R v NRB

[2021] NSWDC 348

District Court

New South Wales

Medium Neutral Citation:

R v NRB [2021] NSWDC 348

Hearing dates:

21 June 2021

Date of orders:

27 July 2021

Decision date:

27 July 2021

Jurisdiction:

Criminal

Before:

Lerve DCJ

Decision:

Sentenced to an aggregate sentence of 2 years with a non-parole period of 12 months.

Catchwords:

CRIME – sentence – act of indecency toward a person under the age of 10 – incite a person under 10 years to an act of indecency – late plea – lack of criminal record – general deterrence

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act, 1999

Cases Cited:

ARC v R unrep NSWCCA 28.8.1996

Chamseddine v R [2017] NSWCCA 176

Hornardt v R [2017] NSWCCA 186

Imbornone v R [2017] NSWCCA 44

MC v R [2017] NSWCCA 316

R v Boney [2008] NSWCCA 313

R v Burchell (1987) 34 A Crim R 148

R v Donald [2013] NSWCCA 238

R v Muldoon unrep. NSWCCA 13.12.1990

R v Tuala [2015] NSWCCA 8

R v TWP [2006] NSWCCA 141

R v Van Ryn [2016] NSWCCA 1

RyanvThe Queen [2001] HCA 21; 206 CLR 267; 179 ALR 193; 75 ALJR 815

Zrieka v R (2012) 223 A Crim R 460

Category:

Sentence

Parties:

Regina
NRB (Offender)

Representation:

Counsel:
Mr M King for the Offender

Solicitors:
Ms L Hanshaw for the Director of Public Prosecutions

File Number(s):

2019/276199

Publication restriction:

There must be no publication of the name of the victims nor anything that might tend to identify them. Given the familial relationship with the offender that order extends to the name of the offender

REMARKS ON SENTENCE

THERE MUST BE NO PUBLICATION OF THE NAME OF THE VICTIMS NOR ANYTHING THAT MIGHT TEND TO IDENTIFY THEM. GIVEN THE FAMILIAL RELATIONSHIP WITH THE OFFENDER THAT ORDER EXTENDS TO THE NAME OF THE OFFENDER

1. On 29 January 2021 the offender pleaded guilty to three charges on an indictment, namely that he:

1. Between 1 August 2008 and 30 November 2008 in Humula and Wagga Wagga in the State of New South Wales did commit an act of indecency towards PD a person then under the age of 10 years namely between the age of 7 and 10 years contrary to s 61O(2) of the Crimes Act 1900 and further

2. Between 1 August 2008 and 30 November 2008 in Tarcutta and Humula in the State of New South Wales did commit an act of indecency towards PD a person then under the age of 10 years namely between the age of 7 and 10 years contrary to s 61O(2) of the Crimes Act; and further

3. Between 1 January 2010 and 31 December 2011 at Humula in the State of New South Wales did incite CD a person then under the age of 10 years namely 7 years to an act of indecency with himself, contrary to s 61O(2) of the Crimes Act.

2. The pleas were entered late. The matter is an EAGP matter and accordingly it is the joint position of the parties that the offender is entitled to a discount of 10% for the utilitarian value of the pleas of guilty. I allow that 10% discount.

3. The maximum penalty for each of the offences is 7 years imprisonment. There is no standard non-parole period.

Facts

4. The offender was married to the grandmother of the two complainants between August 1999 and January 2019. The offender and his then partner lived at a number of properties in the Humula area. PD, a male was born in 2001 and CD, a female was born in 2002. I will not be any more specific about their birthdays in order to protect their anonymity.

5. On a date within the date range in counts 1 and 2 PD was dropped off at the property where the offender lived in order that he could go fishing with the offender. The offender drove himself and the victim PD to a fishing spot near Tarcutta Bridge where they stayed until lunchtime. They then moved to another fishing spot where they cooked sausages for lunch.

6. PD lay down on a steep bank next to the offender who pulled his penis out of his pants and touched it. The offender continued to stroke his penis in front of PD. Another vehicle drove through the reserve about 40 metres away from where the offender and PD were. As the vehicle drove near them the offender put his penis back into his pants cutting his penis on the zipper of his pants in the process.

7. When the vehicle left the scene the offender again removed his penis from his pants and continued to touch it with his hand. PD observed that the accused had an erection and also noticed blood on the offender's penis from the injury caused by the zipper. PD does not know if the offender ejaculated or not. This is the conduct to which count 1 on the indictment relates.

