R v William James Clarke
[2014] NSWDC 182
•29 October 2014
District Court
New South Wales
Medium Neutral Citation: R v William James Clarke [2014] NSWDC 182 Hearing dates: 21 October 2014 Decision date: 29 October 2014 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Custodial sentence imposed; For Orders see [63]
Catchwords: Aggravated sexual intercourse without consent with a person less than 16 years of age Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999Cases Cited: Bugmy v R (2013) 302 ALR 192
Cahadi v The Queen (2007) 168 A Crim R 41
Kennedy v R [2010] NSWCCA 260
Pearce v R 1998 194 CLR 610
R v Fernando (1992) 76 A CrimR 58
R v King [2009] NSWCCA 117
Veen v R No. 2 (1998) Vol 164 CLR 465Category: Sentence Parties: Director of Public Prosecutions (Crown)
William Clarke (Offender)Representation: A Baker (Crown)
A Evers (Offender)
File Number(s): 14/94517 Publication restriction: Order pursuant to s 7 of Court Suppression and Non-publication Orders Act 2010 in respect of the name of the victim
REMARKS ON SENTENCE
In this matter the offender appeared before me at Taree District Court on 21 October 2014 in respect of one offence pursuant to s 61J(1) of the Crimes Act 1900 of aggravated sexual intercourse without consent with a person less than 16 years of age. The offence was committed on 12 March 2014 and carries a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years imprisonment.
A plea of guilty was entered by the offender on 22 July 2014. It is agreed that that was the earliest possible opportunity to enter a plea and that he is entitled to a 25% utilitarian discount on sentence for this offence.
The offender was arrested on 28 March 2014 and has been in custody since that date.
Agreed Facts
A fair summary of the agreed facts are that the victim, IK (aged 15 years) and the offender, who was at the time of the offence 29 years of age, are distantly related and resided in Kempsey a short distance from each other. At the time of the offence the offender was living with his mother. He had previously been on parole which was revoked on 18 February 2014 and expired on 25 February 2014.
The victim attended at the offender's house at approximately 9pm on 12 March 2014 to ask if she could use his phone. Also present at that residence was the offender's mother and partner, who were both heavily intoxicated.
The victim was informed that the mobile phone of the offender had no battery and it had to be charged. She waited at the location for a couple of hours for that to happen and whilst she was there she was given two cans of a pre-mixed alcoholic beverage known as Jack Daniels and coke which she drank from a glass. The agreed facts state that the victim consumed those drinks and two more later in the evening.
The victim and the offender walked into the offender's bedroom to check on the mobile phone and both sat on the offender's bed. It was at this time that the offender provided the victim with the third glass of Jack Daniels. While she was drinking that, the offender started touching her inner thigh and she pushed his hand away. She was later provided with another drink. The victim passed out on the offender's bed fully clothed.
The victim woke up feeling dazed and groggy. Her pants and underwear were down around her ankles and her vagina was sore. She was very upset and said to the offender, "What the hell?"
The offender responded "Oh well, princess".
The victim then left and reported the offence to a neighbour and the police were called. Following medical examination the offender's DNA profile was detected on examination of the high vaginal swab taken.
The offender left the area and was later arrested on 28 March 2014.
Antecedents
The offender has an appalling criminal history commencing from 1999 in the Taree Children's Court and continued from 2003 as an adult with numerous offences dealt with in the Taree Local Court. The history included numerous offences of larceny, break and enter, common assault, contravening apprehended domestic violence orders, traffic offences including mid-range PCA, assault occasioning actual bodily harm, steal motor vehicle, possess prohibited drugs, robbery in company and custody of a knife in a public place. Prior to this offence, he had been sentenced on 23 April 2013 on a number of offences including assault occasioning actual bodily harm, stalk/intimidate intend fear of physical/mental harm, common assault and contravene AVO to concurrent sentences of imprisonment for a period of 12 months commencing on 21 February 2013 and terminating on 20 February 2014 with a non-parole period of six months.
Prior to that he had been sentenced to various terms of imprisonment during his adult life and had spent five to six years out of gaol during the last 12 years, the longest period of time being a period of 18 months.
