R v SD

[2021] NSWDC 90

District Court

New South Wales

Medium Neutral Citation:

R v SD [2021] NSWDC 90

Hearing dates:

19 February 2021

Date of orders:

19 February 2021

Decision date:

19 February 2021

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

Sentence imposed to be served by way of Community Corrections Order for a period of 2 years and 10 months.

Catchwords:

CRIME — Child sex offences — Sexual intercourse with child <10

Legislation Cited:

Crimes Act 1900 (NSW) s 66A

Children (Criminal Proceedings) Act (NSW) 1987, s 6

Crimes (Sentencing Procedure) Act1999 (NSW) ss 25AA, 3A, 5

Cases Cited:

SW v The Queen [2019] NSWCCA 194

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)
SD (Offender)

Representation:

Counsel:
Mr A Terracini (Crown)
Mr J Curtis (Offender)

Solicitors:

File Number(s):

2019/00253899

Publication restriction:

Non-publication order re complainant’s name and identity

SENTENCE

Introduction

1. The offender stands to be sentenced having pleaded guilty to the following offence: That between 1 January 1995 and 30 October 1995 at Mona Vale he had sexual intercourse with JB (there is a non-publication order in relation to that name) a child under the age of ten years, namely eight or nine years.

2. That is an offence under s 66A of the Crimes Act and, at the relevant time, had a maximum penalty of 20 years imprisonment.

3. At the time of the offence, unlike now, there was no standard non-parole period.

The Facts

4. The facts are agreed and the following is taken from the facts. The victim’s father, PB, and mother, CB, divorced in 1993. The victim’s father then commenced a relationship with a RS. The offender is Ms S’s nephew and occasionally stayed with her and the victim’s father.

5. Between January and October 1995 the offender was staying at their premises in Mona Vale, along with the victim and other members of the family.

6. One night between January and October 1995, when the victim was nine years of age, the victim had her friend LS staying at her house. They both slept in the victim’s bedroom on a trundle bed, the victim slept on top and LS slept on the pull out trundle.

7. At some point at night when the victim and LS were both asleep the offender entered the victim’s room. The victim woke up to see the offender had his hands in her underwear. The victim tried to cross her legs to make him stop. The offender was trying to get the victim’s legs open and the victim was squirming and trying to turnover so the offender would stop.

8. The offender then penetrated the victim’s vagina with his fingers, he put his fingers in and out of the victim’s vagina multiple times causing her considerable pain.

9. The victim wanted to scream but was so scared she had tears streaming down her face.

10. The victim sat up and said, “Who’s there?”. There was no response. The victim asked louder, “Who’s there?”. The offender said, “Carl is cold and needs a blanket”. Carl was a reference to the victim’s step-brother and cousin of the offender.

11. The victim said, “Get out”. The offender got a blanket out of the wardrobe and left the victim’s bedroom.

12. The next morning the victim looked in Carl’s bedroom and saw that the blanket was on the bunk up the top where the offender was sleeping.

13. That morning the victim talked to LS about what had occurred.

14. The victim did not see much of the offender that day. The victim returned to her mother’s house on the Sunday.

15. In terms of the complaint, the next person the victim told about the offence was a person she met at Pony Club whilst she was 12 or 13 years of age. The victim’s mother overheard part of the conversation and asked the victim about what had happened.

16. The victim’s mother contacted her father following the conversation and they met at Mona Vale.

17. The mother heard the victim say, “Well what happened to me was my cousin in there” gesturing between her legs. The following day the mother asked the victim about it, the victim said, “He put his fingers inside of me, S, and there was another girl in the room, LS, we’ve spoken and she didn’t tell her mother either, he said he was coming in for a blanket”.

18. The next day the victim’s mother met with the victim’s father and RS and told them what had occurred. RS contacted her sister, LD, the mother of the offender, and told her that the offender had to leave their house.

19. The next day LD flew to Sydney and picked up the offender. As they were leaving LD said to the offender, S, “J has said you sexually assaulted her two years ago”, the offender said nothing.

