R v Osman Chamseddine
[2015] NSWDC 233
•18 September 2015
|
New South Wales |
Case Name: | R v Osman Chamseddine |
Medium Neutral Citation: | [2015] NSWDC 233 |
Hearing Date(s): | 14 May – 28 May 2015 |
Date of Orders: | 18 September 2015 |
Decision Date: | 18 September 2015 |
Jurisdiction: | Criminal |
Before: | Knox SC DCJ |
Decision: | Sentenced to an aggregate period of imprisonment 15 years with a non-parole period of 10 years |
Catchwords: | CRIMINAL LAW – sentence – (x4) aggravated sexual intercourse with a child between the age of 10 and 14 years, and (x2) aggravated indecent assault of a child under the age of 16 years – bus driver: child under authority: hearing impaired victim – |
Legislation Cited: | Section 66C(2), and section 61M(2) of the Crimes Act 1900 (NSW) |
Cases Cited: | R v Muldoon (unrep, 13/12/90, NSWCCA), R v Sea (unrep, 13/8/90, NSWCCA) per Badgery-Parker J, R v T (1990) 47 A Crim R 29, R v Campbell [2005] NSWCCA 125, R v PGM [2008] NSWCCA 172, Corby v R [2010] NSWCCA 146, and GSH v R ; R v GSH [2009] NSWCCA 214, GAT v R [2007] NSWCCA 208 at [22], R v Hibberd (2009) 194 A Crim R 1 at [56], R v Da Silva (unrep, 30/11/95, NSWCCA), per Grove J at [3], R v King [2009] NSWCCA 117 at [36], R v Yates (1984) 13 A Crim R 319 at 326; [1985] VR 41 at [48]; R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159, R v TAB [2002] NSWCCA 274; R v BJW (2000) 112 A Crim R 1, Huynh v R [2015] NSWCCA 167, R v Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23 at [13] – [17]; R v Zerafa [2013] NSWCCA 222; (2013) 235 A Crim R 265 at [93], R v Dennis (unrep, 14/12/92, NSWCCA), R v Johnson (unrep, 16/5/97, NSWCCA), R v Holyoak (1995) 82 A Crim R 502, R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27], R v GSH [2009] NSWCCA 214 and Wray v R [2014] NSWCCA 166, R v Jurisic (1998) 45 NSWLR 209 at 227; R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [52]; and Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [31] |
Category: | Sentence |
Parties: | Regina (Crown) |
Representation: | Crown Advocate: Mr Metcalfe |
File Number(s): | 2014/97947 |
Publication Restriction: | Order restricting the name and any other material tending to identify the victim or members of her family pursuant to section 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) |
Judgment
CHARGES
On 28 May 2015, Osman Chamseddine (“the offender”) was convicted by a jury following a trial at Parramatta on four counts of aggravated sexual intercourse with a child between 10 and 14, and two charges of aggravated indecent assault of a child under 16 years. Those counts are set out as follows:
“(1) Between 1 June 2009 and 30 November 2009, the offender had sexual intercourse with MP, a child then of or above the age of 10 years and under the age of 14 years, namely 10 or 11 years, in circumstances of aggravation, namely she was under the authority of Osman Chamseddine.”
(2) “Between 1 June 2009 and 30 November 2009, the offender assaulted MP and at the time of the assault, committed an act of indecency on MP, a child then under the age of 16 years, namely 10 or 11 years.”
(3) “Between 1 June 2009 and 30 November 2009, the offender had sexual intercourse with MP, a child then of or above the age of 10 years and under the age of 14 years, namely 10 or 11 years, in circumstances of aggravation, namely she was under the authority of Osman Chamseddine.”
(4) “Between 1 June 2009 and 30 November 2009, the offender had sexual intercourse with MP, a child then of or above the age of 10 years and under the age of 14 years, namely 10 or 11 years, in circumstances of aggravation, namely she was under the authority of Osman Chamseddine.”
(5) “Between 1 June 2009 and 30 November 2009, the offender had sexual intercourse with MP, a child then of or above the age of 10 years and under the age of 14 years, namely 10 or 11 years, in circumstances of aggravation, namely she was under the authority of Osman Chamseddine.”
(6) “Between 1 June 2009 and 30 November 2009, the offender assaulted MP and at the time of the assault, committed an act of indecency on MP, a child then under the age of 16 years, namely 10 or 11 years.”
Counts 1, 3, 4 and 5 are brought pursuant to section 66C(2) of the Crimes Act 1900 (“Crimes Act”). The maximum penalty for each offence under this section, separately, is 20 years. There is no standard non-parole period for these offences.
Counts 2 and 6 are brought pursuant to section 61M(2) of the Crimes Act. The maximum penalty for each offence under this section, separately, is 10 years. There is a prescribed standard non-parole period of 8 years for each offence separately.
Facts
The evidence given at the trial which is consistent with the jury’s verdict and which I find to be the case is as follows:
The complainant, MP (“Ms MP”), was born in August 1998, meaning that she was between the ages of 10 and 11, and in 4th grade, at the time of the relevant incidents in 2009.
Ms MP is and was, at the time of the offences, both deaf and with limited vocal abilities. The trial was conducted with an Auslan interpreter signing Ms MP’s evidence with verification by a signing translator also in attendance.
Ms MP lived at home with her parents, in the outer western suburbs of Sydney, at the time of the offences. It was the custom for her to be collected first by the offender and then for a route to be followed (which was set out in exhibits before the jury) to school and then the reverse route followed back to her home from school.
She was the first child to be collected on the way to school and the last child to be dropped off on the return route. The normal time for her to be returned back to her home was about 3:30pm. That evidence become relevant in terms of the opportunity that the offender had to deviate from the route followed, such that she was not in the company of any other students when the offender took her to an isolated industrial area in Lyn Parade. A police drive-through of the relevant route followed. The area where Ms MP indicated the events had taken place was played before the jury via a video recording.
