R v DS

[2017] NSWDC 229

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v DS [2017] NSWDC 229
Hearing dates:	17 March 2017
Date of orders:	17 March 2017
Decision date:	17 March 2017
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	The offender is sentenced to imprisonment. I set a non-parole period of 2½years and a head sentence of five years
Catchwords:	CRIMINAL LAW – Sentence – Historical offence – homosexual intercourse with a child under 10 - Fellatio
Legislation Cited:	Sentencing Act 1989 Parole of Prisoner’s Act 1966
Category:	Sentence
Parties:	The Crown DS
Representation:	Counsel: Mr G Turner – The Crown MS R Rodger – The Offender   Solicitors: Director of Public Prosecutions – The Crown Nyman Gibson Miralis – The offender
File Number(s):	2015/83514
Publication restriction:	There is to be no publication of the name of the complainant or of any material which may tend to identify the complainant and that is to include the name of the offender.

SENTENCE

1. HIS HONOUR: In the Christmas holidays of 1985/86 SS travelled with his mother and father to Sydney from Canberra where they lived. SS’s father came from a large family and it was usual for them all to spend some time together over Christmas.

2. Mr S’s paternal grandparents lived in a house in Rozelle. Some of his uncles also lived there and it was in a room of that house that at some stage over the Christmas holidays one of his uncles, DS, performed a very serious criminal offence for which he must now be sentenced.

3. That was an offence of having homosexual intercourse with a child under the age of ten. The maximum penalty for that offence is 25 years imprisonment. That maximum penalty, of course, indicates the seriousness which the legislature says that such offences should be treated.

4. At the time of this offence the offender was 18 and a half years of age but SS was only nine. He can remember kneeling on the lino floor in a kitchenette part of the offender’s room with the offender’s penis in his mouth. He could remember not being able to breath very well and that he did not like the taste. He does not recall the offender ejaculating.

5. The offender was charged with this offence many years after it occurred. He pleaded not guilty but a jury found him guilty after a short trial. He was also charged with two other offences of a similar kind. The jury was unable to agree on those charges and they were discharged without a verdict. This raises the question as to whether I should sentence the offender on the basis that the offence on which he was found guilty was an isolated one.

6. As well as giving evidence about the three counts on the indictment SS also spoke about other offending by the offender. I must, of course, sentence consistent with the jury’s verdict but they were not asked for verdicts on those uncharged acts. It is thus for me to decide the factual basis on which I should sentence the offender. The fact that the jury could not agree on counts 1 and 2 does not stop me in an appropriate case from being satisfied beyond reasonable doubt that the offences nevertheless occurred.

7. There is a particular reason why I could reach that conclusion in this case. One of the submissions put by Ms Rodger, who appeared for the offender at trial and appears for him on sentence today, to the jury at trial was that they could only convict the then accused on counts 1 and 2 if they were satisfied beyond reasonable doubt, not only that the events occurred but also that they occurred at the time specified in the indictment.

8. It may be that some jurors had doubts as to whether the complainant had correctly identified the occasion on which he was sexually assault at the Sefton Community Hall, in particular given the circumstance that there were other family functions held there, one of which was a christening, something the complainant mentioned to police about when he first spoke to them.

9. I do not need to be satisfied beyond reasonable doubt as to all of the uncharged acts and counts 1 and 2 on the indictment. The only reason I enter into this discussion is to decide whether it is a mitigating feature that the offence in count 3 was an isolated one. I am satisfied beyond reasonable doubt that it was not and that this represented only one of a number, albeit a small number, of similar acts of fellatio.

10. The offender was raised in Rozelle to parents who were Maltese immigrants. He is the youngest of nine children with four older sisters and four older brothers. He had a positive family environment with what a psychologist described as well-functioning parents who modelled positive behaviour. The offender did not experience neglect, sexual abuse or other trauma. There were no substance use issues or violence in the home. He remained living at the home later than might ordinarily be expected. His rationale was to care for his aging mother. Since entering adulthood he has tended to live with others and has usually been employed. There is nothing in his upbringing which would suggest that it in any way explains his offending behaviour.

11. One of the most important aspects of determining a sentence to impose upon an offender concerns the harm that that offence has caused. In this case Mr SS read a victim impact statement to the Court. I do not need to decide whether all of the difficulties which SS has experienced over his life are a result of the abuse perpetrated on him by the offender. That is because much of what appears in the victim impact statement is not foreseeable.

12. There is no doubt that Mr SS has suffered substantial harm. There is no doubt that it was foreseeable that he would so suffer and there is no doubt that regrettably such harm is the almost inevitable consequence for crimes such as that for which the offender is to be sentenced. It is to be noted, of course, that the offender was in a position of trust as regards his nephew. That is a matter conceded by Ms Rodger today. It is also a matter, important to note, that although it was not SS’s ordinary place of residence, the offence occurred in the home of his grandparents where he was staying over the Christmas holidays. Those matters, of course, are relevant to the assessment of the seriousness of this particular sexual assault.

