R v O'Sullivan

[2019] NSWDC 563

District Court

New South Wales

Medium Neutral Citation:	R v O’Sullivan [2019] NSWDC 563
Hearing dates:	17 May 2019, 6 September 2019
Date of orders:	06 September 2019
Decision date:	06 September 2019
Jurisdiction:	Criminal
Before:	Buscombe DCJ
Decision:	See paragraphs [52] to [59]
Catchwords:	CRIME — Child sex offences — Sexual intercourse with child >14 <16 CRIME — Sexual offences — Sexual intercourse without consent SENTENCING — Relevant factors on sentence — Delay
Legislation Cited:	Crimes Act 1900
Cases Cited:	Hayek v R [2016] NSWCCA 126
Category:	Sentence
Parties:	Terrence Kenneth O’Sullivan (Offender) Director of Public Prosecutions (Crown)
Representation:	Counsel: B Robinson (Offender)   Solicitors: C Hunter (Offender) C Hurford (Crown)
File Number(s):	2017/241595
Publication restriction:	Statutory non-publication order applies to identity of victim

SENTENCE

1. HIS HONOUR: The offender stands to be sentenced, having pleaded guilty to the following offences: Five counts of having sexual intercourse with TS who was a person above the age of 14 years of age and under 16 years of age, namely 15 years of age at the time of the offences. Those offences are offences under s 66C(3) of the Crimes Act and have a maximum penalty of ten years imprisonment and there is no applicable standard non-parole period.

2. Those five offences occurred between 1 March 2008 and 30 December 2008. The offender is also to be sentenced in relation to one offence that occurred between 7 and 31 January 2009 of sexual intercourse with TS without her consent knowing she was not consenting. That is an offence under s 61I of the Crimes Act and had at the relevant time a maximum penalty of 14 years imprisonment and an applicable standard non-parole period of seven years.

Agreed Facts

3. The facts are agreed and they are as follows. The victim TS was born on 19 January 1993 and the offender was born on 15 July 1966. In 2008 the offender was working as a trolley collector for Penrith Plaza in the High Street. He met the victim through her then boyfriend who was also working there. The offender, when they met, was 41 and the victim was 15. The offender and the victim started what is referred to as a relationship immediately after the first meeting.

4. The offender and the victim would take drugs together and they commenced a sexual relationship from when they first met in March or early April 2008. The agreed facts are that the offender knew that the victim was 15 years of age. The offender and victim had sexual intercourse during the course of their relationship prior to the victim turning 16.

First Offence

5. In terms of the first offence around March or early April 2008 the victim and a friend, who I will refer to as MS, visited the victim’s then boyfriend at work. MS is the then boyfriend’s sister. The offender offered to buy them cigarettes and drive them home to the victim’s residence in Emu Heights. On the drive home the offender stopped at a service station where he purchased cigarettes and phone credit for the victim.

6. The offender then stopped near the victim’s residence and asked for her phone number which was provided. Later that day the victim and offender exchanged a number of text messages and arranged for the offender to pick her and her friend up that evening. At about 11pm the victim and her friend left her residence and joined the offender who was parked nearby. He drove to Nepean Hospital to get syringes and needles. The offender got back into the vehicle and then drove to Cranebrook Shopping Centre carpark.

7. He removed a syringe from a black bag and after preparing the drug, which is referred to as gas, administered it to each of them. The offender drove them to a nearby area that was secluded bushland. They got out and, after asking the friend to go for a walk, the offender and the victim started kissing. He guided her to the back seat where he lay down with the victim on top of him. They removed each other’s clothing. He said “We need to slow down, you can’t tell anyone about this”.

8. The victim pushed the offender back down and manoeuvred his penis into her vagina and they had sexual intercourse which lasted for about five minutes. He again said “You can’t tell anybody about this”. The friend returned to the vehicle and the offender drove them home.