8. Count 2 occurred in a school bus which the offender drove. During the time frame of the indictment PD was alone with the offender on the bus. The offender was driving and PD was on the front passenger's seat. While driving the bus the offender took one hand off the steering wheel, unzipped his pants and pulled out his penis. The offender then began touching his penis. PD noted that the offender had an erection. The offender continued to touch his penis until he ejaculated into a tissue. The incident, which constitutes count 2 on the indictment, lasted four or five minutes. The offender drove PD home.

9. Going to count 3 PD and his sister CD were playing near a small lake on the property under the supervision of the offender. PD and CD were playing on an inflatable blow up raft until PD kicked CD out of the raft. PD continued to play on the water while CD and the offender watched from the bank. CD was wearing a summer dress with a rainbow on it. The offender was seated on a chair with CD sitting on his lap.

10. CD jumped off the offender's lap, turned around and noticed that the offender was pointing to his crotch area. The offender had his genitals completely exposed from his pants. The offender said to CD, "Do you want to touch it?" to which she replied "No". The offender asked CD, "Why Not?" to which CD replied, I just don't want to". The offender then said, "Never again?" to which CD replied, "Never again".

11. The offender then invited CD to again sit on his lap and she did so. She was unsure as to whether the offender's genitals were still exposed. CD remained on the offender's lap for about ten minutes before being called for lunch.

12. In March 2019 CD disclosed to her father the incident at the lake. CD's father then spoke to PD disclosed the incidents involving him. The victims' mother spoke to a counsellor who being a mandatory reporter reported the matter to the police.

13. The offender was arrested on 4 September 2019. He thereafter agreed to participate in an electronically recorded interview during which he denied each of the allegations.

Assessment

14. As with any sexual offending involving children the younger the child the more serious the matter will be. Section 61O(2) contemplates offences against children under the age of 10 years. Given the age range as pleaded in the indictment I am obliged to treat the matters with CD being towards the upper end of that age range and therefore close to the 10 years of age. I agree with the submission made by Mr King that the Crown cannot prove beyond reasonable doubt that CD was any younger than 9 years of age. The same applies to PD noting the time range as pleaded in the indictment. I understood the Crown to concede this in the oral submissions at the sentence hearing.

15. Mr King, counsel for the offender maintained that the offending was below mid-range. The Crown submitted, given the nature of the offending, that all of the offending were "very serious examples" (see paragraph 10 written submissions) of the offences. Mr King referred me to the decision of ARC v R unrep NSWCCA 28.8.1996. The offending in that matter was more extensive in that there were more counts. Some of the acts of indecency were described by the learned sentencing judge at first instance as serious. The Court of Criminal Appeal found no error with that finding. The child victims in that matter were younger than the victims in the matter presently under consideration.

16. There is an abuse of a position of trust with both victims. The factor of statutory aggravation provided for by s 21A(2)(k) of the Crimes (Sentencing Procedure) Act, 1999 is made out. The offending was opportunistic to some extent but not entirely so. The offender clearly waited until he was alone with the children.

17. Count 1 involves the offender exposing his penis and stroking it in front of the victim. The offender was persistent with that offending, continuing the offending after the other vehicle left the vicinity. Noting in particular the age of the child the matter is slightly below mid-range.

18. Count 2 involves the offender ejaculating in front of PD. Given this and the other factors already referred to count 2 is at the upper end of the mid-range.

19. Count 3 also involves some degree persistence on behalf of the offender. As Mr King submitted the conduct did not escalate. If it had there would have been other more serious charges. The victim was towards the upper end of the age range contemplated by the section. His genitals were totally exposed and he asked the victim to touch his genitals. That matter is within the mid-range.

Criminal History

20. The offender has no prior criminal history and in other circumstances would be entitled to considerable leniency because of that noting that he is now 70 years of age. However, there is on this issue the nature of the offending to be considered.

21. McHugh J, who was part of the majority in allowing the appeal, J in Ryan v The Queen [2001] HCA 21; 206 CLR 267; 179 ALR 193; 75 ALJR 815 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.

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.

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.”

22. 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".

23. 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.”

24. The offender is therefore entitled to some degree of leniency because of his lack of record. However that leniency is not as considerable as it might otherwise be because of the nature of the offending.

