R v DLW (No. 5)

[2020] NSWDC 754

District Court

New South Wales

Medium Neutral Citation:

R v DLW (No. 5) [2020] NSWDC 754

Hearing dates:

11 December 2020

Date of orders:

11 December 2020

Decision date:

11 December 2020

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraphs 63-66

Catchwords:

SENTENCE – child sexual assault offences – three offences in succession – objective gravity of offending – totality principle

Legislation Cited:

Crimes Act 1900 (NSW), s 66A

Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 39, 40, 73

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 24A, 54B

Cases Cited:

Carlton v The Queen (2008) 189 A Crim R 332

DBW v R [2007] NSWCCA 236

EG v R [2015] NSWCCA 21

Imbornone v R [2017] NSWCCA 144

Ingham v R [2014] NSWCCA 123

R v JDX; JDX v R [2017] NSWCCA 9

Muldrock v The Queen (2011) 244 CLR 120

Munda v State of Western Australia (2013) 249 CLR 600

R v AJP [2004] NSWCCA 434

R v CMB [2014] NSWCCA 5

R v DLW (No. 4) [2020] NSWDC 284

R v Gavel [2014] NSWCCA 56

R v King [2009] NSWCCA 117

R v MAK (2006) 167 A Crim R 159

R v MJB [2014] NSWCCA 195

R v Totten [2003] NSWCCA 207

RJA v R [2014] NSWCCA 89

Roff v R [2017] NSWCCA 208

Shannon v R [2006] NSWCCA 39

Category:

Sentence

Parties:

Director of Public Prosecutions
Mr DLW

Representation:

Counsel:
Ms K Tennant for the Director of Public Prosecutions
Mr W Flynn for the offender

Solicitors:
Solicitor for the Director of Public Prosecutions
Newton’s Law for the accused

File Number(s):

2017/134016

Publication restriction:

Non Publication Order on the name of the complainant, any members of the complainant’s family, the offender, and any members of the offender’s family or any information that may identify any of them.

Pseudonyms have been used for the name of the complainant, the complainant’s family and the offender.

Judgment

INTRODUCTION

1. On 9 June 2020, after sitting alone, I convicted the offender of three counts on an indictment that in the period from 23 July 2009 and 22 July 2010, at Budgewoi, he had committed acts of aggravated sexual intercourse, being sexual intercourse with a child, who was at that time under the age of 10 years, namely 7 years of age, contrary to s 66A(1) of the Crimes Act 1900 (NSW).

2. The maximum punishment for that offence, at the relevant time, was 25 years’ imprisonment, with a standard non-parole period of 15 years’ imprisonment.

CIRCUMSTANCES OF OFFENDING

3. My reasons for convicting the offender were set out in my judgment, published as R v DLW (No. 4) [2020] NSWDC 284. These remarks must be read consistently with those reasons for convicting the offender (the ‘Conviction Reasons’). A summary of the findings appeared at [272] of the Conviction Reasons. Necessarily, the Conviction Reasons involved substantial acceptance of the evidence of the victim.

4. In partial paraphrase, I found that on a certain night between 23 July 2009 and the end of that calendar year, more probably towards the end of the year when the weather was warmer, the victim, his brother, his natural-born mother, and her mother, visited premises in Budgewoi occupied by the offender and his father. As it happens, the group lived not far away. They got to and left the premises in Budgewoi by foot.

5. The offender was known to and was, indeed, a friend at that time of the victim’s mother. The extent of that friendship was a matter of some factual dispute at the trial. At any rate, the occasion was a social gathering. It was a party mainly attended by adults. The victim and his brother were very young. The victim’s mother assisted at the gathering by serving drinks.

6. The victim had not recalled meeting the offender prior to this social occasion but knew of him. There was some evidence that the victim, his brother and his mother had visited the place before. The place had a pool.

7. The victim’s evidence as to what occurred is described in detail at [30]-[33] of the Conviction Reasons. At a point during the gathering, the offender grabbed the victim and took him to a nearby bedroom, locked the door and pushed the victim to the ground. Thereafter, he engaged in three consecutive acts of sexual intercourse with the victim which constituted the commission of the three offences. All of them involved acts of coercive force in the face of protest and resistance.

8. The first involved penetrating the victim’s anus with his penis.

9. The second involved forcing the victim to engage in fellatio with the offender’s penis.

10. The third act involved the offender putting the victim’s penis in his mouth. At the end of the episodes, the offender threatened to kill the victim if he did not remain silent. As Ms Crown noted, I had found that before the third offence occurred, the victim thought he was allowed to leave the room and approached the door, but he was grabbed and pushed back onto the bed.

