Freeman v Director of Public Prosecutions (No. 2)

[2020] NSWDC 333

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Freeman v DPP (No. 2) [2020] NSWDC 333

Hearing dates:

25 June 2020

Date of orders:

25 June 2020

Decision date:

25 June 2020

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraph 49

Catchwords:

CRIMINAL LAW – severity appeal following partially successful appeal against conviction – intentional sexual touching of victim aged between 10 and 16 – sentencing court imposed same sentence on two charges, to be served concurrently – whether setting aside conviction of one charge should result in variation to terms of sentence for the other charge – relevance of prior good character

Legislation Cited:

Crimes Act1900 (NSW), ss 61HB, 66DB

Crimes (Appeal and Review) Act2001 (NSW), s 63

Crimes (Sentencing Procedure) Act1999 (NSW), ss 3A, 5, 21A, 25AA

Cases Cited:

Freeman v DPP [2020] NSWDC 280

R v Hudson (unrep, 30/7/98, NSWCCA)

RvNelson [2016] NSWCCA 130

R v Tuala [2015] NSWCCA 8

Category:

Principal judgment

Parties:

Director of Public Prosecutions
Mr A Freeman

Representation:

Solicitors:
Solicitor for the Director of Public Prosecutions
Aubrey Brown Lawyers for the appellant

File Number(s):

2019/144569

Publication restriction:

Non Publication Order on the name of the complainant, each of the complainants’ family members and persons connected to the complainant, or any information that may identify any of them.

Pseudonyms have been used for the name of the complainant, each of the family members of the complainant and persons connected to the complainant.

 Decision under appeal 

Court or tribunal:

Local Court of New South Wales

Jurisdiction:

Crime

Citation:

Unreported

Date of Decision:

21 January 2020

Before:

Magistrate S Olischlager

File Number(s):

2019/144569

Judgment

INTRODUCTION

1. On 21 January 2020, the appellant was sentenced by the Wyong Local Court [1] on two charges, both charges being that on 4 May 2019, at Lake Haven, he sexually touched the complainant, a child above the age of 10 years and under the age of 16 years, namely 14 years old, contrary to s 66DB(a) of the Crimes Act1900 (NSW) [2] . He received the sentence of a community corrections order, for both charges, to be served concurrently, for a period of two years (commencing 21 January 2020 and concluding on 20 January 2022). Conditions were attached that the appellant perform 100 hours’ community service work and there were AVO conditions for 2 years. The factual distinction between the two charges was that, whereas for the first charge the touching was to the victim’s vagina (whilst the complainant was clothed), the second charge was said to have comprised of him touching her bottom (also whilst clothed).

   1. This was after being convicted on 20 November 2019.

   2. ‘Sexual touching’ is defined in s 61HB of the Crimes Act 1900 (NSW).

2. On 6 February 2020, he lodged an appeal which operated to stay the sentence. On 4 June 2020, his conviction appeal was partly upheld, in that the conviction on the second charge was set aside. The conviction on the first charge was confirmed. The appellant thereafter sought, and was granted leave, to bring a severity appeal to reflect this altered position.

3. The maximum penalty for the subject offence is 10 years’ imprisonment. At the summary level where this case was tried, the jurisdictional maximum was 2 years’ imprisonment and/or a fine of 100 penalty units. There is no standard non-parole period.

4. On this appeal, the Crown relied upon the material that had been placed before the learned Magistrate, as well as a transcript of the sentencing hearing in the Local Court. The appellant did not rely upon any additional evidentiary material.

CIRCUMSTANCES OF OFFENDING

5. I set out, at length, the circumstances of offending in my reasons on the conviction appeal: Freeman v DPP [2020] NSWDC 280.

6. The victim knew the appellant all her life. The appellant was known by her as an ‘uncle’. The appellant was related to the victim’s father (RP). The appellant was engaged to CB. On 4 May 2019, the victim, the appellant, RP, CB and a friend of RP’s, NKH, attended a football gala day. After the sport, the adults engaged in significant amounts of drinking.

