Director of Public Prosecutions (NSW) v McKellar

[2015] NSWLC 23

Local Court

New South Wales

Medium Neutral Citation:	Director of Public Prosecutions (NSW) v McKellar [2015] NSWLC 23
Decision date:	18 September 2015
Jurisdiction:	Criminal
Before:	Judge Henson CM
Decision:	The defendant is convicted. The conviction is to be recorded as a conviction for a domestic violence offence. The offender is sentenced to imprisonment for a period of 15 months. The sentence is suspended pursuant to section 12 of the Crimes (Sentencing Procedure) Act 1999 upon condition the defendant enter a bond to be of good behaviour for a period of 15 months and to appear before the Court if called upon to do so.
Catchwords:	CRIMINAL LAW – sentence – sexual intercourse with person aged over 14 years but less than 16 years – moral culpability of offender – vulnerable victim -disregard for ADVO in place at time of offence - impact of pre-existing and ongoing social disadvantage and mental health issues – risk of re-offending – suspended sentence imposed
Legislation Cited:	Crimes Act 1900, ss 66C(3), 77 Crimes (Sentencing Procedure) Act 1999, ss 3A, 12, 21A(2)(l), (j) Criminal Procedure Act 1986, s 260
Cases Cited:	BP v R [2010] NSWCCA 159 Bugmy v R [2013] HCA 37 Cowling v R [2015] NSWCCA 213 DPP v Sheldon [2009] NSWLC 17 Kennedy v R (2008) 181 A Crim R 185 Markarian v R [2005] HCA 25 Munda v Western Australia [2013] HCA 38 R v Boulad [2005] NSWCCA 289 R v Brett Sharpley [2014] NSWDC 166 R v Doan (2000) 50 NSWLR 115 R v Fernando (1992) 76 A Crim R 58 R v JDB (2005) 153 A Crim R 164 R v Lattouf (Court of Criminal Appeal (NSW), 12 December 1996, unrep) R v Macadam-Kellie [2001] NSWCCA 170 R v Thompson; R v Houlton (2000) 49 NSWLR 383 R v Zamagias [2002] NSWCCA 17 R v Zappala (Court of Criminal Appeal (NSW), 5 November 1991, unrep) Yardley v Bates (1979) 22 SASR 108
Category:	Sentence
Parties:	Director of Public Prosecutions (NSW) George McKellar (defendant)
Representation:	Solicitors: Mr D Covington, Legal Aid (for the defendant) Mr P Bakalidis (for the prosecution)
File Number(s):	2015/140865
Publication restriction:	Identification of complainant in prescribed sexual offence proceedings – Crimes Act 1900, s 587A

Judgment

1. The defendant is charged with the offence of engaging in sexual intercourse with a person aged over 14 years but less than 16 years. The offence was committed between 1 and 15 February 2014. The victim was aged 15 at the time of the offence.

2. The charge is brought pursuant to section 66C(3) of the Crimes Act 1900. It is an offence that carries a maximum sentence on conviction of 10 years imprisonment. The prosecution, in this case the Director of Public Prosecutions, makes no election to proceed on indictment. As a consequence the maximum sentence available in the Local Court is, by virtue of s 260 of the Criminal Procedure Act 1986, 2 years imprisonment. The decision to proceed summarily does not affect the objective seriousness of the offence. So much is made clear in R v Doan (2000) 50 NSWLR 115. The offence is to be considered from the perspective of the principles set out by the High Court in Markarian v R [2005] HCA 25.

3. Although a plea of guilty was entered on 9 June 2015 to an offence charged as having been committed between 1 and 15 February 2014 it is important to note the defendant was not charged until 12 May 2015. It is the view of the Court that in such circumstances the discount for the utilitarian value of the plea will be 25% in line with the principles set out in R v Thompson; R v Houlton (2000) 49 NSWLR 383.

The Facts

4. The facts in this matter are not in dispute. The defendant and the victim are well known to each other. Their history pre-dates the commission of the offence. To varying degrees the relationship may be described as volatile, a mix of affection muddied by domestic violence. The inference for the latter circumstance is to be drawn from the fact that the defendant was at the time of the commission of the offence subject to restrictions within a Domestic Violence Order that had been brought by Police on behalf of and to protect the victim. The order was made in the Local Court on 3 July 2013 for a period of two years.

5. In particular, condition 1(a) of the Order mandated the defendant “not to assault, molest, harass, threaten or otherwise interfere with the person in need of protection”. Condition (7) prohibited the defendant from “approaching or contacting the protected person by any means whatsoever”.

