R v WC
[2013] NSWDC 197
•15 April 2013
District Court
New South Wales
Medium Neutral Citation: R v WC [2013] NSWDC 197 Hearing dates: 14 January 2013, 8 March 2013, 28 March 2013 Decision date: 15 April 2013 Before: Letherbarrow SC DCJ Decision: Sentenced to a total term of imprisonment of five years and six months with an effective non-parole period of three years and six months.
Catchwords: CRIME - Sentencing - aggravated sexual assault - relevance of statistics - offender's physical and mental health - protective custody - objective seriousness post Muldrock - relevance of good character in child sex cases Legislation Cited: Crimes Act 1900, s61M(2)
Crimes (Sentencing Procedure) Act 1999, s44(2)
Crimes Amendment (Sexual Offences) Act 2008Cases Cited: R v AEM and others (2002) NSWCCA58
RWNB v R (2010) 202 ACrimR 209
Muldrock v the Queen [2011] 244CLR120
Stewart v R [2012] NSWCCA183
Bondwick v R [2010] NSWCCA 177
R v Rule (unreported) 25 November 1995 NSWCCA
R v PVM (2008) 187 ACrimR 29
Markarian v The Queen (2005) 228 CLR 357
Pearce v The Queen (1998) 194 CLR 610Category: Sentence Parties: Director of Public Prosecutions - Crown
WC - OffenderRepresentation: Director of Public Prosecutions
Ms K Stares
Director of Public Prosecutions
Mr A Reetov - Legal Aid NSW
File Number(s): 2011/00268820 Publication restriction: Non-publication order as to names of complainant and accused
Judgment
Introduction
On 8 November 2012 the offender was found guilty at his trial before a jury at Parramatta District Court in relation to the three counts in the indictment presented against him. All three counts were offences of aggravated indecent assault laid pursuant to s 61M(2) of the Crimes Act for which the maximum penalty is ten years imprisonment. The legislation also provides for a standard non-parole period of eight years. These offences were committed by the offender on his stepdaughter, the complainant, in August 2011. The circumstance of aggravation in relation to each count was that the complainant was then aged under sixteen years of age, namely, twelve years. The offender was then aged thirty-nine.
The Sentence Hearing
Upon being found guilty I revoked the offender's bail and stood over his sentence hearing until 14 January 2013 at Sydney. On that date the offender became unwell after arriving at court but before the sentence hearing began and was taken to hospital. As a result, the sentence hearing was adjourned to Parramatta on 8 March last. On that occasion, the offender was represented, as he was at trial, by Ms Stares of counsel. The Crown Prosecutor who ran the trial was then unavailable and Ms Jeffery appeared in her place.
At the outset of the sentence hearing, the complainant read a victims impact statement, a copy of which became exhibit A. The Crown also tendered a copy of the offender's criminal and custodial histories which became exhibits B and C. On behalf of the offender a psychological report from Ms Rima Nasr, dated 21 December 2012 and a report from Dr Calvin Hsieh, cardiologist, dated 20 February 2013, became exhibits 1 and 2 respectively. Excerpts from the offender's Justice Health and Correctional Services case management files became exhibits 3 and 4 respectively. Both the Crown and Ms Stares handed up written submissions which became MFIs 1 and 2 respectively. Ms Stares also handed up certain statistics from the Judicial Commission of NSW which I marked MFI3. Such statistics can be a blunt tool and are of limited use R v AEM and others (2002) NSWCCA58. The offender also gave oral evidence.
The Facts
All three offences were committed at 4 St Claire Avenue, St Claire, being the residence at which the offender was then living with the complainant, her mother and her younger sister, S. As at the time of the offences in August 2011 the offender and the complainant's mother had been in a relationship for approximately four years. They had all lived together at the address in St Claire since April 2009.
Each party made submissions about the facts surrounding the three offences. Whilst there were no real differences between them as to count 3 and little real difference between them as to count 1, their positions in relation to count 2 were significantly different.
As to count 1, I am satisfied that the evidence establishes beyond reasonable doubt the following facts which are consistent with the verdict of the jury. On the morning of 18 August 2011 the offender was lying on the lounge in the lounge room with one of his arms protruding out from the arm of the lounge. The complainant, who was dressed in her school uniform, walked past the offender who used his protruding hand to grab hold of the complainant on the outside of her clothing in the area of her vagina. The factual issue as to count 1 revolves around how the complainant described the actual touching. She said that the offender's fingers were "wiggling or moving like when someone tickles you". While she also said this touching took place over about a five second period, she said she did not stop and continued walking.
