R v JOW

[2017] NSWDC 201

District Court

New South Wales

Medium Neutral Citation:	R v JOW [2017] NSWDC 201
Hearing dates:	15 June 2017 and 21 June 2017
Decision date:	21 June 2017
Jurisdiction:	Criminal
Before:	Bright DCJ
Decision:	Sentenced to a non-parole period of 3 years and a balance of term of 3 years.
Catchwords:	CRIMINAL LAW – Sentence – rape – historical sexual assault.
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act, 1999
Cases Cited:	R v MJR [2002] NSWCCA 129 Magnuson v R [2013] NSWCCA 50 Woodward v R [2017] NSWCCA
Category:	Sentence
Parties:	The Crown JOW - Offender
Representation:	Counsel: Mr J Fitzgerald - Offender   Solicitors: Mr C Watsford – Crown
File Number(s):	2016/134306
Publication restriction:	Statutory non-publication order.

Judgment

1. The offender JOW (born 19 July 1950, 66 years) appears for sentence in relation to one count of rape (s63, Crimes Act 1900).

2. The indictment is in the following terms:

Between 27 April 1981 and 30 June 1981, at Holsworthy in the State of New South Wales, did rape GC.

3. The maximum prescribed penalty is life imprisonment.

4. The offender had pleaded guilty in the Newcastle Local Court. At the commencement of the Sentence proceedings on 15 June 2017, an indictment was presented in the District Court because of an error in relation to a date in the Court Attendance Notice.

5. Having regard to the plea being at the earliest opportunity I propose to allow a discount on sentence of 25%.

FACTS

6. The offender in this matter is JOW. The offender is the brother-in-law of the victim GC (nee GA) born 20 January 1967. At the time of the offence, she was aged 14 years.

7. In 1972, the offender married the victim's older sister CW (nee CA). The victim was 5 years old when the offender and her sister were married.

8. The offender and his wife CW had a baby son, JW on 23 May 1979.

9. The offender was an Officer in the Australian Army from January 1975 until he was discharged at the rank of Corporal in May 1999. Due to his position within the Army, the offender and his family frequently moved between states within Australia.

10. On 27 April 1981, the offender’s wife CW gave birth to a daughter Cassandra at the Royal Newcastle Hospital. Nine days prior to giving birth, the offender’s wife had her appendix removed and consequently had an extended stay in hospital to recover.

11. It was during this extended stay in hospital that the offender was redeployed from Adamstown Army Barracks to Holsworthy Army Barracks. The family was required to move at this time to a residence situated at 92 Derna Road Holsworthy.

12. During the first or second week of June in 1981, whilst the offender’s wife was still in hospital recovering, the offender sought assistance from the victim GC (nee GA) to babysit his son JW (aged about 2 years) whilst he moved the family’s belongings to the new home at 92 Derna Road Holsworthy.

13. The offender arranged for the victim to accompany himself and JW to Holsworthy. The victim would then babysit JW at Holsworthy whilst the offender unpacked.

14. Upon arrival at the Holsworthy house, the victim played with JW where she chased him around the house. After a period of time, the offender came inside the house where the victim was and joined in chasing the victim and JW around.

15. The offender chased the victim into the main bedroom of the house where he put the victim on the ground and started tickling her with his hands. The victim was lying on the ground on her back and the offender was on top of her on his hands and knees facing her.

16. The victim initially laughed but soon after realised the offender was making no attempt to get off her. The victim grew tired of the offender tickling her and said, "Get off me." The offender did not get off the victim but instead pulled his pants down exposing his erect penis. The offender pulled the victim’s shorts and underwear down and forced his penis inside her vagina. The offender proceeded to have non-consensual sexual intercourse with the victim.

17. The victim felt immediate pain and was scared. She was shocked at what the offender was doing to her and said, "Get off me, get off me, you're hurting me. I'm going to scream," at which time the offender removed his penis from the victim’s vagina.

18. After the offender removed his penis from the victim's vagina she felt a stinging sensation and upon going to the toilet, saw she was bleeding from her vagina. Later that day, the offender drove the victim home to Newcastle.

19. The victim disclosed to a number of close family members over the years what had occurred.

20. In March 2016, the offender’s daughter became aware of what the offender did to the victim. The offender’s daughter attended the police station and reported what the offender did to the victim.

21. The offender became aware his daughter had reported him to the police. The offender attended the Maitland Police Station on 30 March 2016 and participated in an ERISP interview where he made some admissions in relation to the offence.

