R v MD

Case •

[2018] NSWDC 156

•

15 June 2018

No judgment structure available for this case.

District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v MD [2018] NSWDC 156
Hearing dates: 22 March 2018
Decision date: 15 June 2018
Jurisdiction:Criminal
Before: Mahony SC DCJ
Decision:

Full-time custodial sentence. For orders see [91]

Catchwords: Child sexual assault; two victims and multiple charges; young offender; aggregate sentence
Legislation Cited: Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Cases Cited: Berryman v R [2017] NSWCCA 297
GW v R [2018] NSWCCA 79
JM v R [2014] NSWCCA 297
O’Brien v R [2013] NSWCCA 197
R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41
R v Nelson [2016] NSWCCA 130
R v Van Ryn [2016] NSWCCA 1
Category:Sentence
Parties: Director of Public Prosecutions (Crown)
MD (Offender)
Representation: B Queenan (Crown)
S Orman-Hales (Offender)
File Number(s): 16/27880116/352403
Publication restriction: Non-Publication Order for name of Complainants and Offender

REMARKS ON SENTENCE

Introduction

  1. The offender pleaded guilty to eight counts on an Indictment as follows:

  1. Count 2 – sexual intercourse with child 14-16 years pursuant to s 66(3) of the Crimes Act 1900.

The maximum penalty for this offence is 10 years imprisonment, and there is no Standard Non-Parole Period. It also applies to the following three counts.

  1. Count 4 – sexual intercourse with child 14-16 years pursuant to s 66(3) of the Crimes Act 1900.

  2. Count 5 – sexual intercourse with child 14-16 years pursuant to s 66 (3) of the Crimes Act 1900.

  3. Count 6 – sexual intercourse with child 14-16 years pursuant to s 66(3) of the Crimes Act 1900.

  4. Count 8 – indecent assault of child under 16 years pursuant to s 61M(2) of the Crimes Act 1900.

The maximum penalty for this offence is 10 years imprisonment, and there is a Standard Non-Parole Period of 8 years imprisonment.

  1. Count 11 – sexual intercourse with child under 14 years pursuant to s 66(1) of the Crimes Act 1900.

The maximum penalty for this offence is 16 years imprisonment, and there is a Standard Non-Parole Period of 7 years imprisonment. It also applies to the following two counts.

  1. Count 13 – sexual intercourse with child under 14 years pursuant to s 66(1) of the Crimes Act 1900.

  2. Count 15 – sexual intercourse with child under 14 years pursuant to s 66(1) of the Crimes Act 1900.

  1. In addition, the offender asked for the following matters to be taken into account on sentence:

Form 1 to Count 8:

Count 7 – indecent assault on child under 16 years pursuant to s 61M(2) of the Crimes Act 1900.

Form 1 to Count 11:

Count 9 – indecent assault on child under 16 years pursuant to s 61M(2) of the Crimes Act 1900.

  1. The offender has acknowledged his guilt in respect of both matters on the Forms 1, namely, Count 7 and Count 9.

  2. The offender was committed for trial on 4 April 2017 from Taree Local Court. On 3 May 2017 the matter was listed for trial on 13 November 2017 and that trial date was confirmed at a readiness hearing on 5 October 2017. The pleas of guilty were entered on 13 November 2017.

  3. Counts 1, 3, 10, 12 and 14 on the Indictment have not been proceeded with by the Crown and are dismissed.

  4. There were two victims of the offences. Counts 2, 4, 5, and 6 on the Indictment concern the first victim, HM. Those offences occurred between July and August 2016 and the offender was arrested in respect of them on 16 September 2016. He was then released to bail.

  5. Counts 8, 11, 13 and 15 concerned the second victim, TS, as do the matters on the Forms 1, namely, Counts 7 and 9. The offender was arrested in respect of those offences on 24 November 2016 and has been in custody since that date.

  6. The offences were committed whilst the offender was subject to a bond pursuant to s 33(1)(a)(ii) of the Children (Criminal Proceedings) Act 1987. That bond was imposed on 9 September 2015 for two offences, namely, sexual intercourse with a child between 14-16 years, and secondly, produce, disseminate or possess child abuse material. Breach of that bond was dealt with by the Local Court Taree today, and a bond pursuant to s 33(1B) was imposed for a period of 18 months from 15 June 2018.

The sentence hearing

  1. The sentence hearing took place at Taree District Court on 22 March 2018. The Crown Sentence Summary became Ex A on the sentence hearing. It included a Statement of Agreed Facts which may be summarised as follows.

