R v EC

[2018] NSWDC 267

District Court

New South Wales

Medium Neutral Citation:	R v EC [2018] NSWDC 267
Hearing dates:	16-25 July 2018
Decision date:	21 September 2018
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Suspended custodial sentence. For Orders see [58]
Catchwords:	Historical sexual offending by juvenile
Legislation Cited:	Child Welfare Act 1939 Children (Criminal Proceedings) Act 1987 Children’s Court Act 1987 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Harris v R [2017] NSWCCA 254 R v GDP (1991) 53 ACrimR 112 R v Todd (1982) 2 NSWLR 517 TC v R [2016] NSWCCA 3
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) EC (Offender)
Representation:	Counsel: P Skinner (Crown) W Hussey (Offender)   Solicitors: Mr Dixon
File Number(s):	17/124209
Publication restriction:	Non-Publication Order pursuant to s 7 for name of complainants and accused.

remarks on sentence

1. On 16 July 2018, the offender pleaded not guilty to six counts on an Indictment, and two alternative counts. On Wednesday 25 July 2018 at Newcastle District Court a jury returned verdicts of guilty on three of those counts as follows:

1. Count 1 – that between 1 January 1976 and 1 January 1978 at Toronto in the State of New South Wales did assault DH, a male person, and at the time of such assault did commit an act of indecency on him. This was an offence pursuant to s 81 of the Crimes Act 1900.

2. Count 3 – that between 1 January 1976 and 1 January 1978 at Toronto in the State of New South Wales did assault DH, a male person, and at the time of such assault did commit an act of indecency on him. This was an offence pursuant to s 81 of the Crimes Act 1900.

3. Count 4 – that between 1 January 1976 and 1 January 1977 at Toronto in the State of New South Wales did carnally know KR, a girl then under the age of 10 years, namely seven or eight years. This was an offence pursuant to s 67 of the Crimes Act 1900.

2. On 19 July 2018, the jury entered a verdict of not guilty by direction on Count 7 on the Indictment, and on 25 July 2018 found the offender not guilty of Counts 6 and 8 on the Indictment.

3. The following factual findings are derived from the jury verdicts.

4. On an occasion during 1976 and 1977, the victim, DH, who was born on 4 April 1971, was staying at his grandparents’ house. The offender was the youngest of the victim’s grand‑parents five children and his bedroom was located at the rear of the house. In that bedroom were two beds and the victim was in bed and the room in darkness. The offender got into the victim’s bed and then had the victim suck his penis. The victim asked the offender “if he was doing it properly” and the offender said, “Yes, treat it like a lolly pop. Just keep doing it the way you are doing it. You are a good boy”. That was the conduct that constituted the offence in Count 1 on the Indictment.

5. The offender then used his tongue to lick the penis of the victim. That did not go on for very long at all, and the offender then kissed the victim on the forehead and told him he was a good boy, and got back into his bed in the same room. That was the conduct that constituted Count 3 on the Indictment.

6. Between 1 January 1976 and 1 January 1977, the offender was babysitting the victim KR, who was born on 3 August 1968 and was his niece. She had had a bath when the offender came into the bathroom and got into the bath. He then asked the victim to wash his back and when she went to do so, asked her to get into the bath with him. She got into the bath with him and had her back to the offender when he put his hands on her hips and lowered her to sit on his lap. When he did that, she felt something hard in her vagina area. She described something hard that he was trying to put into her vagina. She then just stood up and got out of the bath. The victim told her aunty, who reported the matter to the victim’s mother, who then took her to the family doctor, who examined the victim’s vagina. The victim’s mother gave evidence that the doctor had told her that there were scratches on the inside of her vagina. That was the conduct that constituted Count 4 on the Indictment.

The sentence hearing

7. The sentence hearing took place on 19 September 2018 at Sydney District Court. The Crown sentence summary (Ex A) noted that the maximum penalty for the offences in Counts 1 and 3, pursuant to s 81 of the Crimes Act 1900 was imprisonment for a period of 5 years. There was no Standard Non-Parole Period. Section 81 has since been repealed.

