R v WD

[2023] NSWDC 542

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v WD [2023] NSWDC 542

Hearing dates:

5 December 2023

Decision date:

05 December 2023

Jurisdiction:

Criminal

Before:

Coleman SC DCJ

Decision:

(1) For the offences for which he pleaded guilty, the offender is convicted.

(2) For Sequences 3, 5 and 6, the offender is sentenced to an aggregate term of imprisonment for a period of 4 years, with a non-parole period of 2 years 2 months, to date from 11 October 2022. The first date the offender is eligible for release to parole is 10 December 2024. The head sentence will expire on 10 October 2026.

(3) The indicative sentences for each offence (including 25% discount) are as follows:

(a) Sequence 3: 1 year 3 months imprisonment

(b) Sequence 5: 2 years 6 months imprisonment

(c) Sequence 6: 2 years imprisonment

(4) I recommend that, on release to parole, the offender engages in any sexual offender programs (or other programs) to aid in his rehabilitation that Community Corrections considers necessary and appropriate.

Catchwords:

CRIME – Child sex offences – Multiple offences – Intentionally sexually touch child 10 years or older and under 16 years – Aggregate sentence

Legislation Cited:

Crimes Act 1900 (NSW), s 66DB

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 25D, 53A

Cases Cited:

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518

Bravo v R [2015] NSWCCA 302

DG v R [2017] NSWCCA 139

Ibbotson (A Pseudonym) v R [2020] NSWCCA 92

Johnson v The Queen [2004] HCA 15

R v Chan [2000] NSWCCA 345

R v MAK [2006] NSWCCA 381

RH McL v The Queen (2000) 203 CLR 452

Category:

Sentence

Parties:

WD (Offender)
Director for Public Prosecutions (Crown)

Representation:

Counsel:
J Hibbard (Offender)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Total Legal (Offender)

File Number(s):

2022/00303316

Publication restriction:

Pursuant to s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), there is a statutory non-publication order in regard to any matter which identifies the complainant or which is likely to lead to the identification of the complainant. The identity of the offender is anonymised as WD.

JUDGMENT

1. The offender, WD, is to be sentenced today for three offences of intentionally sexually touch a child 10 years or older and under 16 years (being Sequences 3, 5 and 6). This is an offence under s 66DB(a) of the Crimes Act 1900 (NSW) and carries a maximum penalty of 10 years’ imprisonment with no standard non-parole period.

2. The offender also asks that one further offence of intentionally sexually touch a child 10 years or older and under 16 years be taken into account on a Form 1 in relation to Sequence 3. This offence is Sequence 2.

3. The offender pleaded guilty to the offences at the earliest opportunity and is thus entitled to a 25% discount on any sentence imposed on him to reflect the utilitarian value of the plea, pursuant to s 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘CSPA’).

Facts

4. There are agreed facts for this sentence.

5. The offender, WD, was 41 years old at the time of the offending. The victim in this matter was 14 years and 8 months old. The offender was known to the victim as he was in a relationship with the victim’s mother. The offender and the victim’s mother met in April 2022 through a dating app. The victim lives with her mother and her 10-year-old sister in Quirindi. After meeting the victim’s mother in April, the offender would stay at the victim’s house about 3-4 nights a week.

Sequence 2 – Intentionally sexually touch child between 10 and 16 years (Form 1)

6. Between 1 August 2022 and 7 October 2022, the victim was at home by herself and was having a shower when she heard somebody come in the front door, which she assumed was her mother. The offender walked into the bathroom and the victim, who thought it was her mother, said “Hello mum”.

7. The offender said, “I’m not mum, can I?”. The victim got out of the shower and put a towel around herself once she knew it was the offender. The offender pulled her towel down and grabbed both of the victim’s breasts with both of his hands. The offender told the victim that she had “really sexy boobs” and walked away.

Context – Lifting victim’s top and taking photos of her breasts

8. On either the next day or the day after, the victim woke in her bed and her jumper was above her waist at her shoulder area. The victim was home sick. The offender came into the victim’s room and said, “Look at these”, while showing her photographs of female breasts. The victim said, “Whose are they and what are they doing on your phone?”. The offender said, “Uh, I took them while you were asleep”. That fact is agreed as context evidence.