Facts in relation to the victim HM

  1. MD met the victim in late June 2015 at a party held at Old Bar beach, through mutual friends. The offender was 18 years of age and was aware that HM was 14 years old. He gave HM and her friend a lift home and thereafter contacted HM via Facebook messenger, using a pseudonym. This remained the main mode of communication between the offender and the victim.

  2. On 7 July 2016 the offender drove the victim HM to an unknown location. They had a conversation about sex, in which the victim told the offender she did not want to have sex. The offender started touching the victim and she got out of the car and started to walk away. After realising that she could not get home, the victim returned to the car and got into the front passenger seat. The offender placed his hand inside the victim’s skirt and underwear, and inserted a number of fingers into her vagina. This lasted for a few seconds. This was the conduct comprised in Count 2 on the Indictment.

  3. After he removed his fingers, the offender inserted his penis into the victim’s vagina. This was the conduct comprised in Count 4 on the Indictment. The offender did not wear a condom and after about five seconds the victim requested he stop as she was not ready. She then got out of the car. The offender apologised and told the victim that he would take her home.

  4. On 8 July 2016 the offender exchanged messages with the victim in which he apologised for having sex with her when she was not ready and if he was “a bit rough”.

  5. The offender remained in constant contact with the victim following this incident. He sent her photographs of his penis via Snapchat.

  6. In July or August 2016 the offender picked the victim up from her home and drove her to a reserve outside Wingham. On this occasion the offender and the victim got into the back of the car and had penile-vaginal sex. The offender wore a condom. This conduct comprised Count 5 on the Indictment.

  7. In August 2016 the victim snuck the offender into her bedroom at home at approximately 1am in the morning. They had penile-vaginal sex in her bedroom. This was the conduct comprised in Count 6 on the Indictment.

  8. In early September 2016, the victim HM overdosed on prescription pills and was admitted to hospital. Her mother discovered the Facebook messages between the victim and the offender and reported the matter to police. The offender was arrested on 16 September 2016 and participated in an interview in which he said he knew of the victim and had only met her twice. He denied having sex with her. He agreed his Facebook was under a pseudonym.

Facts in relation to the victim TS

  1. Sometime in July 2016, the offender contacted the victim TS, who was then 13 years of age. She knew the offender as he used to be a childhood friend of her brother, and they also had mutual friends. The offender told the victim that naked photographs of her were circulating around and that he had them. He told her he understood how shameful that was and the victim told him that she was 13 years old. The offender continued to contact the victim regularly via Facebook messenger and via text messages.

  2. On an occasion in July 2016, the offender drove to the victim’s home, however, her mother told him to leave, telling him that the victim was too young for him.

  3. On 2 August 2016, the victim’s mother left her with a 19 year old friend. The offender sent a message to the victim saying he was at the front of that friend’s house and asked her to meet him. The offender was in his car and the victim approached the car and stood by the driver’s side door, speaking to the offender through the window. The offender showed the victim nude photos of her as well as ones of himself.

  4. The offender grabbed the victim’s breasts and lifted them up and down over her clothing. This conduct comprised Count 7, which was to be taken into account on a Form 1 in respect of Count 8. The victim slapped his hand and told him not to do that. He then grabbed her hand and put it on his penis inside his pants, moving her hand in a rubbing motion. This conduct comprised Count 8 on the Indictment.

  5. The offender’s mother called telling him to come home, so he left, kissing the victim before he left. He continued messaging her throughout the evening. Later that evening, on 2 August 2016, he drove to the victim’s house and asked her to come for a drive with him. After driving for five minutes, he stopped the car and started touching her over her clothing, touching her on her breasts and vagina. This conduct comprised Count 9, to be taken into account on a Form 1 in respect of Count 11. He then took the victim’s clothes off and lowered the car seat. He got on top of her and put his penis in her mouth. This conduct comprised the offence in Count 11.

  6. The offender then put two fingers inside the victim’s vagina. This conduct comprised Count 13 on the Indictment. He then inserted his penis into her vagina, penetrating her until he ejaculated. This conduct comprised Count 15 on the Indictment. The victim felt semen over her vagina and her legs. The offender wiped that semen off her and drove her back home. He told her not to tell anyone about having sex. The victim had not disclosed the offences to anyone but her counsellor.

  7. A few weeks before the victim’s first interview with police on 22 November 2016, the offender contacted the victim and told her two people would come and see her. He demanded that she did not tell them anything. She understood he was talking about police.