7. In the evening, the adults returned to RP’s home to enjoy some light snacks and entertain themselves with playing pool and listening to music. The victim had been dropped home earlier. After 11:00pm, the victim went to her bedroom. The appellant went into her bedroom and touched the victim on her vagina.

8. There were, as I noted in the reasons on the conviction appeal, strong indications that the appellant was intoxicated. That is not a mitigating factor per se, but it reinforces my view that the offending was impulsive and opportunistic, rather than planned and pre-meditated. No prior grooming was involved.

9. The touching did not go on for very long. Partly because it occurred in a home occupied by adults, the appellant was under the risk of detection. The encounter was surreptitious and brief.

10. There was no ‘skin to skin’ contact. The contact occurred on the victim’s clothing.

11. ‘Consent’ is not an element of this offence and even if it was present, it would be irrelevant and not a mitigating factor: R v Nelson [2016] NSWCCA 130. But on the facts as I have them, there was actual opposition vocally expressed by the victim and implied through her using her hands to push the appellant’s hand away.

12. The age of the victim is partly factored into the offence as an element, but the lesser the age gap between the victim’s age and the upper range of ages for the offence, the less serious the offending, on account of that consideration. Here the victim was aged 14, so the age of the victim fell towards the upper end of the age range for the offence.

13. Contrary to what he submitted in the conviction appeal, I found that the appellant asked the victim her age. In other words, he knew she was 14 and should be taken to have known that she was under age for sexual activity. I consider that this would elevate the culpability of the appellant.

14. In my view, the offending falls at the low end of the range of objective gravity for offending conduct for offences of this kind.

AGGRAVATING CIRCUMSTANCES

15. The circumstance that the offending conduct occurred in the victim’s home is an aggravating factor (s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act1999 (NSW) (the ‘CSP Act’)).

16. Further, the offending conduct occurred at a time when the appellant was on a bond. He had been sentenced to a section 10 bond for 2 years at the Wyong Local Court on 2 July 2018 (s 21A(2)(j) of the CSP Act). I note that the learned Magistrate did not identify this as a separate aggravating circumstance. I consider that this circumstance has some significance here since, in my view, the offender’s conduct was contributed to by his significant alcoholic consumption.

17. Further, in my view, given the closeness of the relationship between the victim and appellant – the latter was colloquially known as her ‘uncle’ – the offending also involved a breach of trust (s 21A(2)(k) of the CSP Act). In the family setting, in R v Hudson (unrep, 30/7/98, NSWCCA) at [2], Sully and Ireland JJ (Spigelman CJ agreeing) stated:

“children in a family situation are virtually helpless against sexual attack by the male parent and … children have a right to be protected from sexual molestation within the family and … this can only be achieved by the courts imposing sentences of a salutary nature.”

HARM TO VICTIM

18. Harm to the victim is an express sentencing consideration under s 3A of the CSP Act. For offending of this kind, harm to the victim may be assumed: R v Tuala [2015] NSWCCA 8 at [56]. But the harm is psychological. There was no evidence of physical harm. I have regard to the trauma of sexual abuse on children as understood at this time (s 25AA(3) of the CSP Act).

19. A victim impact statement was placed before the Magistrate from the victim. She expressed her hurt, anger and periodical anxiety which she suffers and observed that she has to be more careful with whom she can trust and love.

SUBJECTIVE CIRCUMSTANCES

20. The appellant is 26 years of age.

21. A sentencing assessment report that was before the Magistrate (dated 17 January 2020) noted that the appellant was in a stable relationship with his partner and had a large support network. Indeed, he became recently married. He had, at the time of that report, commenced casual work as a cleaner.

