R v Wood

[2011] NSWDC 244

District Court

New South Wales

Medium Neutral Citation:	R v Wood [2011] NSWDC 244
Decision date:	23 November 2011
Before:	Murrell SC DCJ
Decision:	Effective sentence: 7 years 6 months with a non-parole period of 3 years and 9 months.
Catchwords:	CRIME- Sentence - sexual assault- historical offences
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999
Category:	Sentence
Parties:	The Crown James Douglas Wood
Representation:	Mr F Fox (Crown) Mr P Pearsall (Offender) Office of the Director of Public Prosecutions NSW Mark Douglass Solicitors
File Number(s):	2011/162977
Publication restriction:	There is to be no publication of the names of the victims or any material that tends to identify them.

Judgment

1. When committed for sentence, the offender adhered to pleas of guilty in respect of four principal counts:

(1) In 2001, aggravated indecent assault on R (aged 12 years), contrary to s 61(M)(2) of the Crimes Act 1900;

(2) Between 1 December 2010 and 31 January 2011, aggravated indecent assault on W (aged 11 years), contrary to s 61(M)(2) of the Crimes Act;

(3) Between 1 and 28 February 2011, aggravated sexual assault on N (aged 12 years), contrary to s 61(J)(1) of the Crimes Act.

(4) Between 1 and 28 February 2011, aggravated sexual assault on N, contrary to s 61(J)(1) of the Crimes Act.

In relation to each of the victims, the Court is asked to take into account matters on a Form 1. The Court will do so.

1. I would like to say a few words to the victims, their families and friends. The Court acknowledges the extreme harm that was perpetrated against the victims and the ongoing very serious injury suffered by them. Nothing that I say detracts from the harm that has been suffered by the victims. This sentencing exercise is not all about the offender. By the same token, the Court does not engage in retribution. It is not an eye for an eye. The Court is here to impose a sentence on behalf of the community. It is the community that has prosecuted the offender. I am dealing with proceedings between the community and the offender, while also acknowledging the importance of the victims. Sentencing purposes do not include retribution. They include other important sentencing objectives, such as appropriate punishment, personal deterrence of the offender, general deterrence of other people who might be contemplating crimes of this nature, and protection of the community. They include promotion of the rehabilitation of the offender, as well as the purposes of accountability, denunciation and recognition of the harm that the offender has done to you and to the community.

Sentencing Parameters

1. The maximum available penalties and the standard non-parole periods provide important sentencing parameters that guide the Court's determination of an appropriate sentence:

Victim	Offence	SNPP	Maximum
R	s 61(M)(2)	N/A	7 years
W	s 61(M)(2)	8 years	10 years
N	s 61(J)(1) x 2	10 years	20 years

1. The offender pleaded guilty at the earliest reasonable opportunity. Because of the utilitarian value of the early pleas, the offender is entitled to a significant discount, in the vicinity of twenty-five percent.

Facts (Exhibit A)

Victim R

1. The victim met the offender when the victim and his mother were holidaying on the Gold Coast in 2001. They became family friends. Subsequently, the victim and his family returned to rural New South Wales, where they resided. The offender, his brother and another friend visited them at their home. They stayed at the victim's home for a couple of nights. There was an incident on the first night that the offender was staying at the victim's home. The victim was asleep in his bedroom. He was awoken by the offender, whose hand was underneath the covers, touching his penis. The offender moved his hand into the boxer shorts of the victim. The period of the conduct is not specified. Fortunately, the victim told the offender to go away and the offender did so.

1. The matter to be taken into account on a Form 1 when sentencing for the first offence is an incident that occurred in late 2003 or early 2004. At that time, the victim was approximately fourteen years of age. The victim and his family were staying with the offender in a beach caravan. The caravan belonged to the offender's parents. The victim slept in an annex on a top bunk bed and the offender slept beside the bunk. During the night, the victim woke up. His arm was hanging over the side of the bunk. The offender was standing close to the bunk and touching the offender's penis against the victim's hand. The victim pulled his hand away quickly and the offender then returned to the futon that he had been occupying on the floor.

