R v ML

[2022] NSWDC 485

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v ML [2022] NSWDC 485

Hearing dates:

19 August 2022

Date of orders:

19 October 2022

Decision date:

19 October 2022

Jurisdiction:

Criminal

Before:

Wilson SC DCJ

Decision:

See [90]

Catchwords:

SENTENCING – intentionally sexually touch child under 10 years (DV) – use child under 14 years to make child abuse material – intentionally carry out sexual act with child under 10 years (DV) – sexual intercourse without consent (DV)

Legislation Cited:

Crimes Act 1900

Crimes (Domestic and Personal Violence) Act 2007

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Chamseddine v R [2017] NSWCCA 176

JM v R [2014] NSWCCA 297

Markarian v The Queen [2005] HCA 25

Muldrock v The Queen (2011) 244 CLR 120

Category:

Sentence

Parties:

Regina
ML

Representation:

Counsel:
Mr O’Connor (Crown)
Mr Radojev (Offender)

Solicitors:
ODPP
Four Tree Lawyers

File Number(s):

2020/00363022

Publication restriction:

Non-publication order in respect of the complainants and any matter which may, directly or indirectly lead to their identification (Crimes Act, s578A and Children (Criminal Proceedings) Act 1987, s15A).

Judgment

The charges for sentence

1. The offender has pleaded guilty and is to be sentenced for the following 6 offences:

1. sequence 5- intentionally sexually touch a child under the age of 10 years (domestic violence) in breach of section 66DA(a) of the Crimes Act 1900. This carries a maximum penalty of 16 years imprisonment and the standard non-parole period of 8 years;

2. sequence 7- sexual intercourse without consent (domestic violence) in breach of section 61I of the Crimes Act 1900. This carries a maximum penalty of 14 years imprisonment and standard non-parole period of 7 years;

3. sequence 9- a further charge of intentionally sexually touch a child under the age of 10 years;

4. sequence 10- use a child under 14 years to make child-abuse material in breach of section 91G(1)(a) of the Crimes Act 1900. This carries a maximum penalty of 14 years imprisonment and a standard non-parole period of 6 years;

5. sequence 11- a further charge of using a child under the age of 14 years to make child-abuse material;

6. sequence 13- intentionally carry out sexual act with child under the age of 10 years (domestic violence) in breach of s66DC(a) Crimes Act 1900. This carries a maximum penalty of 7 years imprisonment and a standard non-parole period does not apply.

Adherence to pleas

2. ML do you maintain your pleas of guilty entered in the Local Court in respect of those 6 charges?

Guideposts

3. The maximum penalties and standard non-parole periods, where they exist, are guideposts for sentencing judges reflecting the seriousness with which the community, through Parliament, views the offending. There is no doubt whatsoever that sexual offending involving children is serious and requires condign punishment.

Standard non-parole periods

4. The standard non-parole period is a matter to be taken into account as part of the determination of sentence. The legislation in Part 4 Division 1A of the Crimes (Sentencing Procedure) Act (CSP Act) specifies that the standard non-parole period applies to an offence found within the middle of the range of objective seriousness for such an offence, taking into account only objective factors, and without bringing to account any matters that are unique to the offender or the class of offenders.

5. Ultimately though, the standard non-parole period is but a factor to be taken into account in the sentencing exercise, together with the objective and subjective matters. This process of instinctive synthesis, as described by McHugh J in Markarian v The Queen [2005] HCA 25 at [51], mandates that a sentencing judge:

identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case”.

6. Indeed, in a single judgment, all justices of the High Court in Muldrock v The Queen (2011) 244 CLR 120 held at [17]:

It remained, and remains, essential to recognise, however, that the fixing of a non-parole period is but one part of the larger task of passing an appropriate sentence upon the particular offender. Fixing the appropriate non-parole period is not to be treated as if it were the necessary starting point or the only important end-point in framing a sentence to which Div 1A applies.

7. Thus, even though an offence might be found to be within the middle of the range of objective seriousness, it does not follow that the standard non-parole period will apply, nor that there shall be a percentage calculation performed where the offence might be found lower on the scale of seriousness.

