R v Mizzi - [2020] NSWDC 819

District Court

New South Wales

Medium Neutral Citation: R v Mizzi [2020] NSWDC 819
Hearing dates: 21-29 September 2020; 6 November 2020
Decision date: 19 November 2020
Jurisdiction: Criminal
Before: Norrish QC DCJ
Decision:
Sentenced to an aggregate term of 7 years imprisonment; non parole period 4 years 3 months imprisonment.

Catchwords:
CRIME – sentence – aggravated sexual intercourse with child aged between 10-14 years – child with cognitive impairment - no prior convictions – no breach of trust – significant age difference – no psychiatric or psychological factors.

Legislation Cited:
Crimes Act1900
Crimes (Sentencing Procedure)Act1999.

Cases Cited:
De La Rosa [2010] NSWCCA 194
Hemsley v R [2004] NSWCCA 228
MillvR [1988] 166 CLR 59
Muldrock v R [2011] HCA 39; 244 CLR 120,
R v Engert (1995) 84 A CRIM R 67
RvHolder [1983] NSWLR 245
R v Johnson [2004] HCA 15; 78 ALJR 616
R v Way [2004] NSWCCA 131

Category: Sentence
Parties: Regina (Crown)
Lawrence Mizzi (Offender)
Representation: Counsel:
Ms S Lind (DPP)
Mr C Watson (Offender)

File Number(s): 2019/00192195
Publication restriction: Non publication order of the victim’s name or any material that would lead to her identification