22. Material placed before the Local Court suggests that the appellant finished schooling at Year 10. For three years, he had been employed, full-time as an Aboriginal and Heritage Officer. Until he was charged for the subject offence, he had been employed, through the Department of Education as an Aboriginal Liaison Officer for only 4 weeks.

23. The appellant reported experimenting with illicit substances whilst a teenager. He said that his consumption of alcohol was rare and social only. I note that at the time of the offending, which was one such social occasion, his consumption was significant. On the basis of that consumption, I am inclined to agree with the view of Ms Wallace, the psychologist, that behavioural disinhibition related to alcohol misuse played a part in the subject offending.

24. It appears that since his arrest for the subject offending, he has suffered depression and is receiving medication for this. There was no suggestion of any actual causal link between his depression and the offending conduct.

Antecedents

25. His only prior conviction was of a very different nature to the subject offending; being a low range PCA driving charge from July 2018.

Character

26. Before the Magistrate, there were several testimonial references. One was from Mr James Sedgwick, who is a security officer and community services worker. This referred to community service work that the appellant had performed, his trustworthiness and leadership. It also appears that the appellant had a close rapport with Mr Sedgwick’s children.

27. There were other references from persons within the indigenous community. I have had regard to them. One of those, Mr Victor Wright, was the Regional Aboriginal Project Officer for Corrective Services NSW. Mr Wright has known of the appellant for 20 years. He noted that the appellant had played a mentoring role to many people in Aboriginal communities, especially Aboriginal children and youth.

28. It is apparent that in the sentencing remarks, the learned Magistrate did place some significance on the appellant’s good character evidenced by these references.

29. Although it is unnecessary to identify error since the sentencing discretion is to be exercised afresh, such reliance was, with respect, erroneous. Evidence of his good character or the absence of convictions for prior offences of this nature are not to be taken into account where the said good character assisted the appellant to commit the offence (s 21A(5A), read with s 21A(6)(b), of the CSP Act). I agree with the Crown’s submission that the appellant’s good character did assist him to commit the offending conduct in a not insubstantial way, with the result that the prior good character should not be treated as a mitigating factor. The legal representative for the appellant did not contend to the contrary.

Insight

30. The corrections officer indicated that in his report, and consistent with his position at both the summary trial and in the conviction appeal, the appellant showed no insight into his offending; but, rather, he focussed on the impact of charges upon himself and its impact on his own family relationships. He did, however, indicate his willingness to undertake intervention.

31. I have noted the contributing role that alcohol may have played. In view of the appellant’s disregard for that factor, I consider that it is likely that he has no full insight in the effect alcohol can have on him.

Prospects of re-offending

32. He was assessed by the Community Corrections Officer as being at a Medium-Low risk level of re-offending. He was assessed as being suitable to undertake community service work. It was thought that he should be referred to a psychologist for further risk assessment and treatment, but no other conditions, other than supervision, were required. An assessment performed by the Department of Corrective Services similarly identified him as being at an ‘Average’ risk range relative to other male offenders.

33. On the basis of the material before the Court, I would assess his prospect of re-offending as being low. Nevertheless, the Court is concerned about the absence of insight he has shown, as well as lack of remorse to the victim; which matters do not point to leniency.

INSTINCTIVE SYNTHESIS

34. The nature of this appeal is such that the sentencing discretion is exercised afresh.

35. I first have regard to the maximum penalty as a legislative guidepost. Plainly, the offence is very serious in nature. I am also mindful of the need to sentence the appellant in accordance with sentencing patterns and practices at this time; not at the time of the offending; although in this context, that makes little difference (s 25AA(1) of the CSP Act).

36. Secondly, I have regard to the list of factors set out in s 3A of the CSP Act. Most pertinent, in my view, is general deterrence, giving vent to retribution and denunciation and recognising the harm done to the victim. The content of the victim impact statement reflects this victim’s bewilderment as to what happened, which is common to this type of offending and helps explain the length of the maximum penalty. But retribution and denunciation are somewhat tempered in view of the appellant’s circumstances. I am troubled by the absence of insight which I have identified, so there is also a role for subjective deterrence here. I do not underrate the importance of facilitating the appellant’s rehabilitation.

