R v Wood - [2015] NSWDC 354

District Court

New South Wales

Medium Neutral Citation: R v Wood [2015] NSWDC 354
Decision date: 10 September 2015
Jurisdiction: Criminal
Before: Cogswell SC DCJ
Decision:
For the offence of aggravated sexual assault, a sentence of 5 years imprisonment to commence on 10 September 2015 and to expire on 9 September 2020. A non-parole period of 3 years is fixed to commence on 10 September 2015 and to expire on 9 September 2018.

Catchwords: CRIMINAL LAW – sentence after trial – particular offence – aggravated sexual assault – victim under authority of offender – victim living in offender’s household – victim offender’s sister-in-law – digital penetration – prior criminality – negligible record – nature and circumstances of offender – positive upbringing – well regarded by family and members of the community – numerous personal references – limited weight to be put on references where offending behaviour is not acknowledged – no evidence of remorse – offence not simply opportunistic – low-medium risk of reoffending – gravity of offence – lower end of range of objective seriousness – special circumstances for adjusting ratio between head sentence and non-parole period – 60% - will serve time in protective custody
Legislation Cited: Crimes Act 1900 (NSW), s 61J
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Category: Sentence
Parties: Regina (Crown)
Vincent Wood (Offender)
Representation:
Counsel:
K Gilson (Crown)
K Buckman (Offender)
Solicitors:
Office of the Director of Public Prosecutions (NSW)
Phillip Ryan Solicitors (Offender)

File Number(s): 2013/93888
Publication restriction: Pursuant to s 578A Crimes Act 1900 there is to be no publication of the victim's name or anything that may lead to identification of the victim. Identifying information has been removed from this version of the judgment to comply with the statute and replaced with pseudonyms (which are colours).

