R v Ms (No 2)

[2020] NSWDC 772

District Court

New South Wales

Medium Neutral Citation:

R v MS (No 2) [2020] NSWDC 772

Hearing dates:

27 December 2020

Date of orders:

11 December 2020

Decision date:

11 December 2020

Jurisdiction:

Criminal

Before:

Weinstein SC DCJ

Decision:

The offender is sentenced to a term of imprisonment for 6 years with a non-parole period of 4 years.

For orders see [49].

Catchwords:

Sentence - aggravated sexual intercourse with a person above the age of 10 and below the age of 14 years – offender was the stepfather of the victim – use of a vibrator – occurred in the home of the victim – whether abuse of trust and abuse of authority different concepts - whether abuse of trust can be aggravating factor where abuse of authority is element of offence

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Beavis v Regina [2018] NSWCCA 248

Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54

Markarian v The Queen [2005] HCA 25

MRW v R [2011] NSWCCA 260,

Muldrock v The Queen (2011) 244 CLR 120

R v CMB [2014] NSWCCA 5

R v Gavel (2014) 239 A Crim R 469

R v BJW (2000) 112 A Crim R 1

R v Fisher (1989) 40 A Crim R 442

Category:

Sentence

Parties:

Regina (Crown)
MS (Defendant)

Representation:

Counsel:
Mr McMaster (Crown)
Ms O’Reilly (Defence)
Solicitors:
The Director of Public Prosecutions (Crown)
Legal Aid Commission (Offender)

File Number(s):

2018/00286896

Publication restriction:

Non publication order for the name of the complainants or any information that may identify her.

Judgment

1. The offender MS, born in 1972, is before the court for sentence for aggravated sexual intercourse with a person above the age of 10 years and below the age of 14 years, contrary to s66C(2) of the Crimes Act 1900 for which the maximum penalty is 20 years. There is no standard non-parole period. The offender was convicted after a trial that commenced on 28 September 2020 and concluded when the jury returned with verdicts on 9 October 2020.

2. The offender was found guilty of Count 2 on the indictment, and was acquitted of the other counts. Count 2 was as follows:-

Between 1 March 2009 and 5 August 2010, at Macquarie Fields in the State of New South Wales, the accused had sexual intercourse with AB, a child then of or above the age of 10 years and under the age of 14 years, namely 10 or 11 years old, in circumstances of aggravation, namely AB was under the authority of MS.

3. I find the following facts beyond reasonable doubt, which are not disputed.

1. The victim, AB, born in 1999, was the offender’s step-daughter. The offender had been the victim’s step-father since the victim was aged about 4 years of age.

2. At the time of the alleged offences, AB lived in South West Sydney with her mother, sister, half-brothers and the offender.

3. Count 2 related to the time that the offender penetrated AB’s genitals with a vibrator.

4. AB got her period in year 6 when she was 10 years old.

5. Less than a week later, the offender talked to her about needing to know that he could help her avoid getting hurt if she got a boyfriend or got raped.

6. At a later point in time, when she was still in year 6 and was 10 or 11 years old, the offender started talking to her about dildos and expanding her vaginal cavity.

7. The offender brought a vibrator to the victim’s room. The following then occurred.

8. The offender closed the door. He said that he wanted to show her something. He explained that girls used this (the vibrator) to make themselves feel good. He said he would show her what it felt like.

9. The offender then told her to lay down and take off her pants, which she did. He turned the vibrator on and moved it on the outside of her genitals for some minutes. He moved it between the victim’s clitoris and the opening of her vagina.

10. The offender then reassured the victim, asked her if she was okay and asked her how it felt. The victim did not say much, other than quick responses, such as, ‘I don’t feel anything,’ ‘I’m fine,’ ‘I’m okay,’ and ‘It doesn’t hurt.’ She was very confused. She remembered it being very ‘daze-like’.

11. The offender then moved the vibrator, penetrating her vagina. Slowly, he pushed it in and turned it and then pushed out. It started to hurt the victim. The vibrator went inside the victim’s genitals approximately a centimetre or centimetre and a half. The duration of the penetration was less than a minute.

12. The victim felt pain. She described it as a ripping sensation, and being very dry. The victim told the offender that it hurt, and that she didn’t want to do it anymore. He stopped immediately and tried to make sure that she was okay. The offender said “It's okay, we’ll finish up for tonight.” He then hugged the victim, and told her that he loved her. The offender then said “We’re all done and I'm very sorry”.

