R v Drew

[2024] NSWDC 49

District Court

New South Wales

Medium Neutral Citation:

R v Drew [2024] NSWDC 49

Hearing dates:

23 February 2024

Date of orders:

01 March 2024

Decision date:

01 March 2024

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   Aaron Drew is convicted.

2   I impose an aggregate term of imprisonment of 5 years and 6 months with a non-parole period of 3 years to date from 29 October 2022. The non-parole period will expire on 28 October 2025 and the head sentence will expire on 28 April 2028.

3   The offender will be eligible to be released on parole on 28 October 2025.

Catchwords:

CRIME — Drug offences — Supply prohibited drug

CRIME — Sexual offences — Aggravated sexual assault

CRIME — Firearms offences — Unauthorised use/possession of firearm

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Drug Misuse and Trafficking Act 1985

Firearms Act 1996

Cases Cited:

Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147

The Queen v De Simoni (1981) 147 CLR 383

R v Olbrich (1999) 199 CLR 270

Category:

Sentence

Parties:

Rex (Crown)
Aaron Drew (Offender)

Representation:

Counsel:
F Vella (Crown)
D Pace (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid NSW

File Number(s):

2022/123984

Publication restriction:

None

Judgment

1. Aaron Jay Drew (the offender) appears for sentence after pleading guilty in the Local Court to the following offences:

Sequence	Offence	Maximum Penalty and SNPP
15	Supply prohibited drug contrary to s 25(1) Drug Misuse and Trafficking Act 1985 on a s 166 certificate	2 years imprisonment and/or fine of $5,500
5	Sexual touching contrary to s 61KC Crimes Act 1900	5 years imprisonment
16	Aggravated sexual assault contrary to s 61J Crimes Act 1900	20 years imprisonment SNPP 10 years
10	Possess unauthorised pistol contrary to s 7 Firearms Act 1996	14 years imprisonment SNPP 4 years

2. The offender also asks the Court to take into account the following charges on a Form 1:

1. Supply prohibited drug (sequence 14) when passing sentence for sequence 15;

2. Sexual assault (sequence 7) when passing sentence for sequence 16;

3. Sexual touching (sequence 6) when passing sentence for sequence 5.

Approach to Sentencing

3. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999.

4. The offender entered pleas of guilty in the Local Court and is entitled to a 25% discount on sentence: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.

5. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities:  R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

6. I have taken into account the principles outlined in the guideline judgment relating to the Form 1 offences:  Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147.

Facts

7. The parties presented an Agreed Statement of Facts. I have taken the entirety of the document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offender to permit an understanding of the sentence imposed.

8. The complainant (T) was 16 years old at the time of the offending. In late March 2022, T and her boyfriend (J) ran away from home in Victoria and travelled by train to Sydney.

9. The offender was 27 years old at the time of the offending. He resided in a unit in Roseville, within a shared house. There were two beds in the main room of the unit, which had a studio layout.

10. T met the offender about one week prior to the offence. J took her to the offender’s house to smoke ice. T stayed at the offender’s house for about three nights. Another young person (D) also came to reside at the offender’s unit about four days prior to the offences. T, J and D usually slept on one bed and the offender slept on the other bed.

11. At about 5pm on 28 April 2022 J was arrested and taken into custody for unrelated offences. Sometime later, D and T returned to the offender’s unit. T drank two to three cans of pre-mix drinks and smoked some cannabis. At about 8pm D fell asleep on the bed.

Sequence 015 – supply prohibited drug

12. At about 10pm the offender left the unit, returning at about midnight. When he returned, T was sitting on the bed smoking a bong and watching television. The offender told T that he went to Dee Why to buy methylamphetamine.

13. The offender produced a crack pipe and proceeded to smoke methylamphetamine. The offender waved the crack pipe in T’s face and said “do you want some of this?” T responded “no, fuck off”. The offender approached T, leaned over and put the pipe in her mouth. He said to her “you have to suck more of it, you have to hold it in longer” and encouraged her to smoke the methylamphetamine. T said “I want a break” and “I don’t want any more”. The offender continued to give the pipe to T. After about 10 occasions she said that she was stopping and that she had had enough. The offender said “no, 20 is a point. That’s like barely anything”. T felt pressured by the offender to continue consuming the drug.

