R v Griffin

[2024] NSWDC 316

District Court

New South Wales

Medium Neutral Citation:

R v Griffin [2024] NSWDC 316

Hearing dates:

21, 28 June 2024

Date of orders:

28 June 2024

Decision date:

28 June 2024

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   Aidan Griffin is convicted.

2   I impose a term of imprisonment of 3 years with a non-parole period of 2 years to date from 29 July 2022. The non parole period will expire on 28 July 2024 and the head sentence will expire on 28 July 2025.

3   The offender will be eligible to be released on parole on 28 July 2024.

Catchwords:

CRIME — Sexual offences — Aggravated sexual assault — Victim <16 years

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

R v Olbrich (1999) 199 CLR 270

R v Youkhana [2004] NSWCCA 412

Category:

Sentence

Parties:

Rex (Crown)
Aidan Griffin (Offender)

Representation:

Counsel:
G James AM KC (Offender)

Solicitors:
Director of Public Prosecutions (Crown)
First Choice Legal (Offender)

File Number(s):

2022/189506

Publication restriction:

None

JUDGMENT

1. Aidan Griffin (the offender) appears for sentence after pleading guilty in the Local Court to an offence of sexual intercourse with child aged between 14 and 16 years contrary to s 66C(3) Crimes Act 1900.

2. The maximum penalty for this offence is 10 years imprisonment.

Approach to Sentencing

3. 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).

4. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and had regard to the matters set out in s 21A of the Act.

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

6. An Intensive Corrections Order is not an available sentencing option for this offence: s 67 Crimes (Sentencing Procedure) Act 1999.

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 offender is now 28 years of age and was 24 years of age at the time of the offence.

9. The offender and the complainant met through a friend of the complainant in Eddy Avenue near Central Railway Station when she was 14 years old. They were both homeless at the time.

10. The complainant was a drug user. She was injecting ice and had done so for a couple of years. The offender was also a drug user at the time.

11. Approximately one year after they met and after the offender was released from custody for unrelated offences, the offender and the complainant commenced a relationship. They were homeless but would occasionally stay at the offender’s Auntie’s two apartments located in the same complex in Zetland.

12. The offender, through the exchange of text messages with the complainant, arranged for the complainant to stay the night at his Auntie’s apartment on Friday 7 February 2020 as his mother would not be home. Text messages to the effect that the offender knew the complainant was under 16 years of age and could not have sex were also exchanged between 30 January 2020 and 6 February 2020.

13. The complainant came to the apartment on this day and both the complainant and the offender injected ice on the lounge in the loungeroom.

14. The offender then had sexual intercourse with the complainant. The offender inserted his erect penis into the complainant’s vagina. The sexual intercourse continued until the offender ejaculated inside the complainant.

15. Text messages between the complainant and offender continued up until 10 March 2020.

16. In March 2020, the complainant overdosed after injecting ice. She was taken to St Vincent’s Hospital where it was discovered that she was pregnant as a result of the sexual intercourse with the offender.

17. In April 2020, the complainant ended her relationship with the offender. She went into full time rehab and got clean.

18. On 16 October 2020, the complainant gave birth to her son.

Police investigation and FASS DNA result

19. On 20 July 2021 the complainant reported the offence and that she had a son to the offender to police.

20. On 9 September 2021, DNA test results confirmed that the offender was the biological father of the child.

Arrest and charge of the offender

21. In early June 2022 police became aware that the offender was living in Victoria and an arrest warrant was issued.

22. With the assistance of the complainant, the offender was arrested during a visit to Sydney on 29 June 2022. He was taken to Surry Hills Police Station where he declined to be interviewed. He consented to having a buccal swab taken from him.

23. The offender has been in custody since the date of his arrest, bail refused for this matter.

The Offender’s Case on Sentence

24. The offender tendered the following documents:

1. Clinical Psychological Report of Amanda Georges dated 20 June 2024;

2. bundle of psychiatric reports of Dr Peter Klug dated 3 March 2021 (2 reports) and 22 April 2021;

3. psychiatric report of Dr Alan Jager dated 25 October 2021.

25. I have taken into account the entirety of that material. What follows is a precis of the evidence relied on by the offender.

26. The offender is 28 years of age. He was born in 1995 as the only child to his parent’s union. He has never known his father. He has six half maternal siblings. He grew up with Rebecca (born in 1993) and Daniel (born in 1999). He has lived with both of them over the years and continues to have a good relationship with them.

27. The offender lived with his mother for the first four years of his life during which he experienced significant physical and sexual abuse and neglect. He described being punched, spat on and on one occasion suffocated with a pillow. His mother did not attend to any of the children’s emotional needs and was not available to provide any love, care or attention. He was subjected to degrading punishments and suspected at the relevant time that she was under the influence of drugs. While living with his mother, the offender was sexually abused by two of her boyfriends at different times.

