R v McLennan, Raymond

[2009] NSWDC 298

CITATION:	R v McLennan, Raymond [2009] NSWDC 298
HEARING DATE(S):	02/09/2009
JUDGMENT DATE:	9 September 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Count 1Sexual intercourse person under 16 years: Convicted. Sentenced non-parole period 18 months. Balance of term of 1 year, 1 month and 15days. Count 2 Sexual intercourse person under 16 years: Convicted. Sentenced non-parole period of 2 years. Balance of term 1 year and 2 months partly cumulative. Overall non-parole period 2years 3 months; balance of term 1year 2months.
CATCHWORDS:	Criminal Law - Sentence - Sexual Assault - sexual intercourse with person over age 14 under 16 (x2) - fellatio - vaginal intercourse - complainant disturbed in sleep by sexual advances - complainant ill subsequent to fellatio - absence of consent in both offences - fear arising from power imbalance - early complainant - vaginal intercourse reaches mid-range of objective seriousness - fellatio falls below mid-range - indigenous offender - one prior in distant past history.
LEGISLATION CITED:	Crimes Act
CASES CITED:	Gladue v The Queen [1999] 1SCR 688 [80] R v Cuthbert [1967] 2 NSWR 329 R v Rushby [1977] NSWLR 597 R v Hayes [1984] 1 NSWLR 740 R v Bruland [2005] NSWCCA 289 R v SG [2003] NSWCCA 220 R v Pearce (1998) 194 CLR 610
PARTIES:	Regina Raymond William McLennan
FILE NUMBER(S):	2009/6579
COUNSEL:	C Simpson Crown Prosecutor E. Wilson Public Defender

JUDGMENT

1. Raymond William McLennan, a single man, rented a flat at Orfram Street, Broken Hill. He is fifty years old. He shared his flat with CR, a fifteen-year-old girl and her boyfriend. In the other bedroom was another fifteen-year-old girl, PE, and a sixteen-year-old boy, CP, who I believed to be her boyfriend. The flat only had two bedrooms. McLennan slept on a lounge on the lounge room floor. Into this mix came the complainant, TJM. On the night of 4 February 2009 McLennan on two occasions had sexual intercourse with TJM in circumstances to which I shall come to shortly. He was committed for trial upon two charges of sexual intercourse without consent knowing TJM was not consenting. However, when arraigned on these charges before me he was also arraigned upon two alternate charges of having sexual intercourse with TJM, she being above the age of fourteen, but under sixteen. To these he pleaded guilty. The Crown accepted pleas of guilty made by him in full satisfaction of the indictment.

2. He is now to be held accountable for his criminal conduct on 4 February 2009 as encompassed by these charges.

3. As sentencing Judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentences for these two offences before the Court, committed by this offender harming this victim in the community - Dareton I think it was. See Gladue v The Queen [1999] 1 SCR 688 [80]. My initial task requires an assessment of the objective criminality of the offences before the Court. I will also need to have regard to matters personal to him, called subjective matters. The starting point for such assessments requires a sentencing judge to make findings of fact from the evidence before the Court relating to both the offence and to the offender. Before any sentence can be made there are likely to be technical questions relating to deterrence, discount, whether special circumstances are to be found, totality and finally of course the ultimate length of a term of imprisonment or other penalty to be imposed.

4. None of these can be commenced until the primary facts are determined. What weight needs to be given to these matters against the imperative that all sentencing should have as its primary focus the protection of the community will also need to be determined. See R v Cuthbert [1967] 2 NSWR 329, R v Rushby [1977] 1 NSWLR 597 and R v Hayes [1984] 1 NSWLR 740.

Facts

5. Agreed facts were tendered. They included the following. On 3 February 2009 the complainant was in the premises of the offender from about 11.30pm. The offender had been drinking with friends. The complainant says she drank two mixed drinks but was feeling sick and went to sleep on a bed in PE’s room. She had been ill for a couple of weeks. A neighbour, Glenda Haybourn, was in the flat for a short while that evening and then returned to her place nearby. The complainant states that she had only two drinks and was not intoxicated.

6. CR and her boyfriend went to bed after the complainant leaving the offender alone in the lounge room. The complainant alleges that she was asleep and felt the offender insert his penis into her mouth. She could not see him at that point but recognised his voice when he asked her to open her mouth. She said he pushed his penis down her throat and then withdrew. He removed her three quarter jeans and pants and inserted his penis into her vagina and had intercourse with her for about ten minutes. She told police that she froze and pretended she was asleep.

