R v CF

[2016] NSWDC 315

District Court

New South Wales

Medium Neutral Citation:	R v CF [2016] NSWDC 315
Hearing dates:	1 July 2016
Date of orders:	01 July 2016
Decision date:	01 July 2016
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	Impose an aggregate sentence of imprisonment consisting of a non-parole period 5 years with a head sentence of 8 years
Catchwords:	CRIMINAL LAW – Sentence – Sexual intercourse without consent – Indecent assault on child under the age of 16 – Sexual interest in particular family member
Legislation Cited:	Crimes Act
Category:	Sentence
Parties:	The Crown CF
Representation:	Counsel: P Marr – The Crown E Wasilenia – Offender   Solicitors: Director of Public Prosecutions Crimlaw Criminal Defence Lawyers
File Number(s):	2013/202966
Publication restriction:	There is to be no publication of the name of the complainant or of any material which may tend to identify the complainant

SENTENCE

1. HIS HONOUR: At the offender’s trial on four charges alleging the sexual assault of his wife’s niece’s daughter, a great deal of character evidence was called on his behalf. Those who knew him spoke highly of his kindness, his honesty and his integrity, but this is yet another example of a situation where a person who is thought by those who know him to be the type of person who would not commit such criminal offences is, in truth, not only capable of doing so but has actually done so.

2. The offender appears to have taken a particular sexual interest in a particular member of his extended family. At the trial, the offender was described as her grand uncle. She was 12 years of age at the offences, I will shortly describe. The families were very close. The offender and his wife lived north of Newcastle but would regularly visit the complainant’s family and stay overnight. One of the consequences of this closeness was that the offender clearly knew just how young the complainant was.

3. The first of the offences for which the offender must be sentenced, occurred in 2011. The evidence would suggest that it was probably on 23 December 2011 when the offender and his wife came down to Newcastle for a pre‑Christmas get together. That evening, it came about that the offender and the complainant were alone together in the back room of the complainant’s family’s house. That room was adjacent to the kitchen. It was possible to see from the kitchen into the backroom where the offender and the complainant were seated although there was some furniture in the way. The offender was showing the complainant something on his mobile phone when, without any warning or any other form of preliminary activity, he put his hand into her pants and penetrated her genitals with his finger, wriggling it around for some three or four minutes. The complainant did not call out but instead she froze. One can well understand that reaction. Although her mother and offender’s wife were nearby, the offender was a well‑respected and much loved family member and the complainant, although at times appearing to be older, was in reality quite a young girl.

4. At trial, the offender denied doing what he was alleged to have done, but by their verdict the jury were clearly satisfied that he did exactly what the complainant alleged. At the time, she was between the ages of ten and 14, and so I am to sentence the offender for an offence against s 66C(1) of the Crimes Act, for which the maximum penalty is 16 years’ imprisonment. At the time the offence was committed, there was no standard non‑parole period and so I ignore the current sentencing regime which does have a standard non‑parole period.

5. Shortly after this offence was committed, the complainant’s family moved next door while their house was being renovated. There continued to be social interaction between the complainant’s family, the offender and his wife, with regular visits still taking place. One particular visit in August 2012 was memorable because on that night, a glass of red wine was spilt on light‑coloured carpet. Everyone could remember that occurring. Later that night, the offender, the complainant and the offender’s wife were seated on an L‑shaped lounge while the television was on. The complainant was in between the offender and his wife. What occurred can be discerned by the evidence given by the complainant and also from something the offender said to the complainant’s father in a conversation that was secretly recorded by the police. The offender told the complainant’s father that he was massaging the complainant’s leg when his hand touched her private parts. At first he told the complainant’s father that the touching was accidental but as the conversation continued, it became clear that what the offender was admitting to, was deliberately rubbing the complainant’s genitals with his hand outside her underpants. On the basis of that evidence, the jury found the offender guilty on an offence of indecently assaulting a child under the age of 16. The maximum penalty for this offence is ten years’ imprisonment with a standard non‑parole period of eight years.

6. After that, and while the offender’s wife was distracted by the Google Earth application on her new mobile phone, the offender put his hand up the complainant’s jumper and touched her breasts. This is another offence of indecently assaulting a child under the age of 16.

