R v XY

[2011] NSWDC 18

District Court

New South Wales

Medium Neutral Citation:

R v XY [2011] NSWDC 18

Hearing dates:

18/2/11; 4/3/11

Decision date:

10 March 2011

Jurisdiction:

Criminal

Before:

Judge FINNANE QC DCJ

Decision:

The sentence then is:

I sentence the offender to serve a non-parole period of 2 years imprisonment. The sentence commences from 4 th March 2011 and the non-parole period expires on 3 rd March 2013. I recommend that he be released to parole on that day.

The balance of the term goes from 4 th March 2013 till 3 rd March 2014. He is to be released from all consequences of the sentence on that day.

I also recommend that he be given access to programmes on sexual offending and alcohol abuse whilst he is in custody and when he is on parole.

I recommend that he be classified to a minimum security classification as soon as possible and that he be considered for work release as soon as possible.

I direct that these remarks on sentence together with the psychological reports of Dr Katie Seidler of 11 th November 2009 and 14 th February 2010 (part of exhibit 2) be sent to the Classifications Committee of the Department of Corrective Services.

Catchwords:

CRIMINAL LAW - sentence - relevant factors - nature and circumstances of offence - breach of trust - consequences of offence or impact on victim - relevant factors - nature and circumstances of offender - response to charges - contrition - plea of guilty - offender soldier in Australian Army -

Legislation Cited:

Pre-Trial Diversion of Offenders Act 1985 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Criminal Case Conferencing Trial Act 2008 (NSW)

Cases Cited:

R v Dyers [2000] NSWCCA 335
R v Giddy [2003] NSWCCA 46
R v Silcock [2004] NSWCCA 442
R v Way 60 NSWLR 168

Category:

Principal judgment

Parties:

Regina (Crown)
XY (Offender)

Representation:

Director of Public Prosecutions
J P Lo Schiavo (counsel for the offender XY)

File Number(s):

2009/00047662

Publication restriction:

Suppression order - complainant 14-year-old daughter of offender.

Judgment

1. The offender is a soldier in the Australian Army, holding the rank of corporal. The victim is his 14-year-old daughter.

1. On 7 March 2009, he indecently assaulted his 14-year-old daughter. He did not cause her any physical injuries and he did not in touch her on her breasts or in her vaginal area, nor did he kiss her, but he caused her very considerable distress and to this day she is upset, embarrassed and ashamed of what happened, although she had nothing to do with the assault, nor did she in any way agree with it. Indeed, she rejected her father's advances, kicked and struggled and managed to get him off her.

1. At the time he was very intoxicated. He had been at a club drinking alcohol until an employee of the club refused him further service. Because of the amount of alcohol he drank, he cannot remember what he did but he accepts and has always accepted that what his daughter says is true. He has expressed shame and remorse, has sought counselling and intends to seek further counselling. It is very unlikely that he would ever commit any offence of this nature again. He has never committed any offence of any kind whatsoever.

1. Offences of this nature are often committed by people who are classified as paedophiles. Frequently the perpetrators commit many offences over a lengthy period and commonly they either claim some justification for what occurred or blame the victim. This offender has not done either of those things. He has not sought to rationalise what he did or to blame his daughter. From the beginning, he has accepted responsibility.

1. He made application under the Pre-trial Diversion of Offenders Act to be accepted into the programme run by the Department of Health at a place known as Cedar cottage. He went to a number of meetings for the purpose of an assessment but he was not accepted into the programme because, amongst other things, he could not say from his own knowledge what he had done. All he could do was to repeat what his daughter said he had done. It is unfortunate that he could not be accepted into the programme.

1. He is a very valued member of the Australian Army. Two officers have spoken very highly of him and have made it clear that his services are very much required by the Army. He has entered into a programme dealing with compulsive drinking and he has sought other forms of psychological counselling . Presently he is living in a de facto relationship in accommodation which is subsidised by the Army. His de facto wife has given birth recently to a child. Both officers are of the opinion that if he is not sent to gaol , the Army would retain him.

