured was in fact wrong and following such realisation made disclosure of what had been happening to his family.
The victim did not, however, desire to go to police with a formal complaint.
[3]
Background to the present proceedings
However, in early March 2018 complaint regarding alleged sexual misconduct by the offender towards another young person was made to police. On 9 March 2018 the offender was arrested and charged with regard to alleged sexual offending against that other complainant.
Following an investigation, police attended at the home of the present victim who was interviewed in a recorded interview on 12 March 2018. The accused was still in custody following his earlier arrest and he was charged with additional offences relating to the present victim by way of future court attendance notices.
The offender was granted conditional bail on 13 March 2018 and remained at liberty until the Crown brought a detention application on 16 May 2018. His bail was revoked and he remained in custody for a total period of 1 year, 7 months and 3 days.
In December 2019, the offender stood trial with respect to the same counts of which he has now been convicted and an additional two counts of sexual intercourse with the present victim. Those additional counts related to events said to have occurred after the initial incidents, one while the victim was still under the age of 10 and a second allegation after he had attained 10 years of age. There were also three counts in that indictment relation to the other complainant.
On 18 December 2019, following a trial of approximately two and a half weeks, the offender was found not guilty of all counts with respect to the other complainant and also not guilty with respect to the two additional allegations relating to the present victim. The jury were, however, unable to reach a verdict with respect to the counts relating to the three acts with which I am now concerned.
It should be noted that there were in fact four counts in the indictment arising from those three allegations. Count 3, the anal digital penetration, included an alternative count of an act of indecency in the event that the jury were not satisfied beyond reasonable doubt as to actual penetration.
Following the retrial of those counts on 12 October 2020 the jury returned verdicts of guilty with respect to the three counts in the indictment as I have earlier described. The fourth count, which was the alternative to count 3, was not required to be considered by them.
[4]
Aggravating features
The offender at the time of the offending conduct was 25 or 26 years of age. The child victim was 5 or 6 and well under the age differential of offending prescribed at 10 years. He was effectively a babysitter with the child in his caravan overnight and under his care and effective authority. Whilst there are varying degrees of abuse of trust and differences in adult authority figures, these are relevant factors which operate as aggravating features in the ultimate instinctive synthesis in determining an appropriate sentence.
A Victim Impact Statement was tendered by the Crown in the course of the sentence proceedings. That document set out the victim's own perspective of the impact and effect upon himself. He described the anger that he feels and his sense of loneliness. He described a period of cutting himself. The view of the Court with respect to harm caused by the sexual abuse of a child was set out in detail in R v Gavel (2014) 239 A Crim R 469 at [110]:
"This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the "long term and serious harm, both physical and psychological, which premature sexual activity can do". The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364[3], 368-372 [26]-[39]."
The Victim Impact Statement in the present matter confirms the presumption of harm that the Court, regrettably, anticipates in such cases.
[5]
Objective seriousness
Each of the three offences which were committed carry standard non-parole periods. Notwithstanding that the three separately charged acts occurred in the context of a single occasion of ongoing sexual interaction, the court is required to place each of them, as if being a discrete occurrence, into a range of objective seriousness.
The first offence involving the offender having pulled down the victim's pants after asking him if he could keep a secret involved the offender touching the child's penis for what was described as "no longer than five minutes". It was accompanied by a threat to kill the child's family if he told anyone. The Crown submits that the offence, put succinctly, was that he masturbated the victim's penis using his hand for less than five minutes.
The offending conduct involved what is described as skin-on-skin and was a more objectively serious indecent assault than others which come regularly before the court. It falls, in my view, within a broad mid-range of objective offending of this type.
The second offence being an act of fellatio in which the offender placed his penis in the victim's mouth and "made" him suck it for approximately 10 minutes. In the course of cross-examination the victim said that he was not sure how long this penile/oral intercourse continued.
The account given in the pre-recorded evidence in chief included a threat by the offender to "keep going or I'll hurt you". In the course of cross-examination the account of the conversation and discussion did not include that threat. A threat to harm during the commission of the offence would operate in aggravation. Such an aggravating feature needs to be established by the Crown beyond reasonable doubt. I am not so satisfied. I should note that the Crown's written submissions implicitly concede this point. Whilst there may have been conduct or conversation calculated to overcome unwillingness I am not satisfied that there was a threat of harm as initially described.