The offender was a taxi driver, employed by a contractor, Mr Abdul Wahab Kassem, who, in turn, had the contract with the Department of Education to provide transport services for children with disabilities to and from their homes to the local school. At the relevant time the offender was aged about 60.
Identification
The offender was not Ms MP’s normal driver. It appeared that he had taken over the driving for a short period of time prior to the date of the assaults. Ms MP gave identification evidence of him as being a person of Middle Eastern/Iranian appearance and around 50 years old (at the time of the offence) (Child Interview Transcript 5.12.13 Q/A 42). Further, she identified him in a photographic array of 20 people (Exhibit 6). A video of her selection of the offender was played before the jury. It was not an issue throughout the trial that he was the driver at the relevant time, given the run sheets produced by the taxi company.
Ms MP’s mother gave evidence that during the relevant periods covered by the payment schedule records (exhibit 11) when the offender was employed by RSL cabs that the person “Osman” was the only driver who picked up and dropped off Ms MP.
Incidents
Each of the events constituting counts 1 to 6 involved the offender diverting from the regular route to Ms MP’s home and stopping the car in Lyn Parade, a short distance from the street where Ms MP was living at the time. All the offences took place in the taxi on the route back from school. Ms MP was the only passenger in the car at those times. The offences occurred between a range of dates, sometime between June and November 2009. It was clear from Ms MP’s evidence (T 30 lines 15 to 19) and accepted by the jury that the offences occurred over at least 4 discrete occasions within a 3 week period, namely one incident in the first week, then twice in the second week, then once in the third week (Child Interview 5.12.13 Q/A 26 and 27).
Ms MP stated in her interview with police (5 December 2013 Q/A 76), which became Exhibit 2, that when the offender touched her, her body “…was frozen” from fear; that she could not say stop, and that she “didn’t know how to say don’t touch me”. She further stated in that interview (Q/A 29) that she tried but could not get out of the taxi on those occasions, as she was too young to know where to go. She also said that the offender told her not to tell her parents or her teacher, and that she said “ok” because she was frightened (Q/A 121). Her evidence was that she understood what the offender said to her because of her ability to lip-read.
Count 1:
a. The first count involved the offender driving to an area of Lyn Parade. He stopped the car, reached across and under her skirt, and touched her underneath her underpants, on and inside her vagina. Ms MP gave evidence with the aid of diagrams about the extent of the digital penetration being beyond and within the lips of the labia (“on the outside inside the lips”). She also gave this evidence with respect to the other counts.
b. Ms MP stated in her police interview (Q/A 79) that he touched her quickly at least on this occasion.
Count 2:
a. The second count occurred when she was seated in the back of the taxi van (T 33 line 37). This offence occurred on the same occasion as either of counts 4 or 5, as Ms MP stated it happened on the third or fourth occasion (T 33 line 23).
b. Ms MP described the offender as getting out and into the rear of the van closing the door. He then manipulated her hand onto his groin and crotch area. Ms MP described his penis under his clothing as being hard (Child Interview Transcript Q/A 155). She further stated (Q/A 104) that the offender on this occasion lay down on the chair at the back of the taxi. She said that she was trying to scream to get people’s attention, but they could not hear her.
c. Ms MP said that the offender stopped because she told him that she had to go home at the right time, and that as a result of this, he got angry with her.
Count 3:
a. This count also involved the offender inserting his finger in Ms MP’s vagina.
Count 4:
a. The acts constituting this count again involved insertion of the offender’s finger into Ms MP’s vagina. She said “… it hurt, I couldn’t stop him”. She was frightened of him.
Count 5:
a. On this occasion, Ms MP described the offender as trying to pull her legs apart (Child Interview Transcript 5.12.13 Q/A 85). She tried to stop him but he was too strong. She said that she was scared and said “Stop, you can’t, you can’t try to touch me all the time” and that she was nervous (Q/A 99).
b. She also stated that she could feel the offender’s finger moving in her vagina, and that it “really hurt” (Child Interview Transcript 5.12.13 Q/A 100), and at one stage, she indicated that it hurt, by saying “Ow” (Q/A 103).
Count 6:
a. This count involved the offender touching Ms MP’s breast outside her clothes. Ms MP said that this offence occurred on the second occasion (T 33 line 46).
b. Ms MP said in the police interview (Child interview Transcript 5.12.13 Q/A 95) that whilst she was seated to the left of the offender, he used one hand to touch her right breast over her shirt, whilst simultaneously using his other hand to touch her vagina (which constituted count 5). She states (Q/A 97) that she was holding onto her shirt to try to protect herself, as the offender was “trying to get in there” (Q/A 99), meaning inside her shirt.
Complaint evidence
The complaint’s evidence relied on by the Crown was that of Ms MP’s comments to a fellow student with whom she was close. That student was Mr DAS (“Mr DAS”) who gave evidence by sign language in the form of a recorded interview, and also at trial by way of audio-visual link. His evidence was also certified.
There was a program conducted at the school they both attended on what was referred to as a White Ribbon Day, an initiative to raise awareness of issues of violence, particularly against women. On the following day, the teacher, HM ("Ms HM"), discussed with a classroom of girls the different forms of abuse, including emotional and sexual abuse, and that everyone has a right not to be abused. Ms HM said (T 76) that after this discussion, the boys came back into the classroom, then while she went to the storeroom, Ms MP and Mr DAS approached her.
