R v AS

[2008] NSWDC 278

CITATION:	R v AS [2008] NSWDC 278 This decision has been amended. Please see the end of the judgment for a list of the amendments.
JUDGMENT DATE:	31 October 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Charge 1 – Aggravated Indecent Assault 13/02/2003 to 02/03/2004 Convicted Sentenced to Fixed Term 3 years to COMMENCE ON: 24/03/2008 EXPIRE ON: 23/03/2011 Charge 2 – Sexual Intercourse without consent with 16 year old (digital) 13/02/2003 to 02/03/2004 Convicted Sentenced Non-Parol Period of 3 years to COMMENCE ON: 24/03/2008 EXPIRE ON: 23/03/2011 Balance of Term 2 year Period – EXPIRE ON: 23/03/2013 Charge 3 – Sexual Intercourse without Consent with 16 year old (penial) 13/02/2003 to 02/03/2004 Convicted Sentenced Non-Parol Period of 4 years to COMMENCE ON: 24/03/2008 EXPIRE ON: 23/03/2012 Balance of Term 2 year Period – EXPIRE ON: 23/03/2014 Charge 4 – Aggravated Indecent Assault 19/03/2004 to 17/12/2004 Convicted Sentenced Fixed Term 3 years to COMMENCE ON: 24/03/2009 EXPIRE ON: 23/03/2012 Charge 5 – Sexual Intercourse without consent with 16 year old (digital) 19/03/2004 to 17/12/2004 Convicted Sentenced Non-Parol Period of 3 years to COMMENCE ON: 24/03/2009 EXPIRE ON: 23/03/2012 Balance of Term – EXPIRE ON: 23/03/2012 Charge 6 – Sexual Intercourse without Consent with 16 year old (penial) 19/03/2004 to 17/12/2004 Convicted Sentenced Non-Parol Period of 4 years to COMMENCE ON: 24/03/2009 EXPIRE ON: 23/03/2013 Balance of Term 3 years Period – EXPIRE ON: 23/03/2016 Charge 7 – Sexual Intercourse without Consent with 16 year old (penial) 19/03/2004 to 22/12/2004 Convicted Sentenced Non-Parol Period of 4 years to COMMENCE ON: 24/03/2010 EXPIRE ON: 23/03/2014 Balance of Term Period to EXPIRE ON: 23/03/2016 Charge 8 – Aggravated Indecent Assault 13/12/2005 to 04/07/2006 Convicted Sentenced to Fixed Term 3 years to COMMENCE ON: 24/03/2011 EXPIRE ON: 23/03/2014 Charge 9 – Sexual Intercourse without consent with 16 year old (digital) 13/12/2005 to 04/07/2006 Convicted Sentenced Non-Parol Period of 3 years to COMMENCE ON: 24/03/2011 EXPIRE ON: 23/03/2014 Balance of Term – EXPIRE ON: 23/03/2016 Charge 10 – Sexual Intercourse without Consent with 16 year old (penial) 13/12/2005 to 04/07/2006 Convicted Sentenced Non-Parol Period of 4 years to COMMENCE ON:24/03/2011 EXPIRE ON: 23/03/2015 Balance of Term 3 years Period – EXPIRE ON: 23/03/2018 Earliest date for release 23/03/2015 Order that Child Protection Order be lodged with Registry
CATCHWORDS:	Criminal Law - sentence after trial - indecent assault (x3) sexual intercourse without consent with person under age of 16 years (x7) -standard non parole period offences - penile-vaginal penetration (x4) - digital-vaginal penetration (x3) - complainant aged 10 -14 years - accused defacto partner of complainant's mother - offences reflect three occasions of sexual activity over three and half year period - offences occur when offender and complainant alone in home - complainant experiences servere pain during penile-vaginal offences - aged 22 at time of initial offending - significantly disadvantaged childhood with some defiance - average intellect - education deprived - illiterate and innumerate - on-going general health problems - head injury sequali absence of contrition - continued denial of offending - no prior offending - standard non parole period not appropriate - special circumsatances found.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act
CASES CITED:	R v Cuthbert (1967) 2 NSWR 329 R v Rushby (1977) NSWLR 597 R v Hayes [1984] 1 NSWLR 740 R v Zappella unreported NSW CCA 5 November 1991 pp 2 and 3. Pearce v The Queen (1998) 194 CLR 610 R v Way (2004) 60 NSWLR 168
PARTIES:	Regina AS
FILE NUMBER(S):	2007/21/0258
COUNSEL:	Crown: C Patrick Defence: Mr Russell

JUDGMENT

1. Adam Stewart met the complainant’s mother in a caravan park. He was then seventeen years old. She was substantially older. She was living in a caravan park in Queensland separated from her then husband. Also living in the caravan were her four children, three girls and a boy. The family struggled financially. They also moved frequently sometimes needing even emergency accommodation. As best I can determine Stewart joined the family sometime in 1998 or 1999.

