R v SMP

[2018] NSWLC 2

Local Court

New South Wales

Medium Neutral Citation:

R v SMP [2018] NSWLC 2

Hearing dates:

6 February and 20 March 2018

Decision date:

20 March 2018

Jurisdiction:

Criminal

Before:

Judge Graeme Henson, Chief Magistrate

Decision:

See [48] and [54].

Catchwords:

CRIMINAL LAW – Sentencing – assault with an act of indecency – historical offences – offender juvenile at time offending – committed in victim's home – breach of trust – towards upper level of objective seriousness - prior good character - unlikely to reoffend – good prospects of rehabilitation – utilitarian value of guilty plea – mistake to assume proceedings would have been dealt with in children’s jurisdiction – at odds with current authority – court must approach sentencing on basis of penalties which existed at time of offending, and prevailing sentencing patterns and procedures – sentence of imprisonment imposed - suspended on condition that offender enter bond for each conviction

Legislation Cited:

Child Welfare Act 1939 (NSW) (repealed)
Crimes Act 1900 (NSW) s 61E(1)
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A(g), 5, 10, 21A(2)(g), 21A(2)(eb), 21A(2)(l), 27(3)(d), 32

Cases Cited:

Jonson v R [2016] NSWCCA 286
MC v R [2017] NSWCCA 316
PH v R [2009] NSWCCA 161
PWB v R [2011] NSWCCA 84
R v Borkowski [2009] NSWCCA 102
R v Doan (2000) 50 NSWLR 115
R v JCW [2000] NSWCCA 209
R v Lulham [2016] NSWCCA 287
R v Mailes (2003) 142 A Crim R 353
R v Nelson [2016] NSWCCA 130
R v Taylor [2000] NSWCCA 442
R v Thomson; R v Houlton (2000) 49 NSWLR 383
R v Ware (unreported, NSWCCA, 9 July 1997)
R v Zamagias [2002] NSWCCA 17
TC v R [2016] NSWCCA 3
Wilmot v R (2007) 169 A Crim R 280

Category:

Sentence

Parties:

NSW Director of Public Prosecutions (prosecutors)
SMP (defendant)

Representation:

Counsel:

 

T Edwards, of counsel (for the defendant)

 

Solicitors:

  L Gallagher, NSW Director of Public Prosecutions (for the prosecution)
T O’Rourke, solicitor (for the defendant)

File Number(s):

2016/232906

Publication restriction:

Order made prohibiting the publication of any details capable of giving rise to a capacity to identify the victim in these proceedings. Such orders to extend to identifying the defendant pursuant to 15(i)(a) Children (Criminal Proceedings) Act 1987 (NSW).

Judgment

1. The defendant (SMP) is to be sentenced in relation to three counts of assault with an act of indecency. Each charge is brought pursuant to section 61E(1) of the Crimes Act 1900 (NSW). The maximum penalty for each offence as at the date of the commission of each offence was 6 years imprisonment. Against that statutory expression the jurisdiction in which sentence is to take place is one that ordinarily acknowledges the decision in R v Doan (2000) 50 NSWLR 115 wherein the Court of Criminal Appeal said that the jurisdictional limit does not detract from the objective seriousness of the offence. The jurisdictional circumstances in these proceedings are complicated further by the fact that the offences for which the defendant is to be sentenced are different from the position that applied in 1984 and 1985. As a juvenile during that period the charges against the defendant would have been dealt with in accordance with the procedural and sentencing options applicable under the Child Welfare Act 1939 (NSW). I will return to this issue later in these remarks.

2. The defendant was originally charged in August 2016 with five counts of sexual assault for conduct alleged to have occurred in and between 1983, 1984 and 1985. In that period the conduct described in charges 1 and 2 did not as a matter of law constitute sexual intercourse. The law at the time rendered that conduct, and the conduct contained within the Form 1, indecent assault contrary to the provisions of section 61E(1) of the Crimes Act. The maximum penalty applicable at the time was imprisonment for 6 years. Section 61E was repealed in 1986.