OBJECTIVE GRAVITY

11. There is no strict hierarchy of seriousness based on the type of sexual intercourse, such as penile-vaginal intercourse being at the apex (Ingham v R [2014] NSWCCA 123 at [41]. 

12. A relevant factor is also whether or not physical injury was inflicted by the act of intercourse. The Crown does not suggest any physical injury to the victim in this case. I will return to the matter of psychological harm later in these remarks.

13. Other relevant factors indicative of the objective gravity of offending include: how the offence took place; the period of time of the offending behaviour; the degree of force or coercion; the use of threats or pressure before or after the offence to ensure the victim’s compliance with the demands made, and subsequent silence; and any immediately apparent effect on the victim (R v AJP [2004] NSWCCA 434 at [25]).

14. Most of these matters were present here and, as Ms Crown and Counsel for the offender agreed, there was little to distinguish the three offences. The overall period of offending embracing the three offences was probably in the vicinity of between half an hour, or three quarters of an hour. Force was exerted to get the victim into the bedroom, where the offending occurred; shoving him and forcing him to unclothe.

15. Plainly, also, there was the large discrepancy in age and physical maturity between the offender, as a young man, and the victim, a young boy. However, there was, as Counsel for the offender emphasised, an absence of a common feature of this offence, being a breach of trust, or abuse of authority, arising from a prior relationship between offender and victim.

16. The overall offending (embracing all three counts) was opportunistic to the point of being brazen; occurring as it did surreptitiously during the course of a predominantly adult social gathering. There was, however, no apparent pre-meditation or planning and no actual bodily harm resulting to the victim. There was nothing to suggest, for example, that the offender was informed, in advance, of the victim’s attendance at the home. There had been no grooming.

17. If there were distinguishing features as between the offences, then I accept the Crown’s submission that the third offence was more serious than the first and second in two respects. In connection with the third offence, there was also an element of humiliation and mental torture in that the victim thought he was permitted to leave, but was taken back by the offender and pushed onto the bed. Further, as he eventually left, the victim was threatened to be killed if he spoke up. Counsel for the offender agreed that the death threat should be regarded as being linked only with the third offence and I so treat it in that fashion.

18. Ms Crown eschewed reliance upon the age of the victim as an aggravating factor, though she did rely upon the circumstance that the victim’s age fell at the lower end of the age range for this offence. His age was relevant in two respects to the objective gravity of the offending. First, inherently, “the younger the victim the more serious the offence” because of the harmful effects it may have upon them (Shannon v R [2006] NSWCCA 39 at [28]; RJA v R [2014] NSWCCA 89 at [6] & [11]), and, secondly, the younger the age of the victim, the more marked the disparity was between the age of the offender and the victim.

19. The Crown submits that every one of the offences was at the upper end of the range of objective seriousness.

20. The offender submits that the objective gravity was not above the mid-range of offending for any of them.

21. There is, as I have said, little to distinguish the objective gravity of each of the offences. I consider that the first and second are above the mid-range of objective gravity for an offence of this kind, and close to, but not quite at, the high range. In the case of the third offence, accompanied as it was by a death threat to a young boy, and after the prospect of the victim escaping from the offender had been offered then snatched away, another layer of harm was inflicted, so that third offence approached the upper end of objective gravity.

IMPACT ON VICTIM

22. Section 3A(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘CSP Act’) indicates that harm to the victim is a relevant sentencing principle.

23. Spigelman CJ in DBW v R [2007] NSWCCA 236 at [39] said that “the public and the courts have become much more aware of, and knowledgeable about, the effects of child sexual abuse”. His Honour said earlier that the judge “…would have been entitled to act on the basis that there was a substantial harm”: at [38]. The Court in R v King [2009] NSWCCA 117 at [41] put the position in the following terms:

“It should not be assumed, without evidence to the contrary, that there is no significant damage by way of long-term psychological and emotional injury resulting from a sexual assault of a child…”

24. In R v MJB [2014] NSWCCA 195, Adamson J acknowledged that the damage done to children who are victims of sexual assault by adults was well-known and could be assumed. In R v Gavel [2014] NSWCCA 56, the Court of Criminal Appeal said at [110] (citations omitted):

“…child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives. Sexual abuse of victims will inevitably give rise to psychological damage... The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity.”