2. Between February 2003 and July 2006 on four occasions Stewart sexually assaulted the complainant in various ways. The complainant was born in mid May 1992. During the period of these assaults she was ten and a half years to fourteen years. In all there are ten counts in an indictment encapsulating Stewart’s illicit sexual activity with this child. Counts 1, 4 and 8 are charges of indecent assault, and 2, 3, 5, 6, 7, 9 and 10 are charges of sexual intercourse without consent against a person under the age of sixteen years. Charges 3, 6, 7 and 10, being charges of penile penetration, and the remaining counts digital penetration. The four instances are captured by Counts 1, 2 and 3 for the first, 4, 5 and 6 for the second, 7 stands alone, 8, 9 and 10 is the final episode.

3. Today Stewart is to be held accountable for his criminal conduct towards the child. As sentencing judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentences for these offences before the Court committed by this offender harming this young victim in her community.

4. My initial task requires an assessment of the objective criminality of the offences before the Court. I will also need to have regard to matters personal to this offender, the subjective matters. The starting point for such assessments requires a sentencing judge to make findings of fact from the evidence before the Court relating to both the offence and the offender. The offender’s rehabilitation prospects will have to be assessed even if looking through a glass darkly. Before any sentence can be made there are likely to be technical questions relating to deterrence, whether special circumstances are to be found, whether these offences attract a standard non-parole period which they do, and if so the length of the parole period. And finally of course the ultimate term of imprisonment that is to be imposed. None of those can be determined until the primary facts are determined. What weight needs to be given to all of these matters against an imperative that all sentencing should have, as its primary focus, the protection of the community will also need to be kept in mind. See R v Cuthbert (1967) 2 NSWR 329, R v Rushby (1977) NSWLR 597, R v Hayes [1984] 1 NSWLR 740.

Facts

5. Adam Stewart was found guilty of all ten charges after trial before a jury. Thus, it falls to me to determine the facts for the purpose of sentence. That determination must acknowledge the essential elements of the offence, that the jury must have found proved. The facts must also acknowledge the issues in the trial and have regard to what the verdicts indicate the jury’s view of those issues was. Nonetheless there is still scope for judgment in respect of the facts to be found. There is no obligation to find facts most favourable to the accused or to the then accused. Facts found adverse to him must be found beyond a reasonable doubt.

6. In this case the choice for the jury was stark. The accused’s case was there had never been a sexual assault; that his relationship with the complainant had been excellent until the last house move when she had come under the sway of a neighbour’s daughter, which had impacted upon her relationship with others in the house particularly between himself and her mother; that is the complainant between him and the complainant between the mother. From its verdicts, guilty on all counts, it is clear the jury rejected the account given by the offender and the complainant’s mother. In those circumstances the jury must have been satisfied, beyond a reasonable doubt, the complainant was not only honest but also accurate as a witness in respect of each count in the indictment. It is for this reason that I rely upon the account given by the complainant in her evidence, primarily to be found in the interview that she gave with police on 14 February 2008.

The first incident (Counts 1, 2 and 3)

7. The first group of offences occurred at Carlingford. On this occasion the other occupants of the house were out leaving Stewart and the complainant alone in the house. She was in her brother’s bedroom on the bed. She had been there for half an hour when Stewart entered. He commenced touching her inappropriately, initially on the outside of her clothing and then subsequently onto her flesh. He started touching her arm and moved his hand toward her breasts using both hands upon them [Count 1]. He then started to feel her vagina. He pulled her pants part way down her legs, lay on top of her. He placed his fingers into her vagina [Count 2] and finally inserted his adult penis into this child’s vagina.