8. The process is not arithmetical but more intuitive, however the law requires that I determine where on the scale of objective seriousness the offences fall. The precise positioning of the offence along the scale is a matter of judgment, and is not easy to identify. While I am not compelled to impose a standard non-parole period, s 54B(3) of the CSP Act requires a sentencing judge to make a record of reasons for setting a non-parole period that departs from the standard non-parole period, as well as identifying the factors taken into account when doing so.

9. For the reasons provided below, I do not intend to impose the standard non-parole periods.

Procedural history

10. The date range for offences is from 24 February 2019 through to 13 June 2020.

11. The offender was arrested on 22 December 2020. The next day he was bail refused at Wagga Wagga Local Court and has remained bail refused since that date. On 23 March 2022 he was committed for sentence from Wyong Local Court.

Commencement date

12. Although the offender has been in custody since 23 December 2020 not all of that time is solely referable to the subject offending.

13. At the time of his arrest, he was on parole for offences in respect of which he was sentenced on 13 October 2020. That sentence comprised of a head sentence of one year 10 months commencing 18 June 2020 and expiring 17 April 2022 with a non-parole period of 11 months commencing 18 June 2020 and expiring 17 May 2021.

14. In addition, on 10 May 2021 he was sentenced to 9 months imprisonment for the period of 10 October 2020 to 9 July 2021.

15. He has, however, been in custody in respect of the subject matters solely from 10 July 2021 to date. Nevertheless, to allow some concurrency in the interests of totality, I intend to commence the index sentence on 2 January 2021. For clarity, that allows concurrency of 50% of the time in custody for unrelated matters.

16. At this point, I note that the index offending constituting sequence 7 was committed on 13 June 2020 when the offender was on bail for offences being charge number H ending 224. This will be taken into account later in these remarks as an aggravating factor.

Agreed facts

17. The offender was born 12 April 1988 and was aged between 30 and 32 years the time of the offending.

18. The victims are EW an adult, AW born September 2017 and DS born December 2014.

19. EW was the offender’s partner at the time of the offending. AW is the biological daughter of EW and the offender. She was about 2 years of age at the time of the offences. DS is the biological son of EW. He was about 5 years old the time of the offences. He was diagnosed as being on the autism spectrum when he was 2 ½ years of age and his use of language has been delayed.

20. EW met the offender in December 2016 and they soon started discussing moving in together. DS also began to call the offender “dad”. The offender was an ice addict. In February 2017 he was living between a boarding house in Sydney, his sister’s home and the home of the father of EW, AM.

21. The offender’s relationship with EW ended twice in 2017, first in June and then in September. They were not in a relationship when AW was born. One month after her birth, the offender was placed into custody on unrelated matters. Upon his release 6 months later in about March/April 2018 he resided with EW for a period of 3 weeks. He moved out in May 2018 but still spent time with EW, DS and AW.

22. The following facts relate to sequences 5 and 10.

23. On 24 February 2019 at 10:30 AM EW was at a local cinema. The offender was at home babysitting AW. The offender took a photograph of AW’s vagina by pulling her nappy to one side. The photograph was timestamped 11:51 AM on 24 February 2019.

24. The following facts relate to sequence 11.

25. On 3 April 2019 at 7 PM EW was out shopping and both AW and DS were home with the offender. The offender took two photographs of AW’s vagina. The first photograph was timestamped 8:38 PM. The offender took a second photograph of AW’s vagina with her hand placed upon it. That photograph was timestamped 8:39 PM.

26. The following facts relate to sequence 9.

27. While taking the photographs of AW’s vagina on 3 April 2019, the offender “played with her vagina” and “spread her flaps”.

28. On 17 June 2020 the offender was incarcerated.

29. In a gaol call to EW on 29 June 2020 the offender gave her the password to his Google account so that she could access information from an old telephone which had been backed up on the Google Drive. When she accessed the account that night she found the above offending images.

