R v JV

[2020] NSWDC 62

District Court

New South Wales

Medium Neutral Citation:	R v JV [2020] NSWDC 62
Hearing dates:	06 February 2020
Date of orders:	06 February 2020
Decision date:	06 February 2020
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	An aggregate term of imprisonment of 5 years, with a non-parole period of 3 years: at [34].
Catchwords:	CRIME — Child sex offences — Sexual intercourse with child >10 <14 CRIME — Sexual offences — Indecent assault CRIME — Child sex offences — Child abuse material SENTENCING — Aggravating factors — Vulnerable victim — Breach of trust — Multiple victims SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Non-parole period — Standard non-parole period SENTENCING — Relevant factors on sentence — Deterrence — Form 1 offences — General principles — Moral culpability — Multiple offences SENTENCING — Subjective considerations on sentence — Special circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 Imbornone v R [2017] NSWCCA 144 R v Hudson (unreported, 30 July 1998, NSWCCA) R v Qutami (2001) 127 A Crim R 369 R v Thomas [2007] NSWCCA 26
Texts Cited:	Nil
Category:	Sentence
Parties:	Regina (Crown)   JV (Offender)
Representation:	Ms Keay (Crown Prosecutor)   Mr Thomas (Counsel for the offender)
File Number(s):	19/47556; 19/66120; 19/135713; 19/323677
Publication restriction:	STATUTORY NON PUBLICATION APPLIESSection 578A Crimes Act 1900 (any matter that may identify the complainant(s)) and s 15A Children (Criminal Proceedings) Act 1987 (identification of any minor witness(es))

Judgment

1. JV is aged 51 years and he appears for sentence having pleaded guilty at an early stage to a number of sexual offences involving young girls. The Crown concedes that he is entitled to a 25% discount for the utilitarian value of the early pleas. It is conceded by Mr Thomas, counsel for the offender, that a period of full‑time custody is required and it is unnecessary for me to consider any alternatives.

2. It is agreed that his term of imprisonment should commence on 27 February 2019 to take into account the fact that he has been in continuous custody since that date.

3. The evidence in the case is the material contained in the Crown bundle being the agreed facts the offender’s record, a victim’s impact statement and a Sentence Assessment Report. Somewhat unusually in a case such as this, there is no subjective material proffered by the offender.

4. The history given to the author of the Sentence Assessment Report has not been adopted or tested in cross‑examination and is treated with the caution that is indicated by cases such as Imbornone v R [2017] NSWCCA 144 and R v Qutami (2001) 127 A Crim R 369.

5. Prior to the offences which commenced in 2011 JV had no criminal record in New South Wales. The offender has pleaded guilty to the following offences:

1. Aggravated indecent assault contrary to s 61N(2) of the Crimes Act 1900, involving AG, aged 10-11 at the time of offence. The offence carries a maximum penalty of ten years imprisonment with a non-parole period of 8 years: H70662512/004.

2. Sexual intercourse with a child between ten to 14 years contrary to s 66C(1) Crimes Act 1900, involving OV, aged 11-12 years at the time of the offence. The offence carries a maximum penalty of 16 years imprisonment of and non-parole period of 7 years:H70883842/005

3. Intentionally sexually touch child under 16 years contrary to s 66DB(a) Crimes Act 1900, involving AC, aged 12 at the time of the offence, The offence carries a maximum penalty of ten years imprisonment with no standard non-parole period: H69947422/001

4. Possess child abuse material contrary to s 91H(2) Crimes Act 1900. The offence carries a maximum penalty of ten years imprisonment with no standard non-parole period: H141800802/001

6. There are three matters to dealt with on a Form 1:

1. Attached to H70662512/004, is sequence H70682512/003, an offence of aggravated indecent assault involving AG, contrary to s 61M(2) Crimes Act 1900; and

2. Attached to H70883842/001 are sequences H70883842/003 and H70883842/005, two offences of aggravated indecent assault involving OV, contrary to s 61M(2) Crimes Act 1900.

These matters are to be dealt with the way suggested by the Chief Justice in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146.

Agreed Facts

Offences against AG

7. The first victim in time, AG, is the offender’s step‑daughter. He and the victim’s mother, LW, commenced a relationship in 2003. JV and LW were married in 2006 and lived at Harrington Park. One morning during 2011 at about 9am the victim, who was then 11 years of age, woke up and went into the room occupied by her mother and the offender and sat on the bed with the offender and OV. Her mother got up and had a shower, OV left the room shortly after. A couple of minutes later the offender moved over to where OV had been sitting before she left the room. The offender rubbed her on the vagina over her pyjamas using his fingers and palms for a couple of seconds. She went to walk away and he grabbed her and said “Don’t tell mum, this is our little game”. She had a sick feeling in her belly.

