R v RDW

[2019] NSWDC 488

District Court

New South Wales

Medium Neutral Citation:	R v RDW [2019] NSWDC 488
Hearing dates:	6 August 2019
Date of orders:	06 August 2019
Decision date:	06 August 2019
Jurisdiction:	Criminal
Before:	Judge W Hunt
Decision:	Sentenced to an aggregate term of imprisonment for a period of 7 years with a non-parole period of 4 years. Compounded with a pre-existing sentence is an effective overall sentence of 12 years with an effective non-parole period of 9 years.
Catchwords:	CRIMINAL LAW - Sentence – Form 1 – Sexual assault – Indecent act with a person under the age of 16 years – Sexual assault with a person under the age of 16 years – Indecent act with a person under the age of 16 years – Breach of trust - Totality
Legislation Cited:	Crimes Act Crimes (Sentencing Procedure) Act.
Cases Cited:	R v BJW [2000] NSWCCA 60
Category:	Sentence
Parties:	The Crown RDW
Representation:	Counsel: Mr A Norrie – The offender   Solicitors: Director of Public Prosecutions – The Crown
File Number(s):	2017/367288
Publication restriction:	There is to be no publication of the name of the complainant or any material which may tend to identify the complainant.

JUDGMENT

1. HIS HONOUR: RDW is before the Court for sentence in relation to five offences, counts 1 to 5 on the indictment and two other matters which are to be taken into account on a Form 1 which attaches to count 2. Counts 1 to 5 are offences in breach of a section of the Crimes Act, now repealed, being s 61E(2), being a sexual assault (Cat 4) indecent act with a person under the age of 16 years and the relevant maximum penalty for that matter is two years imprisonment and no standard non-parole period has application.

2. Counts 2, 3 and 4 are each offences in breach of a section of the Crimes Act, now repealed, being s 61D(1) of the Crimes Act. Each being a sexual assault (Cat 3) without consent have sexual intercourse with a person under the age of 16 years. In relation to those offences, each of those offences have a maximum penalty of five years imprisonment and no standard non-parole period has application.

3. In relation to count 2, I am invited by the parties and will take into account two other offences that are on a Form 1 that I have signed and which has been signed by the parties. Those are two offences in breach of s 61E(1) of the Crimes Act, which on indictment each carry a maximum penalty of six years and those are sexual assaults category 4 an indecent assault with a indecent act with a person under the age of 16 years.

4. These reasons should be understood to be extempore reasons delivered on the day that I considered the evidence and both read and heard the submissions of the parties and in the context of a list that included proceedings of a defended nature being determined judge alone. It is common ground between the parties that the offender was serving a sentence at the time these criminal proceedings were all commenced by what is known as a future CAN and that he was never bail refused in relation to these matters. The commencement date of these criminal proceedings was 8 November 2017.

5. The offender’s counsel contends that that ought be the earliest commencement date of any sentence imposed and while the Crown acknowledges that that is the earliest possible date, the Crown contention is that for reasons connected with the lack of relationship between the offences for which those sentences are being served and these matters, that the Court would exercise its discretion to commence any sentence for RDW in relation to these matters at a later date. I will return to that issue in due course.

6. The facts in relation to the matters are agreed between the parties and I extract the following material. The offender is the natural father of RW who is the victim in relation to all of the offences before the Court. In 1983 the offender, his wife and his young family moved to Nowra. The facts in relation to count 1 are that sometime between April 1982 and April 1984, the victim entered the toilet of the home where the offender was already located. The offender shut the door, sat on the toilet and had the victim sit on the ground in front of him. The offender had explicit pornographic magazines with him and began to masturbate in front of the victim. While masturbating and pointing at the photographic images, the offender said to the victim “Look at this”. He also said “Look at their faces, they really like what they’re doing. It looks fun”. The victim at that time was five years of age.

7. When the offender was being interviewed by police about unrelated matters that had come to attention on 1 December 2014, he indicated that he would use books while he was on the toilet, because he did not have much of a sexual relationship with his wife. He stated:

“I didn't plan this crap you know, I was just on my own and I had some books on the floor and that and the next thing the door’s opening and the eldest daughter, she’s only little, she’d come in and I said ‘Out, out, out. Go out. I want to be with you dad’ and I couldn’t cover everything up and she’s...at me and I’ve tried to close stuff up...I was too late she seen some stuff. I said ‘Sometimes girls do that sort of thing’.

