R v DSM

[2021] NSWDC 283

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v DSM [2021] NSWDC 283

Hearing dates:

15/2/21-25/2/21, 23/4/21

Date of orders:

23/4/21

Decision date:

23 April 2021

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to an aggregate term of imprisonment of 5 years 9 months with a NPP of 3 years 6 months (31/3/21-30/9/24).

I find special circumstances.

The indicative sentences are:

Count 1 – 3 years 6 months with NPP 2 years 2 months

Count 2 – 18 months with NPP 11 months.

Count 3 – 2 years 6 months with NPP 18 months

Count 4 – 3 years 3 months with NPP 2 years.

Catchwords:

Crime – Sentence – Indecent assault under 16 years

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

R v MJR [2002] 54 ACrimR 368

R v Nelson [2016] NSWCCA 130

Category:

Sentence

Parties:

NSW DPP – Crown
DSM - Offender

Representation:

Ms E Curran for Crown
Mr B Levet for Offender

File Number(s):

2019/119653

Publication restriction:

Non-publication order in relation to the identity of the complainant and the offender.

Judgment

1. I note firstly that there is a non-publication statutory provision which applies in this case such that there must be no naming or identification of the victim, who I will refer to in these remarks as MM.

2. The offender DSM stood trial before a jury at Parramatta over nine days from 15 February 2021 on an indictment containing 10 counts. On 25 February 2021 the jury returned not guilty verdicts on counts 5 through to 10 but guilty verdicts on 1 through to 4.

3. Those counts involve four offences under s 61M(2) of the Crimes Act 1900, those being offences of indecent assault upon a person aged under 16 years and it is now necessary for the Court to sentence the offender for those offences.

4. The maximum penalty for each of the offences is 10 years imprisonment and each of them have specified a standard non-parole period of eight years. Of course the maximum penalty and the standard non-parole period are important guideposts in the sentencing exercise which I must undertake.

FACTS

5. A set of suggested facts for sentence has been prepared by the Crown and placed before the Court and has not been the subject of dispute on behalf of the offender. In summary the facts of the four counts are relevantly as follows.

6. The offender is the paternal grandfather of the victim MM who was born in August 2004. On an occasion between 1 January 2013 and 31 December 2016 the victim was staying at the offender’s house at Blacktown. Also present were the victim’s paternal grandmother, younger brother and two cousins. At some point the victim’s grandmother, her younger brother and two cousins left the house to buy pizza. The victim was in the bathroom when they left. However when she walked out of the bathroom she saw the offender standing outside the bathroom. The offender led the victim to the guest area of the house which was a room at the front of the house. Once inside that room the offender lay the victim on a couch and kissed her on the lips. He also touched her on the vagina on the outside of her underwear and also on the inside of her underwear, that is skin on skin. Furthermore he touched her on the breasts and also placed her hand so that it touched his penis through his clothing. After this the offender apparently saw the victim’s grandmother, brother and cousins returning and told the victim, “don’t tell anyone”.

7. In about October 2016 the victim told her mother words to the effect of, “I don’t like grandfather because the way he stares and he just do funny things and touches me”. The victim’s mother tried to contact the offender but she was unable to speak to him. The next day however the offender’s wife, that is the victim’s paternal grandmother, came to the mother’s house and told her she had spoken with the offender who said that he had only been playing with the victim and tickling her.

8. In September 2017 the victim’s mother suffered a serious back injury after being assaulted by her then husband. In November 2017 the mother and, by connection the victim, cut off all contact with the offender and his wife.

9. In March April 2018, following a sex education class at her school, the victim told a friend that the offender had touched her inappropriately and did things to her that she did not like. She told her friend this as she realised that what the offender had done was wrong.

10. In January 2019 the victim told her mother that the offender is “a very bad man”. At that time the victim was upset and crying. She told her mother, “He tried to do everything with me and I don’t think I’m a virgin anymore”.

11. The mother took the victim to a police station where she told Detectives from Penrith Child Abuse Unit what the offender had done to her. On 16 April 2019 the offender was cautioned, arrested and taken to a police station where he participated in a recorded interview in which he denied any indecent assaults on the victim, stating that the allegations were lies. Those are the essential facts on which he is to be sentenced.