The Offender's Evidence
The offender gave evidence that he was born in Taree and was the eldest of seven children. He was now in a relationship with Alana McCleod, with whom he had had two children now aged 3 years and 2 years, and his partner was now pregnant with their third child who was due in November 2014. His partner, Ms McCleod, was the victim in respect of the offences for which he was imprisoned in February 2013.
The offender was the father of nine children in total. The oldest was now 14 years and the offender was aged 16 years at the time of his birth. The youngest was two years.
The offender gave evidence that he knew the victim who was a distant relation. He believed her to be a fourth cousin, in that her father was related to the offender's grandfather. The victim lived five houses away and in the period leading up to the offence, had been a regular visitor to the house of Alana McCleod, his partner.
On the day of the offence the victim had come to his house and asked to use his phone. He was living with his mother at the time and had since reconciled with his partner Alana McCleod. He told the victim that the mobile phone was not charged and, in any event, he did not have any credit for his phone. He gave evidence that there was a public phone within a short distance of his house, which he estimated as 10 metres away.
The offender gave evidence that his mother's boyfriend Dave had bought him a four-pack of Jack Daniels and coke. His mother and Dave were drinking in the kitchen and had an argument. His mother eventually passed out.
The offender gave evidence that he was not trying to get the victim drunk. They moved into his bedroom and were talking for some time. At no time did he prevent her from leaving and he went out of the room a number of times to go to the toilet and to get drinks. He had formed a view that she had an interest in him, which was something he had previously discussed with his partner Alana, as the victim had not come to Alana's place until the offender had stayed there. He had stood up for her in a dispute with the victim's ex-boyfriend.
The offender gave evidence that the victim had been in the house for approximately two hours before she fell asleep. He agreed with the Agreed Facts in exhibit A.
The offender was asked whether he had thought of the impact on the victim. He stated, "I was wondering why she came around". As he was now back in a relationship with Ms McCleod, he wanted to make up for lost time with his children.
Since his arrest the offender had been in custody at five different institutions, the longest period being for a few months. He was in limited association and had spent five months in maximum security for his protection.
The offender was asked about the pre-sentence report of Mr Robertson dated 2 October 2014 (exhibit A). He said the description of his violent upbringing was accurate. He lived in Taree until he was 11 years old. His parents had a violent relationship and the man he thought was his father hit his mother constantly and on one occasion broke her jaw in three places in front of the offender. During his childhood the offender felt that he was the one left out in the family. He later learned that the man was not his real father. He was treated differently, and as the eldest of seven, was always bashed by this man. He said "I copped it the worst".
The man was constantly drinking and violence usually ensued. He always said he was sorry the next day for flogging the offender and his mother when he was drunk.
His mother also drank but the offender gave evidence that he knew why, namely, that it was to deal with her pain and seeing her children suffer and being moved around.
The family moved often and tried to get away from the area. However, his life was marred with alcohol and violence and these problems were suffered all around the extended family. The offender, to his credit, said that he had learnt from it and that one had choices to make the next step but he felt that he did not get the chance to make such a choice.
The offender gave evidence that he attended primary school approximately 80 days a year. He was often suspended or expelled. He had two sisters who were very intelligent, however, and he had gone on to complete his year 10, partly at Taree High School, and finishing whilst in Juvenile custody. He had attended a number of drawing classes since that time.
The offender acknowledged that he had a problem with alcohol. His mother and father drank heavily as did a lot of his cousins. The family were always hungry and he was forced into stealing and "doing over" liquor stores to get money to eat.
On the night of the offence he was not drunk or affected by any other substance. He acknowledged that since he turned 18 he had spent between five and six years out of gaol and the longest period of time at liberty was 18 months. With respect to the reference in the presentence report to his not contacting a rehabilitation provider, he gave evidence that he provided a medical certificate in respect of a dental problem and he did make contact with the service a number of times. He had been previously diagnosed with depression, anxiety and schizophrenia but had been advised by his local medical officer in 2013 that he did not have schizophrenia. He had never been prescribed medication for schizophrenia, nor had he taken medication for his depression and anxiety, however, he understood that he was to be prescribed Xyprexa Seroquel and Avanza. In the past he had taken no medication because he was scared of it and it affected his interest in sports, which he went on to state was an interest in rugby league.
