R v RA (No 2)

[2019] NSWDC 463

District Court

New South Wales

Medium Neutral Citation:	R v RA (No 2) [2019] NSWDC 463
Hearing dates:	14 June 2019
Date of orders:	02 August 2019
Decision date:	02 August 2019
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	At [53]
Catchwords:	CRIME – sentencing after jury trial – assault with act of indecency – carnal knowledge of a girl under age of 10 years – historic child sexual offences
Legislation Cited:	Children (Criminal Proceedings) Act 1988 s 6 Crimes Act 1900 ss 61E; 67; 76 Crimes (Sentencing Procedure) Act 1999 ss 3A; 21A; 25AA
Cases Cited:	R v AA [2017] NSWCCA 84 SW v R [2013] NSWCCA 255
Category:	Sentence
Parties:	Regina (Crown) RA (Offender)
Representation:	Counsel: Ms K Tennant (Crown) Mr S Healy (Offender)   Solicitors: ODPP (Crown) Newton’s Law (Offender)
File Number(s):	2016/270427
Publication restriction:	Statutory Non-Publication Order regarding the name of the Offender and the victim

Judgment

1. The Offender appears before the Court for sentencing today in relation to two charges in respect of which he was found guilty by a jury. They are Counts 2 and what became referred to as 3A on an amended indictment. The Offender was found not guilty of Count 1 and Count 3B was an alternative count to Count 3A.

2. In sentencing, the Court has regards to the guidepost of maximum penalties as being an indication of the seriousness with which Parliament and the community considers the offending.

3. The two counts were:

1. Count 2, being an assault with an act of indecency, in breach of s76 and s61E of the Crimes Act carries a maximum penalty of six years imprisonment; and

2. Count 3A, being carnal knowledge of a girl under the age of ten years, in breach of s67 of the Crimes Act carries a maximum penalty of life imprisonment.

4. The Offender was born in 1963 and is now 55 years of age. The offending was committed between 29 August 1980 and 31 December 1981 when the Offender was aged between 16 and 18 years of age. The Offender was arrested and charged on 16 November 2017. On 21 August 2018 the Offender was committed for trial in the District Court from the Wyong Local Court.

5. The Offender faced trial from 25 March to 29 March 2019 on which latter date he was found guilty of the two charges previously mentioned. The Offender has been in custody since that date. The Offender also spent one day in custody upon his arrest and I understand it is agreed that the commencement date of the sentence should be backdated to 28 March 2019.

6. At the sentence hearing the Crown relied upon the Crown bundle (Exhibit A), together with helpful submissions from the Crown (MFI 1).

7. For the Offender a large amount of subjective type material was relied upon, including:

1. a letter from one of the Offender’s daughters, dated 13 June 2019 (Exhibit 1);

2. a letter from the other daughter of the Offender, dated 13 June 2019 (Exhibit 2);

3. a letter from the Offender’s sister, dated 13 June 2019 (Exhibit 3);

4. a letter from the Offender’s mother, dated 11 June 2019 (Exhibit 4);

5. a letter from a farm manager for whom the Offender has worked, dated 22 May 2019 (Exhibit 5);

6. a letter from the Offender’s brother-in-law, dated 11 June 2019 (Exhibit 6);

7. 1979 material from Fairfield Hospital (Exhibit 7);

8. a report by the medical superintendent at Fairfield Hospital dated 12 June 1980 (Exhibit 8);

9. the Offender’s helpful submissions on sentence (MFI 2); and

10. also after the sentence hearing the Court received and has had regard to the table prepared by Mr Healy of counsel for the Offender which sets out comparable verdicts which all have comparable sentences in similar verdicts over time (MFI 3).

8. As previously mentioned the matter proceeded to trial with pleas of not guilty. The facts upon sentence that are required to be determined by the Court must be consistent with the verdict of the jury. The Crown helpfully provided a summary of the objective facts which both parties agree are consistent with that verdict. Having considered the summary provided by the Crown and have regard to the transcript of evidence in the trial, I am satisfied that what has been provided by the Crown is an appropriate and reasonable representation of the factual evidence presented at trial and does not in any way infringe upon the verdicts entered by the jury.

9. The victim moved from Summerland Point to Gwandalan when she was nine years old. She lived with her mother, father and her brothers. The Offender came to visit the victim’s family at Gwandalan in the summer months. There is a utility area under the house which was accessible from the rear of the house between the septic tank and the back bedroom. The victim was still at Gwandalan Public School when these offences occurred and she left that school in 1981 when she was in Year 4.

