R v Mr

[2019] NSWDC 755

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v MR [2019] NSWDC 755
Date of orders:	13 December 2019
Decision date:	13 December 2019
Jurisdiction:	Criminal
Before:	Priestley SC DCJ
Decision:	Aggregate term of imprisonment of 6 years with a non parole period of 4 years commencing 6 September 2019 No action on breach of bonds
Catchwords:	Sexual intercourse without consent victim 16 years– Assault with Act of indecency
Legislation Cited:	Crimes Act 1900 Crimes (SP) Act 1999
Cases Cited:	Savvas v The Queen (1995) 183 CLR 1
Category:	Sentence
Parties:	Regina (Crown) MR
Representation:	Counsel: Mr Reynolds for the Crown Mr Hussey for the Offender   Solicitors Mr C Eade for the offender
File Number(s):	2013/266340 2018/4189
Publication restriction:	Non publication of name of victim

TABLE OF CONTENTS

The offences - paragraph 1

The facts - paragraph 4

Background - paragraph 1

Objective seriousness - paragraph 5

Count 1 - paragraph 9

Count 2 - paragraph 13

Count 3 - paragraph 16

Count 4 - paragraph 19

Count 5 - paragraph 22

Subjective matters - paragraph 27

Sentencing considerations - paragraph 48

Indicative sentences - paragraph 54

SNPP - paragraph 57

ORDERS - paragraph 60

Judgment

The offences

1. The offender MR (“the offender”) was charged with five offences the details of which will be set out in the facts below. The offender pleaded not guilty to each charge and after a trial conducted from 28 August 2019 to 6 September 2019 a jury returned verdicts of guilty on all five counts. Four of the charges were pursuant to section 61L of the Crimes Act being the offence of indecent assault. The other (count 2 on the indictment) was a charge under s61I of sexual intercourse without consent and knowing that the complainant was not consenting. In each count the complainant was the same person.

2. The maximum sentence in respect of each of the assault with act of indecency is five years and there is no standard non-parole period. The maximum penalty for sexual intercourse without consent is 14 years with a standard non-parole period of seven years.

3. The offender is also to be dealt with for breaching two s9 bonds operative at the time of the offending.

The facts

4. The following is a transcription of facts prepared by the Crown following the trial and agreed to by the offender. Except to the extent commented upon following the transcribed facts, I find the facts to be as set out in the transcription.

Background

1. MR ("the offender") was born on 3 July 1979 and was aged 37 years old at the time of the offences. The offender lived at S.

2. JM ("the complainant") was born on 22 November 2000 and was aged 16 years at the time of the offences. In late 2016 the complainant was living with his grandmother. The complainant's parents and siblings lived at an address in T. The complainant did not live with his parents because he and his father didn't get along well although he would visit their house at T. In 2016 the complainant was in Year 10 at WCC. In 2017 the offender attended JCC and was in Year 11.

3. The complainant met the offender in late-December 2016. The complainant was on a bus with TP and MW. The offender was travelling on the bus with NB who was aged 21 years of age. TP and NB developed an interest in one another. To enable future contact between TP and NB, the offender put his telephone number into the complainant's phone because NSB did not have a phone and TP's phone was not working. The two groups got off the bus and went their separate ways.

4. TP and NB commenced a relationship. Because of the complainant's friendship with TP he became "pretty good mates" with NB and began spending time at S.

5. On 24 January 2017 NB was incarcerated at X Correctional Facility. After NB was incarcerated the complainant started residing at S with the offender. The complainant indicated that he stayed there so he could visit NB at X Correctional Facility and also to assist the offender with some yard work. The offender hired vehicles and took the complainant driving as the complainant was on his L­ plates. In all the complainant thinks he stayed at S for about two weeks. The complainant slept in the lounge room a mattress on the floor.

