R v NB (No.2)

[2024] NSWDC 598

District Court

New South Wales

Medium Neutral Citation:

R v NB (No.2) [2024] NSWDC 598

Hearing dates:

13 December 2024

Date of orders:

13 December 2024

Decision date:

13 December 2024

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraphs [78]-[80]

Catchwords:

CRIMINAL LAW – sentencing – child sexual offences against the offender’s niece – significance of hearing disability – consideration of ‘psychosocial’ disability and how it bore upon the offender’s moral culpability

Legislation Cited:

Crimes Act 1900 (NSW), ss, 66A(1), 66DA

Crimes (Sentencing Procedure) Act 1999 (NSW), ss, 3A, 21A, 22A

Cases Cited:

Cheungv The Queen (2001) 209 CLR 1

DPP (Cth) v De La Rosa (2010) 71 NSWLR 1

DPP (NSW) v TH [2023] NSWCCA 81

EGv R [2015] NSWCCA 21

Muldrock v The Queen (2011) 244 CLR 120

R v BH [2023] NSWCCA 278

RvChampion (1992) 64 A Crim R 244

R vOlbrich (1999) 199 CLR 270

RC v R; R v RC [2020] NSWCCA 76

Savvasv The Queen (1995) 183 CLR 1

Scott v R [2020] NSWCCA 81

Texts Cited:

Nil

Category:

Sentence

Parties:

Office of the Director of Public Prosecutions (ODPP)
NB (the Offender)

Representation:

Counsel:
Mr A Lynch for the ODPP
Ms I Reed for the Offender

Solicitors:
ODPP
Donna Smith Criminal & Traffic Lawyer

File Number(s):

2022/00265638

Publication restriction:

Non-publication of the complainant’s name and the names of others who might tend to disclose the complainant’s name.

EX TEMPORE REMARKS ON SENTENCING

Introduction

1. On 11 June 2024, a jury in a trial I presided over in Newcastle found the offender guilty of counts 1, 3, 4 and 5 on an indictment. Count 1 concerned an offence contrary to s 66A(1) of the Crimes Act 1900 (NSW) of sexual intercourse (cunnilingus) with a child under the age of 10. For this offence, the maximum penalty is life imprisonment; with a standard non-parole period of 15 years.

2. Counts 3, 4 and 5 concerned the offence, contrary to s 66DA(a) of the Crimes Act of intentionally sexually touching a child under the age 10. For this offence, the maximum penalty is 16 years’ imprisonment with a standard non-parole period of 8 years’ imprisonment.

3. The date range for counts 1 and 3 was 20 April 2020 to 27 August 2022 when the victim was aged 5 or 6. It was on 26 August 2022 that the victim reported (in a general sense) the offender’s misconduct.

4. The conduct constituting counts 4 and 5 occurred on 2 August 2022. That conduct occurred when the victim was 7 years of age.

5. Unfortunately, the sentencing hearing had been delayed. Part of the problem has been the offender’s need for a special interpreter as a result of a hearing disability. Another was confusion between the parties as to the starting time. The upshot was that it took over 6 months until the sentencing hearing occurred since the jury’s verdicts.

The approach to sentencing after jury verdict

6. In relation to the approach of a sentencing judge to fact-finding after a jury has rendered a guilty verdict, in Savvas v The Queen (1995) 183 CLR 1 at 8, the plurality referred to the principle that “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”. In Cheung v The Queen (2001) 209 CLR 1 the High Court (in the joint judgment) summarised the law at [11]-[14]. I have had regard to those principles when finding the following facts.

7. More generally, to the extent that the Crown relies upon disputed facts adverse to the offender, it must prove them beyond reasonable doubt. Conversely, where the offender relies upon disputed facts favourable to him, he must prove them on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] per Gleeson CJ, Gaudron, Hayne and Callinan JJ.

