R v Reed (a pseudonym)

[2022] NSWDC 714

District Court

New South Wales

Medium Neutral Citation:

R v Reed (a pseudonym) [2022] NSWDC 714

Hearing dates:

18 November 2022

Date of orders:

18 November 2022

Decision date:

18 November 2022

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence of 6 years 6 months with a non-parole period of 4 years.

Catchwords:

CRIME – Intentionally sexually touch child aged between 10 & 16 years (DV) - Aggravated - sexual intercourse child aged between 10 & 14 years (DV)

SENTENCING - Relevant factors on sentence -sentence after trial – stepfather - victim impact - structure of sentence-health concern - harshness of imprisonment

Legislation Cited:

Crimes Act 1900

Crimes (High Risk Offenders) Act 2006

Cases Cited:

Clarkson v R [2011] VSCA 152

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

MRW v R [2011] NSWCCA 260

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

R v Gavel [2014] NSWCCA 56

R v Herring (1956) 73 WN (NSW) 203

R v Van Ryn [2016] NSWCCA 1

SB v R {2022] NSWCC164

Tepania v R [2018] NSWCCA 247

Texts Cited:

The social dynamics and impacts of institutional child sexual abuse; D T Kenny, Judicial Officer’s Bulletin, September 2017, Volume 29 No 8.

Category:

Sentence

Parties:

George Reed (the offender)
Director of Public Prosecutions

Representation:

Counsel:
Mr J Hibbard (for the offender)

Solicitors:
Maguire McInerney Lawyers (for the offender)
Mr J Loosley (for Director of Public Prosecutions)

File Number(s):

2020/00187380

Publication restriction:

Pseudonyms have been used for the names of the offender and the child victim.
Pursuant to s15A Children (Criminal Proceedings) Act 1987, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child victim. Identifying information has been removed from this version of the judgment to comply with the statute.

SENTENCE – EX TEMPORE REVISED

Introduction

1. On 3 June 2022, after a short trial, before Judge Hatzistergos, a jury found George Reed guilty of two serious offences.

1. Intentionally touch a child between 10 and 16: s 66DBA Crimes Act 1900, and

2. Aggravated sexual intercourse with a child aged between 10 and 14 years: s 66C2 Crimes Act 1900.

2. As the trial judge has left the bench to take up another position, the matter was listed for sentence before me today. Both parties agreed that rather than my attempting to form my own view of the facts based on all the evidence at trial, agreed facts would be put before this court. Reed is to be sentenced based on those facts.

3. Reed spent two months in custody after his arrest in June 2020. He was then granted strict bail. He kept to that bail. He was returned to custody following the verdicts on 3 June 2022. It is accepted that a custodial sentence must be imposed, and it is agreed that the sentence should date from 30 March 2022.

Facts

4. Reed was born in 1966. He commenced a relationship with the complainant’s mother in about 2015.

5. The complainant was born in 2008. She and some of her siblings lived with their mother and the offender. He was regarded as her stepfather. In late 2019, the family moved home. Shortly after the move, the offender entered the child’s bedroom where she was lying on the top bunk of her bed. He closed the door and climbed the ladder of the bed. He then placed his hands down the victim’s pants and touched her genitals on the inside of her clothes. He moved his hand and fingers around her genitals, using his fingers to touch the inside of her vagina. He did not say anything to the child. The child thought his behaviour was “gross.” She hated what he was doing but was too scared to say anything. After he finished touching her she started to cry. He then walked out of the bedroom.

6. In early 2020, the child’s mother asked her to go with the offender on a trip to pick up takeaway food for dinner. As the two were driving in the family car, the offender said to the child, “This is what I want to do to your mum, but she doesn’t let me.” He then reached over and placed one of his hands down the child’s underwear, touching the front of her vagina. The child said, “Stop. I don’t like it…I don’t want you to do it anymore.” This was the first time the child had been able to tell the offender to stop touching her. The offender became angry and pulled his hand away, saying, “fine.”

7. In early 2020, the child told a school friend that the offender had been touching her vagina for two years. Her friend told her grandmother. Soon after, the grandmother contacted the police. The child participated in a police interview soon after. On becoming aware of the allegations, the offender agreed to attend a local police station where he was cautioned and placed under arrest.

