R v DM

[2019] NSWDC 653

District Court

New South Wales

Medium Neutral Citation:	R v DM [2019] NSWDC 653
Hearing dates:	18 October 2019
Date of orders:	18 October 2019
Decision date:	18 October 2019
Jurisdiction:	Criminal
Before:	Buscombe DCJ
Decision:	See paragraphs [41] and [42]
Catchwords:	CRIME — Child sex offences — Persistent sexual abuse of a child — Form 1 — Possess child abuse material
Legislation Cited:	Crimes (Sentencing Procedure) Act
Cases Cited:	Hayek v The Queen [2016] NSWCCA 126
Category:	Sentence
Parties:	Director of Public Prosecutions (DPP) DM (Offender)
Representation:	Counsel: S Fraser (Offender)   Solicitors: J Walshe (DPP)
File Number(s):	2017/00282903
Publication restriction:	NON-PUBLICATION ORDER RE IDENTITY OF OFFENDER AND VICTIM

SENTENCE

1. HIS HONOUR: The offender is to be sentenced having pleaded guilty to an indictment containing a single charge under s 66EA(1) of the Crimes Act that between 8 October 2016 and 12 February 2017 at various locations, including on at least one occasion in New South Wales, he on at least three separate occasions and on at least three separate days engaged in conduct in relation to a particular child, SM, that constituted a sexual offence.

2. The indictment then specifies five separate specific offences. They all involved sexual intercourse with SM, who was a child under his authority aged 14. The maximum penalty for the offence at the time of the offending was 25 years' imprisonment and there is no applicable standard non‑parole period. There is an offence on a Form 1, being an offence of possess child abuse material, for which the offender acknowledges his guilt and asks that I take that into account when imposing a sentence.

3. Given the limited number of photographs, seven, the fact they are of SM and therefore intrinsically connected to the primary offence and their nature, I do not consider the offence on the Form 1 is such as to have any significant impact on the sentence I will impose on the offender. The facts are agreed and the following is taken from the agreed facts.

Agreed Facts

4. At the time of the offending, the offender was aged between 37 and 38 years. Between December 2012 and November 2016, he was in a relationship with the victim's mother. The offender and the victim's mother resided at an address in Toowoomba in Queensland. The relationship between the offender and the victim's mother resulted in three children.

5. The victim, SM, was born on 8 October 2002 and was aged 14 years at the time of the offending, in fact just 14, noting the first date on the indictment. The victim resided at the Toowoomba property with the offender, her mother, and the three young children from her mother's relationship with the offender. She referred to the offender as her stepfather.

6. Not long after her 14th birthday the offender and the victim were outside the garage of the Toowoomba property. The offender had a bong containing cannabis and offered it to the victim. The victim recalled smoking about five cones of cannabis and feeling, according to the facts, "pretty stoned". The offender said to her, "Jeez, you look sexy in that skirt". The victim said, "You can't say that to me" and the offender apologised. The offender then kissed the victim before taking her into the lounge room where they had penile‑vaginal intercourse.

7. Following that first occasion, there were multiple other times that the offender and the victim engaged in sexual intercourse at the Toowoomba property. These further incidents occurred when the victim's mother was out of the house or sleeping. There was an occasion whilst still living at the Toowoomba property where the victim and the offender left the house late at night and had penile‑vaginal intercourse in the grounds of the local high school.

8. On 20 November 2016, the victim had an argument with her mother and left the family home, and the offender left with her. Somewhat disturbingly, the Department of Family Services in Queensland became involved and the offender was given temporary parental responsibility for the victim. The victim and the offender resided in various locations in Queensland and they continued to have penile‑vaginal sexual intercourse, and the victim recalls that on no occasion did the offender wear protection.

9. In early January 2017, the offender and the victim moved to Oak Flats in New South Wales where they lived for a few weeks in the house of the offender's brother and his family. The offender and the victim were staying in the lounge room of that property. The offender's brother and his family believed the offender and the victim were sleeping separately. However, often they slept together on the lounge. On several occasions when the family were asleep, the offender and the victim engaged in penile‑vaginal sexual intercourse at those premises.

10. Between mid‑January and mid‑February 2017, the offender and the victim had no fixed abode. They stayed with friends and also slept in a tent. They continued to have penile‑vaginal sexual intercourse and on one occasion in the tent in the bush area in the Oak Flats area. On 12 February 2017, the victim was removed from the offender's care and placed with her biological sister. The offender continued to telephone her.

11. Around the middle of February 2017, the victim began to suspect she might be pregnant. She told her sister of her suspicions and of the relationship she had with the offender. A pregnancy test was undertaken and indeed the victim was pregnant. Her sister contacted the victim's biological father, who then contacted New South Wales Police.

12. On 28 February 2017, the victim ran away with the offender and was reported as missing. They lived in the Kiama area until located by the police on 3 March 2017. The victim was spoken to by police and confirmed that she had been in a relationship with the offender and declined to make a formal statement, stating she feared the offender would be arrested. She was examined by a doctor and it was confirmed she was pregnant. On 3 March 2017, the offender took part in a recorded interview with the police in which he denied any sexual relationship with the victim.

