R v Savvas

[2023] NSWDC 424

District Court

New South Wales

Medium Neutral Citation:

R v Savvas [2023] NSWDC 424

Hearing dates:

10/10/22-18/10/22, 19/10/22, 15/2/23, 10/3/23, 17/3/23, 31/3/23, 6/4/23, 26/5/23, 21/7/23

Date of orders:

21/7/23

Decision date:

21 July 2023

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to an aggregate term of imprisonment of 5 years 9 months with a NPP of 3 years 9 months (17/10/22-16/7/26).

I find special circumstances.

The indicative sentences are:

Count 1 – 2 years 3 months with NPP 1 year 5 months.

Count 2 – 2 years 10 months.

Count 3 – 3 years

Count 4 – 2 years 10 months.

Catchwords:

Crime – Sentence -Procuring a child for unlawful sexual activity - Intentionally sexually touching a child aged between ten and under 16 years of age - Sexual touching without consent

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Category:

Sentence

Parties:

NSW DPP – Crown
Sonny Savvas - Offender

Representation:

Ms G Namat for Crown
Mr Robinson for Accused.
Ms V Zahra for Offender

File Number(s):

21/82847

Publication restriction:

Statutory non-publication order in relation to the identity of the victims.

sentence – ex tempore revised

1. I note that, in this matter, there is a provision of law which prohibits anybody from publishing anything which might identify either of the victims.

2. The offender, Mr Savvas, was found guilty by a jury in October 2022 of all four counts on an indictment involving the following offences, which I will describe in short form.

3. Count 1 - procuring a child for unlawful sexual activity, s 66EB(3) of the Crimes Act 1900, the maximum penalty for which is ten years and for which a standard non-parole period of four years is specified.

4. Count 2, being an offence of intentionally sexually touching a child aged between ten and under 16 years of age, the maximum penalty for which is ten years imprisonment, that being an offence under s 66DB(a) of the Crimes Act.

5. Count 3, being another charge of the same kind, for which the maximum penalty is ten years imprisonment.

6. And count 4 being an offence of sexual touching without consent, that being an offence under s 61KC(a) of the Crimes Act. And the maximum penalty for that offence is five years imprisonment.

7. The maximum penalties and, where applicable, standard non-parole period, are, of course, important guideposts in the sentencing exercise to which I have had regard.

8. There has been significant delay since the jury’s verdict in this matter, which is unfortunate, but has a reason. That was essentially because, after the verdicts were delivered, I stood the proceedings over for sentence hearing on an agreed date of 24 February 2023. However, shortly before then, the Court became aware that the offender was no longer legally represented and so the proceedings then went through a series of something like five mentions so as to facilitate Mr Savvas arranging representation, which he eventually did, and also arranging for a psychiatric report to be prepared, which did ultimately happen.

9. It is regrettable that that delay has occurred, both in relation to the victims, the community, and the offender, but, as I have indicated, there was a reason for that occurring. It is in part because of that delay that I have decided to hand down sentence today in circumstances where I have not had as much time as I would otherwise have had to consider the various submissions that have been made to me. Nonetheless, my reasons are as follows.

FACTS

10. Firstly, the facts are to be determined by me, of course, but must be based upon the evidence given at trial. Any matters in aggravation must be proved beyond reasonable doubt, while matters in mitigation need only be proved on the balance of probabilities.

11. The facts about which I am satisfied are as follows.

12. At the relevant time, the offender, who was about 63 years of age, lived in rented accommodation in Wentworth Falls in the Blue Mountains. Sometime during April 2020, the offender invited the victim of the first three offences and her boyfriend to live at his house. The victim of those three offences, I will refer to simply as “AB”. Prior to living at his house, the victim and her boyfriend were living in a tent. The victim had, in fact, met the offender on a train some years earlier, but had not seen him for some time. As I say, it was around April 2020 that the victim and her boyfriend moved into the offender’s home and they stayed there until about mid-July 2020.