The first incident

6. In the second week that the complainant stayed at S the complainant fell asleep on the larger of two mattresses in the lounge room. There was a single mattress situated next to it at that time. The complainant was wearing a t-shirt, shorts and underpants. The complainant recalled that the offender was in the kitchen when he fell asleep. At some point later the complainant woke and the offender had his hands down the complainant's underpants and was holding his penis. The offender stroked the complainant's penis with his hand for around 15 minutes. The offender was laying next to the complainant on the smaller mattress as he did this. The complainant felt afraid and froze because he was scared. The complainant rolled over. The offender got up and took the keys to the hire car and left the house for a couple of hours. The complaint felt "shaken up" and laid on the mattress in the loungeroom trying to "process on what happened". After a period of time the complainant fell asleep. (Count 1: Assault with act of indecency)

7. Sometime later, the complainant woke and the offender was performing oral sex on him. The complainant recalled that it was still dark outside when the offender did this. The offender had the complainant's penis in his mouth and offender's hand was around the base of his penis. The offender moved his mouth up and down over the complainant's penis. The complainant was scared. In evidence the complainant stated that he froze and did not know what to say. The offender performed oral sex on the complainant for about 15 minutes until the complainant ejaculated. After this the offender got up and walked out of the room. The complainant got up from the mattress, had a shower and changed his clothes. (Count 2 Sexual intercourse without consent)

Discussion after Counts 1 and 2

8. That morning the complainant and the offender travelled to his parent's house in T in a hire car. It was around a 15-20-minute drive. During the journey the complainant stated, “I turned to [the offender] and said, like, that, I didn't like what happened last night and that. And I got no reply back from him when I told him that I didn't like it.". The complainant stated that, “it wasn't until we got into the driveway at my mum's -like, mum and dad's, that [the offender] was like, 'Yeah, okay."

The second incident

9. On a night that was likely Sunday, 5 February 2017 the complaint fell asleep on a lounge in the loungeroom S. The complainant was wearing shorts and underpants. The complainant awoke and the offender had an arm around the complainant and was cuddling him. The offender's other hand was inside the complainant's shorts and the offender was rubbing the complainant's penis over his underpants. (Count 3 - Assault with act of indecency)

10. The complainant gave the following evidence: "I told him that I didn't like – I asked him what he was doing. And then I said, like, told him that I didn't like it and that I'm not gay. And- to how - look how old he is compared to me, like, why would he want to do stuff like that considering the massive, like, age distance on it”. The complainant got up from the lounge and went to the offender's room to get away from the offender. At some point, the complainant laid on the mattress in the offender's room.

11. While the complainant was in the offender's bedroom he used Facebook Messenger to contact JG. A copy of that communication became Exhibit C. The complainant wrote to JG, “Jess this is fucked...Okay so I was a sleep on the lounge happy as fuck then I wake up he's cuddling and touching me. I've moved to a different room and he's going off playing loud music." JG indicated that she would pick the complainant up in a few hours. The complainant heard the offender playing loud music in the kitchen as he wrote the messages to JG.

12. The complainant stated that he heard the music go off and the offender leaving the house in a hire car. The complainant recalled going to sleep for a few hours. The complainant stated he did so," ...to try to make the time pass, like a little quicker before Jess could come and get me."

13. Sometime later, the offender went into the bedroom and approached the complainant. The offender touched the complainant on his penis, under his underpants. The offender touched the complaint directly on the complainant's "knob" with his fingers. The complainant rolled over away from the offender. (Count 4 -Assault with act of indecency)

14. The offender laid behind the complainant. The complainant stated that, "[the offender] put his hands, like, down my backside to my arse. And then started playing, like, trying to play with it and that." The complainant thought that the offender was trying to penetrate his "bum" with his finger.49 The complainant started to cry loudly and the offender left the room. (count 5- Assault with act of indecency)

Complaint to JG

15. At around 7:30am on Monday, 6 February 2017 the complainant was picked up from S by JG who was being driven by her Grandmother. JG had to work that morning at a Subway Store in F. During the journey JG noted that the complainant looked upset and like he had been crying. When they arrived at Subway the complainant told JG that the offender "touched his genitals and rubbed his area along [JM]'s arse and was trying to cuddle."