22. The offender was again interviewed by police on 2 May 2016.

23. He was later charged.

GENERAL PRINCIPLES IN RELATION TO SENTENCING FOR HISTORIC OFFENCES.

24. In R v MJR [2002] NSWCCA 129 it was held that where sentencing practices has moved adversely to an offender it is necessary to have regard to the sentencing practices as at the date of the commission of the offence.

25. In Magnuson v R [2013] NSWCCA 50 the following principles were noted (at par. 86-88):

If such a pattern is unable to be discerned, the judge should commence the sentencing process in the usual way; that is, by reference to the maximum penalty, and the place in the range of objective gravity occupied by the offence: see Moon v R [2000] NSWCCA 534; (2000)117 A Crim R 497 at [66] – [71] per Howie J (with whom Fitzgerald JA agreed).

Even if a sentencing judge does take an established sentencing pattern into account, a failure adequately to reflect the principle and the relevant sentencing pattern may cause the sentence to be manifestly excessive, or otherwise erroneous: see RWB v R[2008] NSWCCA 93; (2008) 184 A Crim R 453 at [24] - [26].

If sentencing for offences committed at a time when the statutory ratio did not exist, sentencing judges should sentence in accordance with that fact: see AJB v R [2007] NSWCCA 51; (2007) 169 A Crim R 32 at [36] - [37] and Rosenstrauss v R [2012] NSWCCA 25 at [16].

Having said that, a court sentencing today with regard to old offences with regard to which a different sentencing pattern can be discerned must nevertheless bear in mind that, since 1974, it has been established that a non-parole period represents the minimum period of imprisonment required to be served by an offender having regard to all of the purposes of justice: Power v The Queen (1974) 131 CLR 623, referred to in AJB v R and many subsequent cases dealing with the principle under discussion.”

26. The question is whether a sentencing pattern can be established in relation to the offence of rape. I am satisfied that a general sentencing pattern can be established having regard to the statistics summarised in Magnuson v R at para 96-105.

27. In Magnuson v R, Button J concludes as follows:

“In short, for five reasons, I consider that it has been established that a pattern of sentencing for sexual offences against children in the latter half of the 1970s and the first half of the 1980s has been established.

Although it cannot be discerned with exactitude, I am satisfied that such sentences were shorter at the time than they are now; both with regard to offences founded upon sexual intercourse, and also with regard to offences of indecent assault and the like.

I also think it likely that the overall range of non-parole periods for offences that were prosecuted as rape before 1981 has increased. However, I am not satisfied that sentences for rape committed against children before 1981 were shorter than sentences imposed nowadays for sexual intercourse without consent with children founded on penile vaginal intercourse, whether as to head sentence or non-parole period.”

28. Also, the Crown has provided relevant sentencing statistics from 1976-1978 (see EXH B) and Mr Fitzgerald on behalf of the offender has provided a summary of cases (see EXH 3). Of particular assistance is the summary of Donovan NSWCCA 24 July 1980. For the offence of rape the appellant had received a total term of 10 years and a non-parole period of 4 years and 6 months. It was noted in the summary that the appellant was mildly retarded. The facts of that case were as follows:

Donovan was at home alone with a 12 year old child he had known since he was a baby. He was drunk at the time he forced her to have sexual intercourse. She suffered no tissue damage. Aged 46, a mechanic with a satisfactory work record, he had 5 alcohol induced entries on his record and a suspended sentence in 1958 for assaulting a female. He had never been imprisoned. The CCA found the sentence at the very top of the discretionary range but it did not exceed it and the appeal was dismissed.

29. The penalty for the offence of rape at the time of this offence was penal servitude for life. In Magnuson v R at [125] Button J referred to the modern analogue of such an offence committed against a person under the age of 16 years as the offence of aggravated sexual intercourse without consent (s61J (1), Crimes Act) for which the prescribed maximum penalty is 20 years imprisonment with a prescribed standard non-parole period of 10 years.