On the evidence, Ms Stares said I could not be satisfied beyond reasonable doubt that "the offender manipulated the victim's vagina". The Crown's submission was, in effect, that such manipulation occurred for the five second period mentioned.
On the evidence, I am satisfied beyond reasonable doubt that the offender deliberately grabbed the complainant's vaginal area through her clothing with "wiggling" fingers, albeit for a shorter period of time than five seconds.
As to count 2, the argument as to what I would find occurred beyond reasonable doubt and consistent with the jury's verdict, arose largely from the fact that this offence was said to have been witnessed by the complainant's younger sister, S, who was then aged ten. This offence occurred on the afternoon of the same day that the first count occurred, namely, 18 August 2011. It occurred after the offender had picked up the complainant and her sister from their respective schools and whilst the girls' mother was not at home.
The complainant's evidence was that she and her sister and the offender were playing a Wii computer game in the lounge room when the offender started to tickle her. At this point she said she was lying on the floor on her stomach and the offender then pulled down her pants and underpants, kissed her on the bottom, pulled down his own pants and then placed his penis between the cheeks of her bottom. She then said he "humped" her by moving his penis backwards and forwards on her bottom until he ejaculated.
During this event she also said he placed one hand on the outside of her vagina and put the other inside her upper body's clothing and squeezed her on the breast area. She also said that he licked one of her ears. Whilst the complainant could not see him ejaculate she said that she could feel a "stiffy" on her bottom and felt a "wet and gooey" sensation "in between my butt cheeks". The complainant said that by the time her pants had been pulled down S had left the room. After ejaculating the complainant said the offender retrieved some toilet paper from the toilet and used it to wipe the sperm off her bottom.
In her evidence, S said that she remained in the room after the complainant said she had left and was in fact pushing the complainant's feet when the offender was kneeling behind or straddling her sister. She described him masturbating whilst doing so as opposed to "humping" the complainant, after which she saw him ejaculate upon her sister's back. She gave no evidence of the offender fondling the complainant's vagina or breasts, kissing her buttocks or licking her ear.
In these circumstances Ms Stares argued that I would not be satisfied that the offender kissed any part of the complainant's bottom, fondled her breast, touched her vagina or that his penis touched "the genital area of the complainant".
I found the complainant to be an impressive witness. I found S to be considerably less impressive and note that she was only ten at the time. Her evidence was given in a very childlike fashion and I have some doubts about her reliability. In the circumstances, I am satisfied beyond reasonable doubt that the offence occurred as described by the complainant. However, I am not satisfied beyond reasonable doubt that the offender's penis directly touched her genital area as she did not give evidence that this occurred.
As to count 3, this was in fact the first offence in time and occurred on a weekend early in August 2011 at about 6pm when the offender was at home with the complainant and whilst her sister, S, was in the shower. The complainant's mother was out purchasing some takeaway for dinner. Consistent with the jury's verdict I am satisfied beyond reasonable doubt that this offence occurred as follows. The complainant was lying on her stomach on a lounge in the lounge room. The offender came into the room and laid on top of her and commenced to "dry hump" her before rolling her onto her back and pulling her pants down. The offender pulled his own pants down and placed his penis on top of the complainant's vagina and continued to "hump" her until he ejaculated upon her stomach. He then told her to wait until he retrieved some toilet paper which he used to wipe the sperm off her stomach.
Victim Impact Statement
The complainant read her victim impact statement in the presence of the offender. It reveals that the complainant has suffered and continues to suffer the type and range of psychological trauma one would expect from offences of this type and which has affected her life in a number of ways.
Presentence Custody
Exhibit C establishes that after his arrest the offender spent six days in custody before being released on bail. As mentioned, I revoked bail upon his conviction on 8 November last and he has remained in custody thereafter. To date this represents another 158 days up until but not including today. This makes a total period of presentence custody of 164 days. Consequently, the first of the sentences imposed below will be backdated to commence on 2 November 2012.
The Offender's Criminal History.
Exhibit B confirms the evidence that the offender gave at trial, namely, that he has no prior criminal history.