Sequence 3 – Intentionally sexually touch child between 10 and 16 years

9. Between 1 August 2022 and 7 October 2022, the victim was at home having a shower. While the victim was showering, the offender came in wearing boxer shorts and picked her up out of the shower, took her to her mother’s bed and placed her on the bed. The offender lay on top of her. Both the offender and the victim were naked.

10. The offender sat on the victim’s legs and moved forwards and backwards for a short time with his penis against her vagina area. The victim kicked the offender in the bum and he got off her. The victim went back to the bathroom to get her clothes and ran back to her room.

Context – Open mouth kiss

11. On 8 October 2022, the offender took the victim 4-wheel driving in the vicinity of Seven Creeks Road, Quirindi. Whilst they were driving, the offender suggested that they go deep in the bush and perform ‘69’ whilst he held the victim’s hand and that they go back to his house so they could shower together.

12. As they were driving through the bush, the offender stopped the car, took his seatbelt off and got out of the driver’s seat. He went around to the victim’s side, grabbed her neck and started kissing her on the lips. It was an open mouth kiss and lasted for about 2 minutes. The victim told the offender to get off her and get back in the driver’s seat. The offender got back in the driver’s seat and started driving again and drove the victim back to her house.

Sequences 5 & 6 – Intentionally sexually touch child between 10 and 16 years

13. On 9 October 2022 at around midnight, the victim was at home and having trouble sleeping. She went out to the loungeroom and started watching a Netflix show, with each episode lasting around 30 minutes. The victim was sitting on the couch with a blanket on top of her.

14. The offender was at the home and had consumed some wine and port and was intoxicated. He came and sat next to the victim and got under the blanket. The victim got out of the blanket and the offender covered her back over. The offender pulled down his underwear, grabbed the victim’s right hand and placed it on his penis. The offender put his hand on top of the victim’s right hand and made her “play with his thing, like squeeze it”.

15. The offender looked at the victim and said, “I want to give you a mouth job”. The victim asked what this meant, and the offender said, “I want to lick your pussy”. At one point, the offender said, “My penis is really wet”. The victim jerked her hand off his penis.

16. The offender put his other hand inside the victim’s underwear, looked her in the eyes and said, “I’m in love with you”. Whilst he was doing this, the offender held the back of the victim’s neck and forced their heads together. He kissed the victim on her lips and put his tongue inside her mouth. The victim told the offender to stop and pushed him off her. The offender placed his hands inside the victim’s underwear and touched her vagina. The victim ‘ant bite’ the offender, which she described as pinching him lightly on the arm so that he would move. The offender got off the victim and fell asleep on the couch. The victim went to her bedroom and fell asleep.

17. Whilst this incident was occurring, the victim’s mother woke up to take the victim’s younger sister back to her own bed. She saw the victim laying on the couch with her head on the offender’s lap, who was sitting up watching television. The victim’s mother went back to bed and woke a short time later and heard the victim and offender talking.

18. The victim’s mother looked out into the loungeroom and saw the victim curled up on the lounge with the offender. The victim’s mother saw the offender had his back to her with his legs facing along the lounge. The victim was laying between the offender’s legs with her hand on his crotch and she heard the offender moaning. The victim’s mother saw the offender try to kiss the victim who said, “No. Stop”. The victim’s mother stated she saw the victim say goodnight to the offender and put a blanket on him. A short time later, the victim’s mother went to turn the television off and saw the offender’s penis as his boxer shorts were loose and not on properly.

19. The next morning, the victim’s mother and grandmother spoke to the victim in her bedroom. The victim broke down crying in her mother’s arms and stated that the offender had touched her “down there” with “his fingers and his doodle”. The victim’s mother told the offender he had to leave and took the victim to the Tamworth police station to report the matter. On 11 October 2022, the offender was arrested and conveyed to Tamworth Police Station where he participated in an electronically recorded interview. He did not make any admissions.

Objective Seriousness

20. I am required as part of the sentencing exercise to consider and assess the objective seriousness of the offending. Each of the parties have addressed factors relevant to this assessment in their written submissions.

21. The significant maximum penalties for these offences are a legislative guidepost to the seriousness with which such offending is considered.

22. There are several factors that are common to all of the offending. First is the age of the victim at 14, being in the middle of the range of the age bracket for these offences (being 10-16 years). Next, the offender was 41 at the time of the offending, so there is a significant age disparity.