8. The maximum penalty in respect of Count 4 on the Indictment, the offence of carnal knowledge of a girl under 10 years of age, pursuant to s 67 of the Crimes Act 1900, carried a maximum penalty of life imprisonment. There was no Standard Non-Parole Period.

9. Exhibit A contained the offender’s criminal antecedents which showed one offence of unlicensed driver, for which he received a fine of $300 in September 1989. Exhibit A also enclosed a transcript of the relevant parts of the trial evidence upon which the jury verdicts were based, and are reflected in the factual findings which I have outlined above.

10. Exhibits B and C were Victim Impact Statements of both victims which set out the harm suffered by each of them as a result of the offender’s conduct. Both suffered trust issues throughout their lives which has affected their relationships with loved ones, family and friends, and in the case of KR, has affected her sexual life adversely.

The offender’s evidence

11. The offender tendered a report of Dr Rebecca Smith, forensic psychologist, dated 31 August 2018. That report was based on the clinical interview with the offender on 31 August 2018, in which the offender maintained a staunch denial of his offences and did not demonstrate any empathetic reactions when considering the impact of the offences upon the victims and the wider community. The author set out a summary of the offender’s family background, education and employment history. He described a normal childhood, however, reported childhood sexual abuse perpetrated by a neighbour between the ages of seven and 11 years of age. This reinforced extremely low self-esteem and self-worth, which was also impacted upon by a difficult relationship with his father. He felt guilt regarding his father’s death in a tragic car accident, where the offender, who would otherwise have been in the car, declined to go in the car and his father went instead.

12. The author reported that the offender left school in fourth form and began a succession of unskilled jobs. He has been on a Disability Support Pension since 1999 for diagnosed anxiety.

13. Under the heading “Psycho-sexual Development and Relationship History”, the offender stated that he had had relationships with two girlfriends which were monogamous, but had never married and never had children. He denied any sexual interest in children, nor ever engaging in any unusual or deviant sexual fantasies.

14. The author noted that the offender reported that his mental health was very poor, and that he suffered current episodes of depressed mood, diminished energy, loss of appetite, sleep disturbance, social anxiety, fear of embarrassment, which stops him from leaving the house, and suicidal ideation. He had attended a clinical psychologist, a Mr Cliff Amey, for five years in the 1990’s for his anxiety. He had become a recluse and hardly left his house for fear that he will bump into someone who is aware of his legal situation. He had never been a “big drinker” and never used drugs. In fact he had not consumed alcohol for 25 years.

15. The author noted that the offender expressed anger at his conviction of the three offences. He would also lose his pension and Housing Commission home as a result of a custodial sentence. A psychological assessment identified the offender as suffering depressed mood, chronic anxiety and interpersonal concerns. He was assessed for risk of recidivism, and having appropriately noted the caution with which such risk assessments should be approached, the author opined that the offender fell in the low risk category relative to other male sexual offenders. Issues which were protective against his risk of further offending were as follows:

• It has now been 40 years since the sexual offences took place

• He denied current deviant sexual interests, the use of sex as an emotional coping strategy, hyper-sexuality or paedophilic interests

• He denied current attitudes consistent with sexual abuse

• He does not impress as inherently anti-social and his criminal history is otherwise limited

• He appears to be someone with a reasonably intact social support system.

16. The following factors could be considered to elevate his future risk of re‑offending:

• He denies offending and does not accept responsibility for the offences for which he has been convicted

• He offended more than once and with more than one victim

• When he was offending, there was psychological coercion present to the age and power differences between the offender and his victims.

17. Taking all of those matters into account, including the static and dynamic risk factors, the offender was considered to pose a low risk of re-offending.

18. In respect of the offender’s functioning as a 17 year old, the author opined that given the lack of substantive evidence from this time period, it was difficult to make an informed diagnostic decision. She was of the opinion that he does not require rehabilitation for sexual offending behaviours currently, and opined further that the offender’s anxiety may be problematic within a custodial environment, and as a result would benefit from psychological input in order to manage his symptomology.

19. The offender did not give evidence.

The Crown submissions

20. The Crown submitted a detailed written outline of submissions in which it was conceded that the court should sentence the offender upon the basis that he was a juvenile at the time he committed the offences in Counts 1 and 3, and that he was aged 16 or 17 between the dates in Count 4.