Second Offence

9. In terms of the second offence, after that night the victim and the offender were in regular contact. He purchased cigarettes and phone credit for the victim. He would remind her that she could not tell anyone about their sexual encounters saying “We will get into a lot of trouble”. Approximately two weeks after the first time they had sexual intercourse the offender picked up the victim and her friend from Cranebrook.

10. They drove to a carpark in Leonay and the offender injected them all with what is referred to as gas in the facts. The offender started kissing the victim who was sitting in the front seat before moving his hand into the victim’s pants and digitally penetrating her vagina. The friend, who had been in the back seat throughout, answered a call on her phone. It was the victim’s then boyfriend, who was still in a relationship with the victim, wanting to know where they were. The offender then drove the victim back to the Cranebrook residence.

Third Offence

11. In terms of the third offence, the victim ended her relationship with her then boyfriend who was concerned about the amount of time being spent with the offender. The victim, still only 15 years of age, fell out with her father and she moved into the offender’s single bedroom granny flat in an address at Cambridge Park. She stayed there for a couple of months and she and the offender engaged in penile/vaginal sexual intercourse.

12. She recalled that on one occasion after using drugs with the offender she woke up on the kitchen floor naked from the waist down. On 26 May 2008 the offender was arrested on unrelated drug charges and was remanded in custody. The victim moved back in with her father. The offender made numerous calls to her while he was in custody and told her that he loved her. At one point he told the victim not to wait for him as he could be in custody for some years and the victim replied “It will all be legal when you get out”. The offender said “Yeah it will be”.

Fourth Offence

13. There was a telephone call which is the basis of the fourth offence, being an admission as to sexual intercourse. I do not propose to read the full content of the relevant part of that telephone call except to note that towards the end of it the offender said “Yeah you know how I turned you over and do - fucked you backwards and spanked your arse at the same time, you can do that to me”.

Fifth Offence

14. In terms of the fifth offence the offender was released from custody on 24 December 2008. He contacted the victim and they met up at the McDonalds on the corner of Old Bathurst Road and Russell Street in Emu Heights. They drove to the Penrith Valley Inn and the offender made the victim wait outside while he went in and booked a room. They went to their room which was on the bottom floor and injected drugs together.

15. At one point during this episode the offender started kissing the victim and touching her legs but she told him she did not want to have sexual intercourse. They lay down on the bed and after about half an hour of persistent begging, the victim relented and agreed to have sex. The offender removed the victim’s clothing before removing his own. They had penile/vaginal intercourse for about five minutes. The offender and the victim continued their relationship into 2009 after the victim turned 16.

Sixth Offence

16. In terms of the sixth offence which is the sexual intercourse without consent offence, the facts are as follows. Either shortly before or shortly after her 16th birthday which was on 19 January 2009, and I make a finding that I could not be satisfied beyond reasonable doubt it was before her 16th birthday so it must have been after, the offender took the victim to the Emu Plains Caravan Park. The offender tried to initiate sexual intercourse on this occasion but the victim said she was not interested.

17. The offender pinned the victim to the bed with one arm and used his other hand to remove her shorts and underwear while she told him “No, I don’t want to”. The victim was scratching and biting the offender but the offender told her “That turns me on, keep doing that, keep doing that harder”. The offender then inserted his penis into the victim’s vagina and had sexual intercourse with her while she lay with a pillow over her face. A short time later the offender ejaculated inside the victim.

18. Thereafter he gave her $500 and offered to drive her home but she did not accept that offer. The victim and offender continued to see each other from time to time between this incident and when the offender went back into custody on 31 January 2009. Eventually over time the victim wound down the relationship and by the time she was 17 had completely ended it. The victim initially went to police to report the matter in April 2010 however due to her fragile emotional state she decided not to proceed with it.

19. In June 2017 the victim provided a statement to police and police obtained a surveillance device warrant. On 2 August 2017 the victim and the offender met on High Street in Penrith and there was a conversation. During the conversation the offender confirmed knowing that the victim was under 16. When the victim said that at the time she met him she “fucked my life up mentally”. He replied “And I didn’t help”. He blamed his drug use for his poor decision making.

