Director of Public Prosecutions v Ijl

[2019] NSWLC 2

Local Court

New South Wales

• Amendment notes

Medium Neutral Citation:	DPP v IJL [2019] NSWLC 2
Hearing dates:	15 January and 12 February 2019
Decision date:	12 February 2019
Jurisdiction:	Criminal
Before:	Judge Graeme Henson AO, Chief Magistrate
Decision:	See [38].
Catchwords:	CRIME – Sentencing – incite an aggravated act of indecency – aggravated indecent assault – victim under age of 16 - historical child sex offences – offender victim’s stepfather at time of offending - committed in victim's home – breach of trust – vulnerable victim - offending behaviour above mid-range of objective seriousness - utilitarian value of guilty plea – court required to sentence according to current community standards – special circumstances – offender’s age and health - sentence of imprisonment imposed
Legislation Cited:	Crimes Act 1900 (NSW) ss 61O(1), 61M(1) Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 21A, 25AA, 27(3)(d)
Cases Cited:	Imbornone v R [2017] NSWCCA 144 Jonson v R [2016] NSWCCA 286 PWB v R [2011] NSWCCA 84 R v Doan (2000) 50 NSWLR 115 R v Lulham [2016] NSWCCA 287 R v Nelson [2016] NSWCCA 130
Category:	Sentence
Parties:	Director of Public Prosecutions (NSW) (prosecutor) IJL (defendant)
Representation:	Kuppusany, for the prosecution Nicol, for the defendant
File Number(s):	2018/00112987
Publication restriction:	Non-publication order prohibiting the publication of any details capable of giving rise to a capacity to identify the victim.

Judgment

1. The offender IJL is 82 years of age. He is the stepfather of the victim. The victim was at the time of the offending behaviour between 8 and 10 years of age. All of the offences are alleged to have been committed during the years 1994 and 1995. The offender was not charged in relation to the offences until May 2018. There are three charges to consider on sentence, two discretely and one being a further incitement to an act of indecency which has been placed on a Form 1 pursuant to section 32 of the Crimes (Sentencing Procedure) Act 1999 (the Act).

2. Proceedings commenced before the Local Court as committal proceedings. One of the three charges initially laid was a strictly indictable offence. After delays surrounding the process of charge negotiation the strictly indictable charge was withdrawn and on 8 November 2018 the offender entered pleas of guilty to three freshly laid charges. In the context of the assessment of the discount to be allocated for the utilitarian value of the plea the laying of different charges to those initially before the Court operate to afford the accused a discount of 25% for the timing of the plea.

3. As a by-product of the negotiation process an agreed statement of facts was tendered to the Court. They occupy some 28 paragraphs in the document attached to the Court record. For the sake of greater brevity I have reduced them to their essential components.

4. Before turning to the product of that endeavour I point out to the DPP and to counsel for the defence the need for caution in relation to statements of agreed facts where there is a heightened level of legislative and natural sensitivity. In the very first paragraph the victim is identified both as to name and date of birth, together with an identifier as to her educational location at the time of the offending. The Court is of the view that greater care should be exercised to anonymise the victim to avoid possible access to court records by a third party that would then disclose these types of detail. The current Statement of Agreed Facts needs to be altered to remove personal identifiers and returned to the Court record.

Agreed Facts

5. During the period of offending the victim resided with the offender and her mother. The first offence is described as having occurred during a time when the victim’s mother was absent from the house. The offender showed the victim his penis and encouraged her to touch and lick it. She was at the time between 9 and 10 years of age.

6. The next offence on a different date describes the offender asking the victim to stand beside his chair whereupon he reached under her shorts and rubbed her on the outside of her crotch area. He then moistened two of his fingers by spitting on them and touched the outside of the victim’s labia and clitoral area rubbing in a circular fashion. He used his other hand to touch her nipples under her t-shirt. Asking her how she felt and receiving a reply that she felt funny, he asked her to sit down and continued to stimulate the outside of her vagina but in a faster manner. At a point he told the victim to remove her shorts and underwear and touched her on her vagina. On being told by the victim that it hurt he stopped. Later that evening he told the victim not to tell her mother.

7. The third incident occurred when the victim was having her shower. Due to her age she sometimes had difficulty in removing the shampoo from her hair. The offender would assist in rinsing her hair but on this occasion he remained in the shower and washed his genital area encouraging the victim to touch his penis and to masturbate him. Again he encouraged her to continue by praising her. At a point he ejaculated.

8. As one of the consequences of the offender’s behaviour towards the victim she began to alter her behaviour. She would not go to sleep until her mother came home and experienced episodes of bed wetting. It is a reasonable inference that these behaviours were the beginning of the effects of the offender’s conduct towards the victim.

9. In year 8 the victim became educated to the wrongful nature of the offender’s conduct through an in school program. The realisation impacted on her both emotionally and educationally. She did not disclose the conduct to anyone at this point because she felt sorry for the offender who had suffered a heart attack. In year 10 the victim told her mother. A family meeting failed to produce an outcome although the offender did admit that he had had an erection whilst in the shower with the victim. The years passed and over time the victim sent emails to her mother describing the offender’s conduct. She received no response. In 2013 she again spoke with her mother about what had taken place. Once again no positive outcome eventuated.

