R v NC

[2020] NSWDC 547

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v NC [2020] NSWDC 547

Hearing dates:

4 September 2020

Date of orders:

22 September 2020

Decision date:

22 September 2020

Jurisdiction:

Criminal

Before:

Lerve DCJ

Decision:

Sentenced to an aggregate sentence of 4 years with non parole period of 2 years.

Catchwords:

CRIME – SENTENCING – use of child under 1 to make child abuse material – aggravated incite chle to carry out sexual act – sexually touch child – plea of guilty – assessment of criminality – aggravating factor of “vulnerability” - general deterrence – age and health of offender, whether custody is more onerous – first time in custody – COVID-19 pandemic

CRIMES – APPEAL – sentence appeal – aggravated indecent assault - plea

Legislation Cited:

Crimes Act, 1900

Crimes (Sentencing Procedure) Act, 1999

Cases Cited:

Betts v R [2015] NSWCCA 39

Chamseddine v R [2017] NSWCCA 176

Doan v R (2000) 50 NSWLR 115

Elyard v R [2006] NSWCCA 43

Greaves v R [2020] NSWCCA 140

Holyoak v R (1995) 82 A Crim R 502

MC v R [2017] NSWCCA 316

MLP v R (2006) 164 A Crim R 93

PGM (2008) 187 A Crim R 152

R v Boney [2008] NSWCCA 313

R v Burchell (1987) 34 A Crim R 148

R v Cahyadi [2007] NSWCCA 1

R v Despotovski [2020] NSWDC 110

R v Ls; MH [2020] NSWCCA 148

R v Merrin [2007] NSWCCA 255

R v Muldoon unrep. NSWCCA 13.12.1990

R v PGM [2008] NSWCCA 172

R v RM [2020] NSWDC 52

R v Turnbull (No. 26) [2016] NSWSC 847

R v TWP [2006] NSWCCA 141

R v Van Ryn [2016] NSWCCA 1

Rv Van Ryn [2016] NSWCCA 1

RJA v R (2008) 185 A Crim R 137

Ryan

The Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 2 of 2002 (2002) 137 A Crim R 196

Turner v R (2017) 271 A Crim R 54; [2017] NSWCCA 304

Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44

Texts Cited:

Second Reading Speech on 26 November 2008

Crimes Amendment (Sexual Offences) Bill 2008 Second Reading Speech on 26 November 2008

Category:

Sentence

Parties:

DPP (the Crown)
NC (the offender)

Representation:

Counsel:
Mr M King (for the offender)

Solicitors:
Mr A Dixon (for the Crown)

File Number(s):

2019/15272
2019/207639

Publication restriction:

The relevant legislation provides that there must be no publication of the name of the victims or anything that might identify them or anything that may identify them, including the name of the offender.

REMARKS ON SENTENCE

1. The offender was committed for sentence from the Local Court at Wagga Wagga on 11 March 2020 in respect of four charges, namely in the order in which they appear on the Crown Sentence Summary:

1. Use Child of under 14 years of age to make child abuse material, contrary to s 91G(1)(a) of the Crimes Act, 1900; and

2. Aggravated Incite Child between 10 and 16 years to carry out sexual act contrary to s 66DE(1)(b) of the Crimes Act; and

3. Intentionally sexual touch child aged between 10 and 16 years, contrary to s 66DB(a) of the Crimes Act; and

4. Use child under 14 years of age to make child abuse material contrary to s 91G(1)(a) of the Crimes Act.

2. The pleas of guilty were adhered to at the sentence hearing at the Wagga Wagga District Court on 4 September 2020 and accordingly the offender is entitled to the full 25% discount for the utilitarian discount for the pleas of guilty.

3. The maximum penalty for the offences contrary to s 91G(1)(a) of the Crimes Act is 14 years imprisonment. Parliament has specified a standard non-parole period of six years in respect of that offence. I acknowledge that I am engaged in a one-step instinctive process in which two of the principal guideposts are the maximum penalty and the standard non-parole period. The maximum penalty for the charge of Incite Child to Carry Out Sexual Act contrary to s 66DE(1)(b) of the Crimes Act is 5 years imprisonment with no standard non-parole period specified. The maximum penalty for the charge of Sexual Touching a Child between 10 and 16 years contrary to s 66DB(a) of the Crimes Act is 10 years imprisonment with no standard non-parole period specified.

4. The offender also has before the District Court an appeal as to the severity of sentence imposed at the Local Court at Wagga Wagga on 3 August 2020 in respect of a charge of Indecent Assault contrary to s 61M of the Crimes Act, that offence having been committed in 2003. The offender (appellant) was sentenced to a fixed term of 12 months imprisonment backdated to when the offender went into custody.

5. The subjective material upon which the offender relies in respect of the matters for sentence in this court is also relevant to the appeal matter. I will refer to the four charges in respect of which the offender was committed as the “sentence matters” and the appeal from the Local Court as the “appeal matter”.

6. The victim in the sentence matters was and is a child. The victim in the appeal matter was also a child at the time of the offending. The relevant legislation provides that there must be no publication of the name of the victim or anything that might identify them. For this reason I will refer to the victims using that word (victim) not to depersonalise them but rather to ensure their anonymity. In respect of the sentence matters that prohibition extends to the name of the offender.

Facts – sentence matters

7. The facts of the sentence matters are contained within the Agreed Facts within the Crown tender bundle, exhibit A on sentence. The victim, who was 10 years of age at the time of the offending, was under the parental responsibility of the Minister for Family and Community Services and was at the time of the offending living with the offender and his partner in a town in the south-west region of New South Wales.

8. Behind the house in which they lived is a shed that has three bays, the first of which contained a trailer with musical equipment, the second bay where the offender parked his vehicle and the third bay was used for tools and shelving.