20. The victim told her husband DB about the offences early in her relationship. She had known Mr B since she was 13 and does not specifically recall when she told him what had occurred.

21. The victim also told a friend when she was 21.

22. The victim told her cousin about the offence about five years ago, that was KB, who suggested that she contact police. The victim did not contact police because she did not believe police would do anything because it occurred a long time ago.

23. The victim also told her other cousin, RB, about the offences around the same time.

24. The victim also spoke with her father and Ms S about the offences. At some point Ms S told the victim that she had received a letter from the offender apologising for committing the offences. The victim subsequently obtained those letters and provided them to police.

25. Around September 2011 RS and CS met with the offender. During the meeting the offender admitted to sexually assaulting the victim. He was asked to write two letters, one to the victim, and one to Ms S and PB.

26. Ms S followed those letters up and eventually received two typed letters which I understand were received in 2011. The typed letters from the offender are set out in the agreed facts, I will not read all of it, but I will read a part of it. It contains:

“Dear J, I can understand if you don’t read this letter but I would like to express my sorrow for the pain and suffering that I may have caused you over the years. I can’t even imagine what it must have been like living with this and having no one believe you.

I am also sorry that we ended up living in the same area and that you have seen me at the shopping centre.

I am sorry it took me so long to admit to this, it was very hard to finally admit to it after so long and I really should have apologised to you when I first came clean.”

27. He wrote a similar letter to the complainant’s father and Ms S.

28. On 15 August 2019 police attended Gosford Police Station where they met with the offender. He was arrested for the offence, he declined to be interviewed.

29. A moving and very powerful victim impact statement was read to the Court by Ms B earlier this morning. As is so often the case, a sexual offence perpetrated upon a young child has life-long devastating emotional consequences for the victim.

Objective seriousness

30. I turn then to my assessment of the objective seriousness of the offence. All offences of this type upon a young girl are serious and this Court is well aware of the life-long damage such sexual offending causes victims of such offences. Here the offence was perpetrated in the victim’s home where she was entitled to be safe, which is an aggravating factor, by someone who was part of her family.

31. The offence occurred at night and another young child was in the room, but there is no evidence that the other child was aware of the offence at the time of its commission.

32. There is no hierarchy of seriousness in the law when it comes to acts of sexual intercourse, however, generally digital penetration is considered to be less serious than penile/vaginal or penile/anal intercourse.

33. The offender moved his fingers in and out of the victim’s vagina multiple times. The victim was clearly resisting through her movements and was caused considerable pain during the offence.

34. The victim was nine years of age as at the date of the offence, being the maximum age encompassed by the offence creating provision. The offender was 13 years of age, so older than the victim, but the age difference between them was approximately four years, which was much less than in many other cases. It may be accepted though that a boy of 13, in early adolescence, is much stronger than a young girl of nine.

35. It appears that the offence was of relatively short duration but that is of little consequence when the victim is so young. The offence appears to have had little planning and can be described as somewhat opportunistic.   

36. I assess the objective seriousness of the offence as being below a notional mid-range offence but clearly not at the bottom of the range.

The offender’s subjective case

37. I turn then to the offender’s subjective case. He was born in October 1981, so he is now 39 years of age, but he was between 13 and 14 years of age as at the time of the offence, i.e. a child himself, four to five years below his majority.

38. It was accepted that the offence to which the offender had pleaded guilty was a serious indictable offence under the Children (Criminal Proceedings) Act and that I was required to sentence the offender according to law.

39. When sentencing a child the principles contained in s 6 of the Children (Criminal Proceedings) Act have application, and I consider it is appropriate to have regard to those principles when sentencing this offender given the age he was as at the date of the offence. Those principles, in essence, are that it is usually more appropriate to give greater weight to rehabilitation and treatment than general deterrence, denunciation of the crime, and retribution, when sentencing a child.