25. The Crown tendered a victim impact statement from the victim. He spoke of trouble with the police, his disrupted schooling causing him to move to different schools, including a behavioural school, on account of misbehaviour, and issues affecting his capacity to control his anger. He mentions that he has Attention Deficit Hyperactivity Disorder (ADHD) (although there was no independent medical evidence linking that disorder to the offending behaviour) and has a difficulty in trusting others.

26. In this case, I noted in the Conviction Reasons (at [232]-[235]) the victim’s own disturbing conduct in effectively mimicking the offender in his dealings with his brother many years after the event. The victim’s conduct, in this regard, itself bespoke the lingering psychological effects of his being violated by the offender.

27. He acknowledges, however, his pride in the way that he gave his evidence and desire to ‘move on’. The Court takes this opportunity to commend the victim for giving the statement and his positive attitude and encourages him to look to the future and not dwell upon the harm perpetrated upon him in the past.

28. The Crown eschewed any submission that any harm suffered by the victim was an aggravating factor, for the purposes of s 21A(2) of the CSP Act.

THE OFFENDER’S SUBJECTIVE CIRCUMSTANCES

Age & background

29. The offender was born in 1988. He was 21 years of age at the time of offending.

Psychological condition

30. The offender relied upon the report of a psychologist, Ms Katie Martens, dated 6 December 2020. Ms Martens is a forensic psychologist with expertise in violent and sexual offending. She assessed the offender, by audio visual link, on 20 November 2020.

31. In her report, Ms Martens recorded the fact, not otherwise known to the Court, that the offender was convicted of some additional counts of aggravated sexual assault against a different victim. As I indicted at the sentencing hearing, I place no reliance upon this when assessing the appropriate sentence for the current offences.

32. She noted that the offender had reported to her having been the subject to some level of abuse and corporal punishment by his parents and even sexual abuse from the age of four. He reported leaving home at 14. His schooling career was troubled. He attended four schools and was eventually expelled in year 9 or 10. It appears that from about this time, he began to regularly imbibe alcohol.

33. His employment history up to the point of his offending conduct was sporadic, doing only ‘cash in hand’ roles, such as collecting trolleys or work in the construction industry.

34. Ms Martens reported upon the offender’s description of his ‘psychosocial history’. At the time of his arrest, he had apparently been in an intimate relationship with a woman, and prior to that he had several short-lived relationships. The offender had said that he had four sexual partners. He denied ever having had a sexual interest in children, or males in general.

35. He reported to Ms Martens no history of problematic substance use. But he did report that he had received several mental health diagnoses, including autism, ADHD, schizophrenia, bipolar affective disorder and depression. Although he denied any history of psychotic disturbance, Ms Martens recorded a Justice Health Note of 25 August 2017 indicating that he had presented with delusions and hallucinations. The Crown submitted that the Court should be cautious about accepting out of court statements made by an offender to mental health professionals, in the absence of oral evidence: Imbornone v R [2017] NSWCCA 144 at [57]; R v JDX; JDX v R [2017] NSWCCA 9 at [35]. But the offender’s Counsel submitted it was clear that, to the extent that Ms Martens ventured opinions, they were not entirely based upon out of court statements of recollection or opinions of the offender.

36. Ms Martens frankly observed that it was difficult to gain a clear picture of the offender’s mental health but considered that his clinical picture indicated a history of psychotic experience. His symptoms may have been referable to a range of overlapping disorders and she acknowledged that an accurate diagnosis required a longer-term intervention with a mental health professional.

37. In terms of the effect of the offender’s mental health issues and the subject offending, Ms Martens was vague in her opinion: she said it was ‘relevant’ that he had himself experienced childhood abuse, mental health concerns, lack of coping skills and impaired social skills. I note that there is no clear suggestion by Ms Martens of a causal link between any mental abnormality and the offending. There is no suggestion of any lack of control over his cognitive faculties, any incapacity to make reasoned judgments or lack of appreciation of the wrongfulness of his conduct. Indeed, according to Ms Martens, the offender told her that it was “not ok” for adults to engage in sexual acts with children.