The Facts

8. The Crown proposed facts which it contended were consistent with the jury verdicts. These were not expressly agreed. In fact, in the sentencing assessment report, the offender’s attitude was described as refuting any notion of him being involved in wrongdoing and, apparently, he lacked an understanding of the facts. At the hearing, Counsel for the offender indicated this may been a reference to the facts to be adjudicated at trial.

9. This directs me back to the facts as they emerged at the trial. At the trial both the victim and the offender gave evidence. Indeed the offender called other witnesses; including members of the victim’s extended family. By their verdicts, the jury strongly endorsed the victim’s credibility and reliability. There was also some conflict, to a lesser degree, between the victim’s mother and the offender. Having regard to the verdicts, where there was such conflict, I would prefer the credibility and reliability of the victim’s mother. Consequently, most of the following facts are taken from the victim’s narrative at trial.

10. The offender was born in 1990. The victim was born in May 2015. In the period through which the index offending occurred, the offender was aged between 29 and 31; whilst the victim was aged between 5 and 7.

11. Through the period 2020 to August 2022, the victim lived with her mother and father and younger sister (who was born in April 2020) in various places, including their maternal grandmother’s place. There was a period of three-four months when they lived in the offender’s unit and a later period where her family had their own place.

12. The victim’s mother gave evidence, which I accept, that the offender, who was her brother, often helped her out by watching her children, including the victim.

The First Incident (Charge 1)

13. The victim recalled an occasion when she was in the kitchen at her maternal grandmother’s house. This was when she was 6 or 5 years of age.

14. She had been sitting in a blue chair in the kitchen. This chair (she subsequently indicated) was portable and when she sat in it, her legs would touch the ground.

15. Whilst sitting in the blue chair, the offender licked her genitalia. This description satisfied the common law definition of cunnilingus. This misconduct occurred for an indeterminate period of time.

The Second Incident (Charge 3)

16. The victim, who was aged 7, recalled a day when her parents were out when the offender babysat her at home. On that day, the offender (then aged 31) went to the toilet with the victim. He took a piece of toilet paper and put that on the seat.

17. The victim sat on the toilet seat. He then knelt down beside her, fully clothed. She was wearing a shirt but her pants were pulled down. The offender took out his penis and rubbed it on the outside of her vagina. His penis did not go inside the vagina. He ejaculated and cleaned it up with the toilet paper.

The Third Incident

Charge 4

18. On 2 August 2022, the victim’s mother was scheduled to have day surgery to remove her wisdom teeth. She organised for the offender to look after the victim and her (much) younger sister.

19. The victim, then aged 7 (and in Year 1 at primary school), did not go to school that day. She stayed at home with the offender (then aged 31). At some stage, the offender and the victim were in the lounge room together. The victim sat on the lounge. The victim’s pants were pulled down. The offender had pulled down her pants. The offender knelt down next to her. He pulled his shorts half down; exposing his penis. His penis touched her on the outside of her vagina. This was interrupted when the victim’s father arrived home and the offender quickly stopped what he was doing when he heard the door opening. He quickly pulled up his and the victim’s pants, before giving the victim an iPad to play with.

Charge 5

20. It was agreed at the trial that the victim’s mother was admitted to and discharged from Belmont Hospital on the same day, 2 August 2022. (The mother was discharged from Belmont Hospital at 5:04pm that day).

21. The victim’s father left the house later in the afternoon to collect the victim’s mother from Belmont hospital. The hospital was about a 40 minute drive from the victim’s address.

22. The victim, then aged 7, was left alone again with the offender. Whilst sitting on the lounge, the offender, then aged 31, again exposed his penis and placed it so as to touch her genitalia for a second time.

23. As indicated, the victim’s mother and father returned home in the evening, at night time. The victim ran up to her mother and gave her a hug.

