R v LW

[2021] NSWDC 233

District Court

New South Wales

Medium Neutral Citation:

R v LW [2021] NSWDC 233

Hearing dates:

30 April 2021

Date of orders:

4 June 2021

Decision date:

04 June 2021

Jurisdiction:

Criminal

Before:

Lerve DCJ

Decision:

Sentenced to an aggregate term of imprisonment – see paragraphs [72] – [77]

Catchwords:

CRIME – sentencing – aggravated sexual intercourse without consent – breach of ADVO – no hierarchy of sexual offences – genuine remorse

Legislation Cited:

Crimes Act, 1900

Criminal Procedure Act, 1986

Crimes (Domestic and Personal Violence) Act, 2007

Crimes (Sentencing Procedure) Act, 1999

Cases Cited:

Bugmy v The Queen [2013] HCA 37

Jolly v R [2013] NSWCCA 76

R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434

R v Tuala [2015] NSWCCA 8

Category:

Sentence

Parties:

Regina
LW (the Offender)

Representation:

Counsel:
Mr M Pincott for the Crown
Ms C Mendes for the Offender

File Number(s):

2020/19753

Publication restriction:

No publication of the name of the complainant or anything that may tend to identify them.

Judgment

1. The offender appeared before a Magistrate at the Wagga Wagga Local Court on 14 October 2020 and pleaded guilty to two substantive matters on H281049997, namely:

1. Sequence 3: That (he) on 16 January 2020 at Glenfield Park in the State of New South Wales did have sexual intercourse with [the victim] without her consent and knowing that she was not consenting to the sexual intercourse in circumstances of aggravation (namely) that at the time of the offence [the victim] was under the authority of LW by reason of LW being the biological father of [the victim], contrary to s 61J of the Crimes Act, 1900; and further

2. Sequence 4: That (he) on 16 January 2020 at Glenfield Park in the State of New South Wales did have sexual intercourse with [the victim] without her consent and knowing that she was not consenting to the sexual intercourse in circumstances of aggravation (namely) that at the time of the offence [the victim] was under the authority of LW by reason of LW being the biological father of [the victim], contrary to s 61J of the Crimes Act, 1900.

2. Both offences arise out of the one ongoing episode of conduct.

3. It is uncontroversial that the offender pleaded guilty at an early opportunity and that he is entitled to the full 25% discount for the utilitarian value of the plea of guilty.

4. The maximum penalty for each of the substantive offences to which the offender has pleaded guilty is 20 years imprisonment. Parliament has specified a standard non-parole period of 10 years in respect of each of the offences.

5. In addition, attaching to a Form 1 is one charge of what is shortly known as Sexual Touching, contrary to s 61KB(1)(a) of the Crimes Act. There is attaching to a Certificate pursuant to s 166 of the Criminal Procedure Act, 1986 a charge of what is shortly known as Contravene Domestic Violence Order contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act, 2007. The offender pleaded guilty to this charge. I indicated at the sentence hearing that I would deal with the matter attaching to the s 166 Certificate pursuant to s 10A of the Crimes (Sentencing Procedure) Act, 1999. Neither counsel dissented from that suggestion. The Sexual Touching offence on the Form 1 was part of the ongoing course of conduct and occurred immediately before the first of the two substantive matters for which the offender appears for sentence.

Facts

6. The facts are before the court by way of a Statement of Agreed Facts. For the purpose of proceeding to sentence I find the following established beyond reasonable doubt.

7. The victim is the biological daughter of the offender and in order to preserve her anonymity - and not meaning to depersonalise her - I will refer to her as the victim. The victim was 17 years of age at the time of the offending and the offender 36 years of age. At the time of the offending there was an enforceable Domestic Violence Order in place for the protection of the victim’s mother and by operation of the relevant statute also the victim. The order was in mandatory terms that he not assault, molest, harass, threaten, interfere with or stalk the protected person and further that he not approach within 12 hours of consuming alcohol or drugs.

8. At about 6pm on the evening of Wednesday 15 January 2020 the victim went to the home of her cousin in a suburb of Wagga Wagga. The offender had been staying at this address. The victim, her cousin and the offender socialised and had a meal before the victim and a cousin went to a nearby shopping centre to purchase a bottle of low alcohol wine and some food and returned home. The offender meanwhile went to nearby licensed premises.

9. At about 8.30 pm the offender returned and had with him four longnecks of Great Northern beer and drank with the victim and her cousin. This constitutes the Breach of the Domestic Violence Order attaching to the s 166 Certificate. At some stage the offender went to the shopping centre and purchased more wine at the victim’s request.