  8. On his arrest on 24 November 2016, the offender was seen to pass a phone to his sister, trying to conceal it, as one of his current bail conditions was to not have access to social media. After being spoken to by police, he arranged for his sister to hand in the phone.

  9. The offender participated in an ERISP interview but refused to answer most of the questions.

  10. Also in Ex A were the offender’s criminal antecedents. They comprised the two matters for which he was sentenced by way of a bond pursuant to s 33(1)(a)(ii), together with an offence of driving with illicit drugs present in his blood – first offence, for which he was fined $450 and disqualified for a period of four months.

  11. Exhibit B comprised material relating to the two prior offences for which bonds were imposed. Because those bonds were made pursuant to legislation governing the sentencing of children, a direction was made for the parties to file further submissions on whether the offender was to be called-up for breach of those bonds, and if so, on what basis he was to be dealt with. The matter was subsequently referred back to the Children’s Court.

  12. Exhibit C was a pre-sentence report under the hand of Ms B Tonkin dated 24 January 2018. Under the heading “Family/Social Circumstances” the author reported that the offender disclosed that at eight years of age he suffered a brain injury after being hit by a car. His mother confirmed the diagnosis, however, advised that he had not had a medical review since that time. She supported the offender and was willing to have him return to the family home upon his release.

  13. The author noted that the offender had ceased his education at the beginning of year 11 and had worked casually until entering custody in November 2016.

  14. Under the heading “Attitude to Offending” the offender agreed with the police facts and disclosed that he was aware of the victims’ ages at the time of the various offences. He acknowledged the serious nature of his offending behaviour and reported his shame and embarrassment for his actions. He expressed remorse for his victims and stated a willingness to undertake programs in custody and in the community in order to address his sexual offending behaviour.

  15. The offender was assessed as a high risk of reoffending. His identified criminogenic needs are:

  • Leisure/recreation

  • Emotional/personal

  1. The author noted that the offender had positive family support and engaged in pro-social activities such as sport and employment in the community. The offender had acknowledged the serious nature of his offending and did not appear to minimise or justify his offences. The author considered that he would benefit from a period of supervision by Community Corrections. Case management strategies would include referral to the Child Protection Watch Team and referral to CSNSW psychology for:

  • A dynamic risk needs assessment

  • Completion of the sex offender supervision assessment, and

  • Assistance with the development of a risk management plan.

  1. The offender was assessed as suitable for a Community Service Order.

  2. Exhibit D on the sentence hearing was a Victim Impact Statement from the victim TS. It was read in court by her caseworker, Ms Jones. I refer to the Victim Impact Statement below.

Evidence of the offender

  1. The offender tendered a report from Ms Chelsey Dewson, forensic psychologist, dated 12 March 2018 (Ex 1). Ms Dewson interviewed the offender on 1 March 2018 for one hour and 40 minutes by AVL, however, she had previously been qualified with a number of documents which are set out in [4] of her report.

  2. Under the heading “Family and Development History” the psychologist recorded that the offender had experienced a challenging childhood and was frequently bullied by his peers. He was raised, however, in an emotionally supportive environment and experienced no interpersonal difficulties within his family.

  3. The offender was subject to prolonged peer victimisation at school which impacted on his schooling. Prior to his arrest, the offender had been working for two years on a casual basis mowing lawns, and was motivated to return to work in the future in the landscaping vocational area.

  4. The psychologist reported on the offender’s closed head injuries suffered in a motor vehicle accident in 2006. He underwent a rehabilitation program following his discharge from hospital, however, there were no ongoing neurological concerns.

  5. The psychologist reported that the offender took responsibility generally for his criminal conduct concerning the victim HM. However, he took less responsibility for the offending in respect of TS. He commented that he was disgusted in himself for his offending behaviour and was “humiliated” by what he has done. He described “self-loathing” which was facilitating his motivation to change his behaviour.

  6. The offender was assessed as above average risk for recidivism for sexual offending. The author set out the basis of the assessment, and explained the limitations of the testing and therefore the assessment should be used with caution. Overall, she considered the offender to be a moderate risk of reoffending.

  7. The author concluded that the offender appeared to lack insight into his cognitive processes and had difficulty managing his impulses at the time of the offences. He presented as being emotionally immature, with difficulties in problem solving and impulse control. The author recommended that the offender participate in offence-focussed treatment to assist him to address issues relating to sexual regulation, including any deviant sexual arousal and hyper‑sexuality. The most appropriate course of treatment for the offender would be the custody based intensive treatment (CUBIT) program, or the CUBIT outreach program.

