R v JA

[2024] NSWDC 489

District Court

New South Wales

Medium Neutral Citation:	R v JA [2024] NSWDC 489
Hearing dates:	29 August 2024
Decision date:	30 August 2024
Jurisdiction:	Criminal
Before:	Wass SC DCJ
Decision:	See [80] – [83]
Catchwords:	CRIME – Sentencing – Sexual intercourse with child under the age of 10 years – Failure to comply with reporting obligations – Repeat child sex offender – Negligence by the Department of Communities and Justice
Cases Cited:	Bugmy v The Queen [2013] HCA 37
Category:	Principal judgment
Parties:	Rex (Crown) JA (Defendant)
Representation:	Counsel: Ms K. Mulley (Crown) Mr M. Doyle (Defendant) Solicitors: Office of the Director of Public Prosecutions (Crown) Tony Cox Lawyers (Defendant)
File Number(s):	2022/265028, 2022/271498
Publication restriction:	Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), there is to be no publication of the defendant’s name until further order. Pursuant to s 578A of the Crimes Act 1900 (NSW), there is to be no publication of any matter which identifies the complainant.

JUDGMENT

1. JA faces sentence for two offences.

1. Sexual intercourse with a child under ten years. It carries a maximum penalty of life imprisonment with a standard non-parole period of fifteen years; and

2. Failure to comply with a reporting obligation. The obligation arises from past similar offending. It carries a maximum penalty of five years.

2. Those maximum penalties serve as valuable guideposts in the sentencing process.

3. The offender offended against his biological daughter Z. I intend no disrespect to her for referring to her in that way. I do it because of the need to protect her privacy.

4. Indeed, for reasons that I will come to, Z is to be shown great respect. She immediately reported the offending to a person in authority who could take steps to protect her and to the further administration of justice. She participated in the sentencing proceedings so that her statement could be heard. She did so when she had only just realised the dream that she had at the time to live with her father, a dream that all young children have a right to have realised. That dream was shattered almost immediately by the offender’s reckless, damaging and perverse offending.

Plea of Guilty

5. In respect of the sexual intercourse count, there will be a 5% discount on the sentence. The offender pleaded guilty on the day fixed for trial. That of itself provides no evidence of remorse or regret. He did at least spare Z the indignity and stress of having to give evidence.

6. The failure to comply with the reporting obligation carries with it a 25% discount by reason of the plea. The plea was in the face of a clear breach and of itself, in my view, is no evidence of remorse. The discounts have been applied to the indicative sentences.

Criminal Record

7. The offender has a prior record.

8. Most relevantly, in September 2018 he indecently assaulted the daughter of his then partner and was charged with two offences spanning over a two-week period. This involved the offender touching the eight-year-old daughter of a woman he was living with. He placed his hand inside her pyjamas and touched her genitals over her underpants before placing her hand on his exposed penis. He was sentenced in November 2019 to a term of imprisonment of fifteen months after trial. His parole period ended on 16 June 2020.

9. The offender was placed on the Child Protection Register on 22 November 2019. He knew his obligations under the order.

10. The offender failed to report between March and July 2021. On 19 March 2022, he was sentenced to nine months imprisonment for that failure. He spent a day in prison with an opportunity to reflect on his offending and the breaches before being granted appeals bail. He knew precisely what might occur if he was to breach in the future.

11. On 27 April 2022, having succeeded in appealing against the severity of that sentence, he was placed on a supervised Community Correction Order for a period of 12 months which concluded on 26 April 2023.

12. There is no doubt that on 23 August 2022, when Z went to live with the offender, that the offender well knew of his obligations under the order to report this and that this was required to try to protect Z against abuse.

Facts – Breach of Reporting

13. On 18 August 2022, the offender told police that Z was not living with him, but that this was DOCS’ plan. On 19 August 2022, police were informed by Z’s caseworker that they were in the process of re-introducing her to the offender with a view to her living with him in the future.

14. On 23 August 2022, the Department of Communities and Justice informed Z’s school that Z had been placed with the offender and was moving to live with him.

