R v Hardy

[2023] NSWDC 660

District Court

New South Wales

Medium Neutral Citation:

R v Hardy [2023] NSWDC 660

Hearing dates:

23 November 2023

Date of orders:

23 November 2023

Decision date:

23 November 2023

Jurisdiction:

Criminal

Before:

Tupman DCJ

Decision:

1. Offender is convicted.

2. For sequence 1, 2 and 3, offender sentenced to an aggregate term of imprisonment of 3 years with a NPP of 18 months.

3. Two Form 1 offences taken into account when sentencing for sequence 1.

Catchwords:

CRIME – sentence – sequence 1 and 3 – sexual intercourse with child between 14 and 16 – s66C(3) Crimes Act – maximum penalty 10 years imprisonment – sequence 2 – sexually touch child between 10 and 16 – s66DB(a) Crimes Act – maximum penalty 10 years imprisonment – two Form 1 offences – common assault – s61 Crimes Act – intentionally choking without consent – s37(1A) Crimes Act

OFFENCE – ongoing intimate relationship – offender 32 – victim 15 and 5 months – victim had altercation with offender at his house – offender grabbed victim by the neck and dragged her to couch – unable to breathe – let go and slapped her – victim called triple-0

COMPLAINT – victim told mother she had unprotected sex that morning – mother told police – attended hospital and participated in a SAIK – offender’s DNA recovered – facts about substantive offences come from one paragraph in agreed facts alone

OBJECTIVE SERIOUSNESS – below mid-range – facts are very limited so difficult to make a finding – significant age difference – victim top of age range – not one-off offences – committed during course of domestic relationship – no VIS – relationship continued – offender breached ADVO – sentenced to 3 months imprisonment

SUBJECTIVE CASE – Indigenous Australian – dysfunctional background – reduces moral culpability – significant domestic violence – mother abused alcohol – sexually abused as child and teenager – poor educational history – drug use – lengthy criminal history – risk of institutionalisation – PTSD – expressed remorse

SENTENCE – general and specific deterrence – EAGP scheme – 25% discount – same episode of criminality – no accumulation – special circumstances

Legislation Cited:

Crimes Act 1900 (NSW): ss 37(1A), 61, 66C(3), 66DB(a)

Crimes (Sentencing Procedure) Act 1999 (NSW): ss 3, 5, 53A

Category:

Sentence

Parties:

Rex (Crown)
Brett Hardy (Offender)

Representation:

Counsel:
R Cavanagh (Offender)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Peter M North Solicitor (Offender)

File Number(s):

2021/00365067; 2023/00080228

Publication restriction:

There is to be no publication of any details that might identify or tend to identify the victim.

Judgment

1. This is the sentence judgment in the matter of Brett Hardy, which is being delivered as an ex tempore judgment in the course of a relatively busy circuit day at Taree. As a result of that, it will be lacking perhaps some of the precision of expression that might be the case if I had an opportunity to reserve this decision. The offender is before the Court following pleas of guilty in the Local Court to three substantive offences as follows:

Sequence 2

2. An offence contrary to s 66DB(a) of the Crimes Act 1900 (NSW) of intentionally sexually touching a child aged between 10 and 16. As an offence contrary to that section, it carries a maximum penalty of 10 years’ imprisonment.

Sequence 1

3. An offence of sexual intercourse with a child between 14 and 16. It is an offence contrary to s 66C(3) of the Crimes Act, which carries a maximum penalty of ten years’ imprisonment.

Sequence 3

4. A further charge contrary to s 66C(3) of sexual intercourse with a child between 14 and 16.

5. The offences all relate to the same complainant, who is named in the charges and who I will refer to in the judgment as AG.

6. The offender asks that when sentencing him for sequence 1, I take into account two offences to be found in the schedule to a Form 1 signed by him and on behalf of the Director of Public Prosecutions. They are one charge contrary to s 61 of the Crimes Act of common assault, and another charge contrary to s 37(1A) of the Crimes Act of intentionally choking without consent. The victim of those offences is the same as the complainant in the substantive matters.

7. The facts are before the Court by way of a statement of agreed facts. The offending the subject matter of sequences 1 and 2 occurred on 16 December 2021 in the offender’s home in Gloucester, where he was living at the time with his younger sister. The offender was 32 at the time of the offending and is now 34. The complainant, or the victim, at the time was 15 years and 5 months old.

