RG v R [2025] NSWCCA 36

RG v R [2025] NSWCCA 36 · Read the judgment on AustLII

Catchwords: Sentencing – moral culpability – threshold test where offender asserts that abuse against them should be mitigatory in relation to their offending

Where a sex offender has themselves been abused as a child, that earlier abuse against them may be used in mitigation if the applicant establishes on the balance of probabilities that the abuse occurred, that it was a ‘contributing factor’ in their offending, and it can be shown that there are relevant consequences which flowed from that earlier abuse. That is, it isn’t necessary to establish ‘causation’ – but, as ever, the weight to be given this factor will depend on the facts of the particular case.

The applicant was convicted of an array of sexual offences against two of his biological daughters, some of which were committed with or in the presence of the victims’ mother. The facts of the offending were bracing – as reflected by the 48-year sentence of imprisonment imposed at first instance. The applicant appealed his sentence on grounds including that the sentencing judge had erred by failing to take into account, in mitigation, the applicant’s own history of child sexual abuse.

The Court (Yehia J, with whom Davies and Longergan JJ agreed) considered that it was necessary to say something about the appropriate test to be applied in determining whether an offender’s own history of sexual abuse reduces moral culpability. A review of the cases reveals a variety of formulations, such as a requirement to establish a ‘direct causal link’, ‘causative of’, ‘materially contributed to’ or ‘contributed to’ (at [70]).

The test applied when considering the impact of mental health issues on an applicant derives from the well-known principles set out in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1, which says, at [177] of that decision, that moral culpability may be reduced ‘[w]here the state of a person’s mental health contributes to the commission of the offence in a material way.’ It is often the case that a history of sexual abuse will result in the onset of mental health issues such as, for example, post-traumatic stress disorder. The interplay between these features is sometimes difficult to disentangle. The ‘material contribution test’ applies in circumstances where the offender is suffering from a mental illness, intellectual handicap, or other mental health conditions (at [75]-[76]).

The use of terminology like ‘causal link’ or ‘causal nexus’ is prone to unnecessarily and unduly elevate the threshold that an offender must meet before the evidence of childhood sexual abuse can be taken into account to reduce moral culpability. A sentencing judge should not become preoccupied with the issue of ‘causation’ as a technical matter (at [77]).

The following propositions can be distilled from the authorities:

• For a history of childhood abuse to be taken into account as reducing an offender’s moral culpability for his acts, an offender must establish on the balance of probabilities the fact of the abuse.
• An offender must establish on the balance of probabilities that the history of abuse was a contributing factor in the offender’s own offending conduct (emphasis in judgment).
• A history of sexual abuse will not automatically lead to reduction of sentence. The important consideration is the consequences which flow from the earlier events.
• Finally, the weight which should be given to the history of sexual abuse will depend very much on the facts of the individual case (at [78]).

On the evidence in this case, the sentencing judge did not err in declining to take into account the applicant’s own history of child sexual abuse, so that this particular ground of appeal was refused. The overall sentence of imprisonment was, however, found to be manifestly excessive, having regard to errors made in the indicative sentences for some counts, the offender’s subjective case, and considerations of totality. The sentence was reduced to one of 30 years, with a non-parole period of 20 years.