10. The offender, the victim and her cousin sat and drank alcohol, listened to music and talked until around 2am. The offender, victim and her cousin all consumed alcohol and had some food.

11. The victim walked into the offender’s bedroom to heckle him about a bet. They joked and he agreed to $50. The offender was on top of the covers wearing pants and no shirt. The victim was wearing black tights, blue t-shirt and black jumper.

12. The offender asked the victim for a hug. The victim lay next to the offender and gave him a hug. The offender said, “I haven’t had a cuddle like this in a while”. The victim attempted to get off the bed but was unable to do so as the offender had his arm around her stomach.

13. The offender pulled the victim towards him and kissed her on the mouth. This constitutes the sexual touching offence on the Form 1 document. The victim attempted to pull away but the offender continued kissing her on the mouth. The offender said, “come here, I can make you feel good”. He then placed his right hand on the victim’s stomach, rubbing his hand down her body and under her clothing into her pants and underpants. The victim felt the offender rubbing her clitoris. The offender said, “I can make you feel good” and the victim replied, “Stop, stop”.

14. The offender got onto his knees and pulled the victim’s pants and underpants off and licked her vagina for a brief period. The offender said, “You don’t like that?” The victim again said “stop”. This constitutes the first of the two offences of Aggravated Sexual Assault for which the offender appears for sentence.

15. The offender then removed his own pants and underpants, positioned himself over the top of the victim and pulled both her legs apart. He then inserted his penis inside the victim’s vagina and pushed back and forth. The complainant felt pain in her vagina and said, “Stop, stop, please stop”. This constitutes the second offence of Aggravated Sexual Assault.

16. The offender moved away from the victim, put the victim’s pants back on her and lay next to her. He cuddled her and she cried and attempted to push away the offender. She left the room and went to the room where her cousin was sleeping.

17. The offender went to that room and attempted to gain entry but was prevented from doing so by the victim sitting behind the door preventing it from opening. The victim used her mobile phone to contact her mother and then an aunt, both of whom failed to answer. The offender said through the door, “I’m sorry” and “It was just a dream go to sleep”. The victim told the offender that if he did not leave her alone she would call the police.

18. The victim rang her grandfather who came to collect her. Her cousin walked her to the front door. The victim complained to her grandfather as to what had occurred. When they arrived at the grandfather’s home the police and the victim’s mother were contacted. The victim was taken to the local Base Hospital where a Sexual Assault Investigation Kit was completed. Subsequent analysis revealed a “Y” DNA match to the offender from the low vaginal swab.

19. The offender was arrested on 20 January 2020 after alighting from the XPT train at Coffs Harbour. The offender left his vehicle at the address in Wagga Wagga where the offending occurred, travelled to Albury and thereafter booked a train from Albury to Coffs Harbour in a cousin’s name. The offender declined to be interviewed.

20. It is accepted by both parties that the sentence should commence on 20 January 2020 from which date the offender has been in custody solely referable to these matters.

Assessment

21. Ms Mendes in her written submissions (MFI 1 on sentence) at paragraph 5(a) concedes that the breach of trust is significant. On this issue, while the statutory factor of aggravation within s 21A(2)(k) is made out, this will have no practical impact on the sentence given the elements of the offences to which the offender has pleaded guilty. To make further allowance for a breach of trust would be double counting.

22. The offending was unplanned and opportunistic. However, the offending continued after the offender had been told to stop. The offender was subject to a Domestic Violence Order. There is no evidence that the offender ejaculated. Counsel for the offender submitted that the offending was below mid-range but in oral submissions put that while it was below mid-range it was not markedly below mid-range. The Crown Prosecutor in brief written submissions put that the offending was mid-range.

23. The first offence is cunnilingus and the second in penile/vaginal. Simpson J (as her Honour then was) said in R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 at [24]:

“It is not possible to create some kind of hierarchy of the seriousness of the various kinds of sexual intercourse contemplated by s 66A and defined by s 61H. It is the facts and circumstances of each case including the nature of the intercourse that makes the proper evaluation of objective seriousness”.

24. In Jolly v R [2013] NSWCCA 76 Bellew J (Hoeben CJ at CL, Slattery J agreeing) said at [72]:

“…The nature of the sexual intercourse which occurs in offending of this nature should not be considered in isolation, and then ranked in some form of hierarchy (see R v King [2009] NSWCCA 117 at [36] per McClellan CJ at CL).”

