R v Jenner

[2019] NSWDC 50

District Court

New South Wales

Medium Neutral Citation:	R v Jenner [2019] NSWDC 50
Hearing dates:	27 February 2019
Decision date:	27 February 2019
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Offender sentenced to an aggregate sentence of 5 years imprisonment with a non-parole period of 3 years imprisonment.
Catchwords:	CRIME – sexual intercourse without consent – victim cognitive impairment.
Legislation Cited:	Crimes Act (NSW) 1900: s66F(3)
Category:	Sentence
Parties:	Regina (Crown) Cary Lee Jenner (Offender)
Representation:	Crown: Ms Sloane (Crown Prosecutor) Offender: Mr Walsh (Counsel)
File Number(s):	2018/1832
Publication restriction:	Non publication order made of the name of the victim and any information which might directly or indirectly identify her – including the publishing of the organisation contained in the Agreed Facts.

Judgment

1. To the extent necessary, I confirm the non publication order previously made of the name of the victim and any information which might directly or indirectly identify her – including publishing the name of the organisation contained in the Agreed Facts.

2. Cary Jenner you appear for sentence today in relation to two offences which you committed on 17 November and 26 November 2017. Each offence was that of having sexual intercourse with a person who has a cognitive impairment with the intention of taking advantage of that impairment.

3. These offences involve contraventions of s 66F(3) of the Crimes Act. The maximum penalty for each of the offences is eight years imprisonment and there is no standard non-parole period.    

4. The facts surrounding the offences are contained in an agreed statement of facts and, slightly recast by me as to style but not substance, those facts are as follows.

5. In November 2017 you were 38 years old and the victim of your offences was 24 years old. Although she was 24 years old physically, she had what was an obviously moderate intellectual disability and she actually had a mental capacity of a ten year old. In addition to that mental incapacity she also had attention deficit hyperactivity disorder and a congenital heart defect. Because of her intellectual disability, she was under the constant care of her immediate family, and her sister was her full time carer.

6. One of the things that your victim did as a form of social recreation was to attend [a local church] – and, for some years, you had been involved with that church by running discos for the young people who had disabilities, including intellectual disabilities. And you knew that the young people who went to those discos had disabilities; and by your plea you have admitted that you knew your victim had a cognitive impairment.

7. The victim had been attending the church for about 12 months before November of 2017 and, apart from attending the church’s social functions, she also worked in the soup kitchen for the assistance of others to obtain companionship and work experience. You met her at one of the discos that you were running.

8. You were married and you had three children to your wife. There was also a fourth child who was the product of another union that your wife previously had. There were therefore four young children in the house.

9. At one point after you met the victim, you told her that you had “a crush” on her. You started communicating with her by Facebook. She had limited literacy but she was able to use her mobile phone. She had very little understanding of how to use Facebook.    

10. On 17 November 2017 you picked up the victim from her house in your motor vehicle and you went to the community radio station that broadcasts from Charles Sturt University and from which you ran a radio program. You took her whilst you did that program.

11. By about 10pm, your program had finished. You did not drive her home. You went up to the isolated roadway on Mount Panorama (where very few people go at night). You parked your vehicle there and you hugged and kissed her and put your hand up her shirt and under her bra and touched her breasts. (You have not been charged with that criminal conduct.).    

12. You placed your hands on her hips. You then put the front seat of the vehicle down and you climbed on top of her. You put your hands down her pants and removed her shorts. She told you to stop. You ignored what this 24 year old woman with the intellectual capacity of a ten year old said. You persisted - and you had unprotected penile vaginal intercourse until you ejaculated. Although you did not ejaculate in her, the risk of pregnancy was real and the risk of conveying disease was real.    

13. After you had finished, you took her home and dropped her off.

14. You sent her text messages the next day in which, far from expressing any remorse about what you had done, you expressed your pleasure in what you had done, and that you wanted to do it again. And you used some fairly graphic and crude terms in the text messages.

15. It is that act of penile vaginal intercourse that I have just referred to that is the first offence for which you are to be sentenced.

16. The court is required to assess its objective seriousness for an offence of its type and, in my opinion, it was a mid-range offence.

17. Nine days later, on 26 November 2017, your victim was at church with a friend and her friend’s family. They had agreed to take the victim to church and to bring her home.

18. You were at that service as a member of the congregation with, amongst other things, the obligations one Christian owes to another.    

19. At the end of the service, you offered to take the victim home. The victim’s friend and her parents, trusting you, allowed you to do that. But you did not take her home. You took her back to that isolated spot on Mount Panorama. On this occasion the victim told you that she was menstruating. But that did not deter you. You manoeuvred her on to the back seat and you climbed on top of her. She said that she did not want to do anything because she was bleeding and she tried to push you away. But again, you were not to be denied. You placed your hands down her pants, pulled her pants off and then had unprotected penile vaginal intercourse with a woman who was menstruating. Again you had intercourse until ejaculation.