Judgment

I am sentencing a good father and husband who is highly regarded by his employer. I am sentencing him because - despite this good standing - the man allowed himself to become so infatuated with a teenage member of his extended family that he raped her while they were together in a car on a country road.
When a judge sentences an offender, the judge needs to say what happened in the crime and to make an assessment of how serious an example of this crime is. The judge must also take into account the personal circumstances of the offender whom the judge is sentencing.
At the start, however, I should say what I am sentencing the man for. His name is Vincent Wood [this is a pseudonym]. I should add that that name is not to be published outside this courtroom apart from members of his family who know that he is involved in this case. The reason for that is that it is against the law in New South Wales to publish the name of a person who complains that they were sexually assaulted. In this case, Vincent Wood is the brother-in-law of Emily Saffron [another pseudonym] the victim of his sexual assault. She is not to be identified outside this courtroom except by members of the immediate family who already know about this case and her involvement.
The crime that I am sentencing Mr Wood for is called aggravated sexual assault. It is made into an offence by s 61J of the Crimes Act 1900 (NSW). Parliament regards the crime as so serious that it has fixed a maximum of 20 years imprisonment to that offence. Not only that, Parliament has fixed a standard non-parole period of ten years to the offence. In this case, Vincent Wood committed the aggravated sexual assault - which is more specifically described as having sexual intercourse with another person without their consent in circumstances of aggravation and knowing that the other person does not consent - against his sister-in-law. That is, the sister of his wife. The particular circumstance of aggravation is that the victim of his offence was under his authority at the time of the crime. She was in fact a 17-year-old student who was living in his household in regional New South Wales.
I will start by pointing out that Mr Wood pleaded not guilty to the crime. He acknowledged that he had engaged in sex with Emily Saffron in the car on the occasion in question but said that the sex that they had was consensual. He maintained that plea of not guilty but a jury was satisfied beyond reasonable doubt of his guilt and I formally convict him of that crime if I have not already done so.
Emily Saffron, as I said, is Vincent Wood’s sister-in-law. She spent a good amount of time living with Vincent Wood’s family. It was not in regional New South Wales, as I earlier mistakenly said, but in a regional town of Victoria. She was 17 at the time of this offence. The offence I might add occurred in July 2007. Emily Saffron was living with Vincent Wood and his wife and their five children. She was going to a local high school and had a part time job locally. She did chores within the household and when asked by the Crown Prosecutor how she felt her position was in the household, she replied, “Just another child in the house at the time”.
However, to his discredit, Vincent Wood became sexually infatuated with his sister-in-law. He claimed that she behaved provocatively towards him, including on the occasion that he committed this offence. There was an occasion earlier than this offence which occurred in Victoria. Something occurred which is not itself an offence in New South Wales nor is it an aggravating factor which I take into account but, as Mr K Gilson the Crown Prosecutor said, it puts this crime in context and also indicates that Vincent Wood knew what Emily Saffron’s attitude was to any sexual advances towards her.
They were out driving in the countryside in regional Victoria. Ms Saffron said that “Vincent turned the music off and he tried to put his hands on me”. She added that he tried “to put them in my pants”. She was yelling at him because she had not expected it to happen and she tried “to force his arm off me, his hand on me”. He then stopped and “lent back over into his seat”. I repeat, that is relevant because it indicates that Vincent Wood knew that Emily Saffron was not interested in sexual engagement with him.
The occasion in question that I am sentencing him for occurred in these circumstances. Part of Vincent Wood’s wife’s family lived in NSW so a number of members of the family took a road trip from regional Victoria to NSW. They stayed there for a few days. Then either Vincent Wood or Emily Saffron or both of them needed to be back in regional Victoria for school or job commitments. They undertook the journey back from NSW to regional Victoria. On the way they stopped for some petrol which was probably at Yass. Vincent Wood produced from the back seat a bottle of Bourbon which he mixed with a soft drink and Emily Saffron drank some; she thought about two cups. Vincent Wood drank some alcohol as well. Emily Saffron then took a pill which Vincent Wood produced and it seems to be common ground that the pill was an ecstasy tablet. They were not on the freeway but what Emily Saffron described as an “old main road”. The car was parked by Vincent Wood. (He was driving.) Ms Saffron does not remember much about where they were except that she does recall a “paddock, a farm, farm land”. It sounds as though it was somewhere between Yass and Albury because she thought the next big town or city was Albury.
Mr Gilson asked her what happened when they pulled over “near or adjacent to some paddocks” and she replied that she remembered waking up to “Vincent’s fingers in there”. She was in the passenger’s seat in the car and she elaborated by explaining that his fingers “were in my vagina” and she thought that it lasted a “few minutes, maybe”. She confirmed that she did not want him to do what he did nor invite him to do it and that as soon as she objected to him doing it, he withdrew his fingers. She also said she felt sick but acknowledged that that was probably because of the alcohol which she had had to drink.
So that is the crime which Vincent Wood has been convicted of. It is sexual intercourse because it involved the penetration of Emily Saffron’s vagina with his fingers without her consent and knowing that she was not consenting. The likelihood is that she was asleep or unconscious at the time and he therefore knew that she was not consenting. The circumstances of aggravation were, I repeat, that he sexually penetrated a teenage girl who was a member of his household and regarded herself as just like one of the other children in the household at the time. I should add that at the time of the offence she was 17 and he was 35.
I turn now to consider the personal circumstances of Vincent Wood. He has a criminal record but it is quite negligible. There are a couple of offences of offensive language and a traffic offence. There is, I acknowledge, a robbery in company but that was committed in 1990 and was in fact dealt with by the Children’s Court. I regard his criminal record as being negligible for the purposes of sentencing him.
There is a presentence report which has been prepared by Community Corrections. It records that he had a positive upbringing. He was born overseas and migrated to Australia with his family when he was five. He had supportive relationships with his parents and his siblings. The presentence report noted that Mr Wood lives with his “ex-partner” and their five children aged between 12 and 19. The relationship lasted some 21 years and “ended approximately three years ago due to the nature of the current offence”. They are still on good terms. The report noted a positive reference from his employer. I too have such a reference. The report noted that he felt somewhat tipsy and had taken an ecstasy tablet at the time of the offence but that seemed to be the only drug and alcohol issue in his history. It noted that “Mr Wood does not deny what occurred between himself and the victim however claimed it was consensual; that the victim was flirting with him and he was ‘stupid’”. Mr Wood “denies giving the victim a tablet and says it was an ecstasy tablet which the victim took off his hand.”