3. Complicating the proceedings is the reality that the defendant was, at the time of the commission of the offences, a juvenile aged varyingly 16 and 17 years of age. A further consideration relevant to the determination of sentence is the delay in complaint. The conduct of the defendant was not drawn to the attention of police until 2016. The current charges were substituted for the 2016 charges on 27 July 2017. As the institution and withdrawal of the earlier charges was due to initial error on the part of the prosecution it is appropriate to deal with the timing of the plea only in relation to the passage of the current charges through the Court from the date of their institution in July 2017.

The Plea

4. Counsel for the accused conceded the pleas to the alternate charges were not at the first available opportunity. I agree. Although the charges for which sentence is to be passed were not laid until July 2017 (apparently in substitution of the charges originally laid for offences that were not amenable to that category of charge at the time of the commission of unlawful conduct) the defendant initially entered pleas of not guilty to the substituted charges that were correct at law. These matters, which were to proceed as summary hearings were originally listed for a two day contested hearing. A plea of guilty to each charge was only entered on the day appointed for the first day of hearing. Two of the three charges are to proceed to sentence. A remaining charge has been placed on a Form 1 pursuant to section 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The utilitarian value of the plea is affected in the manner described in R v Thomson; R v Houlton (2000) 49 NSWLR 383 and in R v Borkowski [2009] NSWCCA 102. The Court allows a discount of 15% for the utilitarian value of the plea.

The Facts

5. A statement of agreed facts is attached to the court papers. They were signed on 5 and 6 December 2017 by the Crown and the defendant. The contents have been noted by the Court and are expressed in these remarks in abbreviated form. Before doing so it is appropriate to place the conduct in context.

6. The offender and the victim are described as step brother and step sister. This is as a result of the formation of a liaison between the father of the victim and the mother of the offender following the breakdown in the marriage of the father of the victim and his wife. When the victim was aged about 10 years of age the offender and his mother moved into the premises in which she resided with her father. The offender was at this time about 14 years of age.

7. The first course of conduct referred to in the agreed facts relates to the matter placed on the Form 1. Between December 1983 and the end of February 1984 the offender, who was 16 years of age, went for a night time walk with the victim, who was 12 years old. During that walk the offender became engaged in hugging and kissing the victim for some 15 minutes before they both returned home.

8. The second course of conduct occurred between 14 and 15 December 1984. The victim came home from a blue light disco outing to find the defendant waiting for her. On this occasion the defendant inserted his finger into the victim’s vagina whilst they were engaged in kissing.

9. The final matter to which a plea was entered occurred between 28 February 1984 and 31 December 1984. The victim was 13 years of age. On this occasion the defendant asked the victim to engage in the act of fellatio. He explained to her how that should be done and whilst she was carrying out this act he inserted his fingers into her vagina.

10. There are other matters set out in the facts suggestive of further offending of like nature. It is however appropriate and necessary to refer to the inclusion of the assertion in the agreed facts because it is conceded by such agreement that the conduct of the defendant went beyond the three instances for which sentence is to be passed.

11. They are relevant in the sense that they rebut the assertion that the three charged offences represent an isolated set of instances, however the lack of specificity and generalised nature of the statement in the facts cannot be used to aggravate the sentence for the charged offences R v Mailes (2003) 142 A Crim R 353 at [51]; R v JCW [2000] NSWCCA 209 at [68].

12. The Court was provided with a powerful victim impact statement prepared by the victim and read onto the record on her behalf. Such a statement is admissible in the Local Court by reason of section 27(3)(d) of the Crimes (Sentencing Procedure) Act 1999. The statement is relevant for the purposes of section 3A(g) of the Act in terms of recognizing the harm done to the victim and the community. In this matter it is also relevant for the purpose of section 21A(2)(g) in determining that the injury, emotional harm caused by the offending, was substantial.

13. In the ordinary course of events aggravating factors require proof beyond reasonable doubt. In these proceedings the statement was both read onto the record and tendered as part of the prosecution material. The content of the statement was not tested in an evidentiary sense. However, consistent with the defendant’s attitude towards the victim expressed within these proceedings, the statement was both read and tendered without objection. As was noted in Wilmot v R (2007) 169 A Crim R 280, subject to content, it is open to the sentencing court to make a finding of substantial emotional harm where the statement is tendered without objection.