On release, the offender intended to move away from Taree and start a new life. He was attempting to obtain his driver's licence, although he had failed on two occasions. He would agree to attending a sexual offender's course whilst in custody.
In cross-examination the offender said that of the four cans of Jack Daniels and coke, he had drunk two and a half cans. He agreed that the victim had passed out and stated that he did not argue with the agreed facts.
With respect to the pre-sentence report, the offender said that he was very remorseful for everything but believed that the author of that report misunderstood what he said in relation to his attitude to the offending. The report did not accurately reflect how he felt.
Submissions on Behalf of the Offender
Learned Counsel for the offender submitted that the objective seriousness of the offending here was below the mid-range for offences pursuant to s 61J(1) and possibly substantially below that range. In respect of the definition of knowledge about consent contained in s 61HA of the Crimes Act, counsel submitted that of the three options set out in s 61HA(3)(a), (b) and (c), the present offending was closer to (c), namely, that the offender had no reasonable grounds for believing that the other person consented to the sexual intercourse.
It was submitted that the Court had to have regard to all the circumstances of the offending. Counsel submitted there was no evidence of planning or pre-meditation here. Nor was the offending conduct accompanied by threats or violence.
It was submitted that the victim appeared to be happy to be alone with the offender, albeit because she no doubt trusted him at the time.
Counsel submitted that the offender was entitled to a utilitarian discount on penalty of 25% following his early plea of guilty.
Relevant to the application of Bugmy v R (2013) 302 ALR 192, counsel submitted that the evidence established that the offender had lived his life in circumstances of deprivation which had continued to affect him throughout his adult life. He now wanted to make changes to his life and to not spend the rest of his life in custody. He was prepared to involve himself in a rehabilitation program for sexual offenders and for drug and alcohol counselling and anger management counselling.
Counsel submitted that I should find special circumstances made out here pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 ("C(SP)A") on the basis of the offender's need for rehabilitation and the development of employment skills for his return to a constructive place in the community. He was a man with family support and his relationship was back on foot with his partner and his two children. In those circumstances he had good prospects of rehabilitation.
Finally, it was submitted that by his plea of guilty the offender had demonstrated both remorse and responsibility for his criminal conduct.
Crown Submissions
In relation to the objective seriousness of the offending, it was submitted on behalf of the Crown that the offender clearly knew that the victim was not consenting. The agreed facts recorded that he had touched her on the inner thigh and that she had pushed him away. She had then passed out, and after the event, his response to her was expressed as "Oh well, princess", which was consistent with his knowledge of her lack of consent.
The Crown submitted that the offence involved penile penetration of the victim who was then aged 15 years. Medical examination demonstrated a bruise on her upper forearm which was a circumstance the Court should take into account, although this was not an offence that involved greater violence.
It was agreed that the offender was entitled to a discount of 25%, but it was submitted that he had expressed no genuine remorse as demonstrated by the pre-sentence report in relation to his attitude to the offending.
It was submitted that this offence occurred 15 days after his parole had been revoked on 18 February 2014, following which, he had served one further week on parole to 25 February 2014 (exhibit C).
Finally, the Crown submitted that the offender's prior criminal history was appalling and that he had been shown leniency and had been subject to orders for special circumstances on a number of occasions by courts in the past.
Submission in Reply
Learned counsel for the offender submitted in respect of knowledge that in all of the circumstances it was not clear that the offender had actual knowledge that the victim did not consent to the sexual intercourse.
In respect of the characterisation of penile penetration, counsel referred the Court to R v King [2009] NSWCCA 117 at [36], to the effect that the type of penetration is but one factor for the Court to take into account in determining the objective seriousness of the offence and does not of itself define the objective seriousness of the offending. The Court must look at the whole of the circumstances.
