R v Austin

[2020] NSWDC 451

District Court

New South Wales

Medium Neutral Citation:

R v Austin [2020] NSWDC 451

Hearing dates:

17 July 2020

Decision date:

13 August 2020

Jurisdiction:

Criminal

Before:

M Adams QC ADCJ

Decision:

16 months imprisonment commencing on 26 August 2019

Non-parole period is 12 months

Catchwords:

CRIME – SENTENCE – act of indecency – early plea of guilty

Legislation Cited:

Crimes Act 1900 (NSW)

Child Protection (Offenders Registration) Act 2000

Crimes (Sentencing Procedure) Act 1999

Category:

Sentence

Parties:

Director Public Prosecutions (NSW)
Andrew Austin (Offender)

Representation:

Counsel:
A Wong of Counsel (Offender)
P Low, Solicitor Advocate (Crown)

Solicitors:
Legal Aid Commission (Offender)
Director of Public Prosecutions

File Number(s):

2019/266194

Publication restriction:

none

Judgment

Introduction

1. The offender Drew Monreax (known at the time of the offence as Andrew Charles Austin) comes to be sentenced on one charge to the following effect –

Between 1 August 1992 and 30 September 1992 in Newtown in a state of New South Wales he assaulted a child then under the age of 10 years, namely six years of age, and at the time of such assault did commit an act of indecency on him, in circumstances of aggravation namely when the said child was under the authority of the alleged offender, an offence under s 61M(2) of the Crimes Act 1900 (as it then was).

2. The offender is liable to a maximum penalty of 10 years imprisonment. He pleaded at the earliest opportunity and is therefore entitled to a discount of 25% to the term of imprisonment which otherwise would be imposed.

Facts

3. A statement of agreed facts, from which the following account is taken, was tendered in the proceedings.

4. The offender was 24 years of age at the time of the offences, whilst the complainant was six years of age. Between 1991 and the end of 1992, the offender was employed as a carer in an after-care organisation run by a committee of parents of children attending a number of schools in the area. The offender’s duties included caring for children at the facility, taking them to and from after-care and supervising activities in a nearby park.

5. The complainant, aged six years, and his sister, aged eight years, attended a primary school near to their home, the complainant in year 1 and his sister year 3. The offender’s mother was studying at TAFE during the week and would routinely finish around 4pm from Monday to Wednesday and pick up the children at about 5pm. The after-care organisation was recommended to her by the principal of her children’s school. She got to know the staff, including the offender, and got on well with them.

6. The complainant recalled the defender, “Drew” as being “fun” and actively of involved with the children. He was a “hands-on carer” who would initiate wrestling, spin him around and put his arms around him. He often took children from the after-care centre to play in the nearby park. The complainant looked up to the offender as an older brother figure, in part perhaps because there was no male influence in his life.

7. In August or September 1992, the children’s mother asked the offender to babysit for her. This was unusual as she would often take the children with her for after study activities. The offender said he would prefer to babysit them at his flat and for the children to stay over. The mother agreed and took them to the flat at about 6:30pm, leaving them there with the offender. The girl went to sleep in a bedroom near the entrance of the flat, whilst the offender and the complainant went to the lounge room to watch television. They sat close to each other on beanbags. The room lights were off, with the only light coming from the television. The complainant was wearing long pyjama pants and a T-shirt.

8. The offender put his left arm around the complainant’s shoulder and began to cuddle him and stroke his arms and legs. He caressed his upper thigh with his hands and kissed the area over the top of his pyjama pants. He tugged at the elastic waistband on the complainant’s pyjama pants. As a result of the touching, the complainant recalled feeling an unfamiliar sensation like he needed to urinate but did not have an erection. The offender continued to play with the waistband of the complainant’s pyjama pants for about a minute and, thinking this was what the offender wanted, he pulled his pants down to about his knees. The offender bent over towards the complainant’s groin and licked his penis a couple of times. The complainant did not have an erection. He felt uncomfortable and did not like what was happening. He saw light underneath the front door and heard people outside. He wanted to shout out but was unable to move or speak.

9. The complainant does not recall how the offender stopped but remembers him standing in the light of the window in the living room with a glass of drink and wearing only his underpants. The offender said, “What you did is a really bad thing. If you tell anyone you will get into a lot of trouble”. The complainant felt guilty about what had happened and nodded. The offender took him to the bedroom where his sister was sleeping and put him to bed on a single mattress on the floor. The complainant does not recall falling asleep or how he got home.

