R v Rolfe

[2017] NSWDC 186

District Court

New South Wales

Medium Neutral Citation:	R v Rolfe [2017] NSWDC 186
Hearing dates:	16 June 2017 and 22 June 2017
Decision date:	22 June 2017
Jurisdiction:	Criminal
Before:	Bright DCJ
Decision:	Sentenced to a non-parole period of 3 years and 2 months and a balance of term of 2 years and 1 month. Bonds revoked for each call up offence and sentence of 1 month imprisonment imposed.
Catchwords:	Sentence – sexual intercourse child 10-14 years – procure child for unlawful sexual activity.
Legislation Cited:	Crimes (Domestic and Personal Violence) Act 2007 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 (NSW)
Cases Cited:	Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518 R v Nelson [2016] NSWCCA 130 Pearce v The Queen (1998) 194 CLR 610
Category:	Sentence
Parties:	The Crown Jason-Mel Rolfe - Accused
Representation:	Counsel: Ms R Suters - Accused   Solicitors: Ms L Burgoyne - Crown
File Number(s):	2016/59564
Publication restriction:	There is to be no publication of the names of the complainants or any material which may tend to identify the complainants.

Judgment

1. Jason-Mel Rolfe (born 1987, 29 years) appears for sentence having pleaded guilty on 9 March 2017 at Newcastle District Court to the following indictment:

1. Between the 1st day of October 2014 and the 3rd day of November 2014, Singleton in the State of New South Wales, did have sexual intercourse with MB a child then above the age of 10 years and under the age of 14 years, namely 12 years.

2. Between the 2nd day of November 2014 and 5th day of November 2014, at Singleton in the State of New South Wales, did intentionally procure MB, a child then under the age of 16 years, namely 12 years, for unlawful sexual activity with him, namely sexual intercourse.

2. The maximum prescribed penalty for the offence of sexual intercourse with child 10-14 years (s66C(1), Crimes Act1900) is 16 years imprisonment. There was no applicable standard non-parole period as at the date of the commission of this offence.

3. The maximum prescribed penalty for the offence of intentionally procure a child under 16 years for unlawful sexual activity (s66EB(2)(a), Crimes Act1900) is 15 years imprisonment. There was no applicable standard non-parole period as at the date of the commission of this offence.

4. The plea was entered on the day the matter was listed for pre-recording of the complainant’s evidence. A trial date of 10 November 2017 had already been set. Having regard to the timing of the plea I propose to allow a discount of 15% on sentence.

5. In dealing with the offender for count 1 on the indictment I propose to take into account a further offence of aggravated indecent assault (s61M(2), Crimes Act 1900).

6. In dealing with the offender for count 2 on the indictment I propose to take into account a further offence of aggravated indecent assault (s61M(2), Crimes Act1900).

7. The maximum prescribed penalty for the offence of aggravated indecent assault is 10 years imprisonment. There is a prescribed standard non-parole period of 8 years.

8. I am also dealing with the offender for breaching 4 section 9 bonds imposed on 14 August 2013 at Cessnock Local Court for:

1. 2 x stalk/ intimidate (s13, Crimes (Domestic and Personal Violence) Act 2007)

2. 1x contravene AVO (s14, Crimes (Domestic and Personal Violence) Act 2007)

3. 1 x damage to property (s195, Crimes Act 1900).

9. The offender has been in custody bail refused since his arrest on 24 February 2016.

FACTS

10. The offender is Jason Rolfe (born 1987).

11. The victim is MB (born 2002), who was 12 years old at the time of the alleged offences. She lived with her mother LM and her younger brother V in Singleton.

12. The offender was in a short term relationship with the victim’s mother. The offender would stay over on the weekends.

13. The first time the victim met the offender, she asked him to guess how old she was. The offender said “a teenager." The victim said “no, I'm 12."

14. In early November 2014, LM was looking through the victim’s iPod. She discovered a conversation between the victim and the offender, which had been conducted through an app called "Kik." Photographs had also been exchanged. LM contacted police and provided them with the iPod. On 24 November 2014, the victim participated in a recorded interview, telling police “we’re kind of in a sexual relationship."

