R v Neal Winter

[2024] NSWDC 615

District Court

New South Wales

Medium Neutral Citation:

R v Neal Winter [2024] NSWDC 615

Hearing dates:

15 November 2024

Date of orders:

15 November 2024

Decision date:

15 November 2024

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

The Offender is sentenced to an aggregated sentence of 10 years imprisonment, commencing on 28 March 2024 and expiring on 27 March 2034, with a non-parole period of 7 years, 6 months, expiring on 27 September 2031.

Catchwords:

SENTENCING – Sexual offences – Aggravated sexual assault - Victim has cognitive impairment

Legislation Cited:

Child Protection (Offenders Prohibition Orders) Act 2004 (NSW)

Crimes Act 1900 (NSW) ss 61KD(1)(a), 61KJ(1), s 61J(1)

Crimes (High Risk Offenders) Act (2006) (NSW)

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

Cases Cited:

Veen (No 2) (1988) 164 CLR 465

R v McNaughton (2006) 66 NSWLR 566

Category:

Sentence

Parties:

ODPP (NSW) (Crown)
Neal Winter (Offender)

Representation:

Counsel:
Mr S Wilkinson (Crown)
Mr M Juhasz (Offender)

Solicitors:
Ms Choeli Cooper (Crown)
Mr Richard Cummins (Offender)

File Number(s):

2022/154023

Publication restriction:

Statutory non-publication order re identity of complainant.

JUDGMENT

Introduction

1. The offender, Neal Winter, is to be sentenced having been found guilty by a jury of the following offences, all of which occurred on 26 May 2022 in a shopping mall in Bankstown: three offences of intentionally sexually touch CS without his consent and knowing that the victim was not consenting, in circumstances of aggravation, being that the victim had a cognitive impairment. Those offences were contained in counts 1, 4, and 6 on the indictment presented before the jury, and are offences under s 61KD(1)(a) of the Crimes Act 1900 (NSW). Each of those offences has a maximum penalty of seven years’ imprisonment, with an applicable standard non-parole period of five years.

2. The offender is also to be sentenced in relation to two counts of sexual intercourse with the victim without the victim’s consent, knowing the victim was not consenting, in a circumstance of aggravation, being that the victim had a cognitive impairment. Those offences were contained in counts 2 and 5 on the indictment and are offences under s 61J(1) of the Crimes Act. They have a maximum penalty of 20 years’ imprisonment, and there is an applicable standard non-parole period of ten years.

3. The offender was found not guilty of count 3 on the indictment, which was a further allegation of sexual intercourse without consent, knowing the victim was not consenting. The allegation in relation to that count was one of penile‑anal intercourse. The jury found the offender guilty of the alternative count to count 3, being count 4. I am satisfied that the basis of the jury’s not guilty verdict on count 3, given the way the case was conducted before the jury, is explicable on the basis that they were not satisfied beyond reasonable doubt that there had been actual penetration of the victim’s anus by the offender’s penis.

4. When I sentence the offender on count 2 of the indictment, he acknowledges his guilt in relation to an offence on a Form 1, being an offence of contravening an order under the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW), being an offence of loitering near premises frequented by children or where children were known to be and asks that I take that offence into account when imposing sentence on count 2.

5. When I sentence the offender on count 5 on the indictment, he acknowledges his guilt in relation to an offence of being a convicted child sex offender loitering near a public place regularly frequented by children and at which children were present at the time of the loitering, being an offence that occurred on 26 May 2022.

The Facts

6. This being a sentence after trial, I am required to find the facts consistent with the jury’s verdicts. To the extent that I find facts adverse to the offender, I must be able to find those facts beyond reasonable doubt. The jury’s verdicts reflect a general acceptance of the victim’s evidence beyond reasonable doubt, with the exception of the victim’s evidence about there being penile-anal intercourse during the incident. The offender’s case before the jury was that the sexual activity that occurred between him and the victim was consensual, this despite having given an interview to the police in which he effectively denied there had been any sexual activity. The offender did not give evidence at trial.

7. The offender was not known to the victim. At the time of the offending, the offender was 64 years of age. The victim was born on 21 January 1994 and was 28 years of age. When born, the victim was diagnosed with Klinefelter syndrome. Klinefelter syndrome is a genetic abnormality characterised by an extra chromosome. Men with that syndrome have neurocognitive challenges impacting on education, employment, relationships and social engagement. It results in learning difficulties, attention deficits, speech or language impediments, and social or behavioural difficulties.