10. With regards to the offences the victim went under the house and the Offender followed her. The Offender laid out a big towel on the ground and said “come and sit over here”. The victim did what she was told to do. The Offender then began talking to the victim and asked her how school was going. The Offender told the victim to lie down on the towel and he lay next to her talking to her.

11. The Offender then laid on top of the victim and kissed her a number of times on the left cheek. The Offender then pulled down the victim’s underpants and took off his own jeans and tried to have sex with her. The victim said the Offender was telling her she was pretty and kissing her left cheek whilst he was on top of her. The kissing on the cheek was the subject of Count 2.

12. The following facts relate to Count 3A. The Offender had his other hand in his groin area and she felt his hard penis. The victim felt his hard penis go over her clitoris and down to the entrance of her vagina. The victim said she felt a burning and stinging sensation when the Offender was at the entrance to her vagina. The victim said that he trying to push his penis into her, which was hurting and she said to him, “stop it hurts”.

13. The victim said that the Offender was pushing his penis in and out of her vagina and as a result her vagina was sore and her skin felt like it had been cut. The victim used her hands to push on his chest to push him off her while she was telling him to stop. The Offender kept saying “shush it’s okay, it’s okay, it will be all right”.

14. The victim went inside the house and ran herself a warm bath. The victim’s mother remembers that the victim ran a bath in the daytime which she thought was unusual. The victim looked down at her vagina before she got into the bath and noticed that it was red.

15. The victim first told her mother about being sexually assaulted or molested by the Offender within a week of the incident under the house at Gwandalan. When the victim first told her mother about the offences her mother told her that she was “a dirty girl” and to “stop telling lies”. The victim said she did not tell her mum about the offences on the day of the bath because she was scared she might be blamed.

16. Despite the parties accepting that this conversation or complaint occurred a week after the incident, my recollection of the evidence was that it occurred after the Offender had left the premises about a week or so thereafter. Nothing much turns upon that in terms of the objective seriousness of the offending but I note that inconsistency in the agreed facts and the evidence.

17. The victim next spoke to her mother about what happened about five years ago after the death of her fiancé. The victim first spoke to police in 2014 about the offences. On 1 July 2016, the Offender was first spoken to by police about these offences. In November 2017, he was extradited to New South Wales to be charged with these matters. Those are the agreed facts.

18. The Court has been assisted by a Victim Impact Statement prepared by the victim which demonstrated the effect that the offending had on her at the time and has had on her since. She told the Court via her statement that she no longer felt safe and protected by her parents and she lost trust in adults from that point onwards in her life. She said that she was fearful of adults, especially men and she was also troubled by the fact that she was not believed by others when she complained.

19. She has been battling with the ongoing trauma for some time which has impacted upon her relationships and marriages. She has been married twice and the subject of marital rape in the second marriage as well as verbal abuse and physical violence.

20. She is presently a single parent of four children to four different fathers. One of the children has a disability. Since first reporting the incident the victim has been the subject of pressure by family members including her father to abandon the charges against the Offender. She feels ostracised by her family adding to her trauma. She is undergoing therapy for post-traumatic stress disorder with a clinical psychologist and I expect that may continue. It is plain from the victim impact statement that the complainant suffered substantially from the Offender’s conduct.

21. A predominant factor relevant to the sentence is the objective seriousness of the offending. The starting point of the legislative guidepost which I have already referred. Next, one has regard to the particular circumstances of the offending and assessing the overall criminality, including any aggravating or mitigating factors to the extent they bear upon the objective gravity of the offending.

22. It is undoubted that child sexual assault offences have profound and terrible effects upon victims for many years, if not their entire lives. The victim Impact statement in this matter demonstrates that very fact. Such offences will ordinarily give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52].

23. In terms of objective seriousness the Crown submitted with regards to Count 2, that is the act of indecency, that the objective seriousness is well below the mid-range of seriousness when compared with other acts of indecency which are prosecuted in these courts. I agree with that submission.

24. With respect to count 3A, being carnal knowledge with a girl under the age of ten, the Crown identified the following factors as being relevant in determining the objective seriousness:

1. the age of the child. The victim was aged eight or nine at the time which is at the upper end of the range for this type of offending, that is offending pertaining to children under the age of ten;

2. the nature of the offence, particularly the sexual intercourse as submitted by the Crown. Penile/vaginal penetration is an objectively serious form of sexual intercourse. Whilst that is plainly true I will return to consider that matter after considering the Offender’s submissions;

3. how the offence occurred. It is submitted the offence was aggravated pursuant to s 21A(2)(ea) as the offence was committed in the safety of the victim’s home. I accept that submission and make that finding;

4. over what period the offence occurred. The evidence does not permit the Court to make a finding as to that matter;

5. the degree of force and coercion. It was submitted that there was some degree of force used by the Offender and that after the victim told the Offender to stop she used her hands to push him off. Whilst this may inform the seriousness of the offending it is not necessarily an aggravating factor;

6. any threats or pressure. There were no threats to the victim and the only pressure was that inflicted by the Offender and what he said to the Offender at the time of the offending, that is effectively to remain quiet and it will be all right; and

7. any immediate effect on the victim. The victim’s evidence which I accept is that she suffered immediate pain.

