R v Smith (a pseudonym)

[2024] NSWDC 103

District Court

New South Wales

Medium Neutral Citation:

R v Smith (a pseudonym) [2024] NSWDC 103

Hearing dates:

31 January 2024

Date of orders:

31 January 2024

Decision date:

31 January 2024

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate imprisonment sentence of 6 years and 6 months with a non-parole period of 4 years and 2 months

Catchwords:

CRIME — Sexual offences — Aggravated sexual assault — Victim under authority

CRIME — Domestic violence — “Domestic violence offence”

SENTENCING — Aggravating factors — Familial relationship — Breach of trust

SENTENCING — Mitigating factors — Prior good character — Treated as having no record of previous convictions — Plea of guilty — Remorse— Low risk of re-offending

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence — Form 1 offences — Objective seriousness

SENTENCING — Sentencing procedure — Instinctive synthesis

SENTENCING — Subjective considerations on sentence — Mental Health — Alcohol use —Intoxication — Special circumstances

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW)

Crimes Act1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146

Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600

R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149

Weininger v The Queen (2003) 212 CLR 629

Category:

Sentence

Parties:

Alex Smith (a pseudonym) (offender)
Public Prosecutions (NSW) (Crown)

Representation:

Counsel:
S Dayeian (for the offender)

Solicitors:
Legal Aid (NSW) (for the offender)
C Buckthought solicitor for Public Prosecutions (NSW) (Crown)

File Number(s):

2022/285308

Publication restriction:

Pursuant to s15A Children (Criminal Proceedings) Act 1987 (NSW) and s 578A Crimes Act 1900 (NSW), there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of a complainant. Identifying information has been removed from this version of the judgment to comply with the statutes. Pseudonyms have been used.

JUDGMENT – ex tEMPORE REVISED

Introduction

1. Alex Smith (a pseudonym) was born in Chile in September 1970. He migrated to Australia, where some of his family was already established. He is married and he has a daughter, Ashley (a pseudonym). In 2009, the offender and Ashley’s mother separated. The offender returned to Chile for a period, but his family maintained contact. In February 2022 he returned to Australia and he and his daughter ‘caught up’. They would go out together. At about that time he was living in southern Wollongong. His daughter would visit him. On one earlier occasion she stayed overnight. She slept in the same bed as her father.

Agreed Facts

2. On 22 September 2022, the offender’s birthday, his daughter, then aged 17, came over. She was intending to stay. They had dinner and drank wine. Some cannabis was smoked. More alcohol consumed, from her birthday present; a bottle of whisky. They talked. Part of the conversation included a fatherly lecture about trust. Eventually Ashley, went to bed.

3. In the early hours of 23 September 2022 Ashley woke; she was naked. She heard her father say in Spanish, “Is it okay? Is it okay?” She did not respond. She then felt him touch her vagina. He then inserted his fingers into her vagina: Sequence 3.

4. Shortly after this he licked her vagina with his tongue: Sequence 4. This went on for approximately five minutes.

5. She remained on her side and the offender then positioned himself behind her. He inserted his penis into her vagina: Sequence 5. The penile/vagina intercourse continued for about five minutes until the offender ejaculated. He then took his penis from her vagina, saying in Spanish, “What did we do? What did we do?”

6. Ashley went to the bathroom. She urinated in an attempt to expel the semen. She tried to make calls or messages to her mother and her boyfriend but could not get reception. There was some discussion with her father. He offered to take her home in the morning. She remained the night at his home. In the morning she noticed that the messages on her phone had been sent.

7. During the drive home her father said to her, in Spanish, “What did we do? We were so drunk last night.”

8. She complained to her mother and sisters. Her mother had a text conversation in Spanish. The offender wrote, in Spanish, “Forgive me, I was drunk, I don’t know what happened.” Ashley’s mother responded, “Filthy.” To which the offender said, “I did nothing wrong. Forgive me … It was the damn alcohol. Sorry, I didn’t want to cause harm. I didn’t do anything bad, I was drunk.”

9. Her mother responded, “I have never despised anyone the way I despise you. I would have never imagined that you would put your filthy hands on your own daughter. Sick bastard.” Other expletives were used.

Counts for sentence

10. The police were contacted. They spoke to the offender on 24 September 2022. He gave an explanation and some account of what occurred that night. He said he did not remember what had happened. He was arrested and charged.

11. When the matter was before the Local Court he entered pleas of guilty to two offences, pursuant to s 61J(1) Crimes Act1900 (NSW). The circumstance of aggravation alleged in each count was that the complainant was then 17 and was under his authority. The offence is properly characterised as a domestic violence offence.

