R v AH

Case •

[2019] NSWDC 39

•

01 March 2019

No judgment structure available for this case.

District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v AH [2019] NSWDC 39
Hearing dates: 07 February 2019
Date of orders: 01 March 2019
Decision date: 01 March 2019
Jurisdiction:Criminal
Before: Hatzistergos DCJ
Decision:

See [103] – [104]

Catchwords:

SENTENCING – Child sexual assault – abuse of trust – step father and step daughter – injection of drugs

 

SENTENCING – Assistance to authorities – Question of whether Ellis discount should be applied – limited utility of admission

  SENTENCING – Subjective considerations on sentence – first time offender – remorse established – reasonable prospects of rehabilitation – special circumstances found
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1900 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No1 of 2002) (2002) 56 NSWLR 146; 137 A Crim R 180; [2002] NSWCCA 518
McDowall v R [2019] NSWCCA 29
Panetta v R [2016] NSWCCA 85
R v ABS [2005] NSWCCA 255
R v Cheikh; R v Hoete [2004] NSWCCA 448
R v Kennedy [2000] NSWCCA 527
R v Stambolis (2006) 160 A Crim R 510; [2006] NSWCCA 56
Tazelaar v R [2009] NSWCCA 119
Texts Cited: N/A
Category:Sentence
Parties: Regine (Crown)
AH (Offender)
Representation:

Counsel:
Mr D G Pullinger

    Solicitors:
Office of the Director of Public Prosecutions
File Number(s): 2017/50250
Publication restriction: Section 578A Crimes Act 1900 (NSW) and section 15A of the Children (Criminal Proceedings) Act 1987 (NSW) apply

REMARKS ON SENTENCE

  1. The Offender AH has pleaded guilty to 7 offences being:

  1. Aggravated sexual intercourse with a child between 14 and 16 contrary to s 66C(4) of the Crimes Act 1900 (NSW). [1] This offence carries a maximum penalty of 12 years imprisonment with a standard non-parole of 5 years imprisonment.

    1. Hereinafter the 1900 Act.

  2. Aggravated indecent assault contrary to section 61M(2) of the 1900 Act. This offence carries a maximum penalty of 10 years imprisonment with a standard non parole period of 8 years imprisonment.

  3. Sexual intercourse with a child between 16 and 18 under special care contrary to section 73(1) of the 1900 Act. This offence carries a maximum penalty of 8 years imprisonment.

  4. Supply a prohibited drug contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). This offence carries a maximum penalty of 2000 penalty units and/or 15 years imprisonment.

  5. Sexual intercourse with a child between 16 and 18 under special care contrary to section 73(1) of the 1900 Act. This offence carries a maximum penalty of 8 years imprisonment.

  6. Supply a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). This offence carries a maximum penalty of 2000 penalty units and/or 15 years imprisonment.

  7. Sexual intercourse with a child between 16 and 18 under special care contrary to section 73(1) of the 1900 Act. This offence carries a maximum penalty of 8 years imprisonment.

  1. In sentencing the Offender in respect of Count 1, I have been requested to take into account pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the ‘1999 Act’) four offences on a Form 1 being:

  1. Three offences of groom child for unlawful sexual activity contrary to s 66EB(3) of the 1900 Act (Sequences 3, 4 and 5). Each offence carries a maximum penalty of 10 years imprisonment with a standard non-parole of 5 years imprisonment when dealt with on indictment.

  2. One offence of aggravated indecent assault contrary to s 61M(2) of the 1900 Act (Sequence 6). This offence carries a maximum penalty of 10 years imprisonment with a standard non-parole period of 8 years imprisonment when dealt with on indictment.

FACTS

  1. According to the agreed facts the background to the offending was as follows.

  2. The victim, C, was born in September 2000. The Offender is her step-father. The Offender and C’s mother were married in September 2005. Together the Offender and the C’s mother have had four other children.

  3. From 2013 the Offender worked at Sylvandale as a mentor to Offenders who had been released from Corrective Services.

  4. One day in late July 2016 when C was aged 15 years, the Offender picked up her up from school in his car. C was confused as to why he picked her up and why they were alone in the car. The Offender drove her to a car park near Hoxton Park High School and parked the vehicle. The Offender told C he needed to talk.

  5. Whilst talking to C, the Offender produced a glass pipe and some white rocks. C observed the Offender place the white rocks into the glass pipe and use a lighter to melt them. C believed the Offender was smoking drugs from the glass pipe. However, she did not know the nature of the drug.

  6. C thought it was wrong of the Offender to smoke drugs in front of her, although she also thought it looked cool. The Offender gave her a cigarette and asked her to hold it. She put it in her mouth so it appeared she was smoking. C and the Offender spoke about a number of things. C felt she could trust the Offender more than she could have in the past after this conversation.

Sequence 3 – Groom child for unlawful sexual activity (provide child with intoxicating substance) contrary to s 66EB(3) Crimes Act 1900 (NSW) (to appear on a Form 1 attached to Count 1)

  1. Not long after the abovementioned incident, C and the Offender went to the Orange Grove Road shops. The Offender drove into the underground car park. C and the Offender were talking. The Offender removed a glass pipe and a small bag of white crystals and started to prepare them ready for smoking. The Offender heated up the white crystals until they melted. C knew the white crystals were methylamphetamine (ice). The Offender started to smoke the ice from the pipe.

  2. C thought it was cool and the Offender offered some to C saying, “Do you want to smoke some?” C responded, “Yeah.” The Offender held the pipe and heated the crystals whilst C smoked from the glass pipe. C had a couple of puffs before it took full effect on her.

