R v Curreen

[2010] NSWDC 247

CITATION:	R v CURREEN [2010] NSWDC 247
HEARING DATE(S):	2 - 3 September 2010
JUDGMENT DATE:	3 September 2010
JURISDICTION:	District Court
JUDGMENT OF:	Berman SC DCJ
DECISION:	The overall effective sentence is one consisting of a non parole period of eighteen years and nine months and a head sentence of twenty five years.
CATCHWORDS:	CRIMINAL LAW - Sentence - Serial rapist - Forms 1 - Aggravated sexual assault - Assault with intent to commit a serious indictable offence - Inflict actual bodily harm with intent to have sexual intercourse - Larceny - Indecent assault - Entering into inclosed lands
LEGISLATION CITED:	Crimes Act 1900
CASES CITED:	R v K 2000 NSW SC 176
PARTIES:	The Crown Shannon Curreen
FILE NUMBER(S):	DC 2009/00191262
COUNSEL:	Ms B Rigg - Offender
SOLICITORS:	Director of Public Prosecutions Legal Aid Commission - Offender

SENTENCE

1 HIS HONOUR: The offender Shannon Curreen appears for sentence on eight counts involving serious sexual assault on women who were strangers to him. He asks when I sentence him for those matters that I take into account a number of other matters including four other offences of indecent assault committed on four further women.

2 It is a remarkable thing to note that the offender has assaulted a total of twelve women, some in a most serious way, indeed. Ten of those victims suffered in a frenzy of offending over four days between 30 July 2009 and 2 August 2009, but his offending began much earlier than that.

3 I remind those here present that although I will be using the names of the victims of these offences in my remarks on sentence there is to be no publication of anything which will identify them or tend to identify them.

4 The first of the offender’s crimes was committed on 27 February 2009. In the early hours of that morning MS was walking home through the Woollahra Golf course. Given that the offender was hardly likely to be waiting there on the off chance that someone would walk through the golf course, he must have followed her in. He grabbed her from behind and put knife to her throat, placing his hand across her mouth as he did so. MS bravely struggled until the offender managed to trip her over so that she fell forward landing on her knees. The offender fell on top of her, holding the knife to her throat. He made his demands clear when he said, “I don’t want to hurt you, I just want to have sex.”

5 Cleverly, MS asked the offender to move his hand so that she could breathe. When he loosened his grip she screamed, but as she did so, the offender pushed the blade of the knife harder against her throat and said, “Shut up, shut up.” Unfortunately, MS’s screams were not heard and disturbingly, the offender later told a psychologist that he actually enjoyed the power he felt when he heard his victim scream.

6 MS attempted to deter the offender in many ways. She told him that she was pregnant, she offered him money and she tried to call for help on her mobile phone. However, the offender was not to be deterred. He pushed the blade of the knife harder into MS’s neck, removed her shorts and underwear and put his penis into her vagina. As he had intercourse with her, he kept the knife firmly at her throat. He only let MS go after he had got what he wanted.

7 MS immediately went home. She was so upset that she could not tell anyone what had occurred for sometime. She and her father went to the police station and then Royal Prince Alfred Hospital. Smears were taken from her vagina which upon later analysis revealed semen containing DNA which matched that of the offender.

8 The offence I have just described is an offence of aggravated sexual assault contrary to s 61J of the Crimes Act, the circumstance of aggravation being that the offender threatened to inflict actual bodily harm with an offensive weapon. It carries a maximum penalty of imprisonment of twenty years and a standard non parole period of ten years. Although the standard non parole period is not of direct application because of the plea of guilty, it remains an important guidepost.

9 The circumstances of this offence are such that they are, I am satisfied, slightly above the middle of the range of objective seriousness for offences of this type. I make that finding because the offender must have followed MS and seized upon the opportunity that presented itself when she was in the golf course when she was alone and vulnerable. The form of sexual intercourse involved was of course penile vagina intercourse, which is one of the more serious forms of sexual intercourse covered by s 61J. It is also significant that the offender apparently ejaculated. Although it would seem that, fortunately for his victims, the offender was not suffering from any form of sexually transmitted disease, if he had been that would have made the offence even worse.