7. CR could not sleep so she got up and went into the lounge to wet some towels and noticed the accused was not in the lounge room. She and her boyfriend got up and got dressed to go for a walk. When they went into the lounge room the offender was now present and CR noticed the complainant out the front of the house lying on the roadway being ill. The complainant said she put her clothes on and fell out the window and then came round the front. The complainant said she wanted to be driven to the hospital because she was ill. CR took the complainant inside into the shower where the complainant told her what the offender had done.

8. The neighbour, Ms Haybourn, drove CR and the complainant to a hospital. CR in her statement said that she and the complainant are fifteen and the offender knew their ages. The complainant was born in October 1993 and was fifteen years and three months old at the time of the commission of the offences. That ends the agreed facts.

9. I also find these facts. I am satisfied beyond reasonable doubt the allegations made by the complainant in the agreed facts are true. I am satisfied the complainant’s vomiting was in part occasioned by the insertion of the offender’s penis into her mouth. I cannot be satisfied it was the only cause of her vomiting because she had complained of being ill. I am satisfied that the act of fellatio occurred in circumstances where the complainant was not consenting. The agreed facts accept she was asleep and felt the penis inserted into her mouth. She was asked to open her mouth, the penis was pushed down her throat. Her complying with that request does not constitute consent, particularly in circumstances where she is only fifteen and the offender is fifty. There had been no other interaction or foreplay between them, and the incident commences at a time when she is asleep.

10. Likewise, I am satisfied that the vaginal intercourse was without the complainant’s consent. The episode commences with the removal of her jeans. She says she froze and pretended to be asleep. My understanding of that claim is that it applies to her situation from the moment McLennan started to fiddle with her clothing until he withdrew after about ten minutes of penetration.

11. Two other factors satisfy me she was not consenting. Her immediate departure from the premises through a window and her vomiting. Secondly, she complained to the other fifteen year old, CR, telling CR what had happened to her earlier in PE’s bedroom.

12. McLennan gave evidence that he had been drinking that night, more than he usually does. I accept that he had been drinking although whether more or less than usual I cannot say. It is likely his judgment capacity was to some extent impaired and his levels of inhibition were lowered. I do not regard him as being grossly inebriated. With the two young girls in his flat, sharing his accommodation, he was placing himself in a dangerous position. Fortunately each of his regular residents had a boyfriend. The complainant however, arrived without a male support person. The offender is a small stature man whose weight would fall within the lower percentiles for men. Such fear as the complainant felt came not from any physical prowess he may have had, but from the power imbalance caused by the age difference, his male gender, his ownership role within the flat and not from any physically impressive presentation.

Objective Criminality

13. From the facts as he finds them to be the sentencing Judge is required to assess the objective criminality of the offences as an essential step in assessing the seriousness of the criminal behaviour of the offender. That is done by comparing objectively the criminality exhibited in the two offences before me with criminality of offences of similar kinds. It is in this way that the objective criminality of these offences can be evaluated; not surprisingly the objective criminality has a very important impact upon the overall sentencing outcome.

14. Section 66C of the Crimes Act, where the offences I am dealing with it are to be found is about the protection of young children from a range of experiences while their physical, emotional and psychosexual development is patently immature and the power imbalance between the child on the one hand and the adult on the other grossly favours the adult. The fact that consent of the victim is no defence to an offence under this section highlights the purpose of the section in protecting the young. Mr Justice Lee in describing the jurisprudential philosophy behind this section said the following:

“One begins with the proposition…that our community views with great concern the sexual molestation of children by adults, and that has been acknowledged by the legislature in providing for greater penalties when the victim is under sixteen years of age. That acknowledgment has been in our legislation over a long period of time. Little children are entitled to grow up free from sexual defilement by sexual predators and free from risk of psychological upset, confusion and difficulties in later life caused by such conduct.”

His Honour also made this observation highlighting the law’s focus upon the power imbalance between adult males and young children:

“The law has always sought to protect young children against sexual predators, particularly adult men.”