OBJECTIVE SERIOUSNESS

30. In assessing the objective seriousness I have had regard to the following matters:

1. The age of the complainant at the time, namely 14 years;

2. The disparity of age between the offender and the complainant, the offender being 30 years old at the time;

3. The type of intercourse being penile/vaginal; and

4. The sexual intercourse caused immediate pain to the complainant and caused bleeding.

31. In Woodward v R [2017] NSWCCA Hulme J outlined the broad range of conduct encompassed by the crime of rape before 14 July 1981. He stated as follows [at 97]:

“The crime of rape pre-14 July 1981 (being confined to penile/vaginal intercourse) was one that encompassed a much narrower range of sexually penetrative conduct than was later encompassed in the various forms of offences of sexual intercourse without consent. But the circumstances in which the offence could be committed varied widely. A victim could be anyone from a young female child to a mature or elderly woman. There might be no physical violence beyond the intercourse itself or there could be the infliction of extreme physical injury. The offence could be committed alone or by a gang of offenders. In relation to child victims, the perpetrator could be a stranger or could be a trusted friend or relative, even a close family member in a position of trust. The permutations were almost infinite.”

32. Having regard to the broad range of conduct that fell within an offence of rape I am satisfied that the offending in this matter is properly characterised as being just below the middle of the range of objective seriousness.

AGGRAVATING FEATURES

33. The Crown relies upon the following aggravating features:

1. The complainant was under the authority of the offender in circumstances where she was babysitting for him.

2. The offence occurred in the home. Whilst it was not the complainant’s home she was invited into the home of the offender and she was entitled to expect that it was a place of safety.

34. I am satisfied that both of these aggravating features are established.

35. To violate the complainant’s expectations of safety and security and to treat the complainant in this way when she was a relative of his and in his house at his request in order to provide babysitting services is particularly reprehensible.

36. The courts have repeatedly emphasised the need for stern sentences to be imposed when adults conduct themselves in such a reprehensible way with respect to children.

37. The purposes for which a court imposes a sentence include to ensure the offender is adequately punished for the offending; to deter others from committing similar offences and to denounce such conduct of the offender (see 3A((a)(b) and (f), Crimes (Sentencing Procedure) Act, 1999).

VICTIM IMPACT STATEMENT

38. A Victim Impact Statement was prepared by GC and tendered by the Crown (see EXH A).

39. GC described how the offence has impacted on her relationship with her husband; has constrained her ability throughout her life to interact with her family because she sought to avoid the offender; and has ultimately caused her to have a breakdown. She separated from her husband which she also attributes to the offending and effect upon her ability to engage intimately. The impact of the offending continues to impact on her day to day life some 36 years later because the family situation continues to be strained.

40. One of the purposes for which a court also imposes a sentence is to recognise the harm done to the victim of the crime (see s3A(g), Crimes (Sentencing Procedure) Act, 1999)

SUBJECTIVE CIRCUMSTANCES

41. The offender is now 66 years old.

42. He has no criminal convictions. He is entitled to some leniency on sentence.

43. The following material was tendered on sentence on behalf of the offender.

1. Report prepared by Dr Katie SIEDLER, Psychologist dated 2 June 2017.

2. Medical Summary prepared by Dr Chris STARLING dated 5 June 2017.

44. The offender’s background is set out in the psychologist report (EXH 1)

45. The offender was born in Australia and is one of five children. His family was stable financially and he described his childhood as “fantastic.” He enjoyed stable and positive attachments with all his family.

46. He describes himself as hating school and as not academically inclined. He left school at age 15 years. He enlisted in the Army when he was 24 years old. He did not see any active service in the Army and decided to discharge in 1999 because of the changes that had occurred within the Army.

47. After leaving the Army he owned and operated a book store with his wife. He also worked as a civilian in the Army. Most recently he worked for Australia Post. He retired in April 2016 because of this offence and also because of his health.

MEDICAL HISTORY

48. The offender suffers from osteoarthritis in his left leg. He underwent a medical procedure on his right leg and understands he will require further surgical intervention. He continues to experience pain in this leg.

49. He has sustained bilateral hearing loss from his work in the Army and he wears hearing aids.

50. He was diagnosed with hypertension 8 years ago and takes medication.

51. He is also taking Zoloft (antidepressant) prescribed by his GP on the advice of his treating psychologist.

52. He has no drug or alcohol issues.

SOCIAL FUNCTION

53. The offender told the psychologist that since being charged with the offence he has isolated himself from friends or has been rejected by people on the basis of the offending behaviour.

54. He acknowledged feeling lonely and isolated. He is still with his wife of over 40 years, however he is concerned she will leave him if he is incarcerated.

55. He has a son (31 years) who lives with him and his wife. He has a daughter (35 years) with whom he has contact only on rare occasions.

56. He is at the stage in his life where he does not have any sex drive. He did not endorse any paedophilic or hebephilic sexual interests at any time.