37. In the Local Court, the Crown conceded that the s 5 threshold was not crossed. Indeed, other than pointing out two of the aggravating circumstances (excluding the circumstance that the offending conduct occurred whilst he was on bail [3] ), the Crown generally adopted the submissions of the appellant’s counsel.

    3. Counsel for the appellant acknowledged during the sentencing hearing that the appellant was in breach of the bond for the low range PCA offence.

38. My views essentially coincide with those of the learned Magistrate. The s 5 threshold is not crossed, in view of the low objective gravity of the offending conduct and the appellant’s relatively strong subjective case, involving, as it does, no relevant antecedents. I consider that a community corrections order is an appropriate sentencing option.

39. The remarks of the sentencing Magistrate were placed before the Court. I have read them, although of course, my sentencing discretion is to be exercised afresh; and particularly having regard to the material circumstance that I am dealing with one offence; not two.

40. The legal practitioner for the appellant appearing before me on this severity appeal acknowledged that the sentences imposed by the Magistrate were concurrent. The appellant’s position in this appeal was narrow, and amounted to a submission that the sentence imposed should be varied. It was simply that the hours for community service should be varied. Ms McKensey submitted that although the appellant did not seek to disturb the characterisation (which counsel for the appellant had pressed upon the Magistrate) that this was a single episode occurring over a short time, the circumstance that there was now only one offence (and not two) means that there was less offending conduct to be considered overall; and less criminality. Therefore, the sentence should be reduced.

41. I share the Magistrate’s view that concerns about the appellant’s lack of insight and the need for subjective deterrence can be addressed through the extent of supervision and conditions to the order.

42. The only question in my mind is whether the term of the order may be varied to take into account the circumstance that the appellant, following his conviction appeal, committed only the one offence.

43. In my view, it should not. The Magistrate acceded to submissions by the appellant’s counsel, with the Crown’s acquiescence, to order that the sentences to be fully served concurrently and was persuaded that the offending which had been the subject of the two charges in the Local Court should be regarded as amounting to a single episode occurring over a short period of time.

44. I accept that there is some logical force to the appellant’s contention about less offending. Nevertheless, it is plainly apparent that the learned Magistrate imposed separate sentences in respect to the two offences which, happened to coincide. The circumstance that one of the convictions has been set aside does not, of itself, indicate that the sentence imposed in respect to the offence which survives should be reduced.

45. I see no reason to disagree with that characterisation that this was essentially a single episode, occurring over a short period of time, notwithstanding that the appellant is now to be re-sentenced on the basis of one offence; and not two.

46. Further, in my opinion and whilst, again, emphasising that it is unnecessary for me to identify error in the Magistrate’s remarks, it does appear that the sentence which was imposed may have been based upon reasoning which was arguably erroneous and, in a way, was effectively favourable to the appellant. I refer here to the circumstance of not treating the breach of the bond as an aggravating circumstance and placing weight upon the appellant’s prior good character.

47. Nor do I see any reason for altering the conditions attached to the community corrections order.

48. I propose only to vary the term of the community corrections order to reflect the circumstance that, on 4 June 2020, after the conviction in respect to this charge was upheld, the appellant sought and obtained leave to bring this severity appeal; thereby serving to stay the sentence imposed by the Magistrate[4] for a period of 21 days.

    4. Crimes (Appeal and Review) Act 2001 (NSW), s 63(2)(a).

ORDERS

49. The sentence of the Magistrate dated 21 January 2020 is varied so that the community corrections order commencing on 21 January 2020 expires on 10 February 2022. The severity appeal is otherwise dismissed.

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Endnotes

Amendments

26 June 2020 - Correction of minor typo.

Decision last updated: 26 June 2020