15. One of the imperatives of the criminal law is to have regard to the impact the offending conduct has upon the victim. It is not unusual in s 66(3) offending for the Court to have some sympathetic understanding of an offender’s criminality because of the nature of a relationship between an offender and victim where advantage and sole sexual gratification are not the purpose of the sexual encounter. That is particularly true where the age gap between offender and victim are close and there is a loving relationship between the two. In such cases the harm done to the victim is less than it is in this case. In this case, the intrusion of the offender’s penis into the complainant’s body was solely about his own sexual gratification and solely for his own advantage. It was without her consent. In those circumstances the impact of his criminality upon her was far greater than had she consented. True, there is no evidence establishing he knew she was not consenting, but as with motor vehicle accidents, when very serious injury is done, even when the driving is not highly criminal, the impact of the offending conduct upon the victim or victims is an important contributor to measuring criminality.

16. The duration of the sexual encounter is another area that impacts upon the victim. In the fellatio offence there is no evidence as to the length of time devoted by the offender to this conduct. The sense one has from reading the agreed facts is that this incident did not take much time. On the other hand, the complainant’s sense of time taken for the penile vaginal penetration is some ten minutes. I am satisfied by contrast with the first episode, namely the oral penetration, the penile vaginal incident took an extended time. On this basis the criminality of the second offence exceeds that of the first.

17. Both forms of sexual assault amount to violent intrusion of the young girl's right to the sanctity of her body and her right to healthy sexual development. The fellatio incident has a particularly nasty aspect; he had not confined himself to keeping his penis within the young girl’s mouth, but punched it into her throat. There is no suggestion he wore a condom. His double penetration of her not only constituted a breach of her privacy but also her personal safety. Her privacy, her personal safety and healthy sexual development were of no moment to him. He put his own sexual gratification above these three things. The offence was predatory in nature, in the sense that the offender knew his victim was alone and probably asleep, or at very least drowsy, and he took advantage of that fact. As I have earlier found, she was unsupported by any male and her sponsor, that is her sponsor into the flat, PE, was not present. In that sense she was vulnerable. It will be noted that I have rejected defence counsel’s submission to the contrary.

18. Sexual intercourse without consent is a crime of violence. Clearly the level of offending is substantially less in circumstances where it cannot be proved, or is the fact, that the offender did not know she was not consenting. It would seem the Crown, while pressing the more serious charge against the offender was never in a position to prove knowledge of absence of consent. Thus, the offender is presumed innocent of the more serious count.

19. The sentences I impose will necessarily be substantially less than they would have been if the element of criminal knowledge of absence of consent was proved. There are two bases for so holding. Firstly, the maximum penalty for the substantial offence is far greater than the penalty that I am dealing with. Secondly, as I have just said, the criminality is greater.

20. I note there was no violence, other than the penetration. I have already noted the unimposing physical stature of the offender and the basis for the power imbalance. This offending was accomplished by exercise of a power imbalance and not by any physical threat to the complainant.

21. I have been invited by defence to find these offences as being below the mid point of seriousness. In respect of the fellatio offence I am content to make such a finding. It did not last for long, it was his first offending conduct against her. He did, however, drive his penis down her throat before withdrawing and he selected to approach her when she was asleep or at least drowsy and lying down, that is, when she was vulnerable. There was an absence of consent. Against that assessment I would place this offence below the mid-range.

22. On the other hand, the penile vaginal offending falls within the mid-range and closer to the middle of that range than to the lower part of it. That is because the offender was conscious this constituted an assault upon her in circumstances where she had been previously assaulted. The assault was constituted by penile vaginal penetration. It was unprotected. She was vulnerable. Its duration was for an extended time, but no more than ten minutes, and there was an absence of consent.

Subjective Matters: Family Background, Relationships:

23. Raymond McLennan as I said, is a single man aged fifty, born in Broken Hill. His mother is aged eighty and he is the fourth of six children. His parents were drinkers but there was no violence as he grew up. His parents separated. He has a sister living in Broken Hill. He married at the age of nineteen and has one child from that union now aged twenty-nine or thirty. That marriage lasted six years, the parties divorced. There was another eleven-year relationship and a now fifteen-year-old child from this. He has no contact with the first child and I am uncertain as to whether there is contact with the second. For the last eight years there has been no relationship. He has spent some of his adult life in South Australia.

Education, Employment and Skills

24. He left school, he says, aged fifteen from First Form. If so it would appear he has repeated a couple of classes. His literacy skills are minimal. He can read but in unable to write. He has worked in unskilled jobs on the land and in mines. He has moved about the country working on stations and properties. His last job was as a storeman at Phoenix where he drove forklift machines and the like. For the past four years he has been on a disability pension.