10 MS made a victim impact statement which was read to the court. It speaks eloquently of the significant harm that offences such as these cause to innocent victims. That harm is likely to be long standing, and significantly, was entirely foreseeable and regrettably commonplace.

11 The next of the offender’s crimes was committed on 29 June 2009, late at night. It is another offence of aggravated sexual assault contrary to s 61J of the Crimes Act. On this occasion KB was on her way home to her apartment in Mona Vale. As she approached the apartment complex she was grabbed from behind and felt something sharp and metallic held to her throat. The offender told her to be quiet or he would cut her with the knife that he was holding. The offender took her some distance away from where she was and removed her underwear. He attempted to penetrate her vagina with his penis but when that was unsuccessful in that position he pushed he onto her stomach besides some bushes and penetrated her from behind, all the time holding a knife to her throat. She asked if he was wearing a condom and the offender told her, that he was not. After he had finished, and again it would seem that he ejaculated as semen was later found in swabs taken from KB’s vagina, she asked him why he had done what he had just done. He replied, “Some people are just fucked up.” And then he said, accurately, “I know what I’m doing, I’ve done this before and I’ll do it again.” The offender ran off and KB went inside and woke her father and stepmother. Police and ambulance attended.

12 It is quite clear that KB only complied with the offender’s demands because she feared that he would either kill or seriously harm her with the knife that he was carrying if she did not. KB has also provided a victim impact statement which was read to the Court. She too has suffered in an entirely foreseeable way because of what the offender did to her. The harm that offences such as these cause is no doubt one of the factors which has led to this offence carrying with it a standard non parole period of ten years. This too, for the reasons I gave earlier, is an offence which is slightly above the middle of the range of objective seriousness for offences of this kind.

13 We next turn to the events of 30 July 2009. On that day KH was taking her dog for a walk in the early morning when she went down a lane and heard footsteps coming behind her. The offender grabbed her from behind putting his hand over her mouth, he said, “Be quiet.” KH asked to be let go but he forced her towards a wooden garage door near where she was being held. He said to her, “Don’t make a sound or I will snap your neck.” Sensibly KH did not struggle, no doubt as the result of the threat made to her.

14 It is fortunate indeed that Mr Mark West, another person walking in the area, arrived in the vicinity. The offender noticed him and as result let KH go and ran away. It is clear that the offender intended to rape her and it was the only chance intervention of Mr West that prevented the offender fulfilling his intention. Mr West escorted her home where KH told her husband what had happened and the matter was reported to the police. This offence represents a breach of s 58 of the Crimes Act, assault with intent to commit a serious indictable offence, in this case a sexual assault. The maximum penalty for this offence is five years imprisonment, it does not have a standard non parole period attached to it. Of course this was a very serious offence, the assault was both physical and involved a threat of serious violence and the intention was the offender was clearly to rape KH.

15 The next offence for which the offender is to be sentenced occurred two days later on 1 August 2009. It is the first of a remarkable number of offences committed over two days. The victim in this case was a young woman in Australia on a working holiday, VDS. She was heading home in the early hours when the offender ran up behind her. He grabbed her and covered her mouth with his hand. She tried to break free of his grasp by struggling and she started to scream. The offender yelled at VDS to shut up and started to drag her away. At this stage a dog started to bark and she heard the sound of a car immobiliser indicating the presence of someone nearby. The offender must have heard these things as well because he let her go and ran away. This also represents a breach of s 58 of the Crimes Act, carrying a maximum penalty of five years imprisonment.

16 When I sentence him for that matter the offender asks that I take into account a further matter of entering into inclosed lands, an offence that does not carry with it a term of imprisonment but merely a fine. That offence was committed either shortly before or shortly after the attack on VDS. In this case the offender entered into a unit complex where he was seen by Miss Fixter as she arrived home. Upon seeing him she screamed which caused the offender to run away.