Mr DAS’s evidence was that Ms MP had told him at school that she had been touched inappropriately, and following that discussion, Mr DAS said to Ms MP that she ought to raise her allegations with the teacher, Ms HM. Ms HM said that when Ms MP and Mr DAS approached her, Mr DAS prompted Ms MP, who told Ms HM that she had been taken to a place by a taxi driver when she was in primary school, and there, he had touched Ms MP inappropriately. Ms MP confirmed that this taxi driver was not the same taxi driver as the one who was currently driving her to and from high school (T 79). Ms MP then told Ms HM (T 80) that she agreed to Ms HM informing WW ("Ms WW"), the then head teacher of the support unit at RTHS ("the school") but did not want her mum to be told because she did not want her to be upset.
Thereafter Ms MP was interviewed by officers of the child sexual assault unit, in particular by Detective Potts, on about 5 December 2013. Events proceeded from there.
Ms MP’s evidence was that she did not tell her parents earlier after the incidents because she was “frozen in fear” and she was frightened to tell her mother and father, as the offender had directed her not to.
The complaint evidence both to Mr DAS as well as to the teacher, Ms HM, and the police were essentially consistent with each other.
Issues at trial
The substantial issues at trial were:
a. whether the offender was the person who committed the acts as described by Ms MP; and
b. whether those acts occurred;
c. what routes were followed by the offender from her school to home and, in particular, whether there was a deviation to the area in or near Lyn Parade.
Comments on evidence at trial
It is appropriate that the following matters are noted. The jury were given written outlines of the elements and also had the transcript of the evidence. The directions given to them are set out in the transcript. They deliberated in excess of 3 ½ days before returning their verdict.
Ms MP’s evidence was given clearly and concisely within the parameters and limitations of the Auslan/signing interpreter evidence. Ms MP’s evidence was recorded. It was my observation that she did not make any attempt to exaggerate what she said had occurred nor to feign any emotional over-reaction. A DVD was played of a ‘walk’/drive-through conducted by the police with Ms MP and Auslan interpreters on the route followed by the offender with her on the way to and from school (Exhibit 9).
In particular, her evidence as to the crucial aspect of where she went in the relatively isolated area of Lyn Parade involved a direct and immediate identification of where the acts were said to have taken place.
In terms of the crucial issue of identification, there were two photographic line-up arrays conducted. One involved Ms MP, and another involved her mother, EP ("Ms EP"). DVDs of the two procedures were played (Exhibits 6 and 14 respectively), and printouts of the photo array were tendered (Exhibits 7 and 15 respectively). Ms MP identified the offender further from the array containing the other person who may have driven her from time to time. Mr Kassem, the other driver at the relevant time, was not identified as the person who assaulted her.
The offender gave evidence and denied that he had ever taken Ms MP to Lyn Parade, and that he had never touched her inappropriately as she had suggested.
There was some lack of precision as to exactly which months the events occurred leading to the range of dates on the particulars under the indictment. However, in the circumstances of the indictment and the age periods specified in that section, that is of minor significance for these purposes.
Evidence on sentencing proceedings
Victim Impact Statement
Ms MP provided a victim impact statement, which she read to the court on sentence. It included reference to her fear when the events were happening, in particular, that “she was scared of the guy, scared he would do it again each time I saw him driving the bus”.
Ms MP felt depressed and upset; she was frightened, especially of drivers, and stressed. She continues to feel distrustful of men and does not like to be around men other than her father.
The incidents have had a continuing impact on her. She said that “I felt like he changed my life. It’s changed me”.
My observation of her from the trial was that she was an intelligent, thoughtful young woman who was clearly following the proceedings on the questions put to her. The effect on her is clearly long-lasting and complex, as evidenced not only from her Victim Impact Statement, but her demeanour throughout the trial and sentence proceedings.
It is important that the sentence recognises the harm done to the victim, Ms MP, the extent of which may only fully come to light in her later years. In SW v R [2013] NSWCCA 255, it was said that sexual abuse of children of very tender years will inevitably give rise to psychological damage emanating from (at least) the confusion in the young mind of the victim of abuse. Unlike in that case, where the victim was then aged 6, I do not consider Ms MP to have then been in her tender years. However, she was undoubtedly in her years of pre-adolescence, and in those circumstances, the full extent of the harm that this offence has caused may not be fully appreciated until she gets older.
Harm to victim
Defence counsel also relies on EG v R [2015] NSWCCA 21 at [28] – [31], as to the Victim Impact Statement and the Crown submission that the harm suffered is greater than could normally be established.
This is difficult to assess in those circumstances. Clearly the harm is not insignificant. She has been clearly affected but, essentially due to the support she has received from various sources, she has reached a situation where she has emerged with the attitudes she now has, and is quietly confident given the circumstances. I do not find it has been an aggravated feature in those circumstances.
However, in all such cases, the hurt and other impacts must be looked at in the context of the particular victim.
Evidence of the offender
The offender did not give evidence on the sentencing proceedings. He gave evidence at the trial, as did the character witnesses called on his behalf.
The offender is a 65 year old man of Lebanese origin. He immigrated to Australia in 1981 and has remained here since.
Prior to his incarceration, he lived with his family in the western suburbs of Sydney. He has 4 children, all of whom are adults.
Importantly, he has no prior convictions of any kind.
Psychologist’s Report
A report has been tendered from Chris Probets dated 5 August 2015.
It provides that the offender had a difficult childhood in Lebanon, as his family was very poor and his parents separated when he was six years old. The offender stated that he lived for a period with his grandfather in a very poor slum area, but moved back in with his father at age 14.
At best, the offender’s early education can be described as tumultuous. He was taken in and out of school from a young age, so that he could work, to alleviate the poor financial situation of his family. He had completed year 4 and attained only basic Arabic literacy skills by the time he had been taken out of school. He then resumed school at 14, after his father had taken him back. After 2 years, he was again taken out of school and spent several years doing unskilled heavy timber work, and his duties were restricted to labouring and cleaning. He later left that job and commenced work at a textile retail shop, where he worked for about four years.
