R v As

Case •

[2024] NSWDC 54

•

07 March 2024

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v AS [2024] NSWDC 54
Hearing dates: 27 February 2024
Date of orders: 7 March 2024
Decision date: 07 March 2024
Jurisdiction:Criminal
Before: Priestley SC DCJ
Decision:

See [50-51]

Catchwords:

CRIME — Child sex offences — Intentional incite child >=10&<16 do sex act to them

CRIME — Child sex offences — Aggravated - sexual intercourse child >=10 & <14 yrs

CRIME — Child sex offences — Intentionally sexually touch child >=10yrs & < 16yrs

CRIME — Child sex offences — Groom child under 14 years for unlawful sexual activity

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Muldrock v R (2011) 244 CLR 120

Texts Cited:

NA

Category:Sentence
Parties: Rex (The Crown)
AS (The Offender)
Representation: Counsel:
Hanna for the Crown
Cusack for the Offender
File Number(s): 2022/00014932

JUDGMENT

Introduction

  1. On 27 February 2024 AS appeared for sentence in respect of six offences. In respect of one of them, count 6 on the indictment the offender pleaded guilty and in respect of counts 1 to 5 was on 31 October 2023 found guilty by a jury following a trial.

  2. The offences committed were as follows:

  1. Counts 1, 2 and 3 on the indictment were offences of aggravated sexual intercourse with a child between the ages of 10 and 14; section 66C(2) of the Crimes Act which has a maximum penalty of 20 years and a standard non-parole period of nine years.

  2. Sexual touching of a child between 10 and 16; section 66DB(a) of the Crimes Act with a maximum penalty of 10 years and no standard non-parole period.

  3. Attempted grooming of a child under 14; section 66EB(3) of the Crimes Act with a maximum penalty of 12 years and a standard non-parole period of five years.

  4. Incite a child between 10 and 16 to carry out a sexual act towards a person; section 66DD(b) with a maximum penalty of two years and no standard non-parole period.

  1. There were no matters on a Form 1 to take into account nor were there any matters to consider by way of a section 166 certificate. The offender was not on conditional liberty at the time of the offending. The offending occurred in the course of 2021.

  2. In relation to the maximum sentences and where applicable the standard non-parole period, those matters are taken into account as legislative guideposts, indicating the legislature’s view of the seriousness of the offences so as to assist in arriving at the appropriate sentence. In relation to the standard non-parole period I note that in Muldrock (2011) 244 CLR 120 at [29] the High Court made clear that it has application even when the offending is not considered to be in the middle of the range of seriousness as that term is used in section 54A of the Crimes (Sentencing Procedure) Act (“CSPA”). The standard non-parole period is an indication of the legislative view of the seriousness of the offence.

The facts and objective seriousness

  1. The offender was born on 27 May 1944. The offending occurred most likely in the course of 2021, so the year in which he turned 77. The offender is the grandfather of the victim who was born on 4 June 2009 and so was 11 or 12 at the time of the offending.

  2. The parties have helpfully set out in their written submissions the facts they each contended must have been accepted by the jury to make out the offences. There is little difference between them. One point of difference is that the Crown asked the court to accept that the offending occurred against a broader background of sexual dealings by the offender which I take to mean inappropriate sexual behaviour by him towards the victim. Precisely what sexual dealings are referred to is not identified in the submissions of the Crown, apart from that there were other occasions where conduct of the type proven occurred. In my view it suffices for the purpose of the sentence to accept that this offending was not an aberration but was a course of conduct, something which is clear from the number of offences in the period of time over which it occurred.

  3. Counts 1 and 2:   Counts 1 and 2 occurred on the same occasion. That occasion was in January or March 2021. The offender asked the victim to show him her private part and they both went into the offender’s bedroom. The victim lay on his bed and her pants were pulled down to her shins. The offender knelt next to the bed. He first licked her vagina which is count 1 and then put his finger in her vagina which is count 2. The cunnilingus and the digital penetration each lasted for about one minute. The victim told the offender to stop a number of times and he ceased his conduct. I accept that he then offered the victim an ice block and that she watched television.