20. On 8 August 2017 the victim and the offender met at a park near Kendall Street in Penrith. There was a further conversation, again the offender apologised for his behaviour back in 2008 by blaming his drug use. He was arrested shortly after that. He did participate in a limited way in a recorded interview. Those matters are all taken from the agreed facts.

Assessment of Objective Seriousness

21. I turn then to my assessment of the objective seriousness of the offences. A relevant factor to have regard to when assessing the objective seriousness of offences under s 66C(3) is the age difference between the offender and the victim at the time of the offences. The offender was between 41 and 42 at the time of the commission of the offences and the victim was 15. Clearly the difference in age was very significant, the offender being a mature man in his forties, whereas the victim was an adolescent girl.

22. There is clearly a very significant difference in power between the two, with the offender providing the victim cigarettes, phone credit and drugs. There was clearly an element of exploitation in all of these offences. There were statements by the offender to the victim requesting that she not tell anyone about the sexual activity between them. I note that the victim was however, in terms of age, 15, which is towards the upper end of the age limit for victims of such offending.

23. Another relevant factor is to consider the type of sexual intercourse that was involved in the offences, although noting there is no actual hierarchy of sexual intercourse in terms of level of objective seriousness. Four of the five offences, in terms of the s 66(3) offences, involved penile/vaginal intercourse and one involved digital penetration. Penile/vaginal penetration is generally considered to be more serious than digital penetration, fellatio and cunnilingus.

24. I note that the sexual activity concerned in each of these counts was what is sometimes termed non‑oppositional, although this is not a mitigating factor, given the nature of the offences. The second offence occurred in the presence of another child, although it involved digital penetration and not penile/vaginal intercourse. I consider that each of the s 66C(3) offences fall within a notional mid range level of objective seriousness for such offending when I have regard to the factors I have mentioned.

25. I consider the second offence to be slightly less serious than the other offending, given the nature of the intercourse.

26. In relation to the sexual intercourse without consent offence, I note there remained a very significant age difference between the victim and the offender, the victim having not long turned 16. There was significant force used by the offender to pin the victim down, that the victim was scratching and biting him in an attempt to get away from him. Penile/vaginal intercourse occurred and the offender ejaculated. I note the offender paid the victim $500 at the conclusion of the offence. I cannot find beyond reasonable that was to ensure the victim’s silence. I consider this offence is within the lower band of the mid-range of objective seriousness for such offending.

Offender’s Subjective Case

27. I turn then to the offender’s subjective case. He is currently 53 years of age, and as I noted earlier was 41 to 42 years of age as at the time of the offences.

Criminal History

28. He has a criminal history, none of which involves offences of a sexual nature. The following entries on his criminal record are of some significance in this sentencing, in my view.

29. In September 1997 he was sentenced in this Court to 300 hours of Community Service for supplying a prohibited drug. In December 2008 in the Local Court he received a sentence of fulltime imprisonment for an offence of supply a prohibited drug. In November 2009 he was sentenced in the Local Court to fulltime imprisonment for an offence of possess prohibited drug, which on appeal to this Court was reduced to a s 9 bond which commenced on 4 December 2009. In October 2010 he received suspended sentences in the Drug Court for offences of breaching an AVO and possess prohibited drug. He appears not to have committed any drug offences since completing the Drug Court program.

30. There is a significant gap in his offending, and given the fact that he has no prior sexual offences on his record I think his record does not completely disentitle him to leniency.

Custodial History

31. In relation to the offences that he is to be sentenced for, he has been in custody since his arrest on 8 August 2017 and the sentence should commence from that date. At the time of the fourth offence under s 66C (3) he was on conditional bail in relation to drug allegations. In relation to the fifth offence and the s 61I Crimes Act offence he was on parole in relation to drug offences. Those offences were committed while on conditional liberty and that is an aggravating factor.