  8. In respect of the traumatic brain injury suffered by the offender in 2006, the author noted that he was unable to identify the symptoms relating to that injury. She concluded there were no concerns resulting from her assessment to suggest that his head trauma was causing ongoing problems. If, however, the offender considered his neurological functioning was likely to impede his offence related treatment, it was recommended that he be referred to a neuro‑psychologist for a comprehensive neurological assessment.

The offender’s submissions

  1. In a written outline of submissions, Counsel for the offender set out the maximum sentences and Standard Non-Parole Periods for each offence. It was conceded that the threshold in s 5 of the Crimes (Sentencing Procedure) Act) 1999 (“CSPA’) had been passed and therefore a sentence of imprisonment was appropriate. It was submitted that a sentence in the “low range” was appropriate to reflect the severity of the crimes committed and the commonality between them all. An aggregate sentence pursuant to s 53A(1) of the CSPA was appropriate.

  2. It was submitted that the objective seriousness of the offending was at a low level of criminality. The offender was 19 years of age at the time of the offending and the two victims were aged 14 years and 13 years respectively. Each was vulnerable because of her age, and the offender knew each of the victims prior to the offending and to a degree, took advantage of their vulnerability.

  3. It was further submitted that the court would take into account the two Form 1 offences.

  4. It was submitted that only in relation to the second victim did the offender act in a threatening manner. He had, before her interview with the police, threatened the victim by telling her that “two people would come and see her” if she reported the incidences to the police.

  5. It was further submitted that neither victim suffered any form of physical harm. The extent of harm was not more than was perhaps otherwise expected from the commission of sexual offences of this kind.

  6. In respect of the second victim, upon his arrest, the offender was in breach of his bail conditions for the first four offences. Whilst he was uncooperative with police and attempted to conceal his contravention of bail by refusing to answer a majority of the police questions, he later arranged for his sister to turn in the phone that he was using in contravention of his bail.

  7. Counsel submitted that the following subjective features of the offender should be taken into account. First, the offender is a young man, now 20 years of age, with a good support network. He had displayed a good work ethic after leaving high school and was involved in the local community. It was submitted that whilst not applicable to mitigate sentence because of the age of consent, the victim in Counts 3 and 4 had consented to sexual intercourse that occurred in the offender’s car and in her house.

  8. It was submitted the following aggravating factors were relevant pursuant to s 21A(2) of the CSPA:

“(a) The offence involved the actual or threatened use of violence;

(d) The offender has a record of previous matters (non-convictions);

(eb) The offence was committed in the home of the victim;

(j) The offence was committed while the offender was on conditional liberty in relation to an offence;

(l) The victim was vulnerable;

(m) The offence involved multiple victims or a series of criminal acts.”

  1. The following mitigating factors pursuant to s 21A(3) of the CSPA apply:

“(a) The injury emotional harm loss or damage caused by the offence was not substantial;

(h) The offender has good prospects of rehabilitation, whether by the offender’s age or otherwise;

(k) A plea of guilty by the offender.”

  1. The offender conceded that whilst the victims will suffer some harm undoubtedly, neither suffered substantial physical harm. It was submitted that a sentence focussing on deterrence and early intervention programs was likely to be beneficial for the offender.

  2. Counsel for the offender submitted that the court would have regard to the Court of Criminal Appeal’s decision in R v Nelson [2016] NSWCCA 130. In that case, the offender was convicted of similar offences pursuant to s 66C(1) and s 66C(3) of the Crimes Act 1900, which involved sexual intercourse with three girls aged 13 and two aged 14 years. It was held there that where the offences occurred in the context of an emotional relationship and the offender was not in a standard position of trust, the court assessed the criminal offending at a relatively low level of criminality. A three year aggregate sentence was imposed, with a 2 year non-parole period. As the offending here involved two complainants, the defence conceded a slight accumulation of sentence. Counsel also submitted that the offending was intrinsically similar to that in O’Brien v R [2013] NSWCCA 197.

  1. In oral submissions, Counsel for the offender submitted that in respect of the victim HM, the offender was entitled to a 25% utilitarian discount on sentence in respect of Counts 2 and 4, as he had pleaded guilty at the first opportunity once those offences, pursuant to s 66C were offered. It was conceded that he had entered a late plea in respect of Counts 5 and 6.

  2. In respect of the victim TS, Counts 10, 12 and 14, offences pursuant to s 61J of the Crimes Act 1900 have been replaced by Counts 11, 13 and 15, being offences pursuant to s 66C. It was submitted that the offender should be entitled to a higher discount in respect of Counts 11, 13 and 15 as he had entered pleas of guilty when those counts were offered to him, notwithstanding that it was on the first day of his trial.