The Offender's Subjective Circumstances
The offender's subjective circumstances, all of which I have taken into account, are described in the exhibits referred to and were further detailed in the oral evidence given by the offender during the sentence hearing. The offender was born on 6 March 1972 and is currently forty-one years of age. He was adopted shortly after he was born and raised by his adoptive parents. His adopted sister informed him that he was adopted when he was thirteen. In his early adulthood he made some contact with his biological father but this did not continue. He also had some contact with his biological mother in his thirties but this also did not continue. He has three biological siblings but has never sought them out. He has an adopted sister who is now aged about sixty with whom he maintained a generally close relationship but this ceased when he was found guilty of the subject offences. He told Ms Nasr that his has left him "devastated and heartbroken" as she was his primary familial support.
The offender also told Ms Nasr that he had close relationships with both of his adoptive parents whom he said provided him with financial and emotional security and support. His adoptive mother died some eight years ago. His adoptive father died in September 2012 in the lead up to the offender's trial for the subject offences. In this regard he told Ms Nasr that he believed his adoptive father's death was caused by the stress created by "knowing me as an (alleged) sex offender just before he died". This belief has led to unresolved feelings of grief and guilt in the offender.
As to his education and employment history, the offender left school after completing year 10 and obtaining the school certificate. He then gained various certifications in, inter alia, forklift driving, manual handling and warehousing, before entering the workforce at eighteen years of age. Initially he worked as a fettler and welder before moving into truck driving which has been his main source of employment. In short, the offender has a good work history leading up to the time of the offences. He has also been a volunteer fire fighter with the Royal Fire Service over a number of years.
As to his relationship history, the offender told Ms Nasr of being involved in some five heterosexual relationships each lasting for a number of years with the first commencing at age seventeen. In all he has some four children from those relationships aged from between approximately fourteen to twenty-one years. He maintains contact with the eldest, a son, but has limited contact with his younger three children. His relationship with the complainant's mother came to an end shortly before the offences came to light. Since that time he has formed a new relationship with a Ms Martlew who herself has a eight year old son. Ms Martlew gave evidence at the trial on behalf of the offender as to, inter alia, the fact that she has had often left her young son alone in his care without fearing in any way for his safety. Her attitude towards the offender has apparently not changed since he was found guilty and she is still supportive of him. She was in court at the time of the sentence hearing.
The Offender's Physical and Mental Health
As to the offender's physical health this was generally good up until the time of him being found guilty and his bail being revoked, although he told Ms Nasr of a long standing low back condition resulting from an infection in his spine as a child. At the time his bail was revoked he weighed some 132 kilograms, being five foot eight inches tall. As to his mental health he told Ms Nasr that prior to being charged with these offences he had never had any problems nor had he ever consulted a psychiatrist or a psychologist. After his bail was revoked he has had both physical and mental problems, the latter which commenced after he was arrested and charged with these offences. The evidence as to these matters is not extensive. It consists of the two medical reports and the notes produced by Justice Health referred to above.
The offender also gave some oral evidence as to these matters. From a physical perspective the offender developed some chest pain in late November 2012 which was investigated without revealing any abnormalities. In early January 2013, he developed an ear infection which apparently went untreated for some time and which now has left him with some significant hearing loss which is yet to be evaluated. As mentioned, he was hospitalised on the day of his original hearing in mid January 2013 with symptoms of presyncope, nausea, vomiting and gastric pain. An echocardiogram and an examination of his cardiac enzymes at that time did not demonstrate any significant coronary artery disease. The records referred to from Justice Health were apparently reviewed by Dr Hsieh to enable him to prepare his said report but he did not examine the offender. Dr Hsieh concludes that it "is unlikely that (the offender) has significant coronary artery disease ... though this cannot be ruled out without further tests". Dr Hsieh goes on to recommend certain tests be carried out noting that same would need to be performed in either a cardiac or radiology centre outside of prison. In this regard the offender himself gave evidence as to the difficulty of obtaining medical care whilst in custody.
As to his mental health, the offender told Ms Nasr that since being charged and especially since being found guilty with the consequence revocation of his bail, he has experienced symptoms of depression, feelings of hopelessness and low self worth. Ms Nasr concluded that the offender appears to be "a fragile man in need of support and psychological intervention". In this regard, the offender told me that he was seeing a psychologist about every three weeks in custody but it was never the same person and these consultations were somewhat rushed.
At the time of giving evidence on sentence before me, the offender said he weighed approximately 107 kilograms, a drop in weight since going into custody of about twenty-five kilograms, although for a man of his height he did not appear undernourished.