  3. The Offender kept on saying, “Did you get a good hit?” C stated that at first she did not feel anything, but after a while she recalled, “I started moving to every sound, it was weird to me, I could hear everything. I remember the phone went off and I reacted straight away, it scared me how quick I reacted”.

  4. The Offender and C spoke about smoking ice. He told her, “This is stage one, there are three stages, drugs, money and sex”. He called this, “The underground”.

  5. C recalled:

“I would not ask for drugs from my dad, I would wait for him to bring them to me. After a while I became more comfortable talking to my dad about having meth, I could ask him for it and he would give it to me, I would smoke in the garage at home with my dad, I promised him I would never do it with anyone else, or we would go to a park up somewhere and smoke meth. My dad also gave me weed a couple of times but I didn’t really like that. I was getting a lot more comfortable and open with my dad than ever before. I would smoke weed and meth at the same time.”

  1. In early August 2016, when C was still aged 15 years, the Offender took her to the DFO car park at Homebush. The Offender parked his vehicle on the second floor. C and the Offender spoke about, “the underground”. He asked her whether she wanted to keep up with it. C responded that she did. During this conversation he asked her to play with herself and to make herself “come”. C did not feel comfortable and refused to. They left and went to another car park where the Offender smoked ice. C recalled that the Offender kept on saying sorry and saying that he should have known it was wrong. C told him, “It’s ok”. C felt guilty and the Offender said, “I just need someone to trust me”. While driving the Offender asked, “Do you want to try and keep building?” C said yes. She believed he was talking about building their relationship.

Sequence 4 (groom child for unlawful sexual activity (provide child with intoxicating substance) contrary to s 66EB(3) of the Crimes Act 1900 (NSW))(to appear on Form 1 attached to Count 1)

  1. When the Offender and C arrived home, the C’s mother and siblings were not home. The Offender gave C the glass pipe with ice in it. The Offender was holding the pipe and heating the drugs with a lighter C smoked from it (sequence 4).

Sequence 5 (groom child for unlawful sexual activity (expose child to indecent material) contrary to s 66EB(3) Crimes Act 1900 (NSW))(to appear on Form 1 attached to Count 1)

  1. Afterwards, the Offender handed C his iPhone and told her to select porn for them to watch. C felt uncomfortable, but did what she was asked. (sequence 5)

Sequence 6 (aggravated indecent assault contrary to s 61M(2) of the Crimes Act 1900 (NSW) (to appear on a Form 1 attached to Count 1)

  1. C was holding the phone and started to touch herself on the vagina on top of her clothing. The Offender was touching himself on top of his clothing. The Offender asked, “Can I touch you?” and had his hand on C’s breast. C said yes and they started kissing. The Offender touched her on the vagina whilst they were kissing. C unzipped her pants and they started ‘grinding’ by simulating sexual intercourse (sequence 6).

Count 1 – Aggravated sexual intercourse with child aged between 14 and 16 contrary to s 66C(4) of the Crimes Act 1900 (NSW)

  1. The Offender then asked, “Can I eat you?” to which C agreed. The Offender used his tongue on C’s vagina, causing her to orgasm (count 1). They got up and C went to kiss the Offender, but C’s mother and children returned.

  2. The Offender rushed into the ensuite bathroom and C jumped under the blankets like nothing that occurred. Later C went with the Offender to drop off her brother at church and attend the shops. The Offender said to her, “Now I have someone to trust”.

  3. The next day the Offender and C were in the car together, when the Offender asked, “Do you trust me now?” C replied, “I do trust you.” The Offender said “Play with me.” C did not wish to touch the Offender, saying “we are out in the open” as an excuse not to.

Count 2 – Aggravated Indecent Assault contrary to s 61M(2) Crimes Act 1900 (NSW)

  1. C observed that, that night the Offender was beating himself up… punching the wall and kept “putting himself down”. He slept in the room with C and her little sister.

  2. The Offender was asleep on the floor. Knowing that her sister was asleep, C went and laid next to the Offender. They did not speak but started to, “play softly with each other, like soft grinding”. They started to take their clothes off. They were both naked. C was on top of the Offender and was grinding on top of him. There was no penetration.

  3. The Offender’s penis was hard. He said to C, “I feel your trust now”. This was said to have made C and the Offender happy. They then heard a noise and stopped as C said “not now”.

  4. C stopped going to school as frequently. She began missing school as the Offender would ask her to. The Offender told her that he could not stand being at home with her mother. C thereafter frequently stopped going to school at the beginning of Term 3 in 2016, and did not attend at all in Term 4.

  5. C began using ice every day from August 2016. She would use ice for two days in a row on the Offender’s advice. After two days she would begin feeling sick and the Offender would stop giving her ice. She would become angry the first day after stopping using ice, and then on the second day she would eat and sleep.

  6. When she used ice, C felt sexually aroused and she and the Offender would kiss and grind with each other. They would engage in mutual oral sex. This occurred between August and December 2016.

  7. C’s uncles stayed at the family home for a period, and the Offender started to stay in the garage with them. After that C’s mother would stay in the garage. C became annoyed at this as she would have to look after her younger brother. As a result, C started sleeping in the garage with the Offender. By December 2016, she was sleeping in the garage every night.

Count 3 – Sexual intercourse with a child between 16 and 18 under special care contrary to s 73(1) Crimes Act 1900 (NSW)

  1. In December 2016 and on a day prior to Christmas, C was asleep in the garage with the Offender. She was now aged 16 years. They woke up and began to kiss and grind with each other. They then took their clothes off. The Offender asked, “Can I slide it in?” C was hesitant but said yes.