In the Crown's written submissions this offence was said to fall above the mid-range of objective seriousness. In the course of oral submissions the Crown's position was that it fell in the middle of the range or marginally above the mid-range.
It is trite to observe, as has been consistently remarked upon by the Court of Criminal Appeal, that there is not some kind of hierarchy of the seriousness of the various kinds of intercourse contemplated by section 66A. The proposition that enforced fellatio falls somewhere in the middle, or towards the upper end of a scale of objective seriousness has been consistently repeated. As observed by the Court in R v AJP (2004) NSWCCA 434 at [24]:
"While penile/vaginal penetration might be taken to be more serious than enforced fellatio, that does not mean that enforced fellatio necessarily falls somewhere below the mid-point of objective seriousness."
In my assessment the offending behaviour with respect to count two falls within the mid-range of objective seriousness.
The third count involving sexual intercourse with a child under 10 occurred factually during the occurrence of the fellatio which was the subject of count two. The jury's verdict accepted the account of digital penetration of the victim's anus. I note the observations of Bellew J in Doe v R [2013] NSWCCA 248 with respect to the objective seriousness of digital penetration in relation to "other forms of forced intercourse" and that the objective seriousness of the offending is to be determined according to the entirety of the facts and circumstances. The physical incident caused the victim a level of pain and what is described in the Crown's submission as immediate and apparent upset. Whilst there is no evidence as to how long the digital penetration lasted I accept the defence submission that the surrounding circumstances permit me to comfortably conclude that it was not long.
The Crown, in its written submissions, urged a finding that the particular offending falls above the middle of the range of objective seriousness. As with the earlier offences the age of the victim contributes to the ultimate assessment of objective seriousness. In its oral submissions the Crown's position was that this count fell "at least in the middle of the range".
I agree with the position put by the Crown in its oral submissions and find that the objective seriousness of count 3 falls within the mid-range.
[6]
Subjective features
The accused gave evidence in the course of the trial denying his guilt of any of the charged offences. By its verdict, the jury clearly rejected his evidence.
He did not give evidence in the sentence proceedings. He continues to deny his guilt and has maintained his protestations of innocence to both the community corrections officer who prepared a sentencing assessment report and also to Dr Christopher Bench who has provided a psychiatric legal report.
The subjective material regarding the background of the offender has been gleaned primarily from that report and also the Sentencing Assessment Report.
The offender was born in Belmont near Newcastle on 16 June 1983. He is the second oldest child in a family of five, having three brothers and one sister.
The offender described having moved around a fair bit with his family whilst growing up. He spent time in Cabramatta, the Central Coast and Windale. He enjoyed football and denied any history of physical, sexual or emotional abuse whilst growing up. He told the psychiatrist that he was bullied a lot during primary school. He subsequently attended Gateshead High School where he completed year 10. He did not attain his School Certificate and told the psychiatrist that he suffered from a learning disorder. He said that he had been required to repeat two years in primary school as a consequence of the specific reading disorder, dyslexia. However, he had said that he had not had any aspect of "special education". The offender said that he had been suspended "a fair bit" during his schooling for a variety of reasons including verbal abuse of teachers, property damage, assaulting a teacher, assaulting a deputy principal and physical altercations with peers. The offender said, however, that he had no history of expulsion.
After leaving school, the offender worked at Red Rooster for four years. He then worked at Joe's Meat Market for six months. He last worked in 2006.
For approximately four or five years prior to that time he was in a relationship with a lady. They had no children. Following the breakup of that relationship he is said to have been single since 2006. He told the psychiatrist that he had remained single because "I have a problem with my manhood. I can't function properly." According to the psychiatrist's report, as a consequence, the offender had found it easier to avoid relationships.
The offender, following his employment history, has subsequently been on the disability support pension for his "specific reading disorder" as well as anxiety and depression.