8. There are some extracts from the interview that are agreed in the facts. The facts in relation to count 2 and 3, which are each breaches of s 61D(1) being sexual intercourse without consent with the victim being under the age of 16 years, have a factual overlap and I will deal with them both at the same time. Between April 1984 and April 1986 the offender was with the victim in the main bedroom of the family home. Both the offender and the victim were naked. The offender forcibly held the victim down while he used his mouth and tongue to touch and penetrate the victim’s vagina. The offender also used his fingers to penetrate her vagina. During the assault he said things to the victim including “Doesn’t that feel good. Do you like it? How about when I do this?” The victim states that she can remember the offender’s mouth being on her vagina and his hands being inside her as well. The offender took hold of the victim and threatened her not to tell anybody. The victim was six years old at the time.

9. During the interview that I have already referred to, the offender told police “I kissed her down there and I shouldn’t have”. That represented an express disclosure of criminal behaviour at that point unknown to police. When asked where “down there” is, the offender made it clear that he was referring to the victim’s vagina. Sometime later the victim’s mother returned home and the victim was holding her genital area. She said “I’m sore there” and her mother saw that the victim’s vaginal area was red. Suspecting that the victim may have some kind of infection, the victim’s mother sought the opinion of the offender. It is alleged that the offender looked and stated that he had no idea what could be wrong. The victim’s mother said that RW did not complain about the issue at that time and she thought nothing more of it.

10. The facts in relation to count 4 are that the victim recalls an incident when she was sitting next to the offender on a couch in the lounge room of the family home with a blanket covering them and sexually explicit material, most likely a pornographic video, was being shown on the television. The offender told the victim to watch the television and asked her questions about what she was seeing and was asked to take notice of certain things that were happening. While this was happening, the offender used his hands to touch the victim inside her vagina, used his hands to touch her over her chest area and all over her body. He also used his hand to masturbate himself in front of the victim and forced the victim to touch his penis. The victim was six years old at the relevant time.

11. The facts in relation to count 5, which is the final matter on the indictment is a further offence in breach of s 61E(2). The victim recalls another specific incident when she was with the offender in the ensuite bathroom. The offender used pornographic magazines showing them to the victim and pointing out things that the people displayed were doing. The offender forced the victim to watch while he masturbated himself before ejaculating into a large clear plastic container. The offender showed the victim the ejaculate and described what it was and what it looked like. The victim remembers feeling that the offender was trying to teach her about ejaculation. The victim was six years old at the relevant time.

12. I will briefly state the facts in relation to the two matters that are set out on the Form 1 to be taken into account in relation to count 2. Between April 1983 and April 1984, the offender got the victim out of the bath and would not allow her to use a towel to dry her body. She stood while he used his bare hands to touch her entire body in an attempt to get the excess water off. After touching her in this fashion, she was ultimately dried with a towel and the victim recalls how it was strange that she could not just use the towel. At that point the victim was five years old.

13. The second matter on the Form 1, at a time between April 1985 and April 1986, while residing in a different house at an address known to the Court, the victim recalls another specific incident where the offender was in the shower with her. He picked her up and lifted her entire body up towards the shower head, having the effect that the water was directed straight at her vagina. At the time the victim was seven years of age.

14. It falls now to determine the objective seriousness of the various offences. It was conceded, responsibly in my view, by the offender’s counsel that all the offences were serious in their nature. Both the parties contend correctly that counts 2 to 4 inclusive are obviously the most serious given the maximum penalty then provided for those offences. In relation to each of the matters, the offending is aggravated by the fact that the offender gravely breached the trust that is implicit in the relationship between a father and a natural daughter and more particularly in circumstances where the victim was of tender years. The matters are also aggravated by the fact that the offences were committed in the victim’s home, in a place where she was entitled to feel safe both because of the physical location and also because of the proper relationship between a child and their parent.

15. Additionally, in relation to count 4, that matter is aggravated by the criminality comprising a number of criminal actions. Additionally in circumstances in which each of the offences specified conduct towards a person under the age of 16 years, the various ages that I have nominated have the effect of making these offences more serious than those say committed on a 15 year old.

16. Additionally, there was of course a significant age difference between the offender on each occasion and his young daughter. All of those matters will be taken into account in my assessment of the objective seriousness of the difference offences. I accept Mr Norrie’s submission that the facts are silent as to the duration of any of these incidents and there is nothing to suggest that the offences were aggravated by being for a prolonged period of time. I am really not able to make any particular finding about how long the offending took in each individual case. Each of the matters are mitigated by a plea of guilty. That is the only mitigating circumstance that I can identify.