9. On 7 January 2019 the victim, offender and offender’s partner were at home. At about 4pm the offender took the victim to the shed, which was apparently not in itself unusual. However once in the shed the offender asked the victim to take a photo of her “private part” on her phone and repeated the words, “go on, take a photo of your private part”. The victim said “why” to which the offender said, “because I want you to”. The facts recite, “The victim did not want to do this but felt compelled by the offender to do it”.

10. The victim went behind the music trailer and took two photographs of her vagina and then returned and showed them to the offender who said, “they’re so cute” before deleting the photographs. A little later, while still in the shed the offender asked the victim to take a photograph of her bottom with her phone and show that to him. She did so and the offender watched while that occurred. A little later after that the offender took a photograph of the victim’s bottom and private part and showed those photographs to the victim. It is this conduct in combination upon which the Crown relies for the first charge contrary to s 91G(1)(a) of the Crimes Act – sequence 3.

11. Sequence 4 is the charge of Aggravated Incite Sexual Act contrary to s 66DE of the Crimes Act. This conduct occurred after the conduct just recounted. The offender told the victim to get into the enclosed tray of his utility that was parked in the second bay of the garage. The offender said to the victim, “Take your pants off and let the dog lick you”. The offender then placed the dog in the utility tray with the victim.

12. The offender encouraged the dog to lick the victim’s vagina and the dog started licking the victim’s vagina for an unknown period of time.

13. The next matter is Sequence 1 and is the charge shortly or commonly known as Sexual Touching contrary to s 66DB of the Crimes Act. This occurred after the first two offences that have been recounted. The offender and the victim were still in the shed. The offender asked the victim if he could touch her private part but told the victim not to tell his (i.e. the offender’s) partner. The offender kept insisting and asked the victim to pull down her pants and underwear. The facts recite, “She felt like she had to, so pulled her pants down a little bit”. The offender then touched the victim’s vagina for two seconds with the hand and fingers.

14. At about 5.40 the offender’s partner came to the shed and found that the small entry door to the shed had been locked. This door was not usually locked. She found that a roller door was slightly ajar and quickly opened that. She saw the victim in the back of the utility. She asked why the door was locked and inquired as to what was going on. Both the offender and victim said that nothing was going on.

15. The offender’s partner walked back to the house and again asked the victim what was going on. The offender’s partner pressed the victim saying, “No, what was going on, did he do anything to you” to which the victim said, “Yes, he told me not to tell you, he wanted me to take photos of my area”. The offender’s partner then confronted the offender saying, “Are you fucking kidding me?” to which the offender responded, “She’s lying”. The victim yelled, “I’m not lying”. The offender’s partner demanded that the offender leave the house, which he did. His partner then sat down and spoke to the victim who disclosed what had occurred in the shed. The victim told the offender’s partner that the photographs on the phone were deleted and sometime later disclosed the incident with the dog. The offender’s partner again confronted the offender about what had occurred as he was leaving.

16. The offender presented himself at the Wagga Wagga police station on 15 January 2019 when he was arrested and charged. He was interviewed but made no comment about the allegations.

17. The remaining charge is the second charge contrary to s 91G(1)(a) of the Crimes Act. The police performed a “Cellebrite” download of the victim’s phone. Among the contents of the phone were three videos that were taken at about the same time of the other offending and within a minute of each other. One video shows a grey/black screen. Another is a short video depicting the victim in a pink shirt in what appears to be the shed, manipulating her vagina with her hand for the camera and it appears that the victim is filming. The third video is a short video where the offender (to recite the facts), “is now holding the camera in the same place as the previous video and the victim is wearing the same clothes. The offender’s face is visible on a number of occasions as he attempts to operate the camera.

Assessment of the criminality – sentence matters

18. I will go initially to the charges contrary to s 91G(1)(a) of the Crimes Act. From the judgment of Basten JA (Adamson J dissenting as to the outcome of part of the conviction appeal, Bellew J agreeing) in Turner v R (2017) 271 A Crim R 54; [2017] NSWCCA 304 and the decision of Wilson J in R v Ls; MH [2020] NSWCCA 148 it would appear that the following (but not in any particular order) inform the objective seriousness of an offence contrary to s 91G(1)(a) of the Crimes Act:

• Whether actual children were used in the creation of the material;

• The age of the child if an actual child was used in the production of the material;

• The nature and content of the material including the gravity of the sexual activity depicted;

• Whether there was a position of trust or authority by the offender over the child;

• The number of images;

• Whether the images are still or moving;

• Whether the images captured were for or intended for further distribution; and

• Whether there was any force or coercion of the child, and if so, to what extent; and

• Whether there was any admonition or pressure applied for the child not to disclose the conduct.

19. The child was 10 years of age. The offender was in a position of trust. The number of images in respect of the first of the s 91G(1)(a) charges was limited to approximately five and it would seem that most of them were deleted. The images were of the genital area and the bottom of the child. The images were still images. They were not intended for further distribution. There was persuasion of the child but no force or coercion as such. However, on the subject of the persuasion it is significant that the offender was the adult male in the house and in that position of trust. The child was told not to tell the offender’s partner but that was in the context of other offending that occurred as part of the same episode. Also relevant to the assessment of the criminality in sequence 3 that relates to the first offence contrary to s 91G(1)(a) of the Crimes Act is that the offender asked the child to take the images. 

20. The Crown submits that both matters contrary to s 91G(1)(a) are within the mid-range. Mr King submits that the offending was towards the lower end of the range of seriousness. Noting the various matters to which I have referred but particularly noting the age of the child, the position of trust held by the offender and nature and limited number of the images I am of the opinion that the matters are moderately below mid-range with the second of the matters being slightly more serious than the first because of the nature of the moving images.

21. Sequence 4 is the charge of Aggravated Incite Sexual Act contrary to s 66DE(1)(b) of the Crimes Act and relates to the incident involving the dog. The Crown correctly submits that the conduct is “a particularly degrading example of this type of offence”. Mr King concedes that this is the most serious of the offending. This matter carries the lowest maximum penalty of all of the offences for which the offender appears for sentence but I agree with Mr King that this is the most serious offending. Noting the age of the child and the conduct involved the matter is well above mid-range.