15. On 6 November 2022, police spoke with the offender about Z having moved in on 23 August 2022 and why he had not reported this change of circumstances. He replied that he thought the Department had done so.

16. The sexual offending occurred only two weeks after the offender spoke to police about Z’s plans to move in and only about ten days after she did so. I will return to that matter in the context of the sexual offending.

17. I am mindful not to double count his offending. His breach of the order in my view, while serious, was in some respects, a technical one and I accept the clear inference that arises that the offender had no intention to disguise from police the fact that Z was to live with him.

18. However, the offending took place where Z lived with the offender for a number of days before the authorities were informed. They were informed because police enquired, not because the offender told them and he had taken no steps to ensure that the Department had done so.

19. The offending occurred in breach of conditional liberty for the same offence.

20. Mindful to remove from consideration on this issue the serious sexual offence that occurred, in my view, that offending, that is, the failure to report, sits below the mid-range of offending.

21. That said, the offender clearly understood his obligations to inform police at all times of any change in circumstance. The fact of Z living with him was an important change in circumstance. The obligation rested on him and not the Department despite his excuse to police. His excuse for this offence is consistent with his unwillingness to take responsibility for his actions more generally.

22. It is important to send a message by the sentence not only to the offender, but to others in his situation, that reporting places a strict obligation on the person against whom the order is made and that strict compliance is essential. Unfortunately, it did not protect Z in this case, but it is an important protective mechanism nonetheless.

Facts – Sexual Assault

23. Mindful that Z is listening in to these sentencing remarks and where the agreed facts are set out in exhibit 1, the facts are inserted by reference without me reading them out in full.

Objective Seriousness

24. In summary, the objective seriousness of the sexual intercourse count is informed by the following matters.

1. The familial relationship between the offender and Z gave rise to a position of trust and authority. That authority was entirely misused and that trust has been seriously and grievously breached.

2. Z was particularly vulnerable, a matter that was known to the offender. She had an unstable family life before moving in with him.

3. In the first half of 2022, Z had been living with her mother, her partner and their four-year-old son. By early August 2022, she was living with a family friend and had expressed to her caseworker that she was interested in meeting her father.

4. Within days, Z’s caseworker organised a supervised visit which occurred on 12 August 2022.

5. The following week at Z’s request, there was a further contact visit, this time unsupervised, organised again by the caseworker. The plan was for a day visit. Z then made plans for that to be an overnight visit. There is no criticism of Z for wanting that. However, in what I regard as an act of reckless incompetence and gross negligence by the caseworker, given the offender’s criminal record and the lack of due diligence which took place, for example, to check on his current alcohol and substance abuse, this was allowed with the caseworker allowing Z, who was only nine, and the offender to “work it out themselves”.

6. I am mindful that this gross dereliction of duty, leaving those decisions in the hands of a nine-year-old daughter who had been separated from her father, should not be visited upon the offender. However, the offender knew that Z was vulnerable and he gave that matter no regard.

7. During that stay, the offender showered Z with gifts and took her out to dinner so that she had “a really great time”. She did not stay one night, but two, returning on 21 August 2022 to a family friend with whom she had been living.

8. Unsurprisingly, given that experience, the following day Z told her caseworker that she wanted to live with the offender. Again, without any due diligence being carried out and with obscene alacrity on the part of the caseworker, the caseworker facilitated this and she went to live with the offender. In doing so, that person put Z directly in harm’s way without any proper supports in place to minimise the likelihood of Z being hurt.

9. Only 12 days went by before the offender sexually assaulted Z.

10. The offender used that relationship as a parent to get close to Z, to get into bed with her, to remain there while she slept and to offend against her.

11. There is a large discrepancy between the ages of the two. The offender was forty-two and Z was only nine, almost ten.

12. Z was offended against in her own home where she was entitled to feel safe and protected. It was a place where she was living with the offender and where it was very difficult for her to remove herself.

13. The nature of the act itself involved the offender removing Z’s underpants and pyjama pants down to her knees.

14. The sexual contact commenced while Z was asleep, making her particularly vulnerable. She awoke to the offending taking place.

