R v BP (No 2)

[2019] NSWDC 446

District Court

New South Wales

Medium Neutral Citation:	R v BP (No 2) [2019] NSWDC 446
Hearing dates:	7 June 2019
Date of orders:	07 June 2019
Decision date:	07 June 2019
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	At [47]-[48]
Catchwords:	CRIME — Child sex offences — Sexual intercourse with child <10
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v Holyoak (1995) 82 A Crim R 502 Veen v The Queen (No 2) (1988) 164 CLR 465
Texts Cited:	None
Category:	Sentence
Parties:	Regina (Crown) BP (Offender)
Representation:	Counsel: Ms K Tennant (Crown) Mr J O’Sullivan (Offender)   Solicitors: ODPP (Crown) David Kelly Lawyers (Offender)
File Number(s):	2017/313106
Publication restriction:	Non-Publication Order with regards to the name of the complainant and the Offender

Judgment

1. BP is now before the Court for sentence in relation to two charges to which he pleaded not guilty and has maintained that he is not guilty but in respect of which a jury found him guilty.

2. Those charges are:

1. indecent assault where the victim was under the age of ten years, in contravention of s61M(2) of the Crimes Act. That carries a maximum penalty at the relevant time of ten years and a standard non-parole period of five years; and

2. the second charge in respect of which he was found guilty by the jury was sexual intercourse with a person under the age of ten years in contravention of s66A of the Crimes Act which charge carries a maximum penalty of imprisonment of 25 years and a standard non-parole period relevantly at the time of 15 years.

3. There are no matters to be dealt with by way of a Form 1 or any related back-up charges.

4. The relevant offending took place between 22 July 2004 and 31 December 2006. The Offender was in custody bail refused between 17 October 2017 and 5 December 2017, a period of 50 days and also following the jury’s verdict on 5 April 2019 through to today, 7 June 2019, a period of 64 days. It is agreed that his sentence ought to be backdated to reflect that fact by a period of 114 days. The commencement date for the sentence, therefore, is 13 February 2019.

5. The evidence on sentence comprised the Crown Sentence Summary (Exhibit A) and the Detention Application and documents attached thereto in relation to an intervening event (Exhibit B). On behalf of the Offender, a report by Lee Knight, psychologist, dated 3 June 2019 (Exhibit 1). I was also provided with submissions on behalf of the Crown (MFI 1).

Facts

6. A jury having found the offender guilty, it is incumbent upon the Court to make factual findings consistent with those verdicts. I have been assisted by facts as they have been agreed between the parties and which are set out in MFI 1 and which I shall read onto the record:

7. The complainant, JB, was born in 1997. In 2004 she was living in Kariong with her mother, KM and her stepfather, the Offender. In 2004, JB had a budgie called Sunshine which died at some stage when she was in Year 3. JB first spoke to police on 18 February 2013 when she was 16 years old about the sexual assaults by the Offender after speaking to her mother and a counsellor. She was then re‑interviewed by police on 29 July 2016 when she re-watched her interview of 18 February 2013.

8. JB told the police that the Offender was moody and that if he had a bad day he takes it out on anyone that’s around him. She stated that he gets snappy. During the interview of 18 February 2013, JB said she was there to talk about ‘stuff he has done’ referring to the Offender. She said that she had already told her mum and counsellor that week and she didn’t want to talk about it anymore. During that interview, she wrote down on a piece of paper, ‘When I was eight or nine he inappropriately touched me’ and then said, ‘My stepdad’.

9. JB later said that she was eight years of age at the time. She said that he did it twice. The first time was in the lounge room at Kariong when they’d been watching the movie, I, Robot. JB’s mum had gone to bed. JB was on the lounge and the Offender was on the other lounge. The Offender asked if he could move onto JB’s couch and she mumbled, ‘No’. The Offender then moved to the same lounge as JB. JB described it as being squished onto the same lounge. JB was wearing long pyjama pants. The Offender then got his hand and placed it under JB’s pyjama pants on top of her vagina and started rubbing her.

10. The first thing JB felt was the Offender using two or three fingers in a circular motion up the top of her vagina below the underwear line. She then remembered feeling him move his fingers down and feeling pressure on her clitoris and at the entrance to her vagina with a feeling of pain. JB felt pressure and pain again when the Offender moved his fingers towards the entrance to her vagina.

11. JB described the pain as like a ‘blunt sort of pain like getting punched or something’. She wanted to cry but she was too scared to do so in front of the Offender for fear he would lose his temper with her. JB then got up, went to the bedroom, got into bed and started to cry.

12. JB heard the Offender go and have a shower and ten minutes later he came into her room and said, ‘I’m sorry, don’t tell mum, it’s our secret’. JB did not tell anyone about it again until much later. JB told her friends CM and KH first and then about a year later on 13 February 2013 told her mum on the way to the dentist. That conversation was prompted by JB’s mother after she had noticed scratches on JB’s arm. JB stayed at her friend’s house that night and returned home in the morning. The Offender came into the kitchen where JB was and said, ‘I touched you, did I? That’s f’ing bullshit’.

