R v Ward

[2023] NSWDC 352

District Court

New South Wales

Medium Neutral Citation:

R v Ward [2023] NSWDC 352

Hearing dates:

13/9/22-21/9/22, 23/2/23

Date of orders:

23/2/23

Decision date:

23 February 2023

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to an aggregate term of imprisonment of 18 months, to be served by way of Intensive Correction Order. In addition to the standard conditions, the following conditions will apply:

1. Not consume illicit drugs or any prescription-only drugs other than those prescribed for him by a medical practitioner.

2. Undertake counselling in relation to drug relapse prevention or similar as directed by Community Corrections.

3. Undertake any other counselling or psychological treatment as directed by Community Corrections.

4. Perform 150 hours Community Service.

The indicative sentences are:

Count 1 – 14 months with NPP 9 months

Count 2 – 14 months with NPP 9 months

Count 3 – 10 months

The offender is to report to the Wyong office of Community Corrections within 7 days.

I direct that a copy of the reports of Ms A Brigida dated 30/1/23 and Dr M Hughes dated 6/9/21 be forwarded to Community Corrections.

Catchwords:

Crime – Sentence – Sexual touching of a person with a cognitive impairment – Carry out sexual act without consent towards a person with a cognitive impairment.

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Stanley v Director of Public Prosecutions [2023] HCA 3

Category:

Sentence

Parties:

NSW DPP – Crown
Montgomery Ray Ward - Offender

Representation:

Ms M Aresh for Crown
Mr E Wasilenia for Offender

File Number(s):

20/128291

Publication restriction:

Statutory non-publication of the names of the victim and any child witnesses.

sentence

1. The offender, Mr Montgomery Ward, stood trial before a jury from 12 September 2022 on an indictment containing three counts. On 21 September 2022 the jury found the offender guilty of each of those counts, on which he must now be sentenced. Counts 1 and 2 involve offences under s 61KD(1)(a) of the Crimes Act 1900 of sexual touching without consent of a person with a cognitive impairment. The maximum penalty for those offences is seven years imprisonment and a standard non-parole period of five years is specified. Count 3 is an offence under s 61KF(1)(a) of carrying out a sexual act without consent towards a person with a cognitive impairment. The maximum penalty for that offence is three years imprisonment.

2. It is my task to determine the facts upon which the offender is to be sentenced, which of course must be consistent with the verdicts of the jury. Any matters of aggravation must be proved beyond a reasonable doubt, while matters in mitigation need be proved only on the balance of probabilities. The Crown provided a document entitled "Proposed facts on sentence" which was based upon a summary of the evidence called during the trial. Counsel for the offender accepted that, with a slight amendment to paragraph 10 which was agreed during the sentence hearing this morning, that document accurately reflects the evidence as it came out in the trial.

FACTS

3. I find therefore the following facts. The 16-year-old victim, TS, has a mild intellectual disability. According to adaptive testing by Professor Hayes, her functional age equivalent for intelligence is that of a student in the middle of primary school. The functional age equivalence of her everyday behavioural skills range between six years three months and 11 years nine months. In terms of skills relating to interpersonal relationships, which involve social judgment and the ability to foresee and avoid danger or dangerous situations, the victim was functioning at the age equivalent of a ten-year-old. She is not and is unlikely ever to be completely self-reliant and will require help, assistance and support in the complex issues of daily living. She will continue however to gain everyday skills but she will never gain enough skills to become non-disabled. Accordingly, she falls within the definition of cognitive impairment contained in s 61HD(a) of the Crimes Act 1900.

4. The victim met the offender who was then 25 years of age on a social media application called Snapchat when he added her as a friend and she added him back. They spoke on Snapchat on and off over a period of about four months. By the time they met for the first time on 27 April 2020, the offender had told her that he was 17 years old and that he lived by himself. She had told him that she was 16 years old and was in year 11 at school. He had been asking her questions about herself. For example, how school was, what she was doing, how she was feeling. She said she thought that he was someone that "just make good conversation".