15. The offending involved digital intercourse over a period of about twenty minutes.

16. The act was far from fleeting.

17. The offending caused physical pain and redness which remained days later.

18. Z reported the matter to her school teacher the following day, her first day back at school. She did so with the support of a school friend who no doubt was also harmed by the experience.

25. The offending, in my view, sits slightly above the mid-range.

26. The offending occurred whilst the offender was the subject of a Community Correction Order for failing to comply with reporting obligations for his earlier sexual offending.

Subjective Case

27. The offender was born in 1980. He is now 44. He grew up in Wingham on a remote rural property.

28. His father abused alcohol and cannabis and was violent when intoxicated. Violence towards the offender largely occurred in the context of discipline. He was frequently struck with a belt.

29. His mother was described by him as affectionate and loving and that they had a close attachment, although she too invoked corporal discipline.

30. The offender witnessed frequent episodes of domestic violence and neglect.

31. The offender experienced sexual abuse as a child and adolescent at the hands of three different perpetrators.

32. At the ages of eleven and thirteen, he was taken on camping trips by a friend of his parents. He would awake to find that man sexually assaulting him.

33. Unsurprisingly, his schooling was disrupted as he engaged in rebellious behaviour. He was abusive to teachers and truanted often to consume alcohol and smoke cannabis.

34. He was later assaulted at the age of fourteen and then again when he was sixteen including once when again, he awoke to being sexually assaulted.

35. The offender did not disclose any of these experiences at the time due to his feelings of shame and embarrassment.

36. He abused alcohol and drugs to cope. He has also been using gambling to deal with stress. He has not sought out professional counselling regarding his drug and alcohol abuse, fearful of addressing those issues.

37. That was so even where he had offended in the past when he was drunk. First, as early as 1998 when he was fined for driving with high range alcohol in his system and again in 2018 when he was found by a jury to have committed a serious sexual assault and one for which he was imprisoned. Even a serious motorcycle accident whilst he was drunk in 2021 did not lead to the offender seeking professional help.

38. The offender left school having completed year 11 or perhaps earlier at the age of fifteen, to take up a mechanic’s apprenticeship. He moved out of home and lived with older adults. He increased his consumption of alcohol and cannabis. He completed his apprenticeship in his early twenties and has worked as a mechanic since. He has a strong work ethic and good job prospects. He has few interests outside work.

39. The offender suffered injuries when he fell from a balcony at the age of 30. There is some suggestion of a brain injury, the extent of which is unknown.

40. The offender returned to live with his parents in 2019. This coincided with his release from custody, having committed the earlier child sexual assault. He cared for his mother who had suffered a stroke and was receiving chemotherapy for lung cancer. She died in 2021. His father then told him to leave.

41. The offender says that he is hesitant in getting close to people and feels loneliness and social disconnection, including at the time of the offending. This is somewhat inconsistent with his numerous intimate relationships and the three long-term relationships that he has had. The latest of those relationships I am told, is ongoing and that he has his partner’s support. His statements of loneliness at the time are also inconsistent with his statements that at the time of the offending, he was the happiest he had been in six years which he attributed to having Z and one his sons back in his life.

42. Whilst I observe in these remarks the offender’s lack of restraint and of his need to take responsibility for his actions, I have considered his background and realise his limitations in that regard, limitations that will likely be enduring. I have paid heed to the principles set out in Bugmy v The Queen. I have considered that his moral culpability is lessened to some extent.

Intoxication

43. The offender said that prior to the offending, he had returned to alcohol after a period of abstinence. He was consuming beer and spirits on a daily basis, often to the point of blacking out, a matter that, on any view, made him unfit to parent Z at the time. His decision to agree to do so showed a remarkable lack of judgement.

44. The offender also said that prior to the offending, he had become dependent on opioids. He was also using fentanyl patches on a daily basis up until his arrest.

45. He explained his offending to the psychologist, by reason of his intoxication, having abused alcohol and fentanyl.

46. There is some support for the offender’s statement that he was intoxicated. Z told her teacher that he had got drunk.