  2. The Offender spat on his penis and C’s vagina before inserting his penis into her vagina. They had sexual intercourse. The Offender removed his penis and ejaculated. This was the first time C had sexual intercourse with any person and it hurt her. The Offender did not wear a condom as C wanted to show him that she trusted him.

  3. After these incidents, the Offender and C would continue to engage in sexual acts with each other. On occasions they would have sexual intercourse. Either the Offender or C would request it. Sometimes C did not want to have intercourse and the Offender would become frustrated. C stated that the Offender would then go to her mother and her mother would stay in the garage with him.

  4. C and the Offender had sexual intercourse regularly. The Offender was the only person C had intercourse with. They would also smoke ice regularly.

  5. In early 2017, C told the Offender that she loved him. He said he loved her too.

Count 4 – Supply a prohibited drug contrary to s 25(1) of the Drugs (Misuse and Trafficking) Act 1985 (NSW)

Count 5 – Sexual Intercourse with a child between 16 and 18 under special care contrary to s 73(1) of the Crimes Act 1900 (NSW)

  1. In January 2017, C was at home in the garage with the Offender. He was preparing ice in a syringe. C recalled seeing it measured at 10 units. The Offender asked C if she wanted some and she agreed. The Offender injected C with ice.

  2. C told police she, “Got a rush” and felt scared and that her ears and eyes were ringing. The Offender told her, “Relax so you don’t get an anxiety attack”. The Offender then injected himself with ice.

  3. The Offender and C began to play with each other and had sexual intercourse, with the Offender placing his penis in C’s vagina. He did not wear a condom. C described the “come down” from her use of ice that day as particularly bad. She was scared to inject it and started smoking it from a pipe again. However, she did not get the same effect as injecting it.

  4. On another day C asked the Offender to inject ice, and he injected her himself. From that time onwards they would only inject ice when using it. It progressed from the Offender injecting C with 10 units, to 25 and then to 30 units.

Count 6 – Supply a prohibited drug contrary to s 25(1) of the Drugs (Misuse and Trafficking) Act 1985 (NSW)

Count 7 – Sexual intercourse with child between 16 and 18 under special care contrary to s 73(1) of the Crimes Act 1900 (NSW)

  1. The last occasion the Offender had sexual intercourse with C was in February 2017 when they stayed at the Ibis Hotel. The Offender booked a room with his credit card. They stayed in room 311, having stayed there on previous occasions. Records from the Ibis Hotel show the Offender reserved and paid for a standard room there from 3 to 4 January 2017 and 13 to 14 February 2017.

  2. On the occasion in February, they went to the room where the Offender mixed up ice and injected it into the C’s right arm. He then injected himself. They then had sexual intercourse, with the Offender inserting his penis into the C’s vagina. C told the Offender to stop as the Offender was getting paranoid. The Offender believed C was “Ganging up on him” with her mother. C told him she would not betray him like that.

  3. They stayed at the hotel until 4am and then went home. The Offender became more paranoid and he thought people were climbing on the roof and walking around the house. C heard her mother tell the Offender to stay away from C and not to trust her.

The Offender’s Arrest

  1. On 16 February 2017, the Offender told his brother what had happened between him and C. The brother drove the Offender to Green Valley Police Station that evening, where he spoke to a Sergeant Goddard.

  2. Sergeant Goddard approached the Offender and asked him “Are you okay?” to which the Offender replied, “Not really, I need to talk to you”. Sergeant Goddard asked, “What about?” and the Offender said, “I’ve stuffed up my family”.

  3. Sergeant Goddard took the Offender into a room and cautioned him. She asked, “So what do you want to tell me? You said you have stuffed your family up. What do you mean by that?” The Offender replied, “I want to confess. I love my daughter.”

  4. Sergeant Goddard then asked, “What do you mean?” The Offender went quiet and looked down at the ground. He became emotional and could not speak. After giving him a few moments, Sergeant Goddard asked the Offender, “Did you have sex with your daughter?” to which he replied, “Yes, I stuffed it all up.”

  5. The Offender was then arrested and taken into custody where he declined to participate in an interview on the basis of being affected by drugs.

Post Charge Gaol Calls

  1. After being charged, the Offender was refused bail and detained at Silverwater gaol, where his telephone calls to persons outside the gaol were monitored. In a number of those calls, he admitted his offending against C to various persons. For example, during a call to his brother on 10 March 2017, the following conversation took place:

Brother:    You know, you, you didn’t know what you were doing. You were lot of, you were under a lot of pressure, and it’d been going on for a while… you know what I mean

Offender:    Yeah, but still, man, Foi, it’s hard, eh, like….

Brother:    …listen to what I’m saying, dude

Offender:    Yeah

Brother:    You still committed a crime

Offender:    I know, yeah

  1. In another call on the same day, this time with a person known as “Mele”, the following conversation took place:

Offender:    …it’s stupid of you to stay with me

Mele:       Why?

Offender:    Babe, man, I feel terrible. I feel…

Mele:       I…

Offender:    …gutless

Mele:       I understand that, that…

Offender:    That’ wrong. It was still me, though, you know. And I’m not going to let the drugs justify my actions, man. It was still me at the end of the day. And that hurts, you know, it hurts me every day in here

ASSESSMENT

  1. In assessing objective seriousness I have taken into account the fact that the sexual offending was not solely for sexual gratification but rather misplaced emotional investment. To the extent that it was the result of self-induced intoxication, this is not a mitigating factor. What cannot be overlooked is that this was a deliberate and conscious course of offending which progressively escalated. Counts 1 and 2 involved the offender being in a position of authority. Counts 3, 5 and 7 involved C being under the special care of the Offender. As such these offence are not otherwise aggravated under s 21A (2)(k) of the 1999 Act (NSW).