6. It is a reasonable inference to draw from the facts that the defendant was well aware of the restrictions placed on him in relation to the victim. The facts establish the accused asked the victim to come with him to his house. Unwisely she agreed. When the defendant arrived at his house he entered via the front door; alone. There is a clear inference that he knew he should not be with the victim and that what ensued in the facilitation of the entry of the premises by the victim is a demonstration of an attempt to hide the fact of her being with him. He went to his bedroom, opened the window and assisted the victim to enter the house by that means. Acting contrary to the restrictions imposed on him by the Domestic Violence Orders was a course of conduct undertaken in deliberate defiance not just of those restrictions. The subsequent engagement by the accused in sexual intercourse with the victim was done so in defiance of the fact that he well knew she was of an age where at law any consent to that activity by the victim was nugatory. The defendant well knew what he was doing but proceeded nonetheless.

7. Police attended the premises on an unrelated matter, entered the bedroom finding the defendant to be naked. The victim was located hiding under the bed. Subsequent examination of forensic material confirmed the defendant’s sexual involvement with the victim. It is clear from the agreed facts that the victim was a willing participant in the physical conduct within the offence. That is not to the point. Section 77 of the Crimes Act 1900 makes it clear that consent is not a defence to a charge brought under section 66C.

8. The DPP in these proceedings argues that the victim should be regarded as a vulnerable victim in the sense that the defendant in addition to her age knew of her homelessness and took advantage of her. I take it to mean the Crown relies on section 21A(2)(l) as an aggravating factor. Whilst it can be reasonably inferred in a township such as Bourke that the defendant would know the family circumstances of the victim, the assertion that the offender knowingly took advantage of the victim’s circumstances is an assertion of fact.

9. As such it is to be proven beyond reasonable doubt. This has not been achieved to the satisfaction of the Court. I come to the view it would be unwise to accept an unproven assertion by the Crown on this issue. To do so may lead, in the context of this type of offence, to a degree of double counting.

10. The vulnerability of the victim is nonetheless not in doubt. As consent affords no defence, and this is a case where there is no suggestion of coercion, it can be taken that by the intended manner in which the constitution of this offence is framed, the legislature impliedly asserts the victim is a vulnerable victim. This approach would accord with the observations of the Court of Criminal Appeal in R v JDB (2005) 153 A Crim R 164 and R v Boulad [2005] NSWCCA 289 at [21].

11. It is however a fact that the conduct and hence the moral culpability of the offender is aggravated. This arises in two ways. At the time of the commission of the offence the offender was on bail for serious offences of violence. In addition he was subject to the specific restrictions imposed on him in relation to his conduct towards the victim by reason of an Apprehended Domestic Violence Order.

12. Courts have consistently reaffirmed that committing offences whilst on conditional liberty aggravates the offence. This approach is confirmed in s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999. It is similarly the case where the offence is committed against the protected person in relation to a current Apprehended Domestic Violence Order: see the observations of the Court of Appeal and Court of Criminal Appeal in Kennedy v R (2008) 181 A Crim R 185 at [8] and R v Macadam-Kellie [2001] NSWCCA 170 at [37]-[38]. As was observed at [38] in the latter case this is an aggravating factor of particular relevance to general deterrence.

13. I have already noted the furtive nature of the defendant’s conduct to introduce the victim into his premises without being observed as raising the inescapable conclusion that he knew what he was doing was in breach of the order. The existence of Apprehended Domestic Violence Orders is a policy approach that endeavours to protect the person found to be in need of protection. In this instance enforceable orders were made to protect a 14 year old girl [as she was when the order was made; 15 at the time of the offence] from this defendant. In full knowledge that what he intended to do the defendant accompanied the victim from his auntie’s premises to his own with the clear inference that he intended to have unlawful sexual intercourse with her. As indicated, it matters not that she was willing to engage in the activity. Consent from an immature, vulnerable young woman is in reality no consent at all. A reality confirmed by the intention of the legislature to remove consent from consideration for this type of conduct.

14. Objectively the moral culpability of the offender is, in the view of the Court, above the middle range of seriousness. In the circumstances of this offender however and in light of now established authority the level of moral culpability is mitigated by the offender’s background.

15. The offender is a young aboriginal male. At the time of the commission of the offence he was 20 years. Tragically his background is all too familiar to the justice system. He has never known his father. The Court was informed that his father, who is of Fijian/Chinese ethnicity, lives in Fiji. After almost 2 decades of separation from his mother the offender is now residing with her.