12. The first count to which he pleaded, relates to the act of oral intercourse; the second to the act of penile/vaginal intercourse. The act of digital penetration, the first of the sexual indignities committed upon the complainant, was also charged as a 61J(1) offence. That matter was placed on a Crimes (Sentencing Procedure) Act 1999 (NSW) Form 1. Guilt was admitted to it. I will take it into account when I sentence for the offence involving the oral intercourse. I do not sentence for the matter on the Form 1. Given its seriousness there is a need, to increase the penalty for the count to which it relates. That increase recognises the need for personal deterrence and retribution: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 at [39]-[42].

13. When I do so, I note that care has to be taken because the whole of the incident has to be viewed in context. This was the preliminary act of in a continuing course of criminal sexual conduct. I must not double count matters that are preliminary to and give context to the specific offences for sentence and are also on the Form 1.

Maximum penalties and standard non-parole periods

14. The maximum penalty for both matters is 20 years’ imprisonment. There is a standard non-parole period of 10 years. It relates to an offence that, taking into account only objective factors, falls in the middle of the range. The maximum penalty and the standard non-parole period are important guides to the exercise of my sentencing discretion. Content should be given to the standard non-parole period. But they are guides, and every sentence is individual, every fact situation is individual, and every offender is an individual.

15. Those guides and the guidance offered by decisions of other courts, particularly the Courts of Appeal, are important to the exercise of any sentencing discretion. There should, so far as possible, be consistency in sentencing decisions.

Pleas of guilty

16. The pleas of guilty were indicated in the Local Court. I will reduce the sentences that I intend to indicate for the individual offences by 25% to reflect the utilitarian value of the plea. And as there must be some accumulation between the counts to reflect the continuing course of conduct and the separate offending, I will take care not to erode the benefit of that discount by the process of accumulation.

17. The guilty plea has other value. I will take it into account generally when I come to synthesise all relevant factors. It shows, despite the initial statement to police, that Smith, although he says he could not remember what he did, has accepted his guilt and responsibility for what occurred. It is consistent with the expressions of remorse expressed through his psychologist; matters I will take into account.

Objective seriousness

18. While I will, as I must, take into account the offender’s subjective case, I must also make an assessment of the objective seriousness or gravity of each of the offences. There are no prescribed set of descriptors that must accompany such assessment, but I trust my reference to critical matters will make a conclusion, that this was a particularly serious offence, obvious.

19. It does not require too much elaboration; the facts speak for themselves. A father took advantage of his sleeping daughter to have sexual intercourse with her. She was under his authority. She was vulnerable. She was in his home, and he had that very night said she was welcome and where family trust was expected.

20. While she was there and under his authority, he abused the trust that he had asked her to show in him; trust that is expected from a daughter to her father.

21. There are differences between the element of the offence ‘under authority’ and a ‘breach of trust’. ‘Under authority’ encompasses the notion of providing care and assistance, such as a home or a bed. Both are matters that need to be taken into account. Again, care needs to be taken to look at all of the facts holistically and not compartmentalise them.

22. Each act involved the sexual violation of the child. The act of intercourse, whether it be cunnilingus or penile/vaginal intercourse, can be equally invasive and harmful.

23. I have to consider; the character of the sexual assaults and the degree of physical contact, the nature of the act of intercourse, and the time over which the acts occurred – each occurred over a five-minute period.

24. Here the act of penile/vaginal intercourse carried greater risk of harm because a condom was not used, and the offender ejaculated. There was, as there always is in such cases, a risk of pregnancy. That risk was exacerbated in psychological terms by the familial relationship between the offender and his victim. There was of course an age difference, but the father-daughter relationship and the breach of trust involved makes this offending particularly serious.

Victim Impact Statement

25. That breach of trust is reflected in the Victim Impact Statement provided to the Court. Ashley speaks of the immeasurable degree of betrayal she feels. She notes that she is seeing a psychiatrist and counsellors. She believes that they will have to work very hard before she can begin to heal.

26. As a consequence of the offending; she has attempted self-harm, she has dropped out of the professional course she was doing, she has “trouble sleeping” and she is using “alcohol to numb [her] pain”. She is incapable at this stage of seeing or making “plans for [her] future.” She notes the expenses and the financial losses she and her family have suffered, and they are not inconsiderable. She has lost work. She has lost her trust in men and feels uncomfortable with them. She has problems with her own emotional reaction to individuals. She has lost part of her life and her future. She concludes:

“I miss the person I could have been … I miss being able to have healthy relationships with people my age. I miss being able to enjoy my life without numbing my pain with alcohol. I miss having the opportunity to reconcile my relationship with my dad. Because of his actions, I will be forever changed. I hadn’t even begun to really experience life, and I’ll never know who I could have been if this hadn’t been done to me.”