25. Although these authorities deal with offending contrary to s 66A of the Crimes Act, the basic principle of there being no kind of hierarchy of sexual offending has a much broader application.

26. Ms Mendes in a couple of places within the written submissions (see for e.g. paragraph 5(c) and 5(m)) puts that the offender desisted after the victim said “stop”. Counsel explained in oral submissions that those submissions were directed to the fact that the sexual conduct did not go to “finality” meaning ejaculation, which would have involved further humiliation and degradation to the victim.

27. The Crown submitted orally that the offender should have desisted after the rubbing of the clitoris. That submission is certainly made good.

28. Taking the facts and the various matters to which I have referred I am of the opinion that the sexual offending is within the mid-range of seriousness with the count involving cunnilingus being slightly less serious than the count involving the penile/vaginal penetration.

29. As with all sexual offending there is an element of general deterrence to be addressed in the sentencing exercise.

Criminal History

30. The offender was born in November 1982 and accordingly is now 38 years of age. He has been convicted of Common Assault, Resist Police, Damage to Property, Stalk/Intimidate and several offences of Contravene Domestic Violence Order. In 2019 he was sentenced to imprisonment for four months to be served by way of Intensive Correction Order for offences of Contravene Domestic Violence Order. I note that order expired the very day before the present offending occurred.

31. The offender has also been convicted of and sentenced to imprisonment for serious driving offences including high range PCA and drive while disqualified.

32. The offender has a record that does not entitle him to any particular leniency.

33. The offender was subject to a Community Corrections Order for drink driving type offence, the order having only a little over a week to run. Although the breach of conditional liberty is made out (s 21A(2)(j) Crimes (Sentencing Procedure) Act) the matter is of very little moment.

Victim Impact Statement

34. At tab 8 of the Crown Tender Bundle, exhibit A on sentence, is a Victim Impact Statement. That statement, as those statements often do, eloquently recites the short and longer term effects of the sexual offending.

35. However, it is not submitted by the Crown nor, given the authority of R v Tuala [2015] NSWCCA 8, could it reasonably be submitted that the contents of that statement would justify a finding that there has been substantial emotional harm.

36. Be that as it may, the effect of the crime on the victim is acknowledged in the sentencing process by s 3A(g) of the Crimes (Sentencing Procedure) Act, 1999.

Subjective Case

37. The offender has a particularly strong subjective case. The offender gave evidence and was an impressive witness. There is a report from Dr Richard Furst and an affidavit from the offender’s sister.

38. I will go first to the offender’s evidence. He said he was 38 years of age and had a twin sister (who swore the affidavit, exhibit 2 on sentence). He has siblings and he had an older brother who had severe disabilities and is now deceased. He left school in the first month of Year 11.

39. The evidence continued that “most of the time” it was “OK” at home but sometimes it was “pretty bad”. There was significant domestic violence and he witnessed his mother being beaten by his father particularly where his father had been drinking alcohol to excess. On one occasion when he was 12 or 13 he witnessed his father “jumping” on his mother. As he was the eldest he would take the other children to his grandmother’s place, which was apparently nearby. His mother would always go back to his father.

40. He remembered witnessing the domestic violence from when he was about 10 and by the time he was 15 or 16 he would stand up to his father in an attempt to protect his mother. Neither parent worked and they relied on social security benefits.

41. These issues are also highlighted by the offender’s sister in exhibit 2 on sentence. I accept that the principles enunciated by the High Court in Bugmy v The Queen [2013] HCA 37 are enlivened reducing the offender’s moral culpability.

42. The offender commenced drinking when he was 15. He would drink at home until he was 18 when he went to pubs with friends and relatives. He would drink frequently, particularly on weekends.

43. At the age of 17 the offender commenced a relationship with the victim’s mother and this was the only relationship he has had. They separated in 2018. There are three children of the relationship including the victim.

44. The offender became abstinent from alcohol in about 2006 after being charged and sentenced for drink driving offences. I note the criminal record indicates that custodial sentences were imposed in respect of some of this offending. The offender’s children were removed by DOCS. After both he and his partner rehabilitated themselves the children were returned after about 2 years.

45. Until the offender had been in prison he had not worked except on the CDEP (work for the dole scheme). After his release the offender went to Wagga Wagga where he initially worked at the abattoir and after about 12 months went to TAFE and underwent an apprenticeship in carpentry. After completing the apprenticeship he commenced his own business.