14. The offender was not wearing clothes but did have a pair of shorts on earlier in the evening. T was wearing a grey Nike T-shirt and black Fila track pants.

15. At about 12.30am the offender was lying on his bed watching pornography and masturbating. T said “what the fuck, cunt?” The offender replied “oh don’t mind me”. At this time the offender was not wearing a shirt, he was wearing shorts but his penis was exposed. The offender said “can you just hold this for me?” referring to his phone and T said “no, what the fuck cunt, it’s fucking weird.”

16. T sent text messages to several people complaining about the offender’s behaviour and seeking help.

Sequence 005 – sexual touching

17. At about 1am the offender dragged T over to his bed. The offender was smoking the crack pipe and gave it to T. She was feeling sick and said “I’m going to throw up all this stuff”.

18. The offender exhaled and pulled T back down to lay next to him. He said “Oh, I promise it’s not weird and creepy” and she responded “well fuck it is”. The offender was pulling her down at which time she said “nah stop”. She kept sitting back up but the offender kept pulling her back down onto the bed.

19. The offender rubbed T’s vagina with his fingers over her clothes. T said “stop” and “get the fuck away”. T pulled the offender’s hand away and said “fuck off, stop” but the offender kept moving his hand back to her vagina.

Sequence 007 – sexual intercourse without consent – Form 1

20. The offender tried to remove T’s pants multiple times and she resisted. T was holding her pants up, using her hands to cover her genital area and tried to roll over in an effort to protect herself. After some time the offender managed to remove T’s pants while she was doing something with her phone. She was not wearing underwear. The offender penetrated T’s vagina with his fingers, continuing for some time. T does not recall how many fingers he used. The offender held T in a position where she could not move. T said “stop” and “get the fuck off me” and “don’t do it”. The offender continued despite her protests.

21. At one point T managed to get up and go into the bathroom where she put on underwear and her pants. When she went back into the main room the offender was still smoking methylamphetamine and again offered it to her. She refused saying “No I don’t want to do it, it’s 3am and I want to go to bed”.

Sequence 006 – sexual touching – Form 1

22. After returning from the bathroom the offender began touching T’s vagina over her pants again. She said “stop” and “it hurts” but the offender would not stop.

Sequence 016 – aggravated sexual assault

23. A short time later the offender removed T’s pants and underwear by pulling on the waistbands. He then penetrated T’s vagina with his fingers while she was screaming “stop”. The offender continued despite her protests. The offender became more aggressive with his fingers in her vagina. The offender persisted to the point where T’s vagina became swollen and painful. By this time it was close to 5am.

24. At some point D woke up to the complainant yelling “stop” and “help”. He saw T and the offender in the bed and said “what are you doing?” The offender replied “just shut up and mind your own business”. D told the offender to get off her but he did not. D was scared and went back to sleep.

25. At about 6am the offender was masturbating while watching pornography and was naked and lying on the bed. He was trying to persuade T to come and have penile/vaginal sex with him to which she responded “fuck off” and “I don’t want to do it”.

26. At some point, T sat up and moved to the other bed. She ran to the bathroom and texted her mother.

27. At about 6.53am T’s mother saw the text messages that T had sent through the night. At 7am T’s mother contacted 000 and requested police attend the offender’s address. She maintained text contact with T, who waited in the bathroom for the police to arrive. While she was waiting T had a shower. When the police arrived the offender started banging on the bathroom door asking T to let him into the bathroom, which she refused.

28. At about 7.10am when the police arrived, they did not know which unit the offender was in. As they walked around the outside of the property they called out and T responded that she was in unit 3. When T was located she was very distressed and taken to Royal North Shore Hospital for assessment.

29. The offender was placed under arrest. He was conveyed to Chatswood Police Station and charged. The complainant was forensically examined, but the examination was limited to a visual examination because a physical examination was too uncomfortable. Significant swelling and tenderness were observed. The following day the complainant complained to her mother that she was in pain and it was hurting her to urinate.

30. On 1 May 2022 she was taken by ambulance to a children’s hospital in Victoria. It was observed that the labia majora and minora were extremely swollen and painful. She was prescribed antibiotics.

Sequence 010 – possess unauthorised pistol

31. On 14 September 2022 a Cellebrite examination was conducted of the offender’s mobile telephone. A number of photographs were located depicting the offender carrying various weapons. Two pistols were identified as imitation pistols that come within the definition of “unauthorised pistol”.