Judgment

Lawrence Mizzi appears today for sentence in relation to five counts, or charges, on an indictment in respect of which he was found guilty on 29 September 2020. He was arraigned in relation to this indictment on 21 September 2020 and pleaded not guilty to each of the charges in the indictment.
The charges were pleaded as offences committed between 28 January 2019 and 18 June 2019 at Tregear in the State of New South Wales. That is at the home of the victim who I will refer to as “XX” for the purposes of this judgment.
I direct no publication of any material that would lead to the identification of the victim. I shall refer to her as “the victim”.
Count 1 is a charge brought pursuant to s 66C(2), Crimes Act 1900. It carries a maximum penalty of 20 years’ imprisonment with a standard non‑parole period of nine years. It is shortly to be described as an offence of aggravated sexual intercourse with a child between the age of ten and 14 years in circumstances of aggravation, namely that the victim had a cognitive impairment. The victim was 13 years of age at the time of the offending as she was in relation to the remaining counts.
Count 2 is an offence of inciting the victim to sexually touch the accused or prisoner, she being a child above the age of ten years and under the age of 16 years.
Count 3 is another allegation of sexual touching but pleaded as a charge of the accused sexually touching the victim. Again a child then above the age of ten years and under the age of 16 years.
Count 4 is a charge expressed in similar terms at the same location within the same dates. She being as I have said earlier of the same age and likewise Count 5.
Thus, Count 2 is an offence of inciting the child to sexually touch the prisoner. Three of the counts are expressed, if I may use the expression, in identical terms although they are concerned with different facts.
The offences in Counts 2 to 5 carry a maximum penalty of ten years’ imprisonment. There are no standard non‑parole periods. Count 2 is an offence contrary to s 66BB(b), Crimes Act 1900. The other three offences are offences pursuant to s 66BB(a), Crimes Act 1900.
Although the dates are pleaded over an extended period of time, as I understood it dating from the thirteenth birthday of the victim, I cannot be satisfied beyond reasonable doubt that the accused committed the offences over the five months or so period pleaded in the indictment. In fact the evidence reveals that the offences could well have occurred within a week of the reporting of the matter to her aunt and the subsequent immediate reporting of the matter to the police. I do not regard the counts as “representative counts”, on the basis of the evidence available to me in this Court.
The prisoner was arrested in relation to the current matter on 20 June 2019 and according to the cover sheet from the Crown spent 55 days in custody till 14 August 2019.
On the verdicts of the jury naturally I have remanded him in custody and he has remained in custody since 29 September 2020. My calculation based upon that information is that the accused’s sentence should start from 4 August 2020 but I invite the parties to advise me if my calculation is incorrect.
The victim was the child of friends of the accused that he had known for a number of years. People that he had met through a common interest in tenpin bowling. He was a regular visitor to the house of the victim and maintained a friendly relationship with the victim’s parents and the victim and her sister from what I understood of the evidence.
The victim suffered a mild intellectual disability and we had the benefit of considered expert evidence in this regard. Her intellectual disability places her in the bottom one percentile of peers of her age. As at 2020, her verbal skills were assessed by a psychologist as equivalent to a child aged six years and six months and her non‑verbal skills were equivalent to a child aged five years and six months. Her receptive communication skills were equivalent to a child aged four years and six months. In the initial interview that I observed she had a great deal of difficulty speaking clearly and being understood. But I noted the pre‑recorded evidence revealed her to be improved in a number of areas. As I said earlier, at the time of the offending she lived with her parents and shared a bedroom with her sister at the rear of the house. He had been a visitor to the premises on a regular basis it would seem for a period that extended back beyond the date of the victim’s thirteenth birthday.
The Crown, in its helpful summary of the evidence and thus the facts that I should find from the evidence given the verdicts of the jury, suggests that the prisoner’s days of visiting were varied, usually in the evening after 7.30, leaving usually around 10:00pm. The prisoner was referred to by the victim as ‘Uncle Lawrence’ and sometimes she referred to him as ‘Dad’ and it is quite clear that in the months leading up to the revealing of these offences, first to her aunt and then to the authorities, the prisoner developed what could be called a “close relationship” with the victim, communicating with her via SMS, telephone calls and using the Facebook Messenger application for video calls.
The messages from the prisoner to the victim were on occasions suggestive. The fact that there was such a communication between the prisoner and the victim that occurred only shortly before the complaint was made to the aunt, led to the aunt questioning the victim as to whether anything inappropriate had occurred between herself and the prisoner. This particular communication, which I need not recite in detail, the prisoner asserted when interviewed by police, was in fact meant for his partner or girlfriend who gave evidence in the trial.
There was evidence before the Court that on occasions before the complaint was made, during the course of video calls, the prisoner’s penis was exposed to the victim and he had asked her to show him her breasts. The prisoner had explained to the police that the exposure of his penis was “accidental”, if I could use my word, because he regularly slept without clothes or moved around his home where he lived alone, without clothes and had answered the calls from the victim via video messaging without covering himself up. Whether that was true or not mattered nought in my view to the determination of the verdicts. The jury were satisfied beyond reasonable doubt of the truth of the evidence of the complainant in relation to each of the allegations made by the victim giving rise to the offences.
