R v AS

[2017] NSWDC 153

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v AS [2017] NSWDC 153
Hearing dates:	8 June 2017 and 15 June 2017
Date of orders:	15 June 2017
Decision date:	15 June 2017
Jurisdiction:	Criminal
Before:	Bright DCJ
Decision:	Sentenced to an aggregate term of imprisonment consisting of a non-parole period of 6 years and 6 months and a head sentence of 10 years.
Catchwords:	CRIMINAL LAW – Sentence – sexual intercourse with child under 16 years in circumstances of aggravation – aggravated indecent assault.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v Nelson (2016) NSWCCA 130 R v Hibberd [2009] NSWCCA 20 Cowling v R (2015) NSWCCA 213 R v Dent (unreported NSWCCA 14/3/91) Henderson v R [2016] NSWCCA 8 R v Palmer [2005] NSWCCA 349
Category:	Sentence
Parties:	The Crown AS
Representation:	Counsel: Mr J Peach – Crown Mr D Marr - Accused   Solicitors: Director of Public Prosecutions Legal Aid Commission
File Number(s):	2014/30738
Publication restriction:	There is to be no publication of the names of the complainants or any material which may tend to identify the complainants, this includes reference to the name of the offender.

Judgment

1. AS (DOB: March 1969, “the offender”) appeared for trial at the Newcastle District Court on 27 March 2017 in relation to 9 counts concerning 2 complainants NH and SH.

2. On 7 April 2017 he was found guilty of counts 1,2,4,5 and 6 and not guilty of counts 3, 7, 8 and 9. The counts in respect of which he was found guilty are as follows:

COUNT 1

Between the 31st day of March 2010 and the 8th day of May 2010, at Raymond Terrace in the State of New South Wales, did have sexual intercourse with NH without her consent and knowing that she was not consenting to the sexual intercourse, in circumstances of aggravation, namely, that at the time of the offence NH was a person aged under 16 years, namely, 13 years.

COUNT 2

Between the 31st day of March 2010 and the 8th day of May 2010 at Raymond Terrace in the State of New South Wales, did have sexual intercourse with NH without her consent, and knowing that she was not consenting to the sexual intercourse, in circumstances of aggravation, namely, that at the time of the offence NH was a person aged under 16 years, namely, 13 years.

COUNT 4

Between the 6th day of June 2011 and the 1st day of July 2012, at Raymond Terrace in the State of New South Wales, did assault SH and at the time of such assault did commit an act of indecency on SH, a child then under the age of 16 years, namely 13 or 14 years.

COUNT 5

Between the 6th day of June 2011 and 1st day of July 2012, at Raymond Terrace in the State of New South Wales, did assault SH and at the time of such assault did commit an act of indecency on SH, a child then under the age of 16 years, namely 13 or 14 years.

COUNT 6

Between the 6th day of June 2011 and 1st day of July 2012, at Raymond Terrace in the State of New South Wales, did assault SH and at the time of such assault did commit an act of indecency on SH, a child then under the age of 16 years, namely 13 or 14 years.

3. The maximum prescribed penalty for Counts 1 and 2 (aggravated sexual assault) is 20 years imprisonment. There is an applicable standard non-parole period of 10 years.

4. The maximum prescribed penalty for Counts 4, 5 and 6 (aggravated indecent assault) is 10 years imprisonment. There is an applicable standard non-parole period of 8 years.

5. The offender has been remanded in custody since the verdict on 7 April 2017. He had also spent 8 months and 21 days in custody at an earlier time.

6. It is agreed that the sentence should commence on 17 July 2016.

FACTS

7. As at 2010, the offender was 41 years old. He was in a relationship with TH. Their relationship had commenced in 2009. At the time of the commencement of their relationship, TH already had two children namely, KH born 19 February 1994 and SH born 15th July 1997.

8. The offender and TH lived together at XXXX known to the Court. SH and KH were living with their father in Victoria. They had two children together, twins, JS and CS born on 29th October 2011.