  4. The Crown submits that counts 1 and 2 are in the mid range of objective seriousness. The basis for that submission is not detailed. The accused in oral submissions said that the nature of the offences make them below the mid range; the point was made that there were no threats though there was the reward of an ice block.

  5. Apart from the inherent assault of any offence of this type there is about counts 1 and 2 a distinct lack of aggression, violence or force. The offences occur over a short period of time. The offender stopped because the victim told him to. In terms of the actual physical aspects of this offending there is little involved beyond what is necessary to make out the elements of the charge. The vulnerability of the victim by reason her age is also something that is an element of the charge. In my view this offending does not meet the middle range and I would assess it as being in the high low range or below the mid range. I would add to that assessment however that it is aggravated by the gross breach of trust of a grandfather towards his granddaughter. That is a feature of all of the offending.

  6. Count 3: similar to the occasion of counts 1 and 2 the victim went into the offender’s bedroom at his request. She laid down at the end of the bed. The offender asked the victim to pull her pants down. The victim said she did not want to and the offender said it would be just for a minute and the victim said fine. The offender placed a purple object referred to as a “mini Dick” inside her vagina. The victim asked the offender to stop and he said he would. The victim again asked him to stop and he did after about 20 seconds. The offender said words to the effect of “don’t tell Mum otherwise will never see each other again”. The evidence suggests this offence occurred in the period between Christmas 2020 and June 2021.

  7. Just what this “mini Dick” was is a matter of inference. There was in evidence and exhibit of a sex toy found at the premises and which was said to not be the “mini Dick”. The impression gained was that the “mini Dick” was smaller than the exhibit. As to what the evidence was as to the size of the mini Dick the closest the evidence comes at T250 in re-examination when the complainant was referred to evidence she gave of the purple thing (the mini dick) coming from a little box which she then described by holding up her hands as being 10 cm high and 20 cm wide. That is hardly a guide to what is the size of whatever it is within that box. Plainly it could be anything up to those dimensions.

  8. The parties’ submissions as to objective seriousness were effectively the same as they had been for counts 1 and 2, and in large part my assessment is also the same and for the same reasons. The offending is markedly similar, extending to the way in which the offending ceases namely belatedly at the request of the victim. The obvious point of distinction is the use of the purple object for the purpose of penetration of the victim's vagina. That object was not in evidence. Just how large the object was is unclear. Just what it was is also unclear though the suggestion is that it was a dildo or vibrator perhaps. In my view the use of that object adds to the seriousness of the offending. I would assess this as being of the same objective seriousness as counts 1 and 2, that is in the high low range or below the mid range but more serious.

  9. Count 4: this is an offence of intentionally sexually touching the victim. The Crown case was that the victim asked for an ice block on a hot day. The accused agreed but on the condition she showed him her breasts. She said that was gross and asked why. The allegation is the victim said she would tell her mother if he did not give her a reason and he said he wanted to because he liked it and offered her a $10 note and said he would keep it a secret. They then, consistent with the early accounts, went into the offender’s bedroom and the complainant laid down on the bed. At the offender's direction she lifted her shirt up exposing her breasts. He knelt down next to her, again similar to the earlier occasions, and touched and kissed her breasts for about one or two minutes.

  10. The offender’s submissions set out some of the evidence relating to this matter which included her evidence that she cannot remember what happened though when it was suggested that she showed her breasts she agreed she did. The jury plainly accepted that. I find that the offending did occur in the manner just set out.

  11. Consistent with the jury verdict I find as a fact that the victim asked for an ice block and the offender agreed to that on the condition that the offending occur, and that he gave the victim a ten dollar note so that she would not tell her mother. They then went to the bedroom.

  12. The Crown submits that this offending is about the mid range. The offender accepts it was serious due to the nature of it being skin on skin. As a matter of sexual touching this is a serious example predominantly because of the contact being skin on skin and being touching of the victims breasts and that the touching extends beyond touching with his hands to kissing the breasts. There is also the manipulation involved in maintaining the victims silence. Against that is that it does not appear to have extended for a significant period of time but only one or two minutes and there was again the absence of any overt violence beyond that inherent in the nature of the assault itself. It again does seem that perhaps belatedly the offender stopped after having been asked to stop. I would assess this as being at about the mid range of objective seriousness.