8. The count on a Form One involving AG relates to an incident on 7 November 2011, when the victim and the offender were playing in a pool. She was at home on a pupil free day. While they were playing the offender went to poke AG in the belly. He then moved his hand down and rubbed her on the vagina for a couple of seconds over her swimming costume. She swam away quickly and got out of the pool. She had the same sick feeling in her belly.

9. In November 2011 she disclosed these incidents to her teacher after being told about inappropriate touching in a PDHPE class at school. She said,

“My step-dad has been touching me when my mum was not around… Wen I’m in the pool he grabs me and touches me here (indicatied her breast and her vagina area). When Mum is in the shower he touches me on the vagina. It’s outside my undies.”

10. Ms Thomas, the teacher, reported it to the Principal and the mother was called and the matter was reported to Police. The mother confronted him about the allegations and said;

“AG’s just told the Principal you’ve been touching her, no more of your bullshit stories, I want to know whether it’s true or not?”

11. He started crying and said “Yes”. AG provided a statement to the police the next day saying that she wanted to take no further action. After this the offender and LW separated and LW took full custody of the children.

12. Between 21 November 2011 and January 2013 the offender had 16 sessions of treatment from a counsellor specialising in sexualised behaviour. The offender disclosed to the counsellor that he had touched AG on the vagina while in the pool.

Offences against AC

13. The offence involving AC occurred when she was about 12 years of age. She had stayed at the offender’s house on a few occasions and during the school holidays in January 2019. the offender took AC, OV and his other daughter, RV, on a trip to Wollongong and Sydney. They were staying at a hotel at Casula and at 1.30am on 28 January AC was awake in bed playing on her phone wearing a bra and shorts. OV was asleep next to her in the bed. The offender was having a shower, he came out of the shower wearing only his towel and took the towel off and walked towards the bed and got on his knees and began rubbing her on the right thigh. He put his other hand on her hip on top of her underwear and then he kissed the victim on her inner thigh. She asked him to stop. She looked towards OV and put his fingers to his lips and said “Shh” and he stopped and whispered “sorry”. AC was awake most of the night shaking with fear. She sent a message at 1.38am to her friend LD on Snapchat which said;

“My friends house and something just happened. So her dad was walking around naked and to make me look at his dick. Them he grabbed my thigh and started rubbing. Then he started kissing it. Then he started kissing my waist and I said just stop. And then he whispered in my ear I’m sorry. And now I’m so fucking scared. I can’t sleep and I’m shaking like crazy.”

14. She woke OV up and told her what had happened. OV said “That’s not true, that didn’t happen” and eventually OV believed her and she said “I didn’t think my dad would do that”.

15. When they arrived home the next day the victim told her mother;

“JV had just got out of the shower and came over next to me and rubbed my leg and started kissing my leg and up on my stomach. I told him to stop and he stopped but then he turned around did a ‘Shh’ motion to me.”

16. Her parents reported it to Police. OV also participated in an interview at this time but she did not disclose any offences. He was arrested on 12 February and denied the offences in an interview.

Offences against OV

17. The third victim, OV is the offender’s biological daughter with LW. She had been living with JV for a couple of months at the time of the offending. In early 2018 she was sitting on the couch watching TV, he came over and began touching her on her thighs with his hands. She said “What are you doing?” He said “Everything’s going to be okay”. He began kissing the inside of her thighs, which is the subject of the indecent assault. He took off his underpants, took her underpants off and rubbed his penis inside her vagina. She said “Stop” and he used his hands to hold her down on the thighs. She again asked him to stop and he got up and he went to the bathroom.

18. There is another aggravated indecent assault relating to another occasion in 2018 when she was in her bedroom living on her stomach and he came in and began climbing on top of her and sat on her thighs and rubbed a penis on her bottom over her clothing. She asked him to stop and he got up and left. She was 11 or 12 at this stage.

19. On 18 February 2019 OV was travelling with her mother, LW, to Goulburn to collect her belongings from the offender’s house and she began crying and she said “Dad broke my heart” and LW asked “Has he hurt you?” and OV replied “Yes”. LW said “What happened, did he try and have sex with you” and she said “He tried”. LW reported it to the Police. OV participated in a further interview, and she said that she had not told them about it in her first interview because she was not in the right state of mind and she was worried she would get into trouble.

20. The offender was arrested again on 20 February 2019 and he declined an interview.

21. On 1 May 2019 he was arrested in relation to the offences against AG. In an interview then he said he’s got nothing to say in relation to the assaults against AG. He admitted seeing the counsellor twice a week but could not remember what he had discussed with him. He said that he knows that he should be punished for OV but he did not think he should be punished for the offences upon AC and AG because he said he did not do anything.

22. As to the child pornography offence his phone was seized during his arrest and forensically examined. The phone contained a number of images of young girls between the age of seven and 15 years engaged in various sexual activity. A number of those images were characterised as child abuse material and a further examination revealed that he had accessed 23 videos on various pornographic websites. When shown those images later on he said he had never seen them before. He said he had never looked up child pornography on his mobile phone and had never visited any of the websites that were listed.

