R v DS

[2020] NSWDC 66

District Court

New South Wales

Medium Neutral Citation:	R v DS [2020] NSWDC 66
Hearing dates:	13 February 2020
Date of orders:	28 February 2020
Decision date:	28 February 2020
Jurisdiction:	Criminal
Before:	Letherbarrow SC DCJ
Decision:	The offender is convicted of counts 2 and 4 in the indictment. I impose an aggregate non-parole period of two years and one month commencing on 26 February 2020 and expiring on 25 March 2022 when the offender will be eligible for release to parole. I impose an aggregate head sentence of 3 years and 6 months commencing on 26 February 2020 expiring on 25 August 2023.
Catchwords:	CRIME – Sexual offences – Aggravated indecent assault   SENTENCING – Penalties – Imprisonment – Aggregate sentence
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Bail Act 2013 (NSW)
Cases Cited:	Dousha v R [2008] NSWCCA 263 R v Fisher (1989) A Crim R 442 Markarian v R (2006) 28 CLR 357 Pearce v The Queen (1998) 194 CLR 610 Postiglione v The Queen (1997) 189 CLR 295
Category:	Sentence
Parties:	Regina (Crown) DS (Offender)
Representation:	Counsel: C Reynolds (Crown) P Harper (Defence)   Solicitors: Office of the Director of Public Prosecutions (Crown) Hamilton Janke Lawyers (Defence)
File Number(s):	2018/00106233
Publication restriction:	Non-publication order re identity of complainant, child witnesses and name of the offender.

Judgment

Introduction

1. On Tuesday 19 November last at Newcastle the offender was found guilty by a jury in relation to two counts of aggravated indecent assault, committed against his 12-year-old niece by marriage, contrary to section 61M(2) of the Crimes Act (the Act). The maximum penalty for such an offence is 10 years imprisonment and the legislation provides for a standard non-parole period of 8 years.

2. The jury could not reach verdicts in relation to two more serious charges of having sexual intercourse with a child of or above 10 years and under the age of 16 years, contrary to section 66C(1) of the Act and said to have been committed against the same complainant. Obviously the offender remains innocent of those two charges.

The Matter’s Procedural History and the Offenders Pre-sentence Custody

3. Immediately after I discharged the jury, the Crown sought to bring a detention application pursuant to s 50 of the Bail Act. Up until this point the offender had been on conditional bail since 6 April 2018, being the day after his arrest in relation to these matters. As I was not satisfied that reasonable notice of the application had been given by the Crown to the defence (indeed no notice had been given), I stood over such application to 28 November last to be heard by another judge then sitting in Newcastle (I having returned to Sydney). I also continued the offender’s bail with the addition of a reporting condition. Further, I listed the matter for mention on 6 December last to fix a date for the sentence hearing to take place before me and Thursday 13 February last at Parramatta was chosen in that regard.

4. I note that on 28 November last Gartelmann SC DCJ refused the Crown’s detention application and continued the offender’s bail as did I at the conclusion of the sentence hearing in February.

5. Accordingly, it was agreed that the period of pre-sentence custody was two days. Consequently, the sentence that I intend to impose will be backdated to 26 February 2020.

The Evidence

6. At the sentence hearing Mr Reynolds, trial advocate, who also appeared at trial, tendered the usual Crown bundle which I marked exhibit A on sentence. This bundle contained, inter alia, the offender’s criminal and custodial histories together with a victim impact statement. In addition, Mr Reynolds handed up some written submissions which I marked MFI 1 on sentence.

7. On behalf of the offender, Mr Harper of counsel, who likewise appeared at trial, did not tender any documentary evidence but relied upon some written submissions which I marked MFI 2 on sentence. In addition, he called the offender’s wife who gave some short oral evidence.

The Victim’s Impact Statement

8. The victim’s impact statement was read aloud in court by the victim’s mother. It revealed numerous very serious consequences commonly suffered by children victims of sexual assaults perpetrated upon them by adults.

The Facts

9. There was little dispute between the parties as to what facts I should find consistent with the jury's verdicts on the two counts upon which he was found guilty, being counts 2 and 4 in the indictment. The counts upon which the jury were unable to reach a verdict were counts 1 and 3 in the indictment.

10. The only real issue between the parties as to the facts was whether with respect to count 2 I could find beyond reasonable doubt that it involved skin on skin touching of the victim’s vagina by the offender’s finger, as opposed to touching on top of clothing.