23. I accept the Crown submission that a relevant factor going to the objective seriousness of the offending is the nature of the assault (these offences of sexual touching being associated with the previous offences of indecent assault) or touching which occurred, the nature of the contact and its duration.

24. For the Sequence 2 matter (being the Form 1 offence relevant to Sequence 3), the offending involved the offender pulling the victim’s towel from her after she had showered so that she was naked and touching her breasts. It involved skin-on-skin contact. He told her she had “really sexy boobs”. It occurred when the victim had been home alone and showering. He entered the bathroom whilst she was entitled to privacy and he violated her in the manner described. The offending was brief but nevertheless it must have been traumatic.

25. Sequence 3 involved the offender picking the victim up out of the shower and putting her on her mother’s bed. There was no one else home. He was wearing boxer shorts when he entered the bathroom, but they both ended up naked on the bed. He must have removed his boxer shorts. He then sat on top of the victim’s legs and moved his penis backwards and forwards over the victim’s vagina. Whilst the offending was again of relatively short duration, the rubbing of his penis against the child’s vagina whilst she was underneath him makes this a far more serious example of this type of offending than the other sequences.

26. The Sequence 5 offending involved the offender taking the victim’s hand and placing it on his erect penis. He open-mouth kissed her, using his tongue. The victim was on the lounge under a blanket watching television. This offending brazenly occurred when the victim’s mother and younger sister were asleep elsewhere in the house. It was relatively brief in duration. It is a serious example of this type of offending.

27. The Sequence 6 offending occurred at the same time as Sequence 5. During the kiss I have described, the victim told the offender to get off her. The offender put his hand inside her underpants and touched her vagina. It was skin-on-skin contact of short duration. It is a serious example of this type of offending.

Aggravating/Mitigating Factors

28. In regard to aggravating and mitigating factors of the offending under s 21A of the Crimes (Sentencing Procedure) Act, each party submits, and I agree, that the relevant aggravating factors are that:

1. The offences were committed in the home of the victim (s 21A(2)(eb) CSPA). It was where the victim was entitled to feel safe and to go about her normal activities of bathing or relaxing without being preyed upon; and

2. The offender abused a position of trust (s 21A(2)(k) CSPA). The offender was in a relationship with the victim’s mother and stayed at the house 3-4 times a week. He was a trusted adult to whom the victim should have been able to look to for guidance and protection and not be molested in the manner she was.

29. Relevant mitigating factors are:

1. The offender does not have any record of previous convictions and is a person of good character (ss 21A(3)(e), (f) CSPA). This can be taken into account as there is no suggestion he used his prior good character to assist his offending (cf s 21A(5A) CSPA);

2. The offender entered a plea of guilty (s 21A(3)(k) CSPA); and

3. The offender’s counsel also submits that the offender is unlikely to re-offend (s 21A(3)(g) CSPA), has good prospects of rehabilitation (s 21A(3)(h) and has expressed remorse (s 21A(3)(i)). I will return to these matters.

Subjective Circumstances

30. In terms of the subjective circumstances of the offender, I have been provided with the psychiatric report of Dr Gordon Elliott dated 9 November 2023.

31. The offender reported that he was born in Queensland and spent his early childhood in a small town called Biggenden, before moving to Hervey Bay at the age of 7. His parents divorced when he was 14 years of age. He stated that his mother would become fairly violent when she consumed alcohol, throwing and breaking things. She was diagnosed with bipolar disorder and was repeatedly hospitalised. The offender spoke more positively of his father, whom he described as a business owner and role model. The offender’s mother passed away when he was around 18-20 and his father died a month prior to his arrest.

32. The offender reported he was constantly bullied during his schooling years, which led to him leaving school in Year 10. He immediately started working for his father’s business, travelling all over Australia as a long-distance removalist. Following his father’s retirement, he owned and operated the business, however after 12 years he grew fatigued with the heavy lifting involved and moved to Ballina, where he worked as a stock manager in a furniture warehouse for 7 years.

33. Prior to his incarceration, the offender was living alone in a rented apartment and was working full-time as a heavy machine operator in a local mine. He has no children but has had a few long-term relationships. However, due to the nature of his work (including long periods away as a driver), he has remained single for sustained periods of his life.

34. The offender denied the use of any illicit substances around the period of his offending and referred to the strict drug testing regimen at his workplace. He also denied any problematic alcohol consumption, insisting that he would have had “no more than a few”.