  13. Count 5: this count is a charge of providing a child with any financial or other material benefit for the purpose of making it easier to procure the child for unlawful sexual activity, or put simply, grooming. The circumstances were the accused asked the victim if he could put his thing inside of her and he said “I’ll give you a five dollar note”. The victim said no. The offender’s submissions set out what is some confusing evidence about this account. Nevertheless, in light of the jury’s verdict despite any confusion it has been accepted that there was the offer of the financial reward of five dollars to procure sexual activity.

  14. The Crown accepts that this is below the mid range. That is an appropriate concession. The exchange appears to have been brief, the grooming behaviour was rejected though of course it is very alarming that what is being proposed is sexual intercourse. I would assess this as being in the low range.

  15. Count 6: this is the offence to which the offender pleaded guilty. It is also the only offence which occurred in the home of the victim, with each of the other offences occurring in the home of the offender. This occurred on 15 September 2021. The offender was visiting the victim’s home and the victim complained of having pain when urinating. The victim went to her bedroom and the offender followed her. The offender sat on the victim’s bed and said “show me where it hurts”. The victim stood up in front of the accused and pulled her skirt and underwear down. The offender stared at the victim’s vagina and was only a few centimetres from her at that time. The victim’s mother, the daughter of the offender, walked in and said words to the effect of what is going on and get out. The relevant sexual act being performed towards the offender must be the exposure of her vagina.

  16. Neither party made any submissions either in writing or orally as to the objective seriousness of this offence. It is considered to be the far least serious of the offending if the maximum penalty is used as a guide. It does not involve any physical contact. It is not a far remove from the type of conduct that might be engaged in if somebody was attending to a child for medical reasons which is what in effect the offender was arguing. That is not to suggest the conduct lacked criminal intent, but it does give an indication of the minor nature of the offending. There would be a very good argument if this was being viewed in isolation that in the offending would not cross the section 5 threshold. However ultimately the sentence will reflect the fact that it was the endpoint of what had been a course of offending over the approximate previous 9 to 10 months. Suffice for present purposes is to say this offending is very much towards the low end of the range of objective seriousness.

  17. I accept the submission for the Crown that it is relevant that all of this offending occurs either in the home of the offender or the victim. Given their relationship there is an expectation that a young grandchild can expect to feel safe and protected when visiting her grandparent. Section 21A recognises expressly the aggravating feature of when it is the home of the victim. I have taken into account in assessing objective seriousness where the offending occurred. I consider the nature of the breach of trust to be a more subjective than objective factor and take it into account in aggravating each of the offences.

Subjective case

  1. Whilst the offender gets no benefit for any guilty plea for counts 1 to 5, he is entitled to a 25% discount in respect of counts 6 to which he pleaded guilty.

  2. The offender has in effect no criminal history with his record showing one PCA offence in 1973 for which he was fined $100 and disqualified for one month.

  3. The offender relies on a psychologist’s report dated 6 February 2024 of Sarah Campbell. The history given is of a pro social life prior to this offending. He was raised on a farm in New Zealand. At the age of 15 his parents separated and he remained with his mother. Subsequent to that he moved out of home after arguing with his mother and completed a five year apprenticeship. After that he emigrated to Australia. He had different work roles and ultimately started his own business. He was married at 38 and has three daughters. They moved from Sydney to Ballina when the children were young. At about age 50 he separated from his wife. He met his second wife in his early 60s. That marriage to came to an end but she continues to assist him to this day. A major plank in the offenders case in mitigation is his current state of health and the second wife has been admirable in the way that she has sought to give him assistance in what must be very difficult times for her.

  4. The offender had a stroke in 2014. He needed to regain confidence walking and talking. His sex drive diminished and there was erectile dysfunction. He described this as a matter of age. He became less active generally. In 2020 he was diagnosed with prostate cancer.