22. In respect of the charge of sexual touching contrary to s 66DB(a) of the Crimes Act, the victim was at the lowest age contemplated by the relevant legislation. There is again the position of trust to be considered. There is a very significant age difference between the victim and the offender. The touching involved skin on skin contact of the victim’s genital area in circumstances where the offender had persuaded the victim to lower her pants. The conduct was of short duration, i.e. about two seconds. Noting in particular the nature of the touching (but also considering the short duration of the offending), the age of the victim and the position of trust the offending is marginally below mid-range.

Severity Appeal

23. While the offender was in custody bail refused for the sentence matters he was charged with one count of Aggravated Indecent Assault contrary to s 61M(1) of the Crimes Act. The offending occurred on or about 29 January 2003. The factor of aggravation relates to the age of the victim.

24. It is clear from the court papers that the matter was initially defended with the brief being ordered and on 8 January 2020 the matter was listed for hearing on 20 May 2020. On 11 March 2020 a plea of guilty was entered and the hearing date vacated. The plea was entered well before the hearing date. It is not clear from the papers the discount allowed by the Magistrate. I would allow 15% discount for the utilitarian value of the plea of guilty.

25. The maximum penalty for the offence at the time of the offending was 7 years imprisonment if dealt with on Indictment. The jurisdictional limit of the Local Court was 2 years. In this regard see the decisions of Doan v R (2000) 50 NSWLR 115; The Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 2 of 2002 (2002) 137 A Crim R 196; Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 at [99] per Johnson J and more recently Greaves v R [2020] NSWCCA 140 at [66] per Cavanagh J (Hoeben CJ at CL, Hammil J agreeing). The jurisdictional limit is not reserved for a case in the worst category and should not be regarded as a maximum penalty.

26. The offender was sentenced to a fixed term of 12 months imprisonment to date from 15 January 2019 and expired on 14 January 2020.

27. The victim was 14 years of age. The offender was her singing coach. On a Wednesday towards the end of the January school holidays in 2003 the victim was dropped off at the appellant’s home for a lesson. The offender took the victim to a caravan at the back of the property. As the offender let the victim in to the caravan he had his hand on her back and once the victim was inside he said to her, “looking good baby”.

28. The offender said, “show me your belt” and waved her over. As he went to grab the belt a hand brushed over the victim’s vaginal area, which at the time she did not think was intentional. The offender commented that she should take the belt off as it might restrict her singing. The victim wanted to keep it on and showed the offender that it was loose by pulling it forward.

29. About 45 minutes into the lesson the offender asked the victim to stand and look into a mirror, which she did. The offender stood behind her and wrapped his left arm around her and placed his hand on her diaphragm. The offender spoke to the victim about putting emotion into the songs.

30. The victim observed in the mirror the offender’s left hand slide down from her diaphragm while moving his fingers from side to side in a rubbing motion. The offender continued to move his hand down with his fingers until she could feel and see his hand go under her cargo pants and underwear.

31. The victim felt the offender’s fingers rubbing between the hairline and the opening of her vagina. He stopped his hand from moving but continued to rub his fingers on her skin. The victim said that the offender was rubbing about two finger widths away from the opening of her vagina. When the victim felt the offender’s hand move again she grabbed his arm and pulled his hand out of her pants and said, “hey”. The offender pulled his arm away and said, “Oh sorry, I didn’t realise, I got carried away”.

32. The offender sat down on a chair and the victim very soon after that left the caravan. The victim continued to see the offender for singing lessons for “a while longer” and maintained contact. The offender would often hug the victim during singing lessons if she made a mistake.

33. In January 2019 the victim became aware of the allegations relating to the sentence matters. After speaking to a counsellor the victim contacted the police. The offender was spoken to on 4 July 2019, participated in a record of interview in which he told police that he knew and taught the victim but made no comment about the allegations.

Assessment of the offending – appeal matter

34. The victim was 14 years of age and relatively close to the upper end of the age range contemplated by the offence. There was the position of trust with the offender being her singing teacher. The conduct involved skin on skin contact under the victim’s clothing. The conduct went on for some time. The offender desisted when, but only when, the victim intervened. The matter is marginally below mid-range.

Aggravating factors

35. The Crown submitted that the court should find the factor of statutory aggravation provided for by s 21A(2)(l) - i.e. that the victim (in the sentence matters) was vulnerable - is made out. This was opposed by Mr King for the offender. This is an issue that has been raised on previous occasions.

36. Section 21A(2)(l) relevantly provides that the following is an aggravating factor that the court is to take into account in determining the sentence:

(l)  the victim was vulnerable, for example, because the victim was very young or very old or had a disability, because of the geographical isolation of the victim or because of the victim’s occupation (such as a person working at a hospital (other than a health worker), taxi driver, bus driver or other public transport worker, bank teller or service station attendant)

37. Spigelman CJ (Price & McCallum JJ agreeing) said in RJA v R (2008) 185 A Crim R 137 at [13] that:

“There is work for this part of s 21A (2)(l) to do even in the context of an offence which contains the age of the victim as part of the offence. The younger the victim the more serious the offence”.

38. However, Fullerton J in her judgment in R v PGM [2008] NSWCCA 172 at [36] cites with apparent approval Kirby J in MLP v R (2006) 164 A Crim R 93 at [22], in that:

“…The section is concerned with the protection of the vulnerable from sexual exploitation and violation. No doubt, as a generalisation, the younger the child the more defenceless and vulnerable. However, the entire class of children under the age of 10 years is vulnerable”.

39. The legislation is concerned with the protection of children. The age of the victim is taken into account in the determination of the objective seriousness or gravity of the relevant offence. It is a moot question as to whether a 10 year old child is “very young” for the purposes of the section.

