R v Darling (a pseudonym)

[2019] NSWDC 784

District Court

New South Wales

Medium Neutral Citation:	R v Darling (a pseudonym) [2019] NSWDC 784
Hearing dates:	12 December 2019
Decision date:	12 December 2019
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment of 5 years 6 months with a non parole period of 4 years.
Catchwords:	CRIME - SENTENCE - indecent assault on a person under 16 years
Legislation Cited:	Crimes Act 1900 (NSW), s61M(2)
Category:	Sentence
Parties:	Regina (Crown) Mr Darling (a pseudonym) (Offender)
Representation:	Mr Sutherland (ODPP) Mr Robinson (Counsel for the offender)
File Number(s):	2019/56258
Publication restriction:	The names of each of the 3 victims and the name of the offender and any other information which might directly or indirectly identify any of them

Judgment

1. Mr Darling (a pseudonym), you appear for sentence today in relation to three offences each of which involves an offence of an indecent assault on a person under 16 years of age.

2. The offences involve contraventions of s 61M(2) of the Crimes Act. The maximum penalty for each offence is a term of imprisonment of 10 years’ and there is a standard non-parole period of 8 years’ imprisonment.

3. The facts surrounding your offending are contained in an agreed statement of facts and, for my purposes, they can be summarised as follows.

4. In 2017 you were 50 or 51 years of age and, as a result of circumstances to which I shall later refer, you were not living in stable accommodation - rather you were living a transient lifestyle.

5. You had a friend who provided you with accommodation in your time of need.

6. Your friend was in two successive relationships at the time that you shared accommodation with him.

7. The first relationship he had was with Ms X (a pseudonym). The second relationship, coming on fairly soon after that relationship finished, was with Ms Y (a pseudonym).

8. When your friend was living with Ms X, she had two daughters. Their names were Hope and Grace (pseudonyms). They were aged seven or eight and six or seven years at the time that you shared accommodation with that family.

9. The first offence of indecent assault relates to Hope.

10. When Hope was about seven or eight years of age (and whilst you were living in that house) you went into her bedroom; you lay on top of her; and whilst you were in that position you tickled her genitals on the outside of her pyjamas.

11. Although there was no overt threat or actual violence used to overbear her, the fact is that the mere weight of your body on her prevented her from escaping.

12. Whilst it is true that the offence was of short duration, nevertheless it would have been a confronting experience for a child of Hope’s age.

13. The second offence involves Grace.

14. At some point between October 2017 and 30 June 2018 you went into Grace’s bedroom; you tickled her; and with your fingers you touched her genitals on the outside of her clothing and then you touched her genitals under her clothes.

15. As with the earlier victim, there were no overt threats or actual violence used to overbear Grace and it was again of short duration.

16. The third offence occurred when you were in the second household of your friend. His new partner (Ms Y) also had children. One of them was a child named Faith (a pseudonym).

17. Shortly after Faith turned eight, you and she were alone in the house and you lay on top of this child. On this occasion your groin was touching her vagina.

18. Again, there was no express threat or use of violence to overbear her but the mere weight of your body prevented her from escaping - and, indeed, the incident only concluded because Faith called out and her sister entered the room.

19. These were not isolated acts but, rather, were part of a pattern of conduct.

20. The fact that they are not isolated acts but part of a pattern of conduct is not to be regarded as an aggravating factor but it precludes you from submitting that these acts were isolated or out of character.

21. In terms of their objective seriousness for offences of their kind, the Court notes that the offence of aggravated indecent assault covers a very wide range of offending against children. My assessment of the objective seriousness of each offence is that each one is approximately equidistant between the middle and the bottom of the range of objective seriousness for an offence of its kind.

22. Each offence is additionally aggravated because it was committed in the home of the relevant victim.

23. I have been given a victim impact statement from Faith. It confirms what the Court already knew and that is that even what was formerly regarded as low level abuse of children can have catastrophic effects on those children. That has become clear to the community through the operation of the Royal Commission into the Institutional Abuse of Children - and Parliament has amended the legislation to remind judges sentencing offenders who abuse children of that very fact.