21. The Crown submitted that sentencing should be pursuant to the Crimes (Sentencing Procedure) Act 1999 (“C(SP)A”) and further that s 25AA applied. It provides as follows:

“25AA Sentencing for Child Sexual Offences

(1) The court must sentence an offender for a child sexual offence in accordance with the sentencing patterns and practices at the time of sentencing, not at the time of the offence.

(2) However, the standard non-parole period for a child sexual offence is the standard non-parole period (if any) that applied at the time of the offence, not at the time of sentencing.

(3) When sentencing an offender for a child sexual offence, a court must have regard to the trauma of sexual abuse on children as understood at the time of the sentencing (which may include recent psychological research or the common experience of courts).

(4) This section does not affect s 19.

(5) In this section:

“Child sexual offence” means the following offences regardless of when the offence occurred but only if the person against whom the offence was committed was then under the age of 16 years;

(a) an offence under a provision of Division 10, 10A, 10B, 15 or 15A of Part 3 of the Crimes Act 1900,

(b) an offence under a provision of that Act set out in column 1 of Schedule 1A to that Act,

(c) an offence of attempting to commit any offence referred to in (a) or (b),

(d) an offence under a previous enactment that is substantially similar to an offence referred to in (a) – (c).”

22. The Crown submitted that the offences in Counts 1 and 3, pursuant to s 81 of the Crimes Act, which has now been repealed, were equivalent to offences pursuant to s 66A of the Crimes Act which carried a maximum penalty of life imprisonment. Thus it was submitted that applying current sentencing patterns and practices, for offences which involved sexual intercourse, which included Counts 1 and 3, would inevitably lead to a custodial sentence being imposed.

23. The Crown acknowledged the difficulty in this sentencing process. At the time when the offences occurred, some 42 years ago, juvenile offenders would have been sentenced pursuant to s 429 of the Crimes Act, which on its terms applied to persons under the age of 16 years. It was repealed in 1951. The Crown was unable to identify what sentencing provisions then applied, other than to state that the Children’s Court was created “at some stage”. It was believed that the Child Welfare Act applied, and that there was a different sentencing regime for juveniles to adults. The Children’s Court was established by the Children’s Court Act 1987, and the Children (Criminal Proceedings) Act 1987 (“C(CP)A”) was assented to on 29 May 1987 and commenced on 18 January 1988. Section 6 of that Act set out principles relating to the exercise of functions under that Act, and the Crown acknowledged the emphasis on rehabilitation rather than punishment underlying those principles.

24. The Crown submitted that general deterrence and condemnation were important in the sentencing process. Today, our society demanded stronger punishment than previously, which meant, notwithstanding the difficulties in sentencing here, the court should be looking at the possibility of a custodial sentence for the offending. The Crown was not opposed to a finding of special circumstances pursuant to s 44 of the C(SP)A, and conceded that a suspended sentence pursuant to s 12 of that Act was available, if the sentence was to be one of imprisonment for two years or less.

25. Given the uncertainty as to the legislative history referred to above, the Crown was given the opportunity to make a further written submission by the close of business on 20 September 2018.

26. The Crown submitted that the sexual offending against both victims was objectively serious. Both victims were young and vulnerable. Counts 1 and 3 were committed in the bedroom of the offender. Count 4 was committed in the home of the victim, which was an aggravating factor. The court had to take into account the age of the children as well.

27. On the question of delay, the Crown submitted that the offender could gain no mitigation in penalty from this fact alone, relying on Harris v R [2017] NSWCCA 254.

The offender’s submissions

28. Counsel for the offender relied on s 6 of the C(CP)A to emphasise that rehabilitation was paramount in sentencing young offenders. In respect of the objective seriousness of the offending, it was not conceded that Counts 1 and 3 would be treated for present sentencing purposes as aggravated indecent assault offences. The offending in respect of both Counts 1 and 3 was opportunistic, there had been no threats of violence and no inducements held out to the victim. Objectively they should be assessed at less than mid-range of objective seriousness for offences pursuant to s 81.