8. The substantive offences came to light in circumstances where the victim had had an altercation in the house with the offender, leading to her initially calling triple-0, then leaving the premises and also calling her parents. The circumstances surrounding that are the subject matter of both of the Form 1 offences. According to the agreed facts, at some stage on 16 December 2021 in the afternoon, the offender punched her in the arm. She said, “Why are you hitting for?” Which I think is probably meant to be “Why are you hitting me for?” The offender said, “Oh, sorry,” and she replied, “No, I’m sick of it.” She then grabbed her phone and called her father. Whilst she was on the phone, the offender grabbed it and threw it, which caused more cracks on the screen. That punching on the arm is the subject matter of the Form 1 offence of assault. There is nothing more in the facts from which I could determine how serious it is. It is somewhat elevated because it is committed during the course of a domestic relationship between them. The facts make it clear that the offender and the victim were in an ongoing intimate relationship at the time, despite the fact that she was under the age of consent and the age difference between them.

9. The offender then grabbed her by the neck and dragged her to the couch. He put his hands around her throat and pushed her into the couch and she was unable to breathe. He then let go and slapped her. He told her not to call anyone but she picked up the phone and ran out of the house and called triple-0 and asked for the police. He followed her and told her to hang up, grabbed the phone and ended the call. After the call ended, he told her that he would “bury her” and “put her in a body bag”. The facts go on to say that she was locked in the offender’s room but there is nothing to explain how that occurred, nor is it the subject matter of any charge. But whilst in that room, she called her father and told him that he had been hitting her and that she had called triple-0 and asked him to come and pick her up. Triple-0 attempted to call her back multiple times, and when they did contact her, she told the operator it was a mistake.    The prosecution argues that from this answer I would infer that she must have taken the threats made to her seriously. It seems to me that there are other inferences available from those circumstances and there is nothing in the evidence from which I can make that finding.

10. The complainant’s parents were trying to call her. She said she was going to get the police and, according to the facts, the offender then freaked out and left. She left the premises and it is to be noted that he had left and left her there with no indication that he was doing anything to try and prevent her from leaving. She started to walk home. The police attended the house but nobody was home. When they got near to the house, they saw her walking towards her house. This is all by way of background to the substantive offences and is the subject matter of the two form 1 offences.

11. The complainant’s mother then spoke with her and she told her mother that she had had unprotected sex with the offender that morning. Her mother told the police this, and as a result of that they attended the Manning Base Hospital, where she agreed to participate in a SAIK. The facts from which I can determine anything about the seriousness of the substantive offences all comes from one paragraph in the agreed facts, which repeats what is contained in the history given in the SAIK. She apparently told the hospital this, “I didn’t really want to have sex but felt obliged to when he was, like, kissing me on my nipples.” That is the sum total of the facts relevant for sequence 2, namely the offence of intentionally touching a child aged between 10 and 16. She then went on apparently to say, “He then pulled my pants down and he put his penis in my vagina, pulled it out and ejaculated on my back with no condom.” They would appear to be the facts relevant for sequence 1, the charge of sexual intercourse with a child between 14 and 16. Apparently during this same interview at the hospital, she told the workers that she had had sex with the offender two days beforehand with no condom and ejaculation in her vagina. This would appear to be the subject matter of sequence 3, namely sexual intercourse with a child between 14 and 16, which occurred between 13 and 15 December 2021, that is around two days before the other offences.

12. There were swabs taken which recovered some forensic material linking the offender to the victim, including the detection of semen and his DNA. Police tried to locate the offender at his residence on 17 December 2021, and ultimately on 23 December he attended the police station, and was arrested in relation to these charges. He participated in an interview. He gave the police answers in that interview which he clearly no longer relies on given his pleas of guilty. He pleaded guilty to these offences at the first available opportunity in the Local Court and is thus entitled to a 25% discount according to the provisions of the Early Appropriate Guilty Plea Scheme, which recognises the utilitarian value of that plea.

13. Each of these substantive offences is characterised as a child sexual assault offence. All sexual assault offences, and in particular child sexual assault offences, are serious and must carry a message of general deterrence. Child sexual assault, I accept from the multitude of authorities in relation to these offences, frequently causes serious psychological consequences to victims of the offences, which can often last for a lifetime. The age of consent is 16. This victim was seven months short of the age of consent, and albeit that it must have been perfectly clear to many of those around her that she was involved in a sexual relationship with the accused, nonetheless she was not legally able to give consent.

