R v Jones

[2023] NSWDC 409

District Court

New South Wales

Medium Neutral Citation:

R v Jones [2023] NSWDC 409

Hearing dates:

3/2/23-14/2/23, 4/8/23, 21/8/23

Date of orders:

21/8/23

Decision date:

21 August 2023

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to an aggregate term of imprisonment of 4 years 6 months with a NPP of 3 years 2 months (19/7/22-18/9/25).

In find special circumstances.

The indicative sentences are:

Count 2 – 3 years 7 months

Count 3 – 3 years with NPP 2 years

Count 4 – 3 years 10 months with NPP 2 years 6 months.

Catchwords:

Crime – Sentence – Intentionally sexually touch child 10-16 years – Provide material benefit to child 10-14 years with the intention of making it easier to procure child for unlawful sexual activity – Sexual intercourse with child 10-14 years

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571

Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194

R v MJR (2002) 54 A Crim R 368

R v PGM (2008) 187 A Crim R 152

Category:

Sentence

Parties:

NSW DPP – Crown
Simon John Jones - Offender

Representation:

Mr L Christoff for Crown
Ms R McMahon for Accused

File Number(s):

21/222148

Publication restriction:

Statutory non-publication of the identity of the victim.

remarks on sentence

1. The offender Mr Simon Jones stood trial from 6 February 2023 before a jury on an indictment containing four counts, although counts 1 and 2 were expressed in the alternative. On 14 February 2023 the jury found him not guilty of count 1 but guilty of alternative count 2 and also of counts 3 and 4. He therefore now stands for sentence on three offences which are as follows.

2. Count 2, which is an offence of intentionally sexually touching a child aged above 10 but under 16 years of age, that being an offence under s 66DB(a) of the Crimes Act 1900 which carries a maximum penalty of 10 years imprisonment.

3. Secondly, the count 3 offence which is one of providing a material benefit to a child under the age of 14 years with the intention of making it easier to procure the child for unlawful sexual activity, that being an offence under s 66EB(3) of the Crimes Act 1900 which carries a maximum penalty of 12 years imprisonment and in relation to which a standard non-parole period of five years is specified.

4. Thirdly, the count 4 offence which is one of having sexual intercourse with a child aged above 10 years but under 14 years, that being an offence under s 66C(1) of the Crimes Act 1900 which carries a maximum penalty of 16 years and in relation to which a standard non-parole period of seven years is specified.

5. The maximum penalties and where applicable standard non-parole period are of course important guideposts in the sentencing exercise to which I have had regard.

FACTS

6. The facts on which the offender is to be sentenced are for me to determine, however my findings must be consistent with the jury’s verdicts. Any matters in aggravation must be proved beyond reasonable doubt, while those in mitigation need only be proved on the balance of probabilities.

7. A suggested factual summary based on the evidence at trial was set out in the Crown written submissions. However, some of those suggested facts were contested at the sentence hearing when submissions were made on behalf of the offender. After considering all of the submissions I find the following facts.

8. The victim was born in March 2007. He was 13 years old at the time of each offence, while the offender at that time was 47 years of age. The offender lived in a one bedroom residence in Tregear. Prior to meeting the offender the victim was living variously with his mother, step-father and siblings but also spending some time living on the streets and also at times at a type of refuge. The victim came into contact with the offender after meeting the offender’s nephew in about October 2020, after this the victim began to stay at the offender’s residence. Essentially he would come and go but at times stay there for days at a time.

9. The count 2 sexual touching offence occurred when the victim was alone in the house with the offender. The victim had smoked some cannabis and fell asleep. He later woke up however to find that his clothes had been removed and he was laying on his back with the offender on top of him facing him and (to use the victim’s words) “fucking him”. By this the victim explained he meant that the offender, who was also naked, had his buttocks over the victim’s penis and was “going up and down” on the victim’s penis. While the victim told the offender to “get the fuck off him”, the offender persisted in this conduct for “a bit” before getting off the victim. The victim said that this went on for “probably 20 minutes”. While I am unable to conclude that the offending lasted that long, I am satisfied beyond reasonable doubt that it went on after the victim had awoken for at least several minutes.