I add in that regard that is consistent with my finding. I also make clear that Mr Wood is not being sentenced for any offence containing an aggravating factor involving a stupefying drug or assaulting someone having plied them with alcohol. That would be a more serious offence. He is being sentenced for just the offence that I have described. By reference to one standard, the report indicated that Mr Wood had a low risk of re-offending and by another standard the assessment was a “low‑moderate risk range”.
In addition to the pre-sentence report, there is a very large number of personal references for Mr Wood. They come from members of his family as well as people who know him in various circumstances including employment. Some have known him for practically all his life. Many of them refer to his strong sense of duty as it applies to his job, his family and his community. One referee refers to the fact that he “possesses a great deal of integrity, and constantly strives to make sure he is doing the right thing.” It is obvious from these references, as I said, that he is a very strong family man whose support extends not only to his own children but unselfishly to members of his extended family, particularly when they are in need of support in one way or another. I have read all of the references and they present a picture of a good father and husband who is highly regarded by his employer and by others in the community.
There is one reservation which I have about the references. Almost all of them have as a subject line “sexual intercourse without consent (under authority)”. Very few, if any of them, otherwise refer to the circumstances of this offence. The Crown Prosecutor picked that up and argued that none of the references reflects a knowledge of the fact that he admitted to having sexual intercourse with a girl under his care. Naturally, of course, his account was that it was by consent. Many of the references refer to a man of integrity with a strong moral code. I do not doubt that those references are true in what they say, but they are references concerning a man who admittedly engaged in inappropriate relations with a teenage sister-in-law. The references themselves verify, in my opinion, aspects of his character but do not acknowledge a serious lapse in his behaviour by not referring to some knowledge of what he has admitted to and what he has been found guilty of. As I say, I do take them into account but they are limited somewhat in their impact.
Despite the submissions of Mr K Buckman who appeared for Mr Wood, I do not find that there is evidence of his client’s remorse. I agree with Mr Buckman that there is evidence that he regrets what he did with his teenage sister-in-law and acknowledges the impact which it has had on her, but at the same time he maintained that he was not guilty of any criminal offence and Emily Saffron was required to come to court and to give evidence and be cross-examined about the circumstances of the offence. Again I make clear that Mr Wood is not being punished for the fact that Emily Saffron had to give evidence against him. I make that observation simply in the context of an argument that he should be regarded as displaying some remorse or contrition. Although he has displayed remorse for his immoral behaviour, I do not accept that he has demonstrated remorse so far as it is a relevant factor in sentencing him under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The offence itself was not premeditated or planned. In that sense it is not aggravated. However, it was not simply opportunistic. Mr Wood did set off on a long car trip with his teenage sister-in-law - with whom he had an inappropriate sexual encounter some time before – with a bottle of bourbon and ecstasy tablets in the car. I repeat, I do not find it was premeditated but nor was it simply opportunistic and out of the blue.
It did occur, as the Crown Prosecutor pointed out, in a car in an isolated spot in the countryside. Mr Wood knew that Emily Saffron had rejected his advances beforehand. He did take advantage of the fact that the 17 year old girl who was under his authority and in the car with him was at the time influenced, no doubt, by the effect of the combination of alcohol and drugs, perhaps tiredness, who knows, but it is clear that she was not aware of when he had penetrated her but became aware when he withdrew his fingers at her request. In other words, whatever she was influenced by, probably a combination of drugs and alcohol, he took advantage of her circumstances in a car in an isolated spot.
There was no victim impact statement. I do not say that critically. Its impact is obvious - indeed the courts do not need evidence of the fact that a sexual assault will have a significantly traumatic impact upon the victim. That is one of the reasons why Parliament regards the crime as so serious and fixes such a high penalty on offences like this. Ms Saffron was, to my observation, upset and perhaps traumatised by the process of giving evidence. The crime obviously had the kind of impact on her that one would expect this serious offence of personal violence to have on a young girl.
As Mr Buckman reminded me, there are other forms of sexual intercourse. Sexual intercourse, of course, could be the insertion of a penis into a woman’s vagina, it could involve ejaculation, it could involve risks of pregnancy or disease. This is the insertion of a finger or fingers. How serious it is depends upon the facts and circumstances which were present at the time. I have described those and I agree with Mr Buckman’s assessment, which is supported by Mr Gilson’s, that for this offence it falls towards the lower end of seriousness for this crime.
One must bear in mind that circumstances of aggravation include inflicting actual bodily harm - or threats to do that - or breaking into a house and raping someone or doing it with another person present. A judge needs to make some kind of assessment of how serious an example of the crime a particular offence is. I agree with Mr Gilson and Mr Buckman that it falls towards to the lower end of objective seriousness for this kind of crime. Mr Buckman argued that it was of brief duration. There is some force in that argument but it was not brief in the terms of seconds; it was brief in the terms of some minutes.
Mr Buckman put forward some argument to the effect that his client may be sentenced to a penalty which did not involve full-time custody. That submission must be rejected. The steps involved in determining that a sentence cannot involve custody mean that the judge has to decide first what the sentence is and it needs to be as low as about two years. This is not a crime where the penalty can be so low. One needs only look at the maximum penalty which Parliament has fixed to the crime and to the standard non‑parole period.
Normally when a judge fixes a sentence the judge will fix a non‑parole period. I will fix a non-parole period after I have sentenced Vincent Wood. Normally the non-parole period is 75% of the head sentence. I will reduce that to about 60% because I think there are special circumstances for doing that. There are not many but one of them is that he will probably have to serve his time in custody in protection.
I regard an appropriate sentence in this case, taking into account all that I have said, as being one of five years imprisonment and I would regard an appropriate non-parole period as being three years imprisonment.
I set a non-parole period of three years to commence today, 10 September 2015. That will expire on 9 September 2018. The balance of the term is two years commencing 10 September 2018 and expiring on 9 September 2020.
Vincent Wood, your sentence is five years imprisonment. You have a non‑parole period - that you must stay in gaol for - of three years. You will go into gaol today on 10 September 2015 and you will be eligible for parole on 9 September 2018.