Count 1

  1. Count 1 involved cunnilingus. The precise length is not described but resulted in C coming to orgasm. C was 15 years of age at the time and the Offender was aged 31; being an age difference of 16 years. It was not an isolated act in that it was preceded by various grooming acts and the indecent assault described in the Form 1 matters. The offence itself embraces the occurrence of the offence when C was under the authority of the Offender. The position of authority was that of stepfather. It was not advanced on behalf of the Crown that the offence was aggravated under s 21A(eb) of the 1999 Act by reason of having been committed in C’s home. Nevertheless this is part of the background of the offending. No actual force was used and the conduct was consensual. No submission was advanced that the consensual character of the offending mitigated its seriousness. Nevertheless it was a serious instance of sexual assault on a young person that discontinued only when the Offender’s wife and other children returned.

  1. Both parties accept and I am satisfied that the objective features of this offence brought it within the mid-range of seriousness.

Count 2

  1. Count 2 occurred at night on the same day as Count 1. As such it was not an isolated instance having followed the earlier described behaviour. It occurred in a bedroom in the house where C and her sister were sleeping, and where the Offender went to sleep on the floor. There is no suggestion that the other sibling witnessed anything. C laid next to the Offender on the floor knowing that her sister was asleep. In assessing its seriousness, I bear in mind the character of the assault including the degree of physical contact involved. Both the Offender and C were described softly playing before removing clothing with C grinding on top of the Offender with the Offender’s penis being hard. The duration of the incident was not described but it was not fleeting and ceased only after C heard a noise and told the Offender, “not now”.

  2. The agreed facts record that there was skin on skin touching against each other. C was aged 15, being just under the age of 16 years. The Offender was aged 31 years. At the time of the grinding, the Offender told C that he could trust her now. The offence itself embraces the occurrence of the offence when C was under the authority of the Offender. The position of authority was that of stepfather. Although the offence occurred in C’s home, no submission was advanced that it aggravated under s 21A (2)(eb) of the 1999 Act.

  3. Both parties accepted that the objective features of the offending brought it within the mid-range of seriousness and I am satisfied accordingly.

  4. Counts 3 to 7 carry no standard non parole and it is unnecessary to determine where the objective features of the offence sit in relation the mid-range of seriousness. Nevertheless an assessment of the seriousness is required by reference to the facts, matters and circumstances bearing upon the sentence to be imposed. [2]

    2. McDowall v R [2019] NSWCCA 29 at [18].

Count 3

  1. Count 3 involved penile vaginal intercourse in circumstances where C had just turned 16 years of age. It took place in December 2016 when C was asleep in the garage with the Offender. The Offender was around 32 at the time. The duration was not described but it was not fleeting and ultimately caused the Offender to ejaculate after removal of the penis. I accept that the Offender did not ejaculate inside C. The Offender did not wear a condom as C wanted to show the Offender that she trusted him.

  2. The intercourse occurred after the two had been kissing and grinding. It was the first occasion C had vaginal intercourse although it occurred in the context of the activity that preceded it. The agreed facts disclose that it hurt C, although the evidence was that it was consensual after it had been proposed by the Offender. There is no evidence of untoward force being used. There is no evidence that the intercourse was preceded with use of drugs. The special care that the Offender had in relation to C was that of stepfather. No submission was advanced that the offence was mitigated to the extent that C consented.

Counts 4 and 5

  1. Count 4 and 5 occurred in the months following Count 3. Count 4 involved the supply of 10 units of ice administered into C preceding penile vaginal sexual intercourse. It occurred in circumstances where C had been introduced to the drug by the Offender in August the previous year. The supply was not for money but preceded intercourse. On the agreed facts it was the first occasion that the drug was injected. It was plainly not an isolated incident of supply and the offending is not to be mitigated on such a basis. Nevertheless it was a single instance of supply for immediate consumption. In this sense the quantity of the drug supplied relative to the quantity potentially embraced by the section would be at the lower end.

  2. Count 4 is part of the context in which Count 5 occurred. Following being injected, C was scared and her ears and eyes were ringing. She was told to relax so she didn’t get an anxiety attack and the Offender then injected himself with ice. Both then played with each other. The Offender did not wear a condom for the intercourse but the agreed facts do not indicate that he ejaculated. The duration of the intercourse was not otherwise described. At the time the C was aged 16 years and the Offender was aged 32 years. C was under the Offender’s special care in that he was his stepfather. It occurred in the garage. It was not suggested that any consent of C mitigated the Offending.

Counts 6 and 7

  1. Count 6 followed an increase of the use of ice by injection, and again involved the Offender injecting C with methamphetamine into C’s arm. At the time the agreed facts record that the Offender had progressed injecting C from 10 units to 25 and then to 30 units. Nevertheless the agreed facts not record the precise quantity supplied, although I am satisfied was still a single instance supply for immediate consumption. As such the quantity fell towards the lower end of the quantity envisaged by the section. Nevertheless the Offender is not to be sentenced on the basis of it being an isolated instance of supply. The injection on this occasion occurred in February 2017 at the Ibis Hotel. It was not the first occasion that the two had stayed there and the supply of drugs preceded the sexual intercourse in count 7.