5. The offender had also asked her out twice over the Snapchat application but she had declined. On one of those times she had said, "No, cause I don’t even know you", and the offender had said, "All right". But they had continued to chat on and off. On 27 April 2020 they chatted again on Snapchat. The offender asked to "hang out" and gave the victim his mobile phone number. She, the victim, invited her friend DH who was also 16 years old and who also had a cognitive impairment to come along with her. When the offender asked them what they wanted to do, they said, "nothing sexual" because the victim knew that "most boys just want that kind of stuff".

6. They texted again as to where to meet up and the offender told them to meet him at Parramatta. The victim and her friend DH travelled from the victim's home in Hebersham to Parramatta using public transport. The plan was to hang out with the offender and be home by a certain time. When they got to Parramatta, they contacted the offender who told them to catch a bus to Ryde. Using texts and the telephone, he directed them to a carpark where he picked them up in his car around about 2 o'clock in the afternoon. He had received ten phone calls that had, in fact, been connected and multiple texts from the victim's friend's phone about how to get to where he was in the period leading up to them meeting in the carpark.

7. After buying the victim a drink at a service station, the offender drove the victim and DH around including to the Greenwich Baths and said he would show them where he worked, which he did. They stopped at a park where the offender mucked around, play fighting with the victim's friend while the victim stayed in the car. But at that location the victim probably said something to the offender to the effect that she was sexy. They also stopped outside an IGA store and the offender asked them if they wanted to get stoned or drunk, to which they said no. At some point during the drive, the victim asked for a cigarette and the offender said, "We can go to my place".

8. After this, while the offender kept driving around, he asked the girls what they wanted to do and the victim said, "Why don't we just go back to yours. There's nothing better else to do". When they got to the offender's unit in Lane Cove, he told the girls to be quiet because he was not supposed to have guests and then left them and entered his unit complex first before returning and telling them to come up. They then ran up the stairs and went inside. Once inside, the victim asked the offender for a cigarette. They went inside his bedroom where he gave both girls a cigarette and they smoked those cigarettes while he smoked a bong. The offender laid down while the victim smoked a cigarette. Her friend, DH, laid down on the bed. Then the victim said she was cold and she also got into the bed. The victim was, as she put it, "squished" up against the wall with her friend next to her and the offender at the other side of the bed.

9. While they were laying on the bed, the offender kissed DH. The victim then said, "Did youse just kiss?" and the offender then reached his arm around DH and touched the arm of the victim. She then told him to move his hand and he then said, "Let's fuck", to which she said, "Let's not". Then, with his arm reaching over the body of DH, he grabbed the victim on the breasts over the top of her T shirt that she was at that time wearing. This is the subject of the count 1 sexual touching offence.

10. The victim then moved her arm and told the offender to go away and not touch her. She rolled over and played with her phone. When she got up to leave and went into the lounge room, her friend and the offender followed her out. She then had another smoke in the lounge room and went to lay down on the bed again. While she was lying there, the offender approached and grabbed her bottom over the top of the shorts she was wearing and squeezed her buttock cheeks with both of his hands. This is the count 2 sexual touching offence. The victim then sat on her buttocks and folded her arms across her chest so as to prevent the offender touching her. She then as she put it, "got the shits" about the offender touching her and told her friend that she was going into the lounge room. Her friend DH then followed her into the lounge room.

11. The victim, however, returned to the bedroom a final time, followed by DH and the offender. When the victim went to sit on the bed, the offender pushed her out of the bedroom with his hands and moved the door shut. The victim stood outside the door and asked to be let in. After approaching the door and asking to be let in, she sat on the lounge. About two minutes later the door was moved open and DH came out. When the offender came out after her, he had no pants on and was, as the victim put it, "butt naked". He walked towards the victim, and as he came closer, she could see that his penis looked hard. He waved his hips and his penis towards the victim's face, in response to which she told him to get his "dick" away, that she did not want to see it and that if he came "any closer, I will kick your dick". The offender responded with "Why? Because I'm too skinny?" And after this, the victim took a pillow that was on the lounge and put it over her face. At that time the offender was laughing. These events are the basis of the count 3 carry out sexual act offence.