8. She was lying on the bed, she had her eyes closed, she was crying because it hurt so much. She was holding onto the blankets. Her account is that he could not put his penis all the way up because it would not fit. Her account is he did this for nine or ten minutes, then withdrew and masturbated to ejaculation. While I accept her description of the events and of her discomfort I am not satisfied beyond reasonable doubt her account of time is accurate. There is no evidence she was able to measure the time she says against any timepiece. While I obviously cannot quantify the time I am satisfied it was substantial, and also likely to have been significantly less than nine minutes. At the commencement time of the offence the complainant was clothed in a bra and panties, t-shirt and pants.

The second incident (Counts 4, 5 and 6)

9. These offences occurred when the family was living at Metcalfe. The offences occurred at a time when other family members were asleep. The complainant was in the lounge room for an hour or two watching television. Her estimate is the offence occurred around midnight. Stewart was experiencing toothache. He had left his bed to take a shower to relieve the pain. He left the shower, came to her, started rubbing her arms, breasts and legs [Count 4]. He inserted his finger into her vagina [Count 5]. He had obtained moisturising cream, which the complainant said had been obtained from her bedroom by him, some of which he put on his penis. He told the complainant it would make him slippery, he would go in easier and it would not hurt as much. The complainant told him as he had his penis inside her, “It still hurts me, it still hurts me”. At some point he withdrew and masturbated to climax. Stewart then returned to the shower. In her interview the complainant described the penile penetration of her on this occasion as feeling like” it was really ripping me apart”. The complainant was wearing on this occasion a sporting bra, underwear, shorts and a baggy t-shirt.

The third incident (Count 7)

10. Some two or three months after the second incident the family was still at Metcalfe. It was daytime. The complainant was in her brother’s bedroom watching a TV that was in that room. Meanwhile Stewart was in the downstairs shower which is nearby to the brother’s bedroom. Stewart interrupted his shower, entered the bedroom with a towel wrapped around him, he began to masturbate. He commenced touching her, pulling her pants down. He inserted his penis into her vagina. At some point he removed his penis from her, masturbated to ejaculation. He ejaculated on her vaginal area. He used the towel he had earlier had wrapped around him to wipe the ejaculate from her body. On this day two siblings had gone out, the complainant’s mother and the two younger children were watching the upstairs TV.

The final incident (Counts 8, 9 and 10)

11. The family moved to North Rocks. The complainant was by this time eleven or twelve years old. It was a weekend. The complainant was asleep in the middle of her mother’s bed. Stewart had come from the shower with towel wrapped around him. He commenced opening and closing drawers as he was clothing himself. The complainant woke from her slumber. Her awakening seemed to trigger Stewart, he commenced to rub her breasts [Count 8], placed his fingers into her vagina and manipulated them in and out [Count 9]. He pulled her pants down and then his own, he then placed his penis into her vagina. While the complainant cannot recall precisely what clothes she was wearing she did know that she had been wearing underpants and pants. She remembers that because Stewart put his hands beneath her clothing.

12. I am satisfied from the evidence that the complainant experienced pain to the point of severe hurt on each of the occasions Stewart inserted his adult penis inside her.

13. What particularly prompted the first offence is unclear from the evidence. Whether Stewart was giving into a fantasy he had previously entertained or whether it was a spur of the moment impulsive act is unable to be determined from the evidence. It is likely it was an opportunistic offence. All family members were away from the house. I am satisfied this offence, as with them all, was undertaken for Stewart’s sexual gratification.

14. The other offences are scattered through a three and a half year period. The last three episodes are associated with showering. On the last occasion it is likely the decision to sexually assault the complainant occurred with the complainant wakening from sleep and in that sense also was opportunistic. The offences were a significant breach of trust. Although Stewart was young to be in a stepfather type role for children of the age in the family he had come into, nonetheless they looked upon him as a stepfather type figure. He too regarded himself in a parent type role, speaking of himself as a stern or severe parent. His commission of these offences was in a domestic setting and as such were totally hostile to his responsibilities. Instead of protecting or nurturing he was violently harming the complainant. The repetition of the offending conduct convinces me he was using these criminal acts to groom her to accept his advances in future whenever occasion should arise that he felt the need to satisfy his sexual urges. In that sense he was seeking to corrupt the complainant.

15. I note in his favour though that in no case did he ejaculate inside the complainant. Ejaculation within the complainant, all other things being equal, adds to the seriousness of the sexual assault. It furthers the humiliation to the victim to have the bodily fluids of her predator deposited within her. It also adds to the risk of transmission of sexual diseases and in those old enough to know, increases the worry, a potential in the case of this complainant when she was thirteen or fourteen. I note there were no threats directed towards her either physical or verbal.