  2. Count 7 involved penile vaginal intercourse. The duration of the intercourse was not described although C told the Offender to stop after observing him getting paranoid it is not suggested that he did not so. There is no evidence of ejaculation.

  3. Count 7 was the last time the Offender had sexual intercourse with C. At this time, she was 16 years old and the Offender was aged 32. The special care that the Offender had in relation to C was that of stepfather.

Form 1 Matters

  1. In sentencing the Offender in respect of Count 1, I take into account the matters on the Form 1 pursuant to s 33 of the 1999 Act and give greater weight to personal deterrence and retribution to the extent required. [3]

Subjective Case

3. Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No1 of 2002) (2002) 56 NSWLR 146; 137 A Crim R 180; [2002] NSWCCA 518.

Family Background

  1. The Offender was born in New Zealand. He is the second of three children that are born to his parents. The Offender stated to a psychologist, Ms Kerry Watson in a report dated 29 January 2019, [4] that he has “a good relationship” with his parents and his siblings, all of whom have reportedly provided him with unwavering support in regards to the current matter.

    4. Exhibit 1.

  2. The Offender’s biological parents separated when he was aged four, after which he remained in the primary care of his mother and enjoyed contact with his father. The Offender’s mother remarried when he was aged seven and he enjoyed a “good” relationship with his stepfather. The Offender denied that he was subjected to any type of abuse during his developmental years.

Education/Employment

  1. The Offender completed year 11 at age 17. There is no indication of any learning or behavioural problems. He commenced working at aged 16 on a part-time basis whilst still at school with his stepfather’s upholstery business and in a cleaning position. Upon leaving school, the Offender was employed in the security industry for some two years. When aged 19 he relocated to the USA where he was employed in the construction industry for some two years prior to returning to New Zealand and resuming his employment in security for some 12 months. Following his relocation to Australia in 2009 (age 25) he was employed in the security industry some 5 to 6 years. He commenced working at Sylvandale as a support worker/mental whilst simultaneously completing a certificate three in community services. He was suspended from his employment position 2016 pending an investigation regarding his unauthorised use of a company vehicle. He was subsequently arrested prior to the outcome of the investigation.

Marital Relationship

  1. The Offender told Ms Watson that he married his current wife aged 19 following a courtship of some 12 months. The Offender assumed the role of stepfather to 2 children born to his wife’s previous relationship. The marital union has produced four children as I have earlier described. The Offender described his marriage as historically tumultuous at times, resulting in brief separation. However, the Offender described his relationship with his wife as vastly improved and that it is “very good” of late. He stated that his wife has provided him with unwavering support since his arrest.

Alcohol and Drug Use

  1. The Offender told Ms Watson that he commenced smoking marijuana at age 11, the frequency which progressed from occasional to daily within some two years. The Offender outlined a historical pattern of daily marijuana use thereafter to date, with intermittent periods of absence lasting no longer than 2 to 3 months. He stated that he commenced using speed and cocaine in 2009 on “most weekends” for some 5 to 6 years whilst working in the security industry. He reported that he commenced using ice in 2014 on an “occasional basis initially” and progressively increased in frequency throughout the following two years to a daily dependency by early 2016. In 2016, the Offender’s consumption of ice had progressed from smoking to injecting the drug, which continued without remission up until his arrest.

  2. The Offender’s historical account to Ms Watson was of the progressive development of features of depression from 2009 following his relocation to Australia, to which he primarily attributes to his then deteriorating marital relationship for which he “felt like the only way I could numb it with drugs.” The Offender’s subsequent and frequent use of amphetamines whilst simultaneously consuming marijuana throughout the following 5 to 6 years was described as a cause and effect of his worsening mental health state. The Offender’s historical account is described as indicative of a particular dramatic decline in mental health following on the onset of his use of methamphetamines. The Offender’s account of the period from the onset of his ice use until his arrest was said to be illustrative of a rapid mood cycling between depressive episodes and agitation; delusional thought processes particularly delusions about “shadow people” and “people always walking on the roof”; “very very paranoid” thought processes “people always after me” and grandiose beliefs that he was an “accomplished song writer and gangster.”

Previous Offending and Previous Good Character

  1. Ms Watson in her report explains evidence of a previous non-sexual violence conviction in New Zealand. [5] There is no detail of what this relates to and the Crown accepted that the Offender could be regarded as having no record of previous convictions for the purposes of s 21A(3)(e) of the 1999 Act. [6]

    5. Exhibit 1 p 4.

    6. Crown written submissions at [20].

  2. Prior to the offending in question, the Offender could be accepted to have been of good character. [7] This is evidenced not only by his offending history but by various testimonials tendered on his behalf by family and other acquaintances from his church. [8]

    7. Crown written submissions at [22].

    8. Exhibits 5, 6, 7 and 8.

  3. Nevertheless I accept the Crown submission that the nature and course of the offending is such that it diminished the mitigating impact of these matters to the point that they should be afforded limited weight. [9]

    9. R v Kennedy [2000] NSWCCA 527 at [21] and R v ABS [2005] NSWCCA 255 at [25].

Assistance

  1. The Offender sought what was described as a “significant discount” for his assistance in attending to Police at Green Valley on 16 February 2017 in order to speak to Sergeant Goddard.

  2. The Offender there told Sergeant Goddard “I’ve stuffed up my family” and after cautioning, “I want to confess. I love my daughter.” Following being asked, “Did you have sex with your daughter?” he replied, “Yes, I stuffed it all up.” The Offender declined to participate in an interview on the basis of being affected by drugs.