35. In regard to the offending conduct, the offender spoke of the consequences to himself, including the loss of his well-paid role and the forfeiture of his deposit on a new house. However, he added he felt selfish for speaking of his own losses and expressed remorse for the negative impact on the victim.

36. The offender advised Dr Elliott he was admitted to a psychiatric inpatient unit in Maryborough, Queensland around the age of 18 for 1 month. He was reluctant to go into the details of this episode, advising that the reason for his admission was stress related to running a business at the time. He denied any further contact with mental health services since this time.

37. The offender did admit he committed an act of self-harm after he was arrested and remanded on these charges. The offender denied any current mental health concerns and advised that he spends his day exercising and reading, as well as completing a Christian correspondence course. Dr Elliott opined that there is no indication the offender is currently suffering from a mental illness.

Sentencing Principles

38. There is nothing in the offender’s subjective case, or in any of the other materials, which lowers his moral culpability for the offending. He has no mental health conditions nor substance abuse problems which may have been causative of his behaviour.

39. I accept he has now shown insight into his offending behaviour. He has written a letter to the victim and to the Court. He has, in those letters and in his evidence, demonstrated that he now understands the terrible and lasting impact his offending behaviour has had, and will have, on the victim.

40. There was read a Victim Impact Statement from the victim. It spoke, in moving terms, of the significant harm the offending has had on her. It has led to mental health issues with which she has struggled to deal with and physical self-harm. I acknowledge the bravery it must have taken to prepare such a statement, further exposing the hurt she has suffered. I was encouraged to hear the end of that statement which indicated she is choosing to move forward despite the offending and I hope she continues to do so. I will take into account the obvious and significant harm to her.

41. The offender has, in the letters I have referred to, also expressed remorse for his actions. He gave evidence before me and expressed the same sentiments of remorse and contrition. I accept those sentiments are genuine. He has not tried to justify or excuse his behaviour in any way. It appears that he understands that he has acted criminally and abhorrently in his offending actions against the victim who was, as I have said, entitled to feel safe in her home and not be molested by a person such as the offender in a gross breach of trust.

42. I accept that the risk of the offender re-offending is low. That is based on his prior good character, the references provided in his favour and the assessment contained in the Sentencing Assessment Report. It is difficult to understand, in the circumstances where he was regarded as a stable father figure to his former partner’s children (who authored one of the references) and his prior good character, why the offender did what he did. He has experienced gaol since his arrest and seen institutionalised offenders. I am confident from the material that he does not want to return to prison after he has served his sentence for these offences and is unlikely to re-offend.

43. The material before me supports a finding that he has good prospects of rehabilitation. He says he has accommodation organised in Yamba on his release to parole. Whilst this may not be compatible with employment in the industry of a heavy machinery operator in mining, he said he will do any other work he is able to do. He has no history of unemployment.

44. He has taken steps in custody to undertake courses of self-improvement and learning. I have the certificates relevant to those courses before me. He says he is willing to undertake any other courses required of him by Community Corrections when being supervised on parole. Because of the assessment of his risk of re-offending being low-to-medium for sexual matters, it is unlikely he will be able to undertake courses in custody for sexual offenders designed to aim at reducing recidivism. He is willing to do such courses when he is on parole. He speaks in his letter of his desire to live as a working functional member of society. I accept his prospects of rehabilitation are good.

38. Thus, the Court finds itself with the task of sentencing this offender who has committed serious sexual offences, in breach of trust, against a young victim with understandable resultant and likely long-lasting trauma. At the same time, the offender is of prior good character, unknown to police and has shown remorse and has good prospects of rehabilitation. He is entitled to appropriate leniency.

39. I must have regard to the purposes of sentencing in s 3A of the CSPA.

40. It is well known that child sex offences have a profound and deleterious effect on the victims for many years, if not the whole of their lives. Psychological damage may follow (see the discussion in Bravo v R [2015] NSWCCA 302 at [48] and the authorities there cited). That effect is evident in this case from the Victim Impact Statement that I have referred to.

41. The purposes of sentencing of specific and general deterrence and retribution are prominent in this case. There is a need for the offender, and others of his ilk, to know that crimes like these against children will be met with significant and lengthy terms of imprisonment. Such offending must be denounced, recognising the harm it does to its innocent victims.