1. I deal extensively with the facts below and I give reasons for my assessment that this offence, which carries a standard non-parole period of eight years imprisonment and a maximum sentence of 10 years in prison, is well below a mid-range offence. I also set out the reasons for considering that he is likely never to offend again and he is likely to be fully rehabilitated.

1. Because he pleaded guilty I am not required to impose the standard non parole period even if I were to conclude that this was a mid range offence. However, it remains one of the guideposts for sentence. The other one is the maximum sentence.

1. There can be no doubt that most offenders who commit this offence receive gaol sentences but statistics indicate that not all do so. The circumstances vary enormously. This is a solitary offence committed by a man who has never previously committed any offence and who is unlikely ever to commit any offence again. Furthermore, the Army needs him and wants to deploy him in foreign places. At present the Army is deployed in Afghanistan and East Timor.

1. Unlike most offenders who have committed this offence, he has expressed genuine contrition and remorse. His counsel has submitted that I should give him an exceptional sentence of two years imprisonment suspended pursuant to section 12 of the Crime (Sentencing Procedure) Act . This would enable him to remain in the Army and perhaps be deployed overseas. His de facto wife could remain in the present Army subsidised accommodation and he would be able to continue to support her when and their child.

1. The principle of retribution demands that a sentence be imposed by me that properly and adequately reflects the seriousness of the offence. I am also required to have regard to the principles of general deterrence and specific deterrence. I must also have regard to rehabilitation.

1. Committing an indecent assault against a child is always a serious offence. This assault in law is an aggravated indecent assault because it was committed by a father against his 14-year-old daughter.

1. Furthermore, it involved him in physically assaulting her twice by pushing her onto a bed, assaulting her by holding her down and assaulting her by putting his hand over her mouth. The indecent assault came from his being naked, pulling a towel from her and reducing her to nakedness and getting on the bed on top of her, both of them being naked.

1. When she screamed and he heard neighbours calling out, he let her go. She was shaken, but not physically harmed. He had not touched her anywhere near her vaginal opening, nor had he touched her breasts or kissed her. She has been quite badly affected by the incident. It was a very serious breach of trust on his part.

1. It would be a grave error, in my opinion, if I were to impose a 2 year suspended sentence because such a sentence would not adequately punish the offender for this offence and it would send a wrong message that the offence was not a very serious one.

1. The Crown submitted that this was an offence of greater than mid range seriousness. The defence submitted it was a very much less than mid range offence.

1. I have considered both submissions and have concluded that the offence was less than a mid-range one because:

• It was a one off offence and at the time, the offender was clearly very drunk with a much impaired capacity for judgment.
• The indecency came from his being naked and forcing his naked daughter onto a bed. There was no indecent touching.
• He desisted when he heard people calling.
• His daughter suffered no physical harm.

1. Because it involved violence in that he forced her onto a bed and held her by the throat, I would assess it as being about half as serious as a mid range offence.

1. Having concluded that the offence was about half as serious as a mid range offence, I must also look at any subjective factors that would bear on the sentence I must impose.

1. There are many additional subjective factors that I take into account in favour of the offender:

• He admitted what he had done from the very beginning;
• He did not seek to rationalise his conduct nor to blame his daughter;
• He sought admission to the Cedar Cottage programme;
• He sought and obtained help about his alcoholism;
• He is a man of previous good character;
• He is a valued member of the Australian Army;
• He has expressed genuine sorrow and contrition;
• He is caring for a de facto wife and is a father again;
• He provides financial support for his children of previous relationships;
• He will be discharged from the Army and will lose benefits such as superannuation entitlements, accommodation support and medical entitlements;
• He is unlikely to be able to rejoin the Australian Army;
• He is unlikely to commit this offence or any other offence in the future;
• His capacity to form judgments was impaired by excessive alcohol consumption.