Overall, on the evidence presented I am not satisfied on the balance of probabilities the offender's physical and psychological conditions cannot be reasonably met in the sense of being adequately diagnosed and/or treated whilst in custody, although I do accept that these conditions will likely render his imprisonment more burdensome for him than for the average prisoner and I have taken them into account to that extent when arriving at the sentences set out below.
Alcohol and Drug Use
As to alcohol and drug use, there is no evidence that the offender has ever had a problem with the former nor ever been involved in the latter.
Attitude Towards The Offences
As to the offences themselves, the offender maintains his innocence telling Ms Nasr, inter alia, that whilst the complainant "hated" him he does not know why. Accordingly, there is no evidence of remorse or any insight into his offending.
Recidivism and Rehabilitation
Ms Nasr opines that the offender poses a low risk of sexual reoffending although this may increase "if he does not shift in terms of his attitudes and denial...". On the basis of her assessment, Ms Nasr recommended that the offender, if assessed as suitable, be referred to a specific sex offenders program for deniers such as the CORE program at Park Lea whilst noting that the general availability of such programs in custody is limited. Ms Nasr also recommended that both whilst in custody and upon his release back into the community, the offender accesses treatment and seeks "some intervention around his insight and relationship coping". However, Ms Nasr emphasised that the offender would gain the most benefit from community based supervision "where he can have access to his partner for support and maintain his employment responsibilities".
In general, I accept Ms Nasr's opinion and find that the offender's risk of reoffending if low although this may increase unless he gains some insight into his offending. As to his prospects of rehabilitation, there is little direct evidence although Ms Nasr's view, which I again accept, seems to indicate that such prospects are reasonably good if the offender seeks treatment and gains such insights. If he does not the position would appear to be less optimistic.
Protective Custody
The offender gave evidence before me that since his bail was revoked he has, at his own request, been in protective custody. This is confirmed by the documents comprising exhibit 4. His evidence was that he spends twenty-one hours per day in his cell, six days per week and then on the seventh day, being every Tuesday, he is locked in for the entire twenty-four hours. Further, if there is a shortage of prison officers on any day he is again locked in for the entire twenty-four hours. He said that this has occurred on fifteen occasions in January and February this year. Whether, even if the offender continues to request it, as he said he would, he will remain on protection once sentenced is a matter upon which I have no real evidence. However, on the balance of probabilities and based on the situation to date I am prepared to find that he will spend at least a considerable proportion of any sentence on protection. I have therefore taken this into account in his favour in arriving at the sentences set out below in accordance with the principles discussed in RWNB v R (2010) 202 ACrimR 209 and the cases referred to therein.
Objective Seriousness Of The Offences
In Muldrock v the Queen [2011] 244CLR120 the High Court held that a court is to continue to assess the objective seriousness of an offence but there is no need to "classify" the offending or assess whether it falls in the middle range of objective seriousness. Since Muldrock the Court of Criminal Appeal has held that it nevertheless remains desirable for a judge to make some assessment of the objective seriousness of the offence and when doing so features personal to the offender should not be taken into account; Stewart v R [2012] NSWCCA183.
In Relation To Count 1
The Crown submitted that it fell within "the low end of the middle of range of objective seriousness". Ms Stares, on behalf of the offender, submitted that it fell within "the low range of objective seriousness". In my view count 1 falls within the middle of the low range of objective seriousness for offences of this type, bearing in mind the offender's finger movements as opposed to there being a mere touching and the fact that the complainant was under the offender's authority at the time and the offence involved a gross breach of trust. In this regard, I am satisfied beyond reasonable doubt that the offender on the evidence was at the time of the offences and indeed had been for some years, in the position of a stepfather to the complainant. This was not really in dispute.
In Relation To Count 2
The Crown submitted that the offence fell within "the high end of the midrange to the low end of the high range of objective seriousness". On behalf of the offender, Ms Stares submitted that it fell within "the low range of objective seriousness". In my view count 2 is an offence within the low end of the high range of objective seriousness for offences of this type. It involved several acts of indecency being committed at the same time. Further, whilst there was no direct genital connection the offender placed his penis between the complainant's buttocks whilst straddling her thereby preventing her from moving. He then performed a humping motion leading to his ejaculation.