38. Counsel for the offender acknowledged that it could not be said there was a causal nexus between his mental health issues and his offending. Rather, he relied upon the evidence of psychological issues being apparent when the offender, as a relatively young adult, committed the offences. This, it was said, rendered him relatively less ‘mature’ than other 21 or 22 year olds. As he developed his submission, the offender’s Counsel submitted that these matters were relevant to the degree of culpability in the offender. The Crown submitted that there was no evidence from which the Court could find that, at the time of offending, the offender was more or less mature than other men of that age. At any rate, Ms Crown submitted that any immaturity that he had was immaterial since it was clear that he well knew the seriousness of his wrongdoing. That was evidenced, for example, by his pulling the victim away into a bedroom and then, by the issue of a death threat, attempting to swear the victim into secrecy.

39. I am prepared to accept, albeit on the scarce materials before me, that the offender may have had issues with his emotional development at the time of the offending, but that does not take him very far, in terms of his culpability, for the reason that Ms Crown advances: that there was nothing to show any lack of awareness in the seriousness of his wrongdoing and nothing to show any difference between his appreciation then, and his appreciation most recently indicated to Ms Martens, when he acknowledged that it was wrong for adults to engage in sexual acts with children.

40. Overall there is very little in the offender’s psychological profile, as indicated by Ms Martens, which would support any substantial moderation of the general considerations concerning his culpability, or the need for general and specific deterrence.

41. To the extent that his mental health concerns might mean that the experience of punishment may be more severe as a mitigating factor, the indications, for example of psychotic experiences, may elevate the consideration of the need to protect the community.

Antecedents

42. The offender has an extensive criminal record of offences in and beyond the state of New South Wales dating back to offences in 2005. Offences committed in 2012 involved violence. But he has had no prior record of sexual offences.

Extra-curial punishment

43. By s 24A(1) of the CSP Act, the Court is enjoined from taking into account, as a mitigating factor, the circumstance that a number of circumstances may befall the offender as a result of his offending which will adversely affect future employment opportunities and, more generally, mark a permanent stain upon him.

Remorse

44. The offender elected not to give evidence at the sentence hearing. His Counsel intimated that this was linked to indications he supplied to his psychologist that he intended to appeal his conviction.

45. There is no evidence of remorse. Even without it, nothing was said by the offender to Ms Martens about harm suffered by the victim for whom I found him to be responsible. The offender maintains his innocence and, as is his right, has expressed an intention to appeal his conviction. No adverse inference is drawn from that indication of his intention to exercise his rights, and the absence of remorse does not aggravate the offending conduct (Roff v R [2017] NSWCCA 208 at [19]). Nevertheless, it is also the case that he is not entitled to the benefit of any leniency that might have been attracted had he shown remorse.

Prospects for re-offending and rehabilitation

46. Ms Martens alluded to the circumstance that the offences occurred when the offender was in early adulthood and she thought that he may have attained some developmental maturity since the period of the offending, which could impact upon his propensity to engage in future harm. This evidence is equivocal. There is, in truth, no substantial evidence positively to say that he presents a low risk of re-offending: his statement of belief to his psychologist that he does not think it is ok for adults to commit sex offences against children does not assist after I have found that this is exactly what he did in relation to this victim.

47. In view of his lack of remorse, it is difficult to ascribe good prospects to his rehabilitation (R v MAK (2006) 167 A Crim R 159 at [41]). At any rate, no material was put before the Court to indicate what steps, if any, the offender had taken whilst in custody to rehabilitate himself.

Hardship

48. The Crown does not deny that the circumstance that the offender may experience more onerous conditions than those generally experienced by the prison population is a mitigating factor (R v Totten [2003] NSWCCA 207 at [44]-[47]), but argues that this cannot be presumed and requires proof.

48. The offender reported to Ms Martens having been the subject of threats and physical assaults and endures a fear of his wellbeing, but there is no evidence that is explicable to the specific circumstances in which he has been incarcerated to date.

INSTINCTIVE SYNTHESIS

50. I have regard to the sentencing principles enshrined in s 3A of the CSP Act.

51. Of course, I also have regard to the maximum penalty, and the length of the standard non-parole period, as legislative signposts. As to the standard non-parole period, the terms of s 54B(2) of the CSP Act indicate that the 15 year standard non-parole period for this offence does not mandate a particular period for a particular category of offence but preserves the Court’s discretion to impose a longer or shorter period (Muldrock v The Queen (2011) 244 CLR 120 at [24]-[25]). In other words, it is not to be given determinative significance even where, as here, the offender does not present an especially strong subjective case.