  3. It was further submitted that, where alleged by the Crown that the offending had occurred at “remote locations”, the location was in fact a car park near a high school in Wingham. It was submitted that it was not really that remote a location.

  4. Counsel further submitted that the court would take into account the subjective matters outlined above in her written submissions. There were good prospects of rehabilitation, notwithstanding the assessed high risk of recidivism. It was also the offender’s first time in custody.

  5. It was submitted that the objective seriousness of the offending was “around mid-range”.

  6. Counsel also highlighted the following statement from Basten JA in R v Nelson, supra, at [27]:

“(c) Boyfriend/girlfriend relationship

27 Thirdly, the sentencing judge accepted that the relationship (apparently in each case) ‘was a romantic one between the offender and each of the victims and classified as a boyfriend/girlfriend relationship’. Such a characterisation is apt to be highly misleading. It is necessary to explore the factors inherent in the relationship, including those set out above. A ‘boyfriend/girlfriend relationship’ may or may not involve a sexual relationship. Further, it may be highly abusive. For the characterisation to be meaningful, these elements should be explored. The fact that the sexual aspect of the relationship was unlawful was a critical factor, not to be ignored. To leave that factor out of account would be seen to reflect the now properly abandoned attitude that personal violence was excusable if it took place within a marriage or similar relationship. It is at least plausible that conduct which takes place in the course of an ongoing ‘relationship’ is more damaging in the long run than at least some forms of isolated sexual activity.”

  1. With respect to the offending in regard to both victims, there were issues here relating to consent, however, both victims were under the age of consent. It was submitted that age was a big factor here, the offender having just left childhood before the offending, which involved some degree of overlapping. Thus, an aggregate sentence was appropriate.

The Crown submissions

  1. The Crown relied on a thorough written outline of submissions. It conceded, in the circumstances in which the counts on the Indictment were changed, that the offender was entitled to a utilitarian discount on sentence in respect of his late plea of guilty of 15%.

  2. In respect of the objective seriousness of the offending, the Crown submitted as follows:

  1. Counts 2 and 4, the offending was slightly above mid-range. The victim was 14 years of age and the offence was in respect of victims aged 4 to 16 years. She was in an unknown location, reliant upon the offender to take her home. There was accordingly an element of vulnerability on the part of the complainant and the offending related to both digital penetration and penile/vaginal penetration.

  2. Count 5 was within the mid-range of objective seriousness of offending. The victim was 14 years of age and the offending related to penile/vaginal penetration.

  3. Count 6 was also within the mid-range for the same reasons.

  4. Count 8 was above the mid-range. The victim was 13 years of age, an offence applying to ages under 16. The offender used the possession of naked photos of the victim to target her vulnerability and form a “relationship” with her. The offending related to the grabbing of the victim’s hand and placing it upon the offender’s penis.

  5. Counts 11, 13 and 15 were within the mid-range. The victim was 13 years of age, the offence applying to ages 10 to 14. The offending here related to the inserting of the offender’s penis in the mouth of the victim, digital penetration and penile/vaginal penetration respectively.

  1. The Crown submissions set out general principles of sentencing in respect of sexual offences which do not require rehearsing for the purposes of these remarks. The Appellate Courts have long recognised that child sexual offending has profound and deleterious effects upon the victims for many years, if not the whole of their lives, and that it will inevitably give rise to psychological damage.

  2. The Crown submitted that the objective criminality here would be assessed by reference to the facts, which spoke for themselves. Aggravating features of the offending here were as follows, pursuant to s 21A(2):

(b) involved the actual or threatened use of violence;

(c) the offender had a prior record which would disentitle him to leniency;

(eb) Count 6 occurred in the home of the victim;

(j) The offender was on conditional liberty in respect of the second victim by way of a bond.

  1. The Crown submitted that the only mitigating factor here was a plea of guilty pursuant to s 21A(3)(k), and the Crown conceded in all the circumstances here, that the discount was greater than 10%, and that it held no issue with 15%.

  2. The Crown submitted that it was an appropriate case for an aggregate sentence pursuant to s 53A.

  3. The Crown submitted that, having regard to the gravity of the offences here, there was no basis for finding special circumstances pursuant to s 44 of the CSPA. Applying the statutory formula, there was sufficient time for supervision of the offender on parole.

  4. The Crown also submitted statistics issued by the Judicial Commission of New South Wales in respect of the offences. It acknowledged the limitations of reliance upon such statistics, each sentence depending on its own circumstances and relevant considerations.