14. The content of the statement is compelling. No right thinking member of the community, particularly one who has had the privilege of children, could remain unmoved hearing the content and the impact of the defendant’s bending of the victim to his will for sexual gratification. The vivid memory of what was done to her is amplified by the reality that she continues to suffer from the memory some 34 years later.

15. According to her current medical practitioner in a note penned on 1 February 2018 she continues to endure “severe post-traumatic stress syndrome” and is on a number of medications given by a psychiatrist at Royal North Shore Hospital. She has suffered two breakdowns and it is clear from her statement that the memories of what the defendant did to her and how she was treated not just by him, but by his mother and others are still extremely raw. The Court has little difficulty coming to the view that the provisions of section 21A(2)(g) are established such that the offending is aggravated. In arriving at this conclusion I have disregarded references to uncharged conduct expressed within the statement.

Additional Section 21A(2) Considerations

16. The offending is further aggravated in relation to the two matters to which pleas have been entered by reason of section 21A(2)(eb). These offences were committed in the home of the victim. As Jonson v R [2016] NSWCCA 286 at [40] confirms, it is no longer the law that such a reality cannot be taken into account if the offender and the victim share the same house. Why that is so is explained by Bathurst CJ in R v Lulham [2016] NSWCCA 287 at [5]. The Chief Justice said:-

“The reason it can be taken into account as an aggravating factor is that an offence to which the subsection applies involves the violation of the victim’s reasonable expectation of safety and security in his or her home”.

17. The Crown argues further that the offending is aggravated by reason of a breach of trust on the part of the defendant. In support of that argument the Court’s attention is drawn to the decision in PWB v R [2011] NSWCCA 84 at [19]. The observations of Hulme J are worthy of repetition. His Honour said:

“The Applicant abused his position in the family as an older brother. Although he was not in a position of parental authority, the relationship between the siblings nonetheless called for trust, respect and support, not abuse”.

18. I also agree with the submission by the Crown to the effect that the victim was a vulnerable victim for the purposes of section 21A(2)(l). A young child at the ages of 12 and 13 does not have the life skills or knowledge to effectively resist the type of conduct imposed on her by the defendant. Because of the age of the victim consent is not an issue. Silent acceptance of the defendant’s behaviour is not informed consent. The conduct is not mitigated in any way by the submission of the victim. Given her age in these matters it is of no relevance. I adopt the submission of the Crown in citing Basten J in R v Nelson [2016] NSWCCA 130 as to his honour’s observations of “lack of opposition”. Counsel for the defendant was right not to venture down this avenue.

19. At this point it is appropriate to deal with the issue of objective seriousness. It is the view of the Court the conduct of the accused in respect of those matters to which pleas of guilty have been entered is towards the upper level of objective seriousness. Bearing in mind the aggravating factors found to apply under section 21A(2) the moral culpability of the defendant is high.

20. I turn to the subjective factors relevant to the defendant.

21. The defendant is 51 years of age. He has no prior criminal antecedents. In assessing the subjective factors I have been assisted by submissions from counsel, a Pre-Sentence Report and a psychological report. The offender is married and resides with his wife, three children and his mother. Ironically the defendant’s wife is a senior practitioner in the field of sexual assault services.

22. The defendant works in real estate and is regarded by his employer, who is aware of these proceedings, as “exceptional”. He is well connected within his community and an active member of his church. From a social perspective he presents as an otherwise responsible, contributing, law abiding member of the community and as one who has a deep connection with family. The latter observation is further enhanced by the contribution of the defendant and his wife in fostering two children in addition to their natural children and the apparent fact that he remains in contact with them after they reached adulthood.

23. Given the course his life has taken since the commission of the offences emphasis on specific deterrence and general deterrence assume a lesser mantle of importance. The offender is unlikely to reoffend and thus has good prospects of rehabilitation.

24. Counsel for the defendant urged a number of additional considerations on the court in mitigation of penalty. Primarily it was argued that a sentence of imprisonment would be inappropriate, given the age of the defendant at the time of the offending and the jurisdiction in which it may have been dealt with to finality.