The first offence, the offence of sexual intercourse concerned the prisoner going into the victim’s bedroom from the lounge room where he had been sitting with at least the victim’s mother. I should point out in his regular visits to the house he would be in the lounge room with the victim’s mother who seems to have been home on every occasion and sometimes with the victim’s father present, although he worked at nights on occasions and was not present on every occasion that it is alleged that the particular offence was committed.
The facts reveal in respect of each of the offences, but at the moment I am dealing specifically with Count 1, the prisoner wandered a short distance along the hallway from the loungeroom to the bedroom to “speak to” the victim which was acceptable to the mother and the father, as they did not suspect anything of the prisoner in their association with him. It was on those occasions that the prisoner took the opportunity to commit the offences.
In relation to Count 1, the prisoner went into the bedroom and hugged her. She hugged him back. He put his hand under the victim’s pyjama pants and inserted his fingers into her vagina. There is no evidence before the Court of any physical injury suffered by the victim in relation to that matter.
In relation to Count 2, the ‘incite sexual touching’ offence, the prisoner had sent a message to the victim asking her to do him a favour and to touch his penis the next time he was over at her place and she said okay. He came into her bedroom on the next visit to say hello. He hugged her, grabbed her hands and made her touch and rub his penis on the outside of his clothes. She tried to pull her hand away but the offender did not let her.
Counts 3 and 4 appear to be closely related in time, as could be said of all the offences having regard to some aspects of the victim’s evidence. So far as Count 3 is concerned, this was a Monday night. The prisoner came into the victim’s bedroom as she was about to go to sleep. The victim at that time was having her “period”. The prisoner felt the victim’s sanitary pad on her and said, “oops I didn’t think of that”. That is Count 3. After this he lifted up the victim’s shirt and kissed her breasts. That is Count 4.
Count 5 is an offence committed on the Thursday. The prisoner visited the victim’s house again in the manner that I have explained. The mother and father were there together on that occasion. He went in to talk to the victim in her bedroom. As he was talking to her he hugged her and kissed her on the lips. She described it “like a boyfriend or husband does” and then lifted up her shirt and bra and kissed her on the breasts.
In relation to the assessment of the objective criminality of the offending I have been helped greatly by the submissions of counsel for the prisoner and of course the learned Crown, who has gone into the matter in considerable detail. I have concluded in relation to the offence for the standard non‑parole period which I will come back to a moment for the offence, is just below the middle range of objective seriousness. Appreciating of course that the middle level of objective seriousness is not a “narrow band”, to cite the words of Spigelman CJ in the decision of R v Way [2004] NSWCCA 131, which was set aside in material respects on other grounds by the High Court of Australia seven years later in the decision of Muldrock v R [2011] HCA 39; 244 CLR 120, which led to the amendments that currently apply in respect of ss 54A and 54B Crimes (Sentencing Procedure) Act 1999.
With regard to the other four offences, to my mind, they vary in objective seriousness. I would regard Count 2 as more serious than the other counts albeit acknowledging that the touching of the accused’s penis occurred not on the skin of the penis but on the outside of the prisoner’s clothing. I reflected my assessment of the respective objective seriousness of each offence by the specific indicative sentences that I will impose. Appreciating of course a point that is sometimes noted, but in my view is always valid, that when a person commits a series of offences particularly sexual assault offences, if they come to the first offence without prior convictions, such good character as they may have as it be relevant to the sentencing exercise, can be seen to diminish over time. Because by the time the last offence is committed having regard the relevant pleas of guilty or verdicts of a jury, the person at the time of the last offence is in reality an unconvicted sexual offender in the example that I have given.
Each of the offences, however, of either inciting the sexual touching or actual sexual touching are offences to my mind that are at a low level of objective seriousness. But each in themselves, given the cognitive impairment of the child, the difference in age and the like would, standing alone, require the imposition of a term of imprisonment, in my view crossing the s 5 threshold. Count 1 is a serious offence and the most serious offence of all the offences and clearly is an offence in its execution that crosses the s 5 threshold of the “Act”.
With all sentencing exercises of course the starting point is the assessment of the objective seriousness of the offending in the context of the relevant maximum penalty for the particular offence for sentence. In the case of offences with standard non‑parole periods, regard has to be had to the provisions in the s 54AD of the Act. I will come back to the issue of the ‘standard non‑parole period’ in relation to Count 1 shortly. I am required in sentencing the prisoner, the Crown has reminded me but I am always aware of the fact that I have to have regard to the various purposes of sentencing pursuant to s 3A of the Act, noting that in this matter all purposes of sentencing have relevance to varying degrees to this sentencing exercise.
The character of the offending however, requires particular attention to general deterrence and if needs be, specific deterrence. I note having regard to the fact that the prisoner who is now 48 years and at the time of the offending as I would best calculate it was 46 years of age turning 47 in August 2019, had no prior criminal history and there is no suggestion in the available evidence of any background of sexual depravity or unusual sexual ideation.