Determination

  1. Section 3A of the CSPA sets out the purposes of sentencing as follows:

“3A The purposes for which a Court may impose a sentence on an offender are as follows:

(a) To ensure that the offender is adequately punished for the offence,

(b) To prevent crime by deterring the offender and other persons from committing similar offences,

(c) To protect the community from the offender,

(d) To promote the rehabilitation of the offender,

(e) To make the offender accountable for his or her actions,

(f) To denounce the conduct of the offender,

(g) To recognise the harm done to the victim of the crime and the community.”

  1. I assess the objective seriousness of the offending in respect of each offence as follows:

  1. Count 2 – this involved digital penetration of the victim’s vagina for a few seconds. The objective seriousness for the offence pursuant to s 66 (3) fell below the mid-range for such an offence, and in the middle of the range between low and mid-range. It still constituted serious offending.

  2. Count 4 – this offence involved the offender inserting his penis into the victim’s vagina for about five seconds before she requested him to stop. The objective seriousness of the offending here was below mid-range for an offence pursuant to s 66 (3) of the Crimes Act, but just below mid-range. It constituted serious offending.

  3. Count 5 – The offending involved penile vaginal sex in the back of the offender's car with the victim. It constituted offending within the mid-range for an offence pursuant to s 66 (3), but towards the bottom of the mid-range.

  4. Count 6 – The offending involved penile vaginal sex in the bedroom of the victim at her home. The objective seriousness of the offence pursuant to s 66 (3) was within the mid-range, but again, towards the lower end of the mid-range for such an offence.

  5. Count 8 – The offending involved the offender grabbing the victim’s hand and placing it on his penis inside his pants, moving her hand in a rubbing motion. The objective seriousness of the offending here was in the low-range for an offence pursuant to s 61M(2) of the Crimes Act, and in the middle of the low-range.

  6. Count 11 – The offending conduct here involved the offender taking the victim’s clothes off in his car, lowering the car seat, getting on top of her and placing his penis in her mouth. The objective seriousness of the offending was within the mid-range of an offence pursuant to s 66 (1) of the Crimes Act, but towards the lower end of the mid-range.

  7. Count 13 – The offending conduct here involved digital penetration of the victim’s vagina with two fingers by the offender. It constituted offending below the mid-range for an offence pursuant to s 66(1) of the Crimes Act, but just below mid-range. It constituted serious criminal conduct.

  8. Count 15 - This offence involved the offender inserting his penis into the victim’s vagina and penetrating her until he ejaculated. The offender wiped the semen from her and then drove her home, telling her not to tell anyone about having sex. The objective seriousness of the offending here was within the mid-range for an offence pursuant to s 66(1) of the Crimes Act.

  1. I accept the Crown's submission that the aggravating features of the offending here involved the actual or threatened use of violence (s 21A(2)(b)); the offender had a prior record which would disentitle him to leniency (s 21A(2)(c)); Count 6 occurred in the home of the victim (s 21A(2)(eb); and the offender was on conditional liberty in respect of the second victim by way of a bond (s 21A(2)(j)).

  2. I do not accept the submission made on behalf of the offender that a mitigating factor here, pursuant to s 21A(3) of the CSPA was that the injury, emotional harm, loss or damage caused by the offence was not substantial. The courts have long recognised that sexual abuse of children of tender years will inevitably give rise to long-term adverse psychological consequences. Nor does the absence of violence or the threat of violence make the offending less serious – see GW v R [2018] NSWCCA 79 at [32] – [33].

  3. Nor do I accept the offender's submission that he has good prospects of rehabilitation as a mitigating factor. The offender was assessed at above average risk for recidivism for sexual offending. His lack of insight into his cognitive processes and difficulty managing his impulses will require him to positively engage in treatment therapies offered to him to address these issues. The offender is, however, still very young, and has good family support. It is not relevant to the sentencing process here to have regard to whether any boyfriend/girlfriend relationship existed between the offender and the victims, nor is it necessary to explore any factors inherent in such relationships as outlined by Basten JA in R v Nelson, supra, at [27] as outlined above. The fact that the offender was 18 years at the time of the offending conduct, and his immaturity are factors which must be taken into account in the sentencing process – R v Nelson, supra at [79].