Counts 1 and 2   (complainant NH)

9. On 1 April 2010, NH (DOB: December 1996), came to stay at XXX, Raymond Terrace with the offender and TH. NH was 13 years old. At this time TH was pregnant with the twins. TH was really good friends with NH’s mother, VH-S. She offered to have NH stay at her house until such time as V could find appropriate accommodation for herself, her daughter and 3 foster children that she was caring for at that stage. NH had previously been living with her father.

10. NH remained living at the house for 5 or 6 weeks.

11. On one occasion whilst she as living with the offender she was sitting out the front of the house having a cigarette. The offender came outside and asked NH if he could have a cigarette. She said, “Yeah sure.”

12. The offender said, “But I have to go round the corner to have it because I can’t let TH see me smoke.” It was dark at this time.

13. The offender went with NH around the side of the house to a driveway area. NH then described that “he just got me to lay down” (Q&A 70, Exh A). She could not remember how that had happened. The offender then pulled her shorts and underwear to the side and digitally penetrated her vagina (Q&A 80-93,Ex A)(Count 1) . She said, “I was just laying back closing my eyes, just going like, what the fuck” (Q&A 98, Ex A). The offender also performed cunnilingus on the complainant (Q&A28-32, 96-112,Ex A)(Count 2). She was asked whether she said anything to the offender. She said, “Too scared, just too shocked, like, what is going on, like, I didn’t know what to do or what to say or anything, like, I don’t know.”

14. The complainant did not tell anyone about what had happened and she remained living with the offender and TH for several weeks.

15. Whilst she remained living with the offender he “always said he was going to have sex with me”. She told him, “Well, you’re not”. (Q&A138, Ex A). The offender also told her, “Your pussy tastes good” (Q&A179, Ex A). She was asked:

Q:   “How did all this make you feel?”

A:   “I don’t know, like, it was my fault, I guess.”

16. The complainant did not tell anyone about the incident until 2012 when she told her then boyfriend, JG, who encouraged her to tell her mother. After telling her mother the matter was eventually reported to police. NH was first interviewed by police on 23 January 2013.

Counts 4, 5 and 6   (Complainant SH)

17. In early 2011, SH was 13 years old and living with her father, AH, in Victoria. At the end of the first school term she decided to come back to New South Wales and live with her mother, the offender and her twin step-sisters. The family initially lived on a rural property before returning to live at XXX, Raymond Terrace.

18. Counts 4 – 6 occurred once the family had return to the xxxx address.

Count 4

19. On an occasion when the complainant was home with the offender, the offender tackled her and began to tickle her. During the incident, the offender’s right hand went up inside her shirt and rubbed her breast on the outside of her bra (Q&A 394-402,Ex C).

20. The complainant told him to stop (Q&A410, Ex C). She was 14 years old at the time (Q&A420). (NB. Indictment avers 13-14 years old, her DOB: 15/7/97).

Counts 5 and 6

21. On another occasion when the complainant was still living with the offender she was out in a back verandah room playing the Playstation. It was about 11.30pm (Q&A 338, Ex C).

22. She described the following:

“We were mucking around when I was playing the Playstation when he tug of warred it….And that was when, the first time that his hand went in between my legs and he, when his hand went up my shirt. And then he sat down and that’s when he had his legs open” (Q&A333, Ex C).

23. She described the offender tickling her and then his hand went underneath her singlet top. She was wearing a singlet top with her pyjama shirt over the top. The contact was skin to skin (Q&A220). She described that he touched her on her breasts for “probably about a minute or two, ‘cause I was pulling his hand away, because after that he put his hands down in between my legs”. (Q&A227, Ex C) She later clarified it was her right breast that had been touched (Q&A 238, Ex C).

24. She said that whilst this was happening the offender was laughing and she was trying to push him off and saying, “No, no, please don’t do that.” (Q&A241, EX C).

25. In relation to the offender placing his hand between her legs and on her vagina she described it as follows:

“He pushed his hand down and went up and touched me, and with his fingers he’d actually push on me down there and rub on me” (Q&A249, Ex C)

26. She described that the offender touched her vagina. The contact was not skin to skin but on the outside of her pyjamas (Q&A 250, Ex C).

