R v Crawford (a pseudonym)

[2022] NSWDC 652

District Court

New South Wales

Medium Neutral Citation:

R v Crawford (a pseudonym) [2022] NSWDC 652

Hearing dates:

1 July 2022

Date of orders:

1 July 2022

Decision date:

01 July 2022

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence of 10 years 9 months with a non-parole period of 7 years.

Catchwords:

CRIME – procure a child under 14 for unlawful sexual activity - indecent assault person under 16 years aggravated - incite act of indecency aggravated sexual intercourse with a child aged above 10 and less than 14 years - under authority

SENTENCING - Relevant factors on sentence – sentence after trial - multiple offences - danger of double counting aggravating features - victim impact - background of childhood trauma and deprivation - assistance to law enforcement

Legislation Cited:

CrimesAct 1900

Crimes (Sentencing Procedure) Act 1999

Jury Act 1977

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

R v Millwood [2012] NSWCCA 2

Category:

Sentence

Parties:

Owen Crawford (the offender)
Director of Public Prosecutions

Representation:

Counsel:
Ms S Hall SC (for the offender)
Ms A Hughes, Solicitor Advocate DPP

Solicitors:
Morrisons Law (for the offender)
Director of Public Prosecutions

File Number(s):

2020/00344577

SENTENCE – EX TEMPORE REVISED

Introduction

1. On 5 April 2022, after a relatively short trial at Wollongong District Court, a jury of nine found Owen Crawford guilty of seven serious offences involving the sister of his then partner. The complainant was at the relevant time, aged between 11 and 13. The offences occurred in 2018 and 2019.

2. Crawford was found guilty of the following charges:

• Count 1 - procure a child under 14 for unlawful sexual activity: s 66EB(2) Crimes Act 1900, maximum penalty 15 years, standard non‑parole period six years.

• Count 2 - indecent assault person under 16 years: s 61M(2) Crimes Act. There had been a change in the legislation during the relevant period. As s 80AF Crimes Act applied to that charge, it is accepted, the maximum penalty is 10 years, and there is no standard non‑parole period.

• Count 3 - aggravated incite act of indecency s 61O(1) Crimes Act. Again, s 80AF applies. The maximum penalty for that offence is five years.

• Counts 4, 6 and 7 - aggravated sexual intercourse with a child aged above 10 and less than 14 years: s 66C(2) Crimes Act, maximum penalty 20 years, standard non-parole period nine years. The circumstance of aggravation was “under authority.”

• Count 5 –guilty of an alternative count, sexual intercourse with a child aged above ten and less than 14 years: s 66C(1) Crimes Act, maximum penalty 16 years, standard non‑parole period seven years. The circumstance of aggravation was “under authority” was not proved.

3. During the trial three jurors had to be discharged because of COVID isolation protocols. The trial continued after each juror’s discharge; and, after the discharge of the third juror, with the written consent of the accused and the Crown: s 22A(2) Jury Act 1977.

4. After his conviction Crawford went into custody. It is accepted that so serious was his offending that only custodial sentences could be imposed. As he had spent 70 days on remand between his arrest and being granted strict bail, the sentence will commence on 25 January 2022, to give him full allowance for time served.

5. It is clear from the jury’s verdicts that they accepted the evidence of the complainant in relation to each count. In one count there was a verdict of not guilty but guilty to an alternative count. It would appear that the jury did not accept that the complainant was, at the relevant time, under his authority, given the presence of her sleeping sister at the scene.

6. The complainant’s evidence was in part corroborated by statements Crawford had made to her in a conversation that police covertly recorded.

Facts for sentence

7. It is not in dispute that the complainant spent considerable time at the home of Crawford and his then partner. The complainant was comfortable at that home. Her sister was a shift worker and Crawford worked more regular hours with some weekend overtime. The complainant appeared to be more comfortable with her sister and Crawford than at her home.

8. Crawford showed an interest in teaching her guitar and involving her in his life. There is no doubt he did help her, because at one stage he organised for her to see a counsellor. He also made a complaint to Family and Community Services about how she had been treated at her family home. That said, those matters were before the jury and the jury, having heard the complainant and the recording, found him guilty of each of the charges.

