R v X

[2010] NSWDC 105

CITATION:	R v X [2010] NSWDC 105
JUDGMENT DATE:	22 March 2010
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	The overall sentence is 9 years imprisonment with a non-parole period of 5 years.
CATCHWORDS:	CRIMINAL LAW - sentence - jury trial - extensive criminal behaviour - large number of offences over 8 year period of relationship with principal victim - suffering from personality disorder - victim impact statement - good prospects of rehabilitation - sentence to be significant but not crushing
LEGISLATION CITED:	Crimes Act 1900 s 33B, s 59, s 61, s 86(2)(b), s 99(1), s 117, s 562AB Crimes (Domestic and Personal Violence) Act 2007 s 13(1) Weapons Prohibition Act 1998 s 7(1)
PARTIES:	Regina X
FILE NUMBER(S):	09/8889
COUNSEL:	Mr Moberley Mr Thangaraj
SOLICITORS:	NSW Office of the Director of Public Prosecutions Watsons

JUDGMENT

1. In sentencing the offender, I have to maintain a balance between two considerations which pull in opposite directions. On the one hand, he has committed a series of crimes - some very serious - mostly against the same victim who has been traumatised by these crimes. On the other hand, he is still a young man of twenty-six years who had started dealing with his own behaviour at about the time of the last offences and who is well supported by a loving family.

2. The first consideration calls for heavy sentences to punish him for his extensive criminal behaviour. The second consideration restrains me from imposing sentences which would be so harsh that they would crush any desire and efforts to rehabilitate himself as he works towards the prospect of returning to healthy relationships in the community. Both Mr Moberley, who appeared as Crown Prosecutor in the trial and the sentence proceedings and Mr Thangaraj, who appeared for The offender, have acknowledged this tension and the risk of imposing a series of sentences which could arrest his steps towards rehabilitation.

3. The offender and V formed a relationship when they were teenagers. They were high school sweethearts. The relationship was, for most of the time, not a healthy one.

4. V, from what I could observe, seems to be an energetic, attractive young woman who wanted to enjoy a sound relationship with her boyfriend and participated in normal social activities with him. The offender, however, was possessive, jealous and emotionally dependent on his girlfriend, V. He was suffering from what has since been diagnosed as a "personality disorder with strong dependent and avoidant features".

5. Over about eight years of this relationship, the offender abused V on a number of occasions. The abuse was verbal, physical, sexual and financial. The abuse came to a head on a particular day in 2008, when it was especially violent and V finally terminated the relationship and reported him to the police.

6. The offender was charged with a large number of offences which ranged over a period from 2000 to 2008. He was tried by a jury on these charges last year and he was found not guilty of about half of them and was found guilty of half of them.

7. I am sentencing him today for the offences that he was found guilty of and of which I have convicted him. If I have not yet convicted him, I convict him of each of the offences which I will refer to.

HIS HONOUR: I am going to just suspend my remarks on sentence at the moment. I notice that we have got a fairly full public gallery including some school students, which is entirely appropriate. However I must mention that this is a case of the kind where the name of the victim, or any way of identifying her, are not allowed to be published outside this courtroom. The name is V, which you have all heard. That name is not to be repeated outside. It is against the law. Nor is any means or way of identifying her to be mentioned outside this courtroom. I will now return to my remarks on sentence.

8. The offender was found guilty by the jury of three counts of intimidation with intent to cause fear of physical or mental harm. They were offences under s 562AB of the Crimes Act 1900 and each of them carried a maximum of five years imprisonment. One of the victims of those offences was V; a second, was her mother Mrs V and a third, her father, Mr V. They are respectively counts three, four and five on the indictment.

9. Over the period of these offences, the law changed so that when The offender committed another offence of intimidating someone, the offence was under new legislation. He was charged with intimidating - to cause fear of physical harm - Mr S. That was an offence at the time under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 and carried a maximum of five years imprisonment.

