Judges in New South Wales may soon be able to sentence persons found guilty of historical sex crimes using present laws, rather than those in force at the time of the offence, under a proposal by the NSW Attorney-General Mark Speakman.
“I’ve asked Department of Communities & Justice for a thorough review and stakeholder consultation with a view to changing sentencing of historical crimes according to practices/principles at the time of the offence to using ones current at the time of sentencing instead.” explained Mr Speakman.
This reform has already occurred with regard to the sentencing of child abuse crimes in 2018.
After the Royal Commission into Institutional Responses to Child Sexual Abuse Mr Speakman saw it fit to reform the law, so that paedophiles would get tougher sentences in regard to historical offences.
However, the commission ultimately overlooked taking the same sentencing measures on historical sex offences perpetrated against teenagers and victims aged 16 and over.
Speakman is thus now looking to whether to do the same for sexual offences against adults, or for crimes more generally.
“If we now think past principles are wrong why would we keep perpetuating the error, and keep applying past principles?” said Mr Speakman.
Those consulted during the review will include victims of crime, judges, magistrates, lawyers, and prosecutors.
The sentencing of Gregory Richardson has acted as the catalyst for suggestions of reform.
Mr Richardson pleaded guilty to raping two women and indecently assaulting two others in the Epping area between 1989 and 2007.
Despite committing nearly identical offences against a 15-year-old girl and another teenager who had just turned 16, the cases were treated vastly different during sentencing.
He ultimately received a maximum of 10 years in prison, to be eligible for parole in seven, at the October 2020 hearing.
Judge Peter Berman, during his sentencing, expressed anguish that he was required to use historical sentencing practices regarding offences against two females, aged 16 and 25, and current penalties for the two girls under 16.
“For reasons which completely escape me, previously the law was that when people were being sentenced for old offences, judges had to have regard to the sentencing practices at the time the offences were committed,”
“Fortunately, parliament has corrected that error, but strangely have only done so in cases of child sexual assault. The error is perpetuated when people over 16 were sexually assaulted some time ago. It’s woefully inadequate.
“Nevertheless, that is the law and of course I will apply it.” stated Judge Berman.
16-year-old Rachel Shadbolt was raped by Richardson, half on a nature strip and half in a gutter, on Murray Farm Road in Beecroft in 1989.
Richardson had grabbed her as she was walking home in the evening, throwing her to the ground, before covering her face with her top, putting his hand over her mouth and raping her.
She has expressed that it was “grossly unfair” that Richardson was sentenced as if she was an adult when he attacked her.
“The sentence he was given does not reflect the laws and how seriously we now take sex assault offences. I find it horrendous. I never want anyone in a similar situation to feel their experience doesn‘t matter.” she explained.
Emma Collins was 15 when she was raped by Richardson while walking home from Cheltenham Train Station.
In a similar situation to Ms Shadbolt, he grabbed her from behind, tied her hands behind her back and covered her face with his denim jacket.
“Our attacks were so similar. It doesn’t make sense that the judge wasn’t given the same sentencing options,” Ms Collins said.
“The changes have already been made with regard to children, however there is a general principle against retrospectivity – it’s important that a detailed inquiry is made before making wider changes,” explained Helen Campbell, Executive Officer of the Women’s Legal Service.
Currently in NSW, courts sentencing historical child sexual offences must apply current sentencing patterns and practices and take into account our understanding of the lifelong impact and trauma of child sexual abuse.
This includes considering recent psychological research or the common experience of courts.
It applies only if the person against whom the offence was committed was then under the age of 16 years.
This is reflected under section 25AA of the Crimes (Sentencing Procedure) Act 1999.
The section states it does not affect section 19, which generally states that where an Act or statutory rule increases the penalty for an offence, the increased penalty applies only to offences committed after the commencement of the provision of the Act or statutory rule increasing the penalty.