R v DJR (2)

[2008] NSWDC 324

CITATION:	R v DJR (2) [2008] NSWDC 324
HEARING DATE(S):	5-14 August - Trial, 17 October, 28 November 2008
JUDGMENT DATE:	28 November 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Goldring DCJ
DECISION:	Sentenced to imprisonment. On Count 1 to a non-parole period of four years commencing 14 December 2008 and expiring 13 December 2012. Total term six years expiring 13 December 2014. On Count 2 to a non-parole period of four years commencing 14 April 2009 and expiring 13 April 2013. Total term six years expiring 13 April 2015. On Count 3 to a non-parole period of four years commencing 14 August 2009 and expiring 13 August 2013. Total term six years expiring 13 August 2015.
CATCHWORDS:	CRIMINAL LAW - Sentencing - Aggravated indecent assault on child - standard non-parole period - effect
PARTIES:	Crown DJR (Offender)
FILE NUMBER(S):	2008/110730
COUNSEL:	K Ratcliffe (Crown) W Flynn (Offender)
SOLICITORS:	NSW DPP Marsdens

SENTENCE

1 HIS HONOUR: On 14 August this year a jury found DJR guilty of three counts of aggravated indecent assault, and he was therefore convicted of those offences. At the time the complainant was ten years old. She was the granddaughter of the offender’s wife. The offences took place when the complainant was visiting her grandmother with her mother. The complainant’s mother was able to say, from her toll records, that she visited her mother on six or seven occasions in the first half of 2007.

2 Two of these occasions were Sundays, and another was a public holiday, Anzac Day. On each of those occasions the complainant and her mother had dinner with the offender and his wife. The offender, who is now fifty-eight years old, was a collector of coins. His collection consisted of books of each Australian coin minted in a particular year. In order to assemble his collections he collected loose coins of various denominations and stored them in plastic containers, at the time of these offences, in a wardrobe in his bedroom.

3 At the relevant time he was collecting two dollar and twenty cent coins. The complainant’s mother had worked in a bank and the complainant had developed an interest in coins. When she and her mother visited her grandmother she enjoyed going through the offender’s coin collections and counting the coins in various denominations. Usually she did this before dinner. Her evidence was that when she did it she would go to the upstairs bedroom, take the coins in their containers from the wardrobe and spread them out on the bed.

4 Each of the three offences about which the jury were satisfied, took place while the complainant was counting coins in the bedroom. The offender came into the room, partly lifted the complainant from the bed and pulled down her jeans. On at least one occasion she was wearing a pair of jeans, which were identified, and in evidence. These jeans had an elastic waistband and it was easy to see how it was possible for the complainant’s version of events to be true.

5 At the same time as he pulled down her jeans, the offender also pulled down her underpants. He then touched her on her naked genitals on each of the three occasions, and this touching constituted the offence. The complainant says that on the first occasion she said to the offender, “Stop, it’s not nice.” The offender stopped, told her not to tell anyone and left the room. The complainant then pulled her underpants and jeans up and went downstairs to join her mother. She did not complain of any of the offences for some weeks.

6 The offender’s wife shared a computer with the offender. Early in July 2007 she discovered on the offender’s computer a large number of pornographic images, video clips and other pornographic material. Some of this referred specifically to young girls in the same age group as the complainant. There were also a number of texts, which referred explicitly to sexual contact between fathers and daughters. The accused was charged with possession of child pornography in the Local Court, pleaded guilty to that offence, and since the matter was last in this court, he was sentenced to a non-parole period of ten months with a total term of fifteen months to commence on 12 August this year. At no stage, did the offender deny that the pornographic material was in his possession, and I admitted some of it as tendency evidence to prove the offender’s state of mind at the time of these offences, namely a tendency to fantasise about sexual activities involving girls of about ten years of age.