29. In respect of Count 4, Counsel submitted that the offending was below mid‑range of objective seriousness. Whilst there was skin on skin contact, the offending took place over a very brief period of time. Further, whilst the victim had suffered pain in her vagina following the offending, and the examining doctor had found that she suffered a minor injury, she was not threatened and there was no violence involved in the offending.

30. It was submitted that the offender’s moral culpability should be held to be very low, given that he would have been sentenced as a juvenile, relying on R v GDP (1991) 53 ACrimR 112.

31. It was further submitted that, as a 17 year old, the offender’s character was not as well formed as an adult. He would have been, as a child, susceptible to immature and irresponsible behaviour which would diminish his moral culpability for the offending. His youth was a significant factor to be taken into account, having regard to the recklessness involved in the offending behaviour.

32. In respect of aggravating factors pursuant to s 21A(2) of the C(SP)A, it was submitted that it was arguable that the offender was in a position of trust in respect of Count 4 as he was, at the time of the offending, the victim’s babysitter. However, there was no evidence that he was in a position of trust in respect of Counts 1 and 3. In fact there were no aggravating features in respect of Counts 1 and 3, whereas in Count 4, the offending had taken place in the victim’s home.

33. It was conceded by counsel that the harm involved in child sexual offending is substantial and that in this case, in accordance with the Victim Impact Statements, both victims had developed trust issues as a result of the offending.

34. Counsel referred to the following subjective matters on behalf of the offender. He had no criminal record and was otherwise of good character. According to the report of the psychologist (Ex 1), he was highly unlikely to re-offend and had good prospects of rehabilitation, notwithstanding that he denied the offending. It was conceded he had demonstrated no remorse for that offending.

35. In respect of the delay, it was submitted that there had been no offending over a period of 42 years which demonstrated progress in the offender’s rehabilitation. Whilst the principle in R v Todd (1982) 2 NSWLR 517 referred to “stale crime”, this was not applicable here. However, the sentencing process here required some flexibility. Specific deterrence had a limited role, but given that 42 years had passed, it was conceded that general deterrence has a role in the sentencing process and that s 25AA of the C(SP)A applies.

36. It was submitted that there was no Standard Parole Period for any of the three offences and that the maximum penalties of 5 years for the s 81 offences, and life imprisonment in respect of the s 67 offence, were guideposts in the sentencing process. However, the court should make a finding of special circumstances given that this was the offender’s first time in custody, there would be some accumulation in sentence, and he would suffer extra curial punishment by loss of his disability pension and his Department of Housing flat. Upon his discharge to the community, there would be a 10 year waiting list for similar housing and he would automatically be on the Child Protection Register.

37. It was submitted that the offender had suffered PTSD from his sexual abuse as a child which had resulted in him suffering a general anxiety disorder. He had sought counselling for a period of five years for that disorder but due to the effluxion of time, no clinical notes were available. It was submitted that the court would accept that history as a truthful recollection of events.

38. It was submitted that under the C(CP)A a court would have sentenced the offender pursuant to s 33(1)(g) to a Control Order and further, that pursuant to s 33(1B) the court had a power to suspend such a sentence. The principles outlined in s 6 of that legislation emphasised rehabilitation rather than punishment for children convicted of serious offences. The court would also have regard to s 3A of the C(SP)A, and in the event that the court considered that the s 5 threshold had been passed, a custodial sentence of 2 years or less should be imposed, and such sentence should be, in all of the circumstances, suspended pursuant to s 12 of the C(SP)A.

Supplementary Crown submissions on sentence

39. Following the sentence hearing, the Crown relied on a supplementary submission which concerned first, the sentencing regime for juvenile offenders in 1976 and 1977, and consequential submissions. Following the repeal of s 429 of the Crimes Act, which, in any event, applied only to persons under the age of 16 years, the Child Welfare Act 1939 was relevant to sentencing young offenders, and in particular ss 83 to 89 of that Act, which were current as at 1976 and 1977.