28. The offender, Rebecca and Daniel were removed from the care of their mother and placed in a kinship foster placement with a female relative and her partner. The offender continued to experience physical and emotional abuse perpetrated by the couple for the three years he lived with them. He was subjected to degrading punishments and physical abuse. When the couple broke up he continued to live with the male partner with his brother, Daniel for three years, during which time the abuse continued.

29. The offender and Daniel were then placed into foster care with Ms Menken who he described as “lovely”. He continues to have regular contact with her and lists her as his next of kin. At about age 13 or 14 he had an argument with Ms Menken and left the house. He was placed in separate accommodation with a DoCS case worker but often ran away describing himself as effectively homeless between the ages of 13 and 16 years.

30. From the age of 16 he has been mostly homeless. He has spent brief periods of time in refuges, couch surfing or staying with girlfriends in the Surry Hills area. He was in a romantic relationship with the complainant for about five months in 2020.

31. The offender has spent a large period of time in custody. When not in custody he spent most of his time smoking methamphetamine and going through rubbish bins. He continues to have positive contact with Rebecca, Daniel and Ms Menken even when he is in custody.

32. The offender has on foot a compensation claim relating to the failure of the Department of Community Services to prevent his abuse as a child. He hopes to use any compensation pay-out to buy a property on the Central Coast but is pessimistic stating that his “plans always fail”.

33. The offender’s difficulties at home extended to his schooling. The offender threatened teachers and students, stole food from other children, ate out of garbage bins and was disruptive in class. From Year 2 to Year 5 he was put on a partial attendance plan where he was only required to attend one hour of school on three days per week. His attendance in high school was better and he completed Year 10 and Year 11 in juvenile detention. He had some learning difficulties and had been diagnosed with Attention Deficit Hyper Activity Disorder and believed that he was dyslexic and slow to process information. He completed his White Card and a health and safety course whilst in juvenile detention.

34. He has been in receipt of social security benefits for an extended period and never held employment in the community but has had jobs in custody and believes that he is capable of employment contrary to the opinion of Dr Klug.

35. The offender started smoking at age 13. He was exposed to cannabis use at about this time and continues to use cannabis in the community. He has been smoking methylamphetamine since he was about 15 years of age and by the age of 19 was injecting the substance daily, sometimes multiple times per day alongside other substances and alcohol. He committed crimes to fund his drug habit as well as scavenging in bins to find things he could sell for drug money and providing sexual favours in exchange for drugs. He reported engaging in chronic drug use to stop him thinking about his past but he was still troubled by flashbacks, nightmares and distressing emotions.

36. He attended a residential rehabilitation centre on one occasion at age 15 or 16 but only lasted one day in the program. He believes that he can stop using drugs if he wants to, explaining that he has been able to be abstinent each time he has been in custody without any replacement treatment.

37. The offender has an extensive juvenile record. He has a number of offences as an adult including offences which he received short prison sentences. The most significant sentence he received was for an armed robbery in 2017 for which he served 16 months in custody.

38. The offender has seen a number of psychologists over the years and been prescribed a number of different medications. He continues to suffer a very large number of psychiatric symptoms including insomnia, nightmares, flashbacks, low mood, suicidal ideation, intense feelings of anger, social withdrawal, lability of mood, impulsivity, intrusive and persistent trauma memories, poor concentration and distractibility, hypervigilance and hyperarousal and distrust of others.

39. The offender has been diagnosed with a number of psychiatric conditions including complex post traumatic stress disorder, chronic post traumatic stress disorder, insomnia, major depressive disorder, anti-social personality disorder and obsessive-compulsive disorder.

40. The psychologist opined that the offender presents a medium to high risk of re-offending due to his large number of dynamic risk factors. She opined that his significant experience of trauma has significantly impacted the development of his inner moral compass. His lack of nurturing has led to a significant impairment of his ability to engage in healthy and reciprocal relationships. His chronic drug use has impaired his cognitive function and judgement making him impulsive and leading him to engage in risky behaviour. The psychologist opined that his treatment options in custody were limited and recommended an extended period of weekly psychologist therapy to assist him when he is to be released into the community together with the support of a psychiatrist to prescribe an appropriate psychotropic medication regime.

41. Dr Klug provided his opinion in the context of the offender’s compensation claim. Dr Klug described the offender’s childhood abuse at the hands of his mother and in the kinship foster placement as “horrific”. He described it as “extreme sexual abuse … as well as physical, psychological and emotional abuse”. He stated the abuse was associated with severe neglect and abandonment. Dr Klug described “his history of abuse as amongst the most severe I have encountered in a long career of assessing and treating adult victims of childhood abuse … it is not surprising, therefore, that in my opinion that the abuse is the substantial cause of his complex psychiatric presentation”. Dr Klug opined that the offender suffers from chronic post-traumatic stress disorder, complex post traumatic stress disorder, a personality disorder with borderline anti-social and dependent features, a dysthymic disorder, a probable recurrent major depressive disorder, secondary polysubstance abuse and dependence, attention deficit hyperactivity disorder and a mild to moderate obsessive compulsive disorder. Dr Klug opined that the offender would need extensive psychiatric and psychological treatment for an indefinite period.