Objective seriousness

8. Every act that involves the sexual exploitation of a child is serious. There is an absolute prohibition on any sexual activity with a child: Clarkson [2011] VSCA 152; R v Gavel [2014] NSWCCA 56; R v Van Ryn [2016] NSWCCA 1. The law is strictly enforced. It is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity. It follows that every act that involves the sexual exploitation of a child is serious and is treated seriously by the courts. The guidance offered by maximum penalties and, where applicable, standard non-parole periods, makes that clear.

9. Every sentence must be appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances. The objective seriousness of the offending must be determined in the light of the entirety of the facts and the circumstances in question.

10. In assessing the objective seriousness of individual matters, I look to the acts done, the character of the acts, the degree of physical contact. All are of significance. Other matters bearing on the assessment include; the age of the child relative to the range encompassed by the offence, the age difference between the perpetrator and the child and any relationship between the perpetrator and the child.

11. It is accepted that the two offences must be considered in context. That context is revealed in the agreed facts. This includes, the child saying, “I don’t want you to do it anymore”, and the child telling a school friend that the offender had been touching her vagina for two years. But I can only sentence for the specific matters before the court.

12. I also note that the act of intercourse was brief and no physical pain was reported, but as the child herself said, it was “gross” and disturbing. Continued psychological harm is presumed.

13. Mr Hibbard, who appeared at trial and on sentence, submitted that the matter was low in the scale of what can be very demeaning acts. But, as Mr Loosely, who instructed at trial and now appears on sentence submitted, the breach of trust, the age of the child, and the relationship increased both offences objective seriousness.

14. I agree with his submission that it was more serious than at the lower end of the scale. In saying that, I recognise the difficulty in determining an objective “range.” Sentencing is too complex for that and the facts available to the court, court is too complex for that. Care must be taken not to adopt a staged approach to sentencing. Matters to which I will refer shortly. While some judges find it helpful to state where in some notional range offences occur, when I assess the seriousness of offences, I prefer to discuss the significance of the matters established by the facts before me.

15. Here, as the child’s stepfather, Reed’s responsibility was to protect and care for her, not use his position to abuse her for his own sexual satisfaction. She was aged 11. She was in her own bed at her own home, or in the family car under his control. She was, effectively, helpless. The time over which the offences occurred is not an entirely irrelevant consideration. It is one of the objective facts that must be considered, as it goes to the degree of physical contact involved.

16. But, as Mr Loosley submitted, I cannot not diminish the seriousness of offence by saying, “it was just brief contact.” Far from it. It is important to note that the offence - both offences - are made out by the fact of indecent touching or by penetration to any degree. And, while an extended episode of touching or intercourse elevate the objective gravity of such offences, the converse does not apply. That the offences are of short duration has some significance, as the extent - the circumstances of the actual offending and the extent of any physical harm and degree of contact must be considered.

17. I must also take into account that offending of this nature is capable of having profound, long-term, and deleterious effects on their victims, both physical and psychological. Accordingly, the duration is often irrelevant to the shock and distress of the experience.

18. I note a study published in the Judicial Officer’s Bulletin, from an expert in the field, which notes that the effects of child sexual abuse can depend on many factors. These can include: the nature, number, frequency of the abuse experiences. Symptoms vary; so too, do the behaviours following experience of child sexual assault. The courts understand it is common to find adverse outcomes: The social dynamics and impacts of institutional child sexual abuse; D T Kenny, Judicial Officer’s Bulletin, September 2017, Volume 29 No 8.

19. I note that abuse of trust and abuse of authority are distinct concepts often arising out of the same facts: MRW v R [2011] NSWCCA 260. I must be cautious in giving undue weight to an abuse of a position of trust and not double count: MRW at [78]. Abuse of trust and authority are distinct concepts, although often arising out of the same facts. Count 2 was an abuse of authority case. I must, however, be cautious in giving undue weight to an abuse of a position of trust, where abuse of authority is an aggravating factor to avoid double counting.