Objective criminality

16. From the facts as he finds them to be the sentencing judge is required to assess the objective criminality of the offences as an essential step in assessing the seriousness of the criminal behaviour of the offender. That is done by comparing objectively the criminality exhibited in the instant offences with criminality of offences of a similar kind. It is in this way that the objective seriousness of the criminality of these offences can be evaluated. The objective criminality has an important impact upon the overall sentencing outcome.

17. There are sections within the Crimes Act 1900 which are about the protection of young children from a range of sexual experiences while their physical, emotional and psycho-sexual development is patently immature and the power imbalance between the child and the adult grossly favours the adult. All of the offences committed here were committed against offences in the Crimes Act having among other things, that purpose.

18. Mr Justice Lee in describing the jurisprudential philosophy behind these sections said the following,

“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 in providing for the greater penalties when the victim is under 16. That acknowledgment has been in our legislation over a long period of time. Little children are entitled to grow up free from defilement by sexual predators and free from the risk of psychological upset, confusion and difficulties in later life caused by such conduct.”

19. His Honour also made this observation highlighting the laws focused upon the power imbalance between adult males and young children. The law has always sought to protect young children against sexual predators particularly adult men. The law recognises of course, as young girls grow up, there is an inevitability of contact with sexual overtones and more with members of the opposite sex of the same age or a little age. (as said) That is simply one of the facts of life, but when it comes to the case of an adult male .... tampering with girls of twelve and thirteen years of age the crimes become crimes of enormity, R v Zappella unreported NSW CCA 5 November 1991 pp 2 and 3.

20. Focusing particularly on the indicted charges of sexual intercourse without consent these were sexual encounters without the complainant’s consent. She submitted to them because of the immense power and balance and her inability to know quite what to do when the stepfather figure took disadvantage of her. The power imbalance is also noticeable from the offender’s viewpoint when he, as a senior member of the family, illustrated not just his decision to have intercourse but against the expectation that his demands and actions would be accepted without show of resistance.

21. The criminality of penile sexual intercourse offences also centre around the breach of the young person’s safety. They amount to a gross intrusive invasion of a young girl’s right to privacy and her right to healthy sexual development. Her breach of privacy, personal safety and impairment of the right to healthy sexual development were of no apparent moment to this offender who put his own sexual gratification above these three things. It is that which makes his conduct of high criminal order. The intercourse appears to have been committed without consideration of using any protective device.

22. Factors relating to the essential elements that impact upon the seriousness of this offence are firstly that the complainant was aged ten or eleven when the first of these offences occurred, while she may have been as old as fourteen when the last occurred. The element of the offence requires proof that the complainant was under sixteen, thus for the first of these offences it occurred at a greater distance from that age, the last was closer, in that sense then, or on that score then the first of these offences is the more serious so far as age is concerned.

23. The offence of sexual intercourse without consent where a young person under 16 is concerned must anticipate some degree of hurt, but I am satisfied that the level of physical pain experienced by the complainant, and on subsequent offences known to be experienced by her, aggravates the seriousness of the criminality exposed in that element because the subsequent offences were committed by him full well knowing he was entering her in the way that was so painful. Of course in respect of the second offence it must be recognised that he was trying to accommodate consideration of that pain by using a lubricant.

24. Finally on that score the offences were committed for his own gratification.

25. The s 21A(2) Crimes (Sentencing Procedure) Act matters aggravating the objective seriousness of this offence is the breach of trust I earlier referred to. While I note all offences were committed within the home of the complainant it seems to me that fact is already reflected in the breach of trust to which I have referred. For that reason I do not regard that they were committed within the home as an aggravating feature pursuant to s 21(a)(2). One of the offender’s roles was to provide a home and keep it safe for her. That was part of the breach of trust that I have already alluded to.

26. As to the s 21A features that mitigate the offence, there is no evidence these offences were planned. I have indicated they were responses to sexual desires or lust being experienced. While I see a pattern of grooming for the future I do not regard these offences as pre-meditated events for that purpose but rather opportunistic events that would advance that purpose.

27. On the objective circumstances however I am satisfied each of these offences of penile penetration that is the four of them, would qualify as falling within the lower half of the mid range of seriousness. By that I mean if one regards the mid range of seriousness as covering a band of varying levels of seriousness all falling within what can compendiously be described as a mid range, then the four offences I have identified would fall within the lower half of that band. I am not satisfied the digital penetration offences qualify as falling within the mid range of seriousness.