16. Following that the complainant attended a Doctor's appointment in W, which he travelled to by bus. He communicated with his mother, NM, by text message. The record of those communications became Exhibit E. He told his mother that he wanted to go home to T and asked his mother to pick him up. NM picked the complainant up from W following his appointment and they returned to T.

Complaint to TP and NM

17. Later that evening in a telephone discussion with TP the complainant told TP what the offender had done to him. The complainant told TP that he was scared to tell his parents, and he asked TP if she would tell his mother what the offender had done. TP subsequently had a telephone discussion with NM. Following that discussion NM spoke to the complainant about what TP told her.

Complainant attends S

18. About 10:55pm Tuesday 7 February 2017, Police attended the offender's home address after he had called police in relation to an allegation of damage to his window. Senior Constable Jeffrey Smith searched the area and located the complainant and his father, SM nearby to S. Senior Constable Jeffrey Smith spoke with the complainant who admitted to smashing the window and indicated that the offender had done certain sexual things to him. Senior Constable Smith spoke with the offender at his home a short time later. The offender made admissions to one occasion of oral sex with the complainant but stated that it was consensual. Later Senior Constable Jeffrey Smith had further discussion with the complainant at another location about the offender's conduct in relation to him.

19. On 13 May 2017, the complainant provided a statement to police in relation to the offences.

20. On 16 June 2017, the offender attended W Police Station. The offender took part in a record interview with police which became Exhibit F.

Objective seriousness

5. All of the offences occurred between the period 27 January 2017 and 7 February 2017. At the time of the offending the offender was aged 37 years having been born on 3 July 1979. The complainant in each of the offences was a young man born on 22 November 2000 and so was aged 16 at the time of the offences. There was therefore a 21 year age difference between the offender and the complainant.

6. This age difference brings to this offending an element of an older more experienced and more worldly -wise adult imposing himself on a young man in a vulnerable position. The mere fact of the victims age, his continuing at school and yet living in the circumstances of sleeping on the lounge room floor of a person he met only some six weeks before allows the conclusion of vulnerability. I note this is an aggravating matter under section 21 A. The fact of the offence being committed on a child under 18 is also a matter I take into account to arrive at this conclusion of vulnerability, though as conceded by the Crown this question of age is not within the matter of aggravation in s21A referring to the offence occurring in the presence of a person under 18. The offences took place in what was, at that point in time, the victim’s home.

7. A question arises as to whether the aggravating factors impact on objective seriousness or should only be later considered. In my view they impact on objective seriousness, but should not be then later considered as matters of aggravation for that would be to double count them. There does remain the feature of this offending occurring whilst the offender was on conditional liberty, a matter I take into account after having assessed the objective seriousness of the offending.

8. I have had the benefit of written submissions of both the Crown and the Offender and I have taken those submissions into account.

Count 1

9. Counts 1 and 2 occur on the one evening. The first count, assault with act of indecency, is a case of skin on skin contact, initiated when the victim was asleep, and was the act of the offender stroking the victim’s penis.

10. I pause here to note that in making the necessary findings of fact on which to base these reasons for sentence I adopt the approach approved of in Savvas v The Queen (1995) 183 CLR 1 at 8 where the Court stated “a sentencing judge may form his or her own view of the facts, so long as it does not conflict with the jury’s verdict”.

11. The victim gave evidence that the first count continued for around 15 minutes. For the jury to have reached a guilty verdict on this count does not require them to accept that length of time. Matters adverse to the offender going to sentence need to be determined beyond a reasonable doubt. I consider it unlikely that the established act occurred for that long. The victim stated that he froze and I do not doubt that but it may also have had the effect that time passed very slowly for him. I do find however that the offending conduct continued for, in the circumstances, a relatively lengthy period. Whether it was five minutes or 15 minutes is difficult to determine. The conduct of the offender involved placing his hand down the sleeping victim’s shorts and underpants is consistent with the matter being well beyond that category of case that may be described as brief or passing.