To my mind, in some respects, and I am not making excuses for the prisoner, the circumstances of the offending can be understood by reference to the unusual circumstances of the prisoner’s access to the family. I pause for a moment to point out that I do not believe for one moment the prisoner gained access to the family with a view to sexually assaulting the daughter. But it is clear that he developed an emotional attachment to her in the context of, apart from having a relationship with his partner, living what appears to be a relatively solitary existence. There is nothing available to me, beyond of course the facts of the offending, to suggest that he remains or was previously a danger to the community. To my mind in the context of discussing personal deterrence, the imposition of what I regard as a substantial term of imprisonment will of its nature have a salutary deterrent effect upon him.
The submissions of the parties particularly the Crown, properly deal with the general principles to be applied in the case of his character having regard to the facts of the case and the specific charges brought. For the purposes of the judgment I now give there is no need to reiterate in detail the scholarship of the learned Crown Prosecutor. Generally speaking, I accept the principles expressed in the Crown’s submissions. I note in relation to all counts as I have pointed out already, the significant age difference between the prisoner and victim which is a substantial matter and the aspect of the degree of exploitation of the youth of the victim that follows.
There is evidence of some degree of grooming. But I am not convinced that all the communications between the prisoner and the victim were of a “grooming” character. But those communications developed to the point where the prisoner started to express himself in sexual terms. I cannot, as I said earlier, be satisfied beyond a reasonable doubt that the offending involves a course of conduct over a number of months, or that the grooming at all times was necessarily directed at anticipated sexual exploitation. I accept the prisoner developed an unhealthy relationship with the victim reflecting an intimacy not appropriate given the difference in age between the two. Of course at the forefront, in the background and all around this offending is the ‘circumstance of aggravation’ pleaded in Count 1. That is the victim’s cognitive impairment of which the prisoner was clearly aware.
I must say, viewing the prisoner’s extensive interview with the police, the prisoner was co‑operative to the extent that he permitted himself to be interviewed, never having been interviewed by police before as I would understand it. The prisoner gave a presentation of a person who did not have difficulty communicating but really had difficulty controlling his communications. There was something about his manner, and I do not say this in criticism of him but I was hoping it might be reflected in a psychological report that suggested, in my experience, of him being “on the spectrum”. Whether or not, I am unable to say, because I do not have expert evidence to assist me. I do have a psychiatrist’s report and I will come back to that. At the moment I am dealing with the objective seriousness of the offending.
It is correct to identify the offending as brazen as the Crown puts it, in that the offending occurred while at least one person was in the house, a short distance away from where the offences occurred. It is difficult to understand however why the prisoner in the absence of other evidence of paedophilic inclination or abnormal sexual interest in young people committed the offences. Particularly in the circumstances, as I understood the evidence, that he was engaged in a healthy sexual relationship with a mature woman who to my mind was a very impressive and forthright witness in the trial. I accept her evidence as to the character of her relationship with the prisoner.
I accept the submission of the Crown that the accused endeavoured to ‘cover his tracks’ in the context of the jury’s rejection of his claim that messages sent to the complainant after the event upon which the Crown relied to establish his sexual intentions, were sent to the complainant “inadvertently” but were rather meant for his partner.
In assessing the objective seriousness of Count 1, I have had regard to the character of the sexual act which I have summarised, the period of time over which it occurred, which was clearly, relatively short, a matter of minutes, making allowance for the potential and profound psychological effect upon the victim, in part reflected in her victim impact statement which I have read and which was read for her in this Court. I note the absence of physical injury to the victim. I note the absence of offer or threat of violence.
The Crown has cited a number of authorities in relation to each of the offences indicating that the absence of such features may not necessarily reduce the objective seriousness of the offending. That may be so, but they are still relevant to the assessment of the objective seriousness and that taken together, in this particular matter, they reflect offending which ultimately by a relationship to Count 1 is below the middle range of “objective seriousness of offences of this particular type” [s 54A(2)].
I note in assessing the objective seriousness of the offending, I am required to have regard to relevant aggravating factors and, to the extent that there are any, mitigating factors concerned with the objective facts. The absence of a criminal history of course is not relevant to the assessment of objective facts. I have taken into account in making the assessment of the objective seriousness of Count 1 the fact that the offence occurred in the victim’s home (s 21A(2)(eb)). I note the correctness of the submission made by the Crown that the violation occurred when she had a legitimate expectation that her home was a place of safety and refuge, but it is to be remembered that the prisoner was in the home by invitation. Of course this is also a breach of the courtesy that was extended to him in that regard. This is not a case of an offence committed within a home after forced entry by a stranger.