24. Your subjective circumstances (that is, your background) has been provided to the Court, not directly through your own evidence, but indirectly through a report from a psychologist.

25. You are, at least through your mother’s side of your family, an Aboriginal Australian.

26. When you were born you were adopted by your aunt. You did not become aware of your true birth parent until you were 16, but that revelation has not had any adverse impact in you. You were brought up by your aunt in a loving and caring family. You have stepsiblings with whom, mostly, you get on very well; certainly you did in childhood.

27. Your early years were otherwise entirely unremarkable.

28. You left school after you obtained the school certificate and you have been substantially in employment since leaving school, either as an apprentice electrician or in the transport industry.

29. You were successful in your various forms of employment.

30. You left home when you were 17 and you have been largely independent since that time.

31. You had one significant relationship to which a child was born in 1991. That relationship came to an end in 2012 but it seems that you took that separation badly and your pre-existing excessive use of consuming alcohol increased.

32. You had a brief relationship with another lady after the separation from your first partner. A child was born to that relationship but you have, effectively, no contact with him.

33. The psychological report then goes on to address your psychosexual history and I must say, Mr Darling, I found the document to be a disturbing one. It is disturbing because of the complete lack of insight that you have in relation to your offending. You struggled to see that it was sexually abusive behaviour. You denied any sexual motivation for it and, even removing sexual motivation, you could not see how that conduct with a child was completely inappropriate. As the author of the report noted, you have limited insight; you minimised your criminality; and you engaged in victim blaming. At paragraph 51 the author of that report sets out with particularity numerous risk factors connected with your prospects of re-offending and she concluded that you had a moderate chance of re-offending.

34. You have not expressed any remorse.

35. You have the support of two of your brothers. You have the prospect of further employment. As against those positive factors, Mr Darling, there is the complete lack of insight, as I have said, into your criminal conduct with these three children.

36. Your prospects of rehabilitation are guarded, Mr Darling.

37. The Court has to impose a sentence on you which will discourage others from offending as you have done. The Court must impose a sentence which will discourage you from further offending. The Court must impose a sentence which will protect the community from you until you have rehabilitated and the Court must impose a sentence which encourages that rehabilitation. Not all of those considerations pull in the same direction.

38. I intend imposing an aggregate sentence upon you because in each case I am satisfied that no sentence other than a period of full time imprisonment is appropriate and the contrary was not submitted by your experienced counsel.

39. You are to be given a discount of 25% in relation to the indicative sentences which underpin the ultimate aggregate sentence because of your early plea.

40. In each case, except for your early plea of guilty, I would have sentenced you to a term of imprisonment of 3 years - so that, in each case, after the discount, the indicative sentence is 2 years and 3 months. The indicative non-parole period in each case is 1 year 8 months.

41. The sentence which I shall impose in a moment will be backdated to the date that you were arrested, namely, 20 February 2019.

42. The indicative sentences would not have been totally concurrent but in each case there would have been partial accumulation to reflect the fact that there are three discrete victims.

43. It has been submitted on your behalf that I should make a finding of special circumstances to vary the ratio of the head sentence to the non-parole period. I decline to make such a finding. The parole period which I shall fix will be adequate, in any event, to assist you to rehabilitate.

44. For these three offences, Mr Darling, I impose an aggregate sentence of 5 years 6 months imprisonment.

45. I fix a non-parole period of 4 years imprisonment to date from 20 February 2019 and which will expire on 19 February 2023. I fix a balance of 1 year 6 months to date from 20 February 2023 and which will expire on 19 August 2024.

46. Whether you are admitted to parole or not, Mr Darling, will be a decision for the Parole Board and the Parole Board alone. But if you do not successfully complete the Sex Offenders Rehabilitation Program which should be made available to you in custody, I do not expect you to be released to parole.

Decision last updated: 30 January 2020