12. An assault with an act of indecency can be conduct falling within a very broad range; at one end of that range is the brushing of a thigh in certain circumstances over clothing; on the other end of the range it is the most intimate of skin on skin contact. This offending is well away from the bottom of that range, which the offender at least partly recognises by submitting the objective seriousness is below the mid range. Favourably to the offender I note that he did not persist with the conduct when the victim rolled away. In my view I would assess the objective seriousness of this conduct as in the mid-range.

Count 2

13. This is a count of sexual intercourse without consent. It took place later on the same evening of count 1. It occurred after the victim had brought the earlier event to an end by rolling over, that is acting in a way as to bring that conduct to an end. What was then brought to an end was unlawful touching. Thus having committed an assault the offender returns to the sleeping victim. In giving his evidence in chief on this count the victim had difficulty recounting the incident and became distressed and a break was taken. Just prior to that break when asked what he recalled after falling asleep after count 1 the answer he gave was “I can’t exactly recall at the moment”. After the break he said his next memory after falling asleep was “I remember waking up and he had his hands back like down there except he was giving me oral sex”. He went on to say “he had my penis in his mouth and his hand was like grabbing around the bottom of it”. Like the first count the victim said this went on for some 15 minutes and on this occasion ended with his ejaculation. The victim said that whilst this was happening he was scared and did not know what to do because “he” (the offender) might have flipped out at me.

14. I have the same reservations about the length of this contact as I have expressed in respect of count one. Like count one however, on the respective facts of these counts, not knowing precisely how long this conduct continued has little impact on the objective seriousness of the matter, particularly in this instance where it concluded with ejaculation, which I consider a fact adding to the objective seriousness of this count.

15. By section 61H of the Crimes Act at the time of this offending the act of placing any part of the penis of a person into the mouth of another person constitutes sexual intercourse. There is no hierarchy of gravity of sexual assault. In this instance favourable to the offender there was no overt violence. There is no suggestion of any resistance by the victim nor of any restraint being imposed on the victim by the offender. Adverse to the offender this act is a most significant assault of the person of the victim. The victim was asleep when it commenced. The victim had done nothing to indicate that he wanted to engage in such conduct. The offender simply went about abusing the victim for his own purposes. The offender submits it is below the mid range as it “was not the most invasive form of sexual intercourse”. That is undoubtedly strictly speaking true, but the act committed remains a most significant sexual act. I would assess the objective seriousness of this offence as being in the low mid range, which in effect accords with the Crown submission of “marginally below the middle of the range”.

Count 3

16. Counts 3, 4 and 5 occur on the one evening. It is difficult to determine precisely how long after the first two counts these latter three counts occur but it would appear to be within approximately 7 to 10 days.

17. Count 3 again occurred in the lounge room with the complainant on this occasion asleep on the lounge and wearing shorts and underpants. When he woke up the offender had one arm around the victim cuddling him with his other hand inside his shorts rubbing the victim’s penis over his underpants. The victim said he did not like that and told the offender he was not gay and commented on their age difference. The victim moved away and subsequently lay on a mattress in the offender’s room.

18. This is an instance of sexual touching which is not skin on skin but rubbing over underpants. Again there was no overt violence nor any restraint of the victim and the conduct ended by the victim freely moving away. In my view this is in the low range of objective seriousness but by no means at the bottom of that range, which I note is not far removed, if at all, from the offender’s submission that it falls at the lower end of objective seriousness. The Crown submission was marginally below mid range and largely relies on the same matters just discussed. I disagree the objective seriousness reaches that level largely as it was not skin on skin and the offender did not continue when the victim woke up and told him he did not like it.