10. The offender left the after-care centre towards October/November 1992. As it happened, the complainant and his sister and mother saw the offender at a Sydney suburban train station. The complainant was afraid when he saw the offender and was frightened that he would tell his mother what had happened and that he would be in trouble. The offender told the complainant’s mother that he had stopped working at the after-care centre to start another job in Melbourne and had difficulties with his accommodation. The mother invited him to stay at her place for a few days. He slept in the lounge room. Whilst there, the offender came into the bedroom of the complainant and his sister in the middle of the night. There was a sheet dividing the room and some light coming from outside the window. The offender stood at the foot of the complainant’s bed and asked, “Have you told anyone?” The complainant shook his head and said, “No”. The offender left the room.

11. In late 2007 the complainant told his sister that the offender had indecently assaulted him on the night that they were in his flat. He also told her that during the night that the offender had stayed in their home he checked whether he had told anyone and he had said he had not. The complainant’s sister told her mother what the complainant had told her. He eventually reported the matter to Sutherland police on 6 December 2018.

12. The offender was arrested and charged on 25 August 2019. He has been in custody in respect of this charge since that date which, in the circumstances, is the appropriate commencing date of any sentence that is imposed.

Criminal record

13. On 30 June 2006 the offender was convicted in the Local Court of four offences of indecent assault committed in September and October 2004. The victims were three male children aged five, seven and 10 years. The offences occurred in their homes and involved the offender touching the children’s genitals and removing their clothing. At the time, the offender was engaged as their English tutor. Following an appeal to the District Court, the offender was sentenced to an effective term of imprisonment of 28 months, with a non-parole period of 16 months.

Victim Impact Statement

14. A statement about the impact of the offence on him was read by the victim, of course, now adult. He vividly described how the actions of the offender had caused his childhood to become “empty, a dark vacuum of nothing but shame, regret, fear and sadness … [with] a perpetual feeling of humiliation”. This was exacerbated by being told by the offender that he was the perpetrator and not the victim. The victim spoke of the continuing psychological damage caused by the offence which still affects his emotions and relationships.

15. Damage of this kind is inherent in these offences against children and is part of the objective seriousness which must be taken into account on sentence. This being so, it is not appropriate to regard it as a circumstance within the meaning of s21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999.

Subjective features

16. Tendered (without objection) on behalf of the offender was a report dated 2 July 2020 from Mr Patrick Sheehan, a forensic psychologist. Mr Sheehan took a history from the offender, which provides the material from which the following brief account is taken. The offender was born in Newcastle, New South Wales, to Australian parents and was adopted at birth by an Australian couple and raised in Western Sydney. He has an older and younger siblings in his adoptive family. Both his parents worked. There were no familial issues with mental illness or criminality. Although he was well care for, the offender described a complex and dysfunctional home environment resulting essentially from the heavy drinking and violence of his father towards his mother and the children. He only discovered that he was adopted when he was eight years of age when he was informed by a local peer. This information shocked and destabilised him, as he had been told that his birth mother had died in childbirth, which had caused him overwhelming guilt. His relationship with his adoptive father deteriorated as he entered his teens and, at the age of 16 years, he ran away from home and was supported by a fundamentalist church group. When he was 18 years of age he returned briefly to the family home but left again within a year and has lived independently since that time. He ceased all contact with his family since the age of 21 years.

17. The offender had made contact with his birth mother whilst young and established a positive relationship with her, which was undermined eventually by her controlling partner and, as the offender described it, “eventually she turned against me” and he discontinued all contact by his mid-20s.

18. The offender reported no learning difficulties or behavioural problems and did well at school, leaving at year 11 when he left home. He has undertaken some study since then. He has been consistently employed, mostly in hospitality and retail but recently suffered a hernia which stopped him from working. He intends to re-enter the workforce immediately after release.

19. The offender identifies as homosexual and described a difficult time of adjusting to this, especially when he was associated with the church. He has had several relationships and a number of continuing friendships. He was single when he committed the current offences in 1992 but in a relationship at the time of the other offences in 2005.

20. There appear to be no issues with alcohol or illicit substance use. He reported a largely unremarkable health history, except for an abdominal hernia and long-term gastrointestinal discomfort which led to a diagnosis of irritable bowel syndrome prior to his arrest for the current matters. He is not taking any medications. He has been troubled by exposure to traumatic experiences in custody, having witnessed bashings, a stabbing and fights. Although he sought support through the Mental Health Nurse, he has received none.

21. The offender acknowledged his offence in general terms, referring to sexual and identity confusion at the time. He denied he planned the offence, saying it had been opportunistic. He said of his actions that they would have been very confusing for the victim, he had betrayed his confidence, having relied on him to have a clear sense of boundaries and make his world safe and “I didn’t provide that”. The offender told Mr Sheehan that the 2006 convictions involved brief sexual touching of three male complainants under the age of 10 years whom he was tutoring. Mr Sheehan thought the offender was less able to explain the antecedents to these offences. However, he described “efforts over the past 15 years to address factors of poor boundaries, sexual confusion, lack of integrity and underdeveloped morality and empathy, which he saw as underpinning his offences”. Mr Sheehan thought this description was persuasive.