14. The offender knew that she was 15 and would have known and ought to have known that she was not capable of giving consent. There is a good reason for the age of consent being 16 because it recognises that children below that age do not necessarily have the level of maturity and sophistication to know the ongoing consequences of engaging prematurely in sexual activity. Almost always offences of this type, particularly the sexual intercourse offences, will give rise to terms of imprisonment, but also the sexual touching offence. These terms of imprisonment cannot be served other than by way of full-time imprisonment because there is no provision for any term to be served by way of an intensive corrections order. The legislature has determined that these offences are so serious that any term of imprisonment must be served in full-time custody.

15. There are a number of factors that inform the objective seriousness of each of these offences in particular, not just those general matters that are relevant for all offences of sexual assault and, in particular, all offences of child sexual assault. One matter is the age difference between the offender and the victim. It was significant. He was a 32-year-old adult male and she was a 15‑year-old girl. That age difference is significant, although there is no evidence here that the offender, because of his increased years and maturity, used that experience to exploit or groom or deal with the victim in any similar way. Another factor that is relevant is where on the age group that, relevant for the offender’s offences, the victim is. In each case she is very close to the top of the age range. For the sexual touching offence she is 15 years and 5 months old, with the age range being between 10 and 16. That is a relevant factor. Equally for the sexual intercourse offences, she is 15 years and 5 months old, with the age range being between 14 and 16. They are both relevant considerations.

16. Consent to sexual intercourse, albeit by a person who is lawfully not entitled to consent, is not a matter that operates as a mitigating factor in offences of this type. Nonetheless, it is a factor that the Court is entitled to take into account when assessing the objective seriousness of the offending. In this case the evidence would seem to be that the sexual intercourse the subject-matter of sequence 3 was consensual and for sequence 1 may well have been consensual to the extent that it was obtained after persuasion. I repeat that it does not operate as a mitigating factor but they are factors that can be taken into account, and I do take them into account, in assessing the objective seriousness of the offending.

17. The form of sexual intercourse is also relevant in terms of objective seriousness. This is objectively one of the more serious forms of sexual intercourse capable of being charged under this section. In both cases there was no condom being used. For sequence 1 apparently there was an attempt to mitigate some of the consequences of that but not so for sequence 3.

18. These were not apparently one-off offences and therefore cannot be regarded as isolated offences. The fact that that is the case, however, does not increase the objective seriousness, it just means that the offender is not entitled to have taken into account as a mitigating factor any assertion that these were isolated offences. Regrettably, and in circumstances where apparently no-one in the community was doing anything to prevent it, this was an ongoing sexual relationship between a 15-year-old girl and a 32-year-old man.

19. The form 1 offences need to be taken into account in a meaningful way when assessing the appropriate sentence for sequence 1. The common assault offence is of relatively low objective seriousness. The choking offence of course is more serious but it would appear that it was a for a very short period of time and there is very little otherwise in the facts before the Court from which I can determine how serious an incident this was so that I can make a meaningful determination about the extent to which either or both of those offences should increase the appropriate penalty for sequence 1. They will increase it to an extent, if only because of the choking offence and because both of them were committed whilst there was an ongoing domestic relationship.

20. Those same factors are relevant in assessing the objective criminality of the intentional sexual touching offence as well. There is nothing in the facts from which I can determine for how long that offence occurred. It seems to me to be a relatively low-level incident of this offence with objective seriousness informed by exactly the same factors relevant to the sexual intercourse offences.

21. There is no victim impact statement nor anything from which I can determine the impact, if any, on the victim of these offences. Whilst the Court is entitled to infer that a child victim of offences of this type is likely to have some ongoing consequences as a result, and ongoing psychological consequences, in this case that is a relatively difficult inference to draw in circumstances where it is clear that she continued in an ongoing relationship with the offender, to the extent that they were found together in breach of his apprehended domestic violence order and he ended up being sentenced to a period of imprisonment of three months for that. There is nothing in reality from which I can make any real finding as to the ongoing impact on her except of a general type, that people who engage in sexual intercourse when they are below the age of consent, because they lack the maturity to make an informed decision about consent, are likely to have ongoing consequences of a type for a period of time. There is nothing, however, from which any impact on the victim could amount to an aggravating circumstance.

22. It seems to me that each of these substantive offences is below the mid-range in terms of objective seriousness. It must always be remembered that that assessment is for offences charged under that section and that the maximum penalty imposed is a guidepost to be taken into account. The facts before the Court setting out the circumstances in which each of them was committed are very, very sparce and, in my view, it is very difficult to make a finding of anything other than relatively low objective seriousness, only elevated by the fact that there is this significant age difference between the offender and the child.