12. The offender then went back into his room and had a shower, and while he was in the shower, the victim was hugging her friend DH. The offender told the victim and DH that he had to get to the police station by a certain time for an unrelated matter and that he would drive them back to the train station so that they could get home. It was around 7pm when the offender left the unit to drive the victim and DH to the train station. Before they left, the offender showed the girls some things including rings, purses, clothes and glasses, telling them that they were worth a lot of money.

13. When they got to Chatswood the offender took out $20 from an ATM and gave it to the girls telling them to "spend it on whatever", and then walked the victim and DH to the turnstiles at the train station. He made no attempt to contact the victim after this. When they got home the victim told her mother and her aunt about what the offender had done and the police were contacted. The offender was arrested at his home two days later on 29 April 2020 when he elected to not participate in an interview.

OBJECTIVE SERIOUSNESS

14. Turning to the objective seriousness of the offences, I make the following observations and findings. I have already noted the maximum penalties that the offences attract and the fact that counts 1 and 2 also have specified a standard non-parole period. These matters mark these offences as being of a type that parliament has treated seriously. The offences in counts 1 and 2 respectively involved sexual touching of the victim's breasts and buttocks through her clothes, and in each case the touching was relatively brief. The offender also did not persist with the touching when the victim protested. Also, there was no act of violence beyond the violence inherent in the offences themselves.

15. The count 3 offence involved the offender being completely naked and placing his erect penis near to the victim's face. He also did not immediately stop when he was told to get away, leading to the victim threatening to kick him and placing a pillow in front of her face as protection. Each of the three offences were obviously motivated by an interest in sexual gratification which was despite the fact that the offender had already been told earlier in the day that the victim wanted "nothing sexual" and notwithstanding that he had more recently been rebuffed when he said, "Let's fuck". Also, while it is accepted by the Crown that I could not be satisfied beyond reasonable doubt that the offender knew the victim to have a mild intellectual delay, I am satisfied that he would have realised that the victim was somewhat childlike and vulnerable.

16. It was submitted by the Crown that there was some planning by reason of the offender presenting himself as a 17-year-old and taking advantage of the victim's lack of sophistication in directing her to Ryde, driving her around and laying down on his bed. In my view, however, and while the offender probably had some general plans or hopes of some sexual contact with the victim and/or her friend, the specific offences are more correctly characterised as opportunistic.

17. I do accept that the victim was somewhat vulnerable due to her intellectual limitations, although on the other hand, it is to her credit that she had the confidence and mental strength to rebuff the offender's unwanted advances. In taking into account the victim's vulnerability, I am however mindful of the fact that her cognitive impairment is an inherent aspect or element of each of the offences. So, I have taken care not to double count this aspect in assessing the objective seriousness.

18. Having regard to all the facts, I regard the counts 1 and 2 offences as being below the mid-range and towards, although not within, the lower range of objective seriousness. I regard the count 3 offence as being within that same general range although perhaps slightly closer to the mid range for that type of offence.

19. A Victim Impact Statement was provided to the Court by TS. While the Crown does not rely upon it as aggravating any of the offences, it confirms the usual expectation or presumption that these sorts of offences can usually be expected to have significant and long-lasting effects upon victims and their families. The Victim Impact Statement in this case confirms this in plain words.

SUBJECTIVE MATERIAL

20. The offender's personal background and current circumstances have been placed before the Court, primarily by means of two psychological reports. The offender is now 28 years of age. His early life was complicated by parental arguing and domestic violence, as well as a drawn-out custody battle between his parents relating to the offender, who was the only child of that relationship. His parents separated when he was about five or six years old, which the offender told one of the psychologists attributed to his mother's serious problems with alcohol and drug abuse.