  3. In Panetta v R, [10] Adams J with whom Ward JA agreed (as to reasons upholding the appeal), stated:

[50] The very logic that accepts that sentences should be set to deter crime, by parity of reasoning, is set to deter persons who have committed crimes from voluntarily coming forward and admitting to them. The circumstances, of course, vary enormously. In some cases, the Offender will already be a suspect and may think that by coming forward their likely or inevitable conviction and sentence can be significantly discounted. Where, however, the crime itself is not suspected and unlikely in the extreme to be detected, different considerations arise. The only motivation in such a case, as here, appears to be the attempt to assuage serious feelings of guilt ...

10. Panetta v R [2016] NSWCCA 85.

  1. I accept that this was unknown guilt at the time was capable of coming within the scope of s 23 of the 1999 Act. Its significance lay in the fact that it enabled police to pursue enquiries resulting in a statement being obtained from C.

  2. In itself however, the admission had limited utility. I cannot be satisfied that it was done in circumstances where the offending was unlikely to be detected. The agreed facts record that in February 2017, just prior to attending on police, the Offender felt that the Cand her mother were ganging up on him. Despite C telling the Offender that she would not betray him, the agreed facts record that C overheard her mother tell the Offender to stay away from C and not to trust her. C at the time had an escalating addiction to ice. The Offender’s encounters with C moved from the family home to the Ibis Hotel. The Offender’s statement to Sergeant Goddard was limited in its content to identifying the fact of some of the offending and that it concerned one of his daughters. There is nothing in that assistance which raises issues within the terms of s 23(f), (g) and (h).

  3. Overall I would not give a separate discount for assistance. However, I accept that the Offender’s actions are to be taken into account in terms of his remorse and prospects of rehabilitation.

Plea of Guilty

  1. The plea of guilty was entered on the first day of trial, following negotiations which saw four counts taken from the indictment and placed on a Form 1.

  2. The Crown submitted that in these circumstances a plea discount of 10% should be allowed. The Defence submitted that a figure of 15% would be more appropriate.

  3. In my view, a figure of 15% is appropriate. [11]

    11. R v Stambolis (2006) 160 A Crim R 510; [2006] NSWCCA 56; Tazelaar v R [2009] NSWCCA 119; R v Cheikh [2004] NSWCCA 448.

Remorse

  1. The Offender did not give oral evidence but did provide a letter to the Court which was addressed to C, and admitted without objection as Exhibit 2. In it, he states:

“I am writing to you because I am feeling anxious and worried how I have treated you. I am worried about you and concerned about what I put you through. When I look back and think of the person I was, it shakes the very walls of my heart and soul knowing that [a] very dark daemon creature had a place in our home. Now that my mind is clear and free from drugs, remembering is a very painful process. Remembering is torture and if that’s how I’m feeling, I can only imagine what your tender heart is going through.

I hope we can both overcome this temporary painful experience and move on with our lives. I am very sorry for my actions, decision and misuse of power. Every night before I sleep I remember different parts of what had happened and it still burns me. I have learnt a lot from my mistake and it has awakened me to the consequences of breaking the law. I want to apologise for my misguidance and irresponsible behaviour.

I know I am fully responsible for what happened. I should not have overstepped the boundary of fatherhood and lead you astray. I know I am accountable for my actions and the choices I have made. I am starting to realise some of what I have put you through. It must have been scary and confusing. I betrayed you as a mentor and father figure and went against a fathers biggest moral and treated you with the utmost disrespect. I love you darling and wish we can rebuild and reconstruct our relationship and wish to be all together as a family again. I hope that if you cannot forgive me for me, then do it for you so you can move forward in life.”

  1. A further letter was submitted to the Court and tendered as exhibit 3 without objection. In it, the Offender states:

“… I am 34 years of age and currently remanded in custody for up to two years now. I am currently married and still receive my wife’s full support. We have been married for up to 15 years now. I have always been the bread winner for my family of seven and have managed to stay out of trouble up until these offences.

Please accept my sincerest apologies for my actions which I have been charged. There is no excuse for my behaviour and wish to convey to your Honour and the court my sincere regret for all my actions.

That specific time period your Honour I was going through a rough patch with my wife. I was working double shifts and studying for Certificate IV in Community Services. I started smoking Meth just to help stay awake whilst studying, working and maintaining family responsibilities. Eventually I progressed onto injecting 3 to 4 times daily, stood down from work and thrown out of class and now sitting in a jail writing this letter.

Every night before I go to sleep I feel like the Lord is punishing me by replaying certain painful events in my head like a PowerPoint presentation over and over so I don’t dare to touch that daemon drug ever again. I vow with all my heart that I will not set foot in this courtroom against and I will abstain from drug use and will never ever put my children though this painful experience again.

I have been working closely with Drugs & Alcohol transition worker, Stephanie Wong, from changing lives reducing crimes. Together we have maintained a complete abstinence from drugs and will continue to work closely with her to help stay off drugs and hopefully help others along the way.

There is no excuse for what I have done and nor am I taking the situation lightly. I come from a close knit family of 5. From a young age I have been taught to always abide by the law and maintain a respectable place in the community. I am a very religious man and have developed a closer relationship with our Lord whilst in prison. I am extremely ashamed and remorseful about my actions. I can understand that it may be difficult for the court to accept my apology but I hope that this letter might give me an opportunity to help prove my remorse and to offer some amends.