13. On 5 August 2010, the victim became upset at school and disclosed to her class teacher, and then the school principal, that she had been sexually abused by the offender.

14. The following day, the victim and her sister were interviewed by JIRT. In her interview with JIRT, the victim denied that the offender had sexually abused her.

15. The victim and her sister were placed into foster care where they remained until they returned to live in the family home on 11 March 2011.

Evidence

4. Before me are 4 exhibits. Exhibit 1 is a bundle of documents prepared by the Crown which includes:

1. The Notice of Committal dated 27 February 2019;

2. The indictment;

3. The offender’s criminal history (NSW);

4. The offender’s custodial history;

5. The offender’s criminal history (Cth); and

6. A victim impact statement of AB.

5. Exhibit 2 is a report of Kris North, forensic psychologist, dated 23 November 2020.

6. Exhibit 3 is a letter from the offender’s sister (TG) dated 25 November 2020.

7. Exhibit 4 is a letter from the offender’s brother in law (MG) dated 25 November 2020.

Exhibit 1

8. The offender has a brief criminal history in New South Wales. He was convicted of drive with middle range and low range PCA in 2004 and drive while licence suspended in 2004. For the former offence he received a s 9 bond. For the latter offence he was disqualified from driving and received a fine. In 2017 he was convicted of common assault, stalk intimidate with intent to cause fear of harm and contravene AVO. He received a community service order of 120 hours for the first two offences, and a fine for the latter. The offender’s Commonwealth criminal history discloses a conviction in 1996 for knowingly obtain a benefit in part, for which he received a suspended sentence. It is not suggested that the offender’s criminal history is aggravating. Neither does it entitle him to leniency.

9. The offender’s custodial history demonstrates that he has been of good behaviour whilst in custody since September 2018.

10. AB provided a victim impact statement which she read in court. She described her struggle trying to articulate the impact of the offending. A day does not go by without her thinking about and remembering what happened. She stated that “my mind body and soul has been tainted by him, and the echo of his voice and actions haunt me every day.” The offending has impacted the victim’s personal life and her ability to form relationships. She stated that she was often suicidal and did not believe she would live to adulthood. Because of these proceedings, she has been able to take her life back. She recognises that she cannot change what happened to her. However, she believes that she can change how she perceives the world.

11. Courts have often observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v Gavel (2014) 239 A Crim R 469 at 110, R v CMB [2014] NSWCCA 5 at [92]. I do not doubt that AB has been gravely affected by the offending of MS. On behalf of the community, I recognise the harm caused to AB by MS’s offending. It is my hope that she will make many valuable contributions to our society, and lead a happy and fulfilling life, notwithstanding that harm.

Exhibit 2

12. Ms North, assessed the offender on 17 November 2020 for 1 ½ hours via audio-visual link. MS maintained his innocence at the time of assessment. The offender spoke of a stable family upbringing and said that he continued to enjoy the support of his family. He described a history of mental health issues relating to anxiety and hyperactivity, in addition to low self-confidence and socio-emotional and communication issues which in Ms North’s opinion are suggestive of Autism Spectrum Disorder (ASD) traits. These issues were assessed as contributing to his subsequent use of alcohol to manage his symptoms. MS had no prior history of sexual offending and his sexual recidivism was assessed to be in the low range. Ms North was of the view that no offence-specific treatment was necessary to address his criminogenic needs.

13. The offender described a typical upbringing, reporting that his parents were strict and generally “old school”. He is one of three children and has a close relationship with his siblings. MS described working in a number of factory jobs and maintaining relatively steady employment. Prior to his arrest, he was working at a window/sliding door company.

14. MS described his relationship with his former partner as problematic, noting that they had frequently argued, but he denied any history of domestic violence. She applied for an AVO against him in 2017 after an argument, to which he pleaded guilty, despite denying any incident of domestic violence. He disclosed that his two step-daughters had been removed from his and their mother’s care in 2010 following an allegation of sexual abuse being made in relation to himself. He said that the girls were returned to their care and no charges were laid, although Ms North noted that this former allegation is the subject of this offending.

15. The offender reported that he had consumed alcohol since adolescence, but denied any history of alcohol abuse prior to his relationship with his former partner. He said that his alcohol use escalated during this relationship, and by the end of it he was consuming up to four longnecks (12 standard drinks) every 1-2 days during the week, and more on the weekends. He described having experienced a fragmented memory in the past when consuming alcohol. The offender also smoked cannabis on and off from 13 years of age but denied any use from 2017. He stated that since the AVO was taken out against him in 2017, he has not used either alcohol or drugs.