1st Form 1 offence (to be taken into account on Count 1):

Aggravated Indecent Assault (Child under 16 Years): s61M (2) Crimes Act 1900 (NSW)

15. In October 2014, about a week after LM and the offender started dating, the victim was at her home in Singleton. The offender was visiting LM, who was in her own bedroom watching a movie. The offender was on the sofa bed in the lounge room, clothed. The victim was also on the sofa bed.

16. The offender started hugging the victim from behind. The offender touched her breasts on the outside of her clothing. He was really close to her and she felt his genitals touch her bottom through her clothing.

17. LM began walking towards the lounge room and the offender stopped hugging the victim. LM went back to her room and the offender started hugging the victim again.

COUNT 1 - Sexual Intercourse with person between 10 and 14 years: s.66C (1) Crimes Act 1900 (NSW)

Maximum penalty: 16 years imprisonment

18. Between 1 October 2014 and 1 November 2014 the victim was home alone with the offender. The offender inserted his penis into the victim's vagina and had sexual intercourse with her. The offender did not wear a condom and he ejaculated inside her.

The iPod

19. About two or three weeks after the offender started dating LM, the offender and the victim started exchanging messages in an app called "Kik." The app allows people to communicate with other members, provided they know the other person's username. The victim obtained the offender's username and contacted him.

20. On Monday 10 November 2014, LM contacted police after locating the conversation on her daughter's iPod. The iPod was provided to police.

COUNT 2- Procure a child under 14 years for unlawful sexual activity: s66EB(2) Crimes Act 1900

Maximum penalty: 15 years imprisonment (if age of child is < 14 years)

21. An examination of the iPod revealed that the offender and the victim participated in a lengthy exchange of messages containing sexual content and the exchange of sexual photographs over 3 - 4 November 2014. All time stamps are recorded in UTC time, which is 11 hours behind Eastern Standard daylight time. The victim refers to the offender by his nickname 'Jasper' and also by his name 'Jason'.

22. Attached to the Agreed Facts was a copy of a download of the KIK conversation from the Complainant's iPod, as well as two screen shots, revealing the accused's profile picture, as it would have appeared on the iPod screen.

23. At 9.22am on 3 November 2014, the following exchange occurred (p.2):

Offender: You should send a pic

Victim: OK what sorta pic?

Offender: Nudie lolz

24. At 9.34am on the same date, the following exchange occurred (pA):

Victim: Can I ask you a question

Offender: Yes ask anything

Victim: What your first impression of me?

Offender: Dam how is she 12

25. At 10.02am on 3 November 2014, the exchange of messages continued (p.8-9):

Victim: one more question how good does my pussy feel on your cock?

Offender: Very very good fits perfectly.

Victim: the sex on Saturday morning was fucking great lol.

Offender: I know I might be able to talk your mum into letting you stay over soon.

26. At around 10.24am (p.11), the offender sent a message telling the victim that he’s thinking of getting her a sex toy, a 'mold of mine' and he will “need pics of it in you." The victim responds with 'Your cock is really big' and "It was a tight fit for me lol”

27. A short time later, the offender sends “I want pics now I miss seeing feeling teasing' (p.11). The victim takes and then sends him a close up picture of her vagina, with her fingers separating the labia (p.12)

28. At 10:46 am the offender asks the victim if she is playing with “my pussy"(p.13).   She replies “yes" and the offender tells her to "take a pic for me bg (baby girl)". The victim then takes and sends the offender another close up image of her vagina with her fingers separating her labia (14).

29. The offender responds by taking and sending the victim a close up photograph of his naked penis (p.14).

30. At 11.01am on the same date, the following exchange of messages took place (p.15):

Offender: Do you think you would try anal?

Victim: Yeah maybe

Victim: I've put a finger in there but nothing bigger

Offender: Keep playing with your ass 1 finger then in a few weeks put in2

Victim: ok

Offender: I might play with it if we get a chance

Victim: ok

31. At 11.50am on the same date, the victim asked the offender who was better at sex, her or her mother. The following exchange of messages then occurred:

Victim: Mums probably better at sex cuz she's older lol

Offender: I want to be in you right now

Victim: I want you to be balls deep in me right now

…

Victim: Whose pussy is better tho?