52. I also have regard to current sentencing practices for offences of this kind. In this regard, the Crown referenced a number of cases which made their way to the Court of Criminal Appeal and which concerned the subject offence where it occurred in the period from January 2009 to 28 June 2015, when the maximum penalty and standard non parole period were the same as they are now.

53. It is axiomatic that general deterrence is to be attributed significant weight for child sexual assault: R v CMB [2014] NSWCCA 5 at [47]-[48]. It requires the imposition of a severe sentence because of the particular vulnerability of young children and the well-known long-term effects of child sexual assault: Ingham v R [2014] NSWCCA 123 at [38]. In addition to general deterrence, the considerations of denunciation and holding the offender to account are heightened: EG v R [2015] NSWCCA 21 per Hoeben CJ at CL (Harrison J and RS Hulme J agreeing at [42]). It is also important that the dignity of the victims of offences of this kind be recognised (see the observations in Munda v State of Western Australia (2013) 249 CLR 600 at [54]–[55] which, though directed to victims of domestic violence, are no less apposite to offences of this kind against children). To the extent that subjective circumstances are to be weighed, subjective deterrence is also significant.

54. There is no dispute that the gravity of the offending conduct is such that the s 5 threshold is crossed.

55. I am cognisant of the principle of totality. There were three separate acts constituting the offences, albeit that they occurred in a consecutive fashion such that they could be characterised as being part of the same course of criminal offending. In Carlton v The Queen (2008) 189 A Crim R 332 at [122], the Court held that there should have been at least partial accumulation of the sentences, notwithstanding that they occurred as part of one episode. The imposition of totally concurrent sentences failed to acknowledge the separate harm done to the victim by the different acts of the appellant: at [122].

56. This was an occasion where consideration of an offender’s behaviour being closely related in time should not have obscured the fact that different offences were committed: at [122]. Nevertheless, in this case there remains a significant requirement for concurrency to avoid a sentence which is crushing. I propose to allow for some relatively minor level of notional accumulation.

57. The offender was taken into custody on 7 June 2017, but released on bail on 13 June 2017 (a period of 7 days). He was then taken back into custody on 4 July 2017 in relation to other matters. The Crown submits that the sentence could be backdated to 27 June 2017, which would allow for the total term he has had in custody, and the previous 7 days to be accounted for. Counsel for the offender endorsed that course and I propose to follow it.

Special circumstances

58. Counsel for the offender made no submission that special circumstances applied and, as Ms Crown submitted, no evidence was identified which would suggest that such finding ought to be made.

59. I do not consider that a case for special circumstances to vary the length of the non-parole period has been made out.

Apprehended Violence Order

60. The offence under s 66A(1) of the Crimes Act 1900 (NSW) is a ‘serious offence’ within the meaning of s 40(5)(c) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

61. Ms Crown applied for a final apprehended violence order under s 39(1) of the latter legislation for 5 years from today’s date, on the basis that the Court has found the offender guilty of a ‘serious offence’. She sought the imposition of the conditions located in Schedule 1. No submission was advanced on the offender’s behalf that such order should not be made.

SENTENCE

62. Could the offender please stand.

63. I sentence you to a term of imprisonment for a period of 16 years, commencing on 27 June 2017 and expiring on 26 June 2033. The non-parole period of 12 years expires on 26 June 2029, after which you will be eligible for release on parole.

64. The Indicative sentences are as follows:

Count 1   10 years’ imprisonment (non-parole period of 7 years, 6 months)

Count 2   10 years’ imprisonment (non-parole period of 7 years, 6 months)

Count 3   12 years’ imprisonment (non-parole period of 9 years)

65. Pursuant to s 39(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), I make a final apprehended violence order for the protection of the person against whom the offence was committed for a period of 5 years commencing from today’s date. The conditions to be imposed are that the offender must not:

1. assault, or threaten the protected person (the victim) or any person with whom the protected person has a domestic relationship with;

2. stalk, harm or intimidate the protected person, or any person with whom they have a domestic relationship;

3. intentionally or recklessly damage any property that belongs to the protected person or belongs to or is in the possession of anyone in a domestic relationship with the protected person; or

4. try to find the protected person unless required from the Court.

66. You must not engage in any conduct in contravention of these conditions. If you do, you will be taken to have committed an offence of contravening an apprehended violence order which will potentially render you liable to punishment for a term of imprisonment. I note, however, that it is possible that this order may be varied or revoked upon application by you in certain circumstances which are set out in s 73 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

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Decision last updated: 16 December 2020