  5. When talking about the offences he claims the victim asked him about sex and he spoke to her in terms of sex education. In a reference to count 6 he says he followed her to her room to ask about her abdominal pain and where it was saying that he had appendicitis when he was 14. He said he pushed on her stomach to see whether the pain was in the area of the appendix. He said he could not remember if she pulled down her underpants and said who would leave the door open and muck around. The curiosity here is that the one offence spoken of which he continues to deny is the one offence that he pleaded guilty to though there seems to have been some legal considerations in that regard.

  6. He denied having mental health issues prior to being charged for these offences. Just prior to the verdict being delivered he took 22 Panadol in an attempt at self-harm. Subsequently he made enquiries with the dying with dignity organisation. It is said that he attempted carbon monoxide poisoning using his motor vehicle which was prevented by police attending. The Christmas that has passed between the verdict and sentence was lonely with his three daughters no longer dealing with him. He described bail as being like a bird or fish in a cage. He fears for his safety in custody. He says he has been suffering in continence and also struggles to simply get up due to problems with his knees. He denied any present intent to suicide but said if he goes to jail he would do so.

  7. He was assessed as a very low risk category for reoffending on the risk of sexual violence test. That was the static 99R. On the sexual violence risk-20 version 2 test he was placed in the low to moderate risk of sexual recidivism.

  8. The psychologist at paragraph 34 suggests that Mr Stone has a lowered emotional intelligence based on the environment in which he grew up. The report suggests this led to short-term relationships and prioritising sports and male friendships. It is said he found it difficult to navigate the emotional demands of parenting and marriage and gives an example of being rule-bound when his daughter was smoking cannabis in the context of suffering childhood sexual assault.

  9. Next it is said that his erectile dysfunction and reduced sex drive impacted on his sense of masculinity as did his inability to participate in sport. This is said to have led to the breakdown of his marriage which I note occurred when he was in his 70s which suggests the connection with sport might be somewhat distant. It is then said that it is likely he took the opportunity to gain some sense of sexual gratification and power when he was alone and unsupervised with the victim. The report writer states “it is possible that he justified this by relying on existing cognitive distortions that permitted the objectification of women for his own sexual gratification”. It is suggested the victim was used as a safe surrogate sexual partner due to his inability to sustain his marriage due to his age and erectile dysfunction and other health-related concerns. Par 36 concludes “paying sexual partners money as part of the relationship agreement was also normalised in the dynamic with the second wife”; just what the factual basis for that statement is is not identified.

  10. There were no submissions challenging this report. It seems to me that a number of its assertions are questionable though what does seem to be a sensible explanation of what occurs here is the passage identified in italics above.

  11. Paragraph 44 makes some helpful observations as to the consequences of custody. One is that given his low risk status it is unlikely he will be considered suitable for participation in programs relating to sexual offending. The second is the concern of his suicide risk. It notes the offender has very few protective factors, has minimal hope for the future, is socially isolated, in pain, and has a condition that is likely to deteriorate further. These factors combined will make it difficult to manage him in a custody setting.

  12. As the psychologist report suggests the major plank as already noted in the case in mitigation is the medical condition of the offender. A range of medical documentation is relied on to support this including the following:

  1. Report of 18 February 2022 from his GP listing his then current problems to include type II diabetes, glaucoma, gout, angina, sleep apnoea, kidney disease and notes a resection of the prostate.

  2. A letter dated 15 February 2023 from an oncologist Dr Bull confirming treatment for localised prostate cancer. The offender is too unfit for surgery and is receiving androgen deprivation therapy which adds to erectile dysfunction and inhibited libido.

  1. An undated aged care support plan but which has a footer suggesting it was created on 11 July 2023 which was the date of the assessment. It notes the various conditions noted above. It notes he has an unrestricted drivers licence and is able to do shopping and that he is former wife helps him with gardening and housework. It is obvious that his condition has deteriorated since then.

  2. The balance of the material are hospital notes. The first notes his admission on 31 October 2023 which was the day of verdict when he took the Panadol pills. He was discharged home the next day. The notes say he was feeling very anxious when told he may be going to prison which is hardly surprising.