10. While the victim described his own penis as being “inside” the offender’s anus, the jury’s not guilty verdict on count 1 means that it was not satisfied that there was any penetration of the offender’s anus. However I am satisfied beyond reasonable doubt based on the victim’s evidence, that the offence involved the offender manoeuvring his own body so as to bring the inside area of his buttocks and the outside of his anal area into contact with the victim’s penis, although without there being any penetration of the offender’s anus.

11. Turning then to count 3. This count is an offence of providing a material benefit, which in count 3 was particularised as being “financial support and housing”. In its written submissions on sentence the Crown pointed to evidence that the offender may have given cigarettes and money to the victim as well as accommodation. However, I note from p 260 of the trial transcript and from the elements document that was given to the jury, that it was only “accommodation” which the Crown ultimately relied upon as the “material benefit”. I intend therefore to approach the sentence on the basis that the benefit was accommodation only and not any of these other suggested benefits.

12. I am satisfied beyond reasonable doubt, as the jury clearly was, that in providing accommodation to the victim the offender did so with the intention of making it easier to procure him for unlawful sexual activity. In doing so the offender created a situation where he was able to be alone with the victim so as to make it easier to commit sexual offences against him. As part of this offence the offender took advantage of a relationship involving a level of trust.

13. The offence in count 4 is one of having sexual intercourse with a child aged above 10 but under 14 years of age. The offence occurred after the victim fell asleep in the lounge room. He awoke to find himself naked and face down on the offender’s bed. The offender’s arms were on the victim’s shoulders and the offender had his penis inside the victim’s anus. The victim tried to push the offender off him and, after threatening the offender, the victim eventually managed to make him stop, after which the victim got dressed and left the house. Those are the essential facts of the offences.

OBJECTIVE SERIOUSNESS

14. It is necessary of course that I make an assessment of the objective seriousness of the offences and in that regard I make the following comments and findings.

15. As is well known, sexual offending against children is regarded with extreme disgust in our community. In recent decades this has become particularly so because of the acceptance of how common and how damaging such offences are. The effects on victims of child sexual abuse are often life long and in many cases lead to significant psychological issues including anxiety, difficulty trusting others, a fractured sense of self-worth and often self‑blame, even when the victim, as in any case involving a child, is completely innocent of any blame at all. In keeping with the acceptance of the prevalence and seriousness of child sexual abuse, the Courts have acknowledged a change in community attitudes for such offences and have emphasised the need for serious punishment to be imposed. As was said by then President of the Court of Appeal Keith Mason in R v MJR (2002) 54 A Crim R 368, the pattern of increasing sentences for child sexual assault:

“has come about in response to greater understanding about the long term effects of child sexual abuse as well as by a considered judicial response to changing community attitudes”.

16. In assessing the objective seriousness of the offences before the Court one of the important factors is the nature of the sexual act involved, see R v PGM (2008) 187 A Crim R 152 at para 26.

17. Of course each case must be considered in light of its own facts and, while the nature of the sexual act is important, it is not the sole consideration. I need to take into account a range of factors, including how the offences took place, their character, the age difference between the victim and the offender, the duration of the offence and the effects on the victim where those are known. Generally speaking, the younger the child the more vulnerable and defenceless he or she will be and accordingly the more serious the criminality.

18. The count 2 sexual touching offence involved the offender rubbing his buttocks and anal region against the victim’s penis after removing the victim’s clothes and his own clothes while the victim was asleep. The offending commenced with the victim taking advantage of the fact that the victim was asleep. The touching continued for several minutes after the victim woke up and, in spite of the victim’s protests and attempts to have the offender stop. I accept however that the offending did not involve any gratuitous violence or threats. The sexual contact was skin on skin and obviously involved contact of a most intimate kind. There was a large age differential between the offender and the victim. The victim was aged 13 at the time and therefore about midway between the age band for this type of offence. I am also satisfied that the offence took place in what was effectively the victim’s home where he should have been entitled to be safe whilst sleeping.

19. It was argued by the offender that the residence ought not be regarded as being the victim’s home because he was not staying there at all times and would come and go. However, in my view this argument fails to acknowledge that the victim at the relevant time essentially had no stable accommodation, and although he did not stay at the offender’s house all of the time, he was in effect using it as a home at the time of this offence.