16. The offender described a history of learning difficulties in school, saying that he was a “slow learner” and that he had difficulties in communication. He also described low levels of self-confidence. He also reported issues relating to anxiety, noting a long term history of difficulties sleeping, racing thoughts, general restlessness, poor frustration tolerance, and a tendency to “bottle up” his feelings. He said that he had used both cannabis and alcohol in the past to slow his thoughts, and that the use of alcohol had made him feel “normal”. He denied any history of suicidal ideation or self-harming behaviour, and was assessed as a low risk for self-harm. The Beck Anxiety Inventory indicated that the offender was experiencing severe anxiety symptoms at the time of assessment. The Static 99 R risk assessment, used to determine recidivism for male adult sex offenders, indicated that he was at a low risk for sexual recidivism. The only risk factor identified was a history of impulsivity. Ms North noted that a comprehensive risk assessment could not be completed, and recommended future and more thorough assessments.

17. Ms North was of the view that the offender satisfied the criteria for Alcohol Use Disorder, and that there were traits indicative of an ASD. Ms North recommends that the offender be referred for treatment for substance abuse, sex offence specific assessment and treatment to address his risk of sexual recidivism, and that he engage in therapy with a psychologist to manage his symptoms.

18. I take into account these subjective features as matters to synthesise on sentence.

Exhibit 3

19. The offender’s twin sister says she and her brother have always been very close. She states that he is a wonderful, hands on uncle to her sons who adore him. She says that the offender loves his two sons more than anything in his life. When her husband was injured, the offender came to his aid and worked for no pay because of his love for the family. She says that when the offender returns home, she will be there to help him adjust and re-enter the workforce.

Exhibit 4

20. The offender’s brother in law stated that he has known the offender since he was 5 years old. He says that the offender is very family oriented and a proud and loving father to his two sons. He stated that when the offender is with his sons, you can clearly see his love and devotion. He says that the offender is a fantastic uncle to his nephews who adore him. When he was injured, the offender helped out his brother in law so that he did not lose his job. When the offender is released, his brother in law will support and care for him, and assist him to re-adjust back into his life.

21. Both exhibits 3 and 4 demonstrate that the offender is a beloved brother, brother-in-law and uncle.

Objective Seriousness

22. The Crown submits that the following circumstances place the criminality at the upper end of the range of objective seriousness for offences of this type:

1. The victim was 10 or 11 years old at the time of the offence, which is at the bottom of the age range for this offence;

2. The offender was aged 36-37 years old. Therefore there was a significant age difference between the offender and the victim;

3. The offence involved a breach of trust because the offender was a close family member whom the victim trusted;

4. The offence was committed in the home of the victim;

5. The offence involved the penetration of the child’s genitals with a vibrator; and

6. The duration of the offence was not fleeting.

23. The Crown submits that although the penetration of the vibrator inside the victim’s vaginal opening was less than a minute, the entire incident involved a progression i.e. that after moving the vibrator on the outside of AB’s genitals for some minutes, the offender then moved it between her clitoris and the opening of her vagina, and then put it into the inside of her genitals. The Crown submits that the entirety of the interaction should be taken into account when considering the duration of the incident. Ms O’Reilly on behalf of the offender concedes that the incident itself went for a matter of minutes but says that the duration of the penetration was less than a minute.

24. Ms O’Reilly submits that the offence falls below the midrange for offences of this type, because:-

1. The vibrator went in approximately a centimetre or centimetre and a half;

2. The duration of the penetration was extremely brief at less than a minute;

3. The offender stopped immediately when asked to do so;

4. The offender then asked if the victim was okay;

5. The offender ceased the conduct once the victim had indicated it hurt and didn’t want to do it anymore;

6. The victim was not distressed by the conduct. She said that she was confused;

7. The penetration was with an implement rather than a body part of the offender, thereby avoiding bodily contact;

8. The use of an implement is less intrusive and less intimate than a body part; and

9. There was no risk of pregnancy or sexually transmitted disease by the use of the implement.

25. The Crown submits that the offence was committed in the home of the victim where she was entitled to be safe from harm. It was thus a violation of the victim’s reasonable expectation of safety and security in her own home. Ms O’Reilly concedes that this is an aggravating fact on sentence (s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act). Ms O’Reilly also concedes that there was a significant age difference between the offender and the victim.