42. Dr Jager was retained to provide an opinion on behalf of the defendant in the offender’s compensation claim. Dr Jager had access to and set out a number of entries and contemporaneous records that supported the offender’s history of abuse. For present purposes, Dr Jager agreed with the descriptions of the abuse outlined by Dr Klug, their likely impacts and the necessity for extensive treatment.

Consideration

Objective seriousness

43. The offence involved penile vaginal intercourse that resulted in the complainant becoming pregnant. The complainant has given birth to her son, who is autistic, non-verbal and requires significant support. The physical and psychological impact of the offence on the complainant is significant.

44. The offence was an isolated occurrence.

45. The offender and the complainant were both homeless at the time of the offence and were in a relationship of trust and dependence. I am not satisfied beyond reasonable doubt that the offence represented a breach of that trust. There was an eight to nine year age gap between the offender and the complainant. Whilst there was some exploitation of the youth of the complaint it was not significant. The offender knew that the complainant was underage and had resisted her suggestions of sexual activity on a number of occasions prior to the offence occurring. The events prior to the offence suggest that the offender did genuinely care for the complainant and that he was trying to protect her.

46. Consent is not an element of the offence.

47. The offender had a deprived upbringing. He was the victim of physical and emotional abuse and childhood neglect. His schooling was disrupted and he lived on the streets. He suffered significant psychological symptoms which he sought to control by using illicit substances, which in turn led to substance use disorder. He has developed a complex mental condition comprised of a number of serious disorders in cognitive function and emotional regulation. The offender’s moral culpability for the offence is substantially reduced.

48. I have taken into account the maximum penalty for the offence.

Deterrence

49. General deterrence is of great importance when sentencing offenders for sexual offences against children.

50. General deterrence can be afforded less weight when an offender has a mental condition because they are not an appropriate person to be made an example of. The offender suffers from a serious and complex mental condition which includes an inability to engage in normal relationships by reference to his history of neglect and abandonment. This offence represents a manifestation of this aspect of his mental condition. He knew what he was doing was wrong, but there is no basis to suggest that he has any sexual predilection towards children.

51. There is some need for specific deterrence. The offender has a significant criminal history for a variety of offences that demonstrate his deprived background. The offender needs to understand by reference to the penalty imposed on him for this offence that if he continues to offend that he will receive significant punishment.  The offender presents some risk to the community as a result of his drug addiction.

Aggravating Factors

52. I am not satisfied beyond reasonable doubt that the harm caused by the offence was substantial and therefore that the aggravating factor provided for by s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999 is established. The offence rose from a romantic relationship where there was always a risk of pregnancy occurring.  This is a case that can and should be distinguished from the cases to which I was referred to by the prosecution.  In my view, the birth of the child cannot be taken into account as an aggravating factor in relation to his offence. 

53. The offence was committed when the offender was on conditional liberty: s 21A(2)(j) Crimes (Sentencing Procedure) Act 1999. The offender was on parole for earlier offences.  That parole had been revoked for a failure to report after the commission of the offence but prior to his arrest.  

Mitigating Factors

54. The offender has some prospects of rehabilitation. He seems to adapt well to the structure of prison and seems to be able to remain abstinent. Hopefully, the offender can find that structure through supervision on parole and learn to live his life in the community and without recourse to crime.

55. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender expressed remorse to the psychologist. His plea also indicates remorse.

56. I have taken into account the conditions imposed on prisoners in New South Wales in response to the COVID-19 pandemic, which I accept may continue to be imposed for some time into the future. I am satisfied that the offender’s time in custody has been made more onerous by the restrictions imposed to deal with the COVID-19 pandemic.

57. The offender has been on protection in custody since his arrest by reference to the nature of the offence.  That has limited his access to programs that he could have completed to assist him.  

58. The offender has been in custody since the date of his arrest on 29 June 2022. He was ordered to serve the balance of his parole from 29 June 2022 to 15 September 2022. I note that his parole was revoked for failure to report to Community Corrections prior to the commission of the offence, but the warrant for the revocation of parole could not be executed until the offender’s arrest for this offence.

Penalty

59. Aidan Griffin is convicted.

60. I have taken into account the Victim Impact Statement prepared by the complainant.

61. I have considered s 5 of the Crimes (Sentencing Procedure) Act 1999 and I am satisfied that having considered all possible alternatives that no penalty other than imprisonment is appropriate.

62. I make a finding of special circumstances. This is the offender’s first significant term of imprisonment. His history of short sentences of imprisonment followed by periods of homelessness, demonstrates that he requires significant support to reintegrate into the community to find stable accommodation and suitable work.

63. I impose a term of imprisonment of 3 years with a non-parole period of 2 years to date from 29 July 2022. The non parole period will expire on 28 July 2024 and the head sentence will expire on 28 July 2025.

64. The offender is to be released on parole on 28 July 2024.

65. I recommend in the strongest possible terms that the offender be supervised and supported on parole and directed to engage in drug rehabilitation and treatment for his mental health.

**********

Decision last updated: 30 July 2024