Evaluating the objective gravity of the offending

24. In all cases the offending appeared to be of brief duration. Further, all of it was opportunistic.

25. As to count 1, the offending occurred when the victim was 5 or 6, an age well below the top end of the age bracket for this particular offence. There was a very significant age disparity between victim and offender. The sexual activity was not forced but given the victim’s age, and familiarity with the offender, it did not need to be. In the absence of evidence, the offending should be taken to be brief. The victim was inherently in a vulnerable position (I do not invoke the statutory aggravating factor of vulnerability in this regard). There was no apparent premeditation. There was no violence, or threat of violence, or injury. Again, that is not uncommon for sexual activity with very young children (and note my observations below regarding the statutory aggravating factors). Although there are statements of authority that indicate that there is no hierarchy of seriousness of for different forms of sexual intercourse, the form of sex in this case – cunnilingus – along with the other matters I have alluded to, marks this particular offending out as being in lower range for offending of this kind.

26. As to count 3, and in relation to the balance of the counts all involving sexual touching of the victim’s vagina by the offender’s penis, with skin on skin contact. There was no physical injury, or threat of physical injury (although the question of physical injury says nothing about the psychological or emotional harm that has, or is likely to be sustained). The offender’s act of ejaculation at least in the vicinity of the victim made the offending worse as it betokened the perverse gratification he obtained from the offending; although it is likely it went onto the victim’s clothing. The offending fell within the mid-range of offending.

27. As to count 4 and count 5, the circumstances attending each offence were relevantly similar. There was again skin on skin contact involving the offender’s penis touching the victim’s genitalia. By this time the victim was slightly older (7), still young compared to the maximum age in the age element, but older than when she was subjected to the abuse constituting counts 1 and 3. I regard the offending as falling in the mid-range in each case.

Aggravating circumstances

28. The offending occurred in circumstances where:

1. it occurred in the victim’s home (or that of her grandmother); and

2. involved a breach of trust by the offender.

29. The Crown conceded at the trial, that when she was at her grandmother’s place and the offender was looking after the victim, it was fairer to say that it was the grandmother who was primarily responsible for her care. This was relevant to the offence under s 66A(1). But the same aggravating factor applied with greater vigour to the balance of the offences.

Victim impact statement

30. The victim is now 9 years of age. A statement was supplied by the victim’s mother, as the victim’s representative (Crimes (Sentencing Procedure) Act 1999 (NSW) (‘the CSP Act’), s 30(2)(a)). This had a forensic disadvantage. The victim’s mother necessarily had to give evidence of her observations of the victim’s behaviour, but it is a different thing to establish the victim’s personal perspective of harm (in whichever way that was manifested). A notable feature of this statement was the absence of evidence in which the victim communicated her feelings about what the offender had done to her. Notwithstanding what I have said, the content of what the mother wrote conveyed the types of behavioural reactions that might be expected of a young child who is a victim of sexual abuse and reinforces to the Court the multitude of harmful reactions and consequences of offending of this kind that are apt to be instilled in a victim.

The offender’s subjective case

Age and background

31. As indicated, the offender was aged between 29 and 31 when the offending occurred.

32. Much of his background was closely considered by Dr Christopher Bench, a forensic psychiatrist. Some of it is referred to in a sentencing assessment report prepared by the Kempsey Community Corrections officer.

33. The offender grew up in Sydney and Cessnock, and has an older brother and younger sister. His parents separated after he had become an adult. His mother passed away in 2022. He misses her; so much so, that his sleep was impaired and having nightmares, although much of that was attributable to the earlier sexual abuse he says was perpetrated upon him. He remains close with his father.

34. As indicated, he reported being the victim of sexual abuse when in primary school, with the perpetrator charged. This included penetrative anal intercourse. He left school at the end of Year 11. After leaving school, he worked for a period at Coles and also as a trades assistant. But his employment ceased about 10 years ago and he has survived on a Disability Support Pension and has received the support of an NDIS caseworker over the last 3 years for his deafness.

35. Putting aside his experience of sexual abuse, he reported that his first consensual sexual activity occurred with a sex worker when he was about 25 years of age. He told Dr Bench he had only had two sexual partners in his life.