8. There was no dispute in the trial that the victim suffered from a cognitive impairment. There was also no dispute in relation to the evidence of Professor Susan Hayes, a well-known expert on intellectual disability, who gave evidence that the victim has a moderate intellectual disability which requires supervision, support and assistance in most areas of daily living. The victim’s mother and sister gave evidence at trial of how the victim manages to cope with day-to-day living with their support, given his disability. Professor Hayes expressed the opinion that the victim has not, and will never, develop many skills associated with independent living, and that he will require supervision and support throughout his life. Without in any way being disrespectful to the victim, his presentation is such that it would be obvious to anyone who has contact with him that he has an intellectual disability.

9. On 26 May 2022, during the afternoon, the victim used public transport to travel to the Bankstown Central shopping centre to buy a new phone from the JB Hi-Fi store. After purchasing the phone, he sat on a bench seat near a toilet block, where he was examining his new phone. I will refer to this toilet block as the first toilet block. The offender sat next to him and said, “Hello”, before moving away from the victim. The victim, needing to go to the toilet, got up and entered the first toilet, where he went to a urinal. The victim, whilst standing at the urinal with his penis exposed, was approached by the offender. The victim moved from the urinal into a cubicle, where he locked the door. The victim then saw the offender, now in an adjoining cubicle, place his head between the gap at the base of the cubicle wall, and look up at the victim, who had his penis exposed facing the toilet. The victim felt uncomfortable and immediately left the cubicle. The victim walked to another toilet block, which I will refer to as the second toilet block, in the shopping centre near the Miller’s Clothing store. He was followed by the offender.

10. I am satisfied beyond reasonable doubt the offender at some point prior to the commission of the offences knew that the victim had an intellectual disability. I made an observation earlier about how the victim presents. In addition to the victim’s presentation, the offender in his interview with police in answer 354, when clearly referring to the victim’s cognitive state, said in a flippant and derogatory manner, “Not all the chickens are in the pen... I say that kindly.” This admission confirms the offender’s actual awareness of the victim’s cognitive impairment prior to his offending. I also note, in that regard, in the subjective material before me, that the offender is an intelligent man who has obtained a Doctor of Philosophy at some point.

11. The victim, upon entering the second cubicle, tried to shut the toilet door. The offender pushed the door open with force and entered the cubicle. The offender then locked the cubicle door from the inside, kissed the victim, before pulling down the victim’s pants and underpants. DNA testing results confirmed the presence of the offender’s DNA on the victim’s clothing and inside his underpants. The victim said, “No. Stop. I had enough. I don’t like. Stop. I don’t want you to do this.”

12. The offender then took his own pants down and started touching the victim. He touched the victim’s penis, and rubbed his penis against the victim’s penis; it is that conduct which was encompassed by count 1 on the indictment. The offender then sucked the victim’s penis; that is the act of sexual intercourse that was encompassed by the offence in count 2 on the indictment. The offender then sat on the toilet and pulled the victim down on top of him such that the offender’s penis was rubbing between the buttock cheeks of the victim near his anus; that is the conduct that was encompassed by count 4 on the indictment. The offender then spat on his fingers and inserted two fingers into the victim’s anus; that is the conduct encompassed by count 5 on the indictment. The offender then again touched and stroked the victim’s penis; that conduct constitutes the conduct relied upon for count 6. The victim was able to push the offender away, got dressed and left the cubicle.

13. The victim then attended the medical practice of Dr Abdullah in the shopping centre, stating that he had had sex with a man he did not know and requested a test for HIV, which the doctor was not in a position to provide. The victim then met his sister by chance in the shopping centre. The victim’s sister described the victim as looking pale, shaken and complaining of a sore stomach. The victim’s sister described the victim becoming more agitated while they were in the shopping centre, and he began to bang his hand on his head and said to his sister that he wanted her to take him to hospital as he had HIV. The victim’s sister then spoke to their mother and took the victim back to her home, where the victim immediately had a lengthy shower.

14. The victim’s mother arrived at her daughter’s home. The victim, while at the sister’s home, in a highly emotional state, effectively disclosed to his mother and sister being sexually assaulted by a man in the toilets at the Bankstown shopping centre.

15. The victim was then taken to Bankstown Police Station, and then to St George Hospital.

16. There was CCTV footage in evidence in the trial which captured the offender and the victim’s movements outside of the toilets at the shopping centre. There was no CCTV from within the two toilets. At 3.20pm on 26 May 2022, the footage from Bankstown Central shopping centre captures the offender entering the shopping centre via the underground car park. He is captured on that footage, over the next hour, entering and exiting a number of public toilets within the shopping centre.