  3. A note that was created or printed on 3 January 2024 records that the police attended the offenders house to find him in the garage in the car with the car running.

  4. Also on that date is a note from the mental health unit which notes that his admission to that unit will not change his risk profile. Consistent with what he told Ms Campbell he had no plan to suicide unless he was sentenced to jail.

  5. A further note of print date 3 January 2024 is general notes as opposed to mental health notes. It records the offender expressing suicidal thoughts and plans. It notes his fear of going back to jail.

  6. A further note printed on 3 January 2024 is a further mental health note. This relates to an admission on 20 December 2023 it records that he had on that day delivered presents to his grandchildren in Tweed Heads and then carried out research on dying with dignity. It notes he wishes to appeal the court decision though whether this is a reference to his conviction or yet to be announced sentence is not clear. The impression stated is of fleeting suicidal thoughts perhaps prompted by the unsuccessful attempt to reach out to his daughter (the presents were left at the doorstep).

Consideration

  1. The points made by the offender in mitigation were that the offending does not occur over a lengthy period of time. A table set out at the end of these reasons seeks to briefly summarise each some relevant aspects of each of the offences. As that table indicates the earliest offending would appear to have been no earlier than December 2020 and the last in September 2021. It is an ongoing course of conduct that does not have the benefit of being considered an aberration. Whilst it does not occur over a period of years it was a harrowing nine months for the child.

  2. It is said the offending occurred in the context of a sex education discussion. Even accepting that to be so that would appear simply to add to the breach of trust. That is, an innocent child curious as to sexual matters is then taken advantage of.

  3. It is also said he has difficulty accepting his guilt as he did not get any sexual gratification and there was no penetration in the sense of penile / vaginal intercourse. A Facebook message in evidence in the trial is relied upon where the offender stated that there was no penetration (exhibit H, photograph 6). That he cannot understand that sexual intercourse may have a meaning under the Crimes Act beyond penile / vaginal intercourse is hardly mitigatory of the fact that he has been found to have performed cunnilingus on his granddaughter, inserted his fingers into her vagina and inserted an object into her vagina. The background of the offender up until this offending shows him to be a person sexually aware and I infer very much aware of the varying types of sexual conduct. The suggestion that somehow his offending is mitigated by his own view of intercourse meaning penile / vaginal intercourse in my view has no substance. I accept the submission of the Crown that the idea he did not know his conduct was wrong should be rejected.

  4. The case is in my view a plain one albeit tragic. The offender is a man who has led an active life, has contributed to the community and raised a family. Some leniency will be extended as a result. With age and health he declined and sex was no longer available to him. The victim I find, accepting the view of Ms Campbell was used as “a safe surrogate sexual partner”.

  5. I accept the medical case being put for the offender. That is custody will be very difficult for him. The Crown accepted that the ability to provide optimum care is less in the custody system then it would be if he was in the community. Not only does he require medical treatment by way of medication and equipment to assist him to be comfortable in simple tasks such as sitting and standing but he also requires dental treatment which may not now be available to him despite the appointment being booked for this month and he requires monitoring of his diabetes and cholesterol levels. I accept the medical attention he will receive for this will be less in custody than if he was in the community. There is also the concern of his mental health namely his depression which is clearly related to these proceedings and his expressed intention to commit suicide should he have to go back to jail.

  6. I accept that the offender is a low risk of reoffending. Consideration of his prospects of rehabilitation seem somewhat moot; he is unlikely to reoffend due to his impending incarceration, the minimal likelihood of being in a position where the opportunity to offend may arise should he rejoin the community and his by then physical ability and mobility. But not only is it his inability to reoffend but he has also been assessed as a low risk of reoffending under the various tests administered.

  7. He has expressed no remorse and seems to maintain his innocence even in respect of the matters to which he pleaded guilty. There no evidence of any insight or appreciation of the damage that he has caused to his granddaughter.

  8. There was no argument against the result of this case being a term of imprisonment on a full-time basis. The question is what is the appropriate length of that sentence.

