R v O'Donnell

[2021] NSWDC 749

District Court

New South Wales

Medium Neutral Citation:

R v O’Donnell [2021] NSWDC 749

Hearing dates:

18 October 2021

Date of orders:

18 October 2021

Decision date:

18 October 2021

Jurisdiction:

Criminal

Before:

M L Williams SC

Decision:

An aggregate term of imprisonment of three years and four months with a non-parole period of 22 months: at [62].

Catchwords:

SENTENCING — Mitigating factors — Injury, harm, loss or damage not substantial — Good character — No record of previous convictions — Plea of guilty — Unlikely to re-offend

SENTENCING — Non-parole period — Standard non-parole period

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence — Deterrence — Factual basis for sentence — Form 1 offences — Moral culpability — Multiple offences — Aggregate sentence — Objective seriousness — Purposes of sentencing — Sentencing statistics

SENTENCING — Subjective considerations on sentence — Age of offender — Mental illness — Protective custody — Special circumstances

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Crimes Act 1900

Cases Cited:

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146

R v Thomas [2007] NSWCCA 269

R v McClymont (unreported, NSWCCA, 17 December 1992)

Franklin v The Queen [2013] NSWCCA 122

R v RD [2014] NSWCCA 103

Category:

Sentence

Parties:

Regina (Office of the Director of Public Prosecutions)

Jayden O’Donnell (Offender)

Representation:

Mr Burton (Solicitor, Office of the Director of Public Prosecutions)

Mr S Ryan (Counsel for the offender)

File Number(s):

2020/227115

Publication restriction:

STATUTORY NON-PUBLICATION APPLIES
Section 578A Crimes Act 1900 (any matter that may identify the complainant(s)) and s 15A Children (Criminal Proceedings) Act 1987 (identification of any minor witness(es))

Judgment

1. Jayden O’Donnell was only 19 when he committed a series of sexual offences against a 12 year old female on 18 April 2020. He has pleaded guilty to a number of offences, in circumstances justifying a 25 % discount on a term of imprisonment which his counsel, Mr Ryan, concedes is appropriate in the circumstances.

2. He has been in custody since his arrest on 4 August 2020 and the term of imprisonment will commence on that date.

3. There are four principal offences and a number of matters to be taken into account on a Form 1, in the way suggested by the Chief Justice in the guideline judgment on those matters (Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146).

4. The maximum penalties and the standard non-parole periods where applicable for the offences are important yardsticks to be taken into account in the sentencing process, which must also take into account the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999.

5. The offender is to be sentenced for the following offences:

• There are three counts of sexual intercourse with a child between aged 10 and 14 (Sequences 3, 4 & 5) contrary to s 66C(1) of the Crimes Act 1900. Each offence carries a maximum penalty of 16 years imprisonment with a standard non-parole period of seven years.

• One count of disseminate child abuse material contrary to s 91H(2) of the Crimes Act 1900. The offence carries a maximum penalty of 10 years imprisonment with no standard non-parole period.

6. To be taken into account on a Form 1:

• Attached to sequence 3, is a count of sexual touching (sequence 1) contrary to s 66DB(a) of the Crimes Act 1900 and further count of sexual intercourse with a child (sequence 2) contrary to s 66C(1) of the Crimes Act 1900.

• Attached to sequence 5, is a further count of sexual intercourse with a a child between 10 and 14 years contrary to s 66C (1)) of the Crimes Act 1900 (sequence 7).

• Attached to sequence 8, is an offence of produce child abuse material (sequence 6) contrary to s 91H(2) of the Crimes Act 1900

7. The offender and the victim met online and chatted via an app called “Snapchat”. At the time the victim was 12. She lived at West Wallsend and went to school in suburban Newcastle.

8. During their online conversations, he said that he was 19 and she said she was 15. They exchanged images of each other during the chats. She only knew him by his Snapchat name of Jayden Jazul.

9. They agreed to meet on 18 April 2020. There is no agreed fact as to who instigated the meeting. The Crown submits that it was at the instigation of the offender, but I accept Mr Ryan’s submission that that, while one possible inference to be drawn from the agreed facts, it is a stretch and that a more appropriate conclusion is a more neutral one, namely that they agreed to meet.