25. It is suggested that the appropriate outcome and one analogous to the speculative outcomes of a Children’s Court in 1984 and 1985 would be to apply the provisions of section 10 of the Crimes (Sentencing Procedure) Act 1999 on the basis the defendant would have been unlikely to have been convicted or penalised had he been dealt with in those years. No information has been put to the Court to support this contention. There is however authority for the position that juveniles during that era were not dealt with leniently for this type of conduct.

26. The decision in PWB is of particular relevance in these proceedings because in that matter the offender was about 17 years of age; the victim was about 10 years of age. The offending occurred in 1987. Complaint was made in 2007 and the offender was sentenced to a not insignificant period of imprisonment. It is important to note that the Court of Criminal Appeal, whilst reducing the period of imprisonment significantly, confirmed the finding that a custodial sentence was appropriate. Noting that counsel for the defendant submitted that his client should be dealt with pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1999 for the offending the decision provides more than sufficient rebuttal without more to that suggestion.

27. The decision also lends support to the rejection of the submission by defence counsel that this Court should proceed to sentence on the basis that the offences to which the defendant has pleaded guilty would have been dealt with in the Children’s jurisdiction. That assumption is clearly at odds with the detailed review of sentences undertaken by Hume J in PWB.

28. The position with which the Court of Criminal Appeal was faced in PWB is not materially different to that confronting this Court – the problem of sentencing an offender for historical offences. In MC v R [2017] NSWCCA 316 it is settled law that a Court must approach the sentencing of the offender on the basis of the maximum penalties that existed at the time of offending and in accordance with sentencing patterns and procedures (including the structure of such sentences) then prevailing.

29. These principles bring the court back to other observations made in PWB and historical perspective.

30. In 1984 and 1985 criminal offences brought against persons under the age of 18 were subject to the provisions of the Child Welfare Act 1939 (NSW). Section 4 of that Act defined the categories of juveniles. A child was a person under the age of 16. A young person was a person aged between 16 and 18. The defendant in these proceedings would appropriately be described as a young person, not a child.

31. Discretionary authority for a Children’s Magistrate to deal with an indictable offence was established by section 12(1(b) of the Act. Where such discretion was exercised the sentencing options were set out in section 83 of the Act. Such outcomes ranged from a decision not to proceed to a finding of guilt pursuant to section 83(3) or to commit the young person to an institution for a period not exceeding 3 years pursuant to section 83(2)(d). There was however another power, consistent with the vesting of discretion. Section 86(2) allowed a Children’s Magistrate to commit a young person for trial to be dealt with according to law. Curiously, appellate court decisions dealing with the sentencing environment during this era seem not to address this option.

32. It is also important to note that the statement of legislative policy set out in section 6 of the Children’s (Criminal Proceedings) Act 1987 (NSW), which encourages a perhaps more understanding, lenient appreciation of offending behaviour with a focus on rehabilitation, was not contained in the Child Welfare Act.

33. Accordingly against that legislative background it would be a mistake to assume that proceedings such as those before me would have been dealt with in the Children’s jurisdiction. Why that is so is demonstrated in the facts and decision of PWB itself and some of the other cases described in that decision. The facts in PWB and the relative ages of the offender and the victim are not greatly dissimilar from the situation in these proceedings. The objective seriousness of the conduct in these proceedings however is at a higher level than those described in PWB.

34. In addition to the decision in PWB there is the decision of R v Ware (unreported, NSWCCA, 9 July 1997) – set out at [84] of PWB. Although the legislative scheme had by then changed and the maximum penalty with it for one of the offences, the nature of the conduct is very similar to the behaviour in these matters. Once again this was a matter dealt with on appeal from the District Court. The offender was 17 at the time of the offence. This matter related to offending that took place in 1997, a date after the commencement of the Children’s (Criminal Proceedings) Act. The section 6 considerations in that matter did not cause the prosecution to be completed in the Children’s Court.

35. Rather than accepting a default position that the Children’s Court deals with matters of this nature as a routine and would have done so in 1984 and 1985, each case highlights the preferred inference, that over the years the Children’s Court magistrates judge each indictable matter on its merits and choose the considered appropriate jurisdiction accordingly. I can make no finding that this would not have occurred in these matters had they been charged during the years in which the offending occurred or before the offender became an adult.

