R v Belmore (a pseudonym)

[2020] NSWDC 320

District Court

New South Wales

Medium Neutral Citation:	R v Belmore (a pseudonym) [2020] NSWDC 320
Hearing dates:	5 February and 22 May 2020
Decision date:	22 May 2020
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment of 3 years and 3 months with a non parole period of 1 year 6 months.
Catchwords:	CRIMES - SENTENCE - sexual intercourse with a person over 10 years but under 14 years of age
Legislation Cited:	Crimes Act 1900 (NSW), s166C(1)
Category:	Sentence
Parties:	Regina (Crown) Mr Belmore (a pseudonym)
Representation:	Mr Valerio (ODPP Campbelltown) Mr Walsh (Solicitor for the offender)
File Number(s):	2018/288496
Publication restriction:	Non publication order made of the name of the offender, the victim and any other information which might, directly or indirectly, identify either of them.

Judgment

1. Mr Belmore (a pseudonym), you appear for sentence today in relation to three principal offences. 

2. Each of those offences is having sexual intercourse with a person over the age of 10 years, but under the age of 14 years.  Each offence involves a contravention of s 66C(1) of the Crimes Act.  The maximum penalty for each offence is 16 years' imprisonment and there is a standard non‑parole period of 7 years' imprisonment.

3. In addition to the three principal offences, you have asked me to take into account, in relation to sequence 3, two matters on a Form 1 which I have certified.  Each of those matters is also a matter of sexual intercourse with a person above the age of 10 years, but under the age of 14 years.

4. The circumstances surrounding your offending are not in dispute and, to a large extent, are contained in an agreed statement of facts. But, before turning to those agreed facts, some background is helpful.

5. You were born in October 1998 and you were the last of five children which your mother had: the eldest two were to one partner; the second two were to a second partner; and your father was a third partner. 

6. You never knew your birth father.  Your mother, after you were born and when you were about 7 years of age, commenced a relationship with another man - but he was never a father figure for you, in part, no doubt because he worked nightshifts.  You did, however, have some appropriate adult male role model and that was an uncle who was your mother's brother‑in‑law. He had a very good influence on you, it would seem, and possibly was the only source of positive love and support when you were a young child.

7. Probably because of your emotional isolation from and within your own family, as a school boy, you became involved in a Pentecostal Church. At this church, you found the sort of emotional support and attachments which had been missing from home.  You have described the circumstances of your living at home, the effective absence of your mother through her addiction to alcohol and cannabis, and the emotional separation you had from your elder siblings - but at the church, these gaps were filled.

8. It was at that church (where you were the leader of the youth group when you were 18 years of age) that you came to meet the family of the victim of your offending. 

9. In the beginning, your connection with this family was through the mother; but, eventually, you became friendly with the eldest of their children who was only 13 years old.

10. Unknown to the parents of that child, you started a romantic relationship with this 13 year old child.  Her parents, of course, knew nothing about this. You and the child deliberately kept this from them.

11. This was improper because: you were an adult; a responsible member of the church; and as the leader of a youth group, you had undergone studies concerning inappropriate conduct and compulsory reporting.

12. This family came to know of your difficulty circumstances at your home.  Those difficult circumstances are properly described as a dysfunctional upbringing.

13. This family at the Pentecostal Church, knowing of your dysfunctional background, and in accordance, no doubt, with their strongly held Christian beliefs, took you into their home; and as you, yourself, have said, they did it out of love.  They provided you with a roof over your head.  They provided you with food.  They provided you with your own room.  They provided you with a motor car - but more than that, they trusted you.

14. When you moved into that house, the nature of the relationship which you had with the 13 year old girl quickly developed into a sexual relationship. You and she regularly had sexual encounters together. 

15. It is true that you did not use coercion or force or blackmail or anything of the kind.  It was, what is described as, a non‑oppositional participation by the child.

16. The offences for which you are to be sentenced today were not isolated offences.  You are not to be punished for the uncharged acts, but it cannot be said that these principal offences, and the matters on the Form 1, were isolated.