10. In addition, he was charged with and found guilty of the offence of assault occasioning actual bodily harm. That was count sixteen and is an offence against s 59 of the Crimes Act and carries a maximum of seven years imprisonment.

11. He was also charged with larceny, that is stealing. The victim of both those offences was V. The second offence - of larceny which was charge seventeen on the indictment - is made an offence under s 117 of the Crimes Act and carries a maximum of five years imprisonment.

12. Next he was charged with and found guilty of two offences involving the use of what is described as a taser-like device. He was charged with threatening to use an offensive weapon, namely a taser-like device, with intent to commit an indictable offence, namely intimidation. That was count twenty-four. That is an offence under s 33B(1)(a) of the Crimes Act and carries a maximum of twelve years imprisonment. Associated with that, he was charged with possessing a prohibited weapon, namely a taser-like device, without being authorised to do so by a permit. That was charge number twenty five. That was an offence under s 7(1) of the Weapons Prohibition Act 1998. It carries a maximum penalty of fourteen years. Not only that, Parliament regards it as so serious that it has fixed a standard non-parole period of three years to that offence.

13. Next he was charged with two counts of demanding money with menaces. The victim in each case was V. He was charged with demanding $30,000 from V with menaces, which was charge eleven on the indictment, and with also demanding $20,000 from her which was charge twelve in the indictment. Each of those charges is an offence under s 99(1) of the Crimes Act and each carries a maximum of ten years imprisonment.

14. In charge thirteen, he was charged with an additional count of assaulting V occasioning her actual bodily harm. That is an offence under s 59 of the Crimes Act and carries a maximum of five years imprisonment.

15. He was charged by count twenty-three with taking V, without her consent, and with intent to obtain advantage namely the continuing relationship and at the time of bringing about actual bodily harm to her. That is an offence against s 86(2)(b) of the Crimes Act. It is commonly known as kidnapping. It carries a maximum of twenty years imprisonment.

16. Finally, he was charged and found guilty of having sexual intercourse with V without her consent and knowing that she was not consenting. That charge was number twenty-six on the indictment and is against s 61A of the Crimes Act and carries a maximum of fourteen years imprisonment. Once again, in that case, Parliament has seen fit to fix a standard non-parole period of seven years to that offence.

17. I formally convict the offender of all of those offences that I have listed.

18. It is important for any judge who is sentencing an offender to set out, usually briefly, what happened which caused the offender to be charged with a crime. I will now turn to briefly summarising what happened in each case which resulted in the offender being charged with these offences.

19. I will deal first with counts three, four, five and twenty-eight, all of which are the intimidation charges.

20. The intimidation of V, which is the subject of count three, is described by her in her evidence as being hit by him, as punishment by him for disobeying him. She said there was lots of punching to the head, the arms and the legs and to the stomach. She said that she stayed in the relationship out of fear. She tried to break it off, but he would not let her go. That offence occurred over the period 1 January to 31 December 2002.

21. Charge four is the intimidation of Mrs V which occurred over the same period and Mrs V describes it in terms of receiving telephone calls from The offender, during which he would swear at her. She pleaded with him lots of times to make him stop, but he went on swearing and, as she said he “didn't care the least.”

22. Count five is the charge concerning the intimidation of Mr V, and Mrs V's evidence covers the same phone calls, some of which were obviously answered by Mr V. The intimidation of Mr V occurred over the same period, namely 1 January to 31 December 2002.

23. The charge of intimidation of Mr S is said to have occurred between 1 September and 15 September 2008. The offender phoned Mr S. The offender knew that Mr S had gone out with V a few times. The offender said that Mr S should stay away from V and when asked whether he was trying to threaten him said “I'd advise you not to go down this road.”

24. Turning now to counts sixteen and seventeen, count sixteen was an assault occasioning actual bodily harm. The evidence about that came from V, the victim of the assault. It occurred on 10 September 2008. She said that she was slapped in the face and fell to the ground. On the ground, he kicked her three or four times in her thigh area because she had started seeing somebody else. She was bruised and produced a photograph of that bruised area.