1. The victim read a victim impact statement, describing the many unfortunate and serious consequences of the offender's misconduct. After a decade, the victim is still profoundly affected by the events of 2001 and 2003/4. The victim suffers serious nightmares. At times, he wakes in a cold sweat. He is very fearful at night. He has difficulties with intimate relationships. He is extremely angry at what occurred and his anger manifests itself in various ways; he tends to lash out at other people, his relationship with his mother is strained, he has not disclosed the events to his father, and he believes that his academic performance has been affected. That is probably true. He has been harbouring horrible thoughts throughout his secondary schooling. It could not but have affected his schooling in a negative way. The victim R has suffered many consequences of the sort that one would expect to flow from incidents of the type in question.

1. After the incident on the Form 1, the offender lived with the victim and the victim's family for a period of time in 2006/2007. Nothing further occurred. There were only two incidents involving this victim. That is not to understate the significance of the incidents, but to note that the incidents are not representative of other misconduct between the offender and the victim.

1. This is an objectively serious matter. It involved a victim who was twelve (and later, fourteen years of age, in relation to the Form 1 matter). The section of the Crimes Act in question deals with victims up to sixteen years of age, so age is a significant consideration. The victim was towards the lower end. The conduct itself was serious conduct. Admittedly, there is nothing to suggest that it went on for a significant period of time. However, it was serious and it was frightening. It occurred in the victim's home. He was in bed, in relation to the principal offence, somewhere where he should have been very safe. The offender breached the trusted position that he held because he was a guest in the home of the victim and he was a trusted friend.

Victim W

1. W's father was a close friend of the offender. After Christmas 2010, the victim, who was eleven, and his father and other family members went and stayed for three nights with the offender in the offender's beach caravan. The victim slept in the annex on a bunk. The offender slept on the futon on the floor. On the first morning, when the victim woke up he discovered that his father, who was an early riser, had left the annex. The offender asked whether the victim would like to have his back tickled. He proceeded to tickle the victim's back for an extended period of time. He then moved his hand underneath the victim's clothing, touching his backside and then his penis and testicles, initially on top of the victim's boxers, but then inside. Because of his age, the victim did not fully appreciate the wrongness of what was occurring, but he must have had a sense of disquiet because he said that he wanted breakfast. At that, the offender stopped the activity.

1. There are two matters to be taken into account on a Form 1, each of which was very similar to the incident that occurred on the first morning. These incidents occurred on the second and third mornings when the family was at the beach caravan. Each morning when the victim woke up, he was alone in the annex with the offender, who tickled the victim's back and then proceeded to run his hand down to the victim's backside and then the genital area. The facts in relation to the third morning state that the hand moved underneath the boxer shorts. The position in that regard is not clear in relation to the second occasion. The third incident stopped when the victim got up and, in effect, terminated the activity.

1. I am only sentencing the offender for the first of these incidents. The first incident was a serious incident. The victim found himself alone in the annex with the offender, who, under the guise of tickling him, proceeded to another activity. Because of the victim's age and naivety, he did not fully appreciate what was going on and how wrong it was. It was only later that he gained that appreciation. This matter involved a breach of trust. The only reason that the victim and the offender found themselves together was because the offender was a trusted friend of the family. The age of the victim is a matter of significance. He was eleven years of age. This offence addresses victims up to sixteen years of age. The victim's father read a victim impact statement which showed that the victim is very angry and very saddened by the breach of trust. The sentiments expressed in the victim impact statement are the sorts of things that one would expect to hear from any victim of a serious interference such as occurred here.

Victim N

1. I will now turn to counts 3 and 4 and the Form 1 matters to be taken into account when sentencing for counts 3 and 4. Counts 3 and 4 are breaches of s 61(J)(1), matters of aggravated sexual assault. The matters on the Form 1 are four counts of aggravated indecent assault and one of aggravated act of indecency. The two offences and four of the five matters on the Form 1 occurred at the same time. The fifth matter on the Form 1 occurred on a prior occasion.

1. Proceeding chronologically, I first address the fifth matter on the Form 1. That offence occurred when the victim was eleven years of age and the offender was staying at the victim's home. The offender slept in the victim's bedroom and the victim slept in the lounge room. On the morning in question, the victim went to his bedroom to get clothes. The offender asked the victim to get into bed with him and he began to touch the victim, working his hand down to the genital area and rubbing outside the victim's pyjama pants.