Breach of Trust – s21A(2)(k) of the Sentencing Act.

26. The Crown submits that the offender breached a position of trust in relation to the victim, and that I should make this finding beyond reasonable doubt. He said that whilst there may be a close relationship between such an aggravating circumstance and the element of the offence of “under authority” [defined in section 61H of the Crimes Act 1900 as “a person is under the authority of another person if the person is in the care, or under the supervision or authority of the other person], there is some additional criminality that the court should take into account because there are circumstances present in this case that are additional to those of the victim being under the authority of the offender. He submitted that as the offender in the present case was one of the victim’s close family members, that relationship involved an obligation on the offender to care and protect the child victim, and amounts to a breach of trust. I observe that the statutory definition of under authority includes being “in the care of.”

27. In Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54, Basten JA, with Rothman and Cavanagh JJ agreed, explained the difference between a position of “trust”, and a position of “authority”:

…A position of trust is not a precise term, but may be understood as covering relationships involving an obligation of care and protection, as compared with relationships involving authority over another. Thus, parents, child minders, health workers and other similar relationships may constitute positions of trust…

28. In that case the offender was the victim’s uncle and little was known about their relationship.

29. In MRW v R [2011] NSWCCA 260, Bathurst CJ, James and Johnson JJ agreed that it was open to the trial judge to take abuse of trust under s21A(2)(k) into account as an aggravating feature notwithstanding that the offender was being sentenced in relation to an offence under s66C(2) where the aggravating circumstance relied on was “under authority”. The victim in that case was the biological daughter of the offender. Bathurst CJ held that abuse of trust and abuse of authority are distinct concepts that often arise out of the same facts. His Honour noted that a sentencing judge should be cautious in giving undue weight to an abuse of a position of trust where abuse of authority is an aggravating factor to avoid double counting.

30. Ms O’Reilly submits that here, where the offender has been convicted of sexual assault of a child under his authority, it would be an error to find an 'abuse of a position of trust' as an aggravating factor if the same features are relied on for both the element of the offence and the aggravating factor.

31. Ms O’Reilly relies on Beavis v R [2018] NSWCCA 248 where the court said at 255:

Given the jury’s verdicts, it must be accepted that they accepted this aspect of the Crown case. It follows that the matters said to demonstrate that the complainant was under the appellant's authority for the purposes of counts 3,4 and 5 were the same as those matters said to constitute the breach of trust for all offences, namely that the complainant was staying in the appellant's house and accordingly he was responsible for her safety and security. Thus, similarly to Franklin, the sentencing judge either did not advert to or at least maintain a distinction between a breach of trust and a breach of authority. Put another way, in relation to counts 3, 4 and 5 the sentencing judge treated a breach of trust as aggravating an offence, when as a matter of substance that breach was an element of the offence (Crimes (Sentencing Procedure) Act, s 21A(2)).

32. Ms O’Reilly submits that the Crown has not established any different or distinct feature other than the fact that the offender and the victim were close family members, and that the relationship required an obligation on the accused to care and protect the child, both of which are also relied on for under authority.

32. In my opinion, in this case such are the overlapping of the concepts of under authority and breach of trust, that I would be in danger of double counting should I find there to be a breach of trust beyond reasonable doubt. In my view, the facts and circumstances relied upon, i.e. the trust the victim placed in the offender as her stepfather falls within the yoke of being under his authority.

33. A child is entitled to feel safe, secure and confident with a person in authority, in this case a stepfather. Here that offender exploited his position of authority by offending against his stepdaughter who was left in his care.

34. I take into account the facts and circumstances referred to, and the legislative yardstick of the maximum penalty in finding that the offending falls at just above the mid-range of objective gravity for offences of this nature.

General Deterrence

36. The Crown submits that general deterrence is of significance in this sentencing exercise because of the abhorrence with which the community regards the sexual molestation of young children, especially where they are in a position of authority or trust. The Crown notes the judgment of R v BJW (2000) 112 A Crim R 1 at [20], where Sheller JA stated:

The maximum penalties the legislature has set for [child sexual assault] offences reflect community abhorrence of and concern about adult sexual abuse of children. General deterrence is of great importance in sentencing such offenders and especially so when the offender is in a position of trust to the victim. See the remarks of Kirby ACJ in R v Skinner (1994) 72 A Crim R 151 at 154.