11. In this respect it was the Crown's case that counts 1, 2 and 3 occurred on a single occasion in that order with count 1 involving an allegation of penile/vaginal intercourse and count 3 involving an allegation of cunnilingus. It was the victim's evidence that the offender removed her lower clothing shortly before the occurrence of count 1. The victim described such clothing as comprising pants and underpants.

12. In these circumstances, Mr Harper argued that as the jury were unable to reach verdicts in relation to counts 1 and 3 which both necessarily involved allegations of skin on skin touching, I could not be satisfied beyond reasonable doubt that count 2 involved skin on skin touching as opposed to touching on top of clothing.

13. Why the jury could not reach verdicts in relation to counts 1 and 3 is unknown and it is speculation to assume that this was because they were not satisfied that the victim’s clothing was removed at the outset.

14. The evidence from the victim was that prior to count 1 the offender removed both her pants and her underpants and that her underpants were on the floor after count 1 occurred.

15. The victim's evidence as to what occurred during count 2 appears at questions 95 to 99 and 144 to 146 of her JIRT interview and is as follows:

Q95   Yep. And then you said he started touching it.

A   Yeah

Q96   So tell me more about that.

A   He got his finger and started touching it.

Q97   Yeah so which finger?

A   This one.

Q98   Yep so you’re pointing to your left hand, yep. And you said he started touching it, what part did he start touching?

A   The bit where we pee out of.

Q99    Yeah and what did he do with his finger?

A   He rubbed it and then he stopped…….

Q144   Yep. O.K. And then you said when he put his finger you said where the pee comes out ---

A   Yep.

Q144   --- so what part of his finger touched you on the vagina?

A   The top bit.

Q145   Yep so how much of it?

A   Just that much.

Q146   Yep. And when you say he was touching it, how long was he touching it for?

A   Um, he just rubbed up and down and then stopped.

16. Having reread the victim’s JIRT interview in conjunction with her pre-recorded evidence, I am satisfied beyond reasonable doubt that count 2 occurred by way of skin on skin touching.

17. Accordingly, I make the following findings of fact which are consistent with the jury's verdict with respect to count 2:

1. The subject assault took place in the offender’s home in Shoal Bay where he lived with his three children and wife. It occurred one Friday evening between 4 January 2018 and 17 February 2018 when the offender's wife was absent running a market stall. At this time the victim was aged 12, having been born on 27 September 2008. The offender was then aged 45, having been born on 29 December 1973.

2. On the evening in question the victim was asleep on a trundle bed in the offender’s youngest daughter's bedroom. Such daughter was asleep nearby in her own bed.

3. The offender entered the bedroom and pulled down the sheets covering the victim. He then pulled her lower clothing off. It was whilst she was in this state of undress that the offender "started touching (the victim’s) private part" with a finger of his left hand. Asked what he did with his finger, the victim said he “rubbed it and then he stopped". Asked for how long "was he touching it", the victim said he "just rubbed up and down and stopped".

4. In light of this evidence I am not satisfied beyond reasonable doubt that such skin on skin touching and rubbing lasted more than a few seconds.

18. In relation to count 4, I make the following findings of fact consistent with the jury's verdict:

19. The subject assault took place in the same bedroom on the evening of 3 March 2018 being approximately two weeks to two months after count 2. Again the offender’s daughter was asleep in her bed with the victim asleep on the trundle bed nearby. Again the offender’s wife was not at home, having gone to a concert with the victim's mother, her sister.

20. The victim was wearing "undies" and pants. On this occasion the offender entered the bedroom and pulled the victim’s clothing to one side exposing her vagina which I am satisfied beyond reasonable doubt he then touched with a finger of his left hand. Asked to give more detail, the victim said he rubbed her vagina whereupon "it went cold". She went on to say that she told him to "stop" which he did before walking away. At another point when asked to describe exactly what happened the victim said: "he just touched it and walked away."

21. On the evidence I am again not satisfied beyond reasonable doubt that such skin on skin touching and rubbing lasted more than a few seconds.

The Offender’s Prior Criminal History

22. As stated, the offender was aged 45 at the time of the offending and is now aged 46. The evidence establishes that he has a clear criminal record and, indeed, has never been charged with a criminal offence.

23. He is therefore a person of good character and I have taken this into account in his favour, although it is well established that evidence of good character carries less weight with the type of offences presently under consideration: Dousha v R [2008] NSWCCA 263 at [49].

24. In relation to this aspect, it was common ground that s 21A(5A) of the Crimes (Sentencing Procedure) Act did not apply to the current matter as it could not be said that the offenders prior good character or lack of previous convictions was of assistance to the offender in the commission of the offence.