1. The remaining matters occurred in February 2011, probably on 19 February 2011. On that day, the offender was staying overnight at the home of the victim's family. The victim was aged twelve years. The offender had a very close relationship with the victim's family. He was a close friend of the victim's father. They had met when they were children and they had gone through Cubs and Scouts together. The offender was the Godfather of the victim. On this occasion, the arrangements were that the offender would sleep in the victim's bed and the victim would sleep in the lounge room. On the night in question, the offender suggested that he and the victim watch a movie together. They went into the victim's bedroom and the offender got underneath the covers and asked the victim to join him. The victim's parents were in their bedroom. It was then that the first aggravated indecent assault occurred. The offender began to touch the victim. He moved his hand down to the victim's penis, pulling the victim's boxers down and fondling the penis. The offender had the victim touch the offender's penis. An aggravated indecent assault occurred when the offender took his boxer pants off, took the victim's hand, placed it on the offender's penis proceeded to kiss and hug the victim. The victim could feel the offender's penis against his leg. Subsequently, there was the first of the aggravated sexual assaults. The offender began performing oral sex on the victim. Next, the offender told the victim to perform oral sex on him. During the second of the sexual assaults, the offender was holding onto the victim's back. He was not doing this in a forceful way, but it was a perceived restraint. When the offender let go of the victim, the victim stopped performing the activity. The offender grabbed hold of the victim's penis with his hand. Fortunately, at this stage, the victim's father walked into the room and saw the two of them under the covers. He thought that the offender was hugging the victim. He asked the victim to go to bed in the lounge room. The victim got up and the offender told him to come back later. The victim did not accept that invitation. The victim slept that night in his parents' room.

1. The victim's parents had become suspicious about what was occurring. They questioned the victim. He did not disclose anything at that stage. A few weeks later, he made a general disclosure to his father. The victim's mother began to send text messages to the offender, suggesting that she was aware of the assaults. In one of the messages that the offender sent in reply, he said:

"I have issues that I need to work through. I'm going to look at getting counselling to work them out. It has only been (the victim). There is no excuse."

1. There were further text communications between the victim's parents and the offender. The offender expressed shame and regret. He apologized and sought forgiveness. The police became involved. The offender was arrested in late May 2011.

1. The victim's mother read a victim impact statement. In this statement, the victim referred to the anger, powerlessness and deep hurt that he and his family have suffered because of the offender's conduct. The victim said that he feels that there was something wrong with him, although at a rational level he knows that it is not his fault. That is a typical feeling expressed by victims. The victim, R, expressed a sense of guilt as well. At a rational level, such a feeling is totally unjustified, but it is something that occurs at an emotional level. The victim N is receiving counselling.

1. These offences carry a maximum available penalty of twenty years imprisonment and a standard non-parole period of ten years, indicating that any offence against this provision is a very serious matter indeed. The Crown submitted that offences against N are "above the mid range of objective seriousness". I would not characterise them as above the mid range, but they are certainly very serious offences. The victim was twelve years of age. He was only eleven years in respect of the first matter on the Form 1. The offence in question relates to victims who are aged between ten and sixteen years. The intercourse was of a serious nature. The intercourse does not appear to have been prolonged, but the episode as a whole was not fleeting. It involved a number of different interactions initiated by the offender. Overall, it was an extremely unpleasant episode, to say the least.

1. On the offender's behalf, it has been pointed out that the offences perpetrated against the victim N are not representative. They comprise the entirety of the criminal conduct towards that victim. There are other factors that are, at least, an absence of aggravating factors. For example, there was no associated threat (although I have referred to the fact that the victim's back was held at one stage). There was no gratuitous humiliation or insult. In relation to all offences, Mr Pearsall submitted that they were opportunistic, in the sense that the offender found himself with the children. He did not artificially create a situation where he was with them, for example, by taking them away on a "weekend treat" or securing a position that would enable him to commit an offence. Rather, he was friendly with the parents and so found himself with the opportunity to commit the offences. On the other hand, the offender breached the trust that the parents had reposed in him. To each of the parents of the three victims, the offender was a trusted friend. It was only because he was a trusted friend that he was invited into their households and allowed to sleep near their children and spend a lot of time with their children. The Crown pointed out that each of the offences occurred when the parents were relatively nearby. The children were not isolated from their families. It is difficult to know what to make of that. Despite the closeness of the parents, the offender was sufficiently determined to engage in the conduct, knowing of the risk that the parents might observe something. On the last occasion (involving the victim, N) the father did come into the victim's bedroom and observe something. The offences were perhaps typical offences of this nature. They had a devastating and probably life-long impact on the victim, and are matters that call for significant sentences of imprisonment.