40. Section 21A(2)(l) was also considered by the Court of Criminal Appeal in Betts v R [2015] NSWCCA 39. In that decision RS Hulme AJ (Meagher JA, Hidden J agreeing) said at [29]-[30]:

“The authorities make clear that sub-paragraph (l) ‘is concerned with the weakness of a particular class of victim and not with the threat posed by a particular class of offender’ and that ‘the examples set out in the sub-paragraph’ suggest that it is vulnerability of a particular kind that attracts its operation’ and the fact that a victim does not have the characteristics of a powerful offender with violent tendencies does not make the victim vulnerable within the meaning of sub-paragraph (l) – see R v Williams [2005] NSWCCA 99 at [40],[41]; R v Tadrosse [2005] NSWCCA 145; (2005) 65 NSWLR 740 at [26],[27]. The paragraph looks to the circumstances of groups or classes of victims inherent in their situation or characteristics as such divorced from any actions of an offender.

[30] In finding that the victim was vulnerable because she was alone in the apartment with the offender and at his mercy indicated that his Honour did not direct attention to the correct operation and limits of sub-paragraph (l). While in one sense the complainant was vulnerable that vulnerability arose because of the particular events of the day, not because of the characteristics of any group of which she was a member.”

41. It is accepted that the decisions of RJA v R and PGM v R relate to children under 10 years. However, it would seem to me that the same general principles apply. The legislation is concerned with the protection of children. The age of the victim is taken into account in the determination of the objective seriousness or gravity of the relevant offence. It seems to me that if the age of the child is taken into account as one of the factors in determining the gravity of the offending then to also take it into account as a separate factor of statutory aggravation is to engage in “double counting”.

42. On the issue of statutory factors of aggravation it is perhaps timely to note the observations of Howie J in Elyard v R [2006] NSWCCA 43 at [39]-[41]:

“It is unfortunate indeed that those responsible for drafting s 21A of the Crimes (Sentencing Procedure) Act have made the task of sentencing courts more difficult, or at least more prone to error (either real or apparent), by what was in my opinion a needless attempt to define relevant factors into categories of aggravation or mitigation and yet apparently without the intention of altering the common law as it was applied to sentencing before the advent of the section. One has only to look back over sentence appeals determined by this Court over the last two years to see the impact that this section has had upon the work of this Court. And yet, as I pointed out in R v Tadrosse [2005] NSWCCA 145, if sentencing judges simply take into account the relevant sentencing factors that were taken into account before the introduction of the section, they will inevitably comply with the section’s demands.

[40] There is now another unnecessary complication fully identified as arising from the introduction of the section that will plague sentencing judges and this Court: not only must the sentencing court not take into account as an aggravating feature an element of the offence, it also must not take into account as an aggravating feature an inherent characteristic of the class of offence of which the offence before the court is an example. Yet this must be so in order to avoid either real or apparent double counting of aggravating features. As Basten JA points out, this matter was referred to in R v Way (2004) 60 NSWLR 168 at [172], it was identified in R v McMIllan [2005] NSWCCA 28 at [38] and it was considered in R v Ancuta [2005] NSWCCA 275 at [11]. The fact that there is an apparent inconsistency in approach between the view taken in McMillan and that taken in Ancuta in relation to dangerous driving under the influence of alcohol shows how difficult it is to determine whether it is permissible to take into account the aggravating factor that “the offence was committed without regard for public safety” in any particular case.

[41] However, a similar problem arises with other factors of aggravation set out in the section. It has been identified in cases of child sexual assault in relation to the aggravating factor that the victim was vulnerable: see R v JBD [2005] NSWCCA 102 but cf R v Pearson [2005] NSWCCA 116. The vulnerability of the child may or may not be an aggravating factor under the section depending upon the age of the child and the nature of the offence. This is because it is an inherent characteristic of the class of child sexual assault offences that the child is vulnerable. “

43. All young children are vulnerable, which is one of the reasons behind the public policy that makes sexual offending against children so serious. The age of the child is taken into account in determining the objective seriousness or gravity of the offending. The fact that the victim was a foster child goes to the weight given to the factor of abuse of position of trust. To further take these matters into account as factors of statutory aggravation as submitted by the Crown would in my opinion be engaging in double counting.

44. However the offending involves a very substantial abuse of the offender’s position of trust. Further, the offending occurred in the victim’s home. However it was also the offender’s home. While this factor (s 21A(2)(eb)) is made out it does not attain significant weight.

Criminal History

45. The offender was born on 17 June 1939 and accordingly was 79 at the time of offending and is 81 at the time of sentence. He was 63 years of age at the time of the offending in the appeal matter. There are no other matters on his record other than the matters for which he now appears for sentence – including the appeal matter. The Crown submits (paragraph 23, MFI 1 on sentence) that “the offender’s conviction in the severity appeal matter for aggravated indecent assault against AH in 2003 denies him any claim to leniency in the sentence matter”

46. The Crown further submits that s 21A(5A) of the Crimes (Sentencing Procedure) Act, 1999 applies in that as the victim was a foster child the offender had to undergo various background checks before the child was placed with the offender and his partner. Under cross-examination to the Crown at the sentence hearing the offender conceded that he did have to undergo such background checks.

47. Section 21A(5A) of the Crimes (Sentencing Procedure) Act provides:

(5A)   Special rules for child sexual offences

In determining the appropriate sentence for a child sexual offence, the good character or lack of previous convictions of an offender is not to be taken into account as a mitigating factor if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence.