40. The Crown also relied on the Court of Criminal Appeal’s judgment in TC v R [2016] NSWCCA 3, where the appellant had been sentenced in June 2014 in respect of an indecent assault upon a male pursuant to s 81 of the Crimes Act, committed almost 38 years earlier. In addition to the s 81 charge, there was a matter on a Form 1 to be taken into account which concerned an indecent assault upon a female under the age of 16 years. There was therefore two victims and the sentencing judge convicted the appellant and imposed a bond pursuant to s 9 of the C(SP)A for a period of 2 years. The Court of Criminal Appeal held that the sentencing judge erred in failing to take into account the sentencing regime in respect of juveniles at the time of the offences, because he did not refer to the Child Welfare Act 1939, since repealed, or the range of available sentencing options under that statutory regime. The sentencing judge had referred correctly to the applicable principles for sentencing historical child sexual assault matters, including R v MJR [2002] NSWCCA 129 at [31] and [57], but had not taken into account the statutory regime in respect of juveniles at the time of the offences, namely, the Child Welfare Act 1939.

39. It was submitted by the Crown that the statutory regime under the Child Welfare Act for sentencing juveniles in 1976 cannot apply here, and the principles in R v MJR, supra, no longer apply to sentencing for historical sexual offences, consequent upon the enactment of s 25AA of the C(SP)A. Nevertheless, the current statutory regime for sentencing juveniles, as set out in the C(CP)A, as discussed in R v GDP, supra, provide for the same or very similar sentencing options.

40. It was submitted that as the offender is now an adult, the principles for sentencing children do not apply to him, and nor do the comments in R v GDP, supra, as to the desirability for greater weight to be given to the need for individual treatment aimed at rehabilitation. Rather, s 25AA requires a recognition of current community attitudes to sexual offences committed upon young children.

Further submissions on behalf of the offender

43. In response to the Crown’s supplementary submissions, counsel for the offender emphasised the fact that the offences were committed by him as a juvenile. He conceded that general deterrence still plays a part in the sentencing process, but in applying TC v R, supra, the court would have regard to the power in s 83(4) of the Child Welfare Act 1939 to suspend any sentence imposed.

44. The age of the offender at the time of the offences diminished his moral culpability. Further, counsel emphasised that the offender had had no conviction for a period of over 40 years since the offending took place. Counsel rehearsed his submissions to the effect that the court has a number of sentencing options available, including suspending any sentence of 2 years or less by way of a bond pursuant to s 12 of the C(SP)A.

Determination

45. This is a most difficult sentencing exercise, having regard to the fact that the offending, as found by the jury, occurred some 42 years ago when both victims were under the age of 10 years and the offender himself was aged 16 years at the time of the offending in Counts 1 and 3, and between 16 and 17 years in respect of the offending in Count 4. Notwithstanding the impact of s 25AA of the C(SP0A which applies here, regard must be had to the objective seriousness of the offending, the delay in these matters coming to trial, and the subjective matters put on behalf of the offender.

46. Counts 1 and 3 were offences pursuant to s 81 of the Crimes Act 1900, namely, “indecent assault against a male”, which at the time of the offending, carried a maximum penalty of 5 years imprisonment. The offences occurred on the same night, in the bedroom of the accused at his parents’ home when he was aged 16 years. Whilst the offending involved fellatio of the victim on the offender and then the offender on the victim, the offending took place over a short period of time and involved no threat made to the victim, no violence and no inducement. I find the objective seriousness of the offending for an offence pursuant to s 81 to be at the lower end of the range of objective seriousness for such offending in all of the circumstances.

47. In respect of Count 4, this was clearly more objectively serious offending. It involved penile/vaginal penetration of a young child who was in her own home and was being babysat by the offender.

48. The objective seriousness of the offending in Count 4, whilst serious, was below mid-range because it was of short duration, and there was minimal physical injury caused to the victim. Whilst it was below mid-range of objective seriousness for an offence pursuant to s 67, it still constituted serious offending.

49. I take into account the maximum penalties proscribed by Parliament for each of the three offences, namely, 5 years imprisonment in respect of Counts 1 and 3, and life imprisonment in respect of Count 4. I also have regard, pursuant to s 25AA of the C(SP)A, the sentencing patterns and practice as of 1028, as best as I can apply them.

50. The offender has expressed no remorse and no empathy for his victims. His reaction is focussed on his own mental health and he has continued to deny the offending conduct. However, over a period of 42 years he has not re‑offended and I take into account the subjective matters put on his behalf, and in particular, the fact that he himself was sexually abused as a child, and that he developed a generalised anxiety disorder, for which he was treated by way of a psychologist for a period of five years. I also take into account the extra curial punishments that he would suffer as a result of a custodial sentence being imposed, and in particular, the loss of his Disability Pension and his Housing Commission unit.