20. I also consider that this offence involved a breach of trust. I make this finding on the basis that, in addition to providing the victim with accommodation, the offender also took on a role akin to that of a carer, as confirmed in evidence from staff of the Casuarina school, which the victim at times attended. This included the offender at times providing transport to the victim, buying him clothes and cutting his hair.

21. Having regard to all of these matters I find that this offence lies comfortably above the mid-range of objective seriousness.

22. Turning to the objective seriousness of count 3. This offence of providing the material benefit of accommodation on an “as and when needed” basis, extended over a period of around four months, during which the offending in counts 2 and 4 occurred. As the Crown submitted, the offence was somewhat opportunistic in that the offender did not seek the victim out, but was introduced to him when his nephew brought him to the house. After that however, the offender exploited the opportunity by providing accommodation whenever it was needed by the victim. At the time of the offence the victim was aged 13 and therefore at the upper limit of the age range for this type of offence, while the offender was much older being about 47 years of age.

23. I have earlier referred to the concept of a breach of trust and I have specifically found that the count 2 offence involved a relationship of trust akin to that of carer which was breached. However in relation to the count 3 offence I have not taken this into account in assessing the objective seriousness of this offence, because this would, in my view, involve an element of double counting given that the count 3 offence involved the provision of care in the form of accommodation. I assess this offence as being slightly below the mid-range.

24. Turning then to the seriousness of count 4. This offence occurred in somewhat similar circumstances to count 2. The victim had fallen asleep and awoke to find that his clothes had been removed. The victim was face down on the offender’s bed and the offender was using his penis to penetrate the victim’s anus. The offending only stopped due to the victim struggling and making threats. I accept however that the offending did not involve any gratuitous violence or threats by the offender. The victim at the time was at the top of the age range for this type sexual intercourse offence and there was a very large age differential between he and the offender. The offence occurred in a place that in my view can be regarded in the circumstances as being the home of the victim, for reasons I have earlier set out.

25. Although there is no evidence that the offender ejaculated inside the victim’s anus, there is no suggestion that the offender used a condom, which increased the risk of disease. This offence also involved a breach of trust, again for reasons I have earlier set out. I regard this offence as being around the mid-range of objective seriousness.

SUBJECTIVE MATTERS

26. Turning then to subjective matters relating to the offender himself. He is now 49 years of age and will turn 50 on 16 September 2023. The offender’s subjective case has been placed before the Court by a substantial quantity of written material, including a number of psychological reports. That material indicates that the offender has a history of mental health issues including probably ADHD and depression and has average to low average cognitive skills. The material also notes that the offender has a history of problems with impulse control and that he has difficulty thinking through the consequences of his actions and tends to “act in the moment”.

27. The psychological report of Mr Hooper notes that the offender reported being sexually abused by a male family member between the ages of about 14 and 18. The psychologist notes that, when tested in 2022, the offender’s results were indicative of a severe mental health disorder in the form of major depression. However, after engaging with support provided under the National Disability Insurance Scheme prior to his incarceration post trial, the psychologist noted that the offender’s mental health had improved significantly. He predicts, however, that the offender will experience difficulties with his mental health in a custodial environment. As already noted, due to the offender’s intellectual difficulties he was in receipt of assistance from the NDIS.

28. Written material has been provided to the Court which indicates that the offender requires support every day in the form of welfare checks, training and reminders to assist him to function in the community. The written material, including the various psychological reports to which I have had regard, also confirms that the offender suffers anxiety and severe depression which affect his ability to learn and participate in the community and to make appropriate decisions.

BUGMY

29. Counsel for the offender sought to rely upon the principles discussed in Bugmy v The Queen (2013) 249 CLR 571 and pointed to the offender’s history of being a victim of childhood sexual abuse over some time. There is and can be no bright line test to distinguish “Bugmy cases” from “non-Bugmy cases.” While it seems to me that the evidence in this case does not support a finding of “profound” deprivation, the offender’s experience of trauma at the hand of his abuser as a child is a matter to which I have attached weight in the overall sentencing exercise.

REMORSE

30. The offender continues to deny his offending and so there is no remorse in this case. In terms of prospects of rehabilitation and future risk I make the following observations and findings.