27. The Victim Impact Statement attests to the personal harm Ashley suffered as a direct result of the offence, and the economic loss she suffered. I have no difficulty accepting what she said. Sadly, this is not the first case that I have had to deal with where a father has had sexual intercourse with a daughter. Sadly, what is said in the Victim Impact Statement reflects a very common response to such offences.

28. The law in relation to these matters has a high maximum penalty and a standard non-parole period. The law will be strictly enforced. The reason we have these laws is sad because they should not be necessary, but they are intended to protect children from the physical and psychological harm taken to be caused by improper and unlawful, both morally and legally, sexual intercourse and the fact that the offences occurred without her consent in circumstances where, given she was sleeping, it must have been obvious there was no consent. It follows that every act that involves sexual interference with a child is serious and that is accepted by the parties.

Record

29. Although the offender has one matter on his record from Chile, I will treat him as a first offender. The commission of this offence had nothing to do with his lack of criminal antecedents. His lack of criminal antecedents is one indication of his prospects for the future. Despite the matters to which I will soon refer, he has never offended while he has been in Australia, he will not have the opportunity of offending against his daughter again. He is entitled, to the extent that it is possible in a matter such as this, to have his good character taken into account. But it is not a significant mitigating factor given the nature of the offending.

Subjective case

30. The offender did not give evidence. His case was put through a report of Ms Stephanie Bennett, a consultant forensic psychologist. The material before the Court, however, while not supported by evidence on oath, is not controversial.

31. Smith was raised in Chile. He still has family there. He reports a positive childhood. He was not exposed to trauma. His father, he reports, used alcohol to excess. He reports that as a teenager he followed his father’s example and used alcohol to excess.

32. He has been in consistent employment as a factory worker in Chile and in Australia. In Australia he did additional work as a domestic painter on weekends. He has a Certificate III in painting and decorating. He has worked consistently and hard all his life. Even in gaol he has obtained work as a kitchen hand.

33. It appears that he was able to live what could be regarded as an ordinary community life, both in Chile and in Australia, with friends and family support. He was in a relationship with the mother of the complainant for 16 years. But those friendships and his relationship were blighted at times by his excessive alcohol use.

34. It is clear from the material in the report that he failed to take into account the impact of alcohol on him in his relationships with friends and family. This underlying problem must be addressed to avoid further offending.

Alcohol use

35. As I noted in discussion with counsel, despite his alcohol use, it did not appear to have affected his capacity to work, and he did not come to the notice of police for any alcohol-related offences.

36. It is not in dispute, that the offence occurred after he had consumed a considerable quantity of alcohol. That fact cannot excuse what occurred. As a matter of practice and law, pursuant to s 21A(5AA) Crimes (Sentencing Procedure) Act1999, that fact cannot and will not be taken into account, when it comes to assessing the penalty, as a matter of mitigation. At best, his alcohol use can explain what appeared to be an impulsive offence. But even when saying that, it must be noted there were three acts, two of which are for sentence. He did not stop. He did not consider the consequences of his actions for himself, let alone for his daughter.

37. His alcohol history and his gross intoxication on the night are relevant only because they provide some assistance to; understanding the person for sentence, the origin of his alcohol problem, and what must be taken, for community safety reasons, into account so far as his future is concerned on release. It goes to his prospects of further offending or rehabilitation: R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149 at [273].

Mental health

38. The report indicates a history of depression, which might be related to his alcoholism. There is depression in relation to the situation he has put himself in because he is in gaol. That is obvious. Any rational human being who committed an offence such as this and is then facing a lengthy prospect in gaol would be depressed at the prospect. There is nothing, however, in the material before me in his background or otherwise, that causes me to reduce his moral culpability or lessen the need to denounce the crime. A submission was made that because of the nature of the offending he may find his time in custody harsher than other prisoners.

39. As Ms Buckthought for the Director pointed out, in matters such as this that is really, in the absence of other evidence, a matter for Corrections’ authority and appropriate classification.

40. There is material before me that means that before he is released, he would benefit from custody-based sex offender treatment. I will have the report, Exhibit 1, sent to Corrections. It may be, given the nature of this offence and the lack of any indications of other improper sexual proclivities, that he may not get such assistance. But it is important to note, so far as the community is concerned, that if there are programs available to him that he is said to take them. He must understand that if he fails to engage in any program recommended for him it may interfere with his prospects for release.