The psychiatric report noted that as a consequence of the physical altercations as an adolescent, the offender had been suspended for assaulting teachers. He is described as having engaged in shoplifting. In January 2006 he was charged with three counts of contravening an apprehended domestic violence order in respect of which he was, in due course, placed on a section 9 Bond to be of good behaviour for a period of 6 months. There is no evidence before me as to the nature of those contraventions.
He was subsequently arrested and charged with respect to the use of offensive language. A conviction without further penalty was recorded.
In the course of outlining his past history to the psychiatrist the offender described having drunk alcohol from the age of 16. He described having drunk substantial quantities of beer on a regular, daily basis for a few months prior to the offending behaviour in 2009.
He similarly said he commenced using cannabis at the age of 16. He told the psychiatrist that his use of cannabis was occasional and he denied using it on a daily basis. When interviewed by Dr Bench in January 2021 for the purpose of the report provided to the court he denied having used cannabis for the past three to four years.
The report from Dr Bench noted a past psychiatric history which commenced with a mental health contact in 2006. At that time the offender said he had difficulties with anxiety and felt threatened going to work. He had difficulties with insomnia, impaired appetite and weight loss. He said that he had "trust issues" and had no energy and poor self-esteem. He experienced suicidal ideation. The offender told Dr Bench that he had seen a counsellor whose name he could not recall. His general practitioner had treated him with anti-depressant medication, the name of which he could not recall. He said that he had been on and off anti-depressants since 2006. He described the antidepressants as having been "somewhat helpful" and had been on his current antidepressant medication, Avanza, for five to six years. He had never had a psychiatric admission.
In 2019 his sister had committed suicide. The offender told Dr Bench that he was very close to her and that he blamed himself for her suicide. He said that he had attempted suicide by cutting his wrist following the death of his sister.
The report from the psychiatrist includes considerable detail with respect to the offender's description of his past history and attitude towards sex and sexuality. It suffices to simply observe that he denied any history of prior sexual offending and continued to maintain his innocence with respect to the index offences.
Notwithstanding his denial of guilt for the offences and his assertion that there is nothing that he needs to do in order to ensure that he does not recidivate, as he is not a sex offender, the offender told Dr Bench that he was prepared to participate in any treatment that was recommended, including a sex offender treatment program.
The psychiatrist expressed the opinion that the offender met the diagnostic criteria in DSM-V for "probable specific reading disorder, alcohol use disorder in enforced remission" (as a consequence of lack of access to alcohol whilst incarcerated); "persistent depressive disorder with anxious distress and social anxiety disorder."
Although not listed in the opinion which I have quoted above, the report also noted the presence of post-traumatic stress disorder which was said to have arisen as a consequence of assaults which the offender had witnessed whilst incarcerated.
With respect to the severity of the factors listed as meeting the diagnostic criteria in the DSM-V, Dr Bench was of the opinion that the specific reading disorder was likely to have been no more than in a moderate range, particularly given that the offender had completed all but his Year 10 final exam.
The alcohol use disorder was based upon a history of the consumption of between three and nine standard drinks on a daily basis for a month at a time including in the lead up to his arrest on the index offences. His arrest, of course, did not take place until approximately nine years after the commission of the offences. The condition was described by the psychologist as being in the moderate range.
The diagnosis of a persistent depressive disorder had led to the offender being treated with an anti-depressant for some five to six years. He accordingly met the diagnostic criteria for the disorder because of the presence of symptoms for more than two years. The history given by the offender attributed the onset of symptoms of depression as having arisen in the context of workplace issues in about 2006. Dr Bench considered the disorder to fall in the moderately severe range.
The diagnosis of the presence of the diagnostic criteria for social anxiety disorder was opined to have dated back to childhood. He was described as having had marked difficulties with social anxiety throughout his life and Dr Bench thought this fell within the severe range.
Whilst the psychiatrist described this and the other disorders in response to a question from the defence solicitors as to whether the offender was suffering from any mental condition such as may have affected his behaviour or cognition and may have been relevant to the offending conduct, there is no expression of opinion that such disorders had any causal connection to the offending conduct.