The offender also reported a medical history including back pain, which appears to have been caused by heavy labour. A motor vehicle accident has left him with neck and shoulder problems. He also has kidney problems, high blood pressure, and gout and an enlarged prostate gland. The report states that he is taking medication for each of these issues and was consulting two specialists for his kidney problem prior to his incarceration.
The psychologist assessed the offender as having a low mood, indicative of moderate depression, as he was finding his situation difficult. The psychologist, Mr Probets, also stated that the offender was particularly upset for his family as they relied on him to do all of the driving.
Assessment of risk of re-offending
He was assessed as being in the low risk category of re-offending, his score being 1 – in a scale of zero to 10. This is corroborated by the psychologist’s finding that he presents an extremely low risk of reoffending, due to his personality, demeanour, attitudes and his current marital status and family commitments.
The psychologist, Mr Probets, reported that being pushed out of home by both his father and his grandfather, and the subsequent feelings of rejection by his family, appears to have had a strong adverse impact on him. He stated however, that these feelings of rejection were, up until the time of his incarceration, being realised by his care for his family, including spending time with his children and grandchildren, and other young people associated with the family.
Mr Probets recommended that the offender undertake treatment for coping with his current situation, and resolving anxiety and depression which appear to have developed as a result of his conviction. He reported that it would probably not be useful (and in any event, would likely not be allowed) to undertake specific sex offender treatment as he is pleading his innocence and therefore is not showing any remorse.
Further, his opinion was that the offender does not require psychological treatment in order to reduce the risk of him re-offending as he, Mr Probets, did not find any symptoms, attitudes, or behaviour that could indicate any such risk of re-offending, and therefore there was no disorder or other risk factor to treat.
He recommended instead, that the offender could participate in the CORE program that operates for low risk offenders. This is a low-risk version of the CUBIT program. However, it was conceded that the offender would need to admit his guilt in order to participate in this program. Mr Probets suggested instead that in the absence of any acceptance by the offender of his guilt, he could also participate in the Deniers Program.
Pre-Sentence Report
A report has been tendered from Mr Mahmoud Elsayed and dated 13 July 2015. Many aspects of this report are in line with the psychologist’s report as outlined above.
The report writer had been in contact with the offender’s wife, who confirmed that their relationship was stable and supportive, and free of domestic violence and drug and alcohol issues. The offender’s wife described him as being a religious man incapable of such offending behaviour, and confirmed that he has the support of his children.
The report states that after the offender’s arrival in Australia in 1981, he continued to work as a labourer. However, stable employment was difficult for him as he had very limited English and, as a result, the longest period of continuous employment was for five months, during the period that he was working for the Assisted School Travel Program in 2009.
At the time of his incarceration, the offender was in receipt of the Aged Disability Support Pension.
The report writer also described the offender as being cooperative, though presenting a low mood, and having described the conviction as ‘wrong’ and denying the offence generally.
Further, the offender told the report writer that had he engaged in the sexual activity that took place, this would have led to sexual penetration or ejaculation.
The report also referred to an assessment conducted by a psychologist from Forensic Psychology Services dated 1 July 2015 that confirmed that the offender is within the low risk category as compared with other male sexual offenders, and that as a result of this level of risk, he would not be considered a priority for specialised treatment within the sex offenders’ programmes.
That assessment also provided that in any event, given the offender’s language limitations, he would likely find it difficult to participate in or profit from such treatment programmes. The assessment recommended that the offender might benefit from a comprehensive assessment once sentence proceedings are finalised, in order to identify whether there is any evidence of sexual or psychological dysfunction that need to be addressed within the term of the sentence.
Given the low level of risk, the Pre-Sentence Report writer stated that the offender is unlikely to benefit from a period of supervision by Community Corrections. However, if a period of supervision is ordered, case management strategies would need to include a referral to psychological services and monitoring stability.
Further, the offender was assessed as being unsuitable for a Community Service Order due to his physical health concerns as outlined above.
Character evidence
Evidence was given as part of the accused’s evidence during of the trial from four testimonial/character witnesses, namely from his family and in-laws.
The four character witnesses were all relatively young women who indicated either that they had been looked after by him during their early years, or had had their children looked after by him, without any kind of incident or approach whatsoever. Further, the combined effect of their evidence was that they would all trust the offender to look after their children.
Ms Joanne Chaaban gave evidence (T 216 to 218). Ms Chaaban is the offender’s nephew’s daughter, and had spent extensive time alone in the offender’s care from the age of 4 through to 15 or 16. She said that the offender would drive her to and from school, shops, and her friends’ homes. She described him as a respectful and quiet man who does not like drama.
Ms Janana Chadric gave evidence (T 219 to 221). Ms Chadric is the offender’s daughter-in-law, and met the offender when she was about 15 years old. She said she had spent a lot of time with him and his family, and described the offender as a gentle, kind, caring and loving man. She said that he was good with the grandchildren, and that he cooked, cleaned and did all of the work around the home. She had never seen him act inappropriately around people, particularly children.
Ms Jiji Salah gave evidence (T 222 to 225). Ms Salah is the offender’s niece. She gave evidence that when she was younger, from around the ages of 5 to 14, she would spend considerable time with the offender, and she and her siblings would stay the night at his home while her father would work late. She too described the offender as a goodhearted man, who had never acted inappropriately or in a way which made her feel uncomfortable.