21. The offender attended high school until part way through year 9 but was suspended on multiple occasions for bullying, persistent disobedience and fighting. Subsequently however, he was able to complete a Certificate III in horticulture and has had a sporadic work history in landscaping as well as other jobs, mostly involving manual labour. He commenced using cannabis and alcohol at about age 13 and also has a history from about age 18 until about 25 of experimenting with other drugs including cocaine, acid, ketamine, ecstasy and methylamphetamine. He has apparently had no treatment to date for substance abuse issues.

22. He has had several girlfriends over the years but has never been married or lived with anyone as a full-time partner. At the time of assessment by the psychologist in 2022 however, the offender said he had been in a relationship for about ten months with his girlfriend Taylor who was aged about 25 and who accompanied him to that assessment. The psychologist, Ms De Santa Brigida, reached the conclusion that the offender would have met the criteria for Oppositional Defiance Disorder in his developing years and concluded that he transitioned later to Conduct Disorder/Adolescent Subtype. She further concluded that the offender meets the criteria for Post-Traumatic Stress Disorder based upon his report of having been sexually abused at around the age of 15 or 16, his childhood exposure to domestic violence, and the significant trauma associated with his having discovered and attempted to resuscitate his deceased mother, which occurred only some days before the offences before the Court.

23. Despite these diagnoses and the offender's difficult childhood, the psychologist Ms De Santa Brigida reached the conclusion that in terms of intelligence the offender was within the low average to superior or high average range.

REMORSE AND REHABILITATION

24. Turning to matters of remorse and prospects of rehabilitation. There is no remorse in this case. The offender confirmed this when speaking with the author of the Sentencing Assessment Report when he maintained his innocence despite the obvious fact that a jury of 12 was satisfied of his guilt beyond reasonable doubt. The psychologist, Ms De Santa Brigida, administered actuarial type testing which indicated that the offender is in the above average range for sexual reoffending, although noting the limitations of this type of testing which are, of course, group based rather than individual based. Other testing of the offender indicated that he has marked potential for problems with acting out and is inclined to be impulsive and sensation seeking as well as having a marked potential for problems with anger control.

25. While the offender's criminal history does not include previous offences of a sexual nature, his history of offending does suggest a problem with impulse control which is consistent with the conclusions reached by the psychologist in her report of January 2023. The Sentencing Assessment Report indicates that the offender has no insight into his offending, given that he continues to maintain his innocence. That report indicates also that the offender's attitude to any penalty involving his being supervised or doing community service work was rather negative. These are not matters that assist him.

26. On the other hand, he does have the support of his sister, he is apparently in a relationship, and has a recent history of engaging successfully in paid employment. Having regard to these positive factors and the fact that he is now approaching 29 years of age, there is some reason to hope that his increasing maturity will operate to reduce his previous capacity for impulsive criminal conduct. I assess his prospects of rehabilitation and staying out of trouble as being guarded but reasonable.

DETERMINATION

27. In determining the appropriate sentence in this case, I have regard to the terms of s 3A of the Crimes (Sentencing Procedure) Act 1999 and the important purposes of sentencing as set out in that section, which of course, include the need for adequate punishment, the importance of deterring others and the offender from similar offences, the need to protect the community, to make the offender accountable, to denounce his conduct and recognise the harm done to the victim and the community generally by these sorts of offences. But also, to promote the rehabilitation of the offender. I am satisfied for the purposes of s 5 of the same Act that the so-called threshold referred to in that section has been passed.

28. Counsel for the offender submitted that, if examined separately, each of the offences on their own would perhaps not pass the s 5 threshold. In my view, there is some merit to this submission. However, I must, of course, look at them together, and when that is done, as was acknowledged, they amount to a course of persistent conduct in the face of a clear lack of consent. I am therefore, as I have said, satisfied that a term of imprisonment is the only appropriate sentence.