51. General deterrence has a clear part to play in child sexual offending. A clear message must be sent to the community that Parliament has proscribed lengthy maximum penalties for such offending and that the courts will impose lengthy custodial sentences in appropriate cases. Specific deterrence also has a part to play given the offender’s denial of his offending conduct in the face of the jury verdicts.

52. I have to take into account that the offender has not offended over a period of 42 years and therefore I find that he is a low risk of re-offending and has good prospects for rehabilitation.

53. I have also taken into account the Victim Impact Statements. It is well understood that child sexual offending has life-long effects on the victims and the courts have long recognised the harm, and in particular psychological harm, caused to victims by such offending. However, I note that there is no medical evidence supporting the matters raised in the Victim Impact Statements and I do not intend to use them to aggravate the moral culpability of the offender and the sentence to be imposed.

54. Counsel for the offender conceded that the provisions of the C(SP)A apply in the sentencing process here. However, in accordance with TC v R, supra, I also have regard to the relevant provisions of the Child Welfare Act 1939 that applied at the time of the offending (when the offender was less than 18 years of age) and also for several years thereafter (when he was between the age of 18 and 21 years of age) pursuant to s 22 of that Act – see TC v R, supra, at [32] to [41]. It is clear that the Children’s Court, in determining indictable offences dealt with summarily, had powers which included suspending an order of committal of a young person (see s 83(4)) of the CWA).

55. I take into account the fact that the offender was 16 or 17 years of age at the time of the offending conduct. The courts have long recognised that the immaturity of young offenders is a factor to be taken into account in the sentencing process. Further, in all the circumstances, the principle concerning delay in R v Todd, supra, does not apply here so as to mitigate the sentence to be imposed.

56. I am satisfied that the threshold in s 5 of the CSPA has been crossed and applying s 25AA of the C(SP)A, no alternative penalty is warranted other than a custodial sentence. I have ultimately come to a conclusion that the penalty to be imposed in respect of Counts 1 and 3 is a sentence of 6 months imprisonment in respect of each count, to be served concurrently. In respect of the offending in Count 4, a penalty of 2 years imprisonment is to be imposed, to commence at the same time as the sentences for Counts 1 and 3, and therefore to be partly concurrent. In doing so, I am mindful of the principles of proportionality and totality so that the sentence reflects the totality of the criminality involved.

57. In all of the circumstances, each of the sentences is to be suspended pursuant to s 12 of the C(SP)A, on condition that the offender be of good behaviour for the period of the sentence, that he accept the direction of Community Corrections as to rehabilitation, and in particular, any direction that he seek treatment from a psychologist by way of psycho-therapeutic counselling to address his symptomology.

Orders

58. I make the following orders:

1. You are convicted of the offence in Count 1 of indecent assault on DH, a male person, pursuant to s 81 of the Crimes Act 1900.

2. I sentence you to a term of imprisonment of 6 months from 21 September 2018 and terminating on 20 March 2019.

3. You are convicted of the offence in Count 3 of indecent assault on DH, pursuant to s 81 of the Crimes Act 1900.

4. I sentence you to a term of imprisonment of 6 months commencing on 21 September 2018 and terminating on 20 March 2019.

5. You are convicted of Count 4 an offence of carnal knowledge of KR, a girl then under the age of 10 years, namely, 7 or 8 years, pursuant to s 67 of the Crimes Act 1900.

6. You are sentenced to a term of imprisonment of 2 years commencing on 21 September 2018 and terminating on 20 September 2020.

7. In respect of each of the sentences, each is suspended pursuant to s 12 of the C(SP)A 1999 on condition that you be of good behaviour, that you accept the supervision of Community Corrections and any direction as to your rehabilitation during the period of the sentence.

59. You should understand that if you offend during the period of the sentence, or otherwise breach the conditions imposed on you, you will called up for sentence in relation to each of the three offences, as well as any other offence.

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Decision last updated: 24 September 2018