48. As I understood the Crown’s submission, s 21A(5A) is enlivened because his good character was of assistance in the successful completion of the background checks. Not surprisingly, Mr King on behalf of the offender opposes this. It was apparent from the somewhat offhand remark of the Crown’s representative when I inquired whether he had the Second Reading Speech that he had not read that speech. Yet again this court is apparently expected to research a point when the Crown makes a bold or robust submission. The then Attorney-General, The Honourable John Hatzistergos said in the Crimes Amendment (Sexual Offences) Bill 2008 Second Reading Speech on 26 November 2008:

“…

The bill also makes important changes to the Crimes (Sentencing Procedure) Act 1999 to ensure that when sentencing an offender for a child sexual offence the court is not to take into account the offender’s prior good character or lack of previous convictions if that factor was of assistance to the offender in the commission of the offence. The simple fact of a person’s clean record and good character may assist an offender to gain the trust of a child, or the child’s parents in order to commit a sexual offence against the child. Any offender who has misused his or her perceived trustworthiness and honesty in this way cannot use his or her good character and clean record as a mitigating factor in sentence…”

49. It seems to me that a fair reading of the Second Reading Speech indicates that s 21A(5A) was not intended to cover the situation as in the matter under consideration where the offending is committed by the parent or foster parent in the house. As indicated above the fact that the child is a foster child goes to the weight attributed to the factor of abuse of the position of trust. It is not as if that factor is not relevant or is ignored in the sentencing process.

50. Mr King in oral submissions referred to my decision in R v RM [2020] NSWDC 52 at [40]-[44]. The following is that part of the decision.

[40] McHugh J, who was part of the majority in allowing the appeal, J in Ryan v The Queen (2001) 179 ALR 193 at [35]-[37] said:

“Given these circumstances, Gleeson CJ was correct when he said that the appellant was not entitled to significant leniency because of his otherwise good character. However, Nield DCJ gave the appellant no leniency whatsoever for his otherwise good character. He was entitled to some leniency for his otherwise good character. That being so, the Court of Criminal Appeal should have allowed the appeal and re-sentenced the appellant. In re-sentencing the appellant, some weight should be given to the appellant's otherwise good character.

[36] In considering a prisoner's good character when sentencing, the court must distinguish two logically distinct stages. First, it must determine whether the prisoner is of otherwise good character. In making this assessment, the sentencing judge must not consider the offences for which the prisoner is being sentenced. Second, if a prisoner is of otherwise good character, the sentencing judge must take that fact into account. However, the weight that must be given to the prisoner's otherwise good character will vary according to all of the circumstances of the case.

[37] In this case, once the offences before Nield DCJ and Rummery DCJ are excluded, the appellant was of otherwise good character. He was entitled to some leniency because of that good character.”

[42] Kirby J, also part of the majority in Ryan said at [110]:

“…To ignore totally evidence relevant to the latter because of a general assessment that the appellant was not, globally speaking, a good man or had committed serious crimes, involves a departure from basic sentencing principle. Even in the case of offences against vulnerable children and young persons over an extended period, as here, a proper evaluation of all matters relevant to the sentencing function required that some weight be given to the evidence of character that stood to the appellant's credit. By dismissing that evidence out of hand, and refusing to give it any weight at all, the sentencing judge erred”.

[43] However, the preponderance of recent authority is such that the weight to be given to the prior lack of record is limited. Rothman J in delivering the decision of the court in R v TWP [2006] NSWCCA 141 at [16]-[17] said:

There are a number of matters which need to be raised in relation to the sentence imposed and the remarks of the sentencing judge. The first is the reference to “previous good character”. The sentencing judge was here referring to the fact that, as at the date of sentencing, the respondent had no prior convictions. He was also referring to the references, mentioned above, provided on his behalf. The sentencing Judge seemingly took this into account to some large degree as he did the lack of a likelihood to re-offend. Each of these, no doubt, depends upon the report of the registered psychologist which was in evidence before his Honour and before this Court.

[17] The difficulty with this approach, in relation to offences of this kind is that, similar to most white-collar crime, the non-apprehension of the respondent (or his prior good behaviour) is almost a necessary condition to the commission of the crime. In circumstances where the respondent faces 17 offences of sexual assault on children spanning a period of almost 20 years, previous good behaviour is a factor which ought provide little weight in favour of the respondent’”

51. There are also the authorities as submitted by the Crown of PGM (2008) 187 A Crim R 152 at [44] and R v Van Ryn [2016] NSWCCA 1 at [268] on the issue of the weight given to good character in matters involving sexual offending against children, although the reference in [268] of Van Ryn goes more to the long term detrimental effects of such conduct on children.

52. In the matters presently under consideration there is the matter of the conduct in 2003. The offender is entitled to some small degree of leniency because of his record, but I emphasise the word “small”.

General Deterrence

53. It is undoubted that there is a strong need for general deterrence when dealing with offences of child sexual assault. One of the reasons for this is that it is now generally accepted that such offending has a lasting and deleterious effect on the victims. This concept of such offending requiring a measure of general deterrence goes back to at least the Crown appeal in the matter of R v Muldoon unrep. NSWCCA 13.12.1990. More recently, see for example the judgment of Hulme J in Van Ryn at [179] where his Honour said:

“The Crown referred to EG v R [2015] NSWCCA 21 at [42] where Hoeben CJ at CL said:

‘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.’"

54. Walton J in giving the leading judgment (Hoeben CJ at CL, Hulme J agreeing) in Chamseddine v R [2017] NSWCCA 176 said at [50]:

“It is well recognised that sexual offences against children are objectively serious and cause significant harm to the victims. In R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469, the Court stated at [110]:

‘This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the "long term and serious harm, both physical and psychological, which premature sexual activity can do". The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368-372 [26]-[39].’"

55. Some of the other cases that deal with the issue of general deterrence include R v Burchell (1987) 34 A Crim R 148 and MC v R [2017] NSWCCA 316.

Subjective case for the offender

56. I will initially deal with the offender’s age, i.e. 81. That is something that is taken into account in the instinctive synthesis in determining the appropriate sentence.