30. EW spoke to the offender on the telephone whilst he was in gaol about the photographs. In one call he said that he knew it was wrong. In another phone call he denied taking the photographs. In a gaol letter the offender admitted taking the photographs. He said he did not know why he took them but deleted them straightaway because he knew it was wrong.

31. The following facts relate to sequence 7.

32. At about 6 AM on 13 June 2020 EW took Valium to help her sleep. She was also under the influence of illicit substances. She has no memory of what occurred between 6 AM and 8 AM. When she woke up her pants were down. She then fell back to sleep. At 7:35 AM on 13 June 2020 the offender had penile/anal intercourse with EW without her consent. The offender video recorded himself committing this act. The footage taken at the time showed that EW was not making any noise and was asleep.

33. At 2:16 PM the offender again had penile/anal intercourse with EW without her consent. The offender video recorded himself committing that act. The footage taken at that time showed that she was asleep and unresponsive.

34. When she awoke at 2:20 PM her pants were down again. She remembered that when she went to the toilet shortly after waking up there was blood on the toilet paper that was coming from her anus.

35. On 30 June 2020 EW reported the above offences to the police at Wyong.

36. The following facts relate to sequence 13.

37. On 5 August 2020, EW took DS to a counsellor. During the counselling session, he disclosed that the offender had behaved in a sexually inappropriate manner towards him. The offender later made admissions that he masturbated in the presence of DS. In a gaol call to EW on 14 September 2020 the offender said that if DS had not made the disclosure to the counsellor he would never have made any admissions about his conduct towards DS.

38. Those are the agreed facts signed by the offender and on behalf the Crown.

Subjective case

Prior convictions

39. The offender has convictions in New South Wales and South Australia. His criminal history in this State commenced at the age of 18 years. There is a wide range of convictions including destroy or damage property, offences against police, domestic violence offences, general offences of violence, child sexual offences, driving offences and offences of dishonesty. The Australian Federal police records note 3 use carriage service offences to threaten to kill and menace or harass. His offences in South Australia relate to dishonestly taking property without consent. He appears to have been in custody on about 12 occasions.

Social history

40. This is summarised in the report by Dr Chew (Exhibit 1).

41. The offender was a ward of the state from the age of 9 months. His mother had significant mental health issues. His father was an alcoholic. He had four biological sisters and one biological brother. He described growing up in a supportive foster family. His foster father remains supportive. His foster mother passed away about 8 years ago.

42. He left school at the end of year 10 as he found it difficult. At the age of 11, he was sexually abused by his foster sister’s boyfriend. Prior to being in custody he worked as a landscaper.

43. He has 4 children including AW (now 5 years), another daughter aged 7 years, a 14-year-old son and a 15-year-old daughter. The offender was engaged in a relationship with EW from 2016. There was a history of substance abuse. The offender started using alcohol at around the age of 17 and smoking cannabis at about 18. He started using methamphetamine at the age of 14, smoking not injecting.

44. The offender said that he suffered emotional difficulties since being sexually abused the age of 11. He was diagnosed and treated with ADHD from the age of 11 until the age of 21. He has suffered PTSD since the bushfires of 2009. Two weeks prior to going to prison he overdosed on diazepam and antidepressants. He referenced that as a suicide attempt. He reported four previous suicide attempts from the age of 17.

45. He was a volunteer firefighter involved in the Black Saturday bushfires of 2009. He saw several burnt bodies and now suffers PTSD. He reported flashbacks, nightmares, hypervigilance and anxiety. He said his current diagnoses were PTSD, anxiety and depression for which he is receiving medication in custody.

Opinion of Dr Chew

46. On examination the offender presented well, despite self-describing his mood as “a little depressed”. The offender expressed remorse for the offending. Dr Chew expressed the opinion that the risk of sexual recidivism fell in the range of 6.1% to 12.2% after 5 years. The precise meaning of that assessment remains unclear. The doctor diagnosed a substance use disorder and appeared to accept the diagnosis of PTSD related to the bushfires. The doctor thought that the offender had fallen into substance abuse in an attempt to manage his psychological symptoms. Time did not permit Dr Chew to determine a diagnosis of paraphilia.