57. In relation to the offender’s insight into his offending the psychologist noted as follows:

Mr JOW demonstrated a rather confused and antiquated view on consent and sexual boundaries. He suggested that the Laws around the concept of consent only applies to female and he could not identify why our society may have laws governing consent and the sexual behaviour of underage children. Mr JOW did not endorse attitudes specific to sexual abuse, although his thinking in this domain was unsophisticated and problematic. Even so, Mr JOW did express some understanding of the possible impact of sexual abuse on victims, which he primarily attributed to witnessing the ramifications of his abuse on the victim over the years since the offence occurred.

58. Whilst speaking to the psychologist the offender indicated that he could not identify his motivations in offending and he claimed he could not recall his thinking at the time.

59. In the opinion of the psychologist the offender’s behaviour was “probably precipitated by selfishness and impulsivity, in addition to some confused ideas about sex and sexual boundaries.”

60. In the psychologist’s opinion he expressed seemingly genuine regret and remorse. He also expressed empathy for his victim.

PSYCHOLOGICAL ASSESSMENT

61. The offender began to suffer with symptoms of depressed mood several years ago. He told the psychologist that his mood had lifted as a result of medication and therapy. His mood however remains negative and he is worried about his wife should he be incarcerated.

62. The offender began consulting clinical psychologist Ms Grainger about 9 months ago in relation to his depressed mood. He saw Ms Grainger on a monthly basis for 10 sessions.

PSYCHIATRIC ASSESSMENT

63. Assessment indicated that the offender has considerable cognitive and concentration difficulties as well as high levels of emotional distress and dysphoric mood.

64. It also found the offender likely to be pessimistic and negative and to suffer poor self-esteem, in addition to experiencing transient thoughts of self-harm.

65. The assessment also identified that the offender is motivated for psychological treatment.

RISK ASSESSMENT

66. The offender was assessed in the very low category of re-offending (Static-99R) and in the low risk category using the Risk for Sexual Violence Protocol.

67. I am satisfied that the offender is at very low risk of re-offending having regard to the risk assessment, the lengthy period of time since the offending and his advanced years.

MEDICAL HISTORY

68. The offender’s current medical conditions are summarised in EXH 2.

69. He suffers from glycaemia, mild thrombocytopaenia, sleep apnea, osteoarthritis, hearing impairment, hypertension, hypercholesterolemia and gastroesoppphageal reflux. He is currently medicated for those conditions.

70. I am satisfied that the age and health of the offender will make his time in custody more onerous and I propose to take that into account when determining the appropriate sentence.

71. Mr Fitzgerald on behalf of the offender relied upon the following mitigating features:

1. The offence was not planned or organised. I am satisfied that the offence was spontaneous.

2. The offender has no prior convictions

3. The offender is unlikely to reoffend

4. The offender has good prospects of rehabilitation.

PROSPECTS OF REHABILITATION

72. I am satisfied the offender has good prospects of rehabilitation having regard to his age, the absence of any other criminal convictions and the lengthy period that has passed since the commission of the offence.

73. I am satisfied he is unlikely to re-offend.

SPECIAL CIRCUMSTANCES

74. Mr Fitzgerald submitted on behalf of the offender that I would find special circumstances given it is the offender’s first time in custody and upon release he will need assistance to reintegrate into society.

75. I am satisfied that special circumstances exist and I propose to vary the statutory ratio (s44(2) Crimes (Sentencing Procedure) Act).

REMORSE

76. The offender has not given evidence of remorse, however, I accept the opinion of the psychologist that he expressed seemingly genuine regret and remorse.

DETERMINATION

77. In determining the appropriate sentence, I have had regard to the purposes of sentencing as set out in s3A, Crimes (Sentencing Procedure) Act, 1999.

78. Having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate (s5(1), Crimes (Sentencing Procedure) Act, 1999.

79. I have had regard to the maximum penalty and the sentencing patterns at the time of the offending.

80. Stand up please Mr JOW.

77. In relation to one count of rape you are convicted.

78. I sentence you to a non-parole period of 3 years to date from 21 June 2017, expiring 20 June 2020 with a balance of term of 3 years to date from 21 June 2020 expiring 20/6/2023.

79. The earliest date upon which you will be eligible for parole is 20 June 2020.

80. The starting point for that sentence was 8 years which I have discounted by 25%.

81. Copies of Exhibit 1 and Exhibit 2 to follow the warrant.

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Decision last updated: 08 August 2017