9. The key issue at trial was whether the events occurred. By its verdicts the jury obviously accepted what was said by the complainant. In exhibit A, a document that sets out the Crown case statement, there are some minor aspects of it that do not exactly accord with my assessment of the facts at trial. Today. I have been assisted by comprehensive written submissions from Ms Hughes, who appeared for the Crown at trial and sentence, and Ms Hall of Senior Counsel who appeared at trial and on sentence. While there may be differences in emphasis there is little between them when it comes to potential findings of fact consistent with the jury’s verdict and matters of principal.

10. There are differences of emphasis and inference so far as the application of relevant principles are concerned. It is important to note that the defence submissions proceed on two premises. The first that, as is his right, Mr Crawford maintains his innocence, as he did at trial, and as he did in his evidence today. Secondly, the submissions are properly premised on the simple fact that I must sentence in accordance with the jury verdict and make findings of fact consistent with those jury verdicts. Those things conceded, it is accepted by Ms Hall that the offences would each fall within the middle range of objective serious and involved callous treatment of a child by the offender.

11. This summary is taken from Ms Hall’s written submissions: MF1 2.

12. Count 1 concerned Crawford’s conduct towards the victim that caused or brought about the sexual activity between them. This conduct included; touching the complainant in a way that gradually escalated, talking about their “relationship”, and giving the complainant alcohol. It involved his making her comfortable with him and her being comfortable in his presence and comfortable being near him. The complainant was aged between 11 and 12 when the behaviour commenced, and it continued throughout the relationship.

13. Count 2 occurred during the school holidays. The complainant and her older sister and brother were all sleeping in the same room at the home of the offender. While they were all asleep, Crawford put his hands inside the complainant’s underwear and on her vagina. She was aged 11 or 12 at the time.

14. Count 3 involved the offender giving the complainant alcohol to drink and his then putting her hand on his penis and moving it up and down. The two were alone in the home and the offender had removed his pants. The victim was aged between 11 and 13 at the time.

15. Count 4 took place in the spare bedroom of the offender’s home, which is where the complainant slept sometimes when she stayed over. She was alone with him, and he gave her alcohol to drink. Both were naked. Crawford put his penis into her vagina, and they had penile/vaginal intercourse. She was aged 11, 12 or 13. This was the first occasion of sexual intercourse.

16. Count 5 is said to have taken place on the weekend of the Bathurst 1000 Motor Car Race. The complainant and the offender were in the loungeroom of his home, and he digitally penetrated her vagina. Her older sister was present in the home at the same time, either asleep or passed out. She was aged 11, 12 or 13.

17. Count 6 involved an incident in the lounge room when the complainant was on a chair. The offender placed his penis in her mouth. They were alone in the home together and she was aged between 11, 12 and 13.

18. Count 7 also took place in the home, this time on the lounge, it involved the final act alleged of penile penetration. The complainant was aged 11, 12 or 13.

19. The evidence before the jury was presented on the basis that these were not isolated incidents.

Objective seriousness

20. Courts, as does the community, view any sexual contact with a child as being a particularly serious offence. The decisions of superior courts, the maximum penalties, and where applicable, the standard non‑parole periods, all emphasise the protective role of the courts. That protective role is served by the imposition of penalties aimed at discouraging others from committing similar crimes. Severe penalties also reflect the seriousness of what was done, exact appropriate retribution, and to the extent possible, vindicate the dignity of victims of offences, and reflect community disapproval of sexual offending against children.

21. In assessing this matter, I have regard to the age of the complainant at the relative to the age range in the sections. I have regard to the disparity in ages; between the complainant and the offender.

22. Count 1 involves a series of acts, there was conduct which over time normalised sexual contact between an adult and a child aged between 11 and 14.

23. There was both an age and power imbalance. The offender abused the trust that had been shown in him by the complainant and abused what appears to be a genuine interest in the child’s need for support and safety. It is not unusual for an offender to have disparate feelings towards a complainant. That is, on one hand wanting to support her but at the same time acting towards her in a way that is the complete antithesis of that apparent concern.