18. Nor can I come to a conclusion that the defendant would not have been committed to an institution for a lengthy period of time had he been dealt with as a juvenile. Objectively, the offending would likely have been viewed as serious. It should not be overlooked that in less than 2 years after the second offence was committed the legislature redefined the nature of the conduct the subject of the charges in question and placed them in a category that made an offender liable for a significantly greater penalty than that which applied to the offences of assault with an act of indecency.

19. On the question of remorse counsel submitted that the transcript of telephone conversations between the victim and the defendant before charges were laid indicate contrition and remorse. Those conversations were recorded at the instigation of police. I accept that there is a degree of remorse on the part of the accused albeit somewhat belated. The Court does not lose sight of the fact that the victim has carried the debilitating consequences of the defendant’s conduct with her for decades. Her life has been severely affected from the very beginning of his conduct, criminal offending conduct for which the victim, given her age at the time, bears absolutely no responsibility whatsoever. The impact of remorse for the defendant is arguably something that has occurred only in recent times.

The Sentence

38. I restate the conclusion that there is no basis upon which these proceedings are amenable to disposition pursuant to section 10 of the Crimes (Sentencing Procedure) Act. That was a view taken by the District Court in relation to an historical prosecution and confirmed by the Criminal Court of Appeal in TC v R [2016] NSWCCA 3. It is appropriate to note that in that case the offending was at a lower level than that which occurred in these proceedings. For my own part although the Criminal Court of Appeal confirmed the first instance decision to release the offender on a section 9 bond, that is not a sentence that is appropriate in these matters.

39. The defendant argues that the need for general deterrence is not a major factor because of the delay in the prosecutions and that there is no need for specific deterrence because the defendant is effectively rehabilitated.

40. It is the case that general deterrence may be given less weight when the time between offending and sentence is considerable and there has been no further offending. However, as Howie J said in PH v R [2009] NSWCCA 161 at [32]:

“This is not to imply that general deterrence is of no significance. Potential offenders should understand the Courts will treat these types of offences harshly notwithstanding that extensive delay occurs before the offender is punished”.

41. I would agree that the need for specific deterrence is affected by the period of time that has elapsed between the offending and sentence. There has been no further offending as an adult. The psychologist report assesses the defendant as having “ a low risk of engaging in sexual recidivism” although it does highlight a willingness on the part of the offender to participate in psycho educational counselling to address issues raised by the current charges.

42. In its detailed and helpful submissions the Crown suggests these matters should be dealt with by way of sentences of imprisonment. Such a view is understandable. A society which is now much better informed and alive to the fact of sexual assault and insightful as to the long term consequences for victims expect courts to do their best to stamp out such unacceptable wickedness. Where it is appropriate for a court to take such a course it should not be deterred from its task merely because the offender was a juvenile.

43. In these proceedings the Court must undertake a difficult sentencing exercise, balancing the objective seriousness of the conduct, which takes into account the aggravating factors and hence level of moral culpability against those factors, such as prior good character, the utilitarian value of the plea and prospects of rehabilitation that operate to mitigate the penalty that would otherwise be applicable. It must do so by doing the best it can to reflect the sentencing attitudes that prevailed in 1984 and 1985 and with the knowledge that the community today is unlikely to understand the constraints that superior court decisions, such as MC place on a sentencing court.

44. It is impossible to know with any certainty whether a matter such as this would have remained in the Children’s jurisdiction in 1985. It is possible to conclude that the gravity of the conduct would make it less likely to have been dealt with without a conviction. It is possible to come to a view that the seriousness of the conduct is so great that it would have resulted in a committal to an institution and it is possible as indicated earlier, by noting similar cases proceeding on appeal against sentence from the District Court to the Court of Criminal Appeal to conclude that a Children’s Magistrate may just as likely have committed a young person to the District Court to be dealt with according to law.

45. Without any material to suggest the contrary it is the preferred view of this Court that the latter outcome would have been highly likely. That being so it is appropriate to acknowledge again the observations of Hulme J in PWB and the sentences reflected in the Court’s review of those imposed at first instance in the District Court.