13. I also want to say something about the nature of the sexual intercourse. An act of fellatio is a particularly intimate one. The closeness of the complainant’s eyes and nose and face to the body and in particular, of course, the genital area of the offender, as occurs in all acts of fellatio, means that it is not necessarily the case that objectively this act of fellatio was less serious than if the offender had penetrated Mr SS’s anus with his penis. There is no general rule that acts of fellatio are less serious than cases involving penile/anal intercourse. An act of fellatio is a particularly close sexual encounter. Objectively this was a very serious form of sexual intercourse.

14. I also take into account that the offender was himself relatively young at the time. The law regarded him as an adult but there is no bright line of maturity which is achieved once a person reaches their 18th birthday. I will take into account the offender’s age at the time of this crime, in particular, noting that there is no suggestion that he has offended in any sexual way since.

15. A psychologist referred to this being an offence which occurred as part of the offender’s sexual development. That appears to be an accurate description of what occurred. The psychologist also received information which suggested that the offender has in the past suffered from bipolar disorder. However, that has long been in remission and so there is no suggestion that the offender will do his time in custody harder than would otherwise be the case because of that mental illness.

16. The psychologist also said that whilst it is reasonably possible that there was a relationship between the offender’s bipolar disorder and the commission of this offence, as Ms Rodger quite properly conceded, that expression of opinion does not overcome the burden that the offender bears in proving on the balance of probabilities that the offender’s moral culpability was reduced because of him being in the manic phase of an episode related to his bipolar disorder. Indeed the psychologist who gave oral evidence today fairly acknowledged that he just could not say that it was likely that the offender was suffering a manic episode at the time of offending.

17. I am satisfied that the offender has good prospects of rehabilitation. That is a finding easily made even despite the circumstance that the offender does not acknowledge his guilt for this offence. The fact that there is no suggestion that he has committed similar offences in the many years which have elapsed since the Christmas of 1985/1986 is good evidence that this offence was an uncharacteristic aberration in the offender’s late teenage years at a time of ongoing sexual development.

18. That means that personal deterrence is of little importance in this matter but of course, general deterrence is of great importance indeed. Children are at risk of the predatory behaviour of adults as they seek to satisfy their sexual desires. Children are easily persuaded or encouraged to perform sexual acts such that there is often no need for force or threats to be used. Children need to be protected because, through naivety, they are not in a position to protect themselves.

19. It is for this reason that where offences are identified, significant sentences are imposed. It needs to brought home to people who, like the offender, might be tempted to satisfy their sexual desires by abusing children, that if they are identified and caught their punishment will reflect the need to ensure that children are protected from such behaviours.

20. I now turn to one of the most important features in sentencing Mr S. It is a feature which I will say at the outset will result in the offender receiving a much lower sentence than would be the case were this feature not present. I refer, of course, to the circumstance that I am now sentencing Mr S for an offence which occurred many years ago when sentencing law, sentencing practice and sentencing ranges were different.

21. Some of the difficulties in following the principle of law which binds me were identified in the course of submissions. Would the offender have been sentenced under the Sentencing Act 1989 or under the Parole of Prisoner’s Act 1966? Do I really have to descend into an enquiry into the state of Court delays in the late 1980s to decide that? In his favour I will sentence the offender on the basis that he would not have been subject to any rule which required that special circumstances be demonstrated before a non-parole period less than three-quarters of the head sentence could be imposed. I will sentence him on the basis that he would probably have been entitled to remissions on the sentence and, more fundamentally, that the range of sentences imposed for offences of this type was lower than that existing today, even ignoring the circumstance that the maximum penalty for such offending is now increased to life imprisonment.

22. I repeat for emphasis, applying sentencing practices which existed at the time that the offender would have been sentenced had early complaint been made will result in a sentence which is much more lenient than that which would have been imposed had I sentenced him according to current day sentencing principles and practices.

23. The offender wrote a letter to me in which he set out his conditions of custody. The Crown objected to me receiving that letter but I admitted it into evidence. Mr DS speaks of his current conditions of custody and his conditions of custody when he was first taken to gaol. The conditions of custody of prisoners vary enormously, not only according to whether they are serving sentences on protection or not. However, I accept that there is the risk that Mr S will serve some or all of his sentence whilst on protection and there is a risk that if that happens he might serve some or all of that sentence in conditions of custody which are harsher than those of the general prison population.

24. There are clearly special circumstances in this case. Not only is this Mr DS’s first time in custody, there is the risk that he will serve that sentence in protection and also that it is quite possible that he would have been sentenced at a time when the three-quarter rule did not exist if early complaint had been made.

25. So impose sentence as follows. The offender is sentenced to imprisonment. I set a non-parole period of two and a half years to date from 2 December 2016 and a head sentence of five years. The non-parole period will expire on 1 June 2019 on which day the offender is eligible to be released to parole. Are there any other matters? Madam Crown, Ms Rodger?

26. RODGER: No your Honour.

27. TURNER: No thank you your Honour.

**********

Amendments

30 August 2017 - Cover sheet non parole period amended to reflect orders as announced

Decision last updated: 30 August 2017