24. Counts 3, 4, 6 and 7 have, as elements, “under authority.” This element must be taken into account. I need to be careful not to double count this factor, as it also consistent with a breach of trust.

25. The offences occurred in a home to which the complainant had gone for refuge and assistance, given there were problems in her own family home.

26. Each act was exploitative. Each act involved skin on skin contact.

27. The acts of intercourse range from relatively brief episodes of digital penetration to penile/vaginal penetrative without protection. Although every act of intercourse is serious; the facts here make the penile/vaginal intercourse more objectively serious; given the time taken for the act, the level of bodily contact and the associated risk of pregnancy and disease.

28. The offending only stopped when the offender’s contact with the complainant stopped.

29. Each offence, relative to matters which commonly come before the Court is a serious example of their type. There is room, given the matters I have outlined above, for some variation between them, which will be reflected in the sentences to be indicated. The offences formed part of a course of conduct over about three (3) years.

30. I must also take care, given Count 1, not to double count, as when I come to consider the context in which each of the other individual sentences is to be determined all relevant matters, including the genesis of the offending is important. Each other count occurred because of, and while, for want of a better word, “grooming” behaviour, was still occurring.

Other matters

31. I have already indicated the maximum penalties and the standard non‑parole periods that apply to some counts. Content must be given to a standard non‑parole period. A standard non‑parole period, if applicable, and the maximum penalties are important guides to the exercise of my sentencing discretion.

32. The complainant gave evidence and was subject to careful cross‑examination. There was nothing in the cross‑examination that would have aggravated her other than the simple fact that she had to give evidence of details of sexual matters which, of themselves, were distressing to her, and which she had to relive again. As the matters proceeded to trial it was essential that she be taken through details of what occurred both in‑chief and in cross‑examination.

33. It is the sad reality of the criminal trial that complainants must be tested and tested in front of a jury before verdicts of guilty can be returned. The offender is not to be penalised because he went to trial. However, he does not get the benefit that would have otherwise come his way had he entered an early plea of guilty.

Victim Impact

34. The complainant wrote a letter to the Court: exhibit B. She said in summary:

“The crimes committed against me as a child not only destroyed my relationship with myself and my body, they also destroyed my family. I feel robbed of time I will never get back. My time is now replaced by sessions of therapy managing the pain someone else inflicted on my young life. I am behind others with setbacks and serious mental health problems at the age of 15. I fight to get my life back.”

35. She told me of problems with her family. She said drugs and alcohol are recurrent factors in her life and she has used them as an escape. She says she is constantly estranged from her body and blames herself for what happened. This caused her to obsessively control her eating and sleep. There are ongoing problems with self-harm and eating disorders. She said she still struggles and fears she will relapse.

36. She has lost motivation about the things she enjoyed in life. These problems occur daily and have set her back so far as her peers are concerned. She also told me of how she grew up with family tension, and the wedge between her and her family the offender’s interest in her caused.

37. A Victim Impact Statement is perhaps the only way (other than the evidence at trial, which is given in a closed court) for a victim of a sexual assault to have her voice heard. I will, in accordance with the Crimes (Sentencing Procedure) Act 1999, have regard to and take into account what she said. Sadly, and tragically, the matters raised in this statement are all too commonly voiced by the victims of child sexual assaults. This is one of the reasons why the protective role of the Court requires condign punishment for those who offend against children in a sexual manner.

The offender’s subjective case

38. The offender gave evidence today. He was born in 1974, he is now 48. There is no indication in his history he has ever involved himself in serious crime before or since. Until this offending began, he could have, and should have, been regarded as a person of good character, occupying a responsible public service position.

39. I have the benefit of a report from a forensic psychologist, Ms Bennett, and a report of treating psychologist, Dr Hammer, and three references from those who know him well.

40. His present partner, who sat through the trial, says that the allegations are a complete departure from the man she knows. She took me through some of the problems she has had in providing for him in gaol. He has had several long-standing health problems that are amenable to treatment but in gaol a prisoner cannot simply go to the doctor or the chemist.