36. Dr Bench considered that the offender met the diagnoses of PTSD and Paedophilic Disorder. He considered that PTSD would have been (and continues to be) present at the time of the offending. He doubted, however, whether the PTSD played any meaningful role in engaging in the offending behaviour. The latter diagnosis was based upon the fact of the guilty verdicts concerning a child under the age of 10. Dr Bench believed that if there was any mental health disorder that was causally connected to the offending, it was this Paedophilic disorder.

37. Dr Bench did not regard the offender as likely suffering from an intellectual impairment, or disability.

38. On the other hand, in the sentencing assessment report, the Kempsey corrections officer referred to an NDIS Occupational Therapy report (not before the Court) which alluded to his having a significant intellectual disability; which reflected upon his cognitive functions and reasoning, impaired his decision making and problem solving skills.

39. In the CSNSW Psychology structured case note attached to the sentencing assessment report, the psychologist opined that the offender had difficulty understanding conceptual relationships between ideas with a limited practical vocabulary for receiving and expressing language. He was described, both in that note and in the sentencing assessment report as having a ‘psychosocial’ disability.

40. Close to the hearing, the offender’s lawyers supplied the Court with a report by a psychologist, Ms Renae Yarnold, dated 20 March 2023. It was plainly prepared before the trial and verdicts. On its face, the purpose of this report was to ascertain whether the offender had a cognitive impairment to determine whether the offender presented with an intellectual disability to facilitate an application for additional funding through the NDIS.

41. In addition to her observations of the offender, Ms Yarnold administered two instruments: the first being the Weschler Adult Intelligence Scale (WAIS-IV) and the Adaptive Behaviour Assessment System (ABAS-3). The WAIS-IV scale tested the offender’s verbal comprehension, perceptual reasoning, processing speed, working memory and a full scale IQ. The ABAS tested a person’s functioning over multiple skill areas, including communication, self-direction, social.

42. When summarising the results of this testing, Ms Yarnold opined that the offender had low intellectual ability and extremely low adaptive behaviour. The WAIS-IV indicated that he did not meet the criteria for an intellectual disability, despite his low intellectual ability.

43. The offender invoked the principles from the familiar observations of McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) 71 NSWLR 1 at [177] about sentencing principles relating to mental illness, or intellectual handicaps or other mental problems.

44. However, the offender faces the difficulties of the evidence of Dr Bench who doubted whether there was any intellectual impairment and who also said that the PTSD that was diagnosed played little or no role in the offending. The psychologist, Ms Arnold, also did not consider that the offender had an intellectual disability; though his make up was such as to lead him to be vulnerable to others who mistreated him.

45. The offender does have in his favour a view from custodial authorities that he has a psychosocial disability. I place some weight upon the view of the Kempsey correctional officer that links an intellectual disability with his diminished level of insight into his offences.

46. However, I am troubled by two matters which lead me to be circumspect in accepting that view unreservedly. The first is a difficulty reconciling the offender’s own recognition of himself as being a victim of child sexual abuse with his declared view that he would ‘not hurt’ a child. The second is what I referred to earlier in the factual background, in relation to the third incident (the fourth charge) concerning his reaction when he perceived his offending might be seen by another person; which strikes me as indicating a consciousness of wrongdoing.

47. I am unable to ascribe any significant causal contribution of his intellectual or psychological disability to his wrongdoing in a way that materially lessens his moral culpability. Aside from the matters I have referred to, and picking up Ms Arnold’s point about the offender’s vulnerability, in the sense of being taken advantage of by others, there is nothing on the facts to indicate how such vulnerability was manifested at the time he committed his offences.

48. It strikes me as a more likely explanation, based upon another opinion of Dr Bench that he has a paedophile disorder. How that developed and whether or not it had its provenance in earlier child sexual abuse perpetrated upon him was not really explored. At any rate, whilst not losing sight of the hardship the offender is likely to endure under sustained incarceration on account of his mental health issues (generally) the existence of such disorder heightens the need to impose a sentence which protects the community.

Antecedents & prior good character

49. It was acknowledged during the trial that the offender had no prior criminal history. This was confirmed at the sentencing hearing when the NSW Police Force records indicated no convictions.