Ms Careva Tomic also gave evidence (T 226 to 229). Ms Tomic is another of the offender’s daughters-in-law, and had known the offender for fifteen years. She said that she had lived with the offender’s family from the age of 17 to 22 and, since having children, had the offender collect her daughter from day care regularly. She described him as a quiet, humble and kind man, who had never acted inappropriately with her daughter or herself.
The Crown case, with respect to those character references, was that each of the witnesses was related to the offender, either by blood or marriage. Further, that the offender and each of the witnesses’ families were part of the Lebanese community, and that they were part of a close-knit extended family, therefore drawing comparison to the relationship between the offender and the victim, who was not Lebanese nor a familial relation.
This evidence is relied on as character evidence. It is also summarised in exhibit S4.
Further references were tendered on sentencing proceedings. Firstly, by Mr Salah Mansour (exhibit S 8), who is the offender’s brother-in-law. He has known the offender for over 30 years, and has always found the offender to be a trustworthy, decent and reliable man. He, like the other witnesses who gave evidence during the trial, said that the offender was willing to help people.
A reference was also tendered by Mr Shawky Salah, who is also the offender’s brother-in-law. Mr Salah also said that he has known the offender to be a decent, reliable and trustworthy person, and that the offences are in contrast to his reputation as such. He said that he would still continue to be around his family and friends.
Prior good character
The issue of the prior good character of the offender requires consideration of s 21A(5A) of the Crimes (Sentencing Procedure) Act 1999, which provides:
“(5A) In determining the appropriate sentence for a child sexual offence, the good character or lack of previous convictions of an offender is not to be taken into account as a mitigating factor if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence.”
Here, in my view, the applicant’s lack of prior convictions was not a mitigating factor on the basis that “his good character was a factor which was of assistance to him in the commission of these offences”.
That is because he would not have been employed to be the driver of these children if he had a prior conviction of any kind involving children, as each driver is required to clear a ‘working with children’ check with the Department of Transport (T 91 and 92).
As was said in O’Brien v R [2013] NSWCCA 197 per Adamson J, a case involving the sexual abuse of a girl by an offender who had befriended her family, the offender’s good character was not used favourably towards the offender, as he had “used his good character to gain access to the victim and to gain her trust”. The offender in this case was not a friend of the family. However, he had obtained the trust of her parents and Ms MP’s school through his capacity as a taxi / bus driver for the students.
Remorse / contrition
The offender continues to deny his involvement in any of the activities as detailed by Ms MP.
The Pre-Sentence Report stated that when the offender was discussing the offences, the offender accepted that he would take a different route home as he was not familiar with the area. He further reported that the victim, Ms MP, was free to sit anywhere in the van, and was not forced to sit near the offender.
The psychologist’s report also stated that the offender maintained his innocence. Despite this position, the psychologist reported that the offender was fully aware of the seriousness of the offences.
Consideration
Here, what was involved was a series of assaults which took place on a hearing and speech impaired young girl who was between the ages of 10 and 11, by an older man who was in a position of trust, in that Ms MP was under his direct care and supervision.
The whole purpose of the provision of publicly subsidised and supervised transport with an assessed contractor was and is to ensure that disadvantaged children in the position of this young and vulnerable girl could be guaranteed safe and responsible conduct from the time she left her parents’ home on the way to and from school.
Ms MP’s evidence was that when the offender became the “new driver” she was nervous about having a new driver (Child Interview Transcript 5.12.13 Q/A 19). What was also important in this regard was the fact that the acts occurred in isolated areas. The offender selected and controlled the route which was followed. He was an experienced driver who presumably would have known there were few people passing by who could either observe what was happening or could have been called upon to help in the unlikely event that the young girl with this disability was able to make known her protestations about what was going on. Ms MP at the time was a girl of average build, of about 4’ 6” in height. The offender was an older man of about 5’ 8” and of average build.
In relation to the various counts, depending on which count is concerned, he either reached across the seat or got into the rear of the taxi van. There was nothing the young girl could do. Her disability imposed limitations on her ability to scream for help or to attract the attention of passers-by. In any event, it was unlikely that she could have attracted that attention given the locale of the offences, that is, the relatively isolated area which the offender had selected and to which he had driven her.
While the level of penetration appears to be relatively slight, the criminality must be considered in the light of all the other evidence, including Ms MP’s age, her particular circumstances, which were self-evident to the offender, and factors such as the length of the trips involved.
The departure by the offender from the established route to and from school to the home of Ms MP was clearly intended to provide him with the opportunity on the separate occasions on which these events occurred to indulge in the activities pursued.
The offences may well have been opportunistic, at least on the first occasion.
I have considered the case of RL v R [2015] NSWCCA 106 and find that at least from the second occasion, the offences also must have involved a level of premeditation and planning, given that the victim was taken to a remote location.
Offences against vulnerable children
The fact that the victim, Ms MP, was young has been taken to be an aggravating factor only in sentencing the offender for counts 1, 3, 4 and 5, as her age was taken to be an aggravating feature and therefore an essential element of the offence in counts 2 and 6.
For all of the offences (counts 1 to 6) however, I have taken Ms MP’s special hearing and speaking needs into account as an aggravating factor, particularly as I have accepted that Ms MP’s disadvantages made her more vulnerable in the circumstances. There was no doubt that the offender was aware that Ms MP was not consenting, nor is it relevant to the charge as she is a minor. She was particularly vulnerable in that she was unable at the time of each of the offences to verbalise her protests or attract help in a way that other individuals without those special needs would have been able to do.