20. In both circumstances of intercourse the Crown accepts that there is no evidence that you ejaculated within the victim, but again, the risk of pregnancy and disease remained high.

21. This second offence, in terms of its objective seriousness for an offence of its kind is also a mid-range offence.    

22. Fortunately, your text messages were discovered by members of the victim’s family. The messages included comments about having more such encounters, and some of them were expressed in crude language.

23. You were arrested on 15 December 2017. You only made partial admissions, specifically you denied knowing of her disability, which was untrue, you did. Your plea says you did. Your assertions that it was consensual to the police and to others is untrue and you must know that. You also denied having sexual intercourse on the second occasion. That was also untrue, and your plea says it was untrue.

24. A victim impact statement has been provided to the Court from your victim. It is expressed simply but powerfully. “Powerfully” because it was written by someone who has the intellectual ability of only ten years.

25. Mr Jenner, you had a very unfortunate upbringing. Your parents separated when you were young. That is a common feature in contemporary Australian society. Parents who separate are no better and no worse than people who remain in a relationship which is not working. But it would seem that your mother found a new partner who was verbally, physically and emotionally abusive towards you.

26. Not only was that man abusive but, at school, you were picked on and bullied. Undoubtedly you were not safe emotionally at home and you were not safe emotionally at school as a child. And it is clear from the material before me, without going through it in fine detail, that that has had a significant negative impact on your personality.    

27. You are a withdrawn person. You are unable to communicate easily with adults. You seem drawn to people with intellectual disabilities.

28. But none of this provides any excuse, Mr Jenner, for your having sexual intercourse with that young person. There is no causal connection between your undoubted unfortunate psychological profile and what you did. And there is no excuse in your emotional and intellectual profile.

29. You have still not fully accepted responsibility for what you have done. You have at least pleaded guilty and avoided putting the victim to the necessity of giving evidence in a trial. But, as the sentencing assessment report and the psychological report reveal, you are still, even now, equivocal and hesitant and not admitting to yourself the full criminality of what you did. That goes very much against you in assessing your prospects of rehabilitation.

30. You have been assessed as a medium risk of re-offending - no doubt, in part, because of your unwillingness to accept what you have done.

31. And your prospects of rehabilitation are not enhanced by your partner’s refusal to fully accept what you have done - even in the witness box today, your wife sought to place some blame on the victim. She will not be a good influence in your rehabilitation whilst she continues to exhibit that attitude.

32. Whilst your emotional profile, therefore, means that you are not a suitable vehicle for the full application of what lawyers call special deterrence (that is trying to deter you from re-offending), that still has a significant role to play.

33. And the sentence to be structured today must also seek to deter others from doing what you have done.

34. Your prospects for rehabilitation are guarded, Mr Jenner. They depend very substantially on you coming to terms with what you have done and fully cooperating in gaol with the authorities and the programs that I am going to recommend be made available to you – because, unless you do engage in those courses willingly (without one hand behind your back and your fingers crossed) you are likely to re-offend.

35. No sentence other than one of full time imprisonment is appropriate in the circumstances.

36. You did plead guilty early and therefore you are entitled to an effective discount of 25%.

37. I have not yet mentioned, but I have not overlooked, the fact that since leaving school you have been a hard worker in various callings. I have not overlooked that you have been a good father to your children. I have not overlooked that you have no prior offences.

38. I have also not overlooked that you have no diagnosed mental illness. I have not overlooked that you have no issues with illicit drugs, abuse of legal drugs or alcohol or gambling.

39. I intend imposing an aggregate sentence upon you Mr Jenner, and because of that it is necessary for me to state the indicative sentences which underpin the aggregate sentence.

40. In each case, except for your plea of guilty, the term of imprisonment would have been four years.

41. After the discount of 25%, the indicative sentence in each case is three years imprisonment.

42. The sentences would not have been totally concurrent. There would have been some meaningful accumulation to recognise that two very serious criminal acts were done against this girl.

43. Whilst I am not persuaded that a longer period on parole would assist your rehabilitation, I am going to find special circumstances to vary the ratio of the head sentence to the non-parole period because: first, this is your first time in custody; and secondly, your psychological profile means you will find custody more difficult than for others.    

44. Cary Jenner, for each of the two offences of sexual intercourse of which I have convicted you earlier today, I sentence you to an aggregate term of imprisonment of five years. I fix a non-parole period of three years to date from today, which will expire on 26 February 2022. I fix a balance of two years to date from 27 February 2022 and which will expire on 26 February 2024.    

45. I direct that a copy of the Sentencing Assessment Report and the psychologist’s report which were tendered in evidence be taken with you and be provided to the Corrective Services Department. I strongly recommend that Department give serious consideration to making available to you the moderate intensity sex offender program.

Decision last updated: 13 March 2019