Determination
Section 3A of the C(SP)A sets out the purposes of sentencing as follows:
"3A The purposes for which a Court may impose a sentence on an offender are as follows:
(a) To ensure that the offender is adequately punished for the offence,
(b) To prevent crime by deterring the offender and other persons from committing similar offences,
(c) To protect the community from the offender,
(d) To promote the rehabilitation of the offender,
(e) To make the offender accountable for his or her actions,
(f) To denounce the conduct of the offender,
(g) To recognise the harm done to the victim of the crime and the community."
I have had regard to the maximum penalty of 20 years imprisonment together with the standard non-parole period of 10 years imprisonment in respect of the offence pursuant to s 61J(1) of the Crimes Act. These are guide posts to be taken into account in considering all the circumstances of the offending.
Section 61HA of the Crimes Act applies for the purposes of offences pursuant to s 61J. It contains the following definitions:
"S 61HA(2) Meaning of Consent
A person consents to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse.
(3) Knowledge About Consent
A person who has sexual intercourse with another person without the consent of the other person knows that the other person does not consent to the sexual intercourse if
(a) the person knows that the other person does not consent to the sexual intercourse, or
(b) the person is reckless as to whether the other person consents to the sexual intercourse, or
(c) the person has no reasonable grounds for believing that the other person consents to the sexual intercourse.
For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case
(d) including any steps taken by the person to ascertain whether the other person consents to the sexual intercourse, but
(e) not including any self-induced intoxication of the person.
(4) Negation of Consent
A person does not consent to sexual intercourse
(a) if the person does not have the capacity to consent to the sexual intercourse, including because of age or cognitive incapacity, or
(b) if the person does not have the opportunity to consent to the sexual intercourse because the person is unconscious or asleep, or
(c) if the person consents to the sexual intercourse because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person), or
(d) if the person consents to the sexual intercourse because the person is unlawfully detained.
(6) The grounds on which it may be established that a person does not consent to sexual intercourse include
(a) if the person has sexual intercourse while substantially intoxicated by alcohol or any drugs, or
(b) if the person has sexual intercourse because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force, or
(c) if the person has sexual intercourse because of the abuse of a position of authority or trust."
I do not accept learned Counsel's submission on behalf of the offender that the circumstances of the offence here concerning the offender's knowledge about consent by the victim fell within ss (3)(c). It is clear from the agreed facts that when the offender touched the victim's inner thigh she had rebuffed his advance by pushing his hand away. Further, his only response to her when she became conscious of the offence, namely, by saying "Oh well, princess", clearly connotes that he had actual knowledge that she did not consent to the sexual intercourse. I am satisfied beyond reasonable doubt that the offender knew that the victim did not consent to sexual intercourse having regard to all the circumstances, where the victim was unconscious or asleep as a result of drinking alcohol supplied by the offender to her.
Further, there was no doubt an abuse of the offender's position of trust in respect of the victim to whom he was distantly related, and some fourteen years her senior.
In assessing the objective seriousness of the offending pursuant to s 61J(1), I do not accept the offender's submission that the seriousness lies below the mid-range of objective seriousness of the offence, and possibly substantially below that range, as there was an absence of associated violence or other aggravating factors. The circumstances, including the fact of penile penetration mean the offending is within the mid-range of objective seriousness for such an offence (see R v Ronald King, supra), albeit at the lower end of the mid-range. The offender knew the victim was 15 years of age and provided her with four strong alcoholic drinks, and committed the offence after she had fallen asleep and was therefore defenceless. He had clearly abused his position of trust, as a distant relative of the victim. It was clearly very serious offending.
In respect of the offender's prior criminal history, I have regard to what the High Court said in Veen v R No. 2 (1998) Vol 164 CLR 465 at 477 where the plurality said:
"The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. The antecedent criminal history is relevant, however, to show that the incident offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience to the law. In that case retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted."
Clearly, the offender falls within the latter category of case.