46. Further, he returned to TAFE and completed Certificate IV in Building and Construction, which he needed to commence on his own. He also qualified as a TAFE teacher and did teach at TAFE on a casual basis. He felt that he was a good role model for indigenous students, which no doubt he would have been.

47. In about 2018 a number of things occurred, including the death of his father at the age of 60. The offender returned to alcohol, commencing with a beer after work and then the drinking becoming heavier. In 2019 he experienced difficulties with his relationship and he committed a number of domestic violence offences. He was in Narrandera and drinking heavily. He was not working.

48. The offender’s evidence continued that he came to Wagga Wagga in order to get away from Narrandera. He accepted that on 16 January 2020 he committed very serious offences. He said that he told Dr Furst the truth.

49. In respect of the day of the offending the offender said that he had used methyl amphetamine (or “ice”) for the first time. He had been at a pub and had spoken to someone who informed him that his partner had been “sleeping with someone else”. He said that “hurt pretty bad” and he kept drinking. When offered the “ice” he took it.

50. The offender acknowledged that he was aware of the contents of the victim impact statement. The offender became visibly very upset at this point of the evidence. He said he was really sorry and that the victim was “a great kid”. He then read a letter which ultimately became exhibit 3 in the sentence proceedings. In part that letter reads”

“….I was meant to protect my baby but instead I hurt her and I will never be able to forgive myself for that and the pain and suffering [victim] has to go through no one should have to go through that.

[Victim] I’m really sorry for the pain and suffering I have caused you and I hope that one day that pain goes away and you can go on and have a happy life. I am really sorry with all my heart I never meant for any of this…

The worst punishment is I have to live with this for the rest of my life and I have lost my big girl and all my family”.

51. As Ms Mendes put in oral submissions, rarely does the court hear such an expression of remorse in the offender’s own words. I accept without question that the offender is genuinely contrite and remorseful. I observe it is refreshing to hear genuine words of remorse from an offender rather than the usual “I am very remorseful” which often enough leaves the impression that it was learnt by rote. Clearly the offender is entitled to a finding that he is remorseful.

52. While the offender was in the Junee Correctional Centre he was a sweeper. More recently he has been held in Long Bay where he is in protective custody. He has made inquiries about courses. I accept that the offender has very limited access to courses because he is a remand prisoner.

53. The offender said in evidence that he is prepared to get counselling for his alcohol issues and he accepts that alcohol is his biggest problem. He accepted that if he went back to alcohol after his eventual release from prison then he “would not have much of a future”. Clearly the offender has insight into his issues with alcohol abuse.

54. The offender has the support of his sister, who is the author of the affidavit exhibit 2 on sentence. The offender has also expressed his remorse to his sister. The offender’s sister lives at Canberra and is prepared to assist the offender upon his eventual release. His sister suggests that if the offender is paroled in New South Wales he could live in Queanbeyan and therefore be close to her and the support she could offer.

55. I now go to the report of Dr Furst, exhibit 1 on sentence. Some of the family background already dealt with when dealing with the offender’s evidence is repeated. There is no indication that the offender suffers from a major psychiatric disorder.

56. The report sets out (bottom of p 2) that the offender was abstinent from alcohol for 10 years after being sentenced to prison for drink driving offences and the children being removed. This is consistent with the evidence of the offender. The history of the day of the offending (p 3) is also consistent with the evidence of the offender. The offender repeated his expressions of remorse to Dr Furst. There were no indications of severe mood disturbance or psychosis. Dr Furst observed that the offender had insight into his drinking problems.

51. Dr Furst diagnosed that the offender meets the criteria for the diagnosis of Alcohol Use Disorder and Panic Disorder without agoraphobia. The doctor observed (p 4):

“It would appear that he was doing much better over the following several years, Mr [W] remaining sober for about 10 years and also running his own carpentry business over a period of 10 years. His relapse into drinking alcohol two years ago appears to have been triggered by the death of his father and conflict in his marital relationship…I note he also developed significant anxiety/panic symptoms around that period”.

58. Dr Furst recommended that psychological input would be of assistance in relation to improving his coping skills under stress without resorting to alcohol. He also recommended access to education and vocational training. He appears to recommend a period of residential rehabilitation.

59. Further, Dr Furst concludes that the offender does not present with any features of sexual deviance and the offender is at significantly lower risk of re-offending in a sexual manner compared to the typical male sex offender.

60. The Sentence Assessment Report (SAR) (tab 7 exhibit A on sentence) sets out that the offender is at a medium risk of re-offending. Attached to the report is a Sentencing Assessment often seen in matters involving sexual offences. That report assesses the offender at being average risk of sexual re-offending.