  9. The purposes of sentencing are set out in section 3A of the CSPA and are as follows:

  1. To ensure the offender is adequately punished.

  2. To prevent crime by deterring the offender and others from committing similar offences.

  3. To protect the community from the offender.

  4. To promote the rehabilitation of the offender.

  5. To make the offender accountable for his actions.

  6. To denounce the conduct of the offender.

  7. To recognise the harm done to the victim of the crime and the community.

  1. In this case the emphasis should be on the purpose of denouncing the conduct of the offender. The offender needs to be made accountable. There is a great need for general deterrence in matters of this type. In this case there is less need for specific deterrence given the low risk of reoffending but the lack of insight of the offender is a concern. It is also appropriate to recognise the harm done to the victim. As to rehabilitation as already noted there does not seem to be a great need for it but certainly the sentence should be structured so that there is some prospect for the offender to rejoin the community and hopefully with some insight then gained into his wrongdoing.

  2. There should be a finding of special circumstances. This is because this will be the offenders first time in custody at the age of 79. Further his age and medical condition both physical and mental means that custody will be a trying ordeal for him and far worse than for a person in better health. Additionally the offender is now but for the support of his second wife effectively cast adrift. He will need some additional support when he rejoins the community.

  3. It is agreed that the start date of the sentence should be backdated to 25 December 2023. This has been calculated by taking into account the various periods in custody served by the offender and backdating it from the date of the sentencing hearing at which time he was in custody and has remained there.

Determination

  1. The sentence will be an aggregate term. It is therefore necessary to indicate the indicative sentences and in respect of the standard non-parole period matters and indicative non-parole period. Those indicative sentences are as follows:

  1. Count 1: 4 years and indicative 2 years non parole.

  2. Count 2: 4 years and indicative 2 years non parole.

  3. Count 3: 4 ½ years and indicative 2 years 3 months non parole.

  4. Count 4: 2 years.

  5. Count 5: 1 ½ years and indicative 9 months non parole.

  6. Count 6: 4 months, and 3 months after the 25% discount for his plea.

  1. Without detracting from the range of subjective and objective matters discussed above, the essence of this case is the countervailing features of the seriousness of the offending and the offenders lack of insight on the one hand, and on the other the age and health of the offender. As his counsel grimly stated, the likelihood is the offender will die in gaol. The sentence must be humane, and yet at the same time proportional to the objective seriousness of the criminality of the various offences.

  2. The conclusion reached is that the offender be sentenced to an aggregate term of imprisonment of 8 years, with a non parole period of 4 years, to date from 25 December 2023.

  3. The indicative non parole periods differ from the standard non parole periods for the reasons that founded the finding of special circumstances, and because the offending was assessed as being objectively below the middle of the range of seriousness as that term is used in s54A of the CSPA.

Orders

  1. The offender is convicted of counts 1 - 6 on the indictment.

  2. The offender is sentenced to an aggregate term of imprisonment with a non parole period of 4 years to date from 25 December 2023, and with a balance of term of 4 years, expiring on 24 December 2031. The offender’s earliest eligible date for parole is 24 December 2027.

Table

No.

Sec

Max

SNPP

Date

Facts

Obj ser

Ind

1

66C(2)

20y

9y

1/21 or 3/21

Cunnilingus

High low

4y / 2y npp

2

66C(2)

20y

9y

1/21 or 3/21

Digital penetration

High low

4y / 2y npp

3

66C(2)

20y

9y

12/20 - 6/21

Penetration by object

High low +

4y / 2y 3m npp

4

66DB(a)

10y

n/a

4/21

Touching and kissing breasts

Mid

2y

5

66EB(3)

12y

5y

5/21

Offer of $5 for sex

Low

1 ½ y

6

66DD(b)

2y

n/a

15/9/21

Victim incited to show vagina

Low

4m, & 3m after 25% disc

[+ re count 3 indicates it is assessed as more serious than counts 1 and 2]

**********

Decision last updated: 13 March 2024

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Du Randt v R [2008] NSWCCA 121