13. The count 1 offence related to the offender engaging in conduct that provided the victim with a financial and material benefit with the intention of making it easier to procure her for sexual activity. The financial and material benefit relied upon by the Crown was that the offender purchased clothes for the victim. That happened in the following circumstances. One day, when she was at home alone with the offender, he told her that she did not dress “ladylike” enough and told her, in an insistent way, that he would take her clothes shopping. The victim then reluctantly accompanied the offender on a train to Parramatta Westfield, where the offender bought several items of clothing for her. While at the shopping centre, he asked her to go into a bathroom and change into the clothes that he had bought. Afterwards, he took several photographs of her. On the way back to Wentworth Falls on a train, he made sexualised comments towards her along the lines of, “Nice arse. I can see your arse and everything. Looks nice in those clothes.” The jury’s verdicts indicates that it was satisfied that, in making the purchases, the offender did so with the intention of making it easier to procure the victim, who was a child, for unlawful sexual activity.

14. The offences in counts 2 and 3 arose from a single incident which involved the same victim and occurred in the home of the offender, which, at the time, was also the victim’s home, on about 18 June 2020. On that occasion, the offender and the boyfriend of the victim had an argument, after which the boyfriend ran upstairs. The offender then stopped the victim by placing his hand on a wall as she attempted to walk upstairs and then made comments to her about leaving her boyfriend. He then brushed her hair from her shoulder, put his hand behind her head, and then, with his other hand, grabbed or groped her breast area, this being the subject of the count 2, intentionally sexually touch a child, offence.

15. Around the same time, he grabbed or groped her on the vagina, this being the count 3, intentionally sexually touch a child, offence. Each of these acts of sexual touching occurred through the victim’s clothes. During the incident, the victim understandably froze out of fear and shock. The incident lasted around two to three minutes and the offender only stopped touching her when the boyfriend could be heard coming back down the stairs.

16. Count 4 relates to a different female victim, who I will refer to as “CD”, who, at the relevant time, was about 16 years of age. She met the offender around October 2020 through a friend. When she first met him, the offender complimented her on her legs and her dress and then invited her and her friend back to his house. After this, the victim attended the offender’s house on a number of occasions, which was largely because he would give her prescription type tablets, to which she had some form of addiction at the time. The incident that is the subject of count 4 occurred in about December 2020, while the victim was at the offender’s house along with two of her friends. Before the offence took place, the victim had consumed a large quantity of prescription type drugs, which were given to her by the offender. After this, the victim fell asleep on a couch in the lounge room.

17. Sometime later in the night, she awoke to find that she was completely naked and that the offender was on top of her and wearing no pants, although she could not recall if he was wearing underpants or not. She could feel his skin against hers, but could not recall what his hands were doing. She lost consciousness again after a few minutes and, when she awoke the next morning, she found herself in the same bed as her two friends. Those are the facts upon which I proceed to sentence for each of the offences.

OBJECTIVE SERIOUSNESS

18. Each of the offences involve significant maximum penalties, and the Count 1 offence involves a standard non-parole period. These matters are, of course, important guideposts that show that Parliament has treated these types of offences very seriously. But, of course, I must make a determination of the objective seriousness of the particular offences that are before the Court based upon their respective facts.

19. As has repeatedly been said by the Courts, sexual offences, especially those committed on children and young people, must be treated very seriously, given the presumption that such offences will cause harm, usually long term harm, to the victims. This case, in my view, is no different. It is for these reasons that serious penalties must be imposed, which recognise that harm, and also operate to deter the offender and others from committing such crimes in the future.

20. The count 1 offence of procuring a child with the intention of making it easier to engage in unlawful sexual activity involved the offender, in effect, grooming the victim, or attempting to do so, by making comments about her clothing and body on numerous occasions and then, particularly, pressuring her to go shopping for clothes, which he then bought for her. There was a huge age disparity between the offender and the 15 year old victim. And, of course, there was nothing in the behaviour of the victim that gave the slightest encouragement to these sorts of behaviours, which I am sure she found embarrassing and unwanted.