Offender: Only you have made me cum Victim: Have I?

Offender: Yes

Victim: When?

Offender: The first time

Victim: Where did you cum?

Offender: In you

Victim: Omg I might be pregnant

Victim: I haven't had my period in a long time

Offender: You had a shower afterwards.

Thereafter is a lengthy series of exchanges in which the victim expresses her concern that she may be pregnant to the offender from unprotected sexual intercourse two weeks earlier with him, and what she will do (p.22 - 24).

2nd Form 1 offence (to be taken into account on Count 2)-

Aggravated Indecent Assault (Child under 16 Years): s61M(2) Crimes Act 1900 (NSW)

32. On another day in October 2014 the victim was at home. The offender was visiting. LM left to go to the shops, taking her younger son with her. The victim wanted to stay home. She didn't know the offender was going to stay home as well. The offender and the victim were in the lounge room together, on the sofa bed.

33. The offender started hugging the victim from behind. The offender wrapped his right arm around the victim and touched both of her breasts. Both were clothed and the victim could feel the offender's penis touching her bottom. The offender had an erection.

Arrest and police interview:

34. On 3 November 2014, after finding the above exchange on MB’s iPod, LM sent the following message to the offender, logged in under MB's username, "This is [LM] expect a call from the police you sick cunt."

35. Sometime after this, LM phoned the offender. She does not recall the words said by the offender, but she does not recall him denying anything. On 10 November 2014 LM provided the iPod to police.

36. On 24 February 2016 police attended a location in Kempsey where the offender was arrested and cautioned. He was conveyed to Kempsey police station, entered into custody and informed of his rights.

37. The offender participated in an electronically recorded interview denying all offences. He said the following:

1. He was in a brief relationship with LM, whom he met on the dating website Plenty of Fish;

2. They were together for about five weeks in September - October 2014;

3. He would travel by train to LM's house and stay overnight;

4. He met LM's two children including MB who was 12 years old at the time;

5. He was home alone with MB on Halloween night. That was the only time they were alone together and it was only for about 20 minutes;

6. MB would often hug him;

7. He received the message sent by LM under MB's profile. He claimed that earlier that morning, LM had sent the following message to him under MB's profile, "sex this morning was great." He thought that was weird, so he sent a message to LM's own Kik account asking her to confirm that it was actually her. A few hours later he received the message, again from LM under MB's profile accusing him of being dirty with her daughter;

8. Jasper is his nickname;

9. (deleted)

10. The Kik app was open on his phone and anyone could have accessed it;

11. At the time the messages were exchanged, a homeless guy called Jamie Apps was staying with him at his place in Bull Street, Mayfield;

12. Jamie knew his nickname was Jasper;

13. He spoke with Jasper about LM and MB;

14. He showed Jasper a photo of MB which was sent to him by LM;

15. He never spoke with MB on Kik;

16. He never sent MB any pictures of himself or received any pictures from MB;

17. Police read large extracts of the messages to the offender. He said they may have been sent to his account, but it wasn't him sending them;

18. He has never seen all those messages before police read them out today, but he did see the final one sent from LM under MB's profile;

19. He then said that the night he and LM broke up, he went through some of the Kik messages after Jamie had just given him back his phone. He didn't read all of them though;

20. He confronted Jamie after the message from LM. He kicked Jamie out. He told Jamie, "If I ever get charged with this, the cops will be looking for you because I did not have anything to do with it." Jamie then threatened to have his house burnt down.

OBJECTIVE SERIOUSNESS

Count 1

38. I have had regard to the following factors in order to determine objective seriousness of count 1:

1. The complainant was 12 years old (noting that the offence relates to children aged 10-14 years);

2. The age of disparity between the offender and the complainant (the offender was 27 years old at the time);

3. The type of intercourse is penile/ vaginal intercourse;

4. There was no opposition of the complainant to the sexual intercourse;

5. The offender did not wear a condom and he ejaculated inside the complainant.

39. Ms Suters on behalf of the offender submitted that this offence is above the low range of offending but below midrange of seriousness. The Crown submits that this offence is just below midrange objective seriousness.

