- July 11, 2014
- Judge presiding over case of man who raped sister in 1980s
- Incest only a crime because of genetic abnormalities in children
- Child abuse spokeswoman says comments ‘beyond belief’
- Calls for him to step down from bench
A JUDGE who compared incest to homosexuality this week — and suggested it was no longer taboo — once gave an incestuous rapist a lighter sentence because he did not ejaculate inside his young niece or “treat her roughly”.
Three NSW Court of Criminal Appeal judges slammed District Court Judge Garry Neilson after his “favourable” November 2011 ruling that the rape charge against the teenage girl’s 55-year-old uncle only fell into the “mid-range” of seriousness.
Court records show Judge Neilson ruled that because the man did not ejaculate during the rape the victim “had not been exposed to the risk of pregnancy or sexually transmitted disease”.
The girl was aged 15 and 16 when she was repeatedly attacked in 2007 and 2008 at her home.
The rapist uncle was in a de facto relationship with the girl’s mother — his sister — at the time.
Appeal Court justices Lucy McCallum, Monika Schmidt and Derek Price slammed Judge Neilson’s comments in March 2013, saying his latter statement had “no foundation” and the former was “entirely questionable”.
“His Honour took a favourable view of the most serious offence, count five, because there had been no ejaculation,” the judges wrote in their appeal ruling on the case.
“It is difficult to see how that was a matter which could have been considered to reduce the objective seriousness of this offence in any real way.”
Judge Neilson jailed the rapist uncle for a minimum of five-and-a-half years for that offence. The standard non-parole period for rape is seven years.The man was convicted of a further three counts of rape and one of sexual assault on the girl and received an overall minimum sentence of six-and-a-half years, which was reduced by six months on appeal.
NSW Attorney-General Brad Hazzard now faces intense pressure to stand down Judge Neilson after the judge claimed incest was no longer taboo and likened it to homosexuality this week.
Speaking in court during the case of a 58-year-old man charged with repeatedly raping his younger sister in 1981, Judge Neilson said the community may no longer see sexual contact between siblings and between adults and children as “unnatural” or “taboo”, just as homosexuality is now widely accepted.
He added: “A jury might find nothing untoward in the advance of a brother towards his sister once she had sexually matured, had sexual relationships with other men and was now available, not having (a) sexual partner.”
Bravehearts founder Hetty Johnston last night wrote to Mr Hazzard calling for Judge Neilson to be suspended.
“It is just the most outrageous statement,” Ms Johnston said.
“What sort of decisions has he been making? I think the community deserves to be reassured that this is not a view that is shared among the judiciary.”
The Daily Telegraph approached Judge Neilson for comment but he did not reply.