27. I intend to impose an aggregate sentence, given that there are three offences for which I must impose penalty. In determining the overall sentence, I have had regard to totality principles as well as the extent to which the sentences ought to be concurrent or cumulative. In my view, there is a need for some notional accumulation. While the three offences occurred over a fairly limited period of time, they did involve three separate and deliberate acts separated in time and punctuated by repeated indications from the victim that the offender's actions were unwanted. In those circumstances, it is appropriate for there to be some notional accumulation although it should not be great.

28. As I am imposing an aggregate sentence, I am required to declare the indicative sentences that I would otherwise have imposed. These are, of course, not the ultimate sentence - that will be made clear in a few moments. The indicative sentences are as follows. For count 1, imprisonment of 14 months, and I would specify a non-parole period of nine months. For count 2, 14 months imprisonment and again, a non-parole period of nine months. For count 3, imprisonment of ten months.

29. Instead, I impose an aggregate sentence of 18 months imprisonment. I have given consideration as to whether that sentence ought be served by full time custody or in the community pursuant to an Intensive Correction Order. In making that assessment, community safety is to be the paramount consideration, although, I must also keep firmly in mind the other purposes of sentencing to which I have already made reference.

30. As was confirmed by the High Court of Australia in the recent case of Stanley v Director of Public Prosecutions [2023] HCA 3, I am required to look to the future possible impacts of the sentence of imprisonment, depending on whether it is to be served by full time detention or by an Intensive Correction Order in the community. As parliament said when enacting the relevant provisions, community safety will not always be best served by a term of actual imprisonment, but each case must depend on its circumstances.

31. In this case I take into account the fact that, before being granted bail, the offender had served a period of actual custody, slightly in excess of one year seven months, and this was during some of the worst restrictions associated with the COVID pandemic. In my view, this has already met many of the requirements of sentencing, including adequate punishment, denunciation, personal and general deterrence and the other factors in s 3A of the Crimes (Sentencing Procedure) Act 1999. Given this and the fact that the offender has engaged himself in useful employment, he is in a relationship, has the support of his sister and stable accommodation, I am satisfied that community safety would be better served by not returning the offender to the negative influences he would re encounter in gaol. I am satisfied that an Intensive Correction Order is the more appropriate penalty.

32. Mr Ward, stand up and I will announce and explain the sentence to you. I order, pursuant to s 7 of the Crimes (Sentencing Procedure) Act 1999, that the term of imprisonment of 18 months be served by Intensive Correction Order in the community. That will be subject to a number of conditions. The first two of them are standard conditions. The first condition being that you be of good behaviour during that period of 18 months from today. Secondly, that you accept supervision of Community Corrections. I impose four additional conditions. Firstly, that you not consume illicit drugs or any prescription drugs other than those prescribed for you by a medical practitioner. Secondly, that you undertake counselling in relation to drug relapse prevention or similar counselling as directed by Community Corrections. Thirdly, that you undertake any other counselling or psychological treatment as directed by Community Corrections. Fourthly, that you perform 150 hours community service.

33. I order that you report to the Community Corrections office at Wyong within seven days from today and I direct that a copy of the psychological reports of Ms De Santa Brigida dated 23 November 2022 and the report of Dr Melissa Hughes dated 6 September 2021 be forwarded to the Community Corrections office at Wyong. I also note that there is a statutory non-publication provision such that the name of the complainant and her friend to whom I have referred must not be published.

34. Mr Ward, do you understand those orders? That is a term of imprisonment which has been imposed upon you for a period of 18 months from today and if you were to breach any of those conditions, those six conditions that I just read out, then you would be referred - you would likely be referred to the State Parole Authority who can simply order that you serve the remainder of the term. Do you understand? Ms Crown, Mr Wasilenia, anything that I've overlooked?

35. CROWN PROSECUTOR: No.

36. WASILENIA: No.

37. HIS HONOUR: You'll have to go to the registry and enter into that intensive correction order. Thank you.

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Decision last updated: 04 September 2023