R v James Duncan Smith

[2009] NSWDC 414

CITATION:	R v James Duncan SMITH [2009] NSWDC 414
JUDGMENT DATE:	28 August 2009
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	Total sentence of 14 years and 7 months imprisonment with a non-parole period of 11 years and 7 months.
CATCHWORDS:	CRIMINAL LAW - sentence - convicted by jury trial - indecent assault - indecent assault in circumstances of aggravation - indecent assault on person under 10 - sexual intercourse with child under 10 - sexual intercourse without consent - some offences committed while on bail - offences involved breach of trust - limited degree of planning - offending opportunistic - likely to serve sentence in protective custody - dtandard non-parole periods fixed - no reasons to depart
LEGISLATION CITED:	Crimes Act 1900 s 61J(1), 61M(2), s 66A(1) Crimes (Sentencing Procedure) Act 1999 s 21A, s 54B
CASES CITED:	Fisher (1989) 40 A Crim R 442
PARTIES:	Regina James Duncan Smith
FILE NUMBER(S):	2009/11/630
COUNSEL:	Mr J Gibson Mr G Porter

JUDGMENT

1. James Duncan Smith was found guilty by a jury on 11 May 2009 of nine charges of sexual offences. I have heard evidence and submissions on the appropriate sentences to impose, and I am now embarking on the sentencing of Mr Smith.

2. First I should list what the charges for the offences were and the penalties which Parliament has attached to those offences.

3. Mr Smith was found guilty of committing an indecent assault on the victim between 1 May 2001 and 1 December 2002. That is an offence under s 61M(2) of the Crimes Act 1900 and has a maximum penalty of ten years fixed to it by Parliament. He was found guilty of having sexual intercourse with the same person, then a child aged under ten, during the same period. That offence is against s 66A(1) of the Crimes Act and carries a maximum of twenty years imprisonment.

4. I add at this stage that I have mentioned the name of the victim of these sexual offences. It is an offence to publish that name outside this courtroom or any means of identifying her.

5. I return to the offences which Mr Smith has been found guilty of. Four offences were all committed, so far as the indictment was concerned, between 1 November 2002 and 31 July 2003. Mr Gibson, who appeared as Crown Prosecutor on behalf of the Director of Public Prosecutions, argued that those offences should be regarded as having occurred on one occasion shortly after November 2002. There appears to be no dispute about that. Three of the offences were indecent assaults on a person being under ten years of age, namely nine, and the victim was the same, the victim. Those offences were the same as the first offence, namely an offence against s 61M(2) of the Crimes Act, and they all carry a maximum of ten years imprisonment. The fourth offence which occurred at that time was an offence of having sexual intercourse with the victim who was then under ten; she was nine years of age. That is also an offence under s 66A(1) of the Crimes Act and carries a maximum of twenty years imprisonment.

6. The final three offences were also all committed on the same occasion. The indictment pleads that that occasion was between 31 December 2004 and 2 January 2006 and I accept, as Mr Gibson argued, that the offences all occurred on 1 January 2005. One of the offences, the most serious, was having sexual intercourse with the victim without her consent, knowing that she was not consenting and in circumstances of aggravation, namely that she was under sixteen. That is an offence against s 61J(1) of the Crimes Act and carries a maximum of twenty years imprisonment. In addition, Parliament has fixed to that offence a standard non-parole period of ten years imprisonment. The two other offences were both against s 61M(1) of the Crimes Act of indecent assaults against the victim in circumstances of aggravation. Those circumstances were the same in each case, namely that she was under sixteen years of age. Those offences each carry a maximum of seven years imprisonment. Once again Parliament has fixed to those offences a standard non-parole period of five years imprisonment.

7. I formally convict Mr Smith of all of the offences of which the jury found him guilty.

8. Next, it is important to record succinctly just what happened which gave rise to Mr Smith committing these offences. The victim’s father was [Mr V]. He and Mr Smith were friends. They shared an interest in pipe bands. Mr V and his wife, the victim’s mother, had separated and Mr V had access to the victim and her sister during certain periods of time including weekends and school holidays. On some of those occasions Mr V would take his daughters to visit his friend Mr Smith and Mr Smith’s family. Mr Smith lived at St Clair where all of these offences occurred. It was during these visits, all of which relevantly involved overnight stays, that Mr Smith committed the offences against the victim.