17 A few hours later the offender then attacked VP, who was on her way to work early in the morning of 1 August. She saw a man who appeared to be hiding behind a tree but did not take much notice of him. It was, of course, the offender. After she had walked past him, he came up from behind, grabbed her, put his hand over her mouth and told her not to scream. He was armed with a Stanley knife. VP asked him what he wanted and offered him money. He did not reply and instead began to push her towards a lane which was nearby. In the course of this encounter she received a number of wounds to her lower chin, five in fact, each of two centimetres in length. He told her that if she screamed he would stab her and began to touch her breasts on the outside of her clothing. Once more she offered him money to which he replied, “You give me money later, but now I’m going to fuck you.” He then hit VP and then grabbed her hair and shoved the right side of her head against a brick wall. She suffered another wound as a result of this attack, this time to her right forehead. The offender then dragged her towards a tree where it was darker. He punched her again. Luckily for VP, before he could rape her, dogs nearby began to bark and the offender came into a position where a light shone on his face. He turned and fled, picking up VP’s handbag as he did so.

18 This conduct represents a breach of s 61K of the Crimes Act, namely, an offence of inflicting actual bodily harm with intent to have sexual intercourse. The maximum penalty for that offence is twenty years imprisonment but there is no standard non parole period. When sentencing him for this offence, the offender asks that I take into account an offence of larceny, representing the stealing of VP’s handbag.

19 The offender must have travelled from Glebe, where he committed the offences I have just described, to Lilyfield because his next offence was committed there at about 6.30am on 1 August 2009. On this occasion the offender assaulted RM who left her home to go for her regular morning run. She heard someone come up from behind her before feeling this person groping her bottom, she screamed and ran away from him. That offence is one of indecent assault that appears on a Form 1, attached to an offence I will later describe, the offence committed at about 3.40pm on Sunday 2 August.

20 Having groped RM’s bottom at Lilyfield at about 6.30am, the offender then went to Leichhardt where, about half an hour later, he did something similar. The victim on this occasion was JC, who was out for a morning walk. She also felt someone come up from behind her and grab her on the right buttock. She turned around and screamed and saw the offender running away. That is another offence of indecent assault to be taken into account on a Form 1.

21 The next offence is to be the subject of a specific sentence. Having groped JC in Leichhardt, the offender must have travelled to Ultimo. At about 10am, Miss MJC returned to her home after having gone for a run. As she was about three metres from the entrance to her unit, she heard the offender say to her, “Excuse me.” She turned around and saw him standing very close to her, armed with a Stanley knife. MJC went to run away but the offender grabbed her around her neck and pulled her backwards. She started to scream and was able to free herself from the offender’s grasp. She then ran into her apartment complex. At this stage she noticed that she had sustained a deep cut to her left hand which was bleeding. She was taken to hospital where that deep wound was sutured and other less serious injuries were noted. This is another offence of inflicting actual bodily harm with intent to commit an indictable offence carrying a maximum penalty of twenty years imprisonment.

22 The next offence is one of assault with intent to commit a serious indictable offence, namely, to commit a sexual assault, with a maximum penalty of five years imprisonment. In the early hours of 2 August 2009, DD went to a service station in Bondi to buy some milk. Having done so she returned home. As she reached the main door leading into her apartment complex she was grabbed from behind with the offender putting his hand over her mouth. He said to her, “You scream and I’ll kill you.” She turned to her right and immediately lashed out at the offender’s face with her left hand. She scratched him and screamed loudly, “Fuck off.” The offender turned and ran away. Police were called and, importantly, an analysis was made of the skin of the offender taken from under DD’s fingernails, it revealed DNA consistent with that of the offender.

23 Next at 8.10 in the morning of 2 August 2009, the offender indecently assaulted SS. She went for a jog and as she was returning home she felt the offender grab her left buttock. This startled her, as might be expected. When she turned around she saw the offender running away from the scene. This offence of indecent assault is also on a Form 1.