General Health

25. McLennan has a number of serious ailments; cancer of the tongue base, duodenal ulcers, gall stones and heart problems. McLennan’s heart problems appear to include vascular problems as well. He suffers hypertension, has unpredictable drops in blood pressure, his heart races, there are symptoms of dizziness and chest pain. By July 2008 all his symptoms, as best I can tell, are stabilised, but he was assessed as having those symptoms likely to persist. It is these illnesses, or at least the combination of them, that see him on the disability pension at least for the foreseeable future.

Character and Criminal History

26. McLennan is a fifty-year-old man with limited support from his family. In his early adult life he gives evidence of having a reasonable work ethic and an itinerant lifestyle. Given his past criminal history, to which I shall shortly come, he showed poor judgment in opening his house to two young girls. He has some limited skills, in small engines, for example, is an area he claims some proficiency. He is unsophisticated and education deprived.

27. He was committed to an institution as a child for stealing in 1972 aged thirteen or fourteen. On appeal the sentence was varied to two years probation. There were further stealing offences as a minor.

28. His first adult offence occurred when he was eighteen and a half. It was the carnal knowledge of a fifteen year old. On this occasion he was sentenced by the District Court to nine months non-parole period and a two and a half year head sentence. Between 1979 when he was released and 1984 when he left this State there are driving offences and a malicious damage to property. In 1986 there are driving offences in South Australia. Thereafter he was frequently before the South Australian Summary Courts for driving and driving related offences until 2002. His record notes two occasions, between June of 2007 and November of 2008 of him having no fixed place of abode. But for the prior sexual offending in 1978 there is nothing similar on the record and all his offending but for that carnal knowledge charge has been dealt with in courts of summary jurisdiction.

Attitude to Offence

29. He claims to have gone the following morning to the police of his own volition to report the matter. I am satisfied by that time he knew the matter had been reported to police. Nonetheless his going demonstrates a willingness to accept responsibility for his criminal offending. He recognises the offence is a serious offence. If given the opportunity he would say “sorry” to the complainant for the “trouble” he has caused. I have quoted “trouble” because it is hardly the word that describes what occurred between him and the complainant. I accept that he is as sorry as he can be, but the difficulty is he appears to have little insight into the impact this criminal behaviour could have or may have had upon his victim.

A Plea of Guilty

30. He has pleaded guilty to counts which were not before the Magistrate. While it is true he pleaded to them when first offered, the pleas were not entered before the Magistrate. He has been committed for trial and between committal and the plea entered in this court, the complainant would have felt she needed to give evidence. His plea certainly relieved her of this burden. I note the plea was advised before the sittings began here in Broken Hill, no jury was summoned on the first day of the sitting but rather held on telephone reserve in the event that the plea did not eventuate. Clearly there has been substantial utilitarian value to the plea for the complainant, the Crown and the court. I propose to give a 20% discount for this plea, recognising the utilitarian value of it.

Rehabilitation Prospects

31. As a consequence of this criminal conduct McLennan’s movements and accommodation arrangements will in future be more closely monitored. Dangerous situations such as he was in when this offence occurred are less likely to be tolerated by authorities overseeing his movements. But his re-offending with this type of offence at this stage of his life is worrying. There is a substantial gap between his past carnal knowledge conviction and these two offences. That would suggest a lower likelihood of recidivism. He has said he is willing to comply with Probation and Parole supervision and willing to undertake sexual offender related courses. There is limited family support for him. This offence occurs in circumstances where he was consuming alcohol. He claims only a moderate drinking habit. His driving offences, particularly the drink driving, leave me cynical in respect of that evidence. His insight into his offending is superficial only. I have no professional assessment of his likelihood of re-offending. I am guardedly optimistic that with proper supervision, and in particular oversight of his accommodation arrangement, his chances of re-offending are moderate to low. I recommend that he be considered for the CORE programme offered by the Department of Corrective Services. If the programme is started in prison hopefully it can be continued as a condition of his parole.

Setting the Sentence

32. This is a sentence in which personal and general deterrence loom large. I have given appropriate weight to both forms of deterrence. Imprisonment is a sentence of last resort but both the need for punishment and deterrence mandate that substantial imprisonment is required for this offending. The maximum penalty for each offence is 10 years imprisonment. I have indicated that I regard the fellatio offence as falling below the mid line and the penile/vaginal as within the mid range of offending of this kind.