40. In assessing the objective seriousness of this offending Ms Suters on behalf of the offender submitted that one relevant factor was that the complainant was a willing participant.

41. In relation to the relevance of this factor to objective seriousness I note the remarks of Basten JA in R v Nelson [2016] NSWCCA 130 at [23] where he stated as follows:

“While acknowledging that lack of consent was not an element of the offences, the sentencing judge placed some weight on the fact that the activity as described by him “was consensual”. No doubt the use of threats or force in overcoming resistance would be an aggravating factor; however, mere lack of opposition is otherwise irrelevant. The activity was not adequately described as “consensual”; it might be better described as not being the subject of opposition. To treat that as a mitigating factor is to misunderstand the nature of the offence. Lack of consent is not an element of the offence because persons of young age are deemed unable to give informed consent to sexual intercourse, no doubt because they do not appreciate the nature and consequences of the activity. The courts should accept that even when the activity is not opposed by the victim, it will be damaging. Early sexual relationships with adults will often exploit and exacerbate a precarious sense of self-worth and self-respect in the victim, which may have lifelong consequences, including an inability to form stable partnerships in adulthood and possible self-destructive behaviour.”

42. Having regard to the abovementioned matters, I assess the objective seriousness of count 1 as just below the middle of the range.

43. General and specific deterrence are very important considerations when sentencing an offender for sexual offending against children. The community expects, and is entitled to expect that stern sentences will be imposed upon offenders who engage in sexual activity with children.

44. In relation to count 1, the following aggravating factors were relied upon by the Crown:

1. The offence occurred in the home of the complainant.

2. The offender was on conditional liberty at the time of the commission of this offence.

45. I am satisfied that each of these aggravating features was established.

Count 2

46. I have had regard to the following factors in order to determine the objective seriousness of count 2:

1. The offender was 27 years old;

2. The complainant was 12 years old (noting that the offence related to children aged under 14 years);

3. The offender knew the age of the complainant;

4. The duration of the offending (between 2 November 2014 and 5 November 2014). In that period there were approximately 530 messages exchanged between the offender and the complainant.

5. The nature and extent of the sexual activity discussed during the communications including the following:

1. The offender requested the complainant to send him a nude photo.

2. He also communicated with the complainant about being sent photos of sex toys “in” the complainant.

3. The complainant sent the offender 2 close up pictures of her vagina with her fingers separating the labia.

4. The offender made inquiries as to whether the complainant was masturbating.

5. The offender sent the complainant a close up photo of his naked penis.

6. The offender spoke to the complainant about anal intercourse.

47. Ms Suters on behalf of the offender submitted that this offence, whilst not at the lowest end of objective seriousness, it is at the lower end of the range of objective seriousness. The Crown submitted that the objective seriousness was approaching mid-range offending.

48. In assessing the objective seriousness of this offending Ms Suters on behalf of the offender submitted that one relevant factor was that the offender pursued the complainant after sexual intercourse had occurred. In my view, this fact does not reduce the objective criminality in circumstances where there is ample evidence to demonstrate that the offender was pursuing the complainant for further acts of sexual intercourse.

49. I am satisfied this conduct is in the middle of the range of objective seriousness for this type of offending.

50. General deterrence is a significant consideration when sentencing for this offence. Such offences are extremely difficult to detect and are particularly exploitive of the immaturity of children and are properly described as abhorrent. When one reads the 530 messages exchanged between the offender and the complainant (see EXH A) the immaturity and vulnerability of the complainant is wholly apparent. Specific deterrence is also important in respect of this offence.

51. In relation to count 2, the following aggravating factors were relied upon by the Crown:

1. The offence was a course of conduct involving a series of criminal acts.

2. The offender was on conditional liberty at the time of the commission of this offence.

52. I am satisfied that each of these aggravating features was established.

In relation to Form 1 offences:

53. Count 1 - Aggravated indecent assault relating to the offender touching the complainant’s breasts on outside of clothing whilst his genitals were touching her bottom through her clothing.

54. Count 2 - Aggravated indecent assault relating to the offender touching both her breasts through clothing whilst the offender’s penis was touching her bottom. The offender had an erection.

55. In respect of each of the Form 1 matters I consider that the objective seriousness is below the middle of the range of objective seriousness but not at the lowest end.