50. Several of the offender’s aunties also gave evidence, testifying in effect, as a man of good character; insofar as the care and love he had shown to family members. Ms Arnold referred to him as presenting as caring and eager for connection with others. There is little in the material I have read to indicate that he is violent in any way.

51. It was not suggested that his reputation as a man of good character should be taken to have assisted the offender to commit his offences. The Crown conceded that, although it maintains that the offender had been trusted, the exclusionary effect of s 21A(5A) of the CSP Act is not engaged in the circumstances of this case and thus, subject to what follows, the Court can take into account his good character and lack of prior convictions as mitigating factors. However, without being critical, there was little evidence to indicate manifestations of good character in a way that serviced the community. At any rate, it is notorious that for offending of the present kind, prior good character has little weight in the sentencing exercise.

Remorse

52. The offender asserted to Dr Bench his innocence of the charges to which he was found guilty. I note further that in Ms Yenold’s report of 20 March 2023 there appears to be the flavour not only that the offender denied wrongdoing, but he and his supporters believed that the incident(s) were an example of his vulnerability and being ‘taken advantage of’ by others. That insight strikes me as disturbing. It certainly controverts not only the reliability but also the credibility of the victim and is not a matter I can accept in this sentencing exercise. It strikes me as an attitude of bare, unreasoned denial.

53. This attitude was reflected also in the interview with the corrections officer who prepared the sentencing assessment report.

54. The offender is entitled to his view, but it is not something that can be taken into account as mitigating his offending.

Rehabilitation prospects

55. The offender informed the Kempsey corrections officer that he has a supportive relationship with his father. He has been unemployed for the last 10 years.

56. The NDIS also supports him. This has been beneficial in several senses. Prior to his offending, the offender was involved in organised leisure and social activities through the NDIS. Further, the NDIS is currently planning for the provision of accommodation upon his release.

57. Taking into account his somewhat meagre community ties and his highly limited insight, I cannot help but find that his rehabilitation prospects are guarded.

Likelihood of re-offending

58. The offender also denied any sexual disorders when speaking with Dr Bench. Although he was tentative about commenting upon rehabilitation prospects and likelihood of reoffending, Dr Bench did refer to a ‘paucity’ of risk factors before concluding that he would likely be considered at the ‘average’ to ‘below average’ risk.

59. However, the Kempsey corrections officer opined that that the offender displayed no insight into his actions and did not appear to understand the gravity of his actions.

60. The offender was assessed (as at 1 December 2024) as presenting an ‘Average’ risk of sexual re-offending when scored on the STATIC-99R scale. This was the classification referred to in a CSNSW Psychology Structured case note which was attached to the sentencing assessment report.

61. He was assessed as being at a ‘Medium-Low’ risk of reoffending according to the LSI-R scale. But that was overridden and replaced by an assessment of a ‘Medium’ risk of reoffending with Community Corrections plainly preferring the Static-99 assessment.

62. I am unable to find that he will not likely re-offend.

Hardship

63. Dr Bench opined that the custodial setting was likely to exacerbate the offender’s PTSD. With that, and his deafness and general naivety, the psychiatrist regarded the offender as being particularly vulnerable in prison.

64. The Crown accepts that the offender’s deafness will make him more vulnerable in jail then he otherwise would have been. I agree, but would add that other features amounting, collectively, as a ‘psychosocial’ disability, anxiety and depression will further weigh upon him.

Assistance facilitating the administration of justice

65. In its written submissions, the Crown acknowledged, for the purposes of s 22A, that complaint evidence it was proposing to rely upon at trial, was obviated because of the intended evidence becoming subsumed within agreed facts when a complaint witness becomes unavailable.

66. I consider that some discount on penalty should be given, although it is not vast in circumstances of a strong Crown case and having regard to the limited nature of the assistance rendered. I propose to reduce sentence by 3% on account of this factor.

Instinctive synthesising

67. I take into account the maximum penalties and standard non-parole periods. The Crown correctly submits that these guideposts speak strongly to community attitudes to sexual offending against very young children.

