R v Mr

[2019] NSWDC 589

District Court

New South Wales

Medium Neutral Citation:	R v MR [2019] NSWDC 589
Hearing dates:	9 August 2019
Date of orders:	09 August 2019
Decision date:	09 August 2019
Jurisdiction:	Criminal
Before:	Bright DCJ
Decision:	The offender is sentenced to a non-parole period of two years and three months to date from 29 August 2018 and expire on 28 November 2020 with a balance of term of one year and six months to expire on 28 May 2022. The total term of the sentence is three years and nine months. The starting term for the sentence was five years which I have discounted by 25% for the plea of guilty leaving a total term of three years and nine months.
Catchwords:	CRIME – sentence- aggravated indecent assault – mental health issues – special circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 Imbornone v R [2017] NSWCCA 144 R v Dent unreported NSWCCA 14 March 1991
Category:	Sentence
Parties:	Regina (Crown) MR (Offender)
Representation:	Counsel: Ms S Hall for the Offender   Solicitors: Ms H Cantor for the Crown
File Number(s):	2018/135303
Publication restriction:	Section 578A(2) Crimes Act applies to this matter – no publication of any matter which identifies the complainant or may lead to the identification of the complainant.

Judgment

1. The offender, MR, born 1971, 48 years of age, appears for sentence in relation to one offence of indecent assault upon a person under the age of 16 years, an offence pursuant to s 61M(2) of the Crimes Act. The maximum prescribed penalty for that offence is ten years’ imprisonment. There is a prescribed standard non-parole period of eight years’ imprisonment.

2. The offender pleaded guilty on 19 March 2019 at the Wyong Local Court. Having regard to the timing of the plea, I propose to allow a discount on sentence of 25%.

3. The offender has been in custody bail refused since 31 August 2018. He also spent a further two days in custody at the time of his arrest.

4. In those circumstance, the sentence imposed today will be backdated to 29 August 2018.

The Agreed Facts

5. The victim in this matter is SM, born January 2014 (four years old). The victim and the offender were known to each other through the victim’s mother, MK, who is friends with the offender.

6. On Friday night, 20 April 2018, the offender was at MK’s address in Berkeley Vale. Approximately 11pm, MK stated she was hungry and wanted to go out to get something to eat. The offender said that he would look after the victim whilst MK went out.

7. Whilst MK was out, the offender sat with the victim on the three seater couch and read her a book. The offender put his hand inside the victim’s underwear touching her vagina with his fingers and moving them around.

8. MK returned home approximately ten minutes later. The offender was seated beside the victim but rose from the couch as MK entered the house. MK gave the offender food he had requested and after eating dinner the victim and MK went to bed. The offender left the residence.

9. The following day, 21 April 2018, MK was getting changed at home when the victim grabbed her on the crutch of her clothing. The victim said, “What’s that?”. MK said, “Hey, we don’t touch people in that area and people don’t touch you down there”. The victim replied, “Like [MR]”.

10. The victim disclosed further information to her mother and a friend, TH, that evening. The victim stated that the offender touched her under the pants and rubbed her.

11. On 23 April 2018, the matter was reported to Wyong Police Station. On 24 April 2018, the victim attended the Central Coast Child Abuse Unit and participated in a recorded interview where she disclosed the above information.

12. On 30 April 2018, the offender was arrested at his place of work. He was taken to Wyong Police Station. The offender participated in a record of interview about the allegations and was then charged with the matter.

Assessment of Objective Seriousness

13. Those facts clearly disclose very serious objective criminality. Sentences imposed for offending in relation to children must not only have a very significant element of general deterrence but must also punish the offender and denounce the conduct (see s 3A of the Crimes (Sentencing Procedure) Act).

14. In relation to sentencing for sexual offences against children, the Court notes the remarks of Justice Lee in the R v Dent unreported NSWCCA 14 March 1991:

“One begins with the proposition that our community views with great concern the sexual molestation of children by adults and that has been acknowledged by the legislature. Little children are entitled to grow up free from defilement by sexual predators and free from the risk of psychological upset, confusion and difficulties later in life caused by such conduct”.

15. In assessing the objective seriousness of the offence, I have taken into account the following factors:

1. Age of the victim, namely four years recognising that the offence relates to children under the age of 16 years. In such circumstances, this victim is at the lower end of the age range contemplated by the offence;

2. The age disparity between the victim and the offender, the offender was aged 46 years of age at the time;

3. At the time of the offending, the offender had been left with the care of the child. In those circumstances, I accept that the child was under his authority;

4. The nature of the physical assault - here the indecent assault was the skin to skin touching of the victim’s vagina. It is well recognised that the characterisation of the nature of the physical assault is an important factor in determining the relative seriousness of the offending;

5. The offending was of relatively brief duration and opportunistic. The victim’s mother was absent from the premises for approximately ten minutes.