28. Insofar as the indecent assaults are concerned I do not regard any of them as falling into a mid range.

29. The incidents of touching were not prolonged. There was no violence or voyeuristic carry on, it was done only with the hands, no instruments or manipulation were involved. There was no degrading of the victim other than the inherent humiliation involved in her being taken advantage of, there was no role playing.

Subjective facts

30. As I said earlier I am both entitled and required to have regard to the subjective facts. Not only am I sentencing for the criminal offence but I am also sentencing this offender, Adam Stewart for them. Each offender coming before the Court varies from other offenders who stand or who have stood for sentence. Circumstances personal to this offender may offer to the Court some explanation and insight into the commission of this offence by this offender, or some reason why a more or a less sentencing outcome is desirable.

31. Adam Stewart was aged twenty-two in the first year of offending and somewhere between twenty-four and twenty-five when the final series of offences were committed. His own childhood was difficult and disadvantaged. His mother was a heroin addict. He has given what at first blush appears to be differing accounts of his early childhood, firstly, to Probation and Parole and then to Terry Smith, a clinical psychologist. It may be that with some further probing they are consistent. On either view it is likely his childhood was difficult, disruptive, disadvantaged and deprived. I am satisfied by 17 he was well relieved to be away from home and, from what I gather, home was well relieved to be away from him. As I earlier mentioned at the beginning of these remarks at seventeen he fell into a senior role within the family of the complainant. He immediately became fully involved in the parenting role of the children. For him, the de facto relationship he regards as enduring and happy. He claims a prominent role within the family particularly in relation to the behavioural management of children and claimed a close relationship with all of the children. Since 1998 two further children have been born, one in 2002 and another in 2004.

32. He had an uncle. The basis of the relationship between him from nought to thirteen with this uncle is not made clear to me in the evidence other than that the uncle had some impact upon him. I sense the relationship between them was turbulent. Nonetheless the uncle went into custody and I think it is whilst in custody committed suicide. To the thirteen year old this had a significant impact, to a point where there is some suggestion in the psychological profile obtained by the defence from Terry Smith, the clinical psychologist, that there is still unresolved grieving relating to that. The offender refers to the suicide as a trigger for other acts such as his involvement in drugs and the like.

Education skills and employment

33. During the trial it became apparent Stewart is effectively illiterate and innumerate. His schooling also was troubled and was marked with disciplinary issues. He left Miami High School, which I assume is in Queensland, at the beginning of Year 9. He was diagnosed with ADHD and told Terry Smith he simply could not learn in class. After the death of his uncle he said he became highly distractible and defiant. He worked for his grandfather in a demolition business as a labourer for some six years. On occasions he drove small vehicles such as a bobcat, but sadly cannot read sufficiently to obtain other tickets and licences. His primary income stream through his adult years appears to be unemployment benefits and benefits arising from the Centrelink personal support program, which indicates to me that he was at least interested in addressing the problem of his unemployment. I am satisfied he will need assistance obtaining employment upon his release. There is material before me from which I can gather he was a very gifted skateboarder reaching an elite level in that sport. Regrettably as a consequence of an accident I think, that came to an end.

General health

34. During the trial the offender consumed copious quantities of water. On this issue there is no formal material before the Court but I understand it to relate to problems he was having with his teeth. The complainant’s evidence was that he often experienced toothaches and took showers to relieve the pain. There is also material before me that he has back problems.

Drug and alcohol history

35. He claims not to consume alcohol other than in small quantities when he was working in the demolition business. He experienced elevated pain from stomach ulcers and he commenced to consume marijuana from the age of eight years being introduced to it by partners and friends of his mother. He continued to consume cannabis regularly until about a year before his arrest. Aged seventeen years, and remember that is the year in which he met the complainant's mother, he was introduced to amphetamines and consumed them at elevated levels until the birth of his son four years later. I am not suggesting that she introduced him to them but I note the coincidence of timing. He said,

“I had so many stuff ups in my life, my uncle dying, losing contact with my mother, my grandfather kicking me out of the house, hating authority because of what had happened to my uncle. I went AWOL, disappeared .... I was using big time.”

What stopped him he said was his son’s birth. The birth of his son seemed to him to open his eyes, give him his life back, make him realise he had to stop, so he did.