9. On the first occasion the victim was asleep in the lounge room of Mr Smith’s house. Her sister was there, as well as her father and Mr Smith’s own children. During the night Mr Smith approached the victim and woke her up. He rolled her over from her side to her back and took off her pyjamas and underwear. He stroked her vagina. He then touched her bottom and put his finger into her anus. This hurt her and she asked him to stop. He said ”Okay”, but added that she should not tell anyone as they would get into trouble. The victim said nothing. Mr Smith then touched her breasts with his hand and then went back into the dining room nearby where he fell asleep.

10. The second series of offences occurred in similar circumstances, where the victim was visiting the Smiths with her father. Once again she was asleep in the lounge room. Her sister was there and Mr Smith’s children were there as well. Again Mr Smith woke her up during the night. Everyone else was asleep. On this occasion he pulled his penis from his pants and, as the agreed facts say, grabbed the victim’s hand and put it on to his penis. He then moved her arm back and forth whilst she was gripping his penis before he let go. He then grabbed her by the shoulder and pulled her head towards his penis until her head was close to his penis, which was in an erect state. He then removed her pyjamas and underwear and began touching her vagina, and then slowly put his finger inside her vagina and moved it around. When he had finished that he put his hand up her shirt and grabbed her breasts and started to squeeze them. Before leaving he squeezed one of the cheeks of her bottom. He then stopped after a short time and went to sleep at a nearby table. The victim went back to sleep as well.

11. The third occasion when offences occurred was, as I have said, on 1 January 2005. There had been a reunion of persons interested in pipe bands at a hotel, and that included Mr V and Mr Smith and others who were interested. As it happened Mr V met on that occasion a woman named [Ms A] who later became his wife. That was the first occasion that they met, or at least very early in their relationship. The agreed facts record that Mr Smith suggested to Mr V that he and Ms A leave his house once they had all returned after time at the hotel and that he, Mr Smith, and his wife would look after the children. Mr V and Ms A left together and another person named Andrew Sneddon was driven home by Mr Smith’s wife.

12. That night all the children again slept in the lounge room. Again Mr Smith woke the victim. He removed her shorts and underwear. He grabbed her legs and spread them. He knelt in front of her and started stroking her vagina. Then he put his finger into her vagina and moved his finger around. This hurt the victim who asked him to stop. She said “Please stop, it hurts.” Mr Smith continued what he was doing. He then started touching her breasts. After that he stopped and went back to the kitchen table where he went to sleep. Later on that night the victim woke up. She realised that her father was not there. She approached Mr Smith, who asked her to sit on his knee. She did so and he took the opportunity to put his hand inside her pyjama pants and touched one of the cheeks of her bottom.

13. It is common ground, and indeed it is recorded in the agreed facts, that Mr Smith touched the victim in a sexual manner whenever she stayed at his house. The only relevance of that fact is that the offences for which I am sentencing Mr Smith should not be regarded as isolated offences.

14. I need to make a finding regarding the last occasion when Mr V, the victim’s father, and Ms A left Mr Smith’s house, because Mr Gibson argued that they were positively encouraged to leave and this was an aggravating feature of the offence. Mr Porter, who appeared at the trial and in these proceedings for Mr Smith, argued that Mr V would have left in any event. I have reviewed the evidence of Mr V and Ms A and Mr Sneddon who was there at the time.

15. Mr V’s evidence included an account that Mr Smith told him that it would be a good idea if he and Lisa took off “and we’ll look after the kids. They will be fine.” But Mr V asked if that would be all right because he did not really want to leave the children behind, and Mr Smith said that it would be fine. Mr V said that they were ushered out the door by Mr Smith. Put by Mr Porter that he did not need any encouragement from Mr Smith to want to leave the home that night, Mr V said that he had not planned to go there - which I am taking to mean at Ms A’s house, which the evidence discloses Mr V and Ms A returned to for that evening. He agreed with the proposition that Mr Smith basically pushed him out the door. Mr V said that he would like to say goodbye to the children, but was told by Mr Smith that they would be fine and that Mr Smith would tell them where they were going.

16. Ms A gave evidence about the same occasion. She said that Mr Smith shepherded them up the hallway and said to them “Go on quick” and “shut the door in our faces.” When asked about what she meant by “shepherded”, she said that he walked with his arms around their shoulders “essentially giving us nowhere to go but to follow the direction he was leading us.” She said that he had a very positive and encouraging tone of voice when he was ushering them out the door. She also said that at that point she had not planned to spend the evening with Mr V.

17. Mr Sneddon was another guest at the house that evening and, as I said, was driven home by Mrs Smith. But he was there when Mr V and Ms A left. He recalled Mr Smith encouraging them to leave and indicating that the children would be fine and that he would take care of them. He saw Mr Smith’s attitude as doing a favour to Mr V and encouraging him to spend the evening with Ms A.