40. It has also been said by the higher courts that a court when sentencing a child should recognise that immaturity may have played a role in the decision making process leading up to the offence. This, it seems to me, is particularly so where, as here, a child offender was well below the age of maturity as at the time of the offence.

41. As at the time of this offence that I am to sentence the offender, for he had no prior contact with the criminal justice system. If he had been sentenced at a time when he was still a child that would have been a significant factor, along with his youth, to take account of in extending leniency to the offender on sentence.

42. As an adult he has two matters on his criminal history of some note. In 2019 he was sentenced to three years imprisonment with a non-parole period of one year and eight months for three counts of indecent assault on a person under 16 years of age.

43. Material attached to the Sentencing Assessment Report records that those offences occurred between 2009 and 2011 and involved offences against an eight to nine year old daughter of his then de facto. At the time of the offences the offender was between 28 and 30 years of age. That sentence was backdated to a date in 2017.

44. On 5 June 2020 he received two Community Corrections Orders for two offences of failing to comply with reporting obligations arising, no doubt, out of his convictions for the indecent assault offences I just referred to. Those Community Corrections Orders appear to have no additional conditions attaching to them and expire on 4 December 2021.

45. The only sentence of imprisonment the offender has received is in relation to the indecent assault offences I referred to a moment ago. I have considered his subsequent record, in particular being the offences of a sexual nature on a young child, in considering his prospects of rehabilitation.

Sentence Assessment Report and psych reports –

46. There are before me a Sentencing Assessment Report and cases notes from an organisation called Open Arms Veterans and Families Counselling concerning counselling the offender has engaged in since May 2019 and in which he continues to engage.

47. The offender did not give evidence on sentence.

Family background

48. In terms of his family background, the Sentencing Assessment Report records that the offender lives in a self-contained flat on the same property where his mother, step-father and brother reside. That report records that he still maintains the support of his family and I note that his mother and sister are present in court today to support the offender.

49. He has limited contact with his three biological children as they, understandably, do not want contact with him because of the offence for which he was sentenced in 2019.

Education and employment history

50. In terms of his employment, the Sentencing Assessment Report records that he is currently in full time employment in his sister’s laundry business.

Substance use

51. The offender told the author of the Sentencing Assessment Report that he believes his offending was triggered by alcohol mis-use. Given the offender did not give evidence during the proceedings, and bearing in mind his age at the time of the offence, and the location of the offence, I am somewhat sceptical about that rationalisation of the motivation for this particular offence.

Psychological/psychiatric history

52. The Sentencing Assessment Report notes that the offender is engaged in, and continues to maintain, forensic psychological intervention seeking to address his offending behaviour.

53. The documents from Open Arms Veterans and Families Counselling record that the offender has attended 24 sessions between 27 May 2019 and early February this year to address his offending behaviour.

Response to supervision if relevant

54. In terms of his compliance with supervision, when on parole when he was last sentenced the Sentencing Assessment Report noted that his response to supervision was considered satisfactory, that he completed a Relapse Prevention Program, and engaged in forensic psychological intervention, and had been compliant with electronic monitoring.

Attitude to the offence

55. The Sentencing Assessment Report records that the offender displayed victim empathy by describing the trauma and ongoing impact his offence may have had on the victim and reported feelings of regret, guilt and shame over his offence. It was also noted in that report the offender was able to identify the impact the offending had on the victim, his family and friends.

The future and risk of re-offending

56. He was assessed in terms of his risk of re-offending in relation to sex offences using what is referred to as the Static 99R Tool by Community Corrections. He was assessed as being in the average risk range of such offending. In relation to the risk of other offending he was assessed as being in the medium to low risk category.

Imposition of sentence

57. The plea of guilty was entered, as I understand it, the week before the trial. I will allow a 5% discount of the sentence for the utilitarian value of his plea.

58. Given the letter he wrote to the victim in 2011, referred to in the agreed facts, and his ultimate plea of guilty, together with the statements reported in the Sentencing Assessment Report, I am satisfied that the offender is genuinely remorseful for this offence.