I have concluded another relevant factor to the objective facts that a mitigating factor under s 21A(3) was that the offending in Count 1 was “unplanned” even making allowance for the suggestion of grooming. Of course where there are aggravating and mitigating factors in a case relevant to the assessment of the objective seriousness of the offending there will be a variation in the degree of intensity and weight in the sentencing exercise.
If I could deal with one aspect however of the Crown’s submissions, probably the only aspect of the Crown’s submissions I do not agree with, the Crown submitted the offence fell within the middle range of objective seriousness which I do not accept. Importantly in that regard, I do not accept that the offences involved a ‘breach of trust’. The prisoner at no time during the course of the offending was responsible for the care of the children. Nor entrusted with the care of the child to him even temporarily. He was a guest in the house at the time of the relevant offences. He was, if I could use the expression used by the Crown, “trusted” by the victim but that does not of itself establish a “breach of trust”. I appreciate of course by being in the house the parents would have had an expectation that he would not assault or sexually interfere with the children, but again that does not in this matter establish what is required to be established beyond reasonable doubt of the breach of trust.
As considered in (s 21A(2)(k)) of the Act, I note in relation to each of the offences, although it probably comes back to the brazenness of the offending, at all relevant times a parent of the child at least was present at the house and of course the prisoner was not in the house for any purpose of exercising any form of guardianship or protection of the child. Of course these observations apply to all counts in the indictment, as do, in my view, the matters I have already identified as relevant issues to the objective seriousness of the offending in relation to all counts.
I have regard to the mandatory obligation to fix a non‑parole period having regard to the standard non‑parole period in respect of Count 1, mainly s 54A(2) and s 54B(2) of the Act, and of course the need to fix a non‑parole period in respect of the aggregate sentence that I propose as well as the indicative sentence.
I have had close regard to the issue of “totality”. This was a concept that is often spoken about by courts of high authority. The High Court dealt with it authoritatively in the decision of Mill v R [1988] 166 CLR 59, particularly at pp 62 to 64. It has been discussed by the High Court in the decision of R v Johnson [2004] HCA15; 78 ALJR 616. However in the context of sentencing an offender in relation to multiple offences committed in relationship to one another as is the case here, it seems to me that the most practical expression of the principle of totality is that expressed by Street CJ in R v Holder [1983] NSWLR 245, particularly at p 260, where his Honour said:

“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 accedes what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate in a broad sense the overall criminality involved in all the offences and having done so will determine what if any downward adjustment is necessary whether by telescoping or otherwise in the aggregate sentences (sic) in order to achieve the appropriate relativity between the totality of the criminality and the totality of the sentences.
The effect of this practical consideration is always to produce an ultimate aggregate which is less than what would have been arrived at by a straightforward adding up of the terms appropriate for the offences of each reviewed alone. In carrying out this process of adjustment, it is both inevitable, as well as proper, that the ultimate decision be arrived at in the light of the totality of the criminality involved in all of the offences.”

Of course, what that reflects is a philosophy somewhat different for sentences where Judges are said to accumulate sentences way beyond the life expectation of people that are sentenced in respect of multiple offences on some occasions. I note those observations by Street CJ occurred at the time when judges did not have the power to fix an aggregate sentence. We now can under s 53A of the Act.
If I might just turn to the other subjective material that I have not yet referred to. First of all I have a Sentencing Assessment Report attached to which is a report from a psychologist. The report from the psychologist employed by Corrective Services has a major deficiency in that the psychologist did not interview the prisoner. Thus, the psychologist’s ‘assessment of risk’, if I could call it that, which is based upon an actuarial assessment or instrument available to the psychologist involves an assessment of what some psychologists call “static” risk factors, as opposed to “dynamic” risk factors. I note in relation to this aspect of the matter, the psychologist appreciates there has been “no comprehensive assessment of dynamic risk factors as a face to face interview was not conducted”.
In fairness to the psychologist, she has observed some aspects of the prisoner’s background which accord with my understanding of the matter that may be contributing risk factors to the offending at least on this occasion. First of all the prisoner had few friends. The psychologist, I hasten to say, relying upon information given to a Community Corrections officer who prepared a report. He has family support. There is disbelief within his family that he has committed these offences which is of no moment to me, but simply reflects to me their support for him.
He has had a background of being bullied as a child and other history which I will not read onto the record which is not uncommon for offenders of this kind. He had a degree of isolation in his younger years. It was said that there are “indicators” that Mr Mizzi,

