R v JJ

[2019] NSWDC 27

District Court

New South Wales

Medium Neutral Citation:	R v JJ [2019] NSWDC 27
Hearing dates:	8 February 2019
Decision date:	08 February 2019
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Offender sentenced to a period of imprisonment of 12 years with a non parole period of 9 years.
Catchwords:	CRIMINAL LAW - aggravated sexual assault - victim under 16 years
Legislation Cited:	Crimes Act 1900 (NSW), s.61J(1) Court Suppression and Non-publication Order Act 2010 (NSW).
Category:	Sentence
Parties:	Crown JJ (Offender)
Representation:	Ms Ratcliffe, Crown Prosecutor Mr Heazlewood, for the offender
File Number(s):	2017/272014
Publication restriction:	Non publication order made 6 November 2018 of the names of the victim, her mother and sister, the offender or any other information which might directly or indirectly identify them.

Judgment

1. JJ, you appear for sentence today in relation to the offence of aggravated sexual intercourse without consent, the circumstance of aggravation being that the victim was under the age of 16 years.

2. This involves a contravention of s 61J(1) of the Crimes Act 1900. The maximum penalty for that offence is 20 years' imprisonment and there is a standard non parole period of ten years' imprisonment.

3. On 6 November 2018, you appeared for trial before this Court and a jury in Bega.

4. At the commencement of your trial, you were arraigned on an indictment which contained two counts. At the conclusion of the Crown case, I directed the jury to enter a verdict of not guilty in relation to count 1. At the conclusion of the trial, in which you gave evidence, the jury unanimously found you guilty of the second count - which is the offence for which you are to be sentenced today.

5. I have noted in the sentencing assessment report, which was prepared for today, that you told the author of that report that you continued to deny the offences and you went further: you said that the victim and her mother were “compulsive liars”. I had the opportunity, Mr J, of watching and listening to those two witnesses in the witness box and I have to say that I found each of them to be compelling and reliable witnesses. I was unsurprised at the verdict entered by the jury.

6. The sentence hearing today will proceed on the basis of facts which I need to find. Where a matter proceeds to trial, it is necessary for a trial judge to make findings of fact consistent with the verdict of the jury – and, as I have indicated earlier today, I intend to make findings consistent with the Crown opening to that jury because the evidence of the Crown witnesses was substantially in accordance with that opening. Slightly paraphrasing the opening, I find the following as facts beyond reasonable doubt.

7. As at October/November 2016, the victim of your offending was aged 14 years. At the time of the offending she was living with her mother and her baby sister, C, who was then three years of age, in a house in a township on the Sapphire Coast. The victim's mother had, for some years previously to October/November 2016, been in a relationship with you and that relationship had existed for about six years. It was as a result of your relationship with the victim's mother that the victim's stepsister, C, was born.

8. After the birth of C, you remained living with the family for a period and ultimately the family moved to the address in that village on the Sapphire Coast in about April 2014, about two years before the events with which I am concerned.

9. About October 2014 (that is, about six months after the family had moved to that township) the victim went to Western Australia where she lived with her birth father for 12 months.

10. When the victim returned to New South Wales (and to that Sapphire Coast township) you had moved out of the home in which the victim's mother and your daughter, C, lived. You came to that house from time to time, with the permission of the victim's mother, to see your birth child. Sometimes you would come for dinner in order to spend time with your daughter but essentially there was no interaction between the victim and you.

11. In 2016 it was common practice for the victim's mother to leave the house with C and go to a park or to do shopping or to do odd jobs and to leave the victim, who was at that stage 14 years of age, at home.

12. One morning on a weekend in October or November 2016, that is exactly what the victim's mother did. She went out with C and left the victim at home alone. She was still in her bed.

13. After the victim's mother left the house, she (the victim) went back to sleep. She was woken later in the morning because the dog was barking and, thinking it was her mother and still dressed in her pyjamas, she went to the front door and opened it.

14. When the victim opened that door she did not see her mother, she saw you and you were in a very angry state. You demanded to know from the victim, on a number of occasions, where her mother was. The victim said that she did not know. Thinking that you were then going to leave, the victim turned her back on you and went to go back inside the house and to go back to bed but, as she turned, she felt you push her from behind, causing her to almost fall to the ground. She stopped herself by using the front door. She said that she heard you muttering something under your breath but she could not hear exactly what you were saying. You then grabbed her by her arm and pulled her down the hallway of the house. She was resisting you but you continued to pull her so that she ultimately ended up on the floor of the hallway. You then dragged her a further distance along the hallway into her bedroom where you picked her up underneath her arms, placed her on the bed and turned her, so that she was on her back. Her legs were hanging off the edge of the bed. She was trying to scream but found, in her terror, she was unable to make any sound. But it was clear to you, from the nature of the struggle, that this was something that she did not want to happen.

15. You then held her by her arms, by the inside of her upper arms, to stop her from further resisting and, each time she tried to move or get up, you punched her to her right shoulder. You then held both of her arms down with one hand and, with your free hand, you reached to her pyjama pants which you then pulled down. She was not wearing any underwear under those pyjama pants. You then pulled down your own trousers. She tried to roll sideways to get off the bed but you told her to shut up. She was crying loudly. You held her down by her arms and then you had penile/vaginal sexual intercourse with her. In doing so you did not use a condom. This intercourse seriously hurt that child and it made her cry even more. She kept trying to move away from you but it hurt all the more.