25. The Crown quite fairly conceded that the principles of R v AA [2017] NSWCCA 84 are enlivened. The Offender was himself a juvenile and not in a position of responsibility, trust or authority. Compared to crimes committed against children by those who are meant to care for them such as parents or other carers. This consideration does not arise in this case so as to aggravate the offending.

26. It was submitted on behalf of the Offender that Count 2 involved the Offender, a 17 year old, kissing softly a few times the cheek of the nine year old victim. In respect of Count 3A it was submitted that Crown’s submissions on objective seriousness are mitigated by the Offenders moral culpability at the time of the Offender being a juvenile who was immature. I accept that submission.

27. The other significant submission made on behalf of the Offender is that the offence of carnal knowledge is not as expansive as the modern offence of sexual intercourse. The offence of carnal knowledge requires penetration, whilst the modern offence of sexual intercourse covers a wider range of acts. I agree with that submission and it bears upon the findings of objective seriousness for the offences charged, that is the offending is established by specific acts rather than a possible number of acts which are to be taken into account in assessing the objective seriousness.

28. In relation to Count 2 I find the objective seriousness at the low end of objective gravity. In respect of Count 3A I consider that the objective gravity of the offending is just below the mid-range, having regard to the circumstances in which it occurred including the ages of both the Offender and the complainant.

29. The Offender’s subjective case is informed by a number of documents, including a Sentencing Assessment Report together with the documents provided on behalf of the Offender by way of testimonials or references. The report was authored by Shannon Mulligan who is a Community Corrections officer at the Silverwater Parole Unit. The author noted that the Offender has been a long-term recipient of disability support pension after suffering serious neck and spinal injuries in early adulthood. This Centrelink benefit has been supplemented by casual farm work.

30. The Offender continues to maintain his innocence in respect of the two offences. He reported that he had no sexual attraction to minors. He was referred for a pre-sentence consultation assessment by a Corrective Services Psychologist, incorporating completion of the Static 99 Risk Assessment. However, due to the Offender’s age at the time of the offending, the assessment was unable to be completed. It was considered however that the Offender would be deemed a low risk of sexual reoffending relative to its other male sex Offenders. I accept that finding.

31. With regards to insight into the offences he demonstrated some insight into the seriousness of his conviction but only upon himself. He stated that there was a financial motivation for a victim’s compensation payment as a motivating factor for the victim making allegations in the first place.

32. Six references from family members and others were tendered on behalf of the Offender. The references of his two daughters paint a picture of a man who cared for his children very well and now does the same for his grandchildren.

33. A detailed history of the Offender’s upbringing was outlined in the reference by the Offender’s sister. She was in court but not called as a witness. She recalled growing up with the Offender and her younger sister under the care of their two parents. She described their father as a controlling and violent man and they were forced to work on the farm everyday, only allowed to be inside to eat and sleep. She also recalled that all of the children were forced to leave school at an early age to start work.

34. The Offender’s sister also recalled that the children and their mother all received violence from their father, both physical and verbal violence. She recalled one occasion where the Offender was hit in the head with a house brick by his father.

35. Upon leaving the family home the Offender’s sister recalled that the Offender married and had two daughters and was a good father to them. His sister noted that her own children have fond memories of the Offender.

36. In 2017 the Offender and his second wife relocated to rural New South Wales to help care for the Offender’s mother. It was noted the Offender would go to her home and prepare meals and do jobs around the house. The Offender’s sister noted that since the Offender had been in custody their mother had not been the same and was concerned that she was giving up.

37. The Offender’s mother wrote a handwritten letter to the Court which noted a number of matters that her daughter had also covered in her letter. Despite the fact that the letter from the mother does not make any mention of the offences for which the Offender is being found guilty, I still found it informative.

38. A further reference from a farm manager noted that the Offender is a hard worker and a well-mannered and honest person. Like the letter written by the mother of the Offender, there was no mention of the subject offending behaviour. Nevertheless, I accept the character reference as being positive.

39. There was also a letter to the Court by the Offender’s brother-in-law which referred to him as being respectful, considerate, candid and a practical person.

40. I have also had regard to some historical medical records which were noted as being consistent with the recollections of injuries referred to in the references.