The Offender’s Subjective Circumstances

25. In the present situation where the offender has not been called on sentence and there is an absence of any documentary material, the offenders subjective circumstances must largely be drawn from the oral evidence of his wife although I have had some regard to the "Subjective Matters" as contained within Mr Harper's written submissions which were not objected to by the Crown.

26. As mentioned the offender was born on 29 December 1973 and is now 46 years of age. He undertook his education in Victoria leaving school in year 11 in about 1991 to take up a trade with the Australian Army. He remained in the Army for some four years before leaving to assist in the care of his first child. He later separated from the mother of such child and obtained full custody between the ages of 8 and 15 through an order ratified by the Family Court.

27. He was then employed in the building industry for some years during which time he met his current wife whom he has been married to for some 13 years. They have three children aged 13, 11 and 6.

28. In 2010 he and his family moved from the western suburbs of Sydney to Shoal Bay where he continued to work in the construction industry.

29. He has been the main breadwinner for his family over for many years. However, when he was arrested for these offences at his employer's offices, his work in the construction industry ceased although he has continued to complete web design contracts whilst on bail. His wife has also now graduated from a diploma course in building design.

30. Since being found guilty his ability to work in web design has reduced because he has not been in the "right mindset".

31. His wife has recently commenced a full-time job at Bunnings to offset the loss of his earnings "once he is incarcerated".

32. Up until the time of his arrest the offender was a patrolling lifesaver for some seven years at the Fingal Beach Surf club.

33. The offender and his wife put their house on the market in the first week of 2020 so they can pay off their mortgage as well as pay back family members who have lent them money and to gather sufficient funds for the offender’s "forthcoming conviction appeal and trial".

34. It is the family's ultimate intention to move to Queensland where they have relatives who can assist with childcare.

35. In her evidence the offender’s wife stated that the offender has her and her extended family’s complete support. In this regard, the offender's father, brother, sister-in-law and daughter were all in court during the sentence hearing.

The Offender’s Prospects of Rehabilitation

36. In his written submissions, Mr Harper stated that it "cannot be claimed that the offender has good prospects of rehabilitation because of his denial of the offending, nor is there any evidence of remorse.” Despite this concession, in his oral submissions Mr Harper argued that the offender’s prospects of rehabilitation were "high", largely due to his close family ties.

37. The Crown’s submission was that the offender’s prospects of rehabilitation were "guarded", essentially because of the lack of any remorse or contrition.

38. Whilst the continued denial of the offences and the associated lack of any remorse diminishes the offenders prospects of rehabilitation, nevertheless his work ethic and strong family support improves such prospects. In my view, the offender has above average prospects of rehabilitation.

The Objective Seriousness of the Offending

39. With respect to count 2, Mr Harper submitted that if I did not find beyond reasonable doubt that it involved skin on skin touching then it fell "at the lower end of the range perhaps below mid-range".

40. With respect to count 4 Mr Harper emphasised the momentary nature of the touching, even though it was skin on skin. He also pointed out that as soon as the victim said “stop”, he did so and walked away. Ultimately, Mr Harper submitted that this offence’s objective seriousness “approaches mid-range”.

41. With respect to both offences Mr Harper submitted that they should be treated as two isolated incidents occurring some months apart. He further submitted that there was no evidence of any force being used, although he conceded that the victim stated that with respect to count 2 she was "trying to get away".

42. In relation to both offences, Mr Harper conceded that the offending was aggravated by the age difference between the offender and the victim and also by the significant breach of trust involved.

43. Overall, he categorised both offences as "momentary digital touching of the victim’s vagina”.

44. On the other hand, the Crown submitted that both offences fell "marginally below the mid-range of objective seriousness”. In this respect it was submitted that the offender abused a position of trust and authority in relation to the victim giving rise to the circumstances of aggravation contained within s 21(2)(k) of the Crimes (Sentencing Procedure) Act. As to this question the Crown pointed out that the offender had known the victim since her birth and had been entrusted to supervise her at his house when no other adults were present.

45. However, the Crown conceded that the victim was “towards the upper end of the range captured by s 61M(2)”. He also conceded that "both offences appear to have been relatively brief in duration.”

46. Whilst both offences were momentary in nature, each involved skin on skin touching of the victim's genitalia by the accused's fingers in circumstances which involve a significant breach of trust. In my view, both offences fall just below mid-range with no real difference between them.