Psychological Reports

32. There are before me two psychological reports, one by Ms Chris North, a forensic psychologist, and one by Dr Susan Pullman, a forensic psychologist and clinical neuropsychologist. The following is taken from those reports:

Family Background

33. In terms of his family background, he was born in the United Kingdom and re-located to Australia with his parents and his brother in 1971. His parents divorced when he was ten years of age and both parents subsequently remarried. He described having a close relationship with his stepfather. His mother died three years ago and he had moved back home to assist his stepfather with his mother’s care before her passing. He reported maintaining regular contact with his father, who lives interstate. He described a relatively stable upbringing. He described being married at one point in the past. He is currently single with no dependants. Ms North considered that there was no evidence of deviant sexual interests or sexual pre-occupation.

Education and Employment History

34. In terms of his education and employment history, he left school in year ten, not having obtained his school certificate. He described himself as a below average student and identified having learning difficulties from a young age and described himself as functionally illiterate.

35. Ms North, one of the psychologists, considered it was significant that he had reported sustaining a serious head injury between the ages of four and five.

36. After leaving school the offender worked in his father’s construction company for five years. He, then in his twenties, worked in his stepfather’s butcher’s shop. He has since then done other types of manual jobs.

Substance Use

37. In terms of his substance use, he described to the psychologist using cannabis as an adolescent. In his twenties he began to use amphetamines. His amphetamine use escalated during his twenties and thirties, while there was a period of abstinence he relapsed around 39 years of age after he suffered a home invasion. He then used amphetamines four times a day until he was arrested when 42. It was around that time that these offences were committed. He completed the Drug Court program when 43 years of age. He denied any drug use while on remand, and I note there are no drug-related prison infringements on his custodial history. The psychologist, Ms North, considered that his stimulant use disorder was in sustained remission.

Psychological Assessment

38. Ms North considered there was no evidence of any mood, perceptual, sensory, or thought disturbances. She was unable to perform cognitive testing, and this was done by Dr Pullman. The result of that testing indicates that the offender was likely to have a low average or average pre-morbid intellectual functioning. He does not display any signs of impulsive responding. He presented to Dr Pullman as having reductions in his working memory and processing speed, which significantly undermined his performances on timed tasks. His verbal skills were within the borderline range. Dr Pullman was unable to attribute his cognitive difficulties to a particular cause, given the lack of information about the childhood injury I referred to earlier and his extensive drug use.

Attitude to Offending

39. In terms of his attitude to the offending, I note that there were references in the facts to some statements of apology during the course of the police investigation, and the offender told the psychologist, Ms North, that he “feels bad” and “sorry for the way she [the victim] feels about it”. The psychologist, Ms North, considered the offender had moderate risk of reoffending generally and low risk of sexual reoffending.

Sentence

40. In terms of the pleas of guilty and any discount, the pleas of guilty in relation to the s 66C (3) offences were entered in the Local Court. I will allow the offender a 25% discount of his sentence for those offences for the utilitarian value of his plea.

41. The history of the plea negotiations in relation to the sexual intercourse without consent offence is contained in the Crown’s written submissions, and is to the effect that the offender was offered the opportunity to plead guilty to that offence in full discharge of an indictment in February 2019, but rejected that offer. In the circumstances I propose to allow him a 15% discount of his sentence in relation to that offence.

42. The statements contained in the psychological reports and in the agreed facts and the pleas of guilty are indicative of some remorse by the offender and accepting responsibility for his offending. Given the gap in his offending in more recent times and the assessment in the psychological report of the risk of reoffending, and the fact that he has some support in the community he has reasonable prospects of rehabilitation.