27. She was 14 years old when this incident occurred (Q&A 280, Ex C)

28. The complainant did not disclose any of the inappropriate conduct until she told her grandmother around Australia Day in 2012, and her father AH in November 2012.

29. In January 2013 the relationship broke down between the offender and TH (for reasons other than the disclosure of the conduct alleged). Shortly thereafter the allegations made by SH were reported to police. She was interviewed on 23 January 2013.

30. The offender was arrested on 21 January 2014 in relation to the allegations made by NH. He participated in a record of interview and denied the allegations. He was subsequently charged with the allegations in relation to SH.

NOT GUILTY VERDICTS

31. Count 3 – The offender was found not guilty in relation to an allegation that he digitally penetrated the complainant NH on a second occasion when she was in his vehicle moving items of property to a new address. In my view, this not guilty verdict was explicable given that the accused’s mother gave evidence that she was also in the ute on that particular day.

32. Counts 7, 8 and 9 -The offender was found not guilty in relation to three allegations that on separate days he had rubbed the complainant SH’s buttocks outside her pants during a game of tickling (count 7), had rubbed his hand across her buttocks on an occasion when she went to check on her twin step sisters (count 8) and tried to force her legs open in the lounge room during a game of tackling (count 9). Unlike the counts on which the offender was convicted (4, 5 and 6) this conduct did not clearly give rise to a sexual connotation. The not guilty verdicts were explicable on the basis the jury were not satisfied beyond reasonable doubt that the conduct was accompanied by an intention to obtain sexual gratification.

VICTIM IMPACT STATEMENTS

33. The Crown tendered on sentence a victim impact statement prepared by each complainant (see EXH ‘A’ on sentence). Both complainants show a significant degree of maturity and insight in relation to the effects of the offending upon them.

34. NH outlined the difficulties she experienced in her teenage years as a result of the offending including the impact of the offending upon her emotional stability, abusing alcohol and drugs (her motivation being to “numb myself”), missing school and constantly feeling “down and depressed”.

35. She attended counselling in 2013 however described that

“I could never allow myself to open up because I had always felt like I was to blame and now I know I am not”.

36. She also described ongoing difficulties she experiences being around males and the efforts she has made to overcome the emotional impact of the offending.

37. SH outlined the extent of the impact that the offending has had upon her life. She described the impact as “severely distressing and profound”. She described how it has affected every aspect of her life and such effects are ongoing. The effects included self-harming, abuse of alcohol and prescription drugs, being diagnosed with both anxiety and depression, and difficulties with establishing relationships with others. She described that the ongoing effect in the following terms:

“Four years later and the impacts of the sexual assault still take up so much of my time and energy on a daily basis, there is not a day that goes by where what was done to me does not interfere or limit the life I lead in some way. Sexual assault has destroyed me in many ways, of who I was and of whom I am today. I have lost so much from this and most of those losses come straight down to who I was, my life has been set on a completely different path to the one I could have taken had I not been assaulted.”

38. It is wholly apparent that in relation to each complainant that one of the central issues they have struggled with throughout the years since the offending is their perception of the significant betrayal of trust by the offender. NH stated:

“When I first came to live with AS I was at a time in my life when I needed guidance and you took advantage of that and the trust a child has in adults and my mother’s trust. I can never believe in adults and see them the same way again.”

39. SH stated:

“I had put both my trust and faith within AS, in fact I saw him like a second father figure. Every day now is a battle and I struggle to remember what life was like when something like my safety can be taken for granted.”

40. Courts now well understand the significant effects upon victims of sexual offending. In R v Nelson (2016) NSWCCA 130 Basten JA stated as follows:

“Early sexual relationships with adults will often exploit and exacerbate a precarious sense of self-worth and self-respect in the victim, which may have lifelong consequences, including an inability to form stable partnerships in adulthood and possible self-destructive behaviour.”

41. One of the purposes for which a court imposes a sentence is to recognise the harm done to the victim of the crime (see s3A(g), Crimes (Sentencing Procedure) Act, 1999).

ASSESSMENT OF OBJECTIVE SERIOUSNESS

42. The facts that I have found consistent with the jury’s verdict disclose very serious objective criminality.

43. The courts have repeatedly emphasised the importance of general deterrence and the need for significant punishment when sentencing for offending against children.