1. In considering these matters, I have had regard to the opinions of a Probation and Parole Officer, a report from the Corrective Services Sex and Violent Offenders Therapeutic Programmes, to two reports of Dr Katie Seidler and a report of Dr Susan Pullman. These reports convince me that he is unlikely to ever commit any sex offence again and there is a real likelihood that he will rehabilitate himself from alcohol addiction.

1. Facts:

• The offender and his wife, KM, were married for several years.
• Before separating they had three children - CM, date of birth xx-xx-xxxx, and two boys.
• After separating, the offender joined the Army in 2002 and ultimately went to live at Defence Housing Authority premises at SC.
• In 2004 when the offender was living in the Holsworthy area his eldest son R went to live with him and his partner. In 2007 when the offender moved to SC, his youngest son J came to live with him also.
• During the period June 2008 to early January 2009 CM resided with the offender at SC.
• In early 2009 the children returned to live with their mother and from that time until the commission of the offence CM stayed with the offender on several occasions.
• As at 7 March 2009 the offender lived alone at the SC premises. The offender's fiance had temporarily moved out of the premises the week prior to the commission of the offence.
• CM and her two brothers would still see the offender and occasionally stay with him at the SC premises.
• On the weekend of Saturday 7 March 2009, CM came to stay with the offender. She was fourteen years old at the time.
• During the Saturday afternoon the offender went to the SC Bowling Club, as he usually did. He would also attend SC Bowling Club every night after work.
• The offender went to the SC Bowling Club about 11am on 7 March 2009 and stayed there until just before 10pm - and he was drinking alcohol while he was there.
• During the day CM went shopping with her brothers and one of his friends and when she got back to the offender's house she played computer games with her brother, and watched TV.
• Her brother left to go to a friend's house later in the afternoon.
• CM made dinner and then started to use the computer.
• When the offender got home about 10pm CM was on the computer.
• The offender was really drunk at this stage.
• The offender told CM to get off the computer which she did.
• He then asked her if she wanted dinner and she told him she'd already eaten.
• At this time the offender was standing closer to CM than usual and he touched her shoulders with his hands which made her feel uncomfortable.
• CM was of the view that the offender was really drunk. She said, "I can tell when he's drunk by his eyes and 'cause he couldn't really walk properly."
• CM then went to have a shower. She went into the bathroom and locked the door.
• The offender banged on the bathroom door and turned the handle trying to get in but couldn't because the door was locked. CM told the offender she was in the shower and told him to go away.
• CM waited until she thought the offender was gone, then got out of the shower, wrapped herself in a towel and went back towards her room, which was up one flight of stairs from the bathroom she'd been in.
• As CM was closing the door to her room the offender came up the stairs wearing no clothes.
• CM asked him what he was doing and the offender said, "I want to make love." She said, "I don't."
• The offender then said, "I don't care."
• The offender then pushed her into the room and onto the bed.
• As he did this the towel CM had wrapped around herself fell off and she was naked.
• CM was lying on the bed on her back with her legs dangling over the side of the bed. She tried to kick the offender away and she was saying, "No dad, I don't want to."
• At one point CM managed to push the offender off the bed and she tried to get to the door.
• The offender was standing at the door and grabbed CM by the arms and tried to get her back on the bed.
• When he got her back on the bed he got on top of her, but CM continued kicking and screaming.
• The offender tried to put his hand over her mouth, but CM continued screaming.
• The offender had his knees on the bed with his feet hanging over the edge of the bed and his hands were holding CM's shoulders down.
• A number of neighbours could hear CM screaming and they came out of their houses and called out to find out what was happening.
• CM heard the neighbours and called for help.
• The offender heard the neighbours calling out and he said to CM, "Now look what you've done."
• The offender then let CM go and he walked out of the room.
• CM picked up the towel and ran outside where she was met by the neighbours.
• One of the neighbours took CM into their house where they waited until the police arrived.
• Some of the other neighbours, including a Captain from the Army, went to the offender's door and called out - he didn't answer.
• Eventually the Army Captain, and a psychologist with the Army who had been in a house nearby, went inside and found the offender in a bedroom on the top floor - he was wearing underpants and nothing else at this time - and was lying on the floor.
• The Army Captain asked the offender if he was okay - to which the offender replied, "What's going on?"
• When the police arrived they spoke to CM and she told them what had happened.
• Meanwhile, other police went to the offender's house where they found the offender with the Army psychologist.
• At that time the Army psychologist asked the offender what had happened and the offender replied, "I don't remember."
• The offender was then arrested and taken to the Police Station.
• The offender maintains that he does not remember anything that occurred after leaving the SC Bowling Club that evening.