Maximum and standard non-parole period

20. Any sentencing exercise is guided by the maximum penalty and standard non-parole period, where applicable. Intentionally sexually touch a child carries a maximum penalty of 10 years imprisonment.

21. Aggravated sexual intercourse with a child between 10 and 14 carries a maximum penalty of 20 years imprisonment; there is a standard non-parole period of 9 years.

22. Careful attention to maximum penalties and standard non-parole periods is required, not just because Parliament has legislated them. Here, both provide sentencing measures to be balanced with all other relevant factors.

23. I am required to give content to the standard non-parole period. I have to assess objective seriousness without reference to matters personal to the offender: Muldrock v The Queen (2011) 244 CLR 120 at [27]; [2011] HCA 39; Tepania v R [20018] NSWCCA 247 at [103] to [120]. But, I cannot engage in a staged approach to sentencing: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25at [28] and Muldrock v The Queen, The process of comparing and contrasting the actual offence with an abstract one is not necessary, nor is it necessary to identify features of the offence which were or were not taken into account when considering the role of the standard non-parole period: Tepania.

Victim Impact Statement

24. There is a Victim Impact Statement, and I have received and read it. The child complainant told me about how anxious, stressed, and pressured she was when giving evidence. She told me the “only thing I ever wanted was for him to not be around me anymore.” She thanked everyone who helped her for their support. I will take that statement into account. The child appears to show considerable maturity for her years.

Record

25. It is accepted that the s 66C offence may have breached a Community Correction Order for an unrelated type of offence. Reed gave a promise to the court to be of good behaviour. He broke that promise. I note that he has been on strict bail without any recorded breaches. His prior matters, apart from the fact of the breach, do not disentitle him to leniency.

26. I note during his time in custody he has been housed on Special Management Area Protection (SMAP), but he has been able to find work in the goal. It is expected that some form of protective custody will continue, given his age and the nature of the offending.

27. On first entering custody, he would have had to endure quarantine and other measures designed to minimise the risk of spread of COVID infection. I am sure, like every prisoner in New South Wales, he has suffered lockdowns and is regularly confined to cells. It is expected that this practice will continue while ever the risk of infection is present in our community. He may, in the future, suffer restrictions on visits and entry into work or programs, as is notoriously regularly the case. These matters will be taken into account.

Subjective case

28. I have a report from Mr Jones, a psychologist. It is uncontroversial. Although not supported by evidence on oath, I believe I can rely upon Mr Jones’ conclusions and the history he took.

29. Reed is presently 55 years old. He grew up happy and supported by his parents. His mother is still alive. She is in court today. He struggled at high school as a result of learning difficulties. He left in Year 9 to find work. He has been in work most of his life, although there was a five-year period of unemployment. He is employed in the goal. Although he uses alcohol, he reports no significant problems. He does not use illicit substances.

30. He is a father of 10 children from four relationships. One is the half sibling of the complainant. Another was born recently. He still has the support of family and friends. I note it is unlikely he will ever get to see his daughter, certainly not while in custody. The complainant, in her Victim Impact Statement, makes mention of the fact that his daughter still does not know he is in custody.

31. In the late 1990s he was diagnosed with and treated for depression, anxiety, and panic attacks. He has seen a psychiatrist and psychologist. He has taken anti-depressant medication since that time. He is receiving some medication in custody. Reed has other health problems, including diabetes, but they appear to be managed in custody.

32. Mr Jones’ testing reveals that Reed is currently experiencing clinical levels of severe anxiety and depression. Mr Jones says that he has a persistent depressive disorder and recommends a treatment plan involving; Cognitive Behavioural Therapy, targeted psychopharmacologic medication and treatment that specifically addresses sexual offending and associated risk factors. Mr Jones concludes that if Reed receives appropriate medication and psychological treatment in custody, he is at low risk of re-offending.

33. Reed is not to be punished for exercising his right to defend the allegations. However, he gets none of the benefits in mitigation of sentence generally allowed for remorse or an early plea.

Structure

34. Individual sentences will be indicated. There will be an aggregate sentence. There must be some accumulation to reflect the individual nature of each offence and the period over which the offending occurred. Reed will need considerable assistance in adapting to normal community life on release. It is implicit from the convictions, the objective seriousness of the offences and the maximum penalties and the standard non-parole period that the significant time in custody is required for offences. Those same matters influence the minimum time that must be spent in in custody before he becomes eligible for consideration for release to parole.