16. The detailed report tendered by counsel for the offender and under the hand of Forensic Psychiatrist Dr Furst describes a “chaotic and dysfunctional family life, being raised by foster parents since he was 3 years of age”. Dr Furst states at pages 6-7 of his report that the offender’s life experience “derives from an unstable family and community background marred by alcohol abuse, drug abuse and violence. His self-esteem has been adversely affected by the absence of a positive father figure, feelings of rejection and general emotional volatility”. Dr Furst goes on to state that the offender:

… meets criteria for a diagnosis of ADHD, characterised by inattention, impulsivity, hyperactivity and restlessness with chronic problems with alcohol and drug abuse/ dependence, especially involving alcohol abuse over recent years, chronic cannabis dependence and the regular use of ‘ice’.

He has generally poor coping skills, also indicative of an unstable personality structure, decompensating under stress and becoming depressed and or suicidal. His reported depressive symptoms are consistent with chronic dysthymia and more recent features of an adjustment disorder with depressed mood following his relationship breakup and incarceration earlier this year.

In my opinion his offending behaviour was part of a general pattern of immaturity, disregard for normal legal and moral standards and generally poor decisions…. There was insufficient evidence to warrant the diagnosis of a major mental illness….

17. During his period in custody on remand the mental health of the offender was assessed by a Court Liaison officer. As was the case with the report of Doctor Furst, the disadvantaged upbringing of the offender, his alcohol and drug dependencies and suicidal ideation were highlighted. So far as the latter is concerned the offender’s history identifies three attempts at self-harm, one through an overdose of his mother’s prescription medication and two unsuccessful attempts at hanging himself.

18. The Drug and Alcohol history in the Justice Health report is yet another part of the chain of disadvantage which brings the Court to the relevant legal considerations so far as the offender’s background and medical history is concerned and their combined impact on the moral culpability of the offender for his conduct.

19. It is a trite observation to make that the offender suffers from the consequences of a multi layered environment of social disadvantage. It can be inferred from the report of the Senior Health Clinician Laura Nilon attached to the Joint Investigation Response Team that so too has the victim. I refer to the victim at this point because before turning to the impact of settled law in relation to the defendant it is important to acknowledge her position in the context of one of the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act. The process is not all about the defendant and the consequences of his passage through life.

20. The various reports and documents establish that the emotional commitment to the relationship by the defendant was ephemeral. He has since moved on to relationships with other, significantly more mature women. It is highly likely that as the victim ages and matures she will suffer disenchantment at the thought of giving herself to the blandishments of the offender only to be discarded. Whilst no victim impact statement has been forthcoming life experience informs that she will feel used and not valued by the defendant. That is no legacy to leave a young woman approaching adulthood, particularly one whose own life was, and likely remains, an emotional roller coaster layered with a problematic future. The defendant said to Dr Furst that he now regrets what took place. That may be the case but contrition is no antidote to the disappointment of the victim.

21. The starting point for the assessment of the impact of social disadvantage on offenders is to be found in the seminal decision of R v Fernando (1992) 76 A Crim R 58. That decision is added to by the High Court decisions in Bugmy v R [2013] HCA 37, Munda v Western Australia [2013] HCA 38 and others. I do not intend to recite at length the principles set out in the various decisions but to identify those that are of particular importance in these proceedings.

22. The decision in Munda re-emphasises the fact that our system of justice is to be applied from the perspective of equality before the law. As was said at [53] of that judgment:

Mitigating factors must be given appropriate weight but they must not be allowed to lead to the imposition of a penalty which is disproportionate to the gravity of the offence. It would be contrary to the principles stated in Neal [(1982) 149 CLR 305] to accept that Aboriginal offending is to be viewed systemically as less serious than offending by persons of other ethnicities.

23. Against that background however is the observation of the Court in Bugmy at [40]:

… The circumstances that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.

24. There can be no argument that this defendant falls within the context of such an upbringing. Accordingly the Court finds that the level of moral culpability attaching to the defendant’s behaviour is mitigated by the unfortunate circumstances of his upbringing. In light of Dr Furst’s observations regarding the defendant’s development outlined earlier I take note of the observations made by the Court in BP v R [2010] NSWCCA 159 at [5]:

… that emotional maturity and impulse control develops progressively during adolescence and early adulthood and may not be fully developed until the early to mid-20s. Youth may be a material factor in sentencing even a 19 year old for the most serious offence.