33. Mr Wilson, Public Defender, sought to rely upon R v Bruland [2005] NSWCCA 289 as establishing a more serious case than this and therefore limiting the court’s capacity to sentence above 3 years. That case needs to be distinguished. Firstly it was not a Crown appeal but rather a claim the sentence imposed was manifestly excessive. That claim was rejected. Secondly the absence of consent was not an issue in that case, the complainant was a willing participant. The applicant was found “not to perceive to the same degree as others may that what he was doing was wrong” and therefore general deterrence was given less weight in the sentencing. That is not this case. The appellant was a person of prior good character and received a greater discount for his pleas of guilty. Again the facts here are different.

34. My attention was also drawn to R v SG [2003] NSWCCA 220 where the Court of Criminal Appeal opposed sentences of 9 to 12 months fixed terms for seven counts comprising fellatio or digital penetration. I regard this offending conduct as exhibiting greater criminality than the offences described in SG.

Custody

35. This offender has been in custody on only these matters since 6 February 2009. Any sentence should date from that date. Within a fortnight he was moved from Broken Hill Correctional Centre to Wellington Correctional Centre. In both institutions he is on protection, that was not his choice but an understandable administrative decision by the prison authorities. I have referred to his small stature and unprepossessing physical appearance. Given his crimes, his size, his age and health he would be an easy target in mainstream gaol. It is likely that once sentenced he will remain on protection for the duration of his time in custody. At Wellington he is 800 kilometres from his family in Broken Hill. That also points to his doing harder time in custody than many other prisoners.

Totality and Pearce

36. Pearce (see R v Pearce (1998) 194 CLR 610) requires separate sentences be announced for each offence, reflective of the criminality I have found exhibited by that offence. The total sentence however must reflect the total criminality. I have sought to do that by a short period of accumulation, in fact it is a three-month accumulation.

Special Circumstances

37. I have found special circumstances for each offence. The factors I have taken into account are (a) the slight accumulation of sentence just referred to; (b) it is the most effective way of making allowance for hardship of custody I have referred to and (c) it will offer him an opportunity to adjust to and rehabilitate within the greater restrictions he will have upon his liberty when released. Would you stand up please Mr McLennan, I am now going to sentence you.

Sentence

38. Mr McLennan for the offence that you, on or about 4 February at Broken Hill in the State of New South Wales had sexual intercourse with TJM, a person then above the age of fourteen years and under the age of 16 years, namely fifteen years, I convict you. But for your plea of guilty I would have sentenced you to a total sentence of 3 years. That is reduced to 2 years 7 months and 15 days overall because of your plea of guilty. I set a non-parole period of 18 months, to date from 6 February 2009 and to expire on 5 August 2010. A balance of term of ten months fifteen days to expire on 20 September 2011.

39. I also convict you of the offence that you, on 4 February 2009 at Broken Hill in the State of New South Wales had sexual intercourse with TJM, that sexual intercourse being penile/vaginal sexual intercourse, she then being a person above the age of fourteen years and under the age of sixteen years, namely fifteen years. But for the plea of guilty I would have set a sentence of 4 years. That has been reduced to 3 years and 2 months on account of your plea of guilty. I set a non-parole period of 2 years, to date from 6 May 2009 and to expire on 5 May 2011. I set a balance of term to expire on 5 July 2012. Effectively I have sentenced you to a non-parole period of 2 years and 3 months, dating from 6 February 2009.

40. Your release to parole will be at the discretion of the Parole Board. I cannot order your release to parole. You will need to convince them that you are a safe person to release, both in terms of not offending against the community and your own personal safety and that you have appropriate accommodation.

41. The total available sentence is 3 years and 7 months. Whether the Parole Board releases you in 2 years and 3 months will be a matter entirely for you. You will have to convince them by doing programmes and the like that you are a suitable candidate for release. I recommend the prisoner be considered for the CORE sexual offenders programme and I indicate to you if you can get in to that, that will no doubt impress the Parole Board seriously. The offender may be removed.

TRAN-DINH: Does your Honour wish to impose an AVO pursuant to section 39 of the Crimes Domestic and Personal Violence Act as a result of this offence?

HIS HONOUR: For how long?

TRAN-DINH: I would suggest your Honour the 5-year period. Apparently however there is an interim order.

HIS HONOUR: For the next 2 years and 3 months nobody has to worry. He is going to have restrictions on his liberty. I am loathe to do it but I suppose the easy way to handle this is the parties may have leave at any time to approach this court for an AVO in the event that there be any indication that one is needed.