Victim Impact Statement

23. The victim’s impact statement from AC is taken into account in the way suggested by Basten JA in R v Thomas [2007] NSWCCA 26. Although it has not been tested or adopted, it is an unsurprising description of the graphic effects upon a young girl of this type of offending and the long-lasting trauma that she suffers as a result of the offending.

Subjective case

24. As I have indicated the bare subjective case is contained in a Sentence Assessment Report which indicates that he has not disclosed his offending to his mother in New Zealand. He had been employed in the security industry before his incarceration and had a consistent history of employment since leaving school. As I have said there was no time in custody served before this, but he has a minor record of driving offences and an offensive behaviour offence in 2018 for which he was fined.

25. He appeared to minimise his actions, and did not assume responsibility for offences against one of the victims. He had difficulty discussing them and declined to provide any details. No satisfactory explanation was provided for any of the offending, not that there could be.

26. Recommendations were made for sexual offending counselling on his ultimate release. He was assessed as being at a medium to low risk of reoffending.

27. As the Crown accurately points out there is no evidence upon which I could make a finding that his prospects of rehabilitation are reasonable. There is no evidence of remorse or acceptance of responsibility or an understanding of the seriousness of the offences other than by the mere pleas of guilty. The fact that the first offences in 2011, were reported and were the subject of counselling, but he continued to offend against young children some years later shows, as the Crown described it in submissions, that he had an entrenched sexual attraction to young girls and a particular interest in child sexual offences within families and that it is not a matter on which I need psychological or psychiatric evidence.

28. The Courts have long recognised the ongoing and significant harm done to children who are sexually abused. Sexual offences against children are regarded very seriously by sentencing courts and attract a particular need for specific and general deterrence, and condign punishment reflecting the communities understanding of the long term effects of childhood trauma.

29. As the Court said in R v Hudson (unreported, 30 July 1998, NSWCCA),

“…children in a family situation are virtually helpless against sexual attack by the male parent ... children have a right to be protected from sexual molestation within the family and … this can only be achieved by the courts imposing sentences of a salutary nature.”

30. The salient features of these cases accurately identified by the Crown are not challenged by Mr Thomas are that there were three children victims involving separate acts of criminality; two victims were subject to two occasions of abuse; the offences occurred over a significant period of time; the offences continued after the first set of offences involving AG were reported, and counselling was provided; all of the offences involved a breach of trust, but the breach of trust involving his step‑daughter and his natural daughter are especially a grievous, and notwithstanding Mr Thomas’s submissions that the aggravated indecent assault from the touching are below mid-range I accept the Crown’s submissions that each of the offences are around mid-range of objective seriousness.

31. As to the child pornography offence, the possession of child abuse material is an offence arising from the sexual exploitation of children and attracts a greater need for general deterrence. There are a number of factors that have to be taken into account, including that the images on his phone were images of actual children engaged in sexual acts, there are images of penetrative offences, there were images of 15 girls engaged in sexual acts and sexual posing and the file names reflect offences involving family members including acts between father and daughter or step‑daughter.

32. Mr Thomas’ submissions are in the form of written points which summarise the chronology and the uncontested facts to which I have referred. Mr Thomas addresses the objective seriousness of each case by simply reciting some of the facts to which I have already referred. He notes there was some overlap between H70883842/001 and H70883842/005 as they both occurred during the same incident. He acknowledges the high moral culpability. As I said I reject the submissions about the insight into his offending in the absence of any satisfactory evidence on that issue. He acknowledges the need for general and specific deterrence, asserting that specific deterrence is tied to the question of rehabilitation but, as I have said, there is no satisfactory evidence as to the prospects of rehabilitation.

33. In terms of mitigating features on sentence under s 21A of the Crimes (Sentencing Procedure) Act 1999, the factors to which I have referred, primarily the plea of guilty; the absence of a substantive record are noted and Mr Thomas points to the fact that this is his first period in full‑time custody and there would presumably be a need for an extended period of supervision in support of the finding of special circumstances. He acknowledges that an appropriate sentence is an aggregate term of imprisonment.

34. The orders that I make are:

1. The offender is convicted of each offence.

2. The indicative sentences are:

1. H70662512/003, taking into account the Form 1 matters (H70662512/003): 18 months; NPP 1 year

2. H70883842/001, taking into account the Form 1 matters (H70883842/003, H70883842/005): 3 years, 6 months; NPP 2 years, 3 months

3. H69947422/001: 18 months

4. H141800802/001: 18 months

3. I impose an aggregate sentence of imprisonment of 5 years, to commence on 27 February 2019.

4. I impose a non-parole period of 3 years, expiring on 26 February 2022.

5. I find special circumstances.

Note – These extempore remarks were revised without access to the court file.

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Decision last updated: 26 March 2020