23. As I have said, there were pleas of guilty at the earliest opportunity. The offender himself now comes to Court as a 34-year-old. He is in custody. He was initially granted bail but, as I have said, was charged with breach of an ADVO which was an order that apparently came into effect following his being charged for the offences for which I now sentence him. The facts of that breach are before the Court and involved his being in company with the victim on 9 March this year in his house in circumstances where it would appear that she was there voluntarily and willingly but, of course, he was in breach of the ADVO conditions. He was arrested and dealt with for that, subsequently being sentenced to a term of imprisonment of three months, which commenced on 9 June 2023. He has remained in custody after the expiration of that sentence, bail refused, for these matters.

24. A significant issue in determining the appropriate sentence for each of these matters for this offender is his background. He comes to court as an Indigenous Australian man who has had a very dysfunctional background. His background, as set out in the psychological report of Dr Dornan, is of the type referred to by the High Court in Bugmy and Fernando cases and on my finding in this case is of such significance that the Court ought find, and I do find, that it has had an impact on his moral culpability.

25. He was witness to violence between his mother and her partners. His mother abused alcohol to the extent that she was unable to provide for him and his siblings and neglected them. She suffered from mental-health issues but used alcohol as a coping mechanism. His relationship with his step-father involved significant violence. There was a lack of parental supervision in the home when he was young, to the extent that he was sexually abused by somebody who was a regular visitor to the home between the ages of 6 and 10 and the person who sexually abused him introduced him to cannabis at the time. He was groomed by that person.   As a result of these deficits in parenting he had a poor educational experience and left school at 15.

26. I accept Dr Dornan’s opinion that he suffers from post-traumatic stress disorder as well as symptoms of anxiety and depression and that the post-traumatic stress disorder is in part related to his experience of being sexually abused as a child.

27. He behaved poorly in the home which he shared with his mother and step-father and step-siblings and as a result was sent to a boarding school between the ages of 13 and 15. Whilst there he has continued to struggle with symptoms of depression and anxiety and felt alone and abandoned. He was then groomed and sexually abused by a male teacher over an 18-month period. He then went back home, hoping that things would improve, but they did not.

28. He was then introduced to methylamphetamine, the drug known as ice, by an uncle who taught him how to inject the drug after he had been kicked out of home by his stepfather. He was committing offences from the age of 15 because of associations with his uncle and his uncle’s friends. He then moved to Queensland to seek out extended family but things did not improve. He then came back to New South Wales, to Gloucester, when he was 17, but never really settled. As I have said, he has a poor educational history because of all of these disruptions.

4. He has a relatively lengthy criminal history but no entries on his record for offences of sexual offending. His criminal history includes assaults, break and enters, domestic violence-related assaults and breaches of ADVOs, an offence of being armed with intent to commit an indictable offence and similar offences. He has spent a considerable period of time in custody and I accept from the report of Dr Dornan is at risk of institutionalisation. It is of note, however, that there is no history of sexual offending and this offending that is now before me would appear to be very much out of character for him.

5. He has a lengthy history of abusing illegal drugs, commencing with ice at the age of 15 and a significant drug addiction problem. He has frequently been referred to drug and alcohol counselling when being sentenced by Courts but this was largely ineffective because his ill mental health made it difficult for him to take advantage of the supervision that was being provided.

6. His history of relationships has been somewhat unusual, himself being involved with an older partner, some 13 years older than him. He has reported to Dr Dornan sexual interests which Dr Dornan describes as mainstream and conservative. There is no evidence that he has any interest in child sexual abuse material nor any interest in sexual engagement with children, except for the offences that are now before me.

7. He has expressed remorse for having committed the offences as set out in para 70 of Dr Dornan’s report. He has suffered from periods of depression relating to his childhood sexual abuse and, in addition to that, the experience of neglect, physical abuse and being exposed to domestic violence. I accept that part of the reason that he started to use drugs was to provide himself some initial relief from these symptoms. He has recurrent involuntary and intrusive distressing memories of his sexual abuse, which I accept is part of the reason for his diagnosis of post-traumatic stress disorder.

8. I accept Dr Dornan’s opinion that he meets the criteria for a diagnosis of persistent depressive disorder as well as post-traumatic stress disorder. He will require specialised therapeutic intervention to address his childhood sexual abuse. I accept that he is currently motivated to undertake that and he has some insight into the implications of his poor history of mental health and his use of illicit drugs to cope with the symptoms of them. He will require a longer than normal period of supervision in the community with appropriate therapeutic interventions to deal with these matters.