Sequence 014 – supply prohibited drug – Form 1

32. At about 1.30pm on 28 April 2022 the offender supplied a neighbour with about 1.5 grams of cannabis in a resealable bag worth about $25.

Offender’s Case on Sentence

33. The offender tendered the following documents:

1. Letter of remorse dated 10 February 2024;

2. Chronology dated 8 February 2024;

3. Report of Anica Spatz, psychologist, dated 13 February 2024;

4. RNSH discharge summary final report dated 5 April 2021;

5. Reference of Carole Drew, mother, dated 23 February 2024;

6. General overview by Carole Drew dated 23 February 2024;

7. Equips Addiction Certificate dated 18 April 2023

8. Equips Aggression Certificate dated 14 June 2023;

9. Equips Foundation Program Certificate dated 6 December 2022;

10. Connect Certificate dated 27 March 2023;

11. Work and Development Order Certificate dated 26 October 2022;

12. Music Matters Concert Certificate dated 11 August 2023;

13. List of whole days in COVID lockdown.

34. The offender was also called to give evidence and cross-examined. His evidence was consistent with the documentary material and provided a proper basis for the opinions of the psychologist, with one exception which I will return to. He expressed remorse, accepted responsibility for his actions and acknowledged the harm done to the victim. No submission was put to the effect that I should not accept the offender’s oral evidence.

35. I have had regard to all of the subjective evidence in coming to an appropriate sentence. What follows is a brief precis of the evidence relied on by the offender.

36. The offender was born in the United States in 1995. His parents separated when he was 14 months old as a result of domestic violence perpetrated by his father on his mother. In or about 1997, he returned to Australia with his mother and had no contact with his father.

37. A few years later, the offender’s mother told him that his father was dead, because she thought it would be easier on him than the thought that he had been abandoned by his father.

38. In his early schooling, the offender was bullied, resulting in him changing schools and repeating Year 1. In about 2002, the offender’s mother suffered a serious back injury that impacted her mobility for about two years and the offender was required to care for her from time to time. The offender found it difficult to mix in school as a result of his disrupted childhood and felt isolated.

39. In 2003, the offender’s grandfather, who he was close to, died suddenly. He continued to be bullied at school and was exposed to the mental anguish of his grandmother who suffered a number of breakdowns following the death of her husband. She eventually died in care, confused and unable to recognise family members, including the offender and his mother. At his grandmother’s funeral, a relative told the offender that his father was alive and how to contact him.

40. In 2007, the offender was sexually abused by a friend after being encouraged to get drunk. He was also introduced to pornography at this time.

41. After this he experimented with ecstasy, amphetamines and psychedelic drugs and drank alcohol to excess. On occasions he attended school while intoxicated.

42. By about 2011, the offender had lost all trust in his mother and began to use drugs. He was asked to leave school in Year 11. The offender’s mother tried to get him into residential rehabilitation, but he refused to go.

43. After leaving school, the offender worked in hospitality and was considered to be a good worker.

44. In about 2015 the offender’s mother took out an Apprehended Domestic Violence Order against the offender and he became homeless. He “couch surfed” and maintained employment until December 2017 when he moved back in with his mother.

45. By about age 22, the offender’s drug use reached its peak, involving drugs such as ice, heroin, GHB and cocaine. He had damaged his veins during drug administration and had to use unconventional methods of drug administration.

46. At age 24, he was ordered to attend rehabilitation at Odyssey House. To assist, he was prescribed anti-psychotics and mood stabilisers which he could not tolerate because they induced suicidal ideation. He returned to drug use within a week of completing his time at Odyssey House and was left with a negative impression of group-based rehabilitation providers.

47. In April 2021, the offender was struck by a motor vehicle while he was attempting to cross the road on the way home from work. He suffered a skull fracture and a broken nose as well as bruising and tenderness. He was unfit to work for 12 weeks. At this point, his mother described him as “broke, distressed, depressed, in pain, lonely, had PTSD and then nowhere to live again because he couldn’t pay rent”.

48. On 6 July 2021 the offender committed an offence of break, enter and steal at a residential property in San Souci. He stole items that were capable of resale for some value.