44. This is particularly so when the offender is a person who is in a position of trust or authority in relation to the child.

Counts 1 and 2

45. Counts 1 and 2 have an applicable standard non parole period of 10 years.

46. The Crown and Mr Marr on behalf of the offender have submitted that the offending in relation to counts 1 and 2 is in the middle of the range of objective seriousness. I am of the same view for the following reasons:

47. The complainant was 13 years old;

48. There was a significant age disparity between the offender and the complainant. The offender was 41 years old at the time of the offending.

49. The type of intercourse in each case was digital penetration and cunnilingus. See generally R v Hibberd [2009] NSWCCA 20 in relation to the fact that the type of intercourse is not necessarily determinative of lesser objective criminality when dealing with conduct that is not penile/vaginal intercourse.

50. The duration of the offending noting the observations of Leeming JA in Cowling v R (2015) NSWCCA 213 that the short duration of a sexual assault “would not ordinarily be regarded as a factor which reduced its objective seriousness”;

51. There were subsequent humiliating and degrading comments made to the victim.

Counts 4, 5 and 6

52. Counts 4, 5 and 6 have an applicable standard non parole period of 8 years.

53. In relation to count 4 the Crown and Mr Marr on behalf of the offender have submitted that the offending is towards the lower end of the range. I assess the objective seriousness as being below the middle of the range and towards the lowest end of objective seriousness having regard to the age of the complainant; namely 13 or 14 years old (noting that the offence relates to children aged 0 - under 16 years), the nature of the physical contact (rubbing the complainant’s breast on the outside of her bra); the duration of the offending (relatively short occurring during a game of tickling).

54. In relation to count 5 the Crown has submitted that the offending is in the middle of the range of objective seriousness. Mr Marr on behalf of the offender has submitted that it is just below mid-range. I assess the objective seriousness as below the middle of the range but above the lowest end of objective seriousness having regard to all of the above mentioned common factors and taking into account that the nature of the physical contact, namely, touching the complainant’s right breast underneath her singlet top (skin to skin contact) for a period of one to two minutes.

55. In relation to count 6 the Crown and Mr Marr on behalf of the offender have submitted that the offending is towards the lower end of the range. I assess the objective seriousness as being below the middle of the range but above the lowest end of objective seriousness having regard to all of the above mentioned common factors and taking into account the nature of the physical contact namely, rubbing the complainant’s vagina on the outside of her pyjamas.

56. In relation to the sentencing for sexual offences against children, the Court notes the remarks of Lee J in R v Dent (unreported NSWCCA 14/3/91):

“One begins with the proposition…..that our community views with great concern the sexual molestation of children by adults and that has been acknowledged by the legislature…….”

“Little children are entitled to grow up free from defilement by sexual predators and free from risk of psychological upset, confusion and difficulties later in life caused by such conduct” (at p8-9)

AGGRAVATING FEATURES

57. The Crown relies upon the following aggravating features:

58. That in relation to each complainant the offending occurred in the home of the victim or any other person (see s21A(2)(eb), Crimes (Sentencing Procedure) Act, 1999). Whilst it was not NH’s permanent home she was temporarily residing at the offender’s premises. I am satisfied this aggravating feature is established in relation to each complainant.

59. That in relation to each complainant the offender abused a position of trust or authority (see s21A(2)(k), Crimes (Sentencing Procedure) Act, 1999). Both the Crown and Mr Marr on behalf of the offender agree that this aggravating feature is established in relation to SH. However, Mr Marr submits that it is not established in relation to NH given that this aggravating feature ordinarily applies to relationships of parent or spouse. The offender gave evidence at the trial in relation to his role in relation to NH. He described their relationship as follows Tp283, lines 4-17:

Q. And certainly in relation to those rules that I spoke about, those expectations, it was the case wasn’t it that you and TH as responsible adults in the house were responsible for enforcing those rules?

A.   Correct.

Q. You wouldn’t let NH, a 13 year old child, do something that was inappropriate you would discipline her if that was the case, you would pull her up, is that fair?