41. The Court may also have regard to statutory aggravating or mitigating circumstances particular to the Offender and the offending, the former to be proven beyond reasonable doubt and the latter are on the balance of probabilities. In this case there are no statutory aggravating factors other than the one I have already referred to in determining the objective gravity of the offending, mainly that it took place in the home of the victim.

42. I have been mindful of the fact that because the Offender continues to deny the offending occurred, none of the statutory mitigating factors relating to remorse and the like arise. It is noted however that the Offender has been a person of good character since the time of these offences, almost 40 years ago which informs the Court as to the risk of reoffending, which I find is low. I also find the prospects of rehabilitation are high.

43. In sentencing any Offender the Court engages in a process often referred to as instinctive synthesis, whereby the Court has regard to the objective seriousness of the offending and the subjective circumstances of the Offender to arrive at a sentence that best meets the purposes for sentencing set out in s3A of the Crimes (Sentencing Procedure) Act.

44. In my opinion the sentence to be imposed on this Offender will meet the purposes as they relate to this offending. In particular the adequacy of punishment for the offending to prevent crimes of this, to deter, not so much the Offender but others from engaging in similar offences. I do not consider the purpose of protecting the community from the Offender arises as I do not regard him to be a risk to the community. I do not consider the purpose of promotion as rehabilitation of the Offender to arise as I believe that he has rehabilitated in the time since the offending occurred. Next is making the Offender accountable for his actions, that plainly exists in his and most other cases. The Court must also denounce the conduct of the Offender and recognise the harm done to the victim. The harm done to the victim was significant and continues to affect her.

45. The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances. I am satisfied that the sentence to be imposed for this Offender meets the test of proportionality.

46. Before imposing a sentence of imprisonment I must be satisfied having considered all possible alternatives that no other sentence is reasonable or appropriate. In this case the Crown contended that the threshold under s5 as it is referred to has been met and that a term of imprisonment is warranted for both offences. Counsel for the Offender submitted that whilst the s5 threshold had been crossed the offence of carnal knowledge of a ten year old girl, it was submitted that the s5 threshold had not been crossed for the indecent assault offence. I accept the submissions of counsel for the Offender.

25. I find that the s 5 threshold has not been crossed for that offence, or expressed differently, I find that there would be sentences other than imprisonment that would adequately punish the Offender for that offending. To sentence the Offender to a term of imprisonment for Count 2 would be a crushing sentence, effectively punishing the Offender twice for the more serious act. In respect of Count 3A I find that no sentence other than imprisonment is reasonable.

26. The parties agreed that special circumstances existed based upon this being the first time the Offender has been in custody and also by reason of his age. I accept those submissions and I find special circumstances.

27. In considering the appropriate sentence I have had regard to both the statistics plus also the table of comparative cases provided by counsel on behalf of the Offender (MFI 3). I observe s25AA of the Crimes (Sentencing Procedure) Act, which requires the Court to sentence an Offender for a child sexual offence in accordance with the sentencing patterns and practices at the time of the sentencing and not at the time of the offence. The sentence to be imposed is not inconsistent with other sentences for like offending.

28. I am also mindful of the fact that at the time of the offending the Offender was under the age of 18. Whilst the primary offence is obviously a serious offence and is to be dealt with according to law, I have had regard to the factors referred to in s6 of the Children (Criminal Proceedings) Act, in particular the need for rehabilitation and other matters.

29. Given the time that has elapsed since the offending occurred and the present age of the Offender, a lot of the matters referred to in s6 have no application in this case. There is a tension in this matter between the need for general deterrence and the Offender’s status as a child himself at the time of the offending. Section 25AA as I have already mentioned requires the sentence to reflect current sentencing patterns and practices before arriving at the sentence. I have had close regard to the table prepared by counsel for the Offender which sets out in very helpful detail the pattern of sentencing for similar offending over time.

30. Sir you are convicted of assault with an act of indecency in contravention of s76 and s61E of the Crimes Act. You are further convicted of the offence of carnal knowledge of a girl under the age of ten years in breach of s67 of the Crimes Act.

31. In respect of the act of indecency you are convicted with no further penalty imposed, pursuant to s10A of the Crimes (Sentencing Procedure) Act. In respect of Count 3A, being carnal knowledge of a girl under the age of ten you are sentenced to a non-parole period of three years to date from 28 March 2019 to expire on 27 March 2022. You are further sentenced to a balance term of two years to commence 28 March 2022 and expire on 27 March 2024. The total effective sentence is five years. You will be eligible for consideration to parole from 27 March 2022.

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Decision last updated: 04 September 2019