Carrying out acts of this nature against a child, let alone a child with these self-evident vulnerabilities and disadvantages, can only be described as reprehensible. Any assault, let alone sexual assault and particularly a sexual assault against a child of tender years and with the self-evident vulnerabilities of Ms MP also requires a condign sentence to indicate that there can be no possibility of anybody being in any doubt whatsoever about the heinous acts which took place on the evidence of Ms MP. In this regard, I do not accept defence counsel’s submission that the offences are far from the most serious of their kind (Defence submissions page 2). The offence may not have involved “grooming” as that term is normally interpreted but clearly, that course of action was not necessary where the offender could rely on Ms MP’s constant presence on the bus and, at relevant times, on her own.
The evidence which is becoming increasingly available on sentencing proceedings such as this with the constant references in the victim impact statements which are tendered in this and other courts, in addition to the publicly available research material flowing on from the hearings of the Royal Commission on Institutional Responses to Child Sexual Abuse, make it clear that offences against children and young children in particular have long-lasting consequences to children’s abilities to trust others.
That possibility of impact is only exacerbated when the abuse occurs by persons in position of authority who make it clear and tell their victims not to make disclosures of what appear to be shameful acts, as was the case here.
Child victims of sex abuse frequently have to carry around the burden of what has happened to them without disclosing it to anybody or any authority. Their trust of those in authority can often be shattered. Where there has been a breach of the trust, the impact on children of having to keep secrets – here reinforced by the offender’s insistence that she not tell her parents what had happened – may well be more pernicious and long-lasting.
Breach of duty / trust
I have taken into account the abuse by the offender of his position of trust as an aggravating factor only for counts 2 and 6: R v Muldoon (unrep, 13/12/90, NSWCCA). It is not to be taken into account for 1, 3, 4, and 5, as it is not an element of that offence.
That breach of duty and trust involved not only a basic infringement of the safety which Ms MP was entitled to expect as well as a breach of the duty owed to her parents, her carers, and her teachers, as well as the community. There are four separate classifications of people and institutions who relied on the offender and those employing him to provide an appropriate standard of care, supervision and responsibility. This was manifestly breached for each of the people and institutions concerned.
Ms MP’s parents needed to be able to rely on their daughter being safely transported to and from school. The school needed to be able to discharge its duty of care for students with a special needs background to ensure their safety, travelling to and from the school community. Through the Department of Education and its subcontracting transport arrangements, the school needed to be able to ensure that a system of checks were put in place such that persons of good character would be driving the children involved. Given the isolated circumstances in which the offender was with Ms MP, there is little else that could have been done other than to rely on the offender to exercise his position of authority appropriately. He did not do that.
All these breaches require a condign sentence to be imposed in relation to the breaches of duty involved in relation only to counts 2 and 6.
It is difficult to ascertain what enquiries were made by Mr Kassem who was the contractor directly employed by the Department of Education to provide drivers of appropriate competence and character. In any event, in the circumstances that this offender has no prior convictions and was a family man who would have been able to provide character references of the same kind as were provided by his family in court, it was accepted that the offender was considered to be of good character sufficient to be entrusted with the job.
Objective criminality
In assessing the objective criminality for each of counts 1 to 6, I find that the offender did exploit the youth and vulnerability of Ms MP. This is a significant matter in determining where each offence lies in the spectrum of offences of that nature: R v Sea (unrep, 13/8/90, NSWCCA) per Badgery-Parker J.
It is also the case that, in terms of the position occupied by a given offence on the spectrum of offences of this kind, the younger the child, the more serious the offence: R v T (1990) 47 A Crim R 29. Here, Ms MP was aged 11, that is, she was aged closer to 10 than she was to 16 - in relation to counts 2 and 6, and in relation to counts 1, 3, 4, and 5, she was closer to 10 than she was to 14.
It is of considerable significance when assessing the objective seriousness in the indecent assault of a child to consider the actual character of the assault, including the degree of physical contact involved: GAT v R [2007] NSWCCA 208 at [22], the degree of genital connection, the duration of the contact, and age difference between the offender and the victim. Here, there was no threat of force, although the young girl was clearly scared - and scared for a long time.
In relation to counts 2 and 6 (indecent assault), I have considered this case against other cases of this nature, including R v Campbell [2005] NSWCCA 125, a case where Hulme J at [31] refers to the offences in that case as being “within the worst category of the range of possible offences for aggravated indecent assaults”. I have also considered R v PGM [2008] NSWCCA 172, Corby v R [2010] NSWCCA 146, and GSH v R ; R v GSH [2009] NSWCCA 214. As these cases suggest, it is of considerable significance when assessing the objective seriousness in the indecent assault of a child to consider the actual character of the assault, including the degree of physical contact involved (as set out in GAT v R [2007] NSWCCA 208 at [22]). In each of counts 2 and 6, there was no actual genital connection. However, in count 2, the offender manipulated Ms MP’s hand to touch the offender’s crotch, but over his pants. In count 6, the offender touched Ms MP’s breast outside her clothes.
In Corby at [77], it was also held that the age difference between the offender and the victim (in this case about 50 years) can also aggravate the offence.
I find that the criminality of counts 2 and 6 are at the lower end of the range of objective criminality essentially because there was no additional violence or terror involved over and above what is inherent in the acts themselves. Further, I find that those acts, while reprehensible, occurred contemporaneously or at about the same time with the other acts constituting the offences under counts 1, 3, 4, and 5.
When assessing the objective criminality of counts 1, 3, 4 and 5, I am aware that there is not a clear stance in the authorities as to whether consensual sexual intercourse by digital penetration is generally less serious than an offence of penile penetration. Rather, each case depends on its own facts: R v Hibberd (2009) 194 A Crim R 1 at [56]; R v Da Silva (unrep, 30/11/95, NSWCCA), per Grove J at [3]. I do, with respect, adopt the reasoning of the Court of Criminal Appeal in R v King [2009] NSWCCA 117 at [36], where it was held:
“What is to be considered is the type of penetration in all the circumstances surrounding the offending. The type of penetration is simply one factor and by itself does not indicate how serious the particular offence is… had the intercourse in this case been penile penetration it would have been an offence of very great seriousness if for no other reason than because of the age of the child. In such a case the seriousness of the offence may have been above mid range. But the fact that it was not penile penetration does not mean that the offence is reduced to low range”.