47. Dr Chew expressed the following opinion:

At the time of the offending behaviour he was suffering from the above mental conditions. He appears to have been using substances as well. The combination of these factors likely impaired his judgment and may have impaired his recollection of events.

48. By “mental conditions” the doctor said that he was referring to the childhood sexual abuse, PTSD, anxiety and depression and substance use disorder. In cross examination, Dr Chew said that the combination of substance use and the psychological conditions probably impaired his judgment at the time of the offending. He appeared, however, to be of the opinion that the psychological conditions alone could possibly have impacted his judgment.

49. Dr Chew was of the opinion that incarceration would exacerbate the mental conditions suffered by the offender. He was also concerned that the impact of Covid-19 on correctional facilities would further compound his risk of deterioration in mental health.

50. Commencing at paragraph 42 of his report, Dr Chew set out a treatment plan devised for the offender.

Letter from offender

51. I have read a letter from the offender dated 4 July 2022. Most of the historical information was also in the psychiatrist’s report. The offender said that he has been clean and sober for 2 years and looks back on his life with deep regret and remorse. In relation to the subject offending, he expressed sorrow and acknowledged the harm caused to the victims. He said that due to heavy drug use he does not have a full recollection of his actions but takes full responsibility for what has occurred. On release, he plans to reside with his foster father and to assist in his care. He also wants to work on himself and receive treatment in order to become a better father to his children.

The offender’s foster father

52. I have also read and had regard to the letter from KL. Again, he confirms some of the history provided by the offender. He described the offender as a “highly respectful member of our family”. In the many conversations he has had with the offender whilst in custody, the latter has expressed remorse and shame. Some medical records for the offender’s foster father were also tendered. It is plain from those records that KL suffers a number of conditions which would, I expect, necessitate the provision of care.

Submissions-Crown

53. The Crown submitted that the section 5 threshold was met and that the only appropriate sentence was one of full-time imprisonment for a significant period. It was submitted that the sentence calls for, accountability for his actions, a recognition of the harm done to the 3 victims and the need to protect the community from the offender.

54. Sexual offences against children are of the utmost seriousness (JM v R [2014] NSWCCA 297). They are objectively serious and cause significant harm (Chamseddine v R [2017] NSWCCA 176).

55. In relation to the offences of sexual touching against AW, the Crown submitted that sequence 5 was around the mid-range and sequence 9 was slightly above the mid-range. In determining how objectively serious the offending was, it was submitted that regard be had to the following factors:

1. the age difference between the child and the offender, in this case about 28 years;

2. the age of the child relative to the age rage encompassed by the offence provision. In the present case the child was 2 and the offence provision encompassed children under the age of 10;

3. the objective seriousness is not reduced by the fact that the child was unknowing due to her age;

4. the absence of evidence of harm is not a mitigating factor; and

5. the actual character of the assault and the degree of physical contact also informs the question of seriousness.

56. The Crown submitted that the following statutory aggravating factors exist:

1. the fact that it occurred in the victim’s home (s21A(2)(eb)); and

2. the fact that the offender abused a position of trust or authority (s21A(2)(k)).

57. In respect of the charge regarding the child-abuse material, the Crown pointed to the fact that the offender was responsible for the original production of the images and that the child was a member of the offender’s family. After considering the young age of the victim, the role of the offender, the victim’s relationship to the offender, the nature of the images taken and that there were just 2 photographs, the Crown submitted the objective seriousness of these offences was at the low to mid range.

58. In relation to the offending against DS, relevant to the assessment of seriousness is the age of the victim (5 years in relation to the offence provision which applies to children under the age of 10) and the nature of the sexual act, here, masturbation. In addition, the Crown relied upon two statutory aggravating factors namely that the offender abused a position of trust or authority and that the child was vulnerable by reason of his autism. The Crown submitted the objective seriousness fell towards the middle of the range.

59. In relation to the offending against EW, relevant to the assessment of objective seriousness is that the complainant was asleep or unconscious at the time, the nature of the act (here, penile/anal) and that the offending was recorded by the offender. It was submitted that the objective seriousness of this offending fell just above the mid-range. This offending is also aggravated by the fact that it occurred at a time when the offender was on conditional liberty.