41. Ms Bennett diagnoses an Alcohol Use Disorder (severe), and the possibility of a Cannabis Use Disorder. She also recommends that he engage in EQUIPS Addiction programs. He should enrol in those as soon as practicable. Sex offender treatment is available to him in the community, but her primary recommendation is that he engage with community drug and alcohol services. If he returns to this area, those provided by the Illawarra Shoalhaven Drug and Alcohol Service can assist him.

42. Ms Bennett’s report sets out dynamic risk factors, including those which are protective and those which elevate his risk of offending. Those that elevate the risk, relate primarily to alcohol and drug use and, if addressed, make his risk of reoffending below average.

Submissions

43. I am indebted to Ms Buckthought, solicitor for the Director of Public Prosecutions, and Mr Dayeian, for the offender, for the comprehensive written submissions. They were very thorough. There is no significant difference between them on matters of principle. Some factual matters were put in issue. They both spoke briefly to those submissions.

44. Ms Buckthought drew my attention to the Victim Impact Statement; the expressions indicating the trauma and other harm she has suffered. She noted that so far as his time on parole was concerned, apart from his need for rehabilitation so far as alcohol is concerned, he may require some additional supervision. She reminded me that care needs to be taken when calculating the minimum period of custody to ensure that it reflects the gravity of his offending and the other purposes of sentencing. I will take that submission into account.

45. It is accepted that while these matters occurred during the one incident, the continuation of the offending and the separate offending require some accumulation. But that the purposes of sentencing apply equally to both matters. The total sentence should, in a broad sense, cover the overall criminality involved in the two matters for sentence.

46. Mr Dayeian, in his succinct oral submissions, noted that there was no history at all of grooming nor any sexual interest in his daughter prior to the commission of this offence. This night was an aberrant, albeit very serious, one-off event. He noted that Smith’s risk of reoffending was assessed by the psychologist as being “low”.

Synthesis

47. The sentence I impose can only be one indicator of the seriousness with which the Court and the community view these crimes. I have to take into account all relevant considerations. In matters such as this there can be no direct correlation between the harm done to the complainant and the amount of time a person must be removed from the community. She should never equate or measure her injury and harm with the punishment actually inflicted.

48. In matters such as this there are complex matters that have to be considered. We have a man who came to this country; who worked, provided for his family, and, until this event, despite his alcohol problems, was well regarded in the community. In the space of a few minutes, he destroyed his reputation and everything he had built.

49. Within the space of those few minutes, he breached the trust that a daughter must have in their father. And, he did so in a terrible way, a terribly criminal way. He took advantage of her while she was sleeping, and he continued with that action. The Victim Impact Statement sets out the potential lifelong impact of that loss of trust.

50. Smith is working in gaol. It is in his interest to engage in any programs that are offered to him and to cooperate with the State Parole Authority. When he is returned to the community, after he serves the minimum period that the Court requires is necessary, I anticipate he will be able to eventually resume lawful life in the community. But he will forever carry the stigma of his offence. So he should, but that stigma is nothing compared to the harm done to his daughter, she will carry this burden for the rest of her life.

51. Courts have an obligation to vindicate the dignity of victims of sexual intercourse and to express the community’s disapproval of what was done: Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600 at [52]-[58]. But a judge must attempt to translate the human condition both for the offender and particularly, for his victim, into units of punishment: Weininger v The Queen (2003) 212 CLR 629 at [24].

52. I take into account all the submissions made. I note; the discount for his guilty plea and his prospects. His need for supervision and assistance in adjusting to normal community life on release, provide a basis for a modest finding of special circumstances. The sentences I indicate will take into account the plea’s utilitarian value. There will be an aggregate sentence. I have sought not to erode the benefit of the plea when I came to fix an aggregate sentence.

Orders

53. I indicate for the first matter, oral intercourse, which takes into account the Form 1: a sentence of 5 years and 3 months’ imprisonment with a non-parole period of 3 years and 4 months.

54. In relation to penile/vaginal intercourse there will be an indicated sentence of 5 years and 3 months, with a non-parole period of 3 years and 4 months. For transparency’s sake, as indicated earlier, this was a more serious act for the reasons I set out. The first count involved the Form 1, which I have taken into account on that matter.

55. There will be an aggregate sentence of 6 years and 6 months’ imprisonment. The sentence will commence the day Smith went into custody, on 6 September 2023. There will be a non-parole period of 4 years and 2 months. Smith will be eligible for consideration for release to parole on 5 November 2027. There will be a parole period of 2 years and 4 months which will commence on 6 November 2027. The total sentence will expire on 5 March 2030.

56. Release to parole is not automatic, it is subject to a determination by the State Parole Authority who must consider issues of community safety.

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Decision last updated: 08 April 2024