  4. It is beyond argument that general and specific deterrence are relevant to the sentencing process for child sexual assault offences. The most vulnerable members of our community must be protected from the commission of such crimes and the appellate authorities repeatedly state that the courts must make clear to offenders and other persons with similar impulses, that the court will impose severe punishment for such offences. Indeed, the maximum penalties prescribed by Parliament for these offences reflect the community abhorrence of and concern about adult sexual abuse of children, and also reflect the fact that child sex offences have profound and deleterious effects on victims which are long-term, and may be both physical and psychological.

  5. I have had regard to the Victim Impact Statement tendered on behalf of the victim TS (Ex D). The statement was read in court by a case worker, Ms Jones. It set out the impact that the offences have had on the victim’s psychological and emotional state. I note that there is no medical evidence against which to assess the Victim Impact Statement, however, it is a matter of common sense that the offences have had a substantial impact on the victim. As set out above, the Courts have long recognised that sexual abuse of children of tender years will inevitably give rise to long-term adverse psychological consequences. I have taken the Victim Impact Statement into account, but I make it clear that I have done so as to not aggravate the offender's culpability.

  6. I have taken into account the subjective matters relied on by counsel for the offender. He was 19 years of age at the time of the offending. Neither victim suffered any form of physical harm and it was only in relation to the second victim that the defendant acted in a threatening manner by telling her that “two people would come and see her” if she reported the offences to the police.

  7. The offender has displayed a good work ethic since leaving high school and has been involved in the local community. He has the support of a close family.

  8. I have taken into account the maximum penalty of 10 years imprisonment which applies to Counts 2, 4, 5 and 6. I have also taken into account the maximum penalty of 10 years imprisonment and the Standard Non-Parole Period of 8 years imprisonment in respect of Count 8. I have also taken into account the maximum penalty of 16 years imprisonment and the Standard Non-Parole Period of 7 years imprisonment in respect of Counts 11, 13 and 15. The maximum penalties for each offence outlined above, and the Standard Non-Parole Periods outlined above in respect of Counts 8, 11, 13 and 15 are guideposts in the sentencing process.

  9. I have also taken into account in respect of Count 8, the matter on the Form 1, being Count 7 – indecent assault of a child under 16 years pursuant to s 61M(2) of the Crimes Act 1900. The offending conduct involved the offender grabbing the victim's breasts and lifting them up and down over her clothing. The objective seriousness of the offending for an offence pursuant to s 61M(2) of the Crimes Act 1900 was within the lower range for offences of that kind.

  10. Similarly I have taken into account, in relation Count 11, the matter on the Form 1, being Count 9 – indecent assault on child under 16 years pursuant to section 61M(2) of the Crimes Act 1900. The offending conduct there also involved the offender touching the victim over her clothing on her breasts and vagina. This conduct was also in the low range of objective seriousness for an offence pursuant to section 61M(2). The offender has acknowledged his guilt in respect of both matters on the Form 1, and they are to be taken into account in some accumulation in the sentence to be imposed.

  11. Having regard to the history of the matter, I find that the offender is entitled to a utilitarian discount of 25% in respect of Counts 2 and 4, given that he pleaded at the earliest opportunity to those counts following an amendment to the Indictment. In respect of Counts 5, 6, 8, 11, 13 and 15, the offender is entitled to a utilitarian discount on sentence of 15%. That discount also takes into account the offender's remorse as reported to the psychologist in terms of his “shame and embarrassment for his actions”. Given that the offender gave no evidence himself about those matters, no further discount is to be allowed on the basis of remorse or contrition.

  12. I find that there are special circumstances established here, pursuant to s 44(2) of the CSPA. The offender is still very young, it will be his first time in custody and he will need to engage with rehabilitation services, both whilst in custody, and following his release, to ensure his prospects of rehabilitation are enhanced and that he is to take his place as a productive member of his community.

  13. This is an appropriate matter for an aggregate sentence pursuant to section 53A of the CSPA. Before sentencing the offender, however, I am required to set out the indicative sentences that I would otherwise have sentenced the offender to in respect of each count. In respect of those offences which are subject to a Standard Non-Parole Period, I am also required to set out the non-parole period for each offence.