SUBJECTIVE CIRCUMSTANCES

56. The offender is now 29 years old.

57. The offender has a limited criminal history.

58. In 2013 he was dealt with for 2 offences of common assault (domestic violence). For each offence he received a s9 bond for 12 months. He was also dealt with for offences of damage property, contravene AVO and 2 counts of stalk/ intimidate. In respect of each of those offences he received s9 bonds for 18 months.

59. Given the limited extent of his criminal history he is entitled to some leniency on sentence.

60. The following material was tendered on behalf of the offender on sentence:

1. Written submissions on sentence (EXH 1);

1. Report prepared by Dr Peter Ashkar dated 15 June 2017 (EXH 2).

61. The offender’s background is set out in the report Dr Ashkar (EXH 2).

62. The offender grew up in the Newcastle area. He has 3 siblings.

63. He grew up with a physically and emotionally abusive stepfather for 3 years during primary school. His mother lived in a de-facto relationship with another man when the offender was aged between 14 and 20 years. He described this association as satisfactory.

64. The offender said he felt loved by his mother and said he was happy growing up. His mother now lives in England.

65. He reported disruptive behaviour during his school years and told the psychologist he had been diagnosed with ADHD when he was 8 years old.

66. He left school in Year 9. Since leaving school he studied boiler making (Certificate II), fabrication (Certificate III), carpentry and language, literacy and numeracy courses at TAFE.

67. He has never worked in paid employment.

68. The offender is currently single. He has a 6 year old daughter from a previous relationship. His daughter had been living in foster care since she was 18 months old. He has not seen his daughter since 2015.

69. He was involved in a relationship with the mother of the complainant for a period of 6 weeks in 2014. He told the psychologist he has no friends.

70. He has no drug or alcohol issues other than a 4 month period of heavy alcohol use whilst homeless and living on the streets in 2014.

71. The offender is in good physical health and had no medical history of note. The psychologist notes that his adult psychiatric history is significant for anxiety and depression. He reports a long history of self-harming behaviour and suicidal behaviour.

72. He denied current suicidal ideation. He has been taking antidepressant medication since 2013.

73. In relation to the current offending the psychologist was of the opinion that he had a sense (albeit limited) of the moral and ethical issues with respect to his offending behaviour.

74. He told the psychologist:

“You wouldn’t want it done to your own child… (They are) not in the frame of mind in which they can legally consent, not of the intelligence to consent because they are still developing… Also the psychological drama… Them not knowing how to develop normal relationships… (They are) more likely to experiment with alcohol and drugs”.

PSYCHOMETRIC TESTING

75. The offender performed within normal limits on tests of intellectual functioning. His overall level of intellectual functioning was “average.”

76. He demonstrated difficulties with emotional functioning, his responses revealing demoralisation, suicidal ideation, helplessness, thoughts of self-doubt and anger proneness. Thought disturbance was also indicated and difficulties with interpersonal functioning, vague neurological complaints (dizziness, loss of balance) and cognitive difficulties (problems with attention, concentration and memory).

77. The psychologist concluded:

“his responses suggested a disturbance to personality characterised by negative Emotionality (predisposing him to anxiety and depression) and Disconstraint (predisposing him towards poorly controlled, impulsive, and disinhibited behaviours).

78. I note that the psychologist was of the opinion that there was no evidence of impaired social understanding or judgement to explain his offending behaviour.

79. In terms of sexual recidivism he was assessed as being in the low-moderate risk category.

80. In relation to the offender’s mental health, the psychologist concluded as follows:

“He has a long history of emotional dysregulation and poorly controlled behaviours and the findings from this assessment (taken from his presentation, history, and psychometric assessment of his personality functioning) point to a disturbance of personality indicative of a Cluster B (Dramatic/ Erratic) Personality Disorder (i.e., incorporating features of historic, antisocial, and borderline personality disorders). His personality disorder underpins his emotional disturbance (i.e., demoralisation, helplessness, self-doubt, anger proneness etc), thought disturbance (i.e.. persecutory ideation, suspiciousness), and interpersonal difficulties (i.e., cynicism, social avoidance).”