7. He then put his hand inside the complainant’s pants and touched her external genitals. Perhaps conscious of what had occurred around Christmas the year before, the complainant then got up and went to bed.

8. She said nothing about what the offender had done to her for some time. It was noted that on one occasion, she was particularly rude to the offender but she did not say why. Matters came to light when the complainant was chatting to her cousin, a young girl of about the same age, over a chat program called, “KIK”. In that conversation, she told her cousin what the offender had done to her. Recognising the seriousness of what she had been told by her cousin and despite promising not to, the cousin told her parents who then told the complainant’s parents. The complainant’s cousin is to be commended for taking a very mature decision in revealing what she had been told by the complainant. Police were contacted and as part of the investigation, a listening device was used to record the conversation between the offender and the complainant’s father to which I earlier referred.

9. The offender is now 63 years of age and he has no criminal convictions at all. Quite noticeably, none of the character witnesses called at trial suggested that the offender massaged the legs, let alone the thighs of any other young girl and yet it was part of both the accused’s and the Crown’s case that he had massaged the complainant in that way on a number of occasions. It does appear as I said earlier, that the offender has singled out the complainant because he had a sexual interest towards her, a sexual interest that he clearly acted upon, on these four occasions. These offences may have been opportunistic but I would describe the offender’s actions, in massaging the legs and thighs of the complainant, as actions consistent with him grooming the complainant, or at least acting on a sexual desire.

10. It goes without saying that these offences represent a significant breach of trust. The offender was a family member invited into the complainant’s home after he had married the complainant’s aunt. He came to be treated as a trusted family member who, it was falsely believed as it turned out, could be relied on to protect the complainant, and not abuse her for his own sexual gratification.

11. The offender was born in Egypt in 1953. He has one sister. He had a brother who passed away in 1964 at the age of 16. He is estranged from his sister because of a family dispute involving an inheritance after their father’s death. His parents have passed away. The offender’s father was a pharmacist. He came to Australia and requalified as a pharmacist, working in Newtown.

12. The offender has had two long term relationships. He married his first wife at the age of 20. They were married for 19 years until around 1992. They separated, with the offender then bringing up his two children. He met his second wife, the complainant’s mother’s aunt, in 1994. They have had a close relationship which has been of benefit to both of them. The offender is still in contact with his children. They have visited him in custody.

13. One thing which is undeniable is that the offender has been a hard‑working and industrious person. He was employed for a while and then started his own business in 1996, importing and installing security gates and other security products. He appears to have been, in all respects but the one which has led to his offending, an outstanding member of the community. He was as I have said, hard‑working, and many of the character witnesses spoke of his willingness to go out of his way to assist others. A great deal of evidence of his good character was given in his trial which was not really challenged by the Crown.

14. It is important to bear in mind however, that his good character allowed him to commit these offences. It was the fact that he was trusted by the complainant’s family that had led to him being invited into their home. He would not have been in a position to commit these offences were he not of the good character which he was believed to have been. In particular, he would not have been able to commit these offences were the truth known, namely that he had sexual interest in the complainant and was prepared to act on it.

15. He pleaded not guilty at trial and of course he is not to be punished for that, but there can be no suggestion that he is remorseful for what he has done.

16. It is ordinarily difficult to make a finding that a person has good prospects of rehabilitation when they do not admit their wrong doing. Ordinarily, there is nothing to suggest in the absence of an admission of guilt, and an expression of remorse, that given the same circumstances an offender will not act in exactly the same way in the future. However, I am prepared to make a finding that there are good prospects of rehabilitation, but only because he has shown no sexual interest in any other child apart from the complainant, and he will certainly have no opportunity to further sexually assault her upon his release from custody.

17. It remains the case that he has not accepted responsibility for his actions despite what was, to my mind, an overwhelming Crown case, particularly when one listens to the recorded conversation between the offender and the complainant’s father, in which, as I said earlier, the offender is quite clearly admitting to deliberately rubbing the external genitals of the complainant.

18. These offences have had an impact on the complainant. She expresses the consequences for her of the offender’s crimes in an eloquent victim impact statement. The consequences for her are entirely foreseeable and regrettably common place. Once again the facts of this case demonstrate the harm that offences of this type cause.