Mental health

36. As I mentioned before there was an accident at the age of twelve. It was from a BMX cycle riding accident. As a consequence of that accident he was in a coma for four days with serious closed head injury. He said that there were residual problems flowing from that including even poorer concentration than previous, becoming highly distractible and more prone to spacing out, a reduced capacity to learn, weeping in his right eye and constant teeth pain. He says the death of his uncle has caused him enduring and intense emotional scarring. He described himself to Mr Smith as insecure and having no confidence.

Psycho sexual profile

37. The psycho sexual profile Stewart would argue he has was the one he gave to Terry Smith.

“Issues relating to sexual identity of Mr Stewart were discussed. He said he’s attracted to adult females that are older than he and who provide a sense of nurturing and comfort. He absolutely denied any attraction to pre-pubescent form. He denied pressuring, coercing or threatening complicity for sexual relating (sic) with any woman.”

Regrettably given he refuses to admit his guilt in relation to the serious offences I am dealing with I cannot accept what he told Mr Smith. The forensic psychology services of the Department of Corrective Services say that given his denial of these offences no accurate psycho sexual profile can be made and he remains unsuitable for appropriate therapeutic intervention.

Criminal history and character

38. After a rough start to his life he settled in well to family life with the complainant’s mother and children. It was only after some years into this period with the family that this offending conduct began and continued. He has no prior criminal convictions and is to be regarded, at least insofar as the first offence is concerned, as a person of immediately prior good character. So far as the other offences are concerned he continued within the role he had set out for himself in the family and there is no complaint from the other children or partner of anything untoward.

39. While there are other sexual offences that occur during this period there is no other offending of any kind. He can be given credit for the positive contribution he made to the family prior to offending and excising the offending from the circumstances of his three years he otherwise was of good character.

40. Importantly, his absence of convictions is a matter of mitigation within s.21(3) and will need to be taken into account when determining if a standard non-parole period is to apply.

Section 21A mitigating factors relating to the subjective matters

41. 21A(3)(e) the offender does not have any record of prior convictions. And (f) he is a person of good character. While there was assistance to the prosecution during the trial by a series of admissions made I cannot regard that as qualifying under s 23(1)(3) or otherwise a mitigating factor in sentencing.

42. At twenty two, that is at the time of the first offence, the offender it seems to me is entitled to have some consideration for youth. Even at 25 he is relatively young although by that time his claim upon youth as a mitigating factor must be almost minimal. Nonetheless I have taken the youth into account in the initial sentencing and hopefully in the overall sentencing outcome.

43. Insofar as rehabilitation are concerned there is of course the very serious issue as to his psycho sexual profile, notoriously sexual offenders have a greater pre-disposition to re-offend than perhaps all other groups of offenders except, say, for drug addicts. Equally notoriously it is difficult to predict rehabilitation prospects and the likelihood of future offending. There are some positive factors which need to be taken into account.

44. He has strong family support and I note even today there are a number of supporters in court including his partner. He has shown a past pre-disposition to be involved in work and to do something through the personal support program to bring him back into the workforce. He has average intelligence. In other words there do not appear to be any intellectual problems that would stand in the way of him rehabilitating although he does have a disability inasmuch as he is illiterate and innumerate. His conduct, whilst in custody initially, was not positive but the report before me suggests that things are improving.

45. There is no contrition and that must sound against him on rehabilitation, not just in terms of the absence of remorse, but equally significantly the absence of insight into why this conduct is criminal. I must say that notoriously against paedophiles, particularly paedophiles within a family structure have a great deal of difficulty disclosing, that can be because they are very conscious of the hurt that they have done, not just to the victim but to those who are also close to the victim and their sense of shame and embarrassment, and their already frail self image will not permit them to disclose. Be all that as it may, in the absence of public disclosure the only finding one can make is an absence of insight.

46. These are offences calling for deterrence and I have taken that into account. The maximum penalties for the sexual intercourse without consent offences are twenty years. There is a standard non-parole period applying to them of ten years imprisonment. The maximum penalty for the aggravated indecent assault offences is seven years, they too carry a standard non-parole period of five years.

47. Because these offences are scattered through a three year period Pearce v The Queen (1998) 194 CLR 610 requires that there be some accumulation of sentences. I have decided to accumulate them by incidence that is to say sentences imposed for the second incident will be accumulated by one year. Sentences for the third incident will be accumulated a further one year. And sentences for the fourth incident will be accumulated a further one year.