17. In relation to the offending at count 1, the behaviour is made more serious because of, apart from drawing the five year old victim’s attention to pornography and masturbating in her presence, comments like “Look at this, look at their faces, they really like what they’re doing” can be consistent with some kind of grooming pattern and I find the objective seriousness of that offence of that to be at the middle range. Taking into account the other aggravating circumstances, each of counts 2 and 3 are made more seriousness, apart from the intrusion into the victim’s vagina, which is part of the gravamen of the offence. They are made more serious by the offender saying things to his six year old daughter, such as “Doesn’t it feel good? Do you like that?” and so on.

18. It is clear from the material in the facts that whether it is an action that constituted count 2 or whether an action that constituted count 3, after those offences the victim was left with some discomfort and reddening to her vaginal area. Each of those matters falls slightly above the mid-range of objective seriousness taking into account all of the aggravating circumstances. In relation to count 2 it is inevitable, consistent with legislation and authority that the two other matters on the Form 1 will place upward pressure on the sentence to be indicated for count 2 and that matters of retribution and specific deterrence have particular increased relevance because of the further matters on the Form 1.

19. In terms of the objective seriousness of the offending for purposes of count 4, once again the victim was a very tender years of age at six years old. As I have already indicated, I take the view that that matter is made more serious because there was a series of criminal acts. Taking into account all of the matters disclosed, the objective seriousness of that matter falls just below the mid-range of objective seriousness.

20. In relation to count 5, the objective seriousness of that matter, taking into account all of the aggravating circumstances is above the mid-range.

21. The offending at count 4 is particularly odious, because apart from the offender masturbating in the presence of his young daughter, it was made more serious by the offender physically ejaculating into a transparent container and drawing that to the victim’s attention. As I have said that matter falls just slightly above mid-range of objective seriousness.

22. Moving to some matters that are personal to the offender, there is nothing to suggest that the offender had committed any criminal offences at the time of the commission of these offences. However, the entirety of his criminal antecedents relate to sexual misbehaviour, either in relation to minors or in relation to a person with a cognitive impairment.

23. In May 2016 at the Grafton District Court, the offender was dealt with in relation to what seem to have been three separate sets of matters on a range of offences committed between May 2014 and June 2014, offences of sexual intercourse with a person with a cognitive impairment. The Court imposed an aggregate sentence of five years with a non-parole period of three years.

24. In relation to a range of offences of committing acts of indecency with a victim under the age of ten years, which were committed on 16 December 2013, the Court imposed a distinct aggregate sentence of five years with a non-parole of three years for that set of matters and additionally, in relation to two counts of indecent assault of a person under the age of 16 years, which were committed between 8 January 2014 and 11 January, it says 2014, but I suspect it might be 2015. In any event for those matters, the Court imposed a fixed term of imprisonment of nine months. I will return to the structure of those sentences in due course.

25. With those matters on his record, notwithstanding that good character was to be given lesser weight in dealing with this class of offender, he is to be denied the leniency that would flow to somebody before the Court for these particular offences without any criminal history. There is some other work the criminal antecedents have to do, to which I will return to again in due course.

26. The victim of these matters who is observing these proceedings from elsewhere by AVL link, delivered her victim impact statement orally ( a copy of which is part of the Crown bundle). In delivering that victim impact statement RW very eloquently expressed the very significant impacts that the offender’s offences had had on her, both at the time of the offending and ever since. I will have regard to that victim impact statement in the way contemplated by the legislation and by authority.

27. It is relevant to observe that the community rightly regards with abhorrence offences of this nature, that is, sexual trespass against children and more particularly sexual trespass against children by a natural parent. It is inevitable that general deterrence is of great significance in sentencing offender’s such as RDW and particularly so, where the offender as here is in a position of trust the victim. See R v BJW [2000] NSWCCA 60 at para 20. It is necessary for me to have regard to all the purposes of sentencing as provided by s 3A of the Crimes (Sentencing Procedure) Act. Mr Norrie responsibly concedes that the s 5 threshold has been crossed and it is inevitable that RDW will be sentenced to full-time imprisonment in relation to these matters.

28. I am alive to the effect of s 25AA(3) of the Crimes (Sentencing Procedure) Act which, in my words, obliges the Court to have regard to current sentencing attitudes and current states of knowledge in community attitudes to sexual offending against children. Of course I am constrained by the maximum penalties that were provided for the relevant time, but where it might be that offenders who were sentenced back in the early 1980s when things were less well understood about the lasting impacts of this kind of behaviour on victims, I will sentence RDW, having regard to current attitudes. RW’s expressions in her victim impact statement simply served to underline what is generally understood about the odious nature of this kind of offending and the long term impact of it.