41. There have been long delays in getting appropriate medication to him, including treatment for his haemorrhoids and proper medications for his contact lenses and his back pain. Pain relief is essential to him. If someone was in the community, this would involve a simple trip to the chemist. But when you’re in gaol it involves multiple requests, and in this case multiple denials before the medications could be made available to him. A matter that the community should be aware of.

42. She says that she will continue to help him. She speaks of a man who is considerate and helpful of others; sentiments that were reinforced in the other letters to the Court, including from his step‑father. His family hold constant fears for his well-being while he is in custody.

43. Ms Bennett’s report, which he affirmed as true; apart from correction of one factual error, was of assistance. It notes a history of complex trauma as a child. Although he still has family support, she notes there was neglect and violence in the home. The offender spent time in foster care and youth accommodation. When a teenager, he spent some time living “on the streets.” He was subject to a serious sexual assault when a teenager. He was seriously injured in a motor vehicle accident and consequently spent time on a disability support pension. That evidence he affirmed today.

44. His schooling was disrupted but, in his thirties, he was able to obtain a government job. Although at the time he had trouble coping with some aspects of that job he was able to progress and was holding a job until his conviction. He was suspended once arrested.

45. There is evidence that he has suffered from long term depression and anxiety; and, as is common to such illnesses, there was a maladaptive response of drug and particularly alcohol abuse. Ms Bennett says that he has a problematic alcohol abuse disorder.

46. There is a related history of anxiety but Ms Bennett, while she was able to find some evidence that he saw doctors in relation to work based anxiety, said that diagnoses could not be confirmed.

47. Ms Hughes made the point that there is also a possibility that the anxiety diagnosed by Dr Hammer and Ms Bennett was influenced by the fact he was facing these charges and a trial.

48. I am prepared to accept that Crawford’s background has had a detrimental impact on his mental health. A history of complex trauma can compromise the development of a child and adolescent and have an impact on personality function. This is evidenced by material that came out in the trial – that he gravitated to younger peers. And, his evidence today that in custody he adopts a protective role for younger prisoners. But, apart from this offence and use of some drugs and of alcohol he was able to lead a prosocial life with prosocial peers.

49. His personal history is important particularly, the trauma suffered as a child. It must be considered and synthesised with all other matters. It means that some understanding and care must be shown. People with such longstanding psychological problems generally find it harder to cope in custody.

50. There is no indication in the evidence before me that Crawford’s background had any causal link to the commission of this offence. General deterrence should be given significant effect, but it is important not to approach that principle as determinative, although it remains an important matter. I must consider his individual’s moral culpability and synthesise it along with the objective seriousness of the offending.

51. Every sentencing exercise involves such an assessment. I must consider the objective seriousness of the offences and consider the offender’s personal circumstances, including circumstances which might interfere with their reasoning capacity. It is well recognised that a background which involves social deprivation, neglect and violence or the trauma of being sexually assaulted while a child, can have an impact on a person’s social development and their moral culpability.

52. A person with such a background is less likely to be as culpable as a person whose formative years were not marred in that way. A person with the background of this offender has, I find, fewer emotional resources to guide their behavioural decisions. That is the only explanation for what was objectively callous treatment of the child in this case. That does not mean that he bears no moral responsibility, far from it, but his background must be taken into account, R v Millwood [2012] NSWCCA 2 at [69]; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.

53. As the Victim Impact Statement, makes clear, sexual assaults can have a profound and highly detrimental impact on a person assaulted. Where an offender has themselves been a victim of a sexual assault and suffered trauma, that is a relevant fact by way of mitigation. I do not devalue the impact of the traumatic events detailed in the report and confirmed in evidence. It must be given proper effect.

38. A judge does not engage in a staged exercise, a judge must identify all relevant factors, discuss their significance, and then make a value judgment; and that is how I will view this material.