“may hold abnormal sexual interests that require further exploration”.

That is not an unreasonable observation in light of the facts. But there is no independent evidence of that beyond the facts of the case which of course are very important.

The assessment, based on ‘static factors’ is that he scored on the STATIC‑99R (an instrument to which I referred), within in the “below-average risk category”. It is recommended on release that he be referred to a psychologist from the community with expertise in working with sexual offenders. So far as the Sentencing Assessment Report is concerned, it reflects upon his relationship with a woman that I earlier referred to of 11 years. He has a public housing tenancy at Mount Druitt. He has siblings and nieces. The report of the Community Corrections officer was that he appeared to be a “largely socially isolated person”. Besides the victim’s family, “he had one friend with whom he had regular contact”. He has had past substance use issues and other psychological traumas, but nothing current at the time of the offending. He was in receipt of welfare.
He denied committing the offences. I need not comment upon that. He spoke of some anger towards the victim and the fact that he believes he has been falsely charged. There is an apprehended violence order in place to protect the victim. But I do not believe in the overall context of the available evidence that he is a continuing threat to the victim but I appreciate her concerns about her safety. It is not unreasonable for her to have those concerns.
The prisoner seems to have indicated that he felt that his relationship with the victim was one that arose out of her instigating “contact”. He has indicated a willingness to undertake any intervention necessary, including contact with a psychologist although he had some disparaging things to say about treatment interventions of which he could have no knowledge. He has never been subject to supervision before. He is assessed by the instrument used by the officer as being at “medium to low risk” of re‑offending and a supervision plan is identified, if required.
The defence produced a medico‑legal report from a psychiatrist, Dr Ahmed, dated 14 October 2020 setting out his background. There is no “formal psychiatric history”. Apparently in another relationship he had a foster child who died about 20 years ago through no fault of his. He had feelings of self‑harm arising out of that. The child apparently died of a rare disease at only six months of age and that brought an end to that marriage it would seem based upon the history that I have.
There is also an event of a traumatic character occurring as an 11 and 12 year old which may have had some impact upon his later psycho‑sexual development. He has never had treatment or counselling. He has barely worked over the past decade. He suffered serious injuries from a motor bike accident in 2012 when he was hit by a drunk driver, suffering serious foot injuries that required multiple surgeries. He suffers regular pain and requires pain killers to suppress the pain. I have no other medical evidence available to me as to whether that is amenable to supervision in custody. I am going to assume that it is. I have heard nothing to the contrary.
He did say that in his relationships in the past, he had some difficulties with “trust”. He conceded that he had from time to time a “bad temper”. But I hasten to say in the assessment of the objectives facts, I heard no evidence of him threatening the children or acting in an aggressive way towards the parents or anything of that character. His demeanour within the house where the victim lived would appear to be unexceptional.
He referred of some history of past cognitive deficits but there is no aetiology available to me in relation to that. He had some unclear memory of his relationship with the victim. In the opinion of the psychiatrist, reflecting upon that history that I have summarised, he noted that aspects of his psycho‑sexual history can contribute to difficulty regulating his temper and an inability to maintain or interpret appropriate boundaries. This can be a feature of those persons who suffered the background that he has and a greater likelihood of committing “sexual transgressions” as a result, although the prisoner does not admit that he did that.
The prisoner has had a background of self‑medicating with alcohol and marihuana but was not in any way addicted to alcohol or marihuana at the time of the offending, it would appear. He committed all the offences whilst sober. He considered by himself to be “relatively functional” maintaining the relationship with a lady to whom I spoke, but through injury and pain and the like has not been able to work for some years.
There is no psychiatric illness identified that I can find in the report, or in the other material, or psychological condition which might operate to give less weight to general deterrence or greater weight perhaps to personal deterrence that sometimes is required and is discussed by Gleeson CJ in the decision of R v Engert (1995) 84 A CRIM R 67, cited with considerable approval by McClellan J when he set out various principles in relation to sentencing people with mental illnesses or disabilities causally connected to offending in the 2010 decision of De La Rosa [2010] NSWCCA 194, particularly at [177]-[178]. Bearing in mind of course that those principles in De La Rosa reflect what had been discussed by Sperling J in the decision of Hemsley v R [2004] NSWCCA 228 in almost identical terms and had been picked up by other judges in many decisions of the Court of Criminal Appeal since 2010. Ironically I had the difficult task of applying Hemsley principles to Ms Hemsley when she returned a couple of years later committing the same offences for which she was the subject of an appeal to the Court of Criminal Appeal in 2004.
I have had regard to the helpful submissions of counsel for the accused. Obviously I have had regard to the helpful submission of the learned Crown Prosecutor both in relation to the facts and the available evidence. The Crown in fairness notes the brief duration of the offending, but says that there must be, in the scheme of things, some partial accumulation at least of sentences. There is an acknowledgment of his prior good character. There will be some impact upon him with the COVID‑19 pandemic still with us. It ceased to be a regular matter raised in sentencing proceedings as things have settled down. But, it is matter since March of this year I have acknowledged as relevant to the sentencing process. Amongst other reasons people now in custody do not have the same opportunity of contact with the outside world because of COVID-19 restrictions and there being also restrictions upon access to services and counselling and the like up until the present time which is to be noted.
His learned counsel in his submissions referred to the prospects of rehabilitation of the prisoner and that there should be a finding of ‘special circumstances’. I must say, in fairness to the Crown, the Crown’s view in relation to the issue of good character was that it was not a matter of significance in this sentencing exercise in accordance with authority which he cites.
With regard to other mitigating factors that arise under s 21A(3) of the Act, notwithstanding the character of this offending, noting his age and his prior good character, I am prepared to accept that he is unlikely to re‑offend. The sentence will be statutory. I accept, although there is some equivocation in the report of the Community Corrections Service, that he has good prospects of rehabilitation particularly in the presence of family support and in the absence of evidence that the offending represents ingrained attitudes on his part.
At the time of the first offence and the most serious offence by way of counts pleaded in the indictment, he was a person of good character. I do not accept that he used his “good character” to provide the opportunity to commit the offending. He obviously had ingratiated himself with the parents. But I do not believe that he did so, nor was it suggested that he did so, by holding himself out to be a person without prior convictions. As I have said, the relationship with the parents grew out of a mutual involvement in recreational activity.
I have determined that there should be a finding of “special circumstances” pursuant to s 44 of the Act, requiring an adjustment of the relationship of the non‑parole period of the balance of sentence. This reflects the need for an extended period of supervision to assist him to adjust to community living and to receive such counselling and/or treatment as may be identified whilst in custody and out of custody, to prevent him if needs be, offending similarly in the future.
I do not understand, notwithstanding what the victim has said eloquently in her victim impact statement, that there is in reality a continuing threat to the victim or her family (the prisoner was on bail as I understand it right up until the trial, and after that had 55 days in custody). There is no suggestion of any interference with the family once he was charged in relation to this matter.
The extent to which he does require guidance in the future is not possible to estimate at this time. But it is a matter that I appreciate will require some attention in the future. It will require for example, someone suitably skilled and trained to sit down with him and talk through the issues which to my mind, even allowing for the fact that he has spoken to a psychiatrist, has not been done. I believe there is a need in his case for the undertaking of some psychometric testing to analyse whether there are some underlying issues that have not been yet identified. I cannot speculate about that matter. Certainly in the context of fixing the non‑parole period, serving his first term of imprisonment at this age will result in the need for professional assistance to assist him to adjust to community living.
Thus in these circumstances, I have concluded pursuant to s 53A, Crimes (Sentencing Procedure) Act 1999, that an aggregate sentence should be imposed. Mr Mizzi, you do not need to stand up. I saw you standing up in the room some distance away from me. I would ask you to stand up if you are in court in the dock.
In respect of all counts you are convicted. Pursuant to s 53A, Crimes (Sentencing Procedure) Act 1999, you are sentenced to an aggregate sentence of seven years’ imprisonment commencing on 4 August 2020, expiring on 3 August 2027. I fix a non‑parole period of four years, three months’ imprisonment, commencing on 4 August 2020 and expiring, on my calculation, on 3 November 2024. So you are eligible on my orders, subject to your rights of appeal and the Crown’s rights of appeal, to be released to parole on 3 November 2024.
The indicative sentences as I impose are as follows:

In relation to Count 1; a sentence of five year’s imprisonment with a non‑parole period of three years’ imprisonment

In relation to Count 2; I sentence you to an indicative sentence of two years’ imprisonment.

In relation to Count 3; I sentence you to an indicative sentence of one year, six months’ imprisonment.

In relation to Count 4; one year six months’ imprisonment.

In relation to Count 5; one year nine months’ imprisonment. I note in relation to Count 5, there are in fact two acts alleged by the Crown that might be seen as “sexual touching” within the one series of actions.

Thus, as I said, the total sentence applying for example the principles in Holder and other totality principles in other cases, the total sentence of seven years with a non‑parole of four years, three months.
One thing I should tell you, Mr Mizzi, I do not have any control over these matters. Before you are released to parole you may be required to undertake courses in custody to ensure that at least there is some education of you in relation to matters that may prevent you offending in the future. The Parole Authority has the right not to grant parole to you at the end of four years and three months. So your release to parole will be very much dependent upon your behaviour whilst in custody. Do you understand that?
OFFENDER: I do.
HIS HONOUR: Right. Thank you, Mr Mizzi. Madam Crown any technical matter from you?
LIND: No thank you, your Honour.
HIS HONOUR: Any matter from you, Mr Watson?
WATSON: No thank you, your Honour.
HIS HONOUR: Right, thank you Mr Mizzi you are excused thank you.

**********

Decision last updated: 27 January 2021

Medium Neutral Citation:	R v Mizzi [2020] NSWDC 819
Hearing dates:	21-29 September 2020; 6 November 2020
Decision date:	19 November 2020
Jurisdiction:	Criminal
Before:	Norrish QC DCJ
Decision:	Sentenced to an aggregate term of 7 years imprisonment; non parole period 4 years 3 months imprisonment.
Catchwords:	CRIME – sentence – aggravated sexual intercourse with child aged between 10-14 years – child with cognitive impairment - no prior convictions – no breach of trust – significant age difference – no psychiatric or psychological factors.
Legislation Cited:	Crimes Act1900 Crimes (Sentencing Procedure)Act1999.
Cases Cited:	De La Rosa [2010] NSWCCA 194 Hemsley v R [2004] NSWCCA 228 MillvR [1988] 166 CLR 59 Muldrock v R [2011] HCA 39; 244 CLR 120, R v Engert (1995) 84 A CRIM R 67 RvHolder [1983] NSWLR 245 R v Johnson [2004] HCA 15; 78 ALJR 616 R v Way [2004] NSWCCA 131
Category:	Sentence
Parties:	Regina (Crown) Lawrence Mizzi (Offender)
Representation:	Counsel: Ms S Lind (DPP) Mr C Watson (Offender)
File Number(s):	2019/00192195
Publication restriction:	Non publication order of the victim’s name or any material that would lead to her identification