47. Whilst taking into account the background matters that I have described, intoxication in no way excuses or mitigates the seriousness of the offending.

48. Furthermore, the level of intoxication was difficult to accept. The offender was sufficiently in control of his faculties to wait until Z was asleep and to return to his partner’s bed. He gave an explanation two days later that he had been in Z’s room to “tuck her in and say goodnight” and that he “lay(ed) down with her for a couple of minutes and gave her a cuddle”. He gave no indication that he was not aware of what he was doing at that time or that he could not remember what had happened.

49. Those statements to his partner shortly after the event stand in stark contrast to his assertion now that he was so intoxicated that he thought Z may have been his partner and that he could not remember what had happened.

50. Furthermore, he said to police on 5 September 2022 that he did not offend, that he had “a few drinks”, that he took Z to bed, and that he tucked her in before going to bed with his partner.

51. I reject the offender’s explanation that he was so intoxicated that he did not know what had occurred or that he mistook Z for his partner. He never said so to anyone at the time and lied to both his partner and to police. That state of mind is also inconsistent with his plea of guilty.

52. Finally, the offender knew full well that intoxication would render him more likely to re-offend as it had done so in the past and he admitted to the psychologist that he knew that he had a pattern of increased libido whilst intoxicated.

53. I take into account the need to protect the community against the offender acting in the future when he has unsupervised contact with a child, particularly whilst intoxicated, even where there might be a responsible adult in the same house, particularly where the offender has taken few, if any, steps in dealing with those addictions.

54. For the reasons I have stated, I have otherwise given the factor of his intoxication very little weight.

Remorse and Prospects of Rehabilitation

55. Despite his statements in evidence, there is no reliable evidence of genuine regret such that I could have confidence that he would not re-offend.

56. He offended in circumstances where he was not honest about being in contact with Z. The truthful reporting was, he knew, designed to protect young people with whom he might come into contact. It arose because he had committed a very serious offence in very similar circumstances and so he knew full well the harm that he could do to Z if he sexually offended against her.

57. He continued to offend against her even though she told him to stop. The offending only stopped when she left the room.

58. He lied to his partner the day afterwards providing a false explanation as to why he had been in her bed.

59. He lied to police the day after that, repeating that false story that he had given to his partner.

60. He pleaded guilty at the last possible moment.

61. He continued to deny the offending for which he was convicted in 2019. Again, he said that he was intoxicated, abusing cocaine and MDMA at that time.

62. The offender claims to have no memory of that or this event. He hypothesised that he may have engaged in sexual activity with Z, believing it to be his partner. For the reasons that I have put forward relating to his intoxication, I reject that explanation. It shows, in my view, little sign of remorse.

63. The offender says that he wishes to engage in substance abuse intervention, to address his childhood trauma through treatment and to form pro-social interactions. I commend him if that is so, and he absolutely must do so. His use of gambling to avoid stress also requires attention. Most seriously, he makes no mention in that respect to the fact that he has twice now offended sexually against young children in most serious ways for which significant professional intervention is required.

64. Indeed, the offender continues to deny, as recently as six weeks ago when the psychological report was prepared, a sexual interest in children. He has categorically denied the previous very similar offending against an eight-year-old. There is no credible explanation for his offending other than unrecognised sexual interest in children. Unless or until he comes to terms with that interest, he is, in my view, at a high risk of re-offending.

65. Finally, the offender’s expressions of remorse recently in the sentencing proceedings, such as they are and which came late in the context of giving evidence of his onerous time in custody, were presented in evidence, in my view, as an afterthought. I regarded them as equivocal, and the answers showed that he had little insight into what had caused him to offend despite having spent the last months in custody and the experience of the prior offending to reflect. He simply says that he feels disgusted and embarrassed. However, he also made statements more in line with self-pity, that all he ever wanted was to reunite with Z and that he then got drunk and cannot remember what happened, that he has ruined everything, and he has now lost contact with his children due to what occurred.

55. In my view his statements, such as they were, as to remorse are also reflective of a self-centred approach rather than concern for Z.