24 The next of the offender’s crimes occurred about 3.40pm that afternoon. Again it was committed on a woman who was out for a walk, JL. She heard the offender running up behind her. He put his hand over her mouth and pushed her forward causing her to fall to the ground. He still had one hand over her mouth so that she could not breathe. The offender said to her, “Don’t yell or I’ll slit your throat.” JL began struggling and when the offender loosened his grip on her mouth, she screamed. Eventually, she managed to break free from the offender and stood up, but the offender pulled a knife from his pocket. He moved towards her holding the knife saying, “I want to have sex with you.” Not surprisingly, JL was extremely frightened and believed that the offender was going to cut her throat and rape her. She flung some clothing she was carrying at the offender and ran away. As a result of being pushed onto the ground, JL suffered abrasions to her knees, bruising to her right thigh and a grazed right wrist.

25 Sometime later on 2 August, the facts do not say when, the offender committed a further indecent assault upon a sixteen year old girl, LL. She was walking to school to participate in a rehearsal for a music performance. As she walked into the school she felt the offender grab the left side of her bottom and squeeze it, she turned around to see the offender running away.

26 Thus the offender has committed sexual assaults of one description or another on twelve women and committed an offence of entering into inclosed lands, that offence involving a thirteenth woman. His brazen repeated conduct on 30 July 2009, 1 August 2009, 2 August 2009 is remarkable.

27 I do have to say at this stage that in significant respects the statement of facts prepared by the Crown was less than helpful, it could not be described as a succinct summary of the offender’s conduct. And an appreciation of what the offender did in that frenzy of activity was difficult to obtain because the offences were not even listed in chronological order. Within the 47 pages were large passages of irrelevant matters which of course carries with it the danger that important aspects, in particular what the offender actually did, can be overlooked. The Court of Criminal Appeal as of recent times has been quite critical of statement of facts in this form, so have individual sentencing Judges. I believe that Judges are entitled to have greater assistance from the Crown than I received in the present case.

28 The offender is twenty-three years of age, he has no prior criminal history, he was born and raised in New Zealand. He described to a psychologist some strange behaviour of his father which the psychologist concluded may have normalised inappropriate sexual attitudes and behaviours to Mr Curreen.

29 The offender got into frequent trouble in primary school for being disruptive and although he appears to have behaved better during secondary school, he left in year 11 as he lacked motivation. He then began to work in various occupations before moving to Australia in March 2008 for a fresh start.

30 There is nothing in his background which would explain why it was that the offender committed this most serious series of sexual offences. Even the behaviour of his father could not have had little part to play given the clear acknowledgement by the offender that he knew what he was doing was seriously wrong and grossly inappropriate.

31 The offender’s interest in rape appears to have developed from the early part of 2009. He committed the first of his offences on 22 February that year after he began to watch rape scenes available over the internet from the You Tube site, and began to fantasise about rape. A psychologist is of the opinion that the offender used sex and sexual offending to distract himself from problems he was having in his life. The offender told her that he felt good after raping his victims and such behaviour gave him a sense of power and control over both his life and his victims. I quote from the psychologist’s report:

“He acknowledged that he specifically enjoyed the power he felt when he heard the victim scream.”

32 The offender was, so it would seem, remarkably frank with the psychologist when he spoke to her. This tends to suggest a willingness to rehabilitate and undergo treatment.

33 Miss Rigg who appeared for the offender tendered a letter addressed to me in which the offender expresses his remorse. Quite why he was not prepared to go into the witness box and give evidence to that effect is not easy to understand. The Court of Criminal Appeal has told sentencing Judges to be cautious about accepting untested assertions made by offenders in either letters such as tendered by Miss Rigg or in psychologist’s reports such as that of Miss Collins. On the other hand the Crown did not object to the tender of the letter and the offender’s expressions of remorse are backed up to some extent by his immediate confession to his then girlfriend and his apparent frankness when interviewed by the psychologist.