22. Mr Sheehan’s opinion is that some sort of personality pathology is indicated, since the offender showed problems with his appraisal and judgment that have undermined his adjustment in life and inconsistent with his evident level of intelligence. His early problems may well have played a role in his sexual offences. The evidence is not conclusive but indicates a paraphilic disorder, specifically Paedophilic Disorder (Non-exclusive, attracted towards males). He denied sexual attraction towards boys aged under 16 years despite his sexual offences. Mr Sheehan thought that the offender’s sexual offending did not appear to be underpinned by antisocial personality orientation and that he would be considered to be in the “Below Average” risk category for sexual reoffending when considered against actuarial factors. The dynamic risk factors would seem to relate to personality dysfunction, sexual confusion and possible paraphilia disorder. He thought the 15 years spent unsupervised in the community without evidence of further sexual offending was significant, with the passage of time suggesting there were either internal changes (in thinking), behavioural changes, or situational factors that contributed to protection against further offences during that time. The offender, he noted, was amenable to targeted treatment to further address his offending. His below average risk rating made it highly unlikely that he would be found suitable for the sexual offender programs available in custody, although he would be potentially suitable for low intensity interventions. However, Mr Sheehan pointed out that there were waiting lists for all these programs and no means of estimating when (or, as I understand it, whether) he might be offered treatment.

23. Two testimonials have been tendered on behalf of the offender. One is from a part-time teacher who has known him for over 25 years both as co-worker and friend. It is clear that he views the present offence as an aberration in the conduct of the offender which has, in this person’s experience, been responsible and positive. The same opinion is expressed in the second testimonial, written also by someone who is known the offender for many years and was, for a time, his partner. The offender has expressed his remorse for the offence to him. I bear in mind, of course, that only positive testimonials are likely to be tendered but, at the same time, both these persons know the offender well and, as I understand it, will continue their support of him when he is released from custody. I have taken into account what they have said on his behalf.

Assessment

24. Sexually interfering with a child only six years of age is patently a serious crime, especially when the child is placed in the care of the offender. Although the complainant here was not old enough to know what was happening more than to make him feel uncomfortable, he was old enough to recall what the offender did, with long-lasting consequences. Making the child feel guilty for what happened in order to ensure his silence exacerbated this situation. The offender not only breached the trust of the child but also that of his mother. (It should be noted that the factors listed in s21A(2)(k) and (l) of the Crimes (Sentencing Procedure) Act 1999 are elements of the offence and not additional aggravating matters.) There can be no doubt that considerations of general deterrence require a sentence of full time imprisonment and the need to deter others who might be tempted to commit similar offences.

25. In considering objective factors it is necessary to bear in mind that the extent of physical interference was relatively slight with no coercion involved and of short duration, for all that the psychological consequences were long lasting. I am also satisfied that the offender’s conduct was unplanned and spontaneous.

26. I have concluded that the circumstances of this offence lie towards the lower end of objective seriousness.

27. I have mentioned the offender’s 2006 convictions, which appear to concern much the same kind of conduct, although with three victims rather than one. I do not think these convictions aggravate the seriousness of the present offence, although they might suggest a risk of future offending. Overall, however, taking into account especially the lengthy period that has elapsed since their commission, I do not consider that because of them the sentence needs to give greater significance than usual to the element of personal deterrence. Nor do I think that the psychological features identified in Mr Sheehan’s report significantly add to the risk of reoffending.

28. The offender has expressed remorse. In the circumstances, his plea of guilty should be regarded as cogent evidence of contrition, given the nature of the prosecution case. Overall, I am of the view that the risk of reoffending is low.

29. I am not satisfied that there are special circumstances present that would justify a variation of the statutory ratio prescribed by s 44 of the Crimes (Sentencing Procedure) Act 1999.

30. The offender has made complaints about his treatment in prison, which (following an examination of the Justice Health records) appear on the face of it to be justified, that his medical needs, in particular for an adjustment to his diet because of irritable bowel syndrome have not been appropriately dealt with in custody. He says that he has often been unable to eat the meals that have been provided. If this is the case, it obviously requires attention. Prisoners, whatever their crime, must be treated appropriately. The prison authorities have undoubted legal responsibilities to ensure this occurs. However, the state of the evidence does not permit me to take this issue into account for present purposes.

Sentence

31. The offender is sentenced to a term of 16 months imprisonment commencing on 26 August 2019. The non-parole period is 12 months, expiring on 25 August 2020. The offender is to be released on parole on 25 August 2020.

32. I note that the offender is a registrable person under the Child Protection (Offenders Registration) Act 2000, as the offence is a Class 2 registrable offence.

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Decision last updated: 14 August 2020