29. RDW’s subjective case relied on a careful report of Dr John Machlin, clinical psychologist. I am prepared to give more weight to the observations of Mr Machlin than might otherwise be the case in circumstances in which notwithstanding that the offender did not give evidence, he could not really be seen to have made many self-serving statements. Some of the things that he had to say seemed to be confirmed either by the facts in this matter or by his criminal history.

30. I need to stress that neither Mr Machlin nor myself had any detail of the fact sheets or allegations in relation to the offences for which RDW has been sentenced in the past. Although Mr Machlin considered the possibility based on RDW’s history provided to him by way of self-report, that he gives what Dr Machlin describes as a “credible account” of suffering a depressive condition at the time of the offending which may have been a major depressive episode. There is nothing in Dr Machlin’s report that permits the view that there is any causal relationship between that depression if it existed at that time and the offending.

31. I do take into account that the offender’s wife, that is the person who he married after separating from the victim’s mother, has died since he has been in custody and he is now in receipt of medication to deal with unsurprising depression, given that event and his current circumstances.

32. In relation to the issue of remorse, given that there is material that when being interviewed about other matters in December 2014, the offender volunteered details about one piece of offending against the victim and expressed his sorrow about his behaviour, together with some other evidence from the victim that at a time before she provided her statement to police in 2015 in the event of her sister’s hospitalisation, that the offender endeavoured to apologise to her for misdeeds which I infer to be the sexual misbehaviour the subject of these matters. Those things together with a limited expression of remorse to Mr Machlin and his plea of guilty, which is some evidence of remorse persuade me that he is remorseful.

33. A different topic is as to whether he is insightful. It can be seen in relation to his general comments about the facts that underpin count 1 in his interview with police back in 2014. He appeared to blame circumstances and provide what I describe as an “air brushed” account of that event. Relevantly, the following passage which indicates some limited victim empathy, but also counterpoints the lack of insight to be found in Mr Machlin’s conclusions and recommendations. Paragraph 6 of his report is as follows:

“My overall impression is that he recognises of the gravity of the charges and he displays some understanding of the impact on the victim. However, some of the distorted cognitions that are characteristic among sex offenders and also identifiable. He shows a lack of insight into his abhorrent sexual motivations at the time. He diminishes his responsibility with the idea that if his wife had been present or their marriage had been more fulfilling, the offences would not have occurred. He sees his behaviour as a product of his circumstances at the time and lacks a sense of internal control.”

34. In relation to a possible diagnosis of paedophilia and the impact on that for my view of his prospects of rehabilitation, Mr Machlin at the base of page 5 of his report says in summary “His paedophilic disorder was active under the circumstances surrounding his offences [these offences], but it is probably not applicable now.” Mr Machlin had details of other offences, but not the timing of them.

35. When one understands that these offences were committed in the early to mid-1980s and the offender’s recent passages of offending seem to have taken place between 2013 and 2014, it is difficult to see, particularly given one of those victims was under the age of ten and another of the victims under the age of 16, that his condition has subsided. I am not prepared to place any weight on Mr Machlin’s view that the paedophilic disorder is “probably not applicable now.”

36. It is common ground between the parties in terms of the timing of the plea, that the plea was entered at a circuit fixture where RDW’s matter was listed for trial but had not commenced. There had been some ongoing negotiations within the context of the circuit and the plea was entered on the second week. It is contended for RDW that the plea, notwithstanding the timing had utilitarian value because the victim did not have to give evidence and I accept that proposition.

37. Mr Norrie contended for a utilitarian discount and a range of 10-15% in the circumstances of the level of utilitarian discount. I exercise my discretion given the Crown’s concession about a discount in this order to consider that the proper utilitarian discount to be applied in the circumstances of this particular case is one of 10%. When in due course I come to announce indicative sentences, the 10% discount will be applied to each of those indicative sentences.

38. Having regard to the lack of insight demonstrated in the report to Mr Machlin, notwithstanding some level of victim empathy and some degree of remorse as I have found, I am unable to find that the offender has anything other than very guarded prospects for rehabilitation. I am not able to find that he is unlikely to reoffend. To express his lack of grasp as to the motivations for his offending against his daughter, against the backdrop of serving a sentence for criminal offences in relation to three other victims much more recently in time, does not bode well. Some level of insight is important to rehabilitation.