13. On 10 April 2017, the victim underwent a surgical abortion and DNA testing of the foetus was consistent with the offender being the father. In terms of the offence on the Form 1, I have already indicated that it will not have any significant impact on the sentence I impose. I will not read onto the record the specifics of the nature of the photographs. They are as I effectively described them. The offender was arrested on 18 September 2017.

Assessment of Objective Seriousness

14. I turn then to my assessment of the objective seriousness of the offence. One relevant factor to consider is the age difference between the offender and the victim. The victim was 14 years of age, with the offending commencing shortly after her 14th birthday. The offender was a mature man in his mid to late 30s. The age difference therefore was very significant, more than 20 years.

15. The first sexual offence particularised in the count involved the offender offering and allowing the child victim to smoke about five cones of cannabis. According to the facts, it was the offender who instigated the sexual contact in relation to the first offence. A number of the occasions in which the sexual intercourse occurred took place in the child's home, a place where the victim was entitled to feel safe, which is an aggravating factor. It is clear from the agreed facts that sexual intercourse took place on more occasions than the five times particularised in the indictment.

16. The period of abuse was a little over some four months and involved multiple acts of penile‑vaginal intercourse. The intercourse is what might be termed non‑oppositional sexual intercourse, noting it is not possible for a child under 16 to consent to sexual intercourse but also noting the age difference and the fact that the offender was in the role of a stepparent. At no time did the offender use a condom when having sexual intercourse with the victim and she became pregnant as a result.

17. The fact the offender failed to use a condom on each occasion he had penile‑vaginal intercourse with the victim, causing her pregnancy, increases the objective seriousness of this offence in my view. I have not had any regard to the fact that the victim ultimately had an abortion in my assessment of the objective seriousness of the offending.

18. The offender was in effect the stepfather of the victim and had the duties of a parent towards her. The offences involved a breach of trust given the relationship between the victim and the offender, although I note that to the extent that I should have regard to the fact of the specific offences particularised in the indictment, they were offences which had as an element that the victim was under the offender's authority.

19. The specific offences of sexual intercourse particularised in the count to which the offender pleaded guilty would be offences under s 66C(4) of the Crimes Act which carried a maximum penalty of 12 years' imprisonment.

20. The offence in my view is within a notional mid‑range of objective seriousness for such offending although in the lower end of the mid‑range, given the age difference between the victim and the offender, the nature of the intercourse, and the fact the child fell pregnant, and is a very serious example of this offence. In coming to that conclusion, I have had regard to the fact that there are other more serious forms of sexual offending which can be encompassed within this particular offence.

21. There is a victim impact statement before me which was bravely read by the victim to the Court in which she describes the harm that the offending has had upon her. As this court knows only too well, children frequently suffer psychological harm for the whole of their lives as a consequence of child sexual abuse.

22. Here of course, as one would expect, the victim has detailed the devastating effect the offender's offending has had upon her at an important age in her development. While I do not consider the evidence allows me to find the harm here to be an aggravating factor for the purposes of the Crimes (Sentencing Procedure) Act, clearly the offending has had a very significant impact upon the victim.

Offender’s Subjective Case

23. I turn then to the offender's subjective case. He is currently 39 years of age. He does have a criminal history although there are no sexual offences on his prior criminal history. He has as an adult received sentences of full‑time imprisonment for offences of drive whilst disqualified; break, enter, and steal; damage property; and breach of an apprehended domestic violence order which related to this victim.

24. His criminal record disentitles him to leniency here but it is not an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act. He has been in custody since his arrest on 25 May 2017. I note that according to his criminal history, he served a sentence of imprisonment for four months for the breach of the apprehended domestic violence offence which I mentioned a moment ago and which, as I say, related to the victim. He served that sentence between 25 May 2017 to 24 September the same year.

25. There is a psychological report before me dated 9 October 2019 by Julie Dombrowski, a forensic psychologist. The offender did not give evidence before me so the topics discussed in the psychological report and the information which emanated from the offender have not been the subject of cross‑examination, and I have had regard to that fact in determining what weight I should give to the content of the report when sentencing the offender.

26. In terms of his family background, the psychological report records that he was born in England and moved to Australia with his parents and siblings when he was seven years of age. The family lived in the Blacktown‑St Clair area before moving to the New South Wales South Coast when he was 11. He told the psychologist that he had a loving and supportive family and denied any neglect, physical abuse, or parental substance abuse in that home. He claimed to the psychologist at the age of 12 a family member, who he did not name, sexually abused him on a number of occasions. I note quite properly it was submitted by his counsel in the written submissions that even if I accept that claim, it does not reduce his moral culpability for this offence.