49. Later in 2021 the offender commenced work as a removalist for a property styling company. He also took on night work in a restaurant to make ends meet. He was also performing community service work on Saturdays to comply with the conditions of his ICO. His mother described him at this time as “burnt out”.

50. The offender has only had one significant romantic relationship that ended as a result of his relapse into drug use. He stays in contact with his father and family.

51. The offender has an interest in composing music and had performed his work in custody.

52. The offender presently suffers from an elevated heart rate, which he has found it difficult to get treatment for in custody.

53. The offender has expressed remorse and has acknowledged the harm caused by his actions.

54. The psychologist assessed the offender as presenting an above average risk of sexual reoffending on two separate tests.

55. The psychologist opined that the offender’s mental health problems include anxiety, traits of attention deficit and impulsivity, posttraumatic stress disorder (PTSD) and severe poly-substance use. His upbringing was marred by instability, his mother’s injury, the demise of his grandparents, physical and sexual abuse. He demonstrated deficits in emotional regulation characterised by impulsiveness, poor social judgement and substance use.

56. The psychologist further opined that the offender suffered a traumatic brain injury (TBI) in the motor vehicle accident in 2021, which could have impacted his executive functioning leading to further impulsiveness and poor social judgement. I have had regard to the medical records available for the offender’s treatment following the MVA. In addition, there is no evidence of any relevant change in the offender’s presentation or personality following the MVA. I am not satisfied on the evidence available that the offender suffered a TBI in the MVA and I do not accept the psychologist’s opinion on that point. I accept that his executive functioning has been adversely impacted by the extent of his drug use and alcohol abuse over an extended period.

57. The psychologist opined that the offender requires extensive psychiatric treatment and assistance with reintegrating into the community and that he is presently receiving sub-optimal treatment in custody.

Consideration

Objective seriousness

58. There was a significant age gap between the offender and the complainant. The offender was providing the complainant with housing at the time of the offences. He knew that she was young and had little or no adult support. At the time of the offences T was isolated because J had been incarcerated and D was asleep. The offender took the opportunity to masturbate in front of the complainant. In all of the circumstances, I am satisfied that there was a breach of trust in the relationship between the offender and the complainant.

59. Sequence 15 involved the supply of methylamphetamine to a minor for the purposes of getting her intoxicated. The offender took active and repeated steps to encourage the complainant to smoke the drug. The precise amount of the drug supplied is not known but was probably small. The drug was detected in the complainant’s system through toxicology testing.

60. The sexual touching encompassed by sequence 5 occurred on the complainant’s vagina on the outside of the complainant’s clothing and for a relatively short period of time. The offender used force to get the complainant close enough to him to commit the offence. The offender knew that the complainant did not consent to being sexually touched.

61. For the aggravated sexual assault in sequence 16, the offender penetrated the complainant’s vagina with his fingers. He used force to remove her pants and underwear and was aggressive to the extent that was sufficient to cause injury. The prosecution relied on the infliction of actual bodily harm as the circumstance of aggravation. It is hard to determine how long the offence went on for. The offender knew that the complainant did not consent because she was screaming for him to stop and asking D for help. It is well established that sexual assaults, such as those in sequences 5 and 16 can and do cause long term psychological harm.

62. Sequence 10 was detected by analysing the content of the offender’s mobile telephone. The Crown’s case was that the offender possessed the unauthorised pistols for the purpose of taking the photographs that were located. The unauthorised pistols were alleged to be imitation pistols and not capable of inflicting injury. There is no evidence that they were used in a way to indicate they were real, by the offender. The offence is at the lowest end of the scale of objective seriousness.

58. The offender had a disrupted upbringing marred by social isolation, physical and sexual abuse that led to heavy polydrug use. His capacity to understand the consequences of his actions was reduced. In all of the circumstances, his moral culpability for the offences was reduced to some extent.

59. I have taken into account the maximum penalty for the offences.

Deterrence

65. General deterrence is of significance to the matters before the Court.

66. There is also a need for specific deterrence. The offender had been given a previous opportunity to pursue drug rehabilitation and mental health treatment while serving a term of imprisonment through an ICO. His response to supervision and directions from Community Corrections was poor. On the other hand, he has now been abstinent from drugs for an extended period, which he had been unable to achieve in the past. He has also undertaken a number of courses in custody that demonstrate he is willing to engage in treatment.