A. Yes.

Q. So whilst she was living in your home with TH both you and TH were responsible for her, looking after her because she was a child, do you agree with that?

A.   I agree with that.

60. Having regard to the offender’s evidence, I am satisfied that the offender abused a position of authority in relation to the complainant NH having regard to the role he played whilst she was residing at his house. I am not satisfied that he abused a position of trust for the purpose of the aggravating feature: see generally Henderson v R [2016] NSWCCA 8 at par 52-57.

SUBJECTIVE MATTERS

61. The offender is now 48 years old.

62. He gave evidence during the trial.

63. He had been involved in a relationship with TH since 2009. TH had two children from a previous relationship K and the complainant SH. He has 2 children from a previous relationship, A 21 years and N 24 years.

64. He had 2 children with TH, twin girls born in 2010. The relationship with TH broke down and they separated in January 2013 shortly before the offending was disclosed.

61. He has worked as a truck driver for 30 years. He was also involved in body piercing since 2012 at the salon operated by his partner TH.

CRIMINAL HISTORY

66. The offender has one entry on his criminal history for an offence of negligent driving in 1994. The limited nature of his criminal history entitles him to leniency on sentence.

67. Material tendered on behalf of offender

68. Mr Marr on behalf of the offender tendered 17 character references on sentence (marked EXH1-17 on sentence).

69. EXH 2 is a letter from the offender’s mother. It outlines his background. The offender is the eldest of four children. He has a brother and two sisters. His mother described him as working hard at school and doing well. In his younger years he was involved in playing cricket and soccer. He has been in employment since his school years and is described as a conscientious and hard worker. He is well regarded by all of his siblings and their children (he has 11 nieces and nephews).

70. Most recently before his incarceration the offender was living with his mother. She describes him as being of invaluable assistance with chores around her house because of her state of health. She described her son as “trustworthy, honest, reliable, hardworking, responsible, helpful, caring and considerate”.

71. References were provided by other family members, the family Minister, friends and work colleagues. The offender was described as loyal, honest, trustworthy and an attentive and caring father. A number of the references indicated that conduct is completely out of character for the person they know the offender to be.

72. The offender has maintained his innocence. In such circumstances it is difficult to assess his prospects of rehabilitation and his likelihood of re-offending. In such circumstances, I cannot be satisfied he has good prospects of rehabilitation or is unlikely to reoffend.

SPECIAL CIRCUMSTANCES

73. It has been submitted by Mr Marr, on behalf of the offender that I would find special circumstances pursuant to s44(2), Crimes (Sentencing Procedure) Act 1999 in circumstances where it is the offender’s first time in custody. I am satisfied that special circumstances are established and propose to vary the statutory ratio.

OFFENCES IN RELATION TO SH COULD HAVE BEEN DEALT WITH AT THE LOCAL COURT

74. It has been submitted by Mr Marr on behalf of the offender that the Court should take into account on sentence that counts 4, 5 and 6 are Table 1 offences and would have been dealt with in the Local Court had the Crown not made an election. The available maximum penalty in the Local Court was 2 years because of the jurisdictional limit.

75. I understand the background is that count 4, 5 and 6 were listed for hearing in the Local Court. The hearing date was vacated after the Crown decided to rely on the evidence of SH as tendency evidence in the trial of counts 1, 2 and 3 concerning NH.

76. The relevant principles were summarised in R v Palmer [2005] NSWCCA 349 where Hall J (with whom Grove J and Smart AJ agreed) dealt with a ground of appeal that the sentencing judge had failed to take into account the fact that the offences were capable of summary disposal. He summarised the principles as follows:

The first is that a judge in the District Court is not bound by the jurisdictional limit imposed on the Local Court when dealing with an offence on indictment which was capable of summary disposal, but may have regard to that limit when the case is one which could appropriately have been disposed of in the Local Court: Regina v. Crombie [1999] NSWCCA 297 at [16]; Regina v. LPY (2002) 136 A. Crim. R. 237 at 240 and Regina v. El Masri [2005] NSWCCA 167 at [30].