25. Count seventeen was a larceny. It occurred on the same date, 10 September 2008. The offender took V's mobile telephone and took the SIM card out and replaced with a new SIM card, which he had purchased. He then said to her “You don't fucking have anyone now, your two friends don't exist.” In addition he said “I am taking total control now.” She was crying but did not argue. He was very angry and she was very scared. He never gave her back that SIM card, despite the fact that it had “all my contact numbers.” He refused to give it back to her.

26. Counts twenty-four and twenty-five both occurred on 22 September 2008. This was on the day when the relationship was terminated. The offender and V were sitting in a car together and he pulled out, as V described it, what she regarded as a taser gun. She said that he “put it near my thigh and he said to me 'If I zapped this on your vagina, you won't be able to conceive children'.” She identified the taser-like device which was tendered in evidence which was put close to her. She knew that it was in working order because he had turned it on and it made a noise, a zapping noise.

27. Count twenty-five was constituted by the fact that he had that device without being authorised to do so.

28. The two counts of demanding money with menaces were the subject of counts eleven and twelve. The first occurred between 1 August 2007 and 23 August 2007. The offender asked for some money. He demanded $25,000 of V. He asked her to apply for a loan. She said that she did not have enough money. He said that he needed the money and “I need you to apply for a loan and I'll leave you alone.” She applied for the loan because “he was harassing and because he promised me he'd leave me alone.” She went to the bank and arranged for a loan and handed over the money to him. In fact the amount that she handed over was $30,000.

29. Count twelve - the same offence - occurred between 25 August and 14 September 2007 and occurred after he said he needed more money. In demanding more money from her, he said that he needed just “one more amount and I promise I'll leave you alone.” Despite her saying that she would not be able to secure an additional loan, believing that he would leave her alone, she approached another bank and borrowed $20,000 which she handed over to the offender.

30. The assault occasioning actual bodily harm, which is the subject of count thirteen, occurred on 29 December 2007. She got in his car and found that he was angry. He told her to pull her pants down, he grabbed a lighter and lit it for a while. It was a cigarette lighter. He put it on to her right buttock and burned her with it, twice. The first time he left it longer, she started screaming and jumped from the seat because of the pain. The second time it was thought not as long. A photograph shows the burn mark and scars from the lighter. She is still conscious of having that mark, present from that offence.

31. As I have said, the relationship was terminated on 22 September 2008 when matters came to a head between the two. V had been off work for some time and was making an effort to go back to work. She did not want to make contact with the offender and made all efforts to avoid him. She went to catch a bus to work. The offender was obviously waiting for her. He approached her and forced her into his car.

32. He locked the car and V found that she could not get out because of the fact that the car was locked. He told her to give him oral sex which she said she did. Part of that was the subject of a video used or captured by the offender, where he required her to say certain things about the fact that she was giving him oral sex which involved her sucking his erect penis at his direction. When asked why she did in fact suck his penis, she said that she did so because “he forced me to and because, again, I was frightened. I didn't know what to do.”

33. This occurred, as I said, in the offender's car which had been driven to a parked area after he required her to get into the car. Hence he was charged with count twenty-three of kidnapping her and with count twenty-six of having sexual intercourse with her, again without her consent, knowing that she was not consenting.

34. It is important, for a judge to take into account the effect of criminal behaviour upon the victim of any offence. In this case, V has provided a victim impact statement. She regards herself as finding it very difficult to trust people, especially men. She feels frightened. She lost a lot of weight and suffered from anxiety and depression. She still gets flashbacks and describes herself as having a burn scar on her right buttock so that “every time I change, I am reminded of the day [the offender] burnt me with his cigarette lighter.” She feels humiliated and is in debt for $50,000.

35. The Crown Prosecutor tendered a document containing The offender's criminal record which comprises just one offence of shoplifting which occurred in 2002 and which I regard as having no impact upon my sentencing of him.