10. The victim moved interstate in 2014 and during the process of planning her wedding she began to have nightmares about the attendance by the offender. As a result she attended her GP and a psychologist to address anxiety and depression. Gradually the victim became more confident in the need to disclose the offender’s conduct to the wider family. In September 2015 she prepared a written account of what the offender had done and gave it to her mother. Nothing happened. In February 2016 she told her mother that she was going to the police as it was the right thing to do. The offender responded by email denying the allegations. The victim attended Fairfield police on 23 June 2016. This was the same day as the offender emailed her to admit that he had in fact remembered the incidents set out in the note provided by the victim to her mother and apologizing for the pain and suffering he had caused the victim, acknowledging that he had betrayed her trust.

11. In August 2016 the victim provided a signed statement to police and on 10 December 2017 took part in a pretext call to the offender wherein he partially admitted his conduct. On 11 April 2018 the offender was arrested and charged. Subsequent to being charged negotiations took place between the offender’s legal representatives and the DPP leading to pleas being entered to three charges, one of which is to be dealt with on the Form 1.

Victim Impact Statement

12. During the course of proceedings the Court was provided with a powerful Victim Impact Statement. Such a statement is admissible by reason of section 27(3)(d) of the Act. The statement is relevant for the purposes of section 3A(g) of the Act in terms of recognizing the harm done to the victim and to the community. In this matter the Court is of the view the statement is also relevant for the purposes of section 21A(2)(g) of the Act.

13. It is clear on any reading of the heartfelt outpouring of disbelief that she could be so shamelessly betrayed by the offender that his conduct has materially and emotionally played a significant role in disturbing the victim’s mental health, her education and the long term relationship with her immediate and extended family.

14. The manner of expression, content and personal insights within the Victim Impact Statement leads to the unarguable inference that she is a highly intelligent member of the community whose suffering has been endured for over two decades. The vivid memory of betrayal and the nature of the offender’s conduct continues to operate to the victim’s detriment.

15. Were it not for the unstinting support of her husband and the provision of professional psychological counselling the victim’s future may be more guarded than it is. Her resilience and personal insight regarding the impact of the memories created by the offender do not however diminish the impact of his conduct. The words in the last paragraph of the victim’s statement “I am learning to cope better and develop more emotional resilience” are aspirational. They do not absolve the offender of the impact of his crimes. Coping is not a cure.

Remarks on Sentence

16. Before turning to the subjective factors relevant to the offender it is important to note that there are other section 21A(2) factors to be taken into account.

17. These offences were committed in the home of the victim. As Jonson v R [2016] NSWCCA 286 at [40] confirms it is no longer the law that such a reality cannot be taken into account if the victim and the offender share the same house. Why that is so is explained by Bathurst CJ in R v Lulham [2016] NSWCCA 287 at [5].The Chief Justice said:

“the reason it can be taken into account as an aggravating factor is that an offence to which the subsection applies involves the violation of the victim’s reasonable expectation of safety and security in his or her own home”.

18. The conduct is further aggravated by reason of the breach of trust on the part of the offender. This aspect is conceded by counsel for the offender. As Hume J noted in PWB v R [2011] NSWCCA 84 at [19]:

“The Applicant abused his position in the family as an older brother. Although he was not in a position of parental authority, the relationship between the siblings nonetheless called for trust, respect and support, not abuse”.

19. How much more so is the case in these proceedings where the offender was the stepfather of the victim and of an age where his life skills, including knowledge of the wrongfulness of his conduct, were fully developed.

20. The victim was at the time a vulnerable victim for the purpose of section 21A(2)(l). A child of 10 years of age does not have the life skills or knowledge to effectively resist the type of conduct imposed on her by the offender. Silent acceptance of the offender’s behaviour is not informed consent. The observations of Basten J in R v Nelson [2016] NSWCCA 130 regarding lack of opposition to the conduct is noted. So much is made clear by the shock experienced by the victim when she participated in education programmes at school some years later and gained the realisation that her intrinsic worries that the offender’s conduct was not right turned into knowledge that it most certainly wasn’t.

21. Given the foregoing it is the view of the Court that the level of moral culpability in relation to the offending behaviour is above the mid-range of objective seriousness. I turn to the factors relevant to the offender.

22. As indicated the offender is 82 years of age. He resides on the Central Coast of the state with his wife. It would appear she continues to support him emotionally and otherwise. He has no prior antecedents and is to be sentenced on that basis.

23. The Court has already noted that the manner in which the proceedings were conducted led to a situation where the utilitarian value of the plea entered should be 25% in line within regular practice.

24. According to the DPP submissions the offender was 59 years of age when the offending took place. His life in the ensuing period of over 20 years has been very different to the emotional scarring endured by his victim. Counsel for the offender assisted the Court by providing written submissions and a psychologist’s report accompanied by a list of the medical conditions and medication of the offender. It is accepted that the offender suffers from a number of medical conditions. That reality is likely to be consistent with his age.