56. I agree with the psychologist’s observation that his decision to have unsupervised contact with Z whist intoxicated or likely to be so despite his history of similar offending is indicative of the problems he has with impulsivity and cognitive problem solving and in my view, very likely, a deviant sexual interest in young children that is, at this stage, unexplored due to the offender’s state of denial. In that regard, I have also taken into account the history of offending against him.

57. He requires, in my view, long-standing professional treatment on release.

Harm to Z and the Community

69. Z is still eleven. She prepared an insightful and eloquent statement of the harm that has been done to her. She sat quietly while I read this judgment and whilst the victim impact statement was read to the Court. Z is a brave and resilient young person. I am hopeful that, in time and with the continued support from her aunt and from others including caring professionals, her situation will improve.

70. I am mindful that she has listened to this judgment being read and that in the years to come she might read it. I have done what I can to respect her right to see herself as she chooses, not by some label given to her by me. For that reason, I have deliberately refrained from calling her a victim or referring to her as the offender’s daughter or him as her father any more often than is needed to record that fact as necessary.

71. The harm done to Z is significant.

1. The offender scared and hurt her. She suffers nightmares and panic attacks.

2. He has made her hate her own name. He has all but ruined any prospect of her having a paternal relationship and he has destroyed her family unit, such as it was. I can only hope that she re-forms a new one.

3. He has caused her to not trust others and to be scared of men.

4. His actions have meant that she is, at times, suicidal.

5. His actions have meant that she has had to endure many counselling sessions, that she has had to prepare for Court and that she has needed to prepare this statement, in part, to move on.

72. This is the damage that is caused by offenders when they act in this way. That is why the maximum penalty is so high, at least in part to acknowledge the harm done both to the person against whom it is directed, but also the harm that it does to the community as a whole. We are all diminished when sexual predators live amongst us.

Denunciation of the Conduct

73. The acts by the offender were selfish, destructive and harmful. There is good reason for him to feel ashamed. Any sentence must mark the community’s disgust with his actions and denunciation of the conduct.

Specific and General Deterrence    

74. Any sentence must deter the offender from acting in this way ever again. A much shorter custodial sentence for very similar offending in 2019, but which carried a much lower maximum penalty did nothing to deter him. It did not cause him to reflect on why it had occurred. Indeed, he continues to deny it. He did nothing to put in place protections for Z against the prospect that he might have re-offended in the past and he re-offended in a most serious and almost identical way.

75. The sentence must also deter other offenders who think that their children or the children of others are there for their own sexual gratification. These offences are distressingly all too common. General deterrence is an important feature of any sentence.

Indicative Sentences

76. There is no question that a sentence of full-time imprisonment is the only appropriate sentence for both offences.

77. It will be an aggregate sentence. Matters of totality are important and have been taken into account, as will be obvious from the indicative sentences and the aggregate sentence.

78. The failing to report is, in my view, a wholly separate kind of offending from the very serious offending that occurred. The sentence will be only partially concurrent. I indicate a term of imprisonment of two months.

79. For the sexual intercourse against Z, I indicate a term of imprisonment of seven years and nine months, with a non-parole period of four years and eleven months.

Sentence   

80. JA, you are convicted on both counts.

81. You are sentenced to a term of imprisonment of seven years and ten months to date from 5 September 2022 and to expire on 4 July 2030.

82. There is a moderate finding of special circumstances by reason of the experience you have had in custody in the last two years, spending 133 full-day lock-ins and 131 half-day lock-ins due to COVID and staff shortages. That is an intolerable situation which I have no doubt is occurring not only in your case, but across the State. Some lock-in days have lasted for up two weeks. You have described and I undoubtedly accept the conditions are a lot worse than normal. Although it is difficult to predict, there is a prospect that this may continue. I have also given consideration to your need for extensive therapy to address your offending in the past and those very serious underlying issues that you must face requiring an extended period on parole.

83. I set a non-parole period of five years. You will be eligible to apply for parole on 4 September 2027.

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Decision last updated: 18 October 2024