I would like to apologise to NSW Police Force for wasting their time and the courts time for having to deal with me. I have learnt a lot from my mistake and it has really awakened me to the consequences of breaking the law. I have not only disappointed and embarrassed myself but also my family and friends. This event in my life has shown me that I could jeopardise my whole career and future over a stupid act such as this. I can assure the Court that I’ve learnt many lessons from this experience and that I will not allow this to repeat itself again in the future.”

  1. The Court has also received a statement from the Offender’s wife, in which she records that the Offender has spoken to her about a willingness to do whatever course the Court suggests to make sure that he never touches a drug again. [12] The Offender’s brother also provided a statement in which he records that the Offender has experienced deep remorse in making such a serious mistake. [13]

    12. Exhibit 5.

    13. Exhibit 6.

  2. Ms Watson, in her report stated: [14]

“[The Offender] expressed prominent feelings of guilt, regret, and self-condemnation relating to his criminal conduct. [The Offender] described feeling “constantly ashamed of myself” and he accurately recognised that his offending conduct “was a terrible breach of everyone’s trust, but especially my step daughter’s”. [The Offender] consistently accepted responsibility for his criminal conduct without excuse or justification and he repeatedly expressed remorse. [The Offender] accurately identified that his conduct caused the victim considerable emotional and psychological distress and trauma.”

14. Exhibit 1.

  1. In conclusion, Ms Watson stated:

[The Offender] has clearly recognised the magnitude and seriousness of his offending conduct. He is evidently experiencing a damaged self-concept and feelings of guilt accompanied by self-condemnation in regards to his offending conduct. His feelings of shame [are] apparent, as is his acknowledgement of responsibility and wrongdoings, and his recognition that his offending conduct has caused substantial emotional and psychological turmoil to the victim. [15]

15. Exhibit 1 at p 8.

  1. The Offender, whilst in custody, has sought support from the Community Restorative Centre (‘CRC’) and the Court has before it a report dated 21 January 2019 from Stephanie Wong, AOD Transition Worker. [16] Ms Wong records:

“He informs he turned himself in to police as the shame of what had occurred was too much. Whenever we discussed anything around Mr Halaholo’s offences he appeared to have a shame reaction and claims he hates the person that he was when using.” [17]

16. Exhibit 4.

17. Exhibit 4.

  1. The Crown submitted that in all of the circumstances, the Offender’s letter does not appear to grasp the long-lasting effects that these offences will have on C. Further, the Crown stated that the letter provided to the Court and the letter addressed to C have not been tested and should be afforded little weight. I do not accept this submission in circumstances where the Crown neither objected to the tender of the correspondence, nor sought for the correspondence to be tendered on the basis of the Offender being cross examined.

  2. The evidence does show some insight into the offending conduct. The Offender also attended Green Valley Police Station on 10 March 2017 and stated voluntarily that he “stuffed it all up”. He further acknowledged his shame in the phone calls he participated while in custody. Pleas of guilty were ultimately entered albeit following negotiations. I accept the Offender sought to minimise the impact of his offending through his description of it as “this temporary painful experience” and attribution to his associated drug use.

  3. On the balance of probabilities, I am nevertheless satisfied overall that he is remorseful.

Prospects of Rehabilitation

  1. Ms Wong’s report states that the Offender reached out for support to the CRC as he recognised that if he was to remain abstinent in the community he would need support. It records that the Offender tried to stop using substances once in the past, and thought he would be able to do so on his own, but had a relapse after 3 years being sober. Ms Wong records that throughout the counselling sessions, the Offender appeared to have insight into his using behaviours and why he turned to substances since a young age. Ms Wong further reported that whenever the offences were discussed, the Offender appeared to have a shame reaction and claimed that he hated the person that he was when using. Ultimately, Ms Wong records that:

[The Offender] appeared to have insight into some areas where he would be less at risk of using and potentially re-offending, such as staying away from people and situations that could trigger him. He appeared to realise that running away was not a good option and facing his issues and learning to deal with them would be a better way to learn to deal with difficult emotions, therefore be able to say no to using substances. [The Offender] appears to be trying to practise the emotion regulation strategies he has learnt, and practising being able to say no to substances whilst in custody. He informs he struggled when he was moved to a different correctional centre as there were substances all around him, but when he came back to a centre where he can maintain a better daily routine, he was able to get back on track to remaining abstinent.

[The Offender] has stated a willingness to continue engagement with AOD services when he is back in the community. A referral to DAMEC (Drug and Alcohol Multicultural Education Centre) was completed in February 2018 and [the Offender] was introduced to the AOD counsellor there for both cultural and AOD support. They have met [the Offender] on several occasions and he has remained on their waitlist awaiting the outcome of court. I believe with continued support [the Offender] will continue to make positive changes in his life.

  1. The Crown accepts that the Offender has endeavoured to address his offending behaviour, which speaks highly of his rehabilitation. In the report of Ms Watson, [18] it was recorded that the Offender accurately identified he would require ongoing support to address his propensity to abuse illicit drugs. It notes that he voluntarily engaged with the Transitional Alcohol and Other Drugs Program that is provided by the Community Restorative Centre and that he has undertaken 22 counselling sessions to address his AOD issues and expresses an ongoing commitment to continue his engagement with AOD services when he is back in the community. In these circumstances, Ms Watson concludes that the Offender has good prospects of rehabilitation provided that he engages in appropriate Mental Health treatment and AOD support. Ms Watson specifically recommends:

  1. Participation in custody based treatment programs for sex Offenders

  2. Ongoing engagement with the Community Restorative Centre pre and post release to provide the Offender with regulation psychological intervention and counselling to address his psychological symptomatology