13. These assaults occurred between 2004 and 2006. This was not an isolated event. The Offender tried to touch JB a second time while she was on holidays in Queensland. JB was staying with a member of the Offender’s family. She was sleeping on a mattress on the floor in a bedroom with her mum and the Offender. The Offender woke in the night to go to the bathroom. He was not sure where to go so JB’s mother took him.

14. He came back to the mattress first and leaned over and touched JB on the outside of her pyjama pants and her vagina. It was just his fingers. JB’s mum walked into the room a short time later and he stopped. This assault occurred on 11 April 2012. JB kept a diary between 2009 and 2016 and the relevant entries were tendered as Exhibit D in the trial from page 29 in the transcript.

Objective Seriousness

15. In sentencing any offender, it is necessary to have regard to the objective seriousness of the Offender’s conduct. It was submitted on behalf of the Offender that it was at or about the mid-range as the offending pertaining to both counts was opportunistic.

16. The Crown does not take exception with the fact that the offending was opportunistic, however, in considering objective seriousness, the Crown has referred the Court to the following aggravating factors, which I accept:

1. that the offence occurred in the home of the victim; and

2. that the Offender abused a position of trust.

17. In relation to the first matter, it occurred in an environment where the complainant, JB, was entitled to feel safe and secure. That trust was breached by the Offender who was at the time also living in those premises as her stepfather.

18. In my view, the offending in relation to the first count of indecent assault falls just below the mid-range. In relation to the second count of sexual intercourse with person under the age of ten, I find the objective gravity of the offending is at the mid-range.

19. In drawing those conclusions, I have had regard to the effect that the offending has had on the victim, perhaps best illustrated by a diary which she kept between 2009 and 2016 which, although was created after the event, it demonstrates the feelings which the complainant was experiencing at the time contemporaneous to experiencing those emotions.

20. I do not intend to read out the diary entries in Exhibit D. I note, for example, at page 4 of Exhibit D, the following appears, “My perfect days are always ruined by [BP]”. I note also references to the fact that JB was terrified of BP and that he made her life miserable and dark. The diary entries are repetitive with references to the emotional impact that the offending had upon the complainant, JB.

Subjective Case

21. In considering the subjective case, I have had regard to both the Sentencing Assessment Report and also the report by the psychologist. The Sentencing Assessment Report recorded that the Offender had limited history of anti-social behaviour in the past with prior convictions for driving and violence. As was observed by the Crown today, there are a number of entries of common assault and resist arrest which demonstrated tendency to violence.

22. The Offender’s criminal record, part of Exhibit A, is not such that it aggravates the subject offending but rather disentitles him to any finding of leniency. I further note in terms of attitudes, the Sentencing Assessment Report recorded that the Offender has maintained his innocence in relation to the offences and deny that he committed the offences claiming that “It never happened”. Nevertheless, the author of the Sentencing Assessment Report assessed the Offender as being of medium risk of re-offending and identified a number of supervision plans which may assist in the rehabilitation of the offender.

23. I have also read the report by the clinical nurse, Lee Knight, who is also a lecturer in Psychiatry and one would infer from that that she has the necessary training, study or experience to express the views contained in the report of 3 June 2019. Although, I note that the content of the report was not bolstered by the Offender giving evidence as to the accuracy of the factual matters upon which the opinion is based.

24. Nevertheless, there are a number of matters there that provide greater insight into the Offender. He has five adult children and five grandchildren. He maintained to the nurse that he was not guilty of the offences charged. The past medical history included difficulties breathing and also surgery for perforation of the eardrum. He also suffered a number of prior head injuries with some loss of consciousness.

25. His drug and alcohol history is limited. He smoked cannabis between the ages of 11 and 21. He experimented with amphetamines for about six months in his early 30s and otherwise denied illicit drug use.

26. He was born in Auckland in 1969. His childhood appears to have been quite satisfactory. He had a good relationship with his parents prior to their death and he described his childhood as being happy. Regrettably, he was sexually assaulted by a school principal whilst on a school camp and the details pertaining to that are referred to on page 4 of the report.

27. At the age of 28, he moved to Australia and commenced working as a form worker. He had a number of relationships commencing with MP, with whom he had a son and daughter; and NP with whom he had three children being a son and twin girls. His next relationship was with KM, the mother of the complainant, JB, which ended after the allegations, the subject of this trial, were raised.

28. He then commenced a relationship with BM and also AP and despite the fact that he is in custody and has been incarcerated, the nurse recorded that they tend to remain in a relationship.

29. It is also encouraging that he has good relationships with his siblings and he appears to have a relatively strong support network. He speaks to AP about twice a day.

30. The mental state examination performed by the author of the report is generally unremarkable save for the fact that the Offender maintained his denial of guilt in relation to the offending and became defensive as a result of that position. There was no evidence of any psychotic disorder upon assessment.

31. The author of the report considered the risk of re-offending at the base of page 7, top of page 8 of the report and it is not inaccurate to say as counsel for the Offender submitted that the risk was assessed as being lower than that assessed in the Sentencing Assessment Report.