42. There is no issue that the s 5 threshold has been crossed and that no other sentence other than one of imprisonment is appropriate for each of the offences.

43. It was submitted by the offender’s counsel that, having regard to the whole of the matters I have referred to, and particularly the time already spent in custody, that time served may be a sufficient non-parole period. The effect of this submission, if accepted, would be that the offender would be released from custody immediately with a parole period to be fixed for the balance of the term of the sentence. I do not accept that such a sentence would adequately reflect the seriousness of the offending and the proper application of the purposes of sentencing in this case, in particular general deterrence, denunciation and recognition of harm to the victim. This was predatory sexual offending against a child in her home by a trusted adult. I consider that a further period of custody is required, followed by a period under supervision.

Aggregate Sentence

51. I propose to impose an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act. I am required therefore to set out the indicative sentence for each offence.

52. As the offender has pleaded guilty to each of the offences, the 25% discount to be applied to the sentence will be reflected in each of the indicative sentences rather than in the aggregate sentence that I will impose: see DG v R [2017] NSWCCA 139, and Ibbotson (A Pseudonym) v R [2020] NSWCCA 92.

53. I accept that in determining the overall sentence I impose on the offender, I must have regard to the principles of totality. This requires me to calculate a sentence in respect of each offence, consider the principles governing accumulation and concurrency, and review the aggregate sentence to consider whether or not it is just and appropriate. I accept there should be some concurrency, particularly as Sequences 5 and 6 were committed during the same incident, however there must be some cumulation to reflect the separate criminality of each act.

54. I must look at the totality of the criminal behaviour of the offender, ask myself what is the appropriate sentence for all of the offences and avoid a crushing sentence: see Johnson v The Queen [2004] HCA 15, RH McL v The Queen (2000) 203 CLR 452 at [15] and R v MAK [2006] NSWCCA 381.

55. I am required to have regard to the fact that the offender is being sentenced for multiple offences, and to ensure that the ultimate sentence imposed is appropriate for the totality of the offending and to the offender’s personal circumstances: see R v Chan [2000] NSWCCA 345.

Form 1

56. With respect to the matter on the Form 1, I have had regard to this matter in setting the penalty for Sequence 3, noting that it would impact on the sentence for that count by way of considerations of specific deterrence for the primary offence and retribution for that offence. These two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. I am not, however, imposing a sentence on the offender for the Form 1 offence: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146, per Spigelman CJ.

Pre-Sentence Custody

57. The offender has been in custody solely referrable to this offending since his arrest on 11 October 2022. The sentence will therefore be backdated to commence on this date.

Special Circumstances

58. This is the offender’s first time in custody. He has been, and will remain, in protection by reason of the nature of his offending and his fear for his safety as a result of how such offending may be viewed by other members of the prison population. I have referred to the fact that, because of the assessment as to his low risk of re-offending, the offender most likely will not be able to undertake programs for sexual offenders whilst in custody. Each of these matters grounds the offender’s counsel’s submission that there should be a finding of special circumstances.

59. I accept such a finding should be made. I accept custody has been onerous for the offender and that a more lengthy period of parole is appropriate so the offender can be supervised and undertake such programs with respect to sexual offending, or otherwise, that Community Corrections thinks fit. I will recommend he do so if that body thinks this should be done.

Sentence

60. WD:

1. For the offences for which you have pleaded guilty, you are convicted.

2. For Sequence 3 (and taking into account the matter on the Form 1), I indicate a term of imprisonment of 1 year, 3 months (1 year 8 months before the 25% discount);

3. For Sequence 5, I indicate a term of imprisonment of 2 years 6 months (3 years 4 months before the 25% discount);

4. For Sequence 6, I indicate a term of imprisonment of 2 years (being 2 years 8 months before the 25% discount).

5. I set an aggregate term of imprisonment of 4 years with a non-parole period of 2 years and 2 months.

6. The sentence will commence on 11 October 2022 and expire on 10 October 2026.

7. The first date you will be eligible for release to parole will be 10 December 2024.

8. I recommend that, when you are released to parole, you engage in any sexual offender programs (or other programs) to aid in your rehabilitation that Community Corrections considers necessary and appropriate.

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Amendments

02 February 2024 - Paragraph [45]: word 're-offending' changed to 'rehabilitation'

Decision last updated: 02 February 2024