25. The report from the psychologist expresses the opinion that the offender satisfies the criteria for Major Depressive Disorder and is currently experiencing elevated levels of anxiety consistent with both the diagnosis and the fact of facing these matters for sentence before this Court. The report further expresses the opinion that there is little likelihood of reoffending. Such a conclusion is likely to be sound given that the offending took place during 1 year only and has not recurred in the 23 years since. This together with the age related decline in functioning persuades the Court that the prognosis is soundly based. These factors to one side there is little in the psychological report that is remarkable or that goes towards explaining the offender’s conduct other than to highlight speculation.

26. Mindful of the observations made by the Court in Imbornone v R [2017] NSWCCA 144 regarding the weight to be given to expressions of remorse and contrition in psychological reports where much of the content falls from the mouth of the offender, the Court accepts that there is likely to be an element of contrition and remorse consistent with the plea of guilty but that it is somewhat nascent given the years of denial and the offenders involvement in pressure being placed on the victim by the offender and others within the family to keep his conduct secret from the wider world.

27. Optimistically counsel for the offender’s submissions commence with the proposition that a Community Correction Order with limited community service would serve to meet the purposes of sentencing and the objective seriousness of the offending within the commission of the offences. Although such an outcome has not been within the contemplation of the Court it should be noted the offender has been assessed by Community Corrections as being unsuitable for community service.

28. The written submissions from the DPP argue for a sentence of full time imprisonment. I agree that the threshold set within section 5 of the Act is crossed in these proceedings. The nature of the conduct and the circumstances of aggravation for the purposes of section 21A(2) leave the Court to conclude there is no suitable alternative to a sentence of imprisonment.

29. The offending is heinous and unacceptable in any civilised society. Children are to be protected and nurtured towards the possibility of achieving their full potential in life. They are not to be used as instruments of sexual gratification by adult members of society or indeed any member of society amenable to the criminal justice system.

30. The purposes of sentencing set out in section 3A are all to be addressed in sentences imposed for this type of conduct. To echo part of the written submission from the DPP referencing the decision of R v Hudson (Unreported, NSW Court of Criminal Appeal, 30 July 1998)

“children have a right to be protected from sexual molestation with the family and…this can only be achieved by the courts imposing sentences of a salutary nature”.

31. The age of the offender does not operate to militate against such a conclusion. Again, to borrow from the DPP submissions in citing R v DCM (Unreported, NSW Court of Criminal Appeal, 26 October 1993):

“Age is not a licence to commit sexual offences nor should it be thought that a person who commits such offences can then expect to be allowed to go free merely because of advanced years”.

32. It should not be overlooked that the Parliament has set the maximum sentences for this type of offending at 5 years for the offences contrary to section 61O(1) and 7 years for offences contrary to section 61M(1) of the Crimes Act 1900. Such offences do not constitute minor breaches of the criminal law. That this Court is limited in the exercise of its summary jurisdiction to a maximum penalty of 2 years does not deprive the offences of their objective seriousness beyond the jurisdiction. So much is made clear in the decision of R v Doan (2000) 50 NSWLR 115.

33. Before formally proceeding to sentence I acknowledge that section 25AA of the Act requires the court to sentence according to current community standards not those that prevailed at the time of the offending.

34. Moving to sentence it is noted that sequence 4 has been placed on a Form 1 to be included in the sentence to be imposed for sequence 6. When this occurs there will be an increase on the sentence to be formally imposed to reflect the fact that it embraces more than one course of conduct. In my view this leads to an outcome whereby the sentence for sequence 6 and the sentence to be imposed for sequence 5 become aligned. In each of those matters the appropriate sentence, after the application of subjective factors favourable to the offender in mitigation of penalty, including the discount for the utilitarian value of the plea, would be one of 16 months imprisonment.

35. Taking into account the prosecution case that the offending occurred within a period of 12 months it is appropriate to have regard to the totality of the sentences and impose a single aggregate sentence. The alternative would be to partially accumulate the sentence for sequence 6 with the sentence for sequence 5. It should not be the case that concurrent sentences be imposed given the period over which offending took place. To do so would not properly reflect the nature of the conduct or the impact of it on the victim.

36. The ratio between the minimum term and the additional term is something that must be addressed in response to the secondary submission by counsel for the offender. Recognizing no doubt the difficulties that confront any advocate faced with making submissions on sentence for this type of conduct, counsel urged the court to find special circumstances should it conclude that nothing less than a sentence of full time imprisonment was warranted.

37. Having concluded that this is to be the case I have taken into account both the offender’s age and his health along with the marginal relevance of this being his first time in custody to come to the view that in the exercise of my discretion there should be a departure from the statutory relationship between the minimum and additional terms although, that departure will not be significant.

Orders

38. The offender is convicted on each offence and sentenced to an aggregate sentence of imprisonment for a minimum period of 10 months with an additional period of 12 months during which the offender may be released on parole subject to the supervision of the office of Community Corrections.

Judge Graeme Henson AO

Chief Magistrate

Downing Centre Local Court

12 February 2019

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Amendments

20 March 2019 - Amended typographical errors in [1] regarding number of charges

Decision last updated: 20 March 2019