36. I have been assisted by submissions from both Mr Thangaraj and Mr Moberley about the sentences which I should impose.

37. As to the intimidation counts and the assault resulting in bruising and larceny, Mr Thangaraj submitted that they should result in non-custodial sentences. Mr Moberley submitted that there is no alternative, but to sentence The offender to custody for those offences. He acknowledged that the offence involving Mr S, was of a shorter duration than the other intimidation offences. As to the assault and larceny counts, Mr Moberley acknowledged that the assault was below mid-range but the larceny had a significant effect upon V - as it was intended to do - by depriving her of all her contacts.

38. Mr Thangaraj acknowledged that the two offences involving the taser-like device were serious, although he submitted that the possession offence was effectively a backup charge. Mr Moberley acknowledged the force of that submission and that there should be a large degree of concurrency in the sentence, acknowledging however that the elements of each of the offences were different.

39. Insofar as the demanding money with menaces offences, Mr Thangaraj acknowledged that custodial sentences were appropriate because of the amounts involved. He submitted that the effect upon the victim of the offences was not relevant.

40. Mr Moberley on the other hand submitted that criminality was greater if a victim could not afford money which was demanded of them. He submitted that it made the offence quite serious objectively. I agree with Mr Moberley's submission that the offence is more serious because The offender knew that V could not afford to give him the money which he demanded.

41. The assault occasioning actual bodily harm which was brought about by the application of the cigarette lighter to V was, Mr Thangaraj correctly acknowledged, clearly one which should attract custody. But he submitted that it was consistent with his client's psychological condition and a manifestation of his disorder.

42. Mr Moberley submitted that that offence was above the middle of the range of objective seriousness for such offences as measured by the yardstick of the extent of the injuries.

43. Mr Thangaraj, so far as the kidnapping and sexual assault were concerned, submitted as to the kidnapping that the advantage being sought was simply the continuation of the relationship and that I should take into account that the period that she was detained was not for a very long time and the offence was below the middle of the range.

44. Mr Moberley, on the other hand, pointed out that the victim of the offence, V, was at the time making special efforts to avoid The offender and that the purpose of the detention was not as significant as Mr Thangaraj argued. He submitted that it was an offence within the middle of range of objective seriousness.

45. Both counsel acknowledged, so far as the sexual assault was concerned, that the form of sexual intercourse, namely fellatio, was less serious than some other forms of sexual intercourse. Mr Thangaraj submitted that the offence was not within the middle of the range of objective seriousness. Mr Moberley argued that it was and pointed to the humiliation involved in the filming of some parts of the offence, or at least filming of the victim at a stage before the offence occurred. He said that it was within the middle of the range and should attract the standard non-parole period.

46. Both counsel acknowledged that there should be some degree of accumulation, as well as concurrency, in the various sentences which I will address in due course when I sentence the offender.

47. As I have said, both counsel acknowledged that a sentence needs to be significant but not crushing. This is important for the reasons I said at the commencement of my remarks, so far as the rehabilitation is concerned, which The offender has already commenced and indeed was commencing at the time of the last offences on 22 September 2008.

48. It is important to point out that at that stage he had commenced seeing a therapist and the conversation that he had with V at that time acknowledged on his part that he was in need of a therapeutic assistance. He was sent to see a psychologist, Dr Mark Milic, who produced a report dated 2 March 2010. Dr Milic highlighted the emotional reliance which The offender had on V and diagnosed him as having a personality disorder with strong dependent and avoidant features.

49. Dr Milic pointed out that research in the field of domestic violence reveals an emotionally volatile type of offender, driven by fear, dependence, anger, external blaming and jealousy. He said that the offender “most likely belongs to this group and his personality disorder is a significant source of his maladaptive relationship tendencies.” It is relevant for me to take into account that he had that diagnosis at the time that he committed these offences but it is far from being an excuse for the crimes which he committed mostly against V.