Count 4

19. The victim’s evidence was that after count 3 the offender left the house in a car and that he went to sleep for a few hours. Extracting the evidence of the complainant for the facts of counts 4 and count 5, which both happen within a short period of time, was not straightforward. Initially the victim did not give the evidence that the prosecutor was hoping to lead. The prosecutor then dealt with other factual matters in the hope of adducing evidence of count 5. Ultimately recourse was had to section 32 of the Evidence Act and the application was allowed leading to the witness refreshing his memory. Whilst some may have misgivings concerning occasions when a complainant needs to refresh their memory of indecent assault, the jury plainly accepted the evidence of the complainant.

19. In terms of count 4 that evidence was that the offender had returned from wherever he went in the car and asked the victim if he could come and cuddle. There is some confusion in the evidence as to whether this is occurring in the offender’s room or the victim’s room which I think is more of a slip of the tongue of the prosecutor than anything else. In any event wherever it occurred the jury were satisfied it happened. It seems more likely to me that it actually occurred in the offender’s room where the victim had gone to sleep after count three. The evidence (at transcript page 51) does not provide an answer to the request for a cuddle but rather simply then goes on to say that the offender played with the victim’s “dick” and had his fingers “on my knob”. This was under his underpants so it was skin on skin. Upon this happening the victim rolled over, doubtless in an effort to get it to stop.

20. Favourably to the offender this event emerges out of what appears to be consensual cuddling. Certainly I do not find adverse to the offender that it was not consensual cuddling. The evidence simply is that there was a request for a cuddle and the next thing that is reported is the offending conduct where the offender has gone beyond cuddling. Again there is no restraint or any overt violence. It is however skin on skin. Further it follows behaviour occurring earlier in the evening of a similar nature albeit over clothing. There is a certain persistence to the conduct of the offender in carrying out count 4. On the facts I find that this offence occurred in a fairly brief time frame but nevertheless was quite deliberate (as of course it must be) but by that I mean it could in no way be described as momentary. I consider this to be in the high low range of objective seriousness.

Count 5

22. Upon the victim rolling over after the offender committed count 4 the offender then started to play with the victims “ass”. It was accepted by the Crown that the witness never used the word “anus”. Although it is not express in the account given at transcript page 51, given that this occurred almost immediately after the skin on skin touching of the penis it would seem likely to have been a case of skin on skin. However on the evidence at T 51 I would not make a finding adverse to the offender to this effect.

23. The victim however earlier in the transcript at T 47 had also given evidence as to count 5. That evidence was as follows:

Q. When he came in, whereabouts in the room were you?

A. I was laying on the mattress.

Q. You were laying on the mattress in his room?

A. Yeah.

Q. Doing the best you can to remember, when he came into the room, would you describe what he did to you.

A. He, like, sort of laid from behind me as, like - and then, yeah, put his hands, like, down my backside to my arse. And then started playing, like, trying to play with it and that.

Q. Did anything else happen?

A. I can't exactly recall at the moment.

Q. You say you can't recall at the moment. Is there anything that you think would help you remember what else happened if anything?

A. I remember, like, crying loud enough so that he would hear it so that he would leave. Which he then did.

Q. You say you remember crying. Do you remember what [MR] was doing to you when you were crying?

A. He was trying to penetrate it with his finger.

Q. When you say "it", what are you referring to?

A. My bum.

Q. Do you remember saying anything to [MR] at that time?

A. No.

Q. So your recollection is that you started crying when he was doing that.

A. Yeah. I did it loud enough so that he'd hear so that he would go.

24. Taking into account this evidence my conclusion is that this count was a case of skin on skin.

25. In assessing the objective seriousness of this count in my view but for one matter it should be assessed in a similar way as count 4 and I note the offender’s submission that these counts should be treated comparably. The one matter I refer to is the extent of touching of the “bum” or “ass” as variously stated by the offender. It should be noted that the penetration of the anus by any part of the body of another person is by definition an act of sexual intercourse. That is not this charge. Furthermore the evidence of the complainant was of the offender “trying” to penetrate “it”. There is no basis for a finding of any penetration. I reject the Crown submission that this was a “significant breach of bodily integrity” if by that is meant to be a suggestion of penetration. The evidence overall is fairly imprecise in this regard as to just what touching occurred beyond it being of the victims backside and that he feared that the offender was intending to encroach upon his anus which did not happen.