There are significant subjective matters which have to be taken into account in respect of this offender's background, his exposure from an early age to a culture of extreme violence, his consumption from an early age of alcohol and drugs and the effect of a lifetime of deprivation on him including his victimisation by his putative father, and his institutionalisation over large parts of his life. In Bugmy v R, supra, the High Court held:
(1) The circumstances that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his/her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way [40].
(2) The effects of profound deprivation do not diminish over time and repeated offending should be given full weight in determining the sentence in every case [42-44].
(3) A background of that kind may leave a mark on a person throughout life and compromise a person's capacity to mature and learn from experience [43].
In that case, the High Court stated that Aboriginal Australians, whether they live in remote or urban communities, may be subject to the grave social difficulties discussed in R v Fernando (1992) 76 A CrimR 58 and Kennedy v R [2010] NSWCCA 260. The evidence here establishes that the offender's background was one of deprivation in which he was exposed, at an early age, to alcohol fuelled violence and that he was victimised for much of his childhood. In accordance with the High Court's decision in Bugmy, that deprivation does not diminish over time and should be given full weight in determining the sentence in every case. Therefore the offender's moral culpability for his inability to control his impulses in the circumstances here, must be reduced. By the same token, the circumstances here did not involve alcohol to the extent that the offender gave evidence that he was not affected by alcohol at the time of the offending. Given my finding as to his knowledge of the victim's lack of consent, his moral culpability for the offence is still substantial.
General deterrence is a relevant matter to take into account, together with specific deterrence in respect of this offender.
I have also had regard to the principles of parity, proportionality and totality in Pearce v R (1998) 194 CLR 610 at [45].
I have had regard to the evidence of the offender that he wants to make changes in his life to ensure that he does not spend the rest of his life in custody. He has not had the benefit of intervention programs, and he is clearly in need of rehabilitation in respect of his alcohol abuse, anger management and development of employment skills so as to warrant a finding of special circumstances pursuant to s 44(2) of the C(SP)A. He does have community support from his family and partner, and some prospects of successful rehabilitation and return to the community. I accept that whilst he has not expressed great remorse for his criminal conduct, he has accepted responsibility for that conduct.
Sentence
I am satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate pursuant to s 5 of C(SP)A.
I also make a finding of special circumstances pursuant to s 44(2) of the C(SP)A so as to vary the ratio between the non-parole period that the offender must serve and the total term of imprisonment. I also take into account the 25% utilitarian discount on sentence that he is entitled to, and the circumstances of deprivation which have reduced his moral culpability in respect of this offending somewhat.
I intend to sentence the offender to a total term of imprisonment of 5 years to date from 28 March 2014. I further intend to sentence him to a non-parole period of 2 years and 6 months from that date. I will direct that he then, subject to his release by the Parole Board, be referred for supervision by the Parole and Probation Service, such supervision to include drug and alcohol rehabilitation, sex offender's programs, anger management counselling and any intervention program that will improve his prospects of employment and a constructive return to the community.
Orders
I make the following orders
(1) You are convicted of the offence pursuant to s 61J(1) of the Crimes Act 1900 that you committed aggravated sexual intercourse without the consent of a person under the age of 16 years.
(2) I sentence you to a non-parole period of 2 years and 6 months to commence on 28 March 2014 and terminating on 27 September 2016.
(3) I impose a further term of imprisonment of 2 years and 6 months from 28 September 2016 to 27 March 2019.
(4) I note that your parole eligibility date will be 27 September 2016.
(5) Upon release to parole, I recommend that you be supervised by the Probation and Parole Service, and that you accept any direction of that service to attend drug and alcohol counselling, sex offender's programs, anger management counselling and any other intervention program to improve your employment skills.
You should understand that release to parole is not automatic. The State Parole Authority will hold a hearing sometime before that date and decide whether they are going to release you to parole on that date or some later date. You should understand that your parole will be subject to stringent conditions, one of which is not to commit offences whilst on parole. Other conditions will include things such as who you associate with, where you live and doing what your parole officers direct. If, during the time you are on parole, you breach any condition of parole, the State Parole Authority will revoke your parole and you will have to go back to gaol to serve the balance of your sentence.
Decision last updated: 29 October 2014
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