60. The Crown conceded a mitigating factor namely the guilty pleas which attracts a discount of 25% pursuant to section 25D of the CSP Act.

61. In oral submissions, the Crown conceded that it was open to find reduced moral culpability based upon the offender’s childhood and psychiatric conditions, although the evidence was insufficient to raise the matter to the level contemplated in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1. The Crown emphasised that given the domestic nature of this offending that general and specific deterrence are important sentencing purposes.

Submissions-Offender

62. The offender conceded that the section 5 threshold was crossed and that a sentence of full-time custody was appropriate.

63. In respect of the count of sexual intercourse without consent, it was submitted that the objective seriousness fell just below the mid range. In relation to the taking of photographs, it was submitted that it fell below the mid range of objective seriousness.

64. It was submitted that the important purposes for sentencing in this case include general deterrence, rehabilitation and denunciation.

65. It was conceded for the offender that the fact that the offending took place in the home of the victims was an aggravating factor. The offending in relation to EW is also aggravated by the fact that the offender was the subject of conditional liberty.

66. It was submitted for the offender that a number of statutory mitigating factors arise. First that the injury, emotional harm, loss or damage caused by the offending is not substantial. I do not accept that the offender has established this a matter on the balance of probabilities.

67. It was next submitted that the offender does not have any significant record of previous convictions. I refer to my analysis of the history of convictions earlier in these remarks and reject that submission.

68. It was submitted that the offender is unlikely to reoffend and in support of that submission it was stated “reference from foster father with supportive family will assist in reducing the future risk of reoffending.” I do not accept that submission. In my view, any risk of reoffending turns upon the outcome of his participation in rehabilitation.

69. Next, it was submitted that the offender has good prospects of rehabilitation. There is no evidentiary basis for the submission. Whilst the offender himself has indicated a desire to change his ways, his criminal and social history may present hurdles to successful rehabilitation. Whilst I embrace the positive submissions advanced by counsel appearing for the offender, my finding is that the prospects of success in rehabilitation are guarded.

70. It was submitted that I ought to make a finding of remorse. The evidentiary basis for that comes from the history taken by Dr Chew, the offender’s letter and the history provided by his foster father. I am inclined to accept those expressions of remorse including the acceptance of responsibility and the acknowledgement of the harm caused by his conduct.

71. Finally, it was also submitted the plea of guilty is a mitigating factor. I accept that submission but acknowledge the Crown’s submission that the pleas came in the face of a very strong Crown case.

Aggravating factors

72. In relation to all offending, save for sequence 13, it is apparent that the offending took place in the home, a place where the victims were entitled to feel safe. This is an aggravating factor.

73. In relation to the offending against children it occurred in circumstances where the offender abused a position of authority or trust. This is a further aggravating factor.

74. In relation to sequence 13, the offending against DS, I accept the Crown’s submission that the victim was vulnerable by reason of his medical condition.

Mitigating factors

75. I have previously expressed my views on the risk of reoffending and prospects of rehabilitation. Regrettably, I am not satisfied the evidence rises to the level where these can be found as mitigating factors.

76. I accept that the offender has demonstrated remorse in that he has accepted responsibility for his conduct and acknowledged the harm caused to his victims so as to entitle him to such a finding as a mitigating factor.

77. The pleas of guilty are also mitigating factors.

Objective seriousness

78. In relation to the 2 charges of intentionally sexually touch a child under the age of 10, I find that sequence 9 is more serious than sequence 5 given the additional contact involved. In determining the objective seriousness of these offences, I have had regard to the age difference between the offender and the victim, the age of the victim in the context of the age range provided by the statutory offence provision and I acknowledge that offending of this type is generally regarded as objectively serious. I find that the objective seriousness of the conduct being sequence 5 was at the mid range and sequence 9 just above the mid range.

79. In relation to the charge of sexual intercourse without consent (sequence 7) I find the objective seriousness fall at the mid range having regard to the fact that it occurred at a time when the victim was asleep and the fact that it was filmed by the offender.