Deterrence

47. General deterrence is of primary importance in relation to sentencing for sexual offences committed against children. As Yeldham J, who Maxwell J agreed, stated in R v Fisher (1989) A Crim R 442 at [445]:

This court has said time and time again that sexual assaults upon young children, especially by those who stand in a position of trust to them, must be severely punished, and that those who engage in this evil conduct must go to gaol for a long period of time, not only to punish them, but also in an endeavour to deter others who might have similar inclinations…

This court must serve notice upon judges who impose weakly merciful sentences in some cases of sexual assault upon children, that heavy custodial sentences are essential if the courts are to play their proper role in protecting young people from sexual attacks by adults…

48. Bearing in mind the continued denial of the offending and the absence of any remorse, specific deterrence must also be a significant factor.

The Change in the Legislation

49. Mr Harper pointed out that since the relevant offending, s61M(2) of the Crimes Act has been repealed and replaced by section 66DB of the Crimes Act which became operational on one December 2018 and whilst it carries the same maximum term of imprisonment of 10 years, it no longer provides for a standard non-parole period. Mr Harper accordingly submitted "that the offender is entitled to the benefit of this on sentence, because of the operation of s 19 of the Crimes (Sentencing Procedure) Act”. This section provides as follows:

(1) If an Act or statutory rule increases the penalty for an offence, the increased penalty applies only to offences committed after the commencement of the provision of the Act or statutory rule increasing the penalty.

(2) If an Act or statutory rule reduces the penalty for an offence, the reduced penalty extends to offences committed before the commencement of the provision of the Act or statutory rule reducing the penalty, but the reduction does not affect any penalty imposed before that commencement.

50. Mr Harper submitted that the "principle of procedural fairness applies to the present case” in that whilst a SNPP existed at the time of the offending, one does not exist as at the date of sentence and this "should be reflected in the sentencing process by treating the offences as having no standard non-parole period.”

51. The Crown submitted that s 19(2) limits the operation of the section to cases where "an Act or statutory rule reduces the penalty for an offence" and does not apply to situations where, as here, an offence has been repealed and replaced with a new offence. Nevertheless, he conceded that the principle of procedural fairness requires that this change in the legislation should be taken into account in the offenders favour but, as I understand it, not to the degree that the offences are to be regarded as not carrying a standard non-parole period.

52. In my view, the Crown submissions as to this question are correct and I will take this change in the relevant legislation into account as the Crown submitted.

Only Available Sentence

53. It was common ground before me that the only applicable sentence for these offences is one of full-time custody. I agree and so find.

Special Circumstances

54. As to this issue, the Crown’s submission was that a finding of special circumstances was open. Mr Harper submitted that such a finding should be made because this will be the offender’s first time in custody.

55. As I have found, the offender has above average prospects of rehabilitation. Accordingly, he will benefit from a longer term of supervision on parole to reintegrate into society once he has served his head sentence. This will also be, as mentioned, his first time in custody. In my view, a finding of special circumstances should be made and I do so.

My Approach

56. In reaching the aggregate sentence which I will shortly impose, I've taken into account the statutory goalposts reflected in the maximum penalty and in the applicable standard non-parole period although with the rider mentioned. I've also taken into account all the other matters to which I have referred and applied an instinctive synthesis in accordance with the approach of McHugh J in Markarianv R (2006) 28 CLR 357 at [51].

56. In arriving at the appropriate aggregate sentence, I have also had regard to the principles of totality as discussed in Pearce v The Queen (1998) 194 CLR 610. These principles require me, after having arrived at the indicative sentences in relation to the two offences, to stand back and consider whether the overall sentence to be imposed is just and appropriate and reflects the totality of the criminality involved: see Postiglione v The Queen (1997) 189 CLR 295.

Indicative Sentences

58. The aggregate sentencing provisions require me to record the term of the sentence I would have imposed for each individual offence. As each such offence carried a standard non-parole period, I must also record the indicative non-parole period relating to each offence.

59. In relation to count 2, I indicate a sentence of 3 years with a non-parole period of 1 year and 9 months.

60. In relation to count 4, I indicate a sentence of 3 years with a non-parole period of 1 year and 9 months.

Sentence

61. The offender is convicted of counts 2 and 4 in the indictment. I impose an aggregate non-parole period of two years and one month commencing on 26 February 2020 and expiring on 25 March 2022 when the offender will be eligible for release to parole. I impose an aggregate head sentence of 3 years and 6 months commencing on 26 February 2020 expiring on 25 August 2023.

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Decision last updated: 31 March 2020