18. I am satisfied beyond reasonable doubt that Mr Smith positively encouraged Mr Vand Ms A to leave the house on that occasion. I am also satisfied beyond reasonable doubt that a motivation in him taking those steps was to provide him with an opportunity to be alone in the house that evening. By alone, I mean without the victim’s father being present.

19. I need to make assessments of the objective seriousness of the nine offences which Mr Smith has committed. The phrase “objective seriousness” means just how serious examples these particular crimes are of the offences which are contained in the Crimes Act.

20. Insofar as the first offence is concerned, that is, the indecent assault, I am satisfied that it is in the middle of the range of objective seriousness - a phrase which is convenient to use, although I am not using it in the context of considering any statutory standard non-parole period. I regard it as in the middle of the range of objective seriousness because the indecent assault involved the offender touching the skin of the victim and, indeed, touching her in her genital area, on her vagina. It also involved some pressure by telling her that they would get into trouble if she told anyone. It also, I am satisfied, involved an abuse of trust.

21. In making that last finding, I should observe that Mr Porter submitted that that finding is not open in circumstances where the victim’s father was present in the house at the same time. I do not accept that submission. Mr Smith was a close family friend of the victim’s family and she, the victim, was a guest in his house. The circumstances in which the victim’s father brought his children with him when he visited the Smiths obviously involved him trusting his friend not to sexually assault either of his children whilst everybody was asleep. A similar trust obviously resided in the victim, the victim, as well. For those reasons I regard the offences committed on the first two occasions as involving a breach of trust, and I should add that Mr Porter appropriately conceded that the last offences did involve a breach of trust.

22. I return to considering the objective seriousness of the offences and turn to the second offence, which was the sexual intercourse with a child under ten. I regard that offence as just below the middle of the range of objective seriousness. The penetration involved was digital. I appreciate that there is no law that provides that digital penetration is any more or less serious than any other kind of penetration, but each case must be assessed on its circumstances. This form of penetration could have been far more serious. For example, penile penetration of a child under ten I would regard as significantly more serious than what occurred on this occasion. That it was of relatively short duration is another factor which I take into account, as well as the fact that the victim was just below the age at which this offence could be committed. In a sense that is not a mitigating factor; it is the reverse of the proposition that if the victim was significantly below the age for committing this sort of offence, then it would be a far more serious example of that offence. Although it involved a degree of coercion in the sense of telling the victim not to report it and an abuse of trust, I do regard the offence as falling just below the middle of the range of objective seriousness.

23. I turn to consider the four offences which occurred shortly after November 2002, the subject of counts 3, 4, 5 and 6 on the indictment. I regard the offences in counts 3 and 4 as being in the middle of the range of objective seriousness. That is because they involved the offender requiring the victim to touch his own person. In addition, it required her to touch and manipulate his erect penis. It also involved her, as the facts record, grabbing the victim so far as count 3 is concerned, and grabbing her shoulder and pulling her towards his penis so far as the second offence was concerned, which I note did not involve any touching of the penis but did involve the grabbing and pulling. I regard these, for those reasons, as within the middle of the range of objective seriousness. I regard count 6 as below the range of objective seriousness, involving squeezing one of the cheeks of the victim’s bottom. In addition, I regard count 5, which is the sexual intercourse, as below the middle of the range of objective seriousness for similar reasons as I regarded count 2 as being in the same category, namely that the penetration was digital and for a relatively short period of time, although it was committed in breach of trust.

24. I turn now to consider the final three offences which were committed on 1 January 2005. It is significant to note that all of these offences were committed whilst Mr Smith was on bail. He had been charged with sexually assaulting another young girl. That matter had not been dealt with at the time, but a court had given him his liberty obviously on condition that he behave himself. He abused that liberty by taking the opportunity to commit further offences of the same kind against the victim. That is, in my opinion, a significantly aggravating feature of these offences. In addition, each of these offences, as I said as conceded by Mr Porter, involved a breach of trust. I also take into account as a generally aggravating circumstance that there was a degree of planning so far as these three offences were concerned. The degree of planning was limited and opportunistic. Nevertheless, Mr Smith had encouraged the departure of the victim’s father so that he would be absent from the house that evening.

25. I should add at this point that I am not of the same view so far as the other offences are concerned, namely counts 1 to 6 inclusive. Mr Gibson submitted that the offences which occurred in November 2002 should be regarded as being aggravated by a degree of planning. I am not satisfied beyond reasonable doubt that that is the case. I regard the offences as being opportunistic in those circumstances.