59. I consider, given the content of the Sentencing Assessment Report, his engaging in counselling, his family support, but also having regard to his subsequent criminal record after this offence, that the offender has reasonable prospects of rehabilitation. I note that the offender has spent one day in custody being the day he was arrested for the offence.

60. There is a real issue of delay to be considered here given the date of the offence and the age of the offender when the offence was committed. It is regrettably well-known by this Court that many victims of sexual abuse when a child struggle to come forward to authorities to make a complaint against their abuser for many years. This Court readily understands why that is so. However, I am sentencing this offender for a crime committed when he was a 13 year old child some 25 years ago.

61. It also needs to be considered that in 2011 the offender wrote a letter to the victim and her parents admitting his wrong doing in general terms. He was not however arrested until August 2019 approximately eight years later. That delay is relevant for two reasons in my view.

62. The offender was, after an elapse of such a time, likely to have considered that he was not going to be charged with this offence after such a long period of time had elapsed since his admission to wrong-doing. Secondly, if he had been charged as at the time of the sentence in 2019 for the offences of indecent assault that I referred to earlier, he could well have had this matter taken into account according to principles of totality when he was sentenced for those offences.

63. I do consider for those reasons that the delay here is such as to moderate the sentence I should impose on the offender.

64. I have considered s 25AA of the Crimes (Sentencing Procedure) Act which requires me to sentence the offender in accordance with today’s sentencing practices and not those which applied at the time of the offence, however the applicable maximum penalty remains that which applied as at the time of the commission of the offence.

65. I note from SW v The Queen that provision does not mean that I am unable to have regard to the relevance of delay, or the fact I am sentencing someone who was a child as at the time of the offence.

66. I have had regard to the objects of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act which include the need to impose adequate punishment, general and specific deterrence, protection of the community, denouncing the offender’s conduct, recognising the harm done to the victim and the community, and rehabilitation of the offender.

67. Sexual offending against young children is abhorrent to all right thinking members of our community. Children are entitled to grow up without being preyed upon by sexual offenders. This Court condemns at every opportunity the commission of sexual offending against young children.

68. In the usual case offending such as what occurred here would attract a significant term of full time custody, however, as I have explained when sentencing a person for an offence they committed when a child, the principles of denunciation, retribution and general deterrence are to be given less weight. The delay, as I have explained, also moderates the sentence here.

69. In oral submissions the Crown conceded that the only appropriate sentence was not one of imprisonment having regard to s 5 of the Crimes (Sentencing Procedure) Act. In my opinion that was a concession appropriately made in the somewhat unique circumstances of this case. The maximum penalty has been taken into account as a legislative guide post.

70. Stand up, Mr D, please. Mr D, you are convicted of the offence of sexual intercourse with a child under ten years of age to which you have pleaded guilty.

71. You are ordered to enter into a Community Corrections Order for a period of two years and ten months. It commences today, 19 February 2021, and expires on 18 December 2023. The conditions of that order are as follows.

72. You are not to commit any further offences. You are to appear before this Court if called upon to do so during the term of the order. You are to comply with supervision by Community Corrections and you are to perform 250 hours of community service work. Have a seat.

73. The offender is required to make contact by phone with Gosford Community Corrections Office by next Friday 26 February.

Orders

1. The offender is convicted of the offence to which he pleaded guilty

2. Impose a sentence to be served by way of Community Corrections Order for a period of 2 years and 10 months. The sentence commences 19 February 2021 and expires on 18 December 2023.

3. The conditions of the Community Corrections order are:

1. The offender is not to commit any further offences.

2. The offender is to appear before the Court if called upon to do so during the term of the order.

3. The offender is to comply with supervision by Community Corrections and to perform 250 hours of community service work.

4. The offender is required to make contact by phone with Gosford Community Corrections Office by next Friday 26 February 2021.

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Decision last updated: 29 March 2021