Subjective Circumstances

1. The offender was thirty-seven years of age when the last offences were committed in February 2011, and about twenty-seven years of age in 2001 when the first offence was committed. He has no prior criminal convictions. He was raised in a close, loving and law-abiding family. He is the oldest of three boys. He received a good education. He has a good employment history. He has a long-standing interest in the theatre. Those who have had dealings with him have observed him to be quiet, well mannered and a generally decent sort of person. A failed business venture resulted in bankruptcy. It was a significant event in his life. His parents and the mother of victim R were among the people who had invested in the venture and lost money.

1. Upon being confronted by victim N's parents, the offender's immediate reaction was to take some action in relation to his problem. He engaged the services of a clinical psychologist who is very highly qualified to deal with problems of this type. The offender has had eighteen or nineteen attendances on the psychologist since March 2011. Initially, he did not reveal the offending behaviour to the psychologist. He said that he was struggling with his sexual identity. Once the police became involved, he disclosed the situation to the psychologist. The psychologist's report contains a very helpful analysis of the problem and gives the Court a good understanding of the offender's personality and psychological problems. Unlike many perpetrators of child sexual abuse, the offender was not himself sexually abused. There were a couple of notable incidents in his childhood that were not entirely sexual in nature. When he was eleven years old, as a Scout, he was involved in a bullying incident. When he was fifteen years of age, he witnessed an incident. The psychologist does not make a great deal of those incidents.

1. The offender has described himself as bisexual. He has a long-standing homosexual orientation that he has repressed due to a fear of social rejection. The repression was a significant factor in the commission of these offences. Under the heading "Formulation" on page 6 of his report, the psychologist says:

"Mr Wood is a 38 year old man with repressed same sex attraction who identifies as bisexual. He has been convicted of sexual offences against three teenage males and has no previous criminal history. He has avoidant and depressant personality traits which relate to his fear of negative evaluation and sense that he has not achieved in life. He has lacked confidence in expressing his sexuality, resulting in a lack of intimacy. In his social environment, he has over-identified with his friends' children, forming a level of intimacy which he fears from adults. His loneliness and lack of socially-approved sexual outlets have been the main drivers in these offences.

Overall, Mr Wood's social and emotional difficulties relate to a failure to launch an autonomous existence from a social group that he perceived would reject him for his sexuality. Sexual expression for Mr Wood has, on the whole, been clandestine, lacking any social reinforcement of appropriate adult relationships. There is no doubt that his conviction for these offences has turned his social world upside down, exposing his same sex attraction, thereby offering him an opportunity to address this. The fact that he has managed to have some limited sexual relations with adults would indicate that given the right environment and support, there is every prospect of him reconciling himself with his same sex attraction in satisfying adult relationships. Should Mr Wood engage in a treatment intervention addressing these matters, it is my opinion that his risk of re-offending will be low."

1. Given the very high level of qualification that the psychologist possesses and the history of treatment, I accept the psychologist's opinion in relation to the risk of re-offending. Unlike so many child sex offenders, when confronted the offender immediately acknowledged the conduct and appreciated that it was wrong. He then voluntarily took steps to seek treatment. Over the last eight months, he has pursued treatment with a highly qualified treatment provider. It was apparent to me when the offender was listening to the very moving victim impact statements that he is very sorry and very remorseful for his conduct. He will do everything that he can to address the underlying factors that caused the behaviour. In evidence, he said that, in a way, he was relieved that he had been discovered because that provided the impetus for his counselling. He suggested that he may have engaged in the behaviour as a subconscious cry for help. That maybe going too far, but it is clear that he appreciates the need for help.

Aggravating Factors

1. I am required to consider the aggravating and mitigating factors in s21A of the Crimes (Sentencing Procedure) Act 1999, most of which I have already referred to. I do not refer to them by way of double-counting their significance, but rather to confirm that I have considered them.