61. However that report then goes on to say that in custody the offender is unlikely to be suitable for medium or high intensity sex offender programmes due to his Static 99 score however he is likely to be eligible for lower intensity programmes targeted at reducing more general offending.

62. The report attached to the SAR is completed on a file review and the preparation of that report did not involve any interview with the offender.

63. Essentially because of the evidence of the offender I am prepared - albeit with some little hesitation - to find on balance that the offender is unlikely to re-offend. Initially I took some issue with the submission by Ms Mendes that the offender has good prospects of rehabilitation. However, I echo the remark by Ms Mendes at paragraph 17 of her written submissions that the key to the offender’s future will be his determination to remain sober.

64. However in oral submissions counsel for the offender put that the offender now has insight into his issues with alcohol, that he in the past has been able to be abstinent for 10 years, he was able to obtain qualifications and was able to successfully run his own business. I was also reminded of the significant offer of support provided by the offender’s sister. It was put that although the offender does not have the full support of his extended family there is the support from the offender’s sister. Given these factors I am also prepared to find that the offender has good prospects of rehabilitation.

65. It was accepted that there must be a sentence of full time custody. Ms Mendes argued for a generous finding of special circumstances. I have no note or memory of any submission made by the Crown in respect of the issue of special circumstances.

66. I accept that there should be a reasonably generous finding of special circumstances. The sentence that the offender will serve will be substantial and he will require assistance with reintegration into the community – or, to use the expression of Ms Mendes in oral submissions, he “should be guided carefully when released”. This includes assistance so for as employment is concerned. The offender will also need assistance and supervision to ensure that he remains abstinent from alcohol.

General Remarks

67. In passing sentence I will need to give proper regard and effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely:

1. to ensure that the offender is adequately punished for the offence,

2. to prevent crime by deterring the offender and other persons from committing similar offences,

3. to protect the community from the offender,

4. to promote the rehabilitation of the offender,

5. to make the offender accountable for his or her actions,

6. to denounce the conduct of the offender, and

7. to recognise the harm done to the victim of the crime and the community.

68. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Given the maximum penalties that apply, the standard non-parole period, the nature of the offending and the need for general deterrence clearly there must be a sentence of imprisonment. There was no contrary submission. Likewise, noting those same issues, the sentence must be a sentence of full time imprisonment.

69. The conduct that constitutes the Sexual Touching offence on the Form 1 is kissing on the mouth that occurred immediately before the act of cunnilingus. That matter will have little impact on the sentence to be imposed. The breach of the DVO relied upon on the matter attaching to the s 166 Certificate is approaching within 12 hours of consuming alcohol. In all of the circumstances it is appropriate that that matter be dealt with by way of s 10A of the Crimes (Sentencing Procedure) Act. I did not understand the Crown to dissent from this course.

70. In respect of the two substantive matters for which the offender appears for sentence it is appropriate that s 53A of the Crimes (Sentencing Procedure) Act be invoked and that an aggregate sentence be imposed. If separate sentences were imposed there would need to be some minor degree of partial accumulation to recognise the separate offences.

71. It will also be necessary for me to set out the sentences that would have been imposed had separate sentences been imposed and they are:

1. Sequence 3 (cunnilingus):     Taking into account the matter on the Form 1 document, a non-parole period of 3 years 6 months with a balance of term of 2 years making a total sentence of 5 years 5 months (with some minor rounding down) which indicates a starting point of 7 years 3 months; and

2. Sequence 4 (penile/vaginal): A non-parole period of 3 years 9 months with a balance of term of 2 years 3 months making a total sentence of 6 years which indicates a starting point of 8 years.

Orders

72. In respect of the matters to which the offender has pleaded guilty he is convicted.

73. The offender is sentenced to an aggregate sentence of 6 years and 9 months with a non-parole period of 4 years and 3 months.

74. The non-parole period will commence on 20 January 2020 and will expire on 19 April 2024. The balance of term of 2 years and 6 months will commence on 20 April 2024 and will expire on 19 October 2026.

75. The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.

76. The sentence indicates a finding of special circumstances with the non-parole period being approximately 63% of the total sentence. The reason for the finding of special circumstances is enunciated within these reasons.

77. I direct that a copy of the report of Dr Furst, exhibit 1 on sentence be annexed to the warrant that is forwarded to the Department of Corrective Services.

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Decision last updated: 04 June 2021