57. The Crown in the written submissions (MFI 1 on sentence) refers to the decision of R v Turnbull (No. 26) [2016] NSWSC 847 at [128] per Johnson J. Mr King on behalf of the offender in oral submissions put that the criminality in the matter of Turnbull was very different to that in the matters presently under consideration, noting in particular the matter involved the murder of a public official. Johnson J said (at [128]):

“The courts have made clear that age is not a licence to commit an offence: R v Holyoak (1995) 82 A Crim R 502 at 507. Whilst the age of the Offender needs to be taken into account, this cannot give rise to an expectation that the elderly can offend with relative impunity: R v McLean [2001] NSWCCA 58; 121 A Crim 484 at 492 [44]. The sentence imposed must remain one that is commensurate with the seriousness of the criminality involved, and is one that accords with the general moral sense of the community: R v McLean at 492 [45].

58. One of the decisions cited by Johnson J is Holyoak v R (1995) 82 A Crim R 502 which is, of course, a decision relating to sexual offences against children. With respect to the submission made by Mr King, it seems to me that what was said by Johnson J in Turnbull applies to all offending.

59. Indeed, it is instructive to go to what Allen J (Handley JA agreeing generally and with some brief additional comments) said in Holyoak at p 507, namely:

“…Particular complaint is made that all that his Honour said, apart from the reference to his age to which I have already referred, was ‘Age is not a licence to commit sexual offences nor should it be thought that a person who commits such offences can then expect to be allowed to go free merely because of advanced years’. I can find no fault with that observation”.

60. Hulme J in Holyoak said at p 515:

“There are subjective factors which must be taken into account. They are set out in the reasons of the trial judge and for present purposes are sufficiently summarised in the reasons for judgment of Allen J. While conscious of them all there is only one I need mention. I am not disposed to give to the applicant’s age the same weight as I perceive Allen J is inclined to give…”

61. The offender gave evidence and essentially adopted the affidavit that had been prepared but not sworn or affirmed because of the difficulties encountered in correctional centres because of the COVID-19 pandemic. The offender was briefly cross-examined. There was also a report from Dr Dayalan, Forensic Psychiatrist tendered (exhibit 1) as well as some medical records confirming that the offender had suffered a heart attack in custody (exhibit 3). Mr King indicated that the purpose of the tender of exhibit 3 was to confirm that the offender had suffered a heart attack while in custody. In any event, I have thoroughly read the pages of the medical records. They certainly confirm the heart attack and the medication regime on which the offender was thereafter placed.

62. I will go initially to the report of Dr Dayalan. The report sets out that the offender is 81 with two adult children aged 58 and 45 years and that his partner ended the relationship when the offender was charged. He was living on the old age pension. The offender indicated to the doctor that he was reluctant to have the victim come and live with them as he was aware of the victim’s behavioural issues.

63. Before his arrest the offender was waiting on an appointment with a specialist in relation to symptoms associated with an enlarged prostate. He had also been waiting on a colonoscopy appointment. The offender is concerned about his health issues not being properly addressed while he is in custody.

61. The offender admitted to Dr Dayalan that his mental state deteriorated following his incarceration. The heart attack the offender suffered in September 2019 is referred to. The offender has been told that he will not be placed on the waitlist for prostate surgery until he has been sentenced. He is also concerned that he is experiencing symptoms of retinal detachment, which he has suffered in the past. He has lost his hearing aids and has not been successful in getting another one despite a number of requests. He is concerned about the COVID-19 virus in custody, which is quite understandable given his age. There is simply no doubt that the offender suffers from a significant number of physical health issues which will make custody more onerous for him.

62. It appears from Dr Dayalan’s report that the offender’s upbringing was unremarkable but he left school at 14 as his mother had an accident at work and she could not continue working. He has worked as a dry-cleaner and as a furniture and tyre salesman. He has also worked as a storeman in the Australian Army and with the Snowy Mountains Authority.

63. The offender denied to Dr Dayalan any history of sexual fantasies involving children and denied watching child pornography.

64. At p 5 of the report Dr Dayalan opines that there was no evidence of disorder in thought form, no evidence of delusions or auditory hallucinations. The offender suffered anxiety symptoms in the context of being incarcerated. The report notes (p 6) that a stent was placed following coronary angiography.

65. Dr Dayalan goes on to say (p 6):

“[NC] suffers from a number of physical health conditions and has had a serious cardiac event whilst in the prison setting. He also suffers from prostate enlargement, bowel problems, arthritis and retinal disease. Unfortunately he has had difficulty accessing adequate care of his physical health conditions within the correctional setting and this has resulted in a deterioration in his mental state.

His anxiety has been further exacerbated by incarceration during the COVID-19 pandemic especially given his age related vulnerability. Being incarcerated for the first time at an elderly age, he would have had some difficulty with navigating through the system to access appropriate services.

At the time of my assessment, [NC] acknowledged anxiety symptoms that were reactive to his circumstances. These amounts did not amount in severity to qualify for a diagnosis of generalised anxiety disorder but any further worsening in his mental state would result in him development an anxiety disorder.

[NC] would benefit from regular consultations with medical professionals including specialists to address concerns regarding his physical health conditions. He would also benefit from consultations with a psychologist to address his health related anxiety symptoms”.

69. Dr Dayalan then goes on to opine that the offender is “of very low risk of reoffending”.

70. Given the fact of the offender’s age, the fact that this is his first time in custody and the significant physical health issues set out the offender is entitled in my opinion to a generous finding of special circumstances. Given his age and what will be the length of the offender’s incarceration it is likely that he will also need some assistance in appropriate and effective reintegration into the community.

71. The Crown in the written submissions (MFI 1) opposes a finding on balance that the offender is unlikely to re-offend, submitting (paragraph 43, MFI 1) it is difficult to reconcile Dr Dayalan’s opinion that the offender is of very low risk of re-offending with the fact that he has now committed sexual offences against two separate girls under the age of 16 years.