Approach to Sentencing

32. The intuitive process of sentencing involves synthesising the objective seriousness of the crime and the subjective circumstances of the Offender to arrive at a sentence that best meets the purposes of sentencing set out in s3A of the Crimes (Sentencing Procedure) Act, which in turn reflects the common law, including the protection of society and deterrence of the Offender and of others who might be tempted to offend in a similar matter.

33. I note the comments of the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465. The purposes set out in s3A may and often do overlap and point in different directions. Of necessity, the promotion of rehabilitation of the Offender, if successful, is the best way of ensuring that the Offender does not commit other similar offences. Yet the promotion of rehabilitation may point to a different conclusion or a different synthesis than factoring into the sentence adequate punishment and denunciation of the conduct of the offender.

34. Each of the purposes are a guidepost to the fixing of the appropriate sentence and none of them can be considered in isolation. Also as a guidepost are the maximum penalties applicable to each of the two offences which I previously referred to together with the standard non-parole periods which apply.

35. It was submitted on behalf of the Crown that given the history of violent offending, there was a particular need for specific deterrence in this case. There is always difficulty in a case where the accused or the Offender pleads not guilty but later is found guilty to determine the extent to which rehabilitation for the offending is required.

36. The Court must proceed on the assumption that he is, of course, guilty of the offences and therefore has a need for rehabilitation. The principles of proportionality require that the sentence should neither exceed nor be less than the gravity of the crime having regards to the objective circumstances. There must be reasonable proportionality between the sentence and the circumstances of the crime. The relative importance of the objective facts and the subject features will vary in every case and due weight must be given to the objective circumstances as the Court engages in the process of distinctive synthesis.

Imprisonment

37. Prior to imprisoning an offender, the Court must be satisfied, having considered all possible alternatives, that no sentence including non‑custodial sentences other than imprisonment is appropriate.

38. No submission was advanced on behalf of the Offender that any sentence other than imprisonment was appropriate and I find, having considered all the possible alternatives, that imprisonment by way of full time custody is appropriate and the only reasonable sentencing outcome in this case.

Delay

39. The question of delay has arisen by reason of the time which has elapsed between the offending and the sentence. It was submitted by the Crown that the issue of delay can in certain circumstances be taken into account as a mitigating factor on sentence where there has been a lengthy delay between the time of the offence and the sentence. Reference is made to a decision of the Court of Criminal Appeal of R v Holyoak (1995) 82 A Crim R 502 at 508.

40. Despite acknowledging that fact, the Crown then submitted that this was not one of those situations as the Offender has not suffered any detriment as a result of the delay. Further, it is submitted that it cannot be said that there was any significant prosecutorial delay once complaint was made to police.

41. Again, less weight is attributed to the delay in these matters as it is common for young children to complain only after a number of years have passed. Notwithstanding the submissions advanced by the Crown in that respect, I have had regard to the delay between the offending and the sentence as justifying a more lenient sentence than would otherwise be applicable.

Special Circumstances

42. Counsel for the Offender submitted that special circumstances ought to be found on the following grounds:

1. the Offender suffers from breathing difficulties or asthma referred to in the medical evidence;

2. the need for only a small very partial accumulation in respect of the sentence;

3. the fact that it is the Offender’s first time in custody; and

4. the fact that the two counts, namely the two charges for which he is found guilty occurred as part of the same event.

43. In the circumstances, I accept those submissions and find special circumstances justifying a variation in the statutory ratio of parole to non‑parole.

44. It is agreed that the commencement date is 13 February 2019 reflecting the time spent in prison prior to today.

Totality

45. In considering the charges, I am of the view that the sentences to be imposed ought to be wholly concurrent as the events occurred not quite simultaneously but as part of the same conduct of offending. To find otherwise would be to offend the principles of totality and would result in a sentence harsher than the circumstances required.

Pronouncement of Conviction and Sentence

46. BP, for the charge of indecent assault where the victim is under the age of ten in contravention of s61M(2) of the Crimes Act, you are convicted. For the charge of sexual intercourse with a person under the age of ten years in breach of s66A of the Crimes Act, you are convicted.

47. In relation to the first charge, I impose a non-parole period of two years commencing 13 February 2019 and expiring 12 February 2021 with a head sentence of three years expiring 11 December 2022.

48. In relation to the second charge, which is under s66A of the Crimes Act, I impose a non-parole period of six years commencing 13 February 2019 and expiring 12 February 2025 with a balance of three years leading to a head sentence of nine years expiring 11 February 2028.

49. Having imposed those sentences and departed from the standard non‑parole period, I am required to provide reasons as to why I have done so. In my opinion, the offending, particularly in relation to the first count falls below the mid-range and warrants a departure from the standard non-parole period.

50. In relation to the second charge, the offence under s66A covers a wide variety of acts of which whilst acknowledging there is no hierarchy of sexual offending, this falls as a less serious example of that type of offending justifying a departure again from the standard non-parole period.

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Decision last updated: 29 August 2019