26. The last offences, however, were attended, as I said, by a limited degree of planning and the positive encouragement to put the offender in the situation that he would be free to commit these crimes against the victim.

27. So far as count 7 is concerned, the offence of having sexual intercourse with a person under sixteen knowing that she was not consenting, I regard that offence as falling within the middle of the range of objective seriousness. I take into account that it was an offence committed on bail and that it was in breach of trust. The victim was considerably younger than the age of sixteen, namely eleven and a half years. It was attended by the limited degree of planning to which I have referred. Despite the victim saying that it hurt, Mr Smith kept going in what he was doing.

28. So far as counts 8 and 9 are concerned, I regard them too as falling within the middle of the range of objective seriousness. That is mainly - so far as count 8 is concerned - because of the circumstances in which it was committed, namely that he was on bail and had encouraged the victim’s father to leave the home. Those factors are relevant to the last offence, but so far as the last offence was concerned the victim had actually approached Mr Smith in circumstances where she was distressed by the absence of her father. Not only did he fail to comfort her but he took the opportunity to sexually assault her when the victim was in that condition.

29. I have taken into account Mr Smith’s criminal record, which is part of exhibit A. I accept Mr Porter’s submission that it affords no leniency to Mr Smith so far as any mitigating of the sentence is concerned. It is not an aggravating factor but, as I say, it affords him no leniency.

30. So far as Mr Smith’s personal circumstances are concerned, they are set out in a pre-sentence report prepared by a probation and parole officer dated 17 August 2009, which became exhibit SB. In summary, the probation and parole officer pointed out that Mr Smith is fifty-five and that his twenty-five year marriage had been formally dissolved earlier this year. He has limited contact with his four children whilst he is in custody, but has a supportive older sister who visits him in custody. His developmental years were affected by his parents’ relationship. He has had a good history of employment. It recorded that he had received some brief court directed psychiatric interventions, but Mr Smith claims to have gained no insight. It records that he was interviewed in 2006 for an assessment of his potential risk of re-offending. The report records that he fell within the high risk category due to his prior convictions, but, as the report and Mr Porter pointed out, Mr Smith was returned into custody from being on parole a short time after he had been released on parole in respect of an earlier offence. The report said that Mr Smith would be assessed for a sex offender’s program within custody and he could undertake the custody based intensive treatment program which could be followed up within the community.

31. It is likely that Mr Smith will serve good deal of his time in custody, if not all of it, on protection. He has been on protection up until now. Some courses have been available to him on protection. The authorities indicate that there is limited weight that can be put on an argument that an offender will serve his time on protection in the absence of evidence that it will be a positive disadvantage for him and so far as I can see there is no such evidence in this case.

32. I have been directed to the purposes of sentencing in a case such as this. I should add that it is quite clear to me that no other sentence than full-time custody is appropriate for the serious crimes which Mr Smith has committed in this case. Both Mr Porter and Mr Gibson agree that specific and general deterrence are obviously significant factors to take into account in this case. In addition, Mr Gibson points to the need for protection of the community and for a clear denunciation of these kinds of offences, as well as making sure that Mr Smith is adequately punished for these crimes. As Yeldham J said in Fisher (1989) 40 A Crim R 442 at 445 the Court of Criminal Appeal “has said time and again that sexual assaults upon young children, especially by those who stand in a position of trust to them, must be severely punished, and that those who engage in this evil conduct must go to gaol for a long period of time, not only to punish them, but also in an endeavour to deter others who may have similar inclinations.”

Maxwell J added at 446 in the same case that “the community looks to the courts to deal with persons convicted of serious sexual assaults, or abuses upon young children, in such a way as to provide some measure of protection for young persons, and some measure of deterrence to those persons who contemplate similar activities.”

I regard those principles as relevant in sentencing Mr Smith in this case.

33. One matter that I need to deal with is the question of the standard non-parole periods attached to the offences contained in counts 7, 8 and 9 in the indictment. Section 54B of the Crimes (Sentencing Procedure) Act 1999 provides that a court is to set the standard non-parole period, “unless the court determines that there are reasons for setting a non-parole period that is longer or shorter then the standard non-parole period”. The section goes on to provide that the reasons for which a court may set a non-parole period that is longer or shorter than the standard non-parole period are only those referred to in s 21A of the same Act.

34 I have reviewed the provisions of s 21A(3) of the Crimes (Sentencing Procedure) Act as well as the provision which entitles me to take into account any other matters required or permitted to be taken into account under any Act or law. Mr Smith is not a person of good character and his prospects of rehabilitation cannot be described as good. Indeed, I can find nothing in s 21A of the Crimes (Sentencing Procedure) Act which in my opinion would warrant a departure from the standard non-parole periods in this case.