31. Firstly, the offender denies his offences and so there is no insight as to how similar offending might be avoided in the future. Secondly and as already noted, the offender is a person with long term problems with impulse control. Thirdly, although assessed as a low medium risk on the LSI-R assessment tool, this was re-evaluated by Community Corrections to a high risk.

32. Having regard to these matters and to the offences and to the offender’s criminal history as well as all other material admitted in these proceedings, and in the absence of any effective treatment, it seems to me that the offender continues to present an appreciable risk of reoffending in the future.

MENTAL ILLNESS

33. In Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at para 177, the principles that apply when an offender is suffering from a mental illness were summarised by reference to five factors. Firstly, where the state of a person’s mental health contributes to the commission of an offence in a material way, the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence. In this matter it seems to me that the offender’s problems with impulse control were a significant contributor to the offending which reduces his moral culpability to some degree. Secondly, it may also have the consequence that an offender is an inappropriate vehicle for general deterrence, resulting in a reduction of the sentence which would otherwise have been imposed. In my view, while the extent to which the offender is an appropriate vehicle for the reflection of general deterrence is reduced to some degree this remains a relevant factor given the importance generally of deterring others from committing such offences against children.

34. Thirdly, it may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term of the conditions under which it is served may be reduced. I accept that in this matter the offender’s mental conditions are likely to make his time in custody more difficult than otherwise would be the case and in particular I accept that he may be vulnerable to exploitation and being bullied in custody. I also accept that he has serious fears about his safety in custody.

35. Fourthly, as discussed in De La Rosa, a person’s mental condition may reduce or eliminate the significance of specific deterrence. While the weight to be given to personal deterrence is reduced to some limited degree in this matter, I am of the view that personal, that is specific deterrence, remains a highly important factor given the offender’s criminal history and his difficulties with impulse control.

36. Fifthly as discussed in De La Rosa, conversely it may be that because of a person’s mental illness they present more of a danger to the community. In those circumstances considerations of specific deterrence may result in an increased sentence. I consider that this factor is deserving of significant weight in this sentencing exercise, because of the risk of reoffending which this offender will represent once returned to the community.

THE PANDEMIC

37. In determining the sentence I take it into account that part of the period already served in custody by the offender was during some of the more difficult aspects of the COVID pandemic, with its associated lockdowns, restrictions on access to visits and services and the fear of contracting the disease. I have also taken into account the risk that these sorts of restrictions may also arise in the future.

37. I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. I am satisfied that the threshold referred to in s 5 of that Act is passed, in that no sentence other than one of imprisonment is appropriate. I intend to impose an aggregate sentence given that there are three offences.

TOTALITY

39. Because there are three offences I need to have regard to totality principles so as to ensure that the final sentence acknowledges the overall criminality but is not inappropriately crushing or is one that involves double counting. In my view the sentence for count 3 ought to be in a notional sense largely concurrent with the sentence for the other two offences, given that the count 3 offence was committed in contemplation of providing the opportunities to commit the other two offences. However I consider that there needs to be a degree of notional accumulation in the sentences for counts 2 and 4, given that they represent two separate instances of serious criminal conduct.

DETERMINATION

40. The indicative sentences are as follows. For count 2, three years seven months imprisonment. For count 3, three years imprisonment and a non-parole period of two years. For count 4, three years 10 months imprisonment and a non-parole period of two years six months. I will announce the ultimate aggregate sentence in just a moment.

41. I have made a finding of special circumstances for adjusting the ratio between head sentence and non-parole period. I have made that finding based on the need for the offender to be supervised for a lengthy period after release on parole and also based on the difficulties I accept he is likely to experience in custody.

42. The aggregate sentence that I impose is a head sentence of four years nine months. I impose a non-parole period of three years two months. Each of those will date from 19 July 2022, so as to take account of time already served. The head sentence therefore will expire on 18 April 2027. The non-parole period will expire on 18 September 2025.

43. Mr Jones you will be eligible for release on parole on 18 September 2025 depending upon of course your behaviour in custody.

44. OFFENDER: Yes your Honour.

45. HIS HONOUR: Anything to raise about any of those orders?

46. O’MEARA: Nothing further your Honour.

47. MCMAHON: No your Honour.

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Decision last updated: 05 October 2023