This brings the Court to the issue of rehabilitation and an issue within submissions wherein the DPP and the Defendant through his counsel are at odds.

25. During the course of submissions on sentence the Court’s attention was drawn to the issue of rehabilitation in the context of the likelihood of ongoing sexual offending. It would appear that this issue arises as a result of comments contained within the Pre-Sentence report from Probation and Parole. That report expresses views on the risk of reoffending. They appear to have been based on a case file assessment of static risk factors. The report acknowledges at page 2 under the heading “Sex Offending” that its opinion requires further testing. As the report stands it assesses the defendant as a medium risk of re-offending. The Court infers this risk relates to re-offending by committing further sexual offences.

26. Dr Furst at page 5 of his report expressly contradicts the opinion in the Pre-Sentence report. He expresses the opinion the defendant presents “a low risk of future sexual offending”. The decision Cowling v R [2015] NSWCCA 213 provided to the Court for its assistance on this issue acknowledges at [40]-[45] to the caution that ought to be exercised in relation to reliance on the Static 99R assessment. Given the short period of consideration by the Probation Officer and the focus by Dr Furst on this from his position of greater expertise, his opinion together with the lack of any further instances of this type of behaviour in the last 18 months, the risk of reoffending is, in the opinion of the Court, relatively low, a conclusion which assists the Court in assessing the prospects of rehabilitation for a young offender.

27. Although the foregoing factors are of particular relevance in these proceedings and the Court recognizes that the factors described operate to mitigate the penalty in this matter the nature of the defendant’s conduct remains serious.

28. In the course of submissions the DPP referred the Court to Remarks on Sentence of the Local Court in DPP v Sheldon [2009] NSWLC 17. By accident rather than design, the remarks are my remarks delivered in a matter prosecuted under the same Section of the Crimes Act as the matter before me today. The factual matrix in the earlier proceedings is very different from that before me at this time and it is of course not the remarks upon which the DPP rely, but the authorities expressed within the remarks. In particular the observations of the Court in R v Zappala (Court of Criminal Appeal (NSW), 5 November 1991, unrep) wherein the Court said:

One begins with the proposition that our community views with great concern the sexual molestation of children by adults and that has been acknowledged by the legislature in providing for greater penalties when the victim is under 16… That acknowledgment has been our legislation over a long period of time. Little children are entitled to grow up free from defilement by sexual predators and free from risk of psychological upset, confusion and difficulties in later life caused by such conduct.

The law has always sought to protect young children against sexual predators particularly adult men.

29. The background to the decision in Zappala may be significantly different than in this case but the social and policy considerations remain. General and particular deterrence are of great importance in sentencing for this type of offence; so too is rehabilitation given the age of the offender.

30. Counsel for the defendant drew the Court’s attention to sentencing statistics maintained by the Judicial Commission in support of his contention that imprisonment is not necessarily a given outcome for this type of offence. That of course is a fact. Observations on the utility of statistics are well settled. They are a guide as to encourage consistency in the sentencing range not a substitute for the exercise of judicial discretion.

29. Turning to the appropriate sentence for a matter such as this the Court is required to balance a number of competing considerations. On the one hand is the objective seriousness of the offence, the aggravating factors that effectively represent a defiance of and disregard of the need to respect the law and the guideposts identified in decisions of superior courts that point in favour of deterrent sentences of significance given the impact of such offending on victims. These factors would unquestionably lead the Court to conclude that the threshold set out in s 5 of the Crimes (Sentencing Procedure) Act has been crossed such as to warrant imposition of a full time sentence of imprisonment.

30. Subjectively the early plea of guilty, youth of the offender, pre-existing and ongoing social disadvantage and ongoing issues in relation to his mental health which pre and postdate the commission of the offence operate to mitigate the penalty. It is the view of the Court however that they do not mitigate the penalty to the extent that imprisonment is no longer appropriate.

31. It remains the Court’s view that the circumstances of the offence and of aggravation outweigh those in mitigation to the point where a sentence of imprisonment remains the appropriate outcome. After application of the discount for the utilitarian value of the plea the length of the sentence of imprisonment is one of 15 months. Having determined the length of the sentence and in line with the decision in R v Zamagias [2002] NSWCCA 17 I turn to the manner in which such sentence should be served. It is here in my view that the Court should pause and look again at the offender.