  14. The indicative sentences I would have otherwise arrived at, having regard to the aggravating factors set out above, the utilitarian discount in respect of each matter set out above and, the subjective matters I have referred to are as follows:

  1. Count 2 - Indicative Sentence of 15 months imprisonment.

  2. Count 4 - Indicative Sentence of 18 months imprisonment

  3. Count 5 - Indicative Sentence of 21 months imprisonment

  4. Count 6 - Indicative Sentence of 2 years 6 months imprisonment

  5. Count 8 - Indicative Sentence of 10 months imprisonment

  6. Count 11 - Indicative Sentence of 3 years and 4 months imprisonment with a non-parole period of 2 years imprisonment.

  7. Count 13 - Indicative Sentence of 2 years imprisonment with a non-parole period of 1 year imprisonment.

  8. Count 15 - Indicative Sentence of 3 years and 10 months imprisonment with a non-parole period of 2 years and 3 months imprisonment

  1. Absent an aggregate sentence, there would be some concurrency of sentences in respect of Counts 2, 4, 5 and 6, and some concurrency of sentences in relation to Counts 8, 11, 13 and 15. There would otherwise have been some accumulation in respect of the two series of offences concerning the two victims.

  2. It is clear that in aggregating the sentence, the principle of totality applies, and there must be some accumulation of sentences. Any aggregate sentence must be “just and appropriate” to the totality of the offending behaviour. In R v Van Ryn [2016] NSWCCA 1, the Court of Criminal Appeal had regard to the following summary of the correct approach to the assessment of sentence for multiple offences, with proper regard to the totality of the criminality involved:

“[228] Street CJ described the principle of totality in sentencing in R v Holder; R v Johnstone (1983) 3 NSWLR 245 at 260 as follows:

The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently, a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation, a sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.”

  1. The Court went on to emphasise the need to maintain public confidence in the administration of justice when sentencing for multiple offences, and also referred to the judgment of Howie J in R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41 at [27]:

“There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. … Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

  1. In JM v R [2014] NSWCCA 297 the Court of Criminal Appeal set out the relevant principles to be applied in arriving at an aggregate sentence – see also Berryman v R [2017] NSWCCA 297. It is important that the aggregate sentence arrived at reflects the totality of the criminality involved.

  2. In arriving at the aggregate sentence here, I have taken into account the aggravating and mitigating factors set out above, the subjective matters put on behalf of the offender, and his acknowledgement of guilt in respect of the offences on the two Forms 1. Clearly, the threshold contained in s 5 of the CSPA has been crossed, and I am satisfied that there is no alternative to imposing a sentence of imprisonment in this matter. In applying the principles of totality and proportionality to the offending conduct here, given the serious nature of the criminality involved I intend to sentence the offender to a term of imprisonment of 4 years and 6 months with a non-parole period of 2 years and 6 months. The sentence is to commence on 24 November 2016.

Orders

  1. I make following orders:

  1. You are convicted of the following offences:

Count 2 – sexual intercourse with child 14-16 years pursuant to s 66(3) of the Crimes Act 1900.

Count 4 – sexual intercourse with child 14-16 years pursuant to s 66(3) of the Crimes Act 1900.

Count 5 – sexual intercourse with child 14-16 years pursuant to s 66 (3) of the Crimes Act 1900.

Count 6 – sexual intercourse with child 14-16 years pursuant to s 66(3) of the Crimes Act 1900.

Count 8 – indecent assault of child under 16 years pursuant to s 61M(2) of the Crimes Act 1900.

Count 11 – sexual intercourse with child under 14 years pursuant to s 66(1) of the Crimes Act 1900.

Count 13 – sexual intercourse with child under 14 years pursuant to s 66(1) of the Crimes Act 1900.

Count 15 – sexual intercourse with child under 14 years pursuant to s 66(1) of the Crimes Act 1900.

  1. You are sentenced to a non-parole period of 2 years and 6 months imprisonment to commence on 24 November 2016 and to terminate on 23 May 2019.

  2. The balance of the sentence will be 2 years to commence on 24 May 2019 and to terminate on 23 May 2021.

  3. I have certified the matters on the two Forms 1 and have also taken into account The Victim Impact Statement.

  1. You should understand that release to parole is not automatic. The State Parole Authority will hold a hearing sometime before that date and decide whether they are going to release you to parole on that date or some later date. You should understand that your parole will be subject to stringent conditions, one of which is not to commit offences whilst on parole. Other conditions will include things such as who you associate with, where you live and doing what your parole officers direct. If, during the time you are on parole, you breach any condition of parole, the State Parole Authority will revoke your parole and you will have to go back to gaol to serve the balance of your sentence.

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Amendments

20 June 2018 - anonymisation of party name in coversheet

Decision last updated: 20 June 2018

Most Recent Citation
Cases Citing This Decision

1

Alarcon v The Queen [2018] NSWCCA 298
Cases Cited

8

Statutory Material Cited

2

R v Nelson [2016] NSWCCA 130
O'Brien v R [2013] NSWCCA 197
GW v R [2018] NSWCCA 79