46. Taking both the aggravating and mitigating factors into account and giving due recognition to the utilitarian value of the late plea, as well as noting that sentences of imprisonment require a court to be satisfied according to section 5 of the Act that “having considered all possible alternatives that no penalty other than imprisonment is appropriate”, I come to the view that the section 5 threshold in these matters has been crossed. Whilst I have come to the view that imprisonment is required it is important to again acknowledge the observations of superior courts in relation to sentencing in general in 1984-85, namely that sentences imposed at that time were of a lesser duration than those that would be imposed in the present day and must be tailored accordingly.

47. The sentence imposed on Count 1 in PWB was one of 4 months imprisonment. The offending behaviour in these matters is far more serious in both matters. The 1985 offence is more serious than the 1984 course of conduct and warrants a lengthier sentence. In reaching sentence the matter on the Form 1 has been taken into account. It is significantly less serious such that it plays no real part in extending either sentence.

48. The defendant is convicted on each charge. He is sentenced on sequence 7 to imprisonment for a period of 6 months. He is further sentenced on sequence 8 to imprisonment for a minimum period of 9 months with an additional period of 3 months.

49. Having determined the length of each sentence it remains, in accordance with the principles set out in R v Zamagias [2002] NSWCCA 17, to determine the manner in which it is to be served. Here again appellate court decisions point in different directions. In PWB the Court was urged to release the offender on a bond under section 12 of the Act. Justice Hulme rejected that submission. He did so on two bases; that the application of section 12(2) precluded such an option, presumably because the appellant had been in custody serving the first sentence at the time the proposal was put to the court, and secondly that because there was no risk of the offender reoffending a good behaviour bond was not a sensible result.

50. A contrary position was taken in TC (supra) where, in rejecting an appeal seeking the substitution of a bond under section 10 for the one pursuant to section 9 imposed at first instance, the Court reimposed the section 9 bond. A bond under section 12 is higher up in the sentencing hierarchy. Although a more lenient outcome, suspended sentences have nonetheless been recognized by courts as a penalty with potential significance. As the Court of Criminal Appeal observed in Zamagias at [32]:

“It is perhaps trite to observe that although the purpose of punishment is the protection of the community that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation. In such a case a suspended sentence may be particularly effective and appropriate.”

51. These observations are qualified by the observation in R v Taylor [2000] NSWCCA 442 wherein Wood CJ at CL observed that where a full time custodial order was necessary to reflect adequately the element of general deterrence, a suspended sentence provides very little if anything by way of general deterrence. In the ordinary sense it would not be appropriate to consider suspending a sentence for matters of this nature. Swiftly prosecuted general deterrence is undoubtedly of significant importance. However, where delay is significant, the conduct ceased and the offender has done much to engage in society in a constructive and contributing manner, general deterrence becomes of lesser importance but as was said in PH (supra) not of no significance at all.

52. On balance a sentence of full time imprisonment at this point will have significant consequences for the offender’s family, including his children. Whilst impact on third parties is not of itself a persuasive consequence unless the circumstances are exceptional, it is nonetheless a very real impost to a family with three young children. The consequences for the offender’s family do not outweigh in any fashion the consequences of his conduct with which the victim has had to suffer for so many years but a court should not sentence in a vacuum.

53. On balance I have come to the view that the purposes of sentencing reflected in the need for denunciation and retribution along with the impact of the crime on the victim can be achieved by suspending the sentences of imprisonment, with the proviso that the defendant be required to undergo the psycho educational counselling program proposed by the Forensic Psychologist, Ms Jenny Howell.

54. The formal orders of the Court are that the sentences of imprisonment imposed be suspended on condition the offender enters a bond in relation to each sentence. The duration of the bond is to be commensurate with the length of each sentence of imprisonment imposed. Each bond is conditioned that the offender be of good behaviour. It is a further condition that he accepts the supervision and direction of the Community Corrections Officer for the periods of each bond and obeys all reasonable direction of that officer including a direction to participate in psycho educational counselling and such other programs as may be required by the supervising officer.

55. Upon entering each bond the defendant has 48 hours in which to report to the Community Corrections Office at Dee Why.

56. The defendant is to be registered as a registrable person under the Child Protection (Offenders Registration) Act 2000 (NSW).

Judge Graeme Henson AM

Chief Magistrate

**********

Decision last updated: 04 May 2018