25. Mr King however correctly submitted that the lack of record assists in finding that the offender has good prospects of rehabilitation noting that the offender had not offended prior to these offences nor has he offended since.

Possibility of summary disposal

26. At first impressions it may be thought that the offender might have available to him a submission that he has missed out on the opportunity of summary disposal. However it is clear from the decision of Zrieka v R (2012) 223 A Crim R 460 that that is available to an offender only in exceptional circumstances. In the matter presently under consideration the matters to which the offender pleaded guilty were apparently the result of plea negotiations some of the details of which were revealed for the purpose of explaining why the offender is entitled to the 10% for the utilitarian value of the pleas. In these circumstances this issue is of no assistance to the offender.

Victim Impact Statements

27. There are victim impact statements from both victims. As those types of statements often do, the victim impact statements in this matter set out the short and long term harm that sexual offending has on young children.

28. However, appropriately given the decision of R v Tuala [2015] NSWCCA 8 the Crown does not rely on the statements to establish any factor of aggravation. However, the effect of the offending on the victims is to be taken into account in accordance with s 3A(g) of the Crimes (Sentencing Procedure) Act, 1999.

General Deterrence

29. As with any offending of child sexual assault there must be an element of general deterrence factored into the sentence. The concept 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 R v Van Ryn [2016] NSWCCA 1 at [179] and Chamseddine v R [2017] NSWCCA 176 at [50] per Walton J. 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

30. No oral evidence was called from or on behalf of the offender. A volume of subjective material was tendered including a report from Mr Sam Borenstein, clinical psychologist. Exhibit 2 is a letter from the offender, which given it is untested is given little weight - see generally Imbornone v R [2017] NSWCCA 44 at [57]ff per Wilson J. Exhibits 3, 4 and 5 are testimonial references. Exhibit 6 is a letter from Mr Woodhouse, psychologist. Exhibit 7 is a letter from Dr Flanagan, a medical specialist and exhibit 8 is a letter from Dr McCready, Consultant Cardiologist. The Court also has available to it a Sentence Assessment Report.

31. I will go initially to Mr Borenstein's report. At p 2 of the Report Mr Borenstein records that the offender only has a vague memory of the offending. The offender is socially isolated and spends most of his days in bed sleeping. He is housebound and leaves home to shop and for medical appointments. The offender told Mr Borenstein that he consulted Dr Woodhouse as he in having difficulty coping following the shock of being arrested and charged. A little later in the report it is noted that the offender reported that he has benefited from seeing Ms Woodhouse.

32. The report notes (p 3) that the offender consumes at least half a litre of wine per night after which he falls asleep. The offender "categorically repeatedly denied attraction to young children".

33. Further the report notes that the offender went to a Christian Brothers School where there was a lot of physical abuse but the offender denied any sexual abuse. There is apparently no family history of psychological disorder. The offender has a work history in semi-skilled and rural or farm work including on a poultry farm operated by the offender and his parents.

34. Mr Borenstein reports that he formed the impression that the offenders affect was flat and restricted. There was no indication of serious psychiatric disorder. The offender was cognitively intact. At p 6 of the report it is noted that the offender "is now left a lonely isolated man, who has few if any friendships". The current presentation was consistent with symptoms of sleep disorder, anhedonia (inability to attain pleasure out of any activity), amotivation, suicidal ideation, social withdrawal and isolation. Mr Borenstein opines that he offender's current physical and mental disabilities would make incarceration an onerous prospect and impact negatively on his vulnerable physical and mental health.

35. The offender is in the low to moderate risk of recidivism. The offender expressed remorse to Mr Borenstein and told him that the offending behaviour is uncharacteristic and goes against his moral and ethical values.

36. This is perhaps a convenient place to go to the SAR. The SAR reports (p 2) that the offender "vehemently denied responsibility for the offences" and justified pleading guilty by stating he was protecting the victims from the stress of going through a court hearing. It is unsurprising then that the author of the report goes on to note that the offender displayed no insight into his offending. The offender is assessed as being at a medium/low risk of reoffending.

37. Dr Woodhouse opines that the offender to be "a low risk to the community". Given the various opinions and the lack of record I am prepared to find on balance that the offender is unlikely to re-offend.