17. I shall now set out the circumstances of the various offending.  I shall not go into the details contained in the agreed statement of facts.  I shall just summarise them for my purposes today. 

18. The first offence occurred sometime between when you moved into the house in July 2017 and late August 2017.  You and the victim were on a lounge downstairs and the other members of the house were upstairs asleep.  Whilst on that lounge, you digitally penetrated her vagina. 

19. That is one of the matters on the Form 1 (sequence 2) which is to be taken into account with sequence 3.

20. The intimacy between you and the victim developed and you performed cunnilingus upon her.  That is the principal offence, sequence 3. 

21. On another occasion, when you were in the house and the family, who trusted you, were asleep she performed fellatio upon you, that included ejaculation.  That is sequence 4.

22. In late August 2017, the victim's mother was due to travel to Canberra for a work conference. You and the victim asked this unsuspecting mother if you two could go with her.  She agreed - but you and the victim had already discussed the trip.  You and the victim had already spoken about how it would provide an opportunity for the two of you to engage in sexual intercourse. 

23. When the mother of the victim went to work, leaving you and the victim alone, you went to a supermarket and bought condoms; and then you and the victim had penile/vaginal intercourse.  That is sequence 7.

24. In about September 2017, the victim's grandmother died. Around about that time, you and the victim sought the victim's mother’s permission to go and see a movie.  That permission was given, but you did not go to see a movie.  You and the victim drove to an isolated spot where she performed fellatio upon you to the point of ejaculation.  This is the second matter on the Form 1 (sequence 8) which is also to be taken into account in relation to sequence 3.

25. In late 2017, you revealed to the victim's father that you had developed feelings for his daughter.  You and the victim dishonestly told that gentleman and his wife that nothing had ever happened between the two of you.  Her parents permitted you to remain in their house, but stricter rules were put in place, including that you and the victim were never to be alone together.

26. In March 2018, you told the victim's parents that you had told some of your friends at the church about your feelings for their daughter and, as a result, those kind people decided it was time for you to go - and you left, in about March 2018. 

27. After you left the house, the relationship between you, the victim and her family deteriorated.  Precisely why is not revealed in the material before me. But in July 2018, a young man known to both you, the victim, and the victim's parents - and who was a member of a church group - found out what had happened between you and the victim; and he quite properly told the victim's parents.  They, of course, were devastated.

28. The police were informed and you were, ultimately, arrested on 20 September 2018. 

29. At all times, you knew that the victim was 13.  At all times, you knew the age of consent was 16.  At all times, you knew that what you were doing was morally and criminally wrong.

30. It is necessary for me to form an assessment of the objective seriousness of the offending for offences of their kind.  In relation to sequence 3, it is just below the midrange.  In relation to sequence 4, it is just below the midrange.  In relation to sequence 7, it is at the midrange. 

31. The two matters on the Form 1 in relation to sequence 3 mean that there will be a meaningful increase in the relevant sentence for that principal offence. 

32. Each of the principal offences is additionally aggravated by the fact that it was committed in the home of the victim.

33. Two victim impact statements have been provided to the Court: one from the primary victim of your offending (that is, the girl herself); the other from the victim's mother. 

34. It is clear from the primary victim’s impact statement that very significant psychological damage has been done to her. But it is not an additionally aggravating feature because such a reaction is a common reaction to offences of this kind.  However, that is not to understate or underplay that consideration.

35. The second victim impact statement from the primary victim's mother, informs me that the primary victim is undergoing therapy.  The victim's mother and father are also undergoing therapy.  That is all a direct result of what you did.  That lady has also told me about how she has been treated (or I would say mistreated) by the church of which she was a participant.  Not much of the love of Christ has been shown to that family by the members of that church - but it is not your fault that they have been ostracised by the other members of that church.  You are not morally responsible for that conduct but, to an extent, you did contribute to the gossip which spread around the church.  You told some of your friends of what had happened.  True it is, you may have told them in the context of charges being laid against you, but you did reveal what you had done with the victim to others.