17. About 4.22pm, the offender is captured on the CCTV footage leaving the public toilets near Woolworths. After purchasing grocery items, he returned to his vehicle before returning to the shopping centre at 4.35pm. Once inside the main shopping precinct, he is again captured on the footage entering and exiting a number of public toilets inside the shopping centre.

18. At 5.32pm, the offender leaves the first toilet block and looks in the direction of the victim before walking from view. At 5.37pm, the offender re‑enters the first toilet block. At 5.53pm, he leaves that toilet block and again looks in the direction of the victim seated on an adjoining seat.

19. The CCTV compilation, which was exhibit 1 in the trial, covers the time period from 3.21pm to 7.03pm. During that time, the offender enters the male toilets on multiple occasions. On 18 occasions, he enters the male toilet for one minute or less. On 22 occasions, he walks directly from one male toilet block to the other. Given the conduct of the offender as revealed in the CCTV footage, I am satisfied beyond reasonable doubt that the offender engaged in multiple entries into the toilets, not because of some medical condition, but because he was looking to engage in some type of sexual activity in the toilets.

20. On 27 May 2022, the offender was arrested in Milperra. He was driving the car he had used when he entered the shopping centre car park on 26 May 2022. He was taken to Bankstown Police Station. He participated in a recorded interview with the police. He admitted meeting the victim, but essentially denied the allegations, although I do note that in some respects he exercised his right to silence.

Victim Impact Statement

21. The victim impact statement was movingly read by the victim’s mother. Clearly, the offending has had a significant adverse impact upon the victim. The victim has struggled to go about his usual day-to-day activities as a consequence of the offending. Such conduct would have an effect on any adult person, let alone a person who was as vulnerable as the victim of these offences. The evidence of the victim’s obvious distress immediately after the offending, which I referred to earlier, is totally consistent with the contents of the victim impact statement.

22. The Crown submitted that I would find that the victim has suffered significant psychological harm as a consequence of the offences, and I am satisfied that has occurred, based on the victim impact statement and the regrettable experience of this Court in relation to the impact of sexual offending upon victims.

The Impact of the Form 1 Offences

23. I consider that the impact of the Form 1 offences on the sentences to be imposed is limited, although it must be accepted that the commission of them facilitated the commission of the principal offences that he is to be sentenced for, and therefore they must have some impact on the sentences to be imposed on the counts to which they relate.

Objective Seriousness

24. I turn now to my assessment of the objective seriousness of the offences. I am required to assess the objective seriousness of each of the offences. There are some general objective features of the offending which apply to my assessment of allof the offences. There was a significant age difference between the offender and the victim. The offender was 64 years of age, and the victim was 28 years of age, a 36-year difference in terms of biological age.

25. All of the offences were committed in a relatively short period of time, less than ten minutes, although that does not necessarily lessen the objective seriousness of the offences. To some degree, the offences can be described as opportunistic, although, as I said earlier, the behaviour of the offender at the shopping centre, as captured on the CCTV footage before the offences occurred, satisfies me that he was loitering around the toilets intending to engage in sexual activity.

26. The following of the victim to the second toilet, where the offences were committed, in my opinion supports a finding that there was some planning involved, although it is limited, in that by the time the offender had encountered the victim in the first toilet, he was aware of the vulnerability of the victim and followed him. The offences were brazen, given they were committed in a toilet cubicle in a suburban shopping centre during an afternoon. The CCTV footage shows that there was a significant number of members of the public in the shopping centre at the time of the offending. As I indicated earlier, I am satisfied beyond reasonable doubt that the offender was aware that the victim had an intellectual disability before he committed the offences upon him, and therefore took advantage of the vulnerability of the victim.

27. Dealing firstly with the specifics of the sexual intercourse without consent offences: in relation to count 2, there is no hierarchy of sexual intercourse offending, although forced fellatio is generally not considered to be as serious as penile-anal intercourse or digital-anal intercourse, although it, of course, remains a serious offence. In relation to the forced fellatio here, there is no evidence that the victim ejaculated, and it appears to have been relatively brief. I consider that the objective seriousness of this offence falls a little below the mid-range of objective seriousness for such offending.

28. In relation to count 5, which is an offence of digital-anal intercourse, it is a more serious offence than that in count 2, and in my opinion caused the victim some pain. I consider this offence to fall just below the mid-range of objective seriousness for such offending.

29. In terms of the sexual touching offences, sexual touching encompasses a large range of conduct. Count 1 involves skin-on-skin touching of the victim’s penis with the offender’s hand and the rubbing of his penis against the victim’s penis. I assess the objective seriousness of that offence as being a little below the mid-range level of objective seriousness for such offending.

30. Count 4 involved the offender rubbing his penis between the buttocks of the victim near his anus, which clearly involved skin-on-skin touching. The objective seriousness of that offence, in my opinion, is within the mid-range of objective seriousness.