In my view these actions involve a significant degree of degradation and humiliation of the complainant and a high degree of physical contact. Again this offence involved a gross breach of trust. I regard this offence as falling into the lower end of the high range of offences of this type.
In Relation To Count 3
The Crown submitted this count also fell within "the high end of the midrange to the low end of the high range of objective seriousness" whereas Ms Stares on behalf of the offender submitted that it fell within "the mid range of objective seriousness".
In my view, there is little difference between counts 2 and 3. Whilst count 2 involved a number of activities absent from count 3, such as the vaginal touching and breast squeezing, it also involved the offender ejaculating upon the complainant after performing a humping motion while straddling her. Further, in relation to this count, the offender turned the complainant onto her back and placed his penis on top of the complainant's vagina before doing so thereby resulting in a high degree of genital connection. It too involved a gross breach of trust. Accordingly it is my view that count 3 also falls within the low end of the higher range of objective seriousness for offences of this type.
Deterrence
All three sexual offences are serious. They were committed upon a twelve year old girl by her stepfather. General deterrence is of particular importance in offences of this nature. Further, specific deterrence is also of significant importance. Offenders must be made aware that if they yield to their sexual impulses towards children they will meet a severe punishment.
Availability of Summary Disposal
I have taken into account in the offender's favour that each of these offences could have been dealt with in a Local Court. However, this fact is of little relevance to counts 2 and 3 due to my findings as to the level of objective seriousness of these offences; see Bondwick v R [2010] NSWCCA 177.
Prior Lack of Record / Good Character
In relation to the offender's lack of previous convictions and apparent good character, I am of the view that these factors were not of assistance to him in the commission of the offences and therefore they can be taken into account in his favour. In accordance with the amendments to the Crimes (Sentencing Procedure) Act brought about the Crimes Amendment (Sexual Offences) Act 2008 I have accordingly done so. However, an offender's prior good character is of less significance in child sex cases than in other types of offences; R v Rule (unreported) 25 November 1995 NSWCCA; R v PVM (2008) 187 ACrimR 29.
Sentencing Approach
In accordance with the High Court's decision in Muldrock I am mindful of the two legislative guideposts in relation to the three offences, namely, the maximum sentence and the standard non-parole period. However, in determining the appropriate sentences I have taken into account all of the matters referred to above in accordance with the approach described by McHugh J in Markarian v The Queen (2005) 228 CLR 357 at [51].
Type of Sentence
Having adopted the abovementioned approach I am of the view that no sentence other than a term of imprisonment is appropriate in relation to each offence and I note that this was also the position of both parties.
Totality
Each of the sentences to be imposed upon the offender has also been determined in accordance with the principles stated in Pearce v The Queen (1998) 194 CLR 610. In this regard, I note Ms Stares' submission that as counts 1 and 2 occurred on the same day, I should impose concurrent or substantially concurrent sentences for these offences. A similar submission was made in relation to count 3, bearing in mind that it occurred around twelve days before counts 1 and 2. In my view, some degree of accumulation is appropriate in relation to each of these offences in order to reflect the totality of the criminality involved, however, I have had regard to the matters raised by Ms Stares in determining the degree of accumulation that is appropriate.
Special Circumstances
I find special circumstances in accordance with s 44(2) of the Crimes (Sentencing Procedure) Act 1999. In this respect I rely upon the need for partial accumulation of the sentences, my satisfaction that the offender will benefit from an extended period of supervision to maintain strategies to assist in his rehabilitation generally and the fact that this is his first time in custody.
The Sentences
As mentioned, the first of the sentences imposed will be backdated to commence on 2 November 2012 to take into account the period of pre sentence custody.
In relation to each offence the offender is convicted and sentenced to imprisonment. For count 1 a non-parole period of six months is set. The total term of the sentence is nine months commencing on 2 November 2012 and expiring on 1 August 2013. The non-parole period expires on 1 May 2013. For count 2 a non-parole period of three years is set. The total term of the sentence is five years imprisonment commencing on 2 December 2012 and expiring on 1 December 2017. The non-parole period expires on 1 December 2015. For count 3 a non-parole period of three years is set. The total term of the sentence is five years commencing on 2 May 2013 and expiring on 1 May 2018. The non-parole period expires on 1 May 2016.
The offender is accordingly subject to a total effective sentence of five years and six months with a non-parole period of three years and six months.
I direct that copies of exhibits 1 and 2 be included with the committal warrant.
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Decision last updated: 14 October 2013
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