10. He did ask her to bring a pair of underpants to the encounter.

11. They met at some sporting fields at West Wallsend and had a sexual encounter, firstly near the sports shed and then in a nearby toilet block. During the encounter, the offender kissed the victim on the chest (sequence 1 (Form 1 attached to sequence 3)) and he has inserted his fingers into her vagina, (sequence 2 (Form 1 attached to sequence 3)). He then inserted his penis into the victim’s vagina (sequence 3). The offender and victim went to the toilet block where the offender inserted his penis into her vagina on the second occasion (sequence 4). He then inserted his penis into her anus (sequence 5) and into her mouth (sequence 7 (Form 1 attached to sequence 5)), before ejaculating on the floor of the toilet block.

12. During the encounter, he used his mobile phone to film the victim’s vaginal area while he was committing the sexual intercourse the subject of sequence 4 (sequence 6 (Form 1 attached to sequence 8). Following his arrest, the offender admitted to police that he had sent the recording to a friend (sequence 8), although the recording has never been produced or detected.

13. After the encounter, the victim pulled her pants up, grabbed her shoes and left the toilet block and began running home. As she was leaving, she messaged him and asked if he had deleted the video and he told her “Yes” and they both left the football fields and never met again.

14. The circumstances in which he was apprehended involved her disclosing to a friend two months later that she had been raped and on 27 July 2020 she told her mother, who reported it to Police.

15. Her mother searched Facebook and Instagram using the name that he had given to the victim and he was eventually identified.

16. The victim gave three interviews to Police and initially told them that she had been raped by an unknown man. Police were sceptical of that version and made further enquiries. She eventually described the encounter in full, including how she and the offender met.

17. On 4 August, Police attended his home for the purpose of executing a search warrant. They spoke to the offender and told him they were looking for a pair of red or pink underpants and he said, “That’s what she gave me” and they located the underpants in a cupboard.

18. He took part in an interview, where he admitted having sex with her. He initially said that she told him she was 15 or 16 and that he knew it was unlawful to have sex with someone under 16. He also admitted to sending a video of him and the victim having sex to a friend.

19. He has no criminal record.

20. The victim’s counsellor read out a victim’s impact statement, which is taken into account in the way suggested by Basten JA in R v Thomas [2007] NSWCCA 269. It sets out the expected consequences of serious sexual offending against a young girl and it is taken into account on that basis, although, of course, it is recognised that it is not evidence which is tested in cross-examination.

21. The subjective case is set out in a Sentencing Assessment Report and in the lengthy report of a psychologist, Anne Lucas, who interviewed the offender for an hour and three-quarters via video link from Parklea Correctional Centre on 6 September 2021.

22. The Crown takes no issue with the subjective background as a reasonable basis upon which to proceed but does put submissions as to certain aspects of his statements about the offending.

23. The Sentencing Assessment Report proceeds on a brief history of him being a person who has a limited social circle and described himself as socially isolated. He spent most of his time in his room, playing video games; had never been employed, has he had no interest in employment. He has been in receipt of benefits since his expulsion from Year 12.

24. He referred to the offence as his first sexual encounter and appeared to attribute his age and his hormones as a contributing factor to his actions, noting that he lacked the ability to think straight at the time and stating he was only thinking of the pleasurable side of things.

25. He said he does not refer to himself as a sex offender and he says he knows that his actions were a mistake, which would not occur again.

26. The report is accompanied by a case note of a brief review by the Risk Intervention Team but, as acknowledged, they did not interview Mr O’Donnell and the report is of little relevance.

27. The Sentencing Assessment Report notes that he referred to the incident as the worst day of his life and accepted that his decision making was poor.

28. He was assessed as being at a medium risk of re-offending.

29. His history is amplified in the psychologist’s report. He spent his childhood in the Newcastle area, at the home of his parents. He is an only child. His father was an automotive spray painter. Around 13 to 14 years of age, his parents began to argue, frequently and heatedly, apparently as a result of an extra-marital affair that his mother had been conducting. His parents separated not long after, and he spent most of his time from age 16, with his father.

30. He has a very close relationship with his father.

31. He disliked his mother’s new boyfriend; and his mother began using methamphetamine with him.

32. He reported spending most of his time in his father’s company and described him as his “best mate”, but he felt lonely most of the time and he had no real relationships, other than an online girlfriend.