Aggravating factors

67. The supply offence involved the offender causing the complainant to inhale an intoxicating substance: s 21A(2)(cb) Crimes (Sentencing Procedure) Act 1999. The Crown relied on this aggravating factor for the supply offence only and did not allege that it was established for the sex offences because to do so would have offended the De Simoni principle. I am satisfied beyond reasonable doubt that it is appropriate to take the aggravating factor into account on the supply offence, because supply does not require the drug supplied to be administered.

68. The offence was committed in front of a child under 18 years of age: s 21A(2)(ea) Crimes (Sentencing Procedure) Act 1999. All of the offences took place in the presence of D, aged 16, who was asleep for most of the relevant period. I have only placed weight on this aggravating factor for the aggravated sexual assault, for the reasons that follow. During the commission of the aggravated sexual assault, D woke up and became aware of what was happening. He heard the complainant telling the offender to stop and pleading for help. After being told by the offender to “mind his own business”, D became scared of the offender and did not intervene further. I am satisfied beyond reasonable doubt that the aggravated sexual assault had a deleterious psychological impact on D.

69. The offence was committed while the offender was on conditional liberty in relation to another offence: s 21A(2)(j) Crimes (Sentencing Procedure) Act 1999. On 2 December 2021 the offender was sentenced to 2 years imprisonment to be served by way of an Intensive Correction Order for an offence of break, enter and steal. The ICO was revoked from the date of his arrest on 29 April 2022 and he served the balance of it in full-time custody. The ICO was only revoked by reference to the commission of the offences for which the offender is to be sentenced.

70. The victim was vulnerable by reference to her age and by reason of the fact that she was isolated by reference to the incarceration of J and being offered shelter by the offender: s 21A(2)(l) Crimes (Sentencing Procedure) Act 1999.

Mitigating factors

71. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has finally achieved a prolonged period of abstinence and undertaken a number of courses in custody. He has committed himself to work in prison and has become a leading hand. He is prepared to participate in interventions, which I expect will include sex offender courses in custody. He has prosocial plans for the future and a good support network. He will need support to achieve drug rehabilitation in the community.

72. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender expressed remorse to the psychologist and to the Court in his evidence. He has accepted responsibility for his actions and acknowledged the impact on the victim. I am satisfied that he is genuinely contrite.

73. I have taken into account the restrictions imposed on prisoners serving sentences in New South Wales in response to the COVID-19 pandemic. I am satisfied that those restrictions may continue to be imposed for some time into the future. The offender has also elected to serve his time in protective custody.

74. I am satisfied that the COVID-19 restrictions, his protective custody and his mental condition have made and will continue to make the offender’s time in custody more onerous.

75. The offender has been in custody since the date of his arrest on 29 April 2022. I will backdate the sentence to commence on 29 October 2022 in partial accumulation of the sentence imposed following the revocation of the ICO.

Penalty

76. I have had regard to s 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied, having considered all other available sentences, that no sentence other than imprisonment is appropriate, other than for sequence 10.

77. Aaron Drew is convicted.

78. I have had regard to the Victim Impact Statement prepared by T and read aloud in Court on her behalf.

79. I make a finding of special circumstances. This is the offender’s first time in custody and he has addiction issues and mental health concerns that warrant a longer parole period. I have also adjusted the non-parole period to take into account the partial accumulation of the sentence imposed following the revocation of the ICO.

80. I will impose an aggregate sentence: s 53A Crimes (Sentencing Procedure) Act 1999. The sentences I would have imposed after allowing for the appropriate discount, had separate sentences been imposed are:

• Sequence 15, taking into account the matter on the Form 1 – 6 months;

• Sequence 5, taking into account the matter on the Form 1 – 9 months;

• Sequence 16, taking into account the matter on the Form 1 – 5 years with a non-parole period of 2 years and 9 months.

81. For sequence 10, I impose no further penalty pursuant to s 10A Crimes (Sentencing Procedure) Act 1999.

82. I impose an aggregate term of imprisonment of 5 years and 6 months with a non-parole period of 3 years to date from 29 October 2022. The non-parole period will expire on 28 October 2025 and the head sentence will expire on 28 April 2028.

83. The offender will be eligible to be released on parole on 28 October 2025.

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Decision last updated: 01 March 2024