OBJECTIVE SERIOUSNESS

12. Clearly each of the offences for which the offender is to be sentenced are serious ones. This is marked firstly by the maximum penalty and the standard non-parole period which as I have already said are important guideposts in the sentencing exercise. In addition however, and as is well known, sexual offending against children by an adult is regarded with extreme abhorrence in our community. This has become particularly so in recent decades given the realisation of just how common and how damaging such offending is. It is for this reason that considerable emphasis must be placed on general deterrence. In accordance with the acceptance of just how prevalent and serious child sexual abuse is the Courts have acknowledged a change in community attitudes to such offences and have emphasised the need for serious punishment to be imposed. As was said by the then President of the Court of Appeal in R v MJR [2002] 54 ACrimR 368, the pattern of increasing sentences for child sexual assault matters:

“has come about in response to greater understanding about the long term effects of child sexual abuse as well as by a considered judicial response to changing community attitudes.”

13. These principles are reflected in s 25AA of the Crimes (Sentencing Procedure) Act 1999 which requires the Court to sentence for such offences in accordance with current sentencing practices and patterns.

14. In assessing the objective seriousness of the offences before the Court, one of the important factors is the nature of the sexual act involved. Each case must be determined on its own facts and, although the nature of the sexual act is important, it is not the sole consideration. Rather I must take into account a range of factors, including how the offences took place and their character, the age difference between the victim and the offender, as well as the specific age of the child within the age range specified in the offence, as well as the duration of the offence and the effects on the victim. Generally speaking the younger the child, the more vulnerable and defenceless he or she will be, and accordingly the more serious the criminality.

15. In this particular case each of the four offences were committed on the same occasion when the victim had been, in effect, left in the care of the offender while others went out for food. In those circumstances and also because this offender was the victim’s grandfather, the offences involved a significant breach of trust. Also at the time of the offences the victim was aged between about 10 and 13 years which is fairly significantly under the threshold age of 16 years which is an element of the offences. There was also a very significant age differential, with the offender being about 45 years older than the victim. The offences did not involve the use of any direct violence or gratuitous cruelty beyond that inherent in the indecent assaults themselves. The duration of the offending was relatively short, although that is a common feature of such offences and in my view the duration of the offending in this matter neither mitigates nor aggravates their seriousness.

16. I also have no doubt that the offences have caused significant emotional harm and damage to the victim and her family. That is to be expected when offences like this are committed against such a young victim, particularly at the hands of a trusted family member. It is almost inevitable in those circumstances that the victim will be left with a fractured or diminished sense of safety, with feelings of a devalued or altered sense of self and uncertainty about or an inability to form trusting relationships. In many cases these effects may be lifelong.

17. In this case the Victim Impact Statement speaks eloquently of ongoing consequences of this very nature. While I do not treat the Victim Impact Statement as an aggravating factor for the purposes of para (g) of s 21A(2), it does provide confirmation of the mark that such offences can in most cases be expected to leave on the innocent victim. In this regard I note the observations by Basten JA in R v Nelson [2016] NSWCCA 130 at para 17 and following.

18. In my view the objective seriousness of the offences can be described as follows.

19. As to count 1 which involves touching on the vagina both outside and inside of clothing, as being just within the mid-range. As to count 4, that is the placing of the victim’s hand on the offender’s penis through his clothes, I treat that as being slightly below the mid-range. As to count 3, the touching of the breast area, I regard as being somewhat below the mid-range although not approaching the lowest range, and as to count 2, involving the kissing on the lips I regard that as being below the mid-range and approaching the lower range of objective seriousness.

SUBJECTIVE MATTERS

20. The offender is now 62 years of age and was between about 55 and 57 years at the time of offending. He has no relevant prior convictions. He was born in India but came to Australia in 1983 and is now an Australian citizen. He was married to his wife until she regrettably passed away in February 2020. I have no doubt that her health issues and death have been a significant blow to the offender and I take this into account as part of his general background.