33. He said his schooling had been “horrible” and reported he had been bullied because he was not “very smart” and he left after completing Year 11.

34. His reading and writing is sufficient for everyday purposes. He doesn’t have a drivers licence. He spends most of his days with his father and his dog, being the only two people that he believes to not judge him and find him wanting.

35. He was medicated for ADD when he was 12 years old. He continued psychostimulant medication for approximately a year.

36. He reported some casual cannabis use from aged 17 or 18.

37. He is housed in protection in custody and he feels safe in the company of his cell mates.

38. The psychologist saw him as socially immature. He became tearful on several occasions and required time to regulate his distress. She said that he showed some elevations of his depression sub-scale, to a degree suggesting he is suffering from a major depressive episode.

39. There was a limited IQ assessment carried out which showed him to be in the bottom 13^th percentile range. The results suggested that he may have some difficulties in keeping up with his peers in certain situations requiring verbal skills.

40. He was diagnosed as presenting with the core symptoms of borderline personality disorder, depending excessively on others for identity definition and he has compromised interpersonal boundary delineation.

41. The psychologist thought that he would be a vulnerable individual in custody, presumably meaning if he were in the open prison population rather than in protection. She notes the limited visits from his parents due to the COVID pandemic.

42. She said that his inability or unwillingness to discuss his motivations relating to the offences made it difficult to clearly understand his offence pathway, but she gained the impression that, on an emotional and social level, he functions as a person much younger than his chronological age and that is not unreasonable conclusion to draw on the material which is unchallenged.

43. The Crown challenges the assertions that he believed the victim was 15 or 16 and, in circumstances where that is not supported by evidence, I give that no weight, as the Crown submits. He was aware that the age of consent was 16. He did say that his hormones kicking in was the motivating factor in him seeking out someone to have intercourse with him.

44. As to objective seriousness, the helpful written submissions of the Crown and Mr Ryan for the offender are largely on common ground.

45. As to the producing/disseminating child abuse material, I accept the Crown submission that they are towards the low end of the range, given that there was no evidence that the victim’s face was captured in the recording; the recording appears to have been for a short period of time and fixed on one area of her body; and the dissemination charge was based on his admission only by sending it to one person. There is no evidence of it circulating elsewhere.

46. As to the sexual intercourse and sexual touching offences, I accept what is largely common ground, that these are below mid-range and towards the low end of the range. I note the age difference between the offender and the victim, and the absence of any resistance from the victim or coercion from the offender. It is acknowledged by the Crown that there is no evidence as to the duration of the acts of sexual intercourse in sequences 3 and 4. Sequence 5 is described as only occurring for a short time. There is no evidence of injury and the Crown accepts that the offences were not the subject of opposition but, as Basten JA noted in R v Nelson [2016] NSWCCA 130, that does not mean that they were consensual, because, obviously, consent is not a relevant consideration.

47. As Mahoney J said in R v McClymont (unreported, NSWCCA, 17 December 1992),

Sexual offences were committed with a girl of twelve years of age. Taking full account of the extent to which she co-operated willingly in what was taking place, one has to bear in mind that the purpose of the law is to protect such a person from that kind of activity. It is to protect her from, in a sense, her willingly participating in such activities.

48. The fact that the intercourse was not the subject of opposition is not a mitigating factor.

49. As to the Form 1 offences, the Crown acknowledges that they occurred as part of the same incident, but they do disclose additional offending and they comprise further acts committed by the offender. It is noted that the act of penile oral intercourse was only uncovered due to his admission in the record of interview. The Form 1 matter do, the Crown submits, adds some additional weight to considerations of personal deterrence and denunciation.

50. The Crown does not point to any aggravating factors and concedes a number of mitigating factors relied upon by Mr Ryan, namely there is no evidence of any injury or substantial harm to the victim; the offending was not part of any planed or organised criminal activity; the offender has no record and his good character is taken into account. I accept that he is unlikely to re-offend but that conclusion is based on the psychologist placing him at a low to moderate risk rate of between 5-8% of being charged or convicted or a new sexual offence.