21. It was submitted by the Crown that the offence involved a degree of planning by ensuring that the victim was alone when taking her shopping. However, I do not agree with this submission. In my view, the shopping incident was an opportunistic one. And, in any event, it formed part of the overall pattern of conduct with the Crown relied on, which also included frequent comments about the victim’s body and clothing. It would be double counting to treat this as planning when it was part and parcel of the offence itself.

22. I am conscious, of course, that the offence itself is based upon the particulars relied upon by the Crown, namely the shopping incident and the purchase of clothing. At the time of this offence, the victim was aged 15 and so only slightly younger than the age range element for this type of offence. This does not make the offence one that was not serious, but of course, it is somewhat less serious than if the child had been of a younger age. I agree with the Crown’s submission that this offence sits below the mid-range in terms of its objective seriousness.

23. Counts 2 and 3 were committed against the same victim and were part of a single incident. Count 2 involved the offender cornering the victim after her boyfriend had gone upstairs, at which time the offender grabbed or groped her on the breast. Count 3 occurred about the same time and involved his groping or grabbing her on the vagina. Each of these incidents of sexual touching occurred through clothes and so are less serious than if they had involved skin on skin contact.

24. This incident occurred over a period that was relatively brief, namely two to three minutes, although I have no doubt that, to the victim, it would have felt like a much longer time than that and would have been a terrifying and degrading experience for her. Again, there was the huge age differential. And, of course, there was nothing that the victim had done which gave the slightest encouragement to this sort of contact. The offences occurred in what was at that time the home of the victim, where she should have been able to feel safe. The offences did not cease by reason of the offender’s own self-control, but because the boyfriend was approaching.

25. At the time of the offence the victim was aged 15 years. This fact does not mean that the offence is not serious, but it does make it less serious than if she had been closer to the minimum age of ten years that is specified for this type of offence. I assess each of these offences as being slightly below the mid-range of objective seriousness.

26. Count 4 relates to the 16 year old victim, “CD”. It involved the offender taking advantage of the fact that the victim was asleep or unconscious due to medication that she had taken, and then removing her clothes, rendering her naked, and then placing his own body on top of hers, skin to skin, for his own sexual gratification. No evidence was given to support there having been any sexual penetration, however, and so I have taken care not to approach this offence on the basis that sexual intercourse took place or anything similar. It was also argued by the Crown that the offence involved a degree of planning by reason of the victim’s evidence, that the offender gave her “endless” amounts of pills to take. I have considered this submission. However, it seems to me that, if I were to accept it, I may be falling into De Simoni error in that such conduct might amount to a much more serious offence such as that under s 38 of the Crimes Act. The offence involved the offender taking advantage of the victim’s unconscious state to further his own sexual gratification. I assess this offence as being above the mid-range of objective seriousness.

SUBJECTIVE MATTERS

27. Turning then to subjective matters relating to the offender himself. He was 63 years of age at the time of the offending and is now 66. He has a long criminal history and has previously served terms of full time imprisonment. However, he has no prior history of sexual offences. According to the psychiatric report, he had a difficult childhood owing to financial difficulties in the family and he left school at age 14. He has a reasonable work history as a younger man, but in more recent years, has been on a Disability Support Pension.

28. The psychiatrist report notes that the offender reported having been sexually abused as a child, once when he was about 10, and again by a different person when he was about 14. The offender’s most significant problems at present relate to chronic pain, which primarily relates to his neck, but also affects his right arm and shoulder. He has been on various drugs to manage this, but management of his pain has been far more difficult whilst in custody. Also the offender has been diagnosed with Post-Traumatic Stress Disorder, Anxiety Disorder, and Alcohol Use Disorder, this last disorder being in early remission. His Post-Traumatic Stress Disorder and anxiety arise, in part, from his sexual abuse as a child and also, it seems likely, from two serious assaults which he suffered as an adult, one or both of which led to the problems that he now has with his neck. He has regular panic attacks, which have continued while he has been in custody, and he is on medication to assist with this problem as well as other problems. I have taken into account his physical and mental health problems, in that I accept that they have made, and will continue, along with his age, to make his time in custody more difficult than it would be for a younger, and physically and mentally healthier, person.