38. Further albeit with some hesitation I am prepared to find that the offender has good prospects of rehabilitation. The hesitation is because of the differing versions given to Mr Borenstein and the author of the SAR. The offender will clearly need ongoing psychological assistance given the manner in which he has all but totally withdrawn from society.

39. Most of the letter from the offender deals with his personal situation. At the very end of the letter he says, "...I find this whole process very distressing. I am unable to properly articulate how I feel, except to say that I feel sickened that the children have been hurt".

40. None of the authors of the testimonial references make any reference to the offender expressing any remorse to them. Given the expression of remorse to Mr Borenstein is untested together with the contents of the SAR I am simply unable to find on balance that the offender is remorseful.

41. The three referees speak generally of the offender's work ethic. None of the referees make any reference to the nature of the charges although Jade Patterson, a former student who was a regular on the school bus the offender drove says, "I was surprised and troubled by hearing of this case…never once did I feel uncomfortable or threatened by him…"

42. Clearly enough, the offender is suffering from a number of serious medical complaints. Dr Flanagan notes in his report that the offender described a long history of disequilibrium. Further he feels that his hearing is down on both sides and that he has stopped wearing his hearing aid of recent times. The offender reported to Dr Flanagan a number of episodes of suddenly falling to the ground. An MRI scan showed a very small nodule lying in association with the vestibular cochlear nerve on the left. Dr Flanagan also says, "His previous audiology is confirmed today showing a mild to moderately severe down sloping sensorineural hearing loss bilaterally and it slightly worse on the left. He has been placed on medication by Dr Lathif (local ENT specialist) which has reduced the episodes of falling down.

30. Associate Professor McCready, a local Consultant Physician and Cardiologist sets out that the offender has been treated by the Riverina Cardiology practice for approximately 10 years for:

1. Atrial fibrillation. He (offender) has undergone flutter ablation and has break through atrial arrhythmias requiring antiarrhythmic therapy;

2. Dilated cardiomyopathy which developed around 2016 which required medical therapy; and

3. Some problems in the past with bleeding related to anticoagulants.

44. However the report then goes on to say that the offender's prognosis is quite good given the normalisation of his left ventricular function. The offender does required continued medical therapy.

45. The offender takes a substantial number of medications daily - about 11 or 12.

46. The letter from the offender is a little unusual in the context of letters normally received from offenders. He maintains and I accept that he has been a hard worker for all of his life and he looked after his parents until they died. He lives alone with his dog at Mangoplah a small village to the south of Wagga Wagga. He maintains and I accept he has significant medical issues and his health has deteriorated. He has obviously benefited from seeing Dr Woodhouse. The offender says that it is good to have someone to talk to.

Submissions

47. Mr King addressed quite extensively on the objective seriousness of the offending. I have already dealt with that aspect of the case. It was conceded that the lack of criminal history does not achieve the same significance as it might with other offending. It was put and I accept that the lack of record goes to a finding as to prospects of rehabilitation. It was put on behalf of the offender that there is no suggestion that he has offended against other children on the school bus.

48. Further it was put on behalf of the offender that he has in effect become a hermit. I accept that this is the case given the daily routine adopted by the offender and the fact that he only leaves home for shopping and medical appointments.

49. It was conceded on behalf of the offender that there must be an element of general deterrence factored into the sentence. However it was submitted and I accept that specific deterrence has no real work to do in this sentencing exercise. There is no suggestion of offending before or after the offences, the offender is now 70 and his health is deteriorating.

50. The ultimate submission made on behalf of the offender was that the threshold within s 5 of the Crimes (Sentencing Procedure) Act is not crossed. Section 5(1) of that Act provides in effect that a court should not impose any sentence of imprisonment unless having considered all possible alternatives the court concludes that no other sentence is appropriate. As I understood the submissions it was put that the objective seriousness of the offending taken with the plea of guilty and the subjective case is such that the threshold is not crossed.

51. The Crown provided written submissions and made oral submissions at the sentence hearing. The Crown also addressed the issue of the objective seriousness of the offending. The Crown submitted that each of the offences were very serious examples of the offences. I have dealt with the seriousness of the matters. At paragraph 13ff of the written submissions the Crown addresses the issue of the lack of remorse and insight by the offender. There is some force in the Crown's submission that the offending is not that long ago that the delay would preclude a memory of the offending.