26. I would assess this level of objective seriousness the same as for count 4 or perhaps a touch higher given that it occurred immediately after the victim had sought to bring activity beyond cuddling to an end.

Subjective matters

27. The offender relied on a psychology report of 14 October 2019.

28. The report suffers from referring to only two of the five offences. I suspect that has come about due to the conduct of the case on the basis of two incidents in which firstly two of the offences occurred and then in the second incident three of the offences occurred. Even that does not quite fit with the psychologist’s understanding of the offending because she has the sexual assault count occurring on the second occasion. Nevertheless I consider that there is little diminution in the assistance of the report as a result.

29. The report gives some of the personal history of the offender. He was born in Singleton to a coalminer father and a nurse mother. That relationship of his parents was not a happy one and they separated when the offender was five whereafter he lived with his mother and visited his father fortnightly. With his mother working the offender was often left alone. At some point his mother owned or operated a corner shop and the offender helped her in that business. The mother remarried to a man the offender described as a violent alcoholic and they had a very poor relationship. His father also remarried to a person the offender disliked and his relationship with his father deteriorated. He has not seen his father in years.

30. The offender’s mother remarried a third time to another person disliked by the offender. That relationship is now over and there is a good relationship now between the mother and the offender

31. The offender is distant from his brother.

32. As to his education and employment he struggled at school and displayed difficult behaviours and had poor academic performance. He found forming friendships difficult and left school in year 10 to pursue a TAFE course. He found this difficult and was granted a disability support pension and only worked on and off thereafter, occasionally in PC repairs. He damaged his hands and employment has been limited since.

33. In terms of his medical history he was diagnosed with attention deficit disorder in childhood. He saw many health and allied health professionals including doctors, psychiatrists, occupational therapists and physiotherapists. When in custody at the age of 21 the offender recounts being brutally raped and tortured for 2 ½ hours and was subsequently diagnosed with PTSD. He has sought counselling for this.

34. In 2012 he had his first inpatient admission to a mental health unit for suicide reality and has seen them a few times since. He was referred to a community mental health team and attended as an outpatient for some time. He described emotional volatility to the psychologist. He denied any delusional beliefs or other markers of a major mental illness.

35. Physically the offender has ongoing pain in his back and legs from beatings during previous relationships which were abusive. The history of this is not clear.

36. As to his relationships he has had violent relationships, making bad choices including one lasting from 10 to 12 years which was often interrupted by jail time. This relationship involved drug use by his partner

37. As to substance use he smoked marijuana from about the age of 18 or 19 and continues to do so. In his 20s he used heroin speed and ice. He last used amphetamines in 2015. He does not struggle with substance addiction. He denied drug use played a role in the offending behaviour. He acknowledged 10 or more breaches of an AVO, and referred to a custodial sentence of 7 ½ months in relation thereto. Apparently the AVO’s involve his mother as the person in need of protection.

38. When asked about the offences he maintained his belief that it was consented to but did indicate remorse regarding the age difference which is consistent with his position taken in his police interview. The assessment of the psychologist was that the offender met the criteria for borderline personality disorder. The psychologist summarised the matter as saying the offender appeared to have a life characterised by problematic behaviours and mental health issues. The offender has clear evidence of difficulties with developing appropriate skills and mechanisms relating to coping including his resort to using drugs as a coping strategy which increases his susceptibility to impulsivity and aggression. He has struggled to develop the social skills typically enabling people to deal with the stresses of daily life in productive ways.

39. As to the offending behaviours the offender did not appear to believe that his behaviours were wrong and expressed limited empathy for the victim. The suggestion was made that he may benefit from specialised intervention associated with a sex offender treatment program though he did not believe this was necessary and his motivation for such was poor. The report writer notes that he would be unlikely to be prioritised for treatment in custody in any event.