REMORSE AND REHABILITATION

29. Turning then to the question of prospects of rehabilitation and future risk. The offender’s criminal history does not give much support to a positive finding of his future prospects of remaining offence-free. However, the Sentencing Assessment Report notes that he has been assessed as a medium-low risk of re-offending and the Static 99 test indicated a below average risk for future sex offending. He has some support in the community in that he has the close support of his three sons and some support, apparently, from his ex-wife.

30. His primary risk factor, in my view, is related to alcohol use and possibly drug use, which is something he needs to address. As the offender himself told the psychiatrist, the times that he has got in trouble have largely been when he has used alcohol or some other substance to excess. On balance, I would say that his prospects of remaining offence-free in the future are guarded.

31. There is no remorse in this case because the offender maintains his innocence.

THE PANDEMIC

32. In determining the sentence, I have had regard to the fact that the period of time that the offender has been in custody to date and continuing has been during the COVID pandemic, albeit that, since October 2022, when the offender went into custody on the last occasion, the effects of that pandemic have not been as great as they had been previously. Nonetheless, I have taken into account the known impacts of that pandemic upon persons in custody, which, to my knowledge, has been quite considerable and has involved frequent lockdowns and restricted access to visits and to various other services.

DETERMINATION

33. In determining the sentence, I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. I am satisfied that, in relation to all four offences, the threshold referred to in s 5 of that Act is crossed. That is, that no sentence other than one of imprisonment is appropriate.

34. It was argued on behalf of the offender that Count 4 might be dealt with by means of an Intensive Corrections Order. I have considered this argument, but I do not accept it. Community safety is the paramount consideration in deciding whether to impose an Intensive Corrections Order. However, this does not remove the relevance of other purposes of sentencing, of which deterrence, both personal and general, denunciation, and recognition of the harm to the victim are very important.    In my view, an outcome involving an Intensive Corrections Order would be totally inadequate and also incongruent with the terms of full time imprisonment that I intend impose in relation to counts 1, 2, and 3.

TOTALITY AND ACCUMULATION

35. Given that I am sentencing for more than one offence, I need to have – and have had – regard to the principles of totality. That is, the importance of looking at the sentence as a whole and ensuring insofar as I can, that it is not one that involves an inappropriately crushing sentence. In my view, there needs to be some level of notional accumulation among the sentences so as to take into account the different forms of offending and the fact that there are two victims. However, in relation to counts 2 and 3, I think they should largely be treated as a single incident and should result largely in a concurrent sentence.

36. In relation to count 1, it seems to me that this offence, which related to the same victim as counts 2 and 3, was, in effect, the lead up to what happened with counts 2 and 3. Having regard to these matters, I think there should be some notional accumulation as between count 1, when compared with, on the other hand, counts 2 and 3, but that the notional accumulation should not be great. Count 4, however, involved a separate and different incident and a different victim. And, in my opinion, there does need to be a degree of accumulation so as to acknowledge this.

37. As I have said, I intend to impose an aggregate sentence. In those circumstances, I am required to set out what are called the indicative sentences that I would otherwise have imposed if I was not imposing an aggregate sentence.

38. The indicative sentences are as follows. Count 1, a head sentence of two years and three months and a non-parole period of one year, five months. Count 2, a head term of two years, ten months. Count 3, a head term of three years. Count 4, a head term of two years, ten months.

39. Instead of those – so, Mr Savvas, if you could just stand up and I will announce the sentence.

35. I impose an aggregate head sentence of five years, nine months. I impose a non-parole period of three years, nine months. Those will date from 17 October 2022 so as to take into account pre-sentence custody. The head sentence therefore will expire on 16 July 2028 and the non-parole period will expire on 16 July 2026.

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Decision last updated: 12 October 2023