35. Mr Smith has been in custody on these offences alone from 31 August 2007 and I propose to commence the earliest of the sentences from that date. I will fix a sentence for each count, but many of the sentences will be partly or wholly concurrent with other sentences. That is because I have taken into account the principle of totality and regard a failure to adjust the sentences and a failure to allow them to run partly concurrently as producing an overall sentence which would far exceed the criminality involved. Nevertheless, the overall sentence must be very severe because of the crimes which Mr Smith has committed.

36. I have also taken into account a submission by Mr Porter that special circumstances exist which would warrant an adjustment in the ratio between the non-parole period and the additional term. I do not accept that submission. The additional term which will be eventually fixed when I sentence Mr Smith will be of such a length that he will have adequate time and opportunity to pursue any appropriate rehabilitation. Indeed, the ratio between the non-parole period and the additional period is slightly greater than the seventy-five per cent acknowledged in the Crimes (Sentencing Procedure) Act and I make that observation to indicate that I have not overlooked that fact.

37. I propose to sentence Mr Smith as follows. If you would stand up, Mr Smith.

38. For count number 2 of sexual intercourse with the victim aged under ten, I fix a sentence of five years fixed term to commence 31 August 2007 and to conclude on 30 August 2012.

39. For count 1 of indecent assault with a person under ten, I impose a fixed sentence of four years to commence on 31 October 2008 and to expire on 30 October 2012.

40. In respect of counts 3 and 4 of acts of indecency with a child under ten, I fix fixed and concurrent sentences of four years each to commence on 31 December 2009 and to expire on 30 December 2013.

41. For count 5 which was the sexual intercourse with a child under ten, I fix a sentence of five years fixed term, to commence on 31 October 2008 and to expire on 30 October 2013.

42. For count 6 of indecent assault on a child under ten, I impose a fixed terms of three years imprisonment from 31 December 2010, expiring on 30 December 2013.

43. For count 7 of sexual intercourse without consent, knowing that she was not consenting in circumstances of aggravation, I set as a non-parole period the standard non-parole period of ten years which will commence on 31 March 2009 and will expire on 30 March 2019. There is an additional term of three years from 31 March 2019 to 30 March 2022.

44. For counts 8 and 9 of indecent assaults in circumstances of aggravation, I set as the non-parole period for each offence the standard non-parole period of five years to commence on 31 March 2014 and to expire on 30 March 2019. There is an additional term of one year to commence on 31 March 2019 and to expire on 30 March 2020.

Ms Sawagid, Mr Porter, the first question is whether there are any factual matters in the sentence which I need to correct, or deal with?

SAWAGID: Only one, your Honour, you referred to [Ms A], her last name is [Ms A]. It was a mistake in the facts. I think Mr Gibson pointed out to you on the last occasion.

45. The transcript should note, and I will correct it, where I refer to Ms A that should be Ms A.

Thanks, Ms Sawagid, anything else?

SAWAGID: Nothing further, your Honour.

HIS HONOUR: In a moment I will ask you about the mathematics. Mr Porter, any matters of fact?

PORTER: No, your Honour.

HIS HONOUR: Mr Porter, Ms Sawagid, so far as the mathematics are concerned?

PORTER: The mathematics look fine to me, your Honour.

SAWAGID: Yes, your Honour, I can see no problem with them.

PORTER: 14 years seven months is the total term.

HIS HONOUR: The total term is 14 years and seven months and the non-parole period 11 years and seven months.

PORTER: Just under the ratio.

HIS HONOUR: Yes, it is a slight - when you say just under, just over--

PORTER: Just.

HIS HONOUR: Yes, you are right, the ratio would have been about - anyway, yes, you are right.

46. So far as any parole, it is not a matter for me, it is for the Parole Authority, but I would recommend that they consider any community based - as in the pre-sentence report - maintenance programs. I recommend the Parole Authority, when considering Mr Smith’s release to parole, consider the desirability of follow up within the community of maintenance of any programs which he has undertaken in custody.

47. Mr Smith, I have sentenced you to a total of fourteen years and seven months imprisonment. It commenced on 31 August 2007 when you went into custody. Your sentence will finish on 30 March 2022. Your non-parole period is eleven years and seven months. It also commenced on 31 August 2007 and it will finish on 30 March 2019. That is just under ten years from now. On 30 March 2019 you will be eligible for parole. Whether you get parole or not is a matter for the Parole Authority, not for me, but the first date on which it appears you are eligible for release is 20 March 2019. Do you understand that? All right.

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