34 Quite clearly it is impossible to say that the offender has good prospects of rehabilitation. Indeed the outlook is considerably more pessimistic than that, the psychologist saying, “Currently Mr Curreen presents a moderate to high risk of sexual recidivism.”

35 Miss Rigg relies appropriately on the prior good character of the offender but concedes that has less significance in a case such as this where a large number of separate offences have been committed. Nevertheless, as she points out the offender is entitled to have me take into account in his favour the fact that he has no prior convictions and, as suggested by his brother, offences such as this are out of character for him.

36 Miss Rigg conceded that there were no special circumstances apart from those which arise from the necessary accumulation which is required. The offender is entitled to a statutory discount of twenty-five per cent because of his early plea on all offences. Miss Rigg handed to me, but did not really address on, a number of appellant decisions concerning sentences for sexual assault matters. None of those however concern multiple victims or a serial rapist as is in the present case. I found more benefit from decisions such as R v K 2000 NSW SC 176 and the cases referred to therein.

37 Of course the sentences in this case must be imposed in such a way so as to ensure that as far as is possible, each of the victims of the offender’s crimes, at least those the subject of specific allegations that are not on a Form 1, understand that the offender has received additional punishment for what he has done to her. But, working the other way, is the principle of totality which suggests that the offender should receive a sentence reflecting his overall criminality, rather than by simply adding up every individual sentence.

38 I was greatly assisted by a document prepared by Miss Rigg which sets out with some particularity her submission as the sentences I should impose upon her client. As it turns out my conclusion as to the overall sentence is not significantly different from that suggested by Miss Rigg.

39 I should say something about the specific sentences that I will shortly impose. The sentences for each of the three offences of inflicting actually bodily harm with intent to have sexual intercourse are identical despite their different circumstances. In my view, although JL was not injured to the extent that MJC and VP were, the fact that there is in JL’s case the Form 1 containing four indecent assaults, means that a similar sentence should be imposed upon the offender for that offence as the other offences of that kind where the victims received multiple, VP, or significant, MJC, injuries.

40 The two sentences for the offences of aggravated sexual assault are also identical, at least in so far as their head sentences are concerned. There is little to distinguish them apart from the fact that one of them is the last of the sentences to be imposed and so in order to preserve the statutory ratio, a shorter non parole period will be imposed for that offence.

41 The sentences are to commence on 25 August 2009, the day on which the offender was arrested for these matters.

42 The sentences I impose are as follows. Taking into account the three Forms 1 where appropriate:.

43 For the offence of assault with the intent to commit an indictable offence committed on KH, a fixed term of imprisonment of two years to commence on 25 August 2009.

44 For the offence of assault with the intent to commit an indictable offence on VDS, a fixed term of imprisonment of two years to commence on 25 August 2010.

45 For the offence of assault with the intent to commit an indictable offence committed on DD, a fixed term or imprisonment of two years to commence on 25 August 2011.

46 For the offence of inflicting actual bodily harm with the intent to have sexual intercourse committed upon VP, a fixed term of imprisonment of six years to commence on 25 August 2012.

47 For the offence of inflicting actual bodily harm with the intent to have sexual intercourse committed upon MJC, a fixed term of imprisonment of six years to commence on 25 August 2014.

48 For the offence of inflicting actual bodily harm with the intent to have sexual intercourse committed upon JL, a fixed term of imprisonment of six years to commence on 25 August 2016.

49 Those sentences are fixed terms because of the sentences I will now impose on the two remaining offences.

50 For the offence of aggravated sexual assault committed upon MS, I set a non parole period of nine years and a head sentence of twelve years to commence on 25 August 2018.

51 For the offence of aggravated sexual assault committed upon KB, I set a non parole period of five years and nine months to commence on 25 August 2022 and a head sentence of twelve years.

52 The non parole period will expire on 24 May 2028, which is the earliest day on which the offender can be released to parole. The overall effective sentence is one consisting of a non parole period of eighteen years and nine months and a head sentence of twenty five years.

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