31. Count 6 involved touching and stroking of the victim’s penis, again by way of his hand. I consider this offence to be below the mid-range of objective seriousness for such offending.

The Offender’s Subjective Case

32. The offender’s date of birth is 9 February 1958, so he is some 66 years of age.

33. In 2006, the offender was dealt with in this Court for a large number of sexual offences concerning male children, those offences occurring in the 1990s and early 2000s. The offender received in an aggregate sense a sentence of 16 years’ imprisonment with a non-parole period of 12 years. While those offences were to some degree different from the offences which I am to sentence him for, they were, of course, sexual offences involving vulnerable victims, and therefore have those two features in common with the offences that I am to sentence him for. I note that the total term of that previous sentence expired on 27 April 2022, and the current offences occurred a month later.

34. The Crown submitted that the offender’s prior criminal history was an aggravating factor under s 21A of the Crime (Sentencing Procedure) Act 1999 (NSW) within the meaning of Veen (No 2) (1988) 164 CLR 465 and R v McNaughton (2006) 66 NSWLR 566. I am not satisfied that it is, but it clearly disentitles the offender to any leniency here.

35. In terms of documentary material that is before me, I have a Sentencing Assessment Report dated 7 November 2024, a report by the psychologist Mr Watson-Munro dated 14 November 2024, and a number of testimonials from friends of the offender. The offender, like at trial, did not give evidence on sentence.

36. In terms of his family background, the psychologist records the offender having an older brother and two younger sisters. He has had no contact with the brother for some time, minimal contact with one sister, but one sister remains supportive. The offender is also fortunate to retain the support of a number of friends in the community.

37. In terms of his education and employment history, the offender is clearly an intelligent person, and is well‑educated, in particular in relation to music education, having obtained a PhD, and in the past, prior to his incarceration in relation to his previous offences, held senior positions in the world of academia. The previous offences, I note, concerned some victims who had been students of the offender.

38. The psychologist records that the offender’s last job had been one where he was involved in debt collecting.

39. There is no suggestion in the material before me that the offender has a history of drug or alcohol misuse. The psychologist found that there was nothing to indicate the offender suffered “serious depression or anxiety”. Clearly the offender, who is in custody awaiting sentence on serious sex offences, with his history of sexual offending in the past, has anxiety and some mild depression associated with the predicament he finds himself in.

32. There was medical evidence before me on the detention application, which followed the jury’s verdicts concerning certain medical issues the offender has experienced in recent times. That evidence is essentially summarised in the psychologist’s report and consists of gastroesophageal reflux disease, a hiatus hernia, both of which appear to have been the subject of successful surgical intervention in 2022. He has been treated in the past for Non-Hodgkin lymphoma, and he has had his prostate removed in recent times.

33. I do not have any comprehensive medical evidence before me about the condition of the offender. It was not suggested in submissions that his medical conditions were such that he could not be satisfactorily treated by Justice Health in the correctional system. I have had some regard to his medical conditions in determining the appropriate sentence to impose.

34. The Sentencing Assessment Report informs me that when he was last on parole, Community Corrections considered that his response was satisfactory.

35. In terms of his attitude to the offending, the offender maintains his innocence, which is his right. He has no remorse and no insight into his offending or the impact of his offending upon the vulnerable victim. I note that the Sentencing Assessment Report records that the author of that report considered the offender portrayed himself as the victim, and in interviews appeared to be preoccupied with discrediting the victim’s intellectual disability.

36. The Sentencing Assessment Report records that the offender poses a risk to males in general in the community, in particular in relation to vulnerable male persons. Unsurprisingly, the Sentencing Assessment Report assesses the offender as having a high risk of reoffending.

37. I am told that he will opt to serve his sentence in protection. I have no evidence before me as to how his conditions of custody will differ from the ordinary conditions of custody for inmates in our correctional facilities. He told the psychologist he had particular fears concerning certain inmates, but his assertions in that regard remain untested, as he gave no evidence. I accept though that our correctional centres can be dangerous places, especially for people who have committed the crimes this offender has, if his offences become known to the general prison population.

Other Relevant Sentencing Principles

46. The offender has guarded, bordering on poor prospects of rehabilitation, in my opinion. He has a history of somewhat similar offending. These offences occurred shortly after the expiry of his previous term of imprisonment. He has no remorse and no insight into his offending. Due to that fact, in the past he has received little by way of programmes designed to address his offending.