21. He is supported by a number of character referees who say that the offences are out of character and that he is generally a hardworking man and a supportive friend who is otherwise a useful member of society. I accept these things, although of course they do not diminish the seriousness of the offences and can have little impact on the overall penalty. That is in part because of the seriousness with which these types of offences must be regarded and the importance of general and personal deterrence.

22. Section 21A(5A) prevents the Court from taking into account as a mitigating factor an offender’s prior good character if the Court is satisfied that that factor was of assistance in the commission of the offence. However I agree with the Crown submission that this provision is not called into operation in this case as the offender’s access to the victim arose from a familial relationship rather than as a result of his then good character. I accept therefore that the offender’s prior good character is a factor to be taken into account in his favour. Prior good character however is not a matter that carries a lot of weight in sentencing for offences of this kind.

23. Medical material placed before the Court indicates that the offender has a number of ongoing conditions, including diabetes and some cardiac issues. However, as was appropriately conceded by his counsel, none of these are of a kind that cannot be managed in custody. His age is nonetheless a relevant factor and I accept that his age and medical conditions will make his custodial situation more difficult than it would be for a younger and healthier man. I have given this aspect what weight I can, which in the circumstances is fairly limited.

24. There is no remorse in this case and the offender continues to maintain his innocence and, presumably, the assertion made in his record of interview that the allegations were lies made up by the victim and her mother.

25. No direct evidence has been put before me as to the risk of future offending. However given the offender’s age, his health issues, his lack of previous offending and his likely limited opportunity to re-offend in a similar way, it seems to me that his risk of further offending is relatively low. For similar reasons as well as his good work history, I am of the view that he has fairly good prospects of rehabilitation.

DETERMINATION   

26. In determining the penalty to be imposed I am satisfied that the so-called threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999 has been crossed and that no penalty other than one of fulltime imprisonment is appropriate. I note that no submission to the contrary was made to me.

27. In determining the appropriate penalty and the duration of the term of imprisonment I of course have regard to the purposes of sentencing set out s 3A of the Crimes (Sentencing Procedure) Act 1999 which includes the need to adequately punish, to deter the offender and others, to protect the community, to make the offender accountable, to denounce his conduct and recognise the harm done to the victim and the community, but also to promote his rehabilitation.

28. In determining the appropriate sentence I have had regard to a number of Court of Criminal Appeal decisions including those on a table provided by the Crown as well as statistics provided by the Judicial Commission.

29. I intend to make a finding of special circumstances so as to adjust to some degree the ratio between head sentence and non-parole period based upon this being the offender’s first time in custody and his age and health issues.

30. I intend to impose an aggregate sentence. The indicative sentences are as follows.

31. DSM, these sentences are what are called indicative sentences. They are not the actual sentence that I will impose. I will state that clearly at the end.

32. These are the indicative sentences that I would have imposed for each of the four counts had I not been imposing an aggregate sentence:

33. For count 1, that being the touching on the vagina, a head sentence of three years six months and a non-parole period of two years two months.

34. For count 2, the kissing on the lips, a head sentence of 18 months and non-parole period of 11 months.

35. For count 3, touching on the breasts, a head sentence of two years six months and a non-parole period of 18 months.

36. For count 4, touching on the penis through the clothes, a head sentence of three years three months with a non-parole period of two years.

37. In determining the final sentence, which as I have said will be an aggregate sentence, I have had regard, as I am required to, to the principle of totality. That is, the importance of ensuring, given that I am sentencing for a number of offences, that the overall sentence is not an overwhelming or crushing one. In this matter the four offences, it is true, all involve one incident and in my view there should be a significant degree of concurrency. However there is still the need to recognise each of the four indecent acts to which the victim was subjected. This was after all not a momentary or fleeting touch, but a course of conduct which must have lasted some minutes and only stopped apparently when the offender heard others returning. In my view therefore there should be some degree of accumulation but not a large degree, having regard to the need to ensure that the overall sentence is not an overwhelming one.

38. The head sentence that I impose is one of five years nine months imprisonment and I set a non-parole period of three years six months. Each of those will date from 31 March 2021. The head sentence therefore will expire on 30 December 2026 and the non-parole period on 30 September 2024.

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Amendments

29 June 2021 - Name of offender anonymised.

Decision last updated: 29 June 2021