39. Ms Bennett’s report went through matters which go to risk of future offending. From the history before me Crawford has only ever offended against one person in particular circumstances. While it remains possible, it is unlikely, he will ever be in those circumstances again, but some risk will remain; particularly if he is unable to deal with his underlying matters and the matters that led to his abuse of alcohol.

40. Crawford’s use of alcohol does not and cannot excuse what he did. During some of his crimes he was not affected by alcohol to any significant degree. However, his alcohol abuse problem, and how he deals with it, is relevant to his prospects on release. He will require assistance both in custody and on parole in dealing with that problem and its causes. I endorse Ms Bennett’s recommendations that he be given access to EQUIPs programs.

41. Crawford has several physical ailments. They will continue while he is in custody. They must be considered; as must the fact he must serve his time subject to COVID restrictions and lockdowns. Many members of the community have had to be locked down at various stages because of COVID but their inconvenience pales into insignificance compared to the sort of lockdown experienced by prisoners in high security gaols.

42. When it comes to his risk of re-offending there are several dynamic risk factors and protective factors detailed in the report. They will obviously be reviewed by the State Parole Authority before Crawford becomes eligible for parole. The protective factors, if they are not destroyed by his time in custody, will mean that he is relatively low risk should he be released but I could not say he is at no risk. If denier’s programs are available to him, he would benefit from them.

Assistance

59. One measure of the offender’s good character was raised in evidence today. I heard evidence and received exhibit C, now sealed. Crawford has indicated that he received information which was passed to police after he went into custody this time by his solicitor. That material was investigated. It was found to be corroborative of, and of assistance in an ongoing investigation where certain persons, many of whom are in custody, are facing trial or sentence. Crawford’s statement was taken and served on those people. He has given an undertaking, repeated today, to give evidence at their trials, if required. It will be important evidence, involving an admission, corroborative of other aspects of the prosecution case. It is significant and useful. It appears accurate. It could have come earlier but it came soon after he went into custody. It corroborates other known facts relating to a serious crime.

60. Because of the nature of his offending against a child the offender has been placed in limited association protection. Given his assistance he is also on limited association protection. Alerts have been placed in the Corrective Services System to avoid risk of retaliation. But my experience, over many years, is that while every effort will be taken mistakes can occur. There is no evidence of any apparent risk to others such as family members.

61. It is a common sentencing practice to give reductions in sentence to those who assist law enforcement and the community, particularly those who give evidence against other criminals. The reductions recognise the public interest that they be encouraged to come forward and the potential risk to the offender. They also recognise that giving assistance can have an impact on where and how the offender serves their sentence, particularly if steps need to be taken to reduce the risk of reprisals.

62. I must synthesise these matters along with all others. In this case there will be a reduction in penalty. It is constrained by a requirement that the result must not lead to an unreasonably disproportionate sentence so far as the crimes committed are concerned. I must indicate how the reduction is apportioned. For ease of calculation, I will do so by indicating percentages.

63. In this matter there will be a reduction of the otherwise indicated sentences of 10%; 3% for past assistance and 7% for future assistance.

Submissions

64. In submissions, Ms Hall asked that the overall sentence be structured in a way to allow the maximum period possible for the offender to be supervised on parole. Ms Hughes said that the length of the sentence itself would allow for sufficient time on parole, without the need for a finding of special circumstances.

65. Ms Hall emphasised the positive attitude Crawford has shown both by his cooperation in custody and the evidence he gave today. She submits that while sentencing principles, such as general deterrence, must apply, they can be tempered because of evidence going to his moral culpability and underlying mental conditions. Crawford has shown he can overcome disadvantage and hardship, but he will need assistance on release. He has the capacity to reintegrate into the community, if given the support

66. Ms Hughes took me, in detail, through the objective seriousness of each of the offences and the distinctions between them, to assist in my assessment of the terms of each sentence. She noted that prior good character had to be considered but that his good character was lost the moment he commenced offending against this complainant.

67. She urged caution in placing too much emphasis on his use of alcohol and his psychiatric diagnosis. She said that he had a full understanding of the impact of sexual abuse on a child and how wrong it was and, despite all matters that have been raised on his behalf, committed these offences. This indicates that that whatever moral compass he professes to have it did not apply so far as this young complainant was concerned. She asked for a sentence that maintained public confidence in the administration of justice by being sufficiently severe to recognise the seriousness of what was done and the callous disregard for the complainant he showed.