48. I now have to determine my attitude to the setting of a non-parole period. From my reading of Way’s (R v Way (2004) 60 NSWLR 168) case I am entitled to regard mitigating features identified within s 21A(3) as capable of removing a case within the mid range from one requiring a standard non-parole period. Indeed it was upon that basis that the plea of guilty appeared as a mitigating feature it being one of the items identified in s 21A(3). The plea of guilty jurisprudence commencing with Way’s case, rather that is, the standard non-parole period not applying in those cases, gained a life of its own through Way.

Totality

49. I have sought to reflect in the sentences for the sexual intercourse without consent offence of each incident totality of sentencing for that group of offences. I have also sought to effect totality by the accumulation of sentences as required by Pearce My inquiries of the custodial history of the accused indicate that as at today he has been in custody for 216 days. That is the figure that I am anchoring the commencement date upon should subsequent investigation discover that that period is wrong, the matter will need to come back to me for proper adjustment of the starting date. My intention is to give him credit for all days he has done in custody.

50. I find special circumstances. The reasons for finding special circumstances centre in the accumulation of sentences, his comparative youth, his first time in custody, and of the fact that he will require assistance of a significant kind upon release both in terms of securing and finding employment and in terms of re-entry into domestic life.

HIS HONOUR: Does either party want to draw my attention to any matter before I go onto the formal sentencing?

RUSSELL: No your Honour.

BARBER: No thank you your Honour.

HIS HONOUR:

51. Would you stand up please Mr Stewart. Adam Stewart you are convicted of the offence that you between 3 February 2003 and 2 March 2004 at Carlingford in the State of New South Wales did assault S P and at the time of the assault committed an act of indecency upon her at a time when she was under the age of sixteen. For that indecent assault you are sentenced to a fixed term of three years to commence on 24 March 2008 and that sentence will expire on 23 March 2011.

52. I convict you of the offence the same time and place and against the same complainant, without her consent, and knowing she was not consenting she then being under the age of sixteen years you had sexual intercourse with her. That is the digital penetration that you were convicted of for that offence I sentence you to a minimum non-parole period of three years and a balance of term of two years. The whole sentence will expire on 23 March 2013.

53. For the offence that you between in exactly the same terms as the last one but involving the penile penetration I convict you of that offence. For that offence you are sentenced to a non-parole period of four years, and a balance of term of three years. That is a seven year overall sentence to expire on 23 March 2015.

54. For the offence that you between 19 March 2004 and 17 December 2004 at Carlingford committed an indecent assault against the same complainant, she then being under the age of sixteen, you are convicted. You have a fixed term of three years to date from the 24 March 2009 and to expire on 23 March 2012.

55. For the offence of digital intercourse at the same time and place you are likewise convicted, you are sentenced to a non-parole period of three years and a balance of term of two years, the balance of term to expire on 23 March 2014.

56. And you are sentenced on the sixth count which is account of penile intercourse for which you are convicted. You are sentenced to a non-parole period of four years and a balance of term of three years making an overall sentence of seven years to expire on 23 March 2016.

57. For the seventh offence, which is the stand alone offence of sexual intercourse against the same complainant at Carlingford between 19 March and 22 December, when she was not consenting, and under the age of sixteen years I set a non-parole period of four years and a balance of term of two years making an overall sentence of six years commencing on 24 March 2010 and expiring in total on 23 March 2016.

58. For the last group of offences for the indecent assault you are sentenced to three years to commence on 24 March 2011 and to expire on 23 March 2014. 59. For the digital penetration you are convicted, that is sexual intercourse without consent, knowing she was not consenting when she was under the age of sixteen, these offences occurring between 13 December 2005 and 4 July 2006. You are sentenced to a non-parole period of three years commencing on 24 March 2011 and expiring on 23 March 2014. And then the additional term of two years expiring the same date 2016. And you are sentenced to an overall sentence of seven years with a non-parole of four years to date from 24 March 2011 and the four year non-parole period will expire on 23 March 2015. The additional term will expire 2018.

HIS HONOUR: The effect of all that so that you can understand it, you earliest date of release is seven years from when you went in and the overall sentence is ten years from when you went in. So you will have three years parole.

30/11/2011 - Offender's name replaced with AS - Paragraph(s) various