19. There was an unusual aspect of this case and that is that count 2 was based on something the offender said to the complainant’s father; it was not based on any allegation made by the complainant. In one sense I suppose I have to recognise that it was a voluntarily disclosure of the offender’s misconduct which led to count 2 being laid against him, but the effect of that is minimal given the offender’s attempts, clearly rejected by the jury, to explain his obvious admissions when giving evidence at his trial.

20. Counts 2, 3, and 4 all occurred at the same time and clearly count 2 was a precursor to the commission of count 4. Although I will be imposing an aggregate sentence I will take into account that there should be little accumulation as far as counts 2, 3, and 4 are concerned. The same cannot be said in relation to count 1 which involved a completely separate sexual assault upon the complainant.

21. I have mentioned already that there are standard non-parole periods for three of the counts for which the offender must be sentenced. I have taken those standard non-parole periods into account as well as the maximum penalties for all four offences in determining the appropriate sentences. My reasons for not imposing the standard non-parole periods appear in these remarks on sentence.

22. When I spoke about the offender’s subjective features before, I did not mention his medical conditions. He has physical and psychological symptoms, most importantly as far as his physical matters are concerned, he has a cardiac problem. His time in custody will be harder than it would otherwise have been due to this circumstance. The psychological report also speaks about his anxiety and depression, these are of course not uncommon when people are facing a lengthy sentence of imprisonment for the first time.

23. It has to be said that like many who go to gaol for the first time in their 60s, gaol will be particularly difficult for him. Gaols are terrible places, particularly so when a person has not grown up in the criminal milieu. It is an experience for which life has completely unprepared them, to be mixing with criminals - often violent criminals - in a place of confinement. As well, the offender’s wife has benefited from his assistance over the years. She too suffers from both physical and psychological problems and the offender will know that he, through his crimes, has denied her the assistance which he has previously provided.

24. I receive helped from submissions both from the Crown and Mr Wasilenia who continues to appear for the accused. Both of them referred me to comparative cases. Of course no two cases are the same but I did find some assistance in those cases. I noted the differences between the cases relied on and the present case; some of those differences are significant, but all of the cases have been of assistance to me in determining the appropriate sentences to impose. I take into account obviously the differences and similarities between the cases that the parties relied on and the present one before me.

25. Mr Wasilenia also provided me with some statistics from the Judicial Commission. They are statistics revealing sentences imposed for an offence of sexual intercourse with a child between ten and 14. That is the offence to be found on count 1 on the indictment. Mr Wasilenia points out that a third of such sentences do not involve full time custody but as Mr Wasilenia properly acknowledged, we know nothing of the circumstances behind those cases. In my view the statistics are thus of very limited application. Quite clearly this is a case where nothing other than a full time custodial sentence should be imposed for each of the counts on the indictment. That is particularly the case because of the need to reflect general deterrence in the sentence I will impose.

26. Time without number the Courts have spoken about the need to impose sentences to protect the vulnerable members of our community from sexual exploitation by people like the offender who simply wish to obtain sexual gratification from abusing children, in this case a child who is entitled to expect protection from him, not abuse. The Courts must do what they can to deter others who may be tempted to give in, as the offender has clearly given in, to unlawful and clearly inappropriate desire. General deterrence is of prime importance in the present case.

27. I will make a finding of special circumstances. They relate to the offender’s age, his health, and this being his first time in custody, but the non-parole period I will shortly announce is the least which properly reflects the object gravity of his criminal conduct.

28. As I have said, I will impose an aggregate sentence. Were it not to be an aggregate sentence I would have imposed the following sentences.

29. Count 1: Imprisonment for five and a half years.

30. Count 2: A non-parole period of 18 months with a head sentence of three years.

31. Count 3: A non-parole period of 12 months with a head sentence of two years.

32. Count 4: A non-parole period of two years with a head sentence of four years.

33. The aggregate sentence is to date from 6 May 2016, I set a non-parole period of five years with a head sentence of eight years. The non-parole period will expire on 5 May 2021, on which day the offender is eligible to be released to parole.

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Decision last updated: 24 November 2016