Against the above findings and following a clinical evaluation, Dr Bench was of the opinion that a diagnosis of paedophilic disorder could not be substantiated. In circumstances where the psychiatrist came to the view that the offending had occurred on a single occasion and was accompanied by a denial of any indicia of paedophilic behaviours, Dr Bench was of the view that the temporal criteria for the disorder was not established.
I should indicate a reluctance to place substantial weight on that conclusion in light of the context evidence adduced from the victim that the offending behaviour described continued over a substantial period of time, notwithstanding that the subsequent incidents were not the subject of charge in the trial. The proposition that the offending occurred "on a single occasion" is contrary to the context evidence adduced at trial.
I am conscious of the criteria set out by McClellan JA in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1. Whilst the commission of the offences may have been accompanied by some level of alcoholic imbibing, I am not satisfied that any of the identified disorders had any causal connection with the offences which have been proved. They do, however, form a relevant part of the subjective circumstances of this offender and contribute, amongst other factors, to a finding which I will make of special circumstances.
As observed by Dr Bench:
"It is noted custody is a significantly stressful situation for anyone and individuals with trauma-related psychopathology or depression are prone to have an exacerbation of their illness at times of increased stress. In this context, there would be a foreseeable risk of a lengthy custodial sentence exacerbating his mental health conditions."
In light of the continued denial of his guilt, no question of remorse arises.
With respect to his prospects for rehabilitation, Dr Bench expressed the view:
I cannot comment on his risk of recidivism in the context of his denying any paedophilic behaviours and culpability in the index offences
The sentencing assessment report provided a risk assessment that there was a high risk of reoffending according to the Revised Level of Service Inventory (LSI-R). The offender was assessed as being an above average risk of sexual reoffending according to the STATIC-99R which was scored by clinical psychologist Clare Fookes on 19 January 2021. That actuarial and static assessment is described as having moderate predictive accuracy. Among the factors taken into account by the clinical psychologist in that assessment was stated to be "a prior conviction for non-sexual violence". As I indicated earlier in these remarks the breaches of the apprehended domestic violence order recorded in the offender's criminal history do not reveal what the breaches were. Whether they were making phone calls or other form of contact with the young woman with whom he had been in a relationship or whether it involved any form of violence is simply not disclosed.
I accordingly do not place any great weight on the adverse assessment of prospects of rehabilitation.
As Giles JA said in Alseedi v R [2009] NSWCCA 185, there can be rehabilitation without confession and offenders found guilty after a trial are not all but automatically deprived of a finding of good prospects of rehabilitation unless they then acknowledge their guilt.
Whilst I am not of the view that there is necessarily a high risk of re-offending, the offender's maintenance of his innocence does not necessarily mean that there are not optimistic prospects of rehabilitation. I am ultimately of the opinion that they should be viewed as guarded.
Determination
I propose to proceed by way of an aggregate sentence. The circumstances of the offending arose in the context of the one occasion. Whilst the different sexual acts require some degree of accumulation so as to recognise the clear legal differentiation between them, there should be substantial concurrence in the ultimate outcome.
I note that the offender has been in custody for a total period of 1 year 11 months and 8 days in relation to the present matters and that there was an earlier period of some 7 days which arose with regard to the first complainant. Taking all matters into consideration I propose that the commencement date of the sentence which I will shortly impose should be backdated by 2 years from today's date.
The indicative sentence with respect to count 1 is a period of 6 years with an indicative non-parole period of 4 years. With respect to count 2 the indicative sentence will be a period of 9 years and an indicative non-parole period of 6 years. With respect to count 3 there will be an indicative sentence of 9 years and an indicative non-parole period of 6 years. Bearing in mind the principles to which I have adverted there will be an aggregate sentence of 11 years. I make a finding of special circumstances taking into account the mental disorders as described, the fact that this offending constitutes the first sentence of imprisonment which has been imposed and taking into account the likely level of isolation with respect to prisoners convicted of such offending.
The minimum term which is required to be served will be a period of 7 years. Both the non-parole period and the head sentence will commence from 19 February 2019. The non-parole period will accordingly expire on 18 February 2026. The additional term will expire on 18 February 2030.
[7]
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Decision last updated: 05 April 2022