40. The psychologist suggests the offender may have a borderline personality disorder but the limitations of the AVL assessment prevented any more definitive view.

41. The recommendations were for interventions to reduce the risk of reoffending and engagement with mental health for his mental health difficulties. The psychologist recommends that the offender be considered for the various programs available in custody. The view is expressed that the offender requires long term psychological support. Concern is also expressed as to suicidal ideation.

42. In my view this report reflects an unfortunate life. The offender’s home life was clearly less than stable. If I may venture a view, he seems to have lacked a reliable and steady and worthy male role model, though that is too simplistic a statement to be taken as a fulsome assessment. The report refers to self reported diagnoses of ADD in childhood and PTSD following the alleged rape, and to depressed mood and possible borderline personality disorder. There does not appear from this report however to be any suggestion that the environment of the upbringing of the offender and his adult life was relevantly a causal factor in the offending. Rather, the report makes clear that he considers he has been wronged, and that the victim was consenting to the offending conduct.

43. What this means is that the offender lacks insight to his behaviour, its unwanted nature, and the possible harm it may cause. The offender has expressed some remorse in becoming involved with a boy so young, but expresses no remorse for his offending conduct beyond that. I do take into account the offender volunteered the facts of count 2 occurring, albeit he also asserted it was consensual.

44. There is little basis for considering that without intervention there are prospects of rehabilitation. The prospect of reoffending must be at least of the middle risk level. I accept the need for rehabilitation and the fact that it will require some time to be achieved.

45. The offender’s criminal history is such as to deny him leniency based on prior good behaviour. His criminal record shows offending commencing in 1998, when the offender was 19. That offence was contravening an AVO. In 1999 he was convicted of drug offences and a further contravene AVO, which occurred a further two times that year. In 2000 he destroyed property and again breached an AVO. This offending or similar occurs in 2001, 2002, 2005, 2009, 2010, 2013, 2014 and 2017. The record also shows numerous terms of custody, though it would seem none longer than about 7 months, and then with non parole periods.

46. There is an even greater number of suspended sentences, yet the record shows an inability to take advantage of the benefits of a suspended sentence, for the offender continues to offend.

47. This is the first offence of this type for this offender, and his vulnerability to a lengthy gaol term is far greater than it previously has been.

Sentencing considerations

48. I need to consider s3A of the CSPA. The purposes of sentencing include to punish, to protect, to denounce the conduct, and to promote rehabilitation. There is also the need to consider deterrence, both general and specific. By s5 CSPA the sentence must not be one of imprisonment unless no other penalty is appropriate. Should that be the conclusion, then by reason of s67 CSPA an ICO cannot be imposed.

49. The next sentencing option after an ICO is a CCO. By s8 such a sentence can be imposed instead of a term of imprisonment.

50. My view is that the seriousness of this offending when considered together with the subjective features of the offender requires there to be a term of imprisonment. No other sentence is appropriate in order to properly sanction this behaviour and to conform to the principle of proportionality. The offender did not submit otherwise. With the exception of count 3, all of the offences are cases of skin on skin contact, and count 2 is clearly the most serious. Despite living out of home, it is salient to recall that the victim was a child at the time of the offending. The victim had his 16th birthday on 22 November 2016, and so had turned 16 only shortly before staying at the offender’s home, and soon thereafter having been assaulted. Whilst 16 year olds may have left school and be in the workforce, they are still learning and looking for guidance and assistance, not to be preyed upon.

51. In oral submissions, the Offender argued for less emphasis on general deterrence due to the personal history and background of the offender. The Crown argued to the contrary. Further the Crown argued there was heightened need for specific deterrence due to the numerous opportunities that the offender has had in past sentencing, and I note again the numerous non custodial outcomes he has had imposed upon him.