72. The offender is now 81. He has some further time in custody to serve and will be on supervised release. It is unlikely in the extreme that he will ever again have the opportunity to re-offend. Given these issues and the opinion of Dr Dayalan I am prepared with some little hesitation to find that the offender is unlikely to re-offend.

73. I turn now to the offender’s affidavit. He confirms that he left school at 14 because his mother had an accident at work. His father died in a motor vehicle accident in the 1960’s. The offender lived for some time in the Cooma area. He says he is embarrassed about his offending and has been reluctant to speak to his siblings.

74. His work history is set out. He has also worked as a player coach and as a storeman with the Army.

75. The offender divorced his first wife in the early 1980’s but maintained “an amiable relationship” until the offender’s arrest. He met the partner he was with at the time of offender about 12 years ago. They were both singers. They began a relationship about 6 months after meeting. They had about a dozen foster children in their care. The victim in the sentence matters came to live with them recently and this caused a strain on the relationship.

76. At paragraph 16 the offender says:

“To (victim) I want to say I am sorry for what happened to you and for the life you have. I really did not want you to go to court to give evidence on top of what you already went through. I know what happened to you would likely always continue to be in your heard and I can’t stress enough how much I know it would hurt to have to relive your life events in Court, being questioned and cross-examined”.

77. Mr King submits that I would find on balance that the offender is remorseful. I understood the Crown to oppose such a finding, noting especially that part of the written submissions (at paragraph 40 MFI 1 on sentence) that the offender is engaging in a degree of victim blaming.

78. The Crown cross-examined the offender on the part of the affidavit that I have extracted above. The offender essentially said he had no memory of the events. Given his age and the contents of the report of Dr Dayalan I accept that this may well be the case. The offender also says in his affidavit (paragraph 20) that he has problems with his memory. He was not challenged on this in cross-examination. Although the offender appeared via audio visual link from custody I did not get the impression that he was being evasive in answering the Crown’s questions. Given the pleas of guilty and the contents of the affidavit I am prepared to find on balance that the offender is remorseful so far as the sentence matters are concerned.

79. In respect of the appeal matter the plea of guilty was entered at a time only after the matter had been listed for hearing. The plea was however entered at a time that permitted the hearing date to be vacated. The offender wrote to the victim in the appeal matter expressing his sorrow. I am likewise prepared to find on balance that the offender is remorseful for his conduct in 2003, but the weight to be attributed to that remorse is not as great as that in respect of the sentence matters.

80. The offender then details the issues with his physical health. Those have already been detailed when dealing with Dr Dayalan’s report. The offender details that he needs to urinate hourly, which impacts on his sleep and that polyps have been found in his bowel. His mother and sister both died of bowel cancer. He takes about 12 different tablets each day.

81. As a result of his physical health issues the offender has been placed on “green card” and cannot be left alone. The offender is in limited association protection. He is let out of his cell at 8.30 to 9am and then placed back in the cell at 2pm. He has kept a written record of all the lockdowns and there have been 76 since he has been in custody. He is very worried about the COVID-19 pandemic.

82. The offender speaks of losing his hearing aid and the fact that it has not been replaced. He also says he has been diagnosed with a detached retina. He accepts that the medical staff at the gaols are doing their best. However, it seems that the offender is not receiving much in the way of treatment for his various complaints. It may be that not a great deal can be done until he is actually sentenced. I will order that a copy of Dr Dayalan’s report be annexed to the warrant that is forwarded to the Department of Corrective Services in order that they are on notice of the offender’s physical conditions.

83. The offender says at paragraph 29 of his affidavit that if he ever gets out of gaol he plans to cut himself off from most people, to live by himself and to stay away from most people. Given this and my finding as to the offender being unlikely to re-offend I am prepared – again with some little hesitation – to find that there are good prospects of rehabilitation. Paragraph 29 of the affidavit fortifies me in the earlier finding that assistance in reintegration into the community is one of the factors justifying a generous finding of special circumstances.

COVID-19 pandemic

84. The issue of the COVID-19 pandemic is an issue relevant to all sentencing exercises at the present. In this regard I note what was said by Haesler SC DCJ in his remarks on sentence in R v Despotovski [2020] NSWDC 110 at [35]-[39]:

“The present crisis has increased apprehension by prisoners about infections in gaols, as it does in the community in general. As a community we are being asked, urged and compelled to self-isolate. This cannot happen in a gaol. Prisoners cannot practice physical distancing, particularly sweepers whose job it is to clean within the gaols. Prisoners are personally unable to implement social distancing. They are completely reliant on the authorities; who have complete control over their lives.

[36] Social visits have been suspended for an indefinite period, although access to telephone calls has increased: CSNSW memo response to COVID-19, 25 March 2020. Absence of visits from family and friends is an additional hardship.

[37] These concerns and considerations apply to every prisoner sentenced and for sentence. I am however sentencing this offender today based on current knowledge of COVID-19 and the response to the crisis as advised by Corrective Services NSW.

[38] If and in reality, it is when COVID-19 enters gaols early parole may be given some prisoners: s276 Crimes (Administration of Sentences) Act1999. The offender falls into a category that might be considered for early parole.

[39] I cannot predict what will happen to this offender but the lack of visits reducing any capacity to remain in contact with pro-social friends and family, and that heightened anxiety and concerns, are relevant factors that must be synthesised along with all other matters. The extent, to which those may be taken into account is a matter to be resolved on the particular facts of this individual case: Brown v R [2020] VSC 60 at [48]. Here his depression and anxiety will be exacerbated. Although I note his health concerns (they are not supported by other evidence) nothing in particular puts Despotovski at greater risk than every other prisoner.”

85. With unfeigned respect to my colleague I agree with his remarks at [39] and will take those matters into account in the same manner as Haesler SC DCJ.

General Remarks

86. The Crown submits and I accept that s 25AA of the Crimes (Sentencing Procedure) Act applies to the appeal matter. I did not understand Mr King to submit otherwise.