52. The use to be made of the lack of criminal history has already been dealt with. On the issue of the ill-health of the offender there is the decision of MC v R [2017] NSWCCA 316. Hamill J (Simpson JA, Rothman J agreeing) said at [56]:

"…However the fact that an offender is elderly and infirm, along with the other subjective and mitigating circumstances that were established on the applicant's behalf, are not matters that generally lead to a diminution of the role of general deterrence".

53. The Crown also addresses the issue of delay. I did not understand Mr King on behalf of the offender to submit that there was any significance so far as the delay is concerned beyond that the delay gave the offender an opportunity to prove rehabilitation. I note the effect of the decision of Hornardt v R [2017] NSWCCA 186 referred to by the Crown in the written submissions.

54. On the issue of delay I also note the extensive review of authorities on the effect of delay undertaken by Latham J in R v Donald [2013] NSWCCA 238 at [36]ff. Her Honour concluded at [49] that, "…Overwhelmingly, the focus is on the consequences of the delay to the offender, no matter what the explanation for it". Ultimately I have concluded that the offender should receive no consideration for delay.

55. The Crown Prosecutor in oral submissions amplified a number of the submissions made in the written submissions. In particular the seriousness of count 2 was emphasised noting that the offender ejaculated in the presence of his young grandson. The Crown submitted that the offences were not entirely opportunistic. As should be obvious from what I have already said, I agree with that submission. The Crown submitted that the age and ill-health of the offender is relevant to a finding of special circumstances and not the overall length of the sentence. The Crown submitted strongly that the threshold in s 5 of the Crimes (Sentencing Procedure) Act has been crossed.

General Remarks

56. In passing sentence I will need to give regard to and proper 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.

57. I have already set out the provisions of s 5. Because of the provisions of s 67 of the Crimes (Sentencing Procedure) Act an Intensive Correction Order is not available given the nature of the offending.

58. My note and memory is that at the sentence hearing there was mention of the statistics in respect of offences contrary to s 61O(2) of the Crimes Act both in the District Court and the Local Court. Given the limited number of cases and the broad range of conduct that is contemplated by s 61O the statistics are of really no assistance. The decision of ARC v R referred to earlier in these reasons is of no real assistance given the number of charges and the difference in the offending. Further the decision is now 25 years old and in that time there has been an upward movement in sentences for offences of child sexual assault.

59. Initially, when I read the material in this matter my preliminary view that the threshold in section 5(1) of the Crimes (Sentencing Procedure) Act was not crossed. However after some prevarication and upon closer and very thorough consideration, noting the criminality especially in respect of counts 2 and 3, I have reached the conclusion that there should be a sentence of imprisonment imposed in this matter. Taken in isolation the offending in count 1 would not necessarily cross the threshold.

60. Given that there are three offences it is an appropriate matter for the imposition of an aggregate sentence. It will be necessary for me to set out the sentences that would have been imposed had separate sentences been imposed. Those sentences are:

Count 1:   A total sentence of 5 months indicating a starting point of 6 months with rounding down;

Count 2:   A total sentence of 16 months with a starting point of 18 months; and

Count 3:   A total sentence of 13 months with a starting point of 15 months with some rounding down.

61. If separate sentences were imposed there would need to be some partial accumulation to recognise the different offending noting in particular the two victims and the fact that the offending occurred at different times. The partial accumulation between counts 1 and 2 would be more modest than in respect of count 3.

62. Given the age and state of physical health of the offender taken with the fact that this will be his first time in custody there should be a generous finding of special circumstances.

Orders

63. In respect of the three counts on the indictment to which the offender has pleaded guilty he is convicted.

64. The offender is sentenced to an aggregate sentence of 2 years with a non-parole period of 12 months.

65. The non-parole period will commence on 27 July 2021 and conclude on 26 July 2022. The period on parole will commence on 27 July 2022 and expire on 26 July 2023.

66. The offender is to be released to statutory parole at the expiration of the non-parole period.

67. The non-parole period is 50% of the total sentence which indicates a very generous finding of special circumstances. I am aware of the (obiter) remarks of RS Hulme J in R v Boney [2008] NSWCCA 313 at [48] that "Altering the ratio between the non-parole and balance of term periods of a sentence from that of 3:1 embodied in s 44 of the Crimes (Sentencing Procedure) Act as much as to result in a ratio of 50:50 is sufficiently unusual as to inspire examination…" In this matter there is in particular the age of the offender and the state of his physical health.

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