39. Having said that, I note that the offender has indicated to Mr Machlin and I accept that he is prepared to submit himself to treatment in custody and if he applies himself to treatment, together with his increase in age, given that he is now 69 years of age, it is possible that his prospects of rehabilitation will improve once he has some treatment and a greater level of insight as to what drives him to behave in this way.

40. I take into account that the offender’s life will be a very different and marginalised one by the time he is eligible for release into the community. He has no visitors in custody. His second wife with whom he had a challenging, but happy relationship is now deceased. Perhaps understandably, he has no contact with any of his five natural children and it is likely when he is admitted to parole that he will live out a lonely life.

41. I recommend to the State Parole Authority that consideration be given to imposing conditions that require continuing sex offender education in the community if and when RDW is released. Perhaps a parole condition in the circumstance forbidding him to be in the direct contact of those under 16 years would be protective of the interest of the community. I have determined to find special circumstances on a limited basis, that is as to the issue of totality.

42. The position is that the judge at Grafton District Court, in making the second aggregate sentence partially accumulative on the first aggregate sentence. The nett of those two sentences meant that the offender was sentenced to eight years with six non-parole period. That collective sentence, if I can use that expression, complied with s 44 of the Crimes (Sentencing Procedure) Act. That is the non-parole period was 75% of the total combined term. However, because of a further fixed term in relation to two final offences was made partially concurrent and partially accumulative on the non-parole period of that compound sentence, that had the effect that the non‑parole period to be served effectively was six years, six months with a period of eligibility for parole but for these matters, of 18 months. It is clear that that proportion does not conform with s 44 of Crimes (Sentencing Procedure) Act.

43. In relation to the issue of when this sentence should commence, I accept the submission of both parties that the fact that the offender was not bail refused formally in relation to these matters. The fact that he was serving those other sentences does not erode the Court’s ability to exercise its discretion to provide some kind of principled back date.

44. Against that proposition, I accept the Crown’s submission that there should be a degree of partial accumulation at the least in relation to the pre‑existing sentences. Although I accept Mr Norrie’s submission that it was available to the Court to back date as early as 8 November 2017, at the time the criminal proceedings for the instant offences commenced, I am persuaded having regard to the principles of totality that it is appropriate to make the aggregate sentence that I impose partially concurrent, but partially accumulative to the second aggregate sentence imposed by the judge at Grafton in 2016.

45. Given the approach that I have taken to the commencement date, it is inevitable that the fixed term of imprisonment of nine months that I have already referred to will be wholly concurrent with the non-parole period that I announce today. That is my intention.

46. RDW, I hope you understand more deeply perhaps by the end of today than you did at the beginning of the day, how egregious your misbehaviour towards your daughter was.

47. In relation to these matters the sentence that I am imposing is designed to deter other people who would behave in the same way, to deter you from ever behaving in the same way, to punish you, to reflect some level of condign punishment in relation to your misbehaviour, to denounce your conduct and to protect the community. In terms of the special circumstances that I find, the rearrangement between the non-parole period in the sentence I am about to announce and the whole sentence, is designed as I will explicate to have the effect that the whole “compound” sentence first commenced in 2014, will have a non-parole period of 75% and a period on which RDW is eligible for release to parole of 25% of the total compound sentence.

48. In relation to each of the five offences the offender is convicted. The indicative sentences are calculated after the application of a 10% utilitarian discount and are as follows: Count 1 an indicative sentence of 16 months. Count 2, taking into account the matters on the Form 1, an indicative sentence of five years and four months. Count 3 an indicative sentence of four years and two weeks. Count 4 an indicative sentence of three years and seven months and count 5 an indicative sentence of 18 months. As I have indicated I find special circumstances.

49. I impose an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act of seven years to date from 25 November 2019 and expiring on 24 November 2026. I set a non-parole period of four years to date from the commencement of the sentence and to expire on 24 November 2023, which will be the earliest date of release to parole.

50. It is my intention that the commencement of this sentence be partially accumulative by two years and partially concurrent by one year with a non-parole period in relation to the second aggregate sentence served by RDW. The nett effect (or what I describe as the compound sentence) that is arrived at by a combination of the sentence I have imposed, together with the pre-existing sentences, is that the total period of imprisonment that the offender will serve is 12 years with a non-parole period of nine years which conforms with s 44 of Crimes (Sentencing Procedure) Act.

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Decision last updated: 12 September 2019