50. He is, as I have said, still only twenty-six years of age. Mr Thangaraj pointed to his client's immaturity and naivety which I accept. The rehabilitation is progressing well, particularly since his counselling. And Mr Thangaraj pointed out that he had no treatment, until shortly before the day of the previous offences.

51. He compared his client's point in life at that stage with somebody at the crossroads of life, an expression commonly used when sentencing drug offenders who have decided to undertake rehabilitation. The disorder he suffers from is regarded as treatable, Mr Thangaraj pointed out, and a tape recording which V made on the day of the last offences reflects, as Mr Thangaraj argues, where his client was so far as his condition on that day.

52. Mr Thangaraj argues and Mr Moberley does not contradict or take issue with an assertion that there are special circumstances which would warrant me adjusting the relationship between a non-parole period and a balance of the term of sentences which would increase the time which he is on parole. Those special circumstances would include his client's age and the first time that he has been in custody and the rehabilitation which he needs to be undertake.

53. I take into account evidence which I have heard from the offender's wife and from his sister, both of whom see him regularly in custody where he has been bail refused since being arrested on 25 September 2008. Both have been visiting him and both are supporting him to a significant extent. As I said both will continue to support him, so that his prospects of rehabilitation, in my opinion, increase by having with him a loving and supportive family.

54. There is a sense in which the weight I need to put on specific deterrence is somewhat reduced by the fact that these offences were focussed on one particular relationship which is now in the past.

55. I come now to impose the sentences which I have decided are appropriate. Many, or some, of the sentences may be regarded as somewhat lenient. I have done that because of the need to take into account the submissions - which I agree with - that without reducing some of the sentences the overall impact would be crushing on a young man who is still in his mid-twenties.

56. I have determined that it is appropriate to impose custodial sentences in respect of all of the offences of which the offender has been convicted. I am going to sentence you now, [the offender], if you could stand up?

57. For the intimidation, counts three, four and five, I sentence you in each case to three months imprisonment, being fixed terms. For count twenty-eight involving Mr S, I sentence you to a fixed term of one month imprisonment.

58. Count three: the sentence will commence on 25 September 2008 and expires on 24 December 2008. Count four: three months commencing 25 October 2008 and expiring 24 January 2009. Count five: three months commencing 25 November 2008, expiring on 24 February 2009. Count twenty-eight: one month, commencing 25 February 2009 and expiring 24 March 2009. There is some concurrency and some accumulation, the overall result is a fixed term of six months for that group of four offences.

59. Turning to counts sixteen and seventeen, the assault occasioning actual bodily harm and larceny. For the assault occasioning actual bodily harm, I sentence the offender to two months imprisonment, to commence on 25 February 2009 and to expire on 24 April 2009.

60. For the larceny, I sentence the offender for count seventeen, to one month's imprisonment, to commence on 25 April 2009 and to expire on 24 May 2009. The effect of those two sentences, will be a cumulative total so far, of eight months imprisonment.

61. Count thirteen is the more serious assault occasioning actual bodily harm. That is in my opinion, an offence in the middle of the range of objective seriousness and should attract a sentence of some two or three years imprisonment. However, I have determined to impose a sentence of seven months imprisonment for the reasons which I have already referred to. That seven months will commence on 25 February 2009 and expire on 24 September 2009. The overall effect is so far sentences amounting to twelve months imprisonment.

62. I turn now to counts twenty-four and twenty-five, namely the offences involving the taser-like device. I regard the threat to use the taser-like device as a serious example of that crime which should normally warrant some four years imprisonment. But I propose to fix a sentence of three years imprisonment for count twenty-four, which will commence on 25 September 2008 and expire on 24 September 2011.

63. Count twenty-five is an offence which carries a standard non-parole period of three years. I regard this, for the purposes, as being in the middle of the range of objective seriousness but I propose to fix a concurrent sentence. For count twenty-five, I sentence the offender to four years imprisonment. There will be a non-parole period of three years commencing 25 September 2008 and expiring 24 September 2011. The balance of the term will be one year to commence 25 September 2011 and expiring on 24 September 2012.