37. The Crown also cites the case of R v Fisher (1989) 40 A Crim R 442 at 445:

This court has said time and time again that sexual assaults upon young children, especially by those who stand in a position of trust to them, must be severely punished, and that those who engage in this evil conduct must go to gaol for a long period of time, not only to punish them, but also in an endeavour to deter others who might have similar inclinations …

This court must serve notice upon judges who impose weakly merciful sentences in some cases of sexual assault upon children, that heavy custodial sentences are essential if the courts are to play their proper role in protecting young people from sexual attacks by adults …

38. Although these cases refer to positions of trust, in my opinion they are also apposite to cases where offenders are in positions of authority, in particular the authority exercised by this offender.

39. In my opinion, the offender’s conduct must be denounced, and the penalty imposed must reflect the community’s abhorrence of this type of criminal conduct so that it deters other likeminded offenders from engaging in the sexual exploitation of children.

Remorse and Prospects of Rehabilitation

40. The offender was assessed at low risk of reoffending by psychologist Ms North. Furthermore, Ms North identified several programs that would be available to the offender in custody. Thus, Ms O’Reilly submits that the offender has good prospects of rehabilitation.

41. I note that Ms North used the Static-99R to assess the offender and there was insufficient information to score the more fulsome risk assessment being a SABBLE-2007. Therefore, the risk assessment was incomplete and I approach Ms North’s finding with caution. That said, I accept that the offender has no previous criminal history of sexual offending and no offences involving other complainants. It is difficult to be optimistic about the rehabilitation of the offender in circumstances where he does not take responsibility for his actions. He expresses no remorse. Nonetheless, I hope with appropriate treatment he will gain insight into his offending which is a necessary precondition for his eventual rehabilitation. At the moment I am guarded as to his prospects.

Prior Criminal History

42. It is submitted by the offender that he has no previous criminal history involving matters of a similar nature. So much is true.

Time in custody

43. The offender has been in custody solely referrable to this offence since 19 September 2018. Both the Crown and the offender agree that the sentence should be backdated to that date.

Threshold

44. The Crown submits that the section 5 threshold of the Sentencing Act has been crossed. No submissions were put otherwise. I find that there is no alternative to a sentence of imprisonment being imposed.

Special Circumstances

45. I note that the Crown does not oppose a finding of special circumstances. I indicate that my reasons for deviating from the statutory ratio are the special circumstances that I find: this will be the offender’s first time in custody, the offender’s unaddressed psychological issues and his need for ongoing and extended supervision upon release. I have deviated to a ratio of approximately 66% because of these special circumstances.

Sentence

46. I have taken into account the various purposes of sentencing under s3A of the Sentencing Act. They include ensuring an offender is punished for his or her conduct, deterring crime, protecting the community, promoting an offender’s rehabilitation, making an offender accountable for his or her actions, denouncing an offender’s conduct and recognising the harm done to victims of an offence in the community. As always, the facts and circumstances of the present offence and this offender highlight how the various purposes of sentencing pull in competing directions.

47. As the High Court said of s3A in Muldrock v The Queen (2011) 244 CLR 120 at [20]:

The purposes there stated (in s3A) are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law (Veen v The Queen (No 2) at [476–477]). There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen (No 2) [at 476] in applying them.

48. The instinctive process of sentencing requires consideration of the relevant facts and circumstances as they are known to the court, including the facts surrounding the commission of each offence, matters affecting relative seriousness, the offender’s subjective circumstances and other aspects which bear upon the question of sentence, including the guidepost of the maximum penalty and the factors referred to in s21A of the Sentencing Act. The sentencing court is required to identify the factors relevant to the sentencing discretion and then to make a value judgment as to the appropriate sentence in all the circumstances (Markarian v The Queen [2005] HCA 25).

Orders

49. MS, please stand.

50. You have been convicted of aggravated sexual intercourse with a person above the age of 10 and below the age of 14 years, contrary to s66C(2) of the Crimes Act 1900.

51. You are sentenced to a term of imprisonment for 6 years. Your sentence will be backdated to 19 September 2018.

52. I impose a non-parole period of 4 years, which will expire on 18 September 2022, on which date you will be eligible for release on parole.

53. Your head sentence will expire on 18 September 2024.

54. MS, do you understand the orders I have made?

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Decision last updated: 18 December 2020