Considerations for sentence

1. There have been a number of cases involving offences against sec 61M(2) of the Crimes Act 1900 , where suspended sentences have been imposed. I refer in particular to Dyers [2000] NSWCCA 335; Giddy [2003] NSWCCA 46; Silcock [2004] NSWCCA 442. These cases were all exceptional and occurred before standard non-parole periods were imposed. Originally the standard non-parole period was 5 years, but from 1 st January 2008, it became 8 years. I do not think that I can regard these cases as entitling me to impose a section 12 sentence.

1. I make it plain that I have considered whether I should do so and I accept that in appropriate cases a sentence of other than full time custody may properly be imposed even for an offence that carries a standard non-parole period. (See Regina v Way 60 NSWLR 168 at paras 113-116). However, in my opinion, this is not such an offence.

1. I accept that he is very likely to rehabilitate himself, particularly if he continues with appropriate treatment for alcoholism and sexual offending. He ought to be given access to sexual offending programmes whilst he is in custody.

1. I am also of the opinion that before committal for sentence he was prepared to plead guilty to the offence for which he ultimately came before the court for sentence. The Criminal Case Conferencing Trial Act 2008 applies to this case. The offender pleaded guilty and waived the need for a committal, but was committed on two charges, although his legal advisers sought to have accepted that he should be permitted to plead to the offence for which I am sentencing him. This was a position that he advanced before he waived his right to a committal. In my opinion, the justice of the situation entitles the offender to a discount greater than 12 % because there is evidence that the offender offered to plead guilty to this offence before committal and that offer was refused by the prosecution. In my opinion, he is entitled to a 25% discount and that is what I will apply.

1. I have fixed 25% because he indicated before committal that he was prepared to plead guilty to the offence to which he ultimately pleaded guilty and he has always admitted the facts of what occurred. There were discussions between prosecution and defence as to what charge or charges arose out of these agreed facts.

1. I have assessed the offence as being less than a mid range offence and in my opinion, its seriousness is amply punished by a non-parole period of 2 years.

1. I find special circumstances.

1. Having regard to the discount on sentence of 25%, I impose a head sentence of 3 years imprisonment. If I am wrong in my allowance of a 25% discount and he is entitled only to a 12 % discount, then the head sentence would be 3 years and 6 months.

1. The sentence then is:

I sentence the offender to serve a non-parole period of 2 years imprisonment. The sentence commences from 4 th March 2011 and the non-parole period expires on 3 rd March 2013. I recommend that he be released to parole on that day.

1. The balance of the term goes from 4 th March 2013 till 3 rd March 2014. He is to be released from all consequences of the sentence on that day.

1. I also recommend that he be given access to programmes on sexual offending and alcohol abuse whilst he is in custody and when he is on parole.

1. I recommend that he be classified to a minimum security classification as soon as possible and that he be considered for work release as soon as possible.

1. I direct that these remarks on sentence together with the psychological reports of Dr Katie Seidler of 11 th November 2009 and 14 th February 2010 (part of exhibit 2) be sent to the Classifications Committee of the Department of Corrective Services.

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Decision last updated: 25 March 2011