I do accept that distinction, particularly as penile vaginal intercourse carries risks of venereal disease and pregnancy, compared with digital vaginal intercourse. Further, I accept that penile vaginal intercourse generally is a greater affront both physically and mentally, involving a greater intrusion of privacy. However in the circumstances, and given the particular vulnerability of the victim, Ms MP, by reason of her disabilities, I do not consider the offences in counts 1, 3, 4, and 5, to be below mid-range. The offences must be seen against the particular circumstances of the victim, her vulnerability, and the circumstances of those offences.
Further, I do not find that the short duration of the offences is a factor that reduces the seriousness of the offending: MH v R [2011] NSWCCA 230. Rather, I consider the offences to have been short in duration only because of the time constraints that the offender was under, in dropping the victim off at home from school on time. The relevant time periods of the incident need to be considered in the light of the overall length of the trips where Ms MP had to remain in the taxi bus. However, it is recognised that focusing on a short duration has the capacity to undermine the long term consequences of this sort of conduct.
I therefore find that the criminality of counts 1, 3, 4, and 5 are what might be classified as mid-range.
Standard non-parole period
My reasons for departing from the standard non-parole period in relation to the aggravated indecent assault offences in a situation where there has been no plea to the relevant charges are that the offender is aged 65 and married and of prior good character. He has limited English. He has also been a person who has been a strong family man, carrying out appropriate child caring and assisting functions for many years.
I am unable to find that the offender has shown any remorse or contrition for the offences. Rather, he continues to deny the offences.
The Crimes Legislation Amendment (Child Sex Offences) Act 2015 introduced a standard non parole period of 9 years for offences under s 66C(2) in June 2015 for offences after that date. While I emphasise that this has not had any bearing on my findings or sentence to be imposed, I do consider this to be a reflection of the seriousness of such matters. The offender is entitled to be sentenced in accordance with the relevant regime at the time.
Concurrence, accumulation and totality
I have had regard to the principles of totality as referred to in Pearce v The Queen (1998) 194 CLR 610 at [45] and subsequent decisions, and the necessity of not imposing a crushing sentence, particularly given the offender’s age. A sentence should not connote the destruction of any reasonable expectation of useful life after release: R v Yates (1984) 13 A Crim R 319 at 326; [1985] VR 41 at [48]; R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159. The Court of Criminal Appeal (Spigelman CJ, Howie and Whealy JJ) said in R v MAK; R v MSK at [17] that in many cases of multiple offending however, the offender may not be entitled to the element of mercy entailed in adopting such a constraint.
Here, the offence involved one victim, but she was assaulted on four separate occasions over a three week period (T 30 lines 15 to 19) in 2009. The sentence needs to reflect the total criminality of the offences.
The criminality in the four sexual intercourse matters (counts 1, 3, 4, 5) is substantially the same.
The criminality involved in the two indecent assault matters (counts 2 and 6) is somewhat different and accordingly, that is reflected in the different sentences for those offences. However, to ensure that a crushing burden is not imposed, particularly given the age of the offender, in my view, the sentences on indecent assault matters should be wholly accumulated with those on the aggravated sexual intercourse matters.
General deterrence
As I have set out above, a penalty must be imposed which properly reflects the principles of general deterrence, particularly in circumstances where the victim is vulnerable, by reason of her age and her hearing impairment, and the offender was in a position of trust: R v TAB [2002] NSWCCA 274; R v BJW (2000) 112 A Crim R 1.
In particular with these types of offences, the sexual abuse of children may give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52], and have long term and serious physical and psychological effects.
Personal deterrence
Here, the offender has no prior convictions. He has the support of his family. He continues to deny the offences.
He has not shown any remorse or contrition for the offences. Indeed, in that regard, as the Crown has pointed out and I have set out earlier in relation to the Pre-Sentence Report, the offender told the writer that had he engaged in the sexual activity as portrayed by the victim, this would have led to sexual penetration or ejaculation.
Hardship to family
The psychologist’s report states that the offender reported that his family were very distressed and upset at what had occurred. All of his family, including his wife and children, do not believe that he could have committed these offences. His wife is having difficulties coping as the offender did many of the household duties including shopping and driving.
I refer to the recent case of Huynh v R [2015] NSWCCA 167 per Davies J, in particular the need to read that consideration consistently with the common law so that it is necessary for the offender to show exceptional hardship to a third party to ameliorate an otherwise appropriate sentence: R v Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23 at [13] – [17]; R v Zerafa [2013] NSWCCA 222; (2013) 235 A Crim R 265 at [93].
Here, I do not consider the hardship that will be caused to his family as exceptional or above what would normally be the case in the circumstances. His children are adults who have their own respective families. There is no evidence that his wife would not be able to copy in his absence, albeit with difficulty.
Delay
The offences occurred in late 2009, were reported in December 2013, and proceeded to trial in May 2015 – that is some 6 years after the offence took place.
In R v Dennis (unrep, 14/12/92, NSWCCA), James J (Hunt CJ at CL and Carruthers J agreeing) said that:
“It is not infrequently the case that sexual offences committed against a child of which only the offender and the child have knowledge, are first revealed by the child to a third person only years afterwards when the child has attained a certain level of maturity. In such cases the mere passage of time between the committing of the offences and the disclosure of the offences and the apprehension of the offender is of little weight as a factor in mitigation of penalty.”