16. It was submitted on behalf of the Crown that the objective seriousness was above mid-range. Ms Hall, on behalf of the offender, submitted that it was just below mid-range. Having regard to the above factors, I assess the objective seriousness as being in the upper end of the middle of the range.

17. An important factor in that assessment is the very young age of the victim at the time.

Aggravating Features

18. The Crown relied upon three aggravating features, firstly, that the offending occurred in the victim’s home, secondly, that the offender was in a position of authority at the time and, thirdly, that the victim was vulnerable because she was very young.

19. I am satisfied that in circumstances where the offending occurred in the victim’s home, that aggravating feature is established. In relation to the remaining two factors, I have taken into account each of those matters in assessing the objective seriousness and I do not propose to double-count them.

20. Whilst there is no victim impact statement before the Court on behalf of the victim, courts now well understand the very significant effects upon victims of sexual offending. One of the purposes for which a court imposes a sentence is to recognise the harm done to the victim of the crime (see s 3A(g) of the Crimes (Sentencing Procedure) Act).

Subjective Circumstances

21. The offender is now 48 years of age.

22. He has a criminal history commencing in 1990 when he was dealt with at the Gosford Children’s Court for an offence of indecent assault. He received 60 hours’ community service for that offence.

23. The Crown has tendered the relevant court papers in relation to that offending (see exhibit B). The offence occurred in 1987 when the offender was 16 years of age. I note that his criminal history incorrectly records that the matter was dealt with by the Gosford Local Court.

24. In 1993/1994, 1998, 2007, 2012 and 2017, the offender was dealt with for an offence of possess prohibited drug and related drug offences. In respect of those matters, he received either fines or community service.

25. Whilst the offender does have a limited criminal history, I am satisfied that it disentitles him to any leniency on sentence that would otherwise be available to a person or prior good character.

26. The following material was tendered on behalf of the offender during the sentence proceedings:

27. Exhibit 1, a report prepared by Dr Chu dated 4 August 2019.

28. The offender’s background is set out in the report of Dr Chu. Dr Chu examined the offender on 2 August 2019 at the Metropolitan Remand and Reception Centre, Silverwater Correctional Complex.

29. The offender told Dr Chu that he was born in Hornsby and grew up in Berowra. He said that his parents remain married and were supportive of him. He has one older sister and one younger sister. She is 17 years younger. He described his childhood as good and described a harmonious family life with no abuse.

School and Employment

30. The offender reported that he completed school to Year 11. He said that after he left school he attended TAFE for carpentry. He also attained boilermaker skills and qualifications. He indicated that he had been in continuous employment but for one day of Centrelink benefits.

31. Between 2012 and 2016, he lived and worked on Magnetic Island in Queensland. He reported that he was drug free at that time, however, did consume alcohol. He reported that his first serious relationship was for 18 years from the age of 18. That partner was 13 years older than him and had her own five children.

32. Since that relationship, he had been in three further relationships, each lasting for a couple of years. He reported that he was currently in a relationship and they have been together for about two years.

33. In relation to his sexual history, he denied any attraction to males, he denied any history consistent with paraphilia and he specifically denied any attraction to children.

Substance Use History

34. The offender reported that he began using cannabis at 16 years of age. He used daily until he moved to north Queensland in 2012. He reported that he used amphetamines in his later 30s for about two, three years. He reported that he had not used amphetamines again until his return from north Queensland in 2016.

35. He reported that he drank alcohol, however, did not report any misuse of alcohol.

36. In relation to his drug use at the time of the offending, the offender admitted that he had a significant drug use problem. Dr Chu noted the at the following:

“He said that he used approximately 1 gram of methamphetamine and 2 grams of cannabis daily. He said that he smoked both substances and had never injected. He told me that on the night of the incident he had used approximately half a gram of ice as well as smoking over a gram of cannabis. He said that he began using again approximately seven months ago upon his return from north Queensland”.

37. I note that the use of drugs at the time of the commission of the offence is not a matter to be taken into account in mitigation (see s 21A(5AA) of the Crimes (Sentencing Procedure) Act).

Mental Health History

38. The offender reported to Dr Chu that he had not been diagnosed with or treated for, any mental health conditions. He said that he had never had any psychiatric hospitalisations. He reported depressive symptoms since being charged and denied any prior psychiatric history.

39. Upon mental state examination, Dr Chu recorded that there was no evidence of any formal thought disorder; there were no delusions and the offender was oriented to time, place and person and his cognition was grossly intact.