68. When considering the sentence for count 1, in particular, I am mindful of recent decisions such as DPP (NSW) v TH [2023] NSWCCA 81 and R v BH [2023] NSWCCA 278 in which a review of the cases indicated the very significant custodial sentences indicated (or imposed) for offences under s 66A(1).

69. I take into account the principles in s 3A of the CSP Act. In EG v R [2015] NSWCCA 21, Hoeben CJ at CL observed (with the agreement of Harrison and R A Hulme JJ) at [42]:

“General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually abuse children intentionally and repeatedly that their actions will not be tolerated and that they will receive significant punishment”. 

See also RC v R; R v RC [2020] NSWCCA 76 per Wilson J (R A Hulme J and Hamill J agreeing) at [232].

70. To these principles, I would respectfully add the significance of ensuring the offender is adequately punished and made accountable for his actions and recognise the harm done to the victim. The offender’s own rehabilitation is important, but that consideration is subsidiary.

71. The Crown drew my attention to the Court of Criminal Appeal’s decision in Scott v R [2020] NSWCCA 81, a case where there was similarly one offence of sexual intercourse with a child under 10 years of age and three offences of what was then the offence of indecent assault with a child under 16 years of age by a 68 year old man, a grandfather to the victim, whose motives were unclear, but who had good prior character. The Crown closely analysed that decision as something of a ‘comparable’. I have read Scott, and whilst I consider that there is some force in the comparison of the objective features of the offending in that case with this one (the offending here is, I think, more serious than in Scott) the subjective circumstances of the offender in Scott were regarded as exceptional; in the sense of their being very favourable to the offender; including demonstrable good character, age and good health. I do not consider that this offender’s subjective case is comparatively quite so favourable other than through the clear indications that he will endure hardship in custody.

72. The offender’s Counsel submitted that there should be a finding of special circumstances; and thereby implicitly conceded that the s 5(1) threshold is crossed. The implied concession is properly made. I find that the s 5(1) threshold is crossed.

Indicative sentences

73. The indicative sentences (taking into account the discount for the assistance) are:

Count 1: 4 years’ imprisonment and 10 months (NPP 2 years and 10 months)

Count 3: 2 years’ and 8 months’ imprisonment (NPP 1 year and 7 months)

Count 4: 3 years’ imprisonment (NPP 1 year and 9 months)

Count 5: 3 years’ imprisonment (NPP 1 year and 9 months)

Totality

74. As indicated, all of the offending occurred against the single victim. The conduct giving rise to counts 4 & 5 occurred on the same day, although they were slightly broken up. These matters point to a level of concurrency. But although there were two charges giving rise to offences on the same date, there were two additional incidents occurring on separate days and in unconnected circumstances; which points to requirement for accumulation. I have to assess the criminality overall with regard to a range of offending occurring over about 2 years, or thereabouts.

Pre-sentence custody

75. The Crown successfully brought a detention application after the jury’s verdicts were announced. The offender has now been in custody for a period of 179 days that are to be attributed to the index offending. The sentence will be backdated to take his period in prior custody into account.

Special circumstances

76. The Crown did not resist the offender’s submission that this finding should be made. I find that as a first time offender in custody and especially given his deafness and other concerns, and the existence of prior good character, which will make his period in custody more onerous, such finding is warranted. I note that this may also be limited upon the availability of psychotherapy treatment.

Sentence and orders

77. Mr [NB], please stand.

78. You are convicted of offences on counts 1, 3, 4 and 5 on the indictment.

79. I sentence you to a term of imprisonment of 7 years and 6 months’ imprisonment commencing on 19 June 2024 and expiring on 18 December 2031, with a non-parole period of 4 years and 6 months, expiring on 18 December 2028; after which you will be eligible for release.

80. I direct that the CSNSW psychology note prepared by P Castillo dated 1 December 2024 be brought to the attention of those responsible for supervising him.

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Decision last updated: 17 December 2024