  3. Regulation participation in support groups such as the Twelve Step Narcotics Anonymous (NA) upon his release

    18. Exhibit 1.

  1. I acknowledge that the Offender has strong family and community support for his rehabilitation.

  2. Overall I would accept that the Offender has good prospects in this regard.

Likelihood of Re-offending

  1. The report of Ms Watson describes that an examination of the static and dynamic factors typically associated with sexual re-offending is indicative that the Offender’s risk of recidivism is low. This was based on the STATIC-99R and the SONAR (Sex Offender Need Assessment Rating) instrument. The Crown submitted that the Court would be guarded finding that the Offender is in the low risk category for recidivism. It noted that the Offender wished to move back to the family where his children are presently aged 13, 12, 9 and 2. It submitted that the Offender had not been in the community free from drugs since the offences and would need continued support in the community to ensure that he didn’t offend. Further the Crown submitted that the offences occurred over a period of 7 months when the Offender was able to maintain employment and raise his family during a period of drug use. Overall the Crown submitted that whilst drugs played a part in the offences, the Offender’s sexual gratification was another motivation.

  2. The Offender had been living with C for most of her life. Whilst it can be accepted that he has some affection for her, the issue is whether in relation to her or others he would reoffend in a similar way. The Offending in this case coincided with his escalating use of methamphetamines, following on from the deterioration of his relationship with his wife and other work and study commitments. The Offender has good insight and deep remorse and it is the first circumstance that he offended in this way. The rehabilitation he is committed to undertaking relates not just to his drug issues but also to sexual offending. I bear in mind that the sexual offending involved one single victim in a familial situation. Were the Offender to successfully maintain his commitment and completes the programmes referred to I would accept that the likelihood reoffending would be low. However as Ms Wong acknowledged in the history of the Offender he has previously relapsed in his drug use. At this time the likelihood is best assessed as low to medium overall.

SENTENCE

  1. Both parties accepted and I am satisfied that no penalty other than imprisonment was appropriate.

  2. As the Offender came into custody on 16 February 2017, it is appropriate to commence the sentence from that date.

  3. This will be the Offender’s first period of imprisonment. In light of this, his good prospects of rehabilitation and the need for an extended period on parole, I am satisfied that there should be a finding of special circumstances such that it is appropriate to vary the statutory ratio in s 44 of the 1999 Act.

  4. The Offender needs to be adequately punished, made accountable, his conduct denounced and the harm to the victim recognised. The sentence needs to provide for general deterrence and to the extent required specific deterrence of the Offender. The need for the community protection from the Offender is dependent on him satisfactorily addressing his offending issues on a sustained basis. To that end I acknowledge that the sentence also needs to provide for his rehabilitation and to that end it will be for the State Parole Authority to assess his progress at the appropriate time.

  5. Counts 1 and 2 followed closely on each other. Counts 4 and 6 were drug offences that were part of the context of the sexual offending in Counts 5 and 7. I have taken this into account together with the overlapping features of the all offences whilst still acknowledging the individual acts involved for the purposes of totality, concurrency and accumulation.

  6. In sentencing the Offender I have taken into account as statutory guideposts the maximum penalty in each case as earlier described (being for a worst case), together with, where indicated, the relevant standard non-parole period.

  7. I propose to proceed by way of aggregate sentence under s 53A of the 1999 Act.

  8. The indicative sentences for each offence I would propose are as follows:

  1. Count 1 but for the plea of guilty and taking into account the Form 1 matters, I would indicate a term of 6 years imprisonment. In light of the plea I would indicate a term of 5 years and 1 month imprisonment, comprising a non-parole period of 3 years and an additional term of 2 years and 1 month.

  2. Count 2 but for the plea, I would have indicated a term of 3 years and six months imprisonment. In light of the plea, I would indicate at term of 2 years and 11 months imprisonment, comprising a non-parole period of 1 year and 9 months and an additional term of 1 year and 2 months.

  3. Count 3 but for the plea, I would have indicated a term of 3 years and 9 months imprisonment. In light of the plea I would indicate a sentence of 3 years and 2 months.

  4. Count 4 but for the plea, I would have indicated a term of 12 months. In light of the plea, I would indicate a sentence of 10 months imprisonment.

  5. Count 5 but for the plea, I would indicate a sentence of 4 years. In light of the plea, I would indicate a sentence of 3 years and 4 months.

  6. Count 6 but for the plea, I would indicate a sentence of 12 months. In light of the plea I would indicate a sentence of 10 months imprisonment.

  7. Count 7 but for the plea I would have indicated a sentence of 4 years imprisonment. In light of the plea, I would indicate a sentence of 3 years and 4 months imprisonment.

  1. The Offender is convicted. Taking into account the Form 1 matters in respect of Count 1 the Offender is sentenced to an aggregate term for all Counts of 8 years and four months imprisonment to date from 16 February 2017 to 15 June 2025.

  2. This is to comprise firstly of a non-parole term of 5 years to date from 16 February 2017, and to expire on 15 February 2022. Thereafter, the Offender is to serve an additional term of 3 years and four months imprisonment from 16 February 2022 to 15 June 2025 during which he shall be eligible to be released to parole.

  3. The Offender’s earliest release date is 15 February 2022.

Endnotes

Amendments

06 March 2019 - Typographical errors amended

Decision last updated: 06 March 2019

Cases Citing This Decision

0

Cases Cited

9

Statutory Material Cited

3

McDowall v R [2019] NSWCCA 29
Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518
R v Barrientos [1999] NSWCCA 1