52. The view I take here is that the argument for lesser general deterrence has merit, if you accept the offender’s history. The Crown is right at least in general terms, to say it should be treated cautiously, indeed with little weight, given its unverified nature. Yet it appears the offender was in custody at about the time he says he was assaulted in custody, and the nature of his criminal record fits with the personal difficulties he asserts. That said, the consideration he receives in that regard, that is, in regard to general deterrence, is largely if not totally neutralised by the need for specific deterrence. The offender’s evidence of his health and past history is not such as to require this to be diminished. The offender’s personal circumstances will be reflected in the finding of special circumstances. As I understood the Crown’s oral submissions, it was acknowledged that his subjective case, that is his psychological condition, favoured this conclusion, but also argued that his history of breaches of orders and bonds argued against it.

53. I propose imposing an aggregate sentence. To do so I first need to set out the indicative sentences and I will do so below. I then need to address s54B in respect of count 2 and the SNPP provisions.

Indicative sentences

54. I have set out the maximum sentences and SNPP (in respect of count 2) above. I bear those sentences in mind along with all the other matters discussed above in arriving at the following indicative sentences:

1. Count 1:      18 months;

2. Count 2:      4 ½ years;

3. Count 3:      4 months;

4. Count 4:      6 months;

5. Count 5:      8 months.

55. There is no discount available for any assistance or for any guilty plea. There needs to be some concurrency of the sentences however, and the aggregate sentence will reflect that. I have approached this on the basis of considering the closeness in time of the offending of count 1 and count 2, (the first incident) and then again the closeness in time of counts 3, 4 and 5 (the second incident). Furthermore, the principle of totality has informed the aggregate sentence. The result that I come to is that there should be an aggregate sentence of 6 years.

56. As to special circumstances, there is a need to assist in rehabilitation, which will be lengthy, and more likely to occur with supervision. I note also this will be by some margin the longest term of imprisonment for this offender, and his character traits described by the psychologist could well make prison life more difficult than would otherwise be the case. I therefore find there are special circumstances, and impose a non parole period of 4 years.

SNPP

57. The charge under s61I Crimes Act has a SNPP of 7 years. Like the maximum sentence of 14 years, that is a legislative guidepost. By s54B(4) when an aggregate sentence is imposed in respect of one or more offences, then for those offences for which there is a SNPP the Court must indicate the non parole sentence it would have set for each such offence, and by s54B(5), if the non parole period differs to the SNPP the Court must make a record of the reasons why it would have done so and identify each factor it took into account.

58. The non parole period I would have set if dealing with the s61I offence solely would have been 3 years. That is the period of custody I consider appropriate to reflect the seriousness of the offending, and yet which also allows for the special circumstances I have referred to at par 56 above. I note also that my assessment of objective seriousness of this offence is less than the middle of the range of seriousness referred to in section 54A.

59. Lastly as to the bond matters the offender submits the court could take no action. The Crown has made no submission on this issue in writing. In oral submissions the Crown did not wish to argue against the submission of the offender. The bonds were in respect of offences of malicious damage and stalking / intimidation. They were to expire on 16 April 2017, so had been in place for some 20 to 21 months at the time of the offending. I propose taking no action on the basis that, as noted by the offender, he will on his release on parole be subject to supervision by Community Corrections.

ORDERS

60. MR, of the 5 offences with which you are charged you have been found guilty by a jury of your peers and you are convicted.

61. I have indicated the indicative sentences above.

62. Pursuant to section 53A I impose an aggregate sentence of 6 years commencing on 6 September 2019 and expiring on 5 September 2025.

63. I impose a non-parole period of 4 years commencing 6 September 2019 and expiring on 5 September 2023. I have stated above my reasons for varying the statutory ratio as required by section 44 (2B).

64. The earliest date for which you will be eligible for release is 5 September 2023.

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Amendments

18 December 2019 - coversheet, paragraphs [1], Background (15) and [23] - anonymised names

Decision last updated: 18 December 2019