The lapse of time between the commission of the offence and notification to police should be a mitigating factor only where the delay would cause unfairness to the offender: R v Johnson (unrep, 16/5/97, NSWCCA) per Priestley JA. In this case, I do not consider there to be any significant disadvantage or detriment to the offender arising from the delay: R v Holyoak (1995) 82 A Crim R 502.
Delay will ordinarily be a mitigating factor where it has resulted in significant stress for the offender, or left him or her, to a significant degree, in uncertain suspense: Sabra v R [2015] NSWCCA 38. However I am not aware of whether the offender has suffered anxiety or stress over and above what is normally the case for someone awaiting trial.
If the delay is to be relied on by the offender as a mitigating circumstance to consider for his sentence, the detrimental effect of that delay must be established by the offender on the balance of probabilities: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27]. In the circumstances, I do not find that this is established on the balance of probabilities.
Authorities
I have had regard to the comparable sentences as set out in the Public Defenders website. In particular with respect to counts 2 and 6, I have considered GSH v R ; R v GSH [2009] NSWCCA 214 and Wray v R [2014] NSWCCA 166.
I have also had regard to the comparable sentences for counts 1, 3, 4 and 5, including NW v R [2011] NSWCCA 178. In that case, the offender pleaded guilty and was sentenced for one count of s 66C(2). There were further matters taken into account on a Form 1, namely, a further s 66C(2) offence of aggravated sexual intercourse with a child between 10 and 14; an offence of producing child pornography; and an offence of aggravated indecent assault. Taking those matters into account, the starting point for the indicative sentence for the s 66C(2) offence was one of eight years imprisonment for an offence involving cunnilingus. That particular is not relevant here.
Section 66C(2) of the Crimes Act currently imposes a maximum penalty of 20 years. Prior to 13 June 2003 however, the maximum penalty for an offence under that section was 10 years.
It is well established that the increase by the legislature in the maximum penalty, in this case, for conduct proscribed by s 66C(2) must be reflected in the sentences which courts impose: R v Jurisic (1998) 45 NSWLR 209 at 227; R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [52]; Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [31].
JIRS Statistics
I have been referred to and had regard to the JIRS statistics. The sentencing statistics for s 66C(2) offences, where there are multiple offences, are taken from a pool of 34. Of that number, all bar one of the sentences were for a term of actual imprisonment.
I have also been referred to the sentencing statistics for s 61M(2) offences, (where there are multiple offences) are taken from a pool of 52, of which 83% of sentences were for a term of actual imprisonment.
I am aware of the authorities in this regard and have referred to the statistics merely as a guidance as to a range of sentences.
Aggregate terms
Given that there was one victim, with approximately the same kind of criminality involved on the sexual assault offences, this is an appropriate matter where there should be an aggregate sentence imposed.
It then becomes necessary to indicate what sentences would have been imposed in relation to the various counts.
I indicate the following sentences would have been imposed for each offence:
i. Count 1
(i)A fixed term of 6 years imprisonment
ii. Count 2 (indecent assault)
(ii)A non-parole period of 24 months with a balance of term of 12 months
iii. Count 3
(iii) A fixed term of 6 years imprisonment
iv. Count 4
(iv)A fixed term of 6 years imprisonment
v. Count 5
(v)A fixed term of 6 years imprisonment
vi. Count 6 (indecent assault)
(vi)A non-parole period of 8 months with a balance of term of 4 months
That aggregate sentence will effectively reflect a period of partial accumulation of 15 months on each of the sexual intercourse counts (counts 1, 3, 4, and 5).
As noted elsewhere in these remarks, the sentence for counts 2 and 6 (aggravated indecent assault) will be wholly concurrent with those on the aggravated sexual intercourse matters.
Special circumstances
This has been the offender’s first time in custody. He has limited English. He is aged 65. There is no expression of remorse or contrition. That is generally regarding as a first step on the pathway to rehabilitation. He is 65 and assessed as having a low risk of re-offending.
His circumstances are likely to mean that he will find imprisonment more onerous than younger English speaking offenders. He has no prior convictions, nor blemishes on his correctional history. Accordingly, I find that special circumstances exist and vary the statutory ratio to one of two thirds (67%) of the head sentence.
Sentencing options
It is not appropriate to impose any lesser penalty other than a period of actual imprisonment, given the circumstances of the offences and of the victim, Ms MP.
In any event, an intensive correction order may not be made in respect of a sentence of imprisonment for offences of this nature: s 66 Crimes (Sentencing Procedure) Act 1999.
Commencement date
The offender has been in custody, bail revoked, since 28 May 2015. The offender was also in custody for early periods, bail refused, which relate solely to this offence.
His sentence date will reflect the totality of those periods in custody.
Sentence
1. Taking into account a finding of special circumstances, pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 the offender is sentenced to an aggregate period of imprisonment of fifteen years to be served by way of a period of non-parole imprisonment of ten years commencing on 15 March 2015 and expiring on 14 March 2025 with an additional term of five years imprisonment expiring on 14 March 2030.
Recommendations for custody
2. I recommend that during the offender’s incarceration he be placed on the Sex Offenders Program and specifically the Deniers Program during an appropriate period of his sentence such that he will receive the maximum benefit from it on his release.
3. I direct that a copy of the various reports tendered on the sentencing proceedings accompany the offender with his admission into the custodial environment.
Parole
4. I recommend that when the offender is released on parole that he be subject to the following conditions: –
a. Whatever supervision is deemed necessary by Community Corrections (Probation and Parole) Service; and
b. The offender inform the Community Corrections service of any address in which he is living and any change of address not less than seven days before such change occurs.
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Amendments
26 October 2015 - Details of orders made pursuant to section 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) set out in 'Publication Restriction' section of coversheet.
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