81. It was not suggested on behalf of the offender that there was any causal link between the offender’s mental health and the offending behaviour or that some moderation was required to consideration of issues of general and specific deterrence.

82. The psychologist was of the opinion that it was unlikely that the offender will receive treatment in custody with respect to his sexual offending given his low risk classification.

83. He was of the opinion that management of the offender’s personality disorder is vitally important for his rehabilitation and psychological wellbeing and that the offender will require long term treatment and management in the community over several years.

PROSPECTS OF REHABILITATION

84. Ms Suters on behalf of the offender has submitted that the Court would find the offender has good prospects of rehabilitation.

85. Having regard to the opinion of the psychologist that the offender was in the low-moderate risk category of sexual recidivism I am satisfied the offender does have moderate prospects of rehabilitation. This to a large extent will depend upon his engagement with supervision and treatment upon release from custody.

UNLIKELY TO RE-OFFEND

86. I am unable to find he is unlikely to reoffend given that he has been assessed in the low to moderate risk category.

REMORSE

87. The offender did not give evidence during the sentence proceedings. There is limited evidence of remorse in the report of Dr Ashkar (EXH 2). I give such evidence very limited weight given that it has not been adopted on oath.

SPECIAL CIRCUMSTANCES

88. Ms Suters has submitted on behalf of the offender that I would find special circumstances based upon the following:

1. Offender’s first time in custody;

2. He will need a longer period on parole to access supervised treatment;

3. Partial accumulation of sentences

89. I am satisfied that each of the above matter warrants a finding of special circumstances and I propose to vary the statutory ratio between the parole period and the non-parole period (section 44(2), Crimes (Sentencing Procedure) Act 1999).

TAKING INTO ACCOUNT FORM 1 MATTERS

90. In sentencing the offender I propose to take into account the Form 1 matters in accordance with the principles enunciated in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518.

TOTALITY

91. In circumstances where I am dealing with the offender for more than one offence I am required to determine each sentence and thereafter consider the principle of totality and concurrent, partly concurrent and/or cumulative sentences: see Pearce v The Queen (1998) 194 CLR 610.

92. I am satisfied that in order to reflect the totality of the criminality there should be some partial accumulation.

DETERMINATION

93. In determining the appropriate sentence, I have had regard to the purposes of sentencing as set out in s3A, Crimes (Sentencing Procedure) Act 1999.

94. Having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate in respect of each offence (s5(1), Crimes (Sentencing Procedure) Act 1999.

95. I have had regard to the maximum penalty in respect of each offence.

96. Stand up please Mr Rolfe.

97. In relation to each offence you are convicted.

98. In respect of count 2 being an offence of procuring a child under 16 years for unlawful sexual activity and taking into account the Form 1 offence of aggravated indecent assault - I sentence you to a non-parole period of 1 year and 6 months to date from 24 February 2016 to expire on 23 August 2017 with a balance of term of 1 year to date from 24 August 2017 and expire on 23 August 2018.

99. The starting point for that sentence was 3 years discounted by 15% for the plea of guilty.

100. In respect of count 1 being an offence of sexual intercourse with a child above the age of 10 years and under the age of 14 years and taking into account the Form 1 offence of aggravated indecent assault - I sentence you to a non-parole period of 2 years and 2 months to date from 24 February 2017, expiring on 23 April 2019 with a balance of term of 2 years and 1 month to date from 24 April 2019 expiring on 23 May 2021.

101. I have varied the statutory ratio for count 2 to a greater degree than count 1 as a result of accumulation.

102. The starting point for this sentence was 5 years discounted by 15% for the plea of guilty.

103. Total effective sentence is 5 years and 3 months with a non-parole period of 3 years and 2 months and a balance of term of 2 years and 1 month.

104. The earliest date the offender is eligible for parole is 23 April 2019.

105. In relation to the each of the call up offences (EXH D) being as follows:

1. 2 charges of stalk/intimidate

2. 1 charge of destroy property (relating to a dining chair)

3. 1 charge contravene AVO

In respect of each charge I revoke the bonds and sentence the offender to a fixed term of imprisonment for one month to date from 24 February 2016 - 23 March 2016.

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Decision last updated: 19 July 2017