51. He has good prospects of rehabilitation due to his youth and lack of paraphilic interests, according to the psychologist.

52. Further mitigating factors are that he pleaded guilty at the earliest opportunity, he assisted law enforcement authorities by making admissions as to certain offences.

53. Mr Ryan acknowledges that his moral culpability is significant but not high, given that he was only 19 at the time and he was, according to the evidence, a particularly immature young man, whose understanding of social situations and relationships were deficient for someone of his age, according to the psychologist and I accept that that slightly reduces his moral culpability, in the light of the assessments by the psychologist.

54. Mr Ryan acknowledges that, although he was a lonely and immature man with little social sexual experience, he faces a significant custodial sentence, where there is an obvious need to denounce his conduct and punish him and the sentence must reflect a need to deter him and others from similar offending in the future. However, as I have indicated, the need for personal deterrence is somewhat limited in his case, due to his youth, his immaturity, his limited intellectual functioning and the fact that he is unlikely to re-offend. I accept that general deterrence here, while of importance, is not as significant as in some child sexual assaults, where the offending is coercive, predatory, or manipulative.

55. The Crown sets out the principles of totality involved in sexual offending committed against one victim as part of a single incident by Hoeben CJ AT CL in Franklin v The Queen [2013] NSWCCA 122, and the considerations as to totality and accumulation to be drawn from the cases considered by his Honour there.

56. Here the Crown acknowledges that, while the four principal offences occurred as part of a single incident, they involved a variety of discrete acts. Each involved separate criminality, with varying degrees of significance and

57. Mr Ryan does not challenge the proposition that there should be some accumulation of the sentences or, in his words, there should be significant but not total concurrency of the sentences taking into account the principle of totality and the number of offences arising from a single incident.

58. I accept that there is a finding of special circumstances open, given his youth, his immaturity, his mental health issues, the need for an extended period of psychological assistance, so that both he and the community would benefit from a longer period on parole, to assist with his maintaining his reasonable prospects of rehabilitation and also accept, as is apparent in sentencing cases during the COVID pandemic, that the effects of the pandemic upon prisoners in custody is a significant matter to be taken into account.

59. Mr Ryan referred to the decision of R v RD [2014] NSWCCA 103, which was a successful Crown appeal. It has to be said that the offending in that case was objectively much more serious than the present case. Mr Ryan put it forward as principally dealing with a similar age gap between offender and victim as in this case, but in RD the offending occurred over a long period of time, on different days and involved the victim becoming pregnant as a result of the sexual offending and ultimately giving birth to a premature child shortly after the last offence.

60. The Crown appeal was successful and sentences that had been imposed by a very experienced sentencing judge were increased. Fullerton J noted at [4],

the indicative sentences nor the aggregate sentence to be imposed on re-sentence should be taken as reflecting sentences that should have been imposed at first instance for what I regard as serious and repeated sexual abuse of a young child.

61. In the course of a careful consideration of the evidence, Hamill J noted at [43], that, while the parties had not referred to statistics, his Honour had undertaken that exercise and, as I have indicated to the parties here, although neither party referred to any statistics or allegedly comparable cases, or a range of cases, I have considered, as did Hamill J, the relevant statistics, the brief details as to the cases that are set out on JIRS, behind the statistics, as well as considering those of the cases which have been published and I have done so to principally check the sentences that I propose against the range of sentences which have been imposed in other cases, recognising the different subjective and objective circumstances of each case.

62. The orders that I will make are as follows:

1. The offender is convicted of each offence.

1. Taking into account the discount of 25% for the pleas of guilty, the indicative sentences are:

1. Sequence 3, taking into account the Form 1 matters (sequences 1 and 2): two years and six months with an indicative non-parole period of 16 months.

2. Sequence 4: two years and three months with an indicative non-parole period of 15 months.

3. Sequence 5, taking into account the Form 1 matter (sequence 7): two years and eight months with an indicative non-parole period of 18 months.

4. Sequence 8, taking into account the Form 1 matter (sequence 6): 16 months.

3. I impose an aggregate sentence of three years and four months, commencing 4 August 2020,

4. I impose a non-parole period of 22 months, expiring 3 June 2022.

5. I find special circumstances.

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Decision last updated: 09 March 2022