Secondly, the fact that a matter could have been dealt with in the Local Court, had the prosecuting authority not elected otherwise, remains a relevant consideration in the exercise of the discretion reserved to the sentencing judge:Crombie(supra) at [15].

Thirdly, however, the relevant decisions that establish that principle do not go so far as to require the sentencing judge to proceed upon the basis that the maximum available sentence is that which could have been imposed in the Local Court. At most they establish that the circumstance identified is to be taken into account. Depending upon the objective and the subjective criminality of the offender, it may properly be regarded as calling for some mitigation of the sentence that would otherwise be imposed in the District Court for an offence prosecuted upon indictment. Where it appears that that circumstance has been entirely overlooked by the sentencing judge, it may properly justify the granting of leave to appeal: Crombie (supra) at [16].

Fourthly, the significance of the loss of the chance of the matter being dealt with in the Local Court varies from case to case. In some cases it would contribute to mitigation of sentence. It is a matter to be taken into account, but is not a universal factor for the reduction of sentence: Regina v. Doan (2000) 50 NSWLR 115.

Fifthly, the failure by a sentencing judge to mention the matter in his or her remarks on sentence and the length of the sentence does not necessarily establish that the sentencing judge failed to have regard to the matter. In some circumstances the length of the sentence may not suggest that the matter was overlooked: Regina v. Depoma [2003] NSWCCA 382 at [17].

Finally, in circumstances where a sentencing judge has made no reference to the summary disposal argument in his or her remarks on sentence, it is necessary to consider whether that omission is indicative of error. One way of testing that proposition is to consider whether the sentence itself appears manifestly excessive in all the circumstances of the case - if the factor had been taken into account and given appropriate weight, a substantially lesser sentence was appropriate in the case: El Masri (supra) at [45] per Johnson, J. (with whom Hunt, AJA. and Hulme, J. agreed). (emphasis added)

77. Having regard to the facts in the present matter I am satisfied that it is a proper matter in which I should take into account that the offences were capable of summary disposal and I propose to do so.

DETERMINATION

78. I have had regard to the purposes of sentencing set out in s3A, Crimes (Sentencing Procedure) Act 1999.

79. I have had regard to the maximum prescribed penalties and the applicable standard non-parole periods.

80. I have had regard to the aggravating and mitigating matters referred to in these remarks.

81. I propose to impose an aggregate sentence pursuant to s53A(1), Crimes (Sentencing Procedure) Act 1999.

82. Pursuant to s53A(2)(b), Crimes (Sentencing Procedure) Act 1999 the indicative sentences are as follows:

Count 1   

Total term 7 years

NPP 4 years 6 months

Count 2   

Total term 7 years

NPP 4 years 6 months

Count 4   

Total term 12 months

NPP 8 months

Count 5   

Total term 18 months

NPP 12 months

Count 6   

Total term 18 months

NPP 12 months

TOTALITY

83. Had I imposed separate sentences for each offence I would have partially accumulated the sentences to reflect, firstly the separate victims and also separate episodes of criminality in relation to the complainant SH and separate offending within the one episode of criminality with respect to the complainant NH.

84. Stand up Mr AS.

85. In relation to counts 1, 2, 4, 5 and 6 you are convicted.

86. I sentence you to an aggregate sentence.

87. I impose a non-parole period of 6 years and 6 months TDF 17/7/2016 – 16/1/2023.

88. With a balance of term of 3 years and 6 months TDF 17/1/2023 – 16/7/2026.

89. The total term is 10 years.

90. I have found special circumstances and varied the statutory ratio pursuant to s44(2), Crimes (Sentencing Procedure) Act 1999.

91. The earliest date you will be eligible for release on parole is 6/1/2023.

**********

Amendments

23 June 2017 - Remove offender's name from the cover sheet

23 June 2017 - Dates of birth of complainant and offender altered to maintain non publication order.

Address of altered to maintain non publication order

23 June 2017 - Offender's name removed from para 38

26 June 2017 - Paragraphs 9, 16, 17 & 63 information which may tend to identify the complainant amended to comply with non publication order

28 June 2017 - Cover sheet amended to reflect correct counsel

Decision last updated: 28 June 2017