32. The offender has already spent 43 days in custody on remand. I have no doubt in relation to the salutary effect this period of deprivation of liberty has had on him. The defendant has also re-established himself with his mother and now resides with her. It is hoped that this change in domestic circumstances will contribute to the void created by his separation from her for almost 20 years. The defendant has ongoing psychological and psychiatric issues that will endure long beyond the period of incarceration identified by the Court thus far. He is young both in age and maturity. It is important from these considerations to endeavour to create an outcome that addresses matters that contribute to causation but to do so in a way that neither undermines the objective of general deterrence whilst at the same time does not crush the prospect of rehabilitation. On the documentation presented to this Court and referred to variously thus far the defendant is at a cross road in his life.

33. Rehabilitation would represent the optimal outcome for the community and for the offender. Ultimately that is his responsibility however the State also has an obligation to assist when it can and when it is appropriate. In addressing this aspect I note the remarks of Yehia DCJ in R v Brett Sharpley [2014] NSWDC 166 and adopt her Honour’s observations wherein she quoted (at [70]) from the decision in Yardley v Bates (1979) 22 SASR 108:

The protection of the community is also contributed to by successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits.

If a sentence had the effect of turning an offender towards a criminal way of life, the protection of the community is to that extent impaired. If the sentence induces or assists in order to avoid offending in the future, the protection of the community is to that extent enhanced.

And further (at [71]), R v Lattouf (Court of Criminal Appeal (NSW), 12 December 1996, unrep):

It is in my opinion necessary that the law allow to a sentencing judge a discretion to determine the sentence appropriate for the particular offence, for the particular offender, and for the circumstances of the particular case. … General principles must, of their nature, be adjusted to the individual case if justice is to be achieved. …

… To see the sentencing process as involving no more than stern punishment for each offender is not merely simplistic; it damages the public interest. A sentencing process which is seen by the public merely as draconian and not just will lose the support of those whom it is designed to protect. If a sentencing process does not achieve justice, it should be put aside. … [I]f justice is not individual, it is nothing…

But, in addition, a sentencing process must be capable of discriminating between cases. There is, as I have said, a public interest in punishment. But if the desire to punish results in a person who would otherwise not become a confirmed criminal becoming such, that sentencing process is inconsistent with the public interest.

It is to be recognised that imprisonment may convert a person who will not be a persistent criminal into one who is.

36. It is the understanding of the Court the offender is not eligible for an alternate sentence of imprisonment in the form of Home Detention or an Intensive Correction Order, each of which would have effectively addressed the issue of denunciation whilst affording an opportunity to address some of the issues of causation that would not be addressed as an incarcerated prisoner because of the lack of sufficient length in the sentence to enable engagement with in custody programmes.   

37. The alternative, and one which addresses the issues of denunciation and deterrence but will enable the opportunity for engagement in the rehabilitative process at an early date is a sentence of imprisonment that is wholly suspended and subject to conditions intended to manage the offender within the community to the extent that his changed family arrangements and identification of his serious psychological and related conditions capable of treatment in a therapeutic sense can be addressed. The Court’s confidence in taking this course is enlivened by the fact that so far as the Court is aware, the defendant did not re-offend whilst on good behaviour bonds imposed in respect of other offending in a short period of time during the latter part of 2013 and early 2014.

38. I re-emphasise to the defendant that he is at a cross road in his life. He will be given significant assistance and guidance to address some of the problems that contribute to causation in the sense of criminal offending behaviour. Ultimately however it is he who is accountable to the community for what he does.

39. I make it abundantly clear to the defendant that this outcome is not a soft option. The law in relation to breaches of suspended sentences is well settled. Any further offending during the currency of the bond will see the defendant sent to gaol.

40. The Orders of the Court are as follows:

1. The defendant is convicted.

2. The conviction is to be recorded as a conviction for a domestic violence offence.

3. The offender is sentenced to imprisonment for a period of 15 months.

4. The sentence is suspended pursuant to section 12 of the Crimes (Sentencing Procedure) Act 1999 upon condition the defendant enter a bond to be of good behaviour for a period of 15 months and to appear before the Court if called upon to do so. The bond is conditioned that the defendant –

1. Be of good behaviour for a period of 12 months   

2. Accept the supervision and direction of the Probation and Parole Service and obey all reasonable directions of that service as to participation in such rehabilitation programmes considered appropriate by the service. In particular consideration is to be given to involvement by the defendant in Anger Management programmes, Drug and alcohol rehabilitation programs, including residential programs if appropriate

3. Engage with the Aboriginal Medical Service and accept treatment as determined by a medical practitioner of that service.

Judge G Henson, Chief Magistrate

Downing Centre Local Court

18 September 2015

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Decision last updated: 18 January 2016