35. Although I find he has a low risk of re-offending, much will depend upon what assistance he can be given inside and outside of goal. Reed will, in the future, have contact with children and that risk must be managed. He has some demonstrated capacity, other than the present matter, to lead a life without crime and productively work in the community.

36. His age, his mental health problems, and vulnerability in goal must also be considered. His time in custody will be more burdensome than for the average prisoner. I am sure Corrective Services will do what they can, but judges do not ignore the lived reality of goal. They are violent, nasty places. And those convicted of child sexual offences are particularly vulnerable to vigilante justice within the goal.

37. His prospects, his past, conditions of custody all warrant a longer period of parole by the finding of special circumstances.

Submissions

38. Mr Loosley, solicitor for the Director of Public Prosecutions, noted the gross breach of trust involved the exploitation of the complainant. He submits that although the offences were a short duration, that does not reduce their emotional harm. He said the offences were self-regulated and committed without self-awareness. He took me to SB v R {2022] NSWCC 164 at [65] – [66].

39. For the offender, Mr Hibbard submitted the offending was low in the range for this type, accepting that they were still serious offences. He noted that although there was skin on skin contact for the sexual touching and penetration, both events were of short duration. Matters to which I have referred. He notes that the offender apparently stopped of his own volition before the complaint. He accepted there was a breach of trust. He noted the offending was not planned and that the offender has good prospects for rehabilitation.

Synthesis

40. Mitigating factors will be given appropriate weight, but they must not be allowed to lead to the imposition of a penalty which is disproportionate to the gravity of the matters for sentence. Reed offended against a child in his care; a child who looked to him for protection and support, not sexual abuse. What he did harmed her, harmed his family, and the community.

41. Sentencing courts have an obligation to vindicate the dignity of victims of sexual assaults and sexual intercourse offences, particularly children. That protective role cannot be overemphasised.

42. The courts have a duty to express the community’s disapproval of such offending. They do so by imposing retributive sentences. There is a community expectation that offenders in such matters will suffer severe punishment; as is reflected in the maximum penalty and standard non-parole period, where applicable.

43. A proper sentence, however, marks the courts’ view of the seriousness of the crime, taking into account all relevant factors. A proper sentence should let others in the community know what will happen to them, what retribution will fall upon them if they commit similar crimes: R v Herring (1956) 73 WN (NSW) 203 at 205. I am quite sure that the sentence I impose will deter Reed from offending again, but there are other factors and purposes of sentencing that must be considered.

Orders

44. The formal orders of the Court are:

1. For the intentionally sexually touch a child, there will be an indicated sentence of two years’ imprisonment.

2. For the aggravated sexual intercourse with a child, there will be a sentence of five years and six months with a non-parole period of three years and six months.

45. The total aggregate sentence will be one of six years and six months. The non-parole period will be four years, reflecting my findings of special circumstances, which I have sought not to erode by imposing an aggregate sentence. There will be a parole period of two years and six months. A total sentence of six years, six months.

46. The non-parole period of four years starts on 30 March 2022. Reed is eligible for consideration for a release to parole on 29 March 2026. A parole period of two and a half years. The total sentence will expire on 29 September 2028.

47. Mr Reed, you are now classified as a high-risk offender. What that means in is that your release to the community may be subject to additional conditions, or your release may be delayed if you are deemed as posing a risk to the community: Crimes (High Risk Offenders) Act 2006.

45. Given all the material before me, that may be unlikely. But, nevertheless, I have to warn you that it is a prospect, and it is something you should take into account when you consider whether you cooperate or not with any programs offered to you in in custody or the community on release. I do not think that will be a particular problem for you, but it is a matter you have to consider.

Breach bond

49. There is an admitted breach of the bond for the offences of aggravated break and enter commit serious indictable offence and enter building/land with intent commit indictable offence. Given the nature of the offence, and that the bond had almost expired, and the order that I have made with a lengthy minimum period in custody, I take no action on the breach.

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Decision last updated: 08 March 2023