80. In relation to the child-abuse material charges (sequences 10 and 11) I find that the objective seriousness falls at the low end of the range having regard to the following factors: the number of images; the nature of the images; the fact that the images were deleted although stored on a drive; and the fact that the images were not in any way distributed or disseminated.

81. In relation to the offending against DS (sequence 13) I have had regard to the age of the victim (5 years) in the context of a statutory provision of under 10 years, the nature of the offending and the abuse of trust and authority which led to it. I find that the offending falls just below the mid-range.

Formulation of sentence

Section 5 finding

82. I adopt the submission for the offender and find no sentence other than one of imprisonment is appropriate in circumstances.

Purposes for sentence

83. Deterrence both general and specific always arise as mandatory purposes for sentencing in respect of sexual offending, particularly against children. The sentence must also be adequate and recognise the harm caused to the victims. There is also a clear need for rehabilitation.

Special circumstances

84. I find special circumstances on the grounds that the offender’s time in custody is made more onerous by reason his psychiatric conditions, the fact that he has been in custody during Covid 19, the fact that he is at risk of institutionalisation by reason of his prior periods in custody and, importantly, the need for the offender to engage in rehabilitation in the community.

85. It is also for these reasons that I also do not apply the standard non-parole periods.

Aggregate sentence

86. I intend to impose an aggregate sentence pursuant to section 53A of the CSP Act.

Indicative terms and, where applicable, indicative non-parole periods

87. After a discount of 25% for the guilty pleas, I specify the sentences which I would have imposed, as follows:

1. for sequence 5, intentionally touch child under the age of 10 I provide an indicative term of 2 years 6 months with an indicative non-parole period of 15 months;

2. for sequence 7, sexual intercourse without consent I provide an indicative term of 3 years 6 months with an indicative non-parole period of 21 months;

3. for sequence 9, the second charge of intentionally sexually touched a child under 10 years, I provide an indicative term of 3 years with an indicative non-parole period of 18 months;

4. for sequence 10 use a child under 14 years to make child-abuse material, I provide an indicative term of one year and indicative non-parole period of 6 months;

5. for sequence 11, use a child under the age of 14 years to make child-abuse material I provide an indicative term of 18 months and an indicative non-parole period of 9 months; and

6. for sequence 13, intentionally carry out a sexual act with a child under the age of 10 years, I provide an indicative term of 9 months.

Totality

88. The sentence must reflect the fact that there are 3 victims and 4 separate acts of offending. Notwithstanding those considerations there must, in my view, be a degree of concurrency in order to avoid a crushing sentence. I have taken these considerations into account in determining the sentence.

Conviction

89. You are convicted.

Sentence

90. You are sentenced to an aggregate sentence of 8 years imprisonment commencing 2 January 2021 and expiring 1 January 2029. I impose a non-parole period of 4 years which will expire on 1 January 2025, at which time you will be eligible to be considered for release on parole.

Additional orders

91. In accordance with section 12 of the Crimes (Domestic and Personal Violence) Act I direct that all of these convictions be recorded as domestic violence offences.

92. As required by section 39(2)(b) of the Crimes (Domestic and Personal Violence) Act I impose a final domestic violence order of 5 years to commence upon his release from custody. The Protected Persons are the three victims of this offending and their families.

93. The final domestic violence order includes the prohibitions and restrictions set out in section 35(2)(a), (b), (c1) and (e) and section 36(a)-(c) of the Crimes (Domestic and Personal Violence) Act.

94. The conditions of the AVO are as follows:

1. you must not do any of the following to the protected persons or anyone the protected persons has a domestic relationship with:

1. assault or threaten them;

2. stalk, harass or intimidate them; and

3. intentionally or recklessly destroy or damage any property that belongs to or is in the possession of them.

2. you must not approach the protected persons or contact them in any way, unless the contact is through a lawyer; and

3. you must not approach:

1. the school or any other place the protected persons might go to for study; and

2. any place they might go to for childcare.

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Amendments

19 October 2022 - offender name anonymised in [2].

Decision last updated: 19 October 2022