1. In relation to the aggravating features, there is the fact that the most serious of these offences, those committed against N, and the offence committed against R, were committed in the home of the victim. That is a very significant matter. The damage to the victims may have been aggravated because the incidents occurred in places where the victims thought that they were safe. It is not a situation where s 21A(2)(k) applies because the offender was not in a "position of trust or authority" in relation to the victim. Although he was not in a "position of trust", there was a breach of a trusting relationship and an abuse of that trust. I have referred to the fact that the offender was a guest in the houses of the victims R and N, and it was by virtue of his close association and long-standing friendship with the parents of each of the victims that the offender found himself in a situation that he was able to exploit. He took advantage of the parents' friendship. In the case of the victim N it is even worse, in that he was the victim's Godfather. Exactly what his role was intended to be I do not know, but the position of Godfather indicates a special moral responsibility.

Mitigating Factors

1. The relevant mitigating factors are:

(1)   The lack of any record of previous convictions: s 21(3)(e)

(2)   The offender is otherwise a person of good character: s 21(3)(f). These sorts of considerations are often of less weight in relation to matters of this type because, generally, such offences can only be committed by persons who are of apparently good character. That is how such persons find themselves alone with children; because they are trusted. In this case, the offender committed an offence in 2001 and the offending after that date cannot truly be seen as offending by a person of previous good character.

(3)   The offender is unlikely to re-offend and has good prospects of rehabilitation: s 21(3)(h). As I have noted, I accept the opinion of the psychologist in this regard, particularly as my own observations as to the offender's past conduct and his approach to the proceedings in Court today support the opinion expressed by the psychologist. The psychologist's opinion is conditional on the offender engaging in a treatment intervention. The psychologist suggests that it is going to be difficult for the offender to fully benefit from courses that may be available in prison because of the nature of the programs that are offered. Intervention will be most beneficial when he returns to the community. Even if the offender can benefit from programs within custody (and he has indicated a willingness to undertake those programs), there will need to be significant, ongoing treatment once he returns to the community. If he undertakes that treatment, and I believe that he will, there are good prospects of rehabilitation.

(4) The offender is remorseful within the meaning of s 21A(3)(i). I agree with the submission advanced by Mr Pearsall that this case is unusual because of the rapidity with which the offender accepted his criminality, expressed remorse and attempted to do something about it. I have taken contrition and willingness to rehabilitate into account in the sentencing process.

(5) The plea of guilty occurred at the earliest reasonable opportunity and entitles the offender to a discount for the utilitarian value of something in the order of twenty-five percent: s 21A (3)(k)

Structure of Sentence

Accumulation

1. The Crown and Mr Pearsall for the offender agree that this is a matter calling for some degree of accumulation. It is appropriate that there be accumulation between count 1 and count 2 and between count 2 and count 3. I intend to accumulate by a small factor the sentence on count 4.

Special circumstances: s 44(2) of the Act

1. The Crown does not dissent from the view that there are special circumstances. The special circumstances are:

(1) The offender has good prospects of rehabilitation, particularly if he receives lengthy treatment and rehabilitation when he is released.

(2) This is the first custodial sentence received by the offender.

(3) The length of the sentence and the need to re-adjust to the community when he is released

(4) The cumulative effect of the sentences.

1. I impose the following sentences:

(1)   In relation to Count 1 (victim R: aggravated indecent assault), the offender is sentenced to a fixed term of imprisonment of 2 year, 3 months to date from 23 November 2011 to 22 February 2014.

(2)   In relation to Count 2 (victim W: aggravated indecent assault), I sentence the offender to a fixed term of imprisonment of 3 years. I have accumulated that by a factor of 12 months, so the sentence will start on 23 November 2012. I set a non-parole period to expire on 22 November 2014. The balance of the sentence will expire on 22 November 2015.

(3)   In relation to Count 3 (victim N: aggravated sexual assault), the offender is sentenced to five years imprisonment. I set a non-parole period to date from 23 November 2013 to 22 June 2015. The balance of the term will expire on 22 November 2018.

(4)   For Count 4 (victim N: aggravated sexual assault), the offender is sentenced to five years and three months imprisonment. I set a non-parole period of 18 months, to date from 23 February 2014 and expire on 22 August 2015. The balance of term will expire on 22 May 2019.

The offender is sentenced to an effective sentence of 7 years 6 months imprisonment with a non-parole period of 3 years and 9 months. The offender is eligible for release to parole on 22 August 2015.

**********

Decision last updated: 17 October 2012