47. I was asked to find special circumstances here when fixing the non‑parole period. I do not propose to do so, for two reasons: the offender has shown no real inclination to engage in rehabilitation, and the sentence I will impose will contain a significant period of parole, should the State Parole Authority consider it is appropriate that he be granted parole.

48. There are two periods of presentence custody. The first is the period 28 May 2022 to 25 November 2022, when he obtained Supreme Court bail, and the second is the period from 27 September 2024 until today, when he was returned to custody after the Crown’s detention application following upon the jury’s verdict. That is a total of 232 days of presentence custody, and I have backdated the sentence to reflect the presentence custody.

49. Although there was only one incident, there were a number of offences committed upon a vulnerable person in our community. There should, in the circumstances, be a limited amount of accumulation of the sentences in order to properly reflect the principles of totality.

50. I have had regard to the objectives of sentencing referred to in s 3A of the Crime (Sentencing Procedure) Act, which include the need to impose adequate punishment, general and specific deterrence, protection of the community, denouncing the offender’s conduct, recognising the harm done to the victim and the community, and rehabilitation of the offender.

51. People with an intellectual disability in our society have a very difficult task negotiating the ordinary day-to-day activities of living in our community. Many people with intellectual disability, like the victim here, seek to engage with our community by working and doing things that we all take for granted. They should, of course, be encouraged to do so and should feel that they can do so safely. The offender here took advantage of the victim, whom he clearly knew was particularly vulnerable, and committed serious sexual offences upon him. I consider the offender’s conduct was particularly wicked when one has regard to his obvious intelligence and educational achievements in the past. It is clear that the sentencing principle of general deterrence, that is, the need to send the message to the community that such serious criminal conduct will be met with severe punishment, looms large here. I also consider that in the circumstances of this case, given the offender’s record, personal deterrence looms large.

52. Sentencing has been said by the higher courts to involve a process of instinctive synthesis of a number of relevant factors, some of which pull in different directions. The maximum penalties and standard non-parole periods have been taken into account as legislative guideposts. It will be seen I have departed from the standard non-parole periods due to my assessment of the level of objective seriousness of each offence and the length of the sentence I consider to be appropriate.

Sentence

53. If I have not done so before, the offender is convicted of each of the offences that the jury found him guilty of. I will firstly record the indicative sentences and indicative non-parole periods for each offence. In determining the indicative sentences and fixing the aggregate sentence, I have had regard to all of the objective and subjective factors I referred to earlier.

54. The sentences Mr Winter will first hear me announce are what are called the indicative sentences. He will then hear me announce an aggregate sentence, which is the sentence and non-parole period that he will serve. It is not arrived at by simply adding up all of the indicative sentences. When announcing the aggregate sentence, I will tell him the date it starts from and the date it ends, and the date when he is first eligible for parole.

55. On count 1, there is an indicative sentence of two and a half years’ imprisonment, with an indicative non-parole period of one year and ten months.

56. On count 2, having regard to the offence on the Form 1, there is an indicative sentence of seven years’ imprisonment, with an indicative non‑parole period of five years and three months.

57. On count 4, there is an indicative sentence of three years and two months’ imprisonment, with an indicative non-parole period of two years and four months.

58. On count 5, having regard to the offence on the Form 1, there is an indicative sentence of seven years and eight months’ imprisonment, with an indicative non-parole period of five years and nine months.

59. On count 6, there is an indicative sentence of two years’ imprisonment, with an indicative non-parole period of 18 months’ imprisonment.

60. I impose an aggregate sentence of ten years’ imprisonment, with an aggregate non-parole period of seven and a half years’ imprisonment. The sentence commences on 28 March 2024 and expires on 27 March 2034. The non-parole period expires on 27 September 2031.

61. The earliest date Mr Winter is eligible to be released to parole is the date of the expiry of the non-parole period, which is 27 September 2031. Whether he is, in fact, released to parole that day is a matter for the State Parole Authority, which will no doubt take account of his behaviour in prison in determining whether he should be released then or on another date.

62. I am obliged to inform Mr Winter of the existence of the Crimes (High Risk Offenders) Act (2006), which applies to “serious offences”, including the offences for which he has been sentenced. In summary, this means that the State can apply to the Supreme Court for an order that you continue to receive supervision or be held in detention at the end of your sentence if the Court considers you would be a “high risk offender” who poses an unacceptable risk of committing a serious offence. It is, therefore, in Mr Winter’s interest to engage in rehabilitation opportunities that may be offered to him in the course of his sentence.

63. It is an aggregate sentence, then, of ten years, with a non-parole period of seven and a half years. It commences on 28 March 2024 and expires on 27 March 2034. The non‑parole period expires on 27 September 2031.

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Decision last updated: 20 January 2025