Special Circumstances

68. The evidence relating to; the offender’s background, his prior capacity to engage in a prosocial life, his need to maintain prosocial contacts, his present difficulties in custody dealing with his physical disability particularly his eyes and his back, his underlying mental health condition, the likelihood of him serving his entire sentence in non‑association, his need for assistance in dealing with alcohol problems, and his need for help adjusting to normal community life after a lengthy sentence, all provide a basis for a finding of special circumstances.

69. The evidence he gave today indicates that he is a reasonable candidate for parole, if he continues being as productive and involved as he possibly can while in custody; whether by work, by teaching guitar or by keeping actively engaged in education. His protection status and the pandemic may interfere with those goals.

70. Crawford has prosocial support, and I am mindful of the need for that to continue. I am also mindful of the requirement that the minimum period he must spend in custody must properly reflect the gravity of his crimes and the other purposes of sentencing. It is important that the community understand that offenders who are supervised on parole generally do significantly better in terms of reoffending than those who are released without such supervision.

Synthesis

71. Sentencing should be as transparent as possible and everyone whether the victim, the offender, and the community should know why a specific sentence was imposed. Sentences involve intuitive judgments and different factors require different considerations. Pragmatic decisions need to be made.

72. Here, there were multiple offences committed against one victim over a number of years. The events were part of a course of conduct. But I must formulate and indicate sentences for each matter. Each indicated sentence has been reduced because of Crawford’s assistance. For the matters which carry a standard non‑parole period I also have to indicate the non‑parole period.

73. I must take care to ensure that the accumulation of lengthy periods of imprisonment not result in a disproportionate level of punishment. Disproportion or severity can arise for several reasons. An offender may become institutionalised. They may become discouraged that steps they’ve taken to promote rehabilitation have been diminished because they cannot be practised in the community.

74. Any hope of a normal life after the end of their term of imprisonment should not be destroyed. But what is a proportionate and what might be seen as a destructive sentence depends on the perspective of the observer; whether they are the victim, the community, an appeal court, or the offender.

75. While I must balance all those matters, I can only meet the purposes of sentencing here by the imposition of condign punishment.

Orders

76. I indicate the following sentences:

Count 1 - I indicate a sentence of five years and five months, non‑parole period three years six months.

Count 2 - I indicate a sentence of one year nine months.

Count 3 - I indicate a sentence of one year nine months.

Count 4 - I indicate a sentence of seven years and two months, non‑parole period four years and eight months.

Count 5 - I indicate a sentence of four years and six months, non-parole period two years 11 months.

Count 6 - I indicate a sentence of five years and four months, non‑parole period three years six months.

Count 7 - I indicate a sentence of five years ten months with a non-parole period of three years nine months.

77. There will be an aggregate sentence of ten years and nine months. To reflect my finding of special circumstances, the non‑parole period will be seven years. That sentence will date from 25 January 2022. The offender will be eligible for consideration by the State Parole Authority for release to parole on 24 January 2029. There will be a parole period of three years and nine months which will date from 25 January 2029. The total sentence will expire on 24 October 2032.

78. The total sentence is ten years and nine months, the non‑parole period seven years. The earliest possible release date subject to the State Parole Authority consideration is 24 January 2029. A parole period of three years nine months.

79. I will have a copy of Ms Bennett’s and Dr Hammer’s reports sent with the warrant to the gaol.

80. Mr Crawford, your release to parole will be dependent on the finding of State Parole Authority and that release will depend on how you go in custody. If courses are offered to you, I am sure from your evidence you will take them but please do take them. Failure to engage in any recommended treatment no matter how you view your view of the offending may delay the possibility of release to parole. Do you understand that?

81. OFFENDER: Yes, your Honour.

82. AUDIO VISUAL LINK CONCLUDED AT 2.25PM

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Decision last updated: 19 December 2022