36. You are now 21 years old. 

37. I set out some of your background at the beginning of these remarks, but I should expand upon some of it. 

38. I mentioned earlier your involvement with the church and your attraction to it and how it filled the gap in your life.  You were intending to become a chaplain in that Pentecostal Church but, following your arrest, of course, that career path has closed. 

39. When you were removed from the ministry, you worked as a bar tender and as a landscaper. You have a good work history for someone so young. 

40. You have no previous criminal offences – although, in connection with offending against children, that is a consideration of reduced significance. But it is still relevant.

41. Because of your unfortunate childhood, you have been diagnosed with a major depressive disorder and generalised anxiety disorder. 

42. I do pause to note that following your arrest, you have, on three occasions, attempted suicide.  I have made a specific mention of that for two reasons this afternoon.  First, because it shows, at the time, your remorse; but, secondly, the officers who are present in Court have a protocol that they will follow this afternoon to take more particular care of you because of that ongoing risk.

43. I just mentioned that your suicide attempts were a reflection of your remorse; and I accept your evidence in the witness box today that you are genuinely remorseful for the damage that you have done to the victim: who was your friend; a person for whom you were responsible as a leader in your church; and as someone who had been taken in and trusted by her family in their house. You have also expressed genuine remorse for the damage that you have done to her extended family.

44. Remorse is an important factor in considering an offender's prospects of rehabilitation. 

45. Other factors are steps that an offender has taken before sentence to address his underlying offending behaviour. In this regard, you have engaged with Mr Ballady, a psychologist; the Positive Lifestyle Program conducted by the Salvation Army; and another psychologist that Mr Ballady referred you to. 

46. Although Mr Ballady said that, in his opinion, you have a low to moderate likelihood of reoffending, my independent assessment is, having regard to all of the factors, that your rehabilitation prospects are reasonable. They would be enhanced by a longer period a parole. 

47. It follows from what I have just said that I have concluded that, in relation to each of the principal offences, no sentence other than a period of fulltime imprisonment is appropriate.

48. Because you were 18 at the time, you are not to be sentenced as if you were a fully mature adult.  The law mandates that for such young offenders, general deterrence (that is, fixing a sentence that will discourage others) is of reduced significance. And in your case that is even further reduced because of your underlying psychological conditions which you have suffered from for a very long time. But specific deterrence (that is, imposing a sentence that will deter you from reoffending) is fully engaged - as is the need to encourage your rehabilitation.

49. You pleaded guilty at the first available opportunity and you will, therefore, receive an effective discount of 25% for your early plea which not only contained an acknowledgment of the strength of the Crown case, but also contained a strong element of remorse.

50. I intend imposing an aggregate sentence.  It is, therefore, necessary for me to state the indicative sentences which underpin the ultimate aggregate sentence. 

51. In relation to sequence 3, and taking into account the two matters on the Form 1, except for your plea of guilty, the indicative sentence would have been imprisonment for 2 years 6 months.  After the plea of guilty, the indicative sentence is 1 year, 10 months. The indicative non-parole period is 11 months.

52. In relation to sequence 4, except for your plea of guilty, the indicative sentence would have been 2 years' imprisonment.  Because of the plea, the indicative sentence is 1 year, 6 months. The indicative non-parole period is 9 months.

53. In relation to sequence 7, except for your plea of guilty, the indicative sentence would have been 3 years' imprisonment.  After the discount of 25%, the indicative sentence is 2 years and 3 months. The indicative non-parole period is 1 year 1 month.

54. Mr Belmore, for the three principal offences to which you have pleaded guilty, I sentence you to an aggregate term of imprisonment of 3 years and 3 months. 

55. I impose a non‑parole period of 1 year, 6 months to date from 22 May 2020 and which will expire 21 November 2021.  This means that I have made a finding of special circumstances to significantly vary the ratio of the head sentence to the non‑parole period.  I have done that because of your youth and because of your underlying psychological issues.

56. I fix a balance of 1 year and 9 months to date from 22 November 2021 and which will expire on 21 August 2023.

Decision last updated: 24 June 2020