9. There is a connection, I accept, between his untreated mental health exacerbated by drug use and his commission of the offences and to that extent I accept the opinion of Dr Dornan at para 89 in that regard. I accept Dr Dornan’s opinion that, by way of a combination of the actuarial assessment, Static-99R, and the dynamic risk factors, that he is an overall low-moderate risk of contact sexual recidivism but his risk of future antisocial conduct of a non-sexual type is somewhat higher. There is no evidence of paedophilia and I infer from Dr Dornan’s opinion that there is nothing in his assessment of the offender that would indicate that to be the case. That may seem a somewhat unusual finding, given the nature of the offences before the Court, but I make that finding based both on Dr Dornan’s opinion but also on the fact that he comes to Court with no prior history of such offending, nor any indication of such behaviour. It is also relevant to take into account that the age of this child was very close to the age of consent and this is not a case in which he has engaged in sexual conduct with a very young child.

10. His prospects of rehabilitation are relatively good but guarded, of course, because of his long criminal history. There will be a need for an as short as possible non-parole period to ensure that the risks of recidivism are diminished.

11. As I have said, I do accept that his history of childhood deprivation is of the type that reduces his moral culpability for this offending. The behaviour that was modelled to him by his family, in my view, has had some impact on the way he behaved, the subject-matter of these charges.

12. I then must determine the appropriate penalties based on those findings. Bear with me. Actually, what I am going to do is, I am going to actually go to chambers and do this now. I have not yet worked out what it is worth. I have just been working on the other findings. I am going to go to chambers and I am going to do that. I will come back at 2 o’clock and just announce what the sentences are at that stage because I have to work out how to do it, whether it is aggregated, whether it is partial accumulation and all of those sorts of things. It is much better that I do that without having to sit on the bench and do it. So I will do that now and come back at 2.00pm and just announce the sentences but there will be no more findings in relation to the sentence, it will just be the announcement of the sentences.

13. LUNCHEON ADJOURNMENT

14. Just one further addition to the sentence remarks. I also accept that the sentence needs to incorporate a degree of specific deterrence. Therefore the sentence should include an element designed to be a specific deterrent to this offender. However, that needs to be tempered for two reasons. The first is that he has no history of behaving in this manner, and that has an impact on the need for specific deterrence. The second relevant matter is that that must be balanced against the need to avoid the risk of institutionalisation so that the penalty should not fall into the trap of becoming so significant that that risk becomes a reality.

15. For the reasons that I have already expressed, I have concluded that the starting point for sequence 2, the intentional sexual touching offence is 12 months with a reduction of 3 months to represent the 25% discount.

16. For sequence 1, the sexual intercourse offence, taking into account the two form 1 offences, the starting point is 4 years less 12 months to represent the 25% discount, which gives rise to a term of imprisonment of 3 years.

17. I do not accept that there should be any accumulation of these two sentences. They are essentially the same episode of criminality and those sentences should be dealt with in a way that treats them as concurrent sentences.

18. For sequence 3, albeit that it is the same offence as sequence 1, there are no form 1 offences and very little detail in the facts from which I can determine the objective criminality. The starting point, in my view, is 2 years and 6 months, reduced by 8 months to take into account the 25% discount, which gives rise to an overall term of 22 months.

19. If each of the concurrent sentence for sequences 1 and 2 and the sentence for sequence 3 was accumulated, that would give rise to 4 years and 10 months. In my view, the total criminality does not require a term of that length. I will be setting an aggregate sentence of 3 years overall with an aggregate non-parole period of 18 months to take into account the total criminality. I will be commencing the sentence from 8 May 2023, taking into account some small overlap with the three-month fixed term imposed for the breach of apprehended domestic violence order, to take into account overall criminality.

20. For those reasons then, I make the following formal orders. The offender is convicted on the three substantive offences. He is sentenced to an aggregate term of imprisonment, pursuant to s 53A of the Crimes (Sentencing Procedure) Act of 3 years, commencing 8 May 2023, expiring 7 May 2026, comprising a non-parole period of 18 months, commencing 8 May 2023, expiring 7 November 2024, with parole thereafter of 18 months, commencing 8 November 2024, expiring 7 May 2026.

21. I note special circumstances being to avoid the risk of institutionalisation, the need for a longer than normal period of supervision in the community, mental health and Bugmy considerations.

22. The indicative term for sequence 2 is 9 months, for sequence 1 is 3 years, and for sequence 3 is 22 months. I have taken into account the form 1 offences when sentencing for sequence 1.

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Decision last updated: 11 December 2024