7 After the offender’s wife discovered the pornography, she telephoned her daughter, the complainant’s mother, to alert her to the discovery. At the time, the complainant was on an access visit to her father. Her mother collected her from the access visit and in the car on the way home asked her if anyone had ever touched her inappropriately. The complainant replied, “Yes,” and her mother then asked her who. She replied, “Poppy.” Her mother said, “Poppy who?” and she replied, “Poppy D….,” which was the way that she referred to the offender.

8 The mother immediately contacted the police, and about a week later the complainant was interviewed by the Parramatta JIRT team, and a recording of that interview provided her evidence-in-chief. When the complainant gave evidence, she was asked why she did not complain immediately, and she said there were two reasons. First, the offender had told her not to say anything, and he was in the position of her grandfather. Secondly, at the time she was not sure whether what he had done was right or wrong.

9 These offences are aggravated offences. They are particularly serious, and they carry a standard non-parole period of five years’ imprisonment. That gives rise to a difficulty for the courts, which was the subject of legal argument. The maximum penalty for this offence is a term of seven years’ imprisonment. It is quite clear that the maximum penalty should be imposed only in the worst cases of the offence; and it is conceded that these offences were not of the worst category, although still very serious.

10 If the maximum penalty is imposed, the non-parole period would be five years and three months, that is slightly more than the standard non-parole period. It appears to me that those who drafted this legislation were not fully aware of the consequences of establishing a standard non-parole period which bore such a relationship to the maximum penalty. Notwithstanding that, I must apply the law and I must have regard to the standard non-parole period.

11 Although these are serious offences I do find that they fall below the mid range of seriousness for such offences, although not much below that range. There was an indecent touching, but the complainant was not subjected to exposure to the offender’s penis or required to do any other act which would also constitute an aggravated indecent assault at the time.

12 DJR gave evidence on the last occasion that related to two matters. One was evidence of his upbringing and his career, and it is quite clear that his own childhood and upbringing was not happy. His family background was to some extent dysfunctional. Indeed, until he met his present wife, I drew the conclusion that his life had been subject to a number of disturbances. Since he met his wife, they conducted together a real estate business, and they seemed to have a good life.

13 When the offender appeared at the trial, he was on crutches and he gave evidence about that on the last occasion, although he did not give evidence at the trial. He had suffered quite a severe injury to his leg. He is no longer on crutches. While he has been in custody, he has not received any treatment or attention for his leg. He will clearly be returned to custody after I sentence him, but I will be recommending that a full medical assessment be carried out while he is in custody, and that attention be given to the needs he has for treatment.

14 The fact that he has not received treatment is also a matter which leads me to find that there are special circumstances in this case, although that is not the only reason. It is also true that this is the first time the offender has been in custody, and, up until the arrest for the pornography offence, the only matter on his criminal record was a very old matter concerning a failure to pay maintenance, which is more in the nature of a civil liability than a criminal liability. So he is previously a person of good character, and he is entitled to the benefit of that. As I have said, I am satisfied that, while these offences are serious, they fall below the mid range of seriousness for this offence, and that will be reflected in the non-parole period and sentence that I impose.

15 Originally I was asked to deal with the child pornography offence. I was not prepared to do so on the last occasion, and the matter went back to the Local Court; a sentence has now been imposed. That offence was separate from these offences, although it led to the apprehension and conviction of the offender on these offences. He is currently serving a term of imprisonment for that offence and there must be a degree of accumulation of the sentences. Because of the non-parole period that I am required to impose, that period of accumulation is possibly not as long as would otherwise be warranted, but the principle of totality requires that I impose a particular period of accumulation of the sentences.

16 DJR is sentenced as follows. On count 1 to a non-parole period of four years commencing 14 December 2008 and expiring 13 December 2012. The total term will be six years expiring 13 December 2014. On count 2 he is sentenced to a similar term of imprisonment but the non-parole period commencing 14 April 2009 and expiring 13 April 2013. The total term is six years expiring 13 April 2015. On count 3 he is sentenced to a similar term, the non-parole period commencing 14 August 2009 and expiring 13 August 2013. The total term is six years expiring 13 August 2015. I will formally make the recommendation that DJR be subjected to a full medical examination.

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