HIS HONOUR: Do you understand that?

OFFENDER: Yes.

Your overall sentence will expire on 9 September 2020. Mr Gilson, Mr Ryan, is there anything else that I need to attend to? I don’t think so.

GILSON: No, your Honour.

HIS HONOUR: It’s not for me to fix parole, it’s the Parole Authority. So far as I am concerned - I will go off the bench - if he wants to talk to his relatives here before he goes down he may, but that’s a matter for Corrective Services. I will leave that to you.

GILSON: There are no matters that arose that I could see, your Honour.

HIS HONOUR: Thanks Mr Gilson, thanks Mr Ryan.

**********

Decision last updated: 08 February 2016

Medium Neutral Citation:	R v Wood [2015] NSWDC 354
Decision date:	10 September 2015
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	For the offence of aggravated sexual assault, a sentence of 5 years imprisonment to commence on 10 September 2015 and to expire on 9 September 2020. A non-parole period of 3 years is fixed to commence on 10 September 2015 and to expire on 9 September 2018.
Catchwords:	CRIMINAL LAW – sentence after trial – particular offence – aggravated sexual assault – victim under authority of offender – victim living in offender’s household – victim offender’s sister-in-law – digital penetration – prior criminality – negligible record – nature and circumstances of offender – positive upbringing – well regarded by family and members of the community – numerous personal references – limited weight to be put on references where offending behaviour is not acknowledged – no evidence of remorse – offence not simply opportunistic – low-medium risk of reoffending – gravity of offence – lower end of range of objective seriousness – special circumstances for adjusting ratio between head sentence and non-parole period – 60% - will serve time in protective custody
Legislation Cited:	Crimes Act 1900 (NSW), s 61J Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Category:	Sentence
Parties:	Regina (Crown) Vincent Wood (Offender)
Representation:	Counsel: K Gilson (Crown) K Buckman (Offender) Solicitors: Office of the Director of Public Prosecutions (NSW) Phillip Ryan Solicitors (Offender)
File Number(s):	2013/93888
Publication restriction:	Pursuant to s 578A Crimes Act 1900 there is to be no publication of the victim's name or anything that may lead to identification of the victim. Identifying information has been removed from this version of the judgment to comply with the statute and replaced with pseudonyms (which are colours).