87. In the course of oral submissions Mr King submitted in effect that there was no real complaint about the sentence imposed in the appeal matter. Rather the matter was before me in order to give the court some degree of flexibility in the structure of the sentence. It was submitted that it would be appropriate to impose an aggregate sentence. I did not understand the Crown to dissent from this. I agree that this is an appropriate matter for an aggregate sentence.

88. If separate sentences were imposed there would need to be some meaningful degree of partial accumulation on the sentence imposed in respect of the appeal matter. There would also need to be some partial but not significant accumulation to recognise the different offending (particularly in respect of sequence 4 involving the dog) in respect of four counts in the sentence matter noting authorities such as R v Cahyadi [2007] NSWCCA 1 at [27] per Howie J and R v Merrin [2007] NSWCCA 255 at [36] per Howie J, in particular:

“This Court has been at pains to make it clear that sentences for multiple offences are not made concurrent simply because they arise from a single incident of criminality or because they are of a similar nature and committed in similar circumstances.”

89. I must give proper regard and effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely:

1. to ensure that the offender is adequately punished for the offence,

2. to prevent crime by deterring the offender and other persons from committing similar offences,

3. to protect the community from the offender,

4. to promote the rehabilitation of the offender,

5. to make the offender accountable for his or her actions,

6. to denounce the conduct of the offender, and

7. to recognise the harm done to the victim of the crime and the community.

90. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Given the maximum penalties that apply, the nature of offending and the need for general deterrence I am firmly of the opinion that there must be a sentence of imprisonment. I did not understand Mr King on behalf of the offender to submit otherwise. Likewise noting those same issues the sentence must be a sentence of full time imprisonment.

91. Mr King put that there should be a generous finding of special circumstances that would see the offender released back into the community “soon”. There was no further elaboration on the word “soon”. On the issue of a “generous” finding of special circumstances I note what was said by RS Hulme J (McClellan CJ at CJ, Hidden J agreeing) in R v Boney [2008] NSWCCA 313 at [48], namely:

“Altering the ratio between the non-parole and balance of term periods of a sentence from that of 3:1 embodied in s44 of the Crimes (Sentencing Procedure) Act as much as to result in a ratio of 50:50 is sufficiently unusual as to inspire examination…”

92. In the matter presently under consideration noting the age of the offender, this being his first time in custody and the significant physical health issues in combination entitle the offender to a “generous” or “substantial” finding of special circumstances.

93. Noting the criminality involved, the maximum penalty that was applicable at the time of the offending and the various matters to which I have referred in these reasons I am firmly of the opinion that the fixed term of 12 months imprisonment in respect of the appeal matter is appropriate. The learned Magistrate was well aware that the sentence matters were pending at the time that the sentence was imposed. The fixed term is accepted as what would be the non-parole period in other circumstances. The appropriate order is that appeal be dismissed and the orders of the learned Magistrate confirmed in all respects.

94. In respect of the four offences in the sentence matter it is appropriate to invoke s 53A of the Crimes (Sentencing Procedure) Act and impose an aggregate sentence. It will therefore be necessary for me to set out the sentences that I would have imposed had separate sentences been imposed. These remarks have been reduced to writing and a copy will be made available to each of the parties immediately after pronouncement of sentence.

95. The sentences that I would have imposed had separate sentences been imposed follow. These indicative sentences take into account the findings I have made and the various aggravating and mitigating factors referred to within these reasons.

96. Sequence 3 – Use child under 14 years to make child abuse material – s 91G(1)(a) Crimes Act: Non-parole period of 16 months with a balance of term of 11 months making a total sentence of 2 year 3 months indicating a starting point of 3 years;

97. Sequence 4: Aggravated Incite Child to Carry Out Sexual Act – s 66DE(1)(b) Crimes Act – a total sentence of 2 years 6 months indicating a starting point of 3 years 6 months (with some minor rounding down);

98. Sequence 1: Intentionally Sexually Touch child – s 66DB(a) Crimes Act a total sentence of 2 years 3 months indicating a starting point of 3 years; and

99. Sequence 10 – Use child Under 14 to Make Child Abuse Material – s 91G(1)(a) Crimes Act a non-parole period of 18 months with a balance of term of 13 months making a total sentence of 2 years 6 months indicating a starting point of 3 years 6 months (with rounding down).

Orders

100. In respect of the matter on Court File 2019/00207639, i.e. the appeal from the sentence imposed by the Local Court at Wagga Wagga on 3 August 2020 the appeal is dismissed and the orders of the learned Magistrate are confirmed in all respects. The sentence of a fixed term of 12 months imprisonment is confirmed. That sentence will date from 15 January 2019 and expired on 14 January 2020.

101. The sentence of a fixed term is imposed as part of that fixed term will be subsumed by the non-parole period I will be imposing in respect of the matters committed for sentence to the District Court.

102. In respect of the sequences 3, 4, 1 and 10 in the matters committed for sentence to the District Court the offender is convicted.

103. The offender is sentenced to an aggregate sentence of 4 years with a non-parole period of 2 years.

104. The non-parole period will commence on 15 July 2019 and will expire on 14 July 2021. The balance of term on parole will commence on 15 July 2021 and will expire on 14 July 2023.

105. The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.

106. The non-parole period is 50% of the total sentence. The reasons for that generous finding of special circumstances have been given earlier in these reasons and include the age of the offender, the condition of his physical health, the issue of partial accumulation of sentence on the appeal matter and the need for supervision for amongst other things reintegration into the community.

107. Taking into account the appeal matter there is a total effective sentence of 4 years 6 months with a period in actual custody of 2 years 6 months. The actual period in custody is 55% of the total effective sentence.

108. I direct a copy of the report of Dr Dayalan be annexed to the warrant that is forwarded to the Department of Corrective Services.

**********

Amendments

24 September 2020 - paragraph 68 - replaced name with [NC] in quoted paragraph

Decision last updated: 24 September 2020