40. Dr Chu provided the following opinion:

“[MR] is suffering from an adjustment disorder with depressed mood and suicidal ideation. He also suffers from a significant substance use disorder. His substance use disorder, in particular, contributed materially to his mental state at the time of the offence. I could not diagnose [MR] with paraphilia today, however, recommended that there should be ongoing assessment and monitoring regarding this. Incarceration would be negative for [MR] and impede his chances of remaining in appropriate treatment. Incarceration would likely exacerbate his mental state and place him at risk of harm”.

41. Having regard to the evidence of Dr Chu, I am satisfied that the offender is suffering from an adjustment disorder with depressed mood and suicidal ideation and a substance use disorder. In determining the relevance of those mental health issues to the appropriate sentence I have had regard to the principles summarised by McClellan J in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194.

42. Specifically, whilst it was not suggested that there was any causal link between the mental health issues and the offending (other than the substance use disorder which is not a matter in mitigation) it was submitted that the existence of the mental health issues would mean that the offender’s time in custody would be more onerous. I accept that submission and, in those circumstances, I do propose to moderate the otherwise appropriate sentence.

Remorse

43. In relation to the question of remorse, Dr Chu stated as follows:

“He told me that he felt very sorry about the incident and that it was all ‘a very stupid mistake’. He said that the victim was the daughter of his friend with whom he ‘did drugs’”.

44. Whilst that evidence is relevant to the question of remorse, in circumstances where no evidence has been given on oath the evidence remains untested and I give such evidence limited weight (see Imbornone v R [2017] NSWCCA 144 per Wilson J at [57] where her Honour comprehensively considered the authorities in relation to the assessment of remorse on sentence).

Prospect of Rehabilitation

45. Any view of the offender’s prospects of rehabilitation must necessarily be guarded having regard to his longstanding and, as yet, untreated drug use issues. It is positive that he has previously been able to remain drug free for a lengthy period of time and has engaged in employment. The Court is hopeful that upon release from custody that the offender does positively engage with treatment.

46. For those reasons, I am also unable to find at this stage that the offender is unlikely to re-offend.

Special Circumstances

47. It was submitted on behalf of the offender that the Court would find special circumstances and vary the statutory ratio between the non-parole period and the parole period in circumstances where, firstly, it is the offender’s first time in custody, secondly, upon release he will need assistance to reintegrate into the community and, thirdly, it is unlikely that he will receive sexual offender’s treatment in custody given his likely low risk assessment so it will be necessary for treatment in relation to the sexual offending to be conducted in the community.

48. Having regard to those factors, I am satisfied that special circumstances are established and I propose to vary the statutory ratio pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act.

49. In determining the appropriate sentence, I have had regard to the oral submissions made on behalf of the Crown and also the oral submissions made by Ms Hall on behalf of the offender.

Determination

50. In determining the appropriate sentence, I have taken into account the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act. In particular, I am satisfied that both general deterrence and specific deterrence are important considerations.

51. Having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate pursuant to s 5(1) of the Crimes (Sentencing Procedure) Act.

52. In determining the appropriate sentence, I have had regard to the objective gravity of the offence, the relevant prescribed maximum penalty of ten years and the prescribed standard non-parole period of eight years in accordance with s 54B(2) of the Crimes (Sentencing Procedure) Act.

53. In relation to the offence of indecent assault person under the age of 16 years, the offender is convicted.

54. The offender is sentenced to a non-parole period of two years and three months to date from 29 August 2018 and expire on 28 November 2020 with a balance of term of one year and six months to expire on 28 May 2022.

55. The total term of the sentence is three years and nine months. The starting term for the sentence was five years which I have discounted by 25% for the plea of guilty leaving a total term of three years and nine months.

56. I have found special circumstances and varied the statutory ratio between the non-parole period and the parole period.

57. The earliest date upon which the offender will become eligible for parole is 28 November 2020.

58. If counsel can confirm those dates are correct.

59. CANTOR: It looks correct to me, your Honour. What was the date you have the balance of term expiring.

60. HER HONOUR: 28 May 2022.

61. CANTOR: Appears correct.

62. HER HONOUR: I just will allow counsel to check those dates because it will be very difficult to correct them later in the day once [MR] is returned to custody.

63. HALL: Your Honour, I have just checked those dates, I have no difficulty.

64. HER HONOUR: Is there anything further I am required to refer to in my remarks?

65. CANTOR: Not that I am aware of.

66. HALL: No, your Honour.

67. HER HONOUR: That completes the matter, [MR], I will now adjourn.

68. AUDIO VISUAL LINK CONCLUDED AT 11.29AM

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Decision last updated: 23 October 2019