43. I am not satisfied on the balance of probabilities that there is a causative connection between his fairly low level of cognitive functioning and the offending. On balance he has a low level of average intelligence, not an intellectual disability and clearly knew what he was doing was wrong. I am satisfied that because he was using very significant quantities of illicit drugs at that time that his judgment was impaired as at the time of the offending by his illicit drug use. I do not consider in the circumstances of this case, however, that is a mitigating factor or reduces his moral culpability, in particular given his age at the time. (See in that regard the discussion in Hayek v R [2016] NSWCCA 126).

40. Delay is a feature in this sentencing exercise to some degree, in that he was dealt with in April 2008 for certain drug supply offending. If the current offences which occurred proximate to that time were dealt with at the same time no doubt principles of totality would have been applied by the Court in determining the overall sentence. I also note that there has been no sexual offending since the current offences and a gap of offending since 2012-2013. He appears to have engaged in that time in drug rehabilitation. I note, however, that it is frequently the case that in offences of this type there is a delay in complaint. In the particular circumstances of this case I propose to have some regard to the delay in the sentencing of this offender for these offences as a matter of mitigation of the sentence.

41. I am satisfied on the evidence, as I say, the offender has reasonable prospects of rehabilitation. His prospects will be assisted if he has a longer period on parole than that provided by the statutory ratio and I find special circumstances.

42. I will utilise the aggregate sentencing provisions, if I have not done so there would be a need to provide for some accumulation, both in relation to the s 66C (3) offences themselves and in relation to the s 61I offence. That is because each offence was a separate episode of sexual misconduct, and to reflect the different nature of the offending in the s 61I offence. I must be careful, however, not to impose what might be thought to be a crushing sentence.

43. I have had regard to the objectives of sentencing referred in s 3A of the Crimes (Sentencing Procedure) Act. Sexual offending by men of mature age on girls under the age of consent is very serious offending, because of the age and power difference between the offender and the victim. The courts and the general community find such conduct abhorrent and it should be assumed that such offending has a lasting impact upon any victim. Offences of sexual intercourse without consent are always serious offences; where the victim has only just obtained the age of consent, and the offence involves a significant use of force the offence is very serious. Such offences must result in significant sentences being imposed in order to reflect general and specific deterrence. I accept that the need to have a significant component of specific deterrence is reduced here given his prospects of rehabilitation.

44. The maximum penalties, and in relation to the s 61I offence the standard non-parole period, have been taken into account as legislative guideposts. It will be seen I have departed from the standard non-parole period due to the plea of guilty and my finding of special circumstances.

45. I will firstly record the indicative sentences.

46. 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.

Orders

51. Just stand up, Mr O’Sullivan please.

52. Mr O’Sullivan, you are convicted of the offences to which you have pleaded guilty. You will first hear me read out certain indicative sentences, they are not the overall sentence that you receive. I will then read out what is called the aggregate sentence and an aggregate non-parole period, and that is the sentence and non-parole period you will serve.

53. The first of the s 66 (3) Crimes Act offences, sequence 1, there is an indicative sentence of two years and three months.

54. In relation to the second of those offences, which is sequence 2, there is an indicative sentence of two years.

55. In relation to the third of those offences, sequence 6, there is an indicative sentence of two years and three months.

56. In relation to the fourth of those offences, sequence 3, there is an indicative sentence of two years and three months.

57. In relation to the fifth of those offences, sequence 4, there is an indicative sentence of two years and three months.

58. On the sexual intercourse without consent offence there is an indicative sentence of three years and nine months with an indicative non-parole period of two years and two months.

59. I impose an aggregate sentence of five years and nine months with a non‑parole period of three years and eight months. The sentence commenced on 8 August 2017 and expires on 7 May 2023. The non-parole period expires on 7 April 2021. The earliest date you are eligible to be released to parole is the date of the expiry of the non-parole period which is 7 April 2021. Whether you are, in fact, released to parole that day is a matter for the State Parole Authority, which will no doubt take account of your behaviour in prison in determining whether you are released then or on another date.

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Decision last updated: 14 October 2019