64. Counts eleven and twelve are the demanding money with menaces counts. For each of those offences, I regard penalties of three years imprisonment as appropriate. For count eleven, I fix a penalty of three years imprisonment to commence on 25 December 2008 and to expire on 24 December 2011 and for count twelve, I fix a penalty of three years imprisonment to commence on 25 March 2009 and to expire on 24 March 2012. So far the cumulative total of sentences is custody for three and a-half years as a non-parole period.

65. Turning to count twenty-three, the kidnapping offence, I regard a sentence of five years imprisonment as appropriate for that offence. There will be a non-parole period of four years, commencing 25 September 2008 and expiring on 24 September 2012. The balance of the term will be one year from 25 September 2012 and expiring on 24 September 2013.

66. Finally for count twenty-six, the sexual intercourse without consent, I regard a sentence of nine years imprisonment as appropriate for that offence. There will be a non-parole period of five years, commencing 25 September 2008 and expiring on 24 September 2013. The balance of the term will be four years commencing 25 September 2013 and expiring on 24 September 2017.

67. The overall effect of the sentence will be a nine-year sentence, with a non-parole period of five years. The non-parole period commences 25 September 2008, when the offender went into custody, and expires on 24 September 2013. The balance of the term of four years will commence on 25 September 2013 and expire on 24 September 2017.

HIS HONOUR: All right now, two things, Mr Moberley and Mr Abbott. One will be the mathematics, which I think is right. And two, any factual errors or things which need revision in my sentencing? If there is anything which I have overlooked?

ABBOTT: I think the maths are correct, your Honour.

MOBERLEY: I think so, as well.

HIS HONOUR: Any factual errors?

MOBERLEY: Not from my part, your Honour.

ABBOTT: No, your Honour.

HIS HONOUR: Okay.

68. The offender, you have received a nine-year sentence. Nine years. It commenced on the day that you went into custody, when you were arrested, 25 September 2008 and your sentence expires nine years after that, on 24 September 2017.

69. There is a non-parole period that you have to be in gaol and that is five years. I have fixed it at five years because you will turn thirty at about the time that that comes up. You will have turned thirty just before then and I have taken into account the things that I have said about your rehabilitation and the sentence not to be crushing. Your non-parole period expires on 24 September 2013, so you are in gaol until 24 September 2013.

70. You then become eligible for parole. Whether you get parole or not, depends not on me but on the Parole Authority. They consider your case and grant you parole or otherwise. And then you are on parole for four years and you are still serving your sentence. And if you committed any crimes in that time, then you may have your parole revoked.

HIS HONOUR: Tell me what you think, Mr Abbott and Mr Moberley, whether I should send with him, Dr Milic's report, into custody?

ABBOTT: Yes, I think that's a good idea.

MOBERLEY: I do as well, your Honour.

HIS HONOUR: Yes. Do you agree, Mr Moberley?

MOBERLEY: I do.

HIS HONOUR: I've got a fax number and I will fax it to the MRRC, to the reception room there. So that they will get it today. And that is where I expect The offender will be taken, MRRC?

ABBOTT: Is it Parklea?

HIS HONOUR: Does he have to go to reception at MRRC, now that he's a sentenced offender?

SHERIFF'S OFFICER: Normally, he will be returned to his gaol until such time as - then we may move him to somewhere else.

HIS HONOUR: All right. Perhaps we should send it with the warrant. I might arrange for my associate to photocopy this report, exhibit S1 and what should I do? Should I make it available to one of the - what do you suggest, Mr Abbott?

ABBOTT: I think leave it with the warrant, because that would go with them back to the place he's going, Parklea.

HIS HONOUR: Good. It will go with the paperwork and my associate will make that available. Mr Abbott, anything else that I need to do?

ABBOTT: Yes.

HIS HONOUR: For my sentence?

ABBOTT: On the sentence, no, your Honour.

HIS HONOUR: Mr Moberley?

MOBERLEY: No, your Honour.

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