16. As you were having intercourse with her, the victim noticed that you were smiling at her, possibly like you have been smiling on occasions during these remarks this morning.

17. OFFENDER: It's not just my family that don't believe her, it's her whole family as well.

18. HIS HONOUR: This caused her to keep her eyes shut.

19. After you had finished what you were doing (and, on the material, I am not able to find beyond reasonable doubt that you actually ejaculated) you pulled up your pants and you walked out of the room. The victim stood up, dressed herself, sat down on the edge of the bed, crying.

20. You came back into that room. You grabbed her with both of your hands around the area of her neck and you told her that if she ever told her mother you would kill her - and she believed you. You then left the house.

21. The mother returned about an hour later and the victim then took herself to the bathroom and had a shower. She noticed that there was some blood on her pyjama pants and that night you brazenly came back for dinner to see your birth child. The victim, however, ate her dinner in her room.

22. For a long time (because the victim believed that you would kill her) she told no one of what you had done. Eventually, in 2017, the victim formed a relationship with a young man. He gave evidence in the trial and I remember him very well. He was a gentle, kind soul and it was to that gentle boy that the victim felt able to finally tell someone about what you had done to her. She accepted his advice and, as a consequence, the victim told her mother. Her maternal grandmother was then involved, and then the police, and then you were arrested.

23. In terms of the objective seriousness of this offending, it is a midrange offence for offence of its kind. It is aggravated by the fact that it was committed not only in the victim's home but in her own bedroom; and it involved both actual violence and the threat of violence.

24. The offence is not further aggravated by the abuse of position of trust for the reasons advanced by the Crown prosecutor in her written submissions.

25. You are not to be punished, Mr J, because you exercised your right to a trial. But you persist, even to today in the outburst that you have just made, in denying the offence. You therefore have no remorse for what you have done.

26. You were born in 1982. I accept that part of the psychologist's report in which you gave a history of your childhood - a childhood marked by considerable domestic violence from your birth father to your mother. I believe that history because I believe your mother (who gave evidence today) and I accept that, as a consequence of the very unhappy childhood, you do suffer from post-traumatic stress disorder and anxiety and depression.

27. I have noted the problems you have had with relationships as recorded in the medical history, not just with the mother of this victim but with other women; and I accept that, in some way, because you have not had effective treatment for that post-traumatic stress disorder with anxiety and depression, you have, in recent years, self-medicated with illicit drugs in addition to the prescribed medications given to you by medical practitioners - those illicit drugs including Ice, acid and cocaine, together with excessive alcohol consumption.

28. But I am not persuaded, on the balance of probabilities, that there is any causal connection between your mental/psychological condition and the vicious sexual assault on that child on that day. I can find no explanation for it. The Crown has submitted that you did it deliberately to inflict some sort of punishment on the victim's mother. I am unable to reach that conclusion beyond reasonable doubt. So I am left without being able to find any reason why you did it. There certainly was no history in the evidence of the victim of you trying to groom her on other occasions. There was evidence that, on occasion, she felt uncomfortable in your presence and sought not to be near you. But it was not clear, as I recall it from the evidence, that her concerns were of a sexual nature.

29. Because I am unable to find with any confidence why you did this wicked act, and because you are not remorseful for it, I am unable to make a favourable finding to you on the prospects of your rehabilitation. Your prospects must be regarded as guarded.

30. You have been a hard worker all of your life - in the hospitality industry and as a landscaper.

31. You have previous offences but nothing remotely resembling this. You have offences of destroying property, of stalking and intimidating, of driving with high levels of alcohol in your blood, of being in possession of goods suspected of being stolen but nothing approximating this. But because of those prior convictions, you are not entitled to the leniency which, in appropriate circumstances, might be extended to a first offender.

32. Whatever your prospects for rehabilitation, they would not be enhanced by a longer period on parole.

33. Although this is your first time in custody, I shall not make a finding of special circumstances to vary the ratio of the head sentence to the non parole period for the following reasons. First, as I have said, your prospects of rehabilitation would not be enhanced by a longer period on parole. Secondly, there will, in any event, be a lengthy period on parole. Thirdly, the mere fact that this is your first time in custody is not a sufficient reason to make a finding of special circumstances. Finally, I am not persuaded that your psychological condition is such that your period of imprisonment will be more harsh than for others.

34. JJ, for the offence of aggravated sexual intercourse without consent I sentence you to a term of imprisonment of 12 years. I fix a non parole period of nine years. The start date will be backdated to take into account: first, the period of time that you were bail refused pending the trial; and secondly, the period that you have been in custody since the jury bought in its verdict and your bail was revoked.

35. I therefore fix a non parole period of 9 years to date from 12 October 2018 and which will expire 11 October 2027.

36. I fix a balance of 3 years to date from 12 October 2027 and which will expire 11 October 2030.

Decision last updated: 27 February 2019