27. The psychologist described the offender as being currently single with four children, one of whom is an adult, from two partners. While in custody, the offender reports to the psychologist that he has received continuing support from his parents, noting that they live interstate. Two relatives are in court today, supporting the offender on the day of his sentence. It is clear he still retains some family support despite this offending.

28. In terms of his education, he left school in year 9 because of what the psychologist described as ongoing school misconduct. After leaving school, the psychological report records that he worked at an equipment hire business as a handyman, for a car dealership, and for a tree‑lopping service, before completing a roof tiling apprenticeship. He worked in the latter capacity until his arrest and incarceration.

29. In terms of his substance use, the psychologist records that the offender has a long history of problematic substance abuse. He began using alcohol and cannabis at 12 years of age, heroin at the age of 13, methamphetamine at the age of 26, and non‑prescribed benzodiazepines and opioids in the year leading up to his arrest.

30. It seems likely that there may be a link between the event he described to the psychologist as occurring when he was relatively young and the commencement of his substance abuse issues. He told the psychologist he had had a period of abstinence but relapsed in his 30s.

31. He completed a one‑month drug and alcohol program whilst in custody, in 2013. He acknowledged that he needed to seek treatment for his substance use. The fact that the offence was committed at a time when the offender was misusing illicit substances is not a mitigating factor here given his age and the opportunities he has had in the past to address his drug issues, see the discussion in Hayek v The Queen [2016] NSWCCA 126.

32. The offender told the psychologist he was not aware of any difficulties with his birth or reaching significant developmental stages in his life. He was said to have an unremarkable medical history. He has never been diagnosed with any psychiatric disorders but believes he has struggled with low mood and anxiety for most of his life. He has not utilised any professional services in the past to address his mood issues.

33. In terms of his attitude to the offence, he claimed to the psychologist that the victim had "coerced and entrapped him" into having ongoing sexual intercourse by threatening to report him to the police having sex with her in the first place. I reject entirely any suggestion that somehow the 14‑year‑old victim coerced him into having penile‑vaginal unprotected sexual intercourse with her on multiple occasions. The statements to the psychologist by the offender to that effect show that he has really no insight into the serious nature of his offending and no genuine remorse. I do note that there are some statements that seem to acknowledge that he was the person to blame in the psychologist's report because he was the adult. However, he appears to in effect blame the victim by claiming she somehow coerced and entrapped him into the offending.

34. The psychologist considered that his risk of committing further sexual offences placed him in the average range, which she considered was a significant risk. She considered that he required offence‑specific treatment in order for that risk to be reduced.

Sentence

35. The plea of guilty was entered 11 days prior to the trial. It meant that the young victim did not have to go through the trauma of a criminal trial and saved considerable court time. I propose to allow the offender a 15% discount for the utilitarian value of his plea of guilty.

36. I noted earlier that despite the ultimate plea of guilty, I do not consider there is any genuine remorse. His prospects for rehabilitation, given his criminal history and the content of the psychological report, can be no higher than uncertain or guarded. His lack of insight into the offending and his inability in the past to do anything about his drug issues are matters of real concern, and I note the psychologist's assessment of his risk of reoffending.

37. On the positive side, he does have some family support and something of a work history. I consider that on his release from custody he will need extensive professional assistance and supervision if he is to remain offence‑free and address the issues he needs to address which are discussed in the psychologist's report. I consider his prospects of rehabilitation will be improved if he has a longer period on parole than that provided by the statutory ratio. I therefore propose to make a finding of special circumstances.

38. He has, as I say, been in custody since 25 May 2017 when arrested for the offence. He served the four‑month sentence I referred to earlier up until 24 September 2017 for another offence. Having regard to the principles of totality, I propose to commence this sentence from 25 July 2017.

39. I have had regard to the objects of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act. Whenever sentencing for child sexual offending, general deterrence must be given significant weight. All right‑thinking members of our society condemn, as this court condemns, sexual offending against children. Children such as the victim are entitled to enjoy the joys of adolescence without being preyed upon by sexual predators like the offender. The sentence I impose must be such as to be a deterrent to this offender and others from such wicked conduct.

40. The maximum penalty has been taken into account as a legislative guidepost. In determining the sentence, I have had regard to the tables of cases helpfully supplied by the Crown and Mr Fraser. There is clearly no established range of sentence for offences of this type, but I have considered those cases and have taken some guidance from them, noting that no two cases are ever the same.

Orders

41. [DM], please stand up. [DM], you are convicted of the offence to which you have pleaded guilty. Having regard to the offence on the Form 1, you are sentenced to a term of imprisonment consisting of a non‑parole period of six years and a balance of term of two and a half years. The sentence commences on 25 July 2017 and expires on 24 January 2026. The non‑parole period expires on 24 July 2023.

42. The earliest date you are eligible to be released to parole is the date of the expiry of the non‑parole period, which is 24 July 2023. Whether you are in fact released to parole that day is a matter for the State Parole Authority, which will no doubt take account of your behaviour in prison in determining whether you are released then or on another day.

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Decision last updated: 11 November 2019