R v Yerin SIMPSON

[2009] NSWDC 150

CITATION:	R v Yerin SIMPSON [2009] NSWDC 150
HEARING DATE(S):	29 May 2009
JUDGMENT DATE:	29 May 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	The offender is sentenced to imprisonment, I set a head sentence of eight years to commence on 4 November 2008 with a non-parole period of five years, that non-parole period will expire on 3 November 2013 on which day the offender is eligible to be released to parole.
CATCHWORDS:	CRIMINAL LAW - Sentence - Break, enter and commit a serious offence - Sexual assault - Offender - delay detected by DNA analysis from later offence
PARTIES:	The Crown Yerin Simpson
FILE NUMBER(S):	DC 2008/11/1368
SOLICITORS:	NSW DPP Aboriginal Legal Service

SENTENCE

1 HIS HONOUR: Yerin Simpson appears for sentence today after having pleaded guilty at a fairly late stage to a most serious offence. Members of the community greatly value the idea that they are entitled to feel safe in their own homes. When serious offences are committed such as the one for which Mr Simpson must be sentenced, it is important that they are dealt with appropriately. This was a very, very serious offence.

2 On 3 November 2002, the victim, who I will not name, was in bed at home alone. She heard her bedroom door open. She looked up and she saw the offender. She said “Who’s that?”. The offender simply ignored the question, closed the bedroom door and walked towards her. She had sat up in bed to look at what was going on. The offender pushed her head back down onto the pillow and laid down on top of her. She was trying to push him off repeating “Who are you? Who are you?”. In response, the offender simply said “Shsh” and began to kiss her. He pushed his tongue into her mouth before licking her face. He threatened her too. He said “Do you want to get hurt?”. In response the complainant said “No” and stopped trying to push the offender away. At this stage he rolled off her, pulled the doona off and told her to be quiet. He had to tell her this because not surprisingly the complainant was crying.

3 It must be remembered that throughout what I am about to describe the complainant was exhibiting great distress. To do what the offender did shows a level of callousness which is of significant concern. The offender thought nothing of the wishes of the victim, barely treating her as a human being. Instead she was an object for him.

4 He used one of his hands to push her onto the bed whilst he used the other hand to rub her vagina and breasts over the top of her clothing. This continued for some time before the offender pushed the complainant’s singlet top up. She, being in bed and intending to go to sleep, was not wearing a bra. He then began to kiss and lick her breasts and kissed her on the mouth again. She was continuing to cry. She tried to get him to go by saying “My uncle will be back home soon”. Although the offender did look around from time to time, he kept going.

5 He then pulled her underpants down before pushing her legs open, kneeling between her legs and putting one finger inside her vagina. He moved his finger around inside for a number of minutes. Not only was this degrading but painful as well. In an effort to stop further assaults upon her, the complainant told the offender that she was menstruating. Again he kept going. This time he performed cunnilingus on her for a number of minutes.

6 He had not finished yet. After a period of time he got up and walked around to the side of the bed unzipping his pants as he did so. He pulled her by the hair so that she was kneeling up and said “Suck my dick”. When she said “No I can’t” he responded “Do you want to get hurt? Go on then”. He pulled his erect penis out of his pants, grabbed the back of her head and pulled her face towards his groin area. He said “Here it is”. No doubt because of the fear that had been instilled in her, she opened her mouth and he put his penis inside. The offender held the back of her head and moved it backwards and forwards. Her efforts did not meet with the offender’s approval. He said “Put a bit of effort into it”. What he was doing caused the complainant to struggle to breathe. She began to choke and cough which led to the offender removing his penis from her mouth without ejaculating. He then said “Can you do it just one more time?” but when the complainant said “No I can’t”, the offender said “Okay” and put his penis back into his pants and zipped up his trousers. He then got back on top of her and rubbed his body up against hers, pushing his groin area against her vagina.

7 At this stage the complainant managed to pull her pants up from around her ankles. The offender grabbed the back of her hair and pushed her off the bed and dragged her into the kitchen area of the house. He then told her to return back to the bed as he was leaving. He grabbed her by the hair and led her back to the bedroom. He pushed her head down towards the floor and said “Keep your head down”. She got back into bed and the offender said “I’m going now”.

8 Not surprisingly the complainant was still crying. The accused leaned over and gave her a cuddle, he then left the house. She called police who arrived a short time later. She was treated for some injuries, namely a cut to the left corner of her mouth and as usual underwent a sexual assault examination by a doctor, swabs were taken.

9 Some years later, as a result of the offender having committed another offence, a swab was taken from him as well. Analysis of the DNA from the swab taken from the complainant and the DNA taken from the offender revealed a match, so it was on 19 May 2008, that he was arrested in relation to this matter and charged with it.

10 He pleaded not guilty at committal and was committed for trial, however after some negotiations a late plea of guilty was entered. It has a utilitarian value, it spared the need for a trial and spared the need for the complainant to give evidence about such distressing events. I will reduce the sentence I would have otherwise imposed by about ten per cent to reflect the plea of guilty.

11 It is important to note that this was an offence committed when the offender was but sixteen years of age, however it cannot be said that he was committing the offence of a child. It was, as I have said, a very serious offence of the type committed by an adult. Nor could it be said that the offender has rehabilitated himself since November 2002. He has committed other serious offences in the meantime, some being dealt with in the Children’s Court because of his age. He is now no longer a child. Although I can deal with him as a child, that would be entirely inappropriate given that a consequence of that would be that his time in custody for this very serious matter would be limited to a maximum of two years. The offender will be spending much more time than that in prison for this offence.

12 The offender was raised in Bankstown and Wooloomooloo by his mother and father until he was fifteen when they separated. His upbringing can be described as of great concern. He first used drugs, cannabis and ecstasy at the age of twelve. He started drinking heavily at fifteen. He stopped school, not voluntarily, but because he was kicked out. He had at one stage showed promise as a rugby league player and was in the Canterbury-Bankstown development squad but, at least partly because of his excessive drug use, he abandoned that career. His drugs and alcohol consumption interfered with his ability to play properly.

13 Members of his family attended court today although at his request they were not present at court when he gave evidence. He explained in his evidence that he was ashamed and embarrassed at the position he was in and did not want his family to see it.

14 The offender was currently serving a sentence, the non-parole period of that expired on 3 November 2008. The sentence I will impose on the offender for this offence will commence on 4 November 2008. However recognising that this sentence comes on top of another sentence, the principle of totality applies. The sentence I impose on the offender for this matter will commence on 4 November 2008 but it has been significantly reduced because of the principle of totality. The fact that this sentence is to be served on top of another one is also relevant to the statutory ratio between non-parole period and period of eligibility for parole. There will thus be a finding of special circumstances in the offender’s favour but I recognise that there is only a slight variation from the statutory ratio in overall terms.

15 The offender is a person upon whom a sentence recognising or reflecting a full measure of general deterrence should not be imposed. He has a mental illness although there is no suggestion that that played any factor in the offence he committed on 3 November 2002. As well as a reducing the need for the sentence to reflect general deterrence, his mental illness will also make his time in custody harder. On the other hand there remains a very significant need for personal deterrence.

16 Another matter reflecting the offender’s time in custody is this, he said without challenge from the Crown that he had been threatened whilst in custody and that those threats related to the offence for which he is to be sentenced. He will therefore again do his time in custody harder than would otherwise have been the case.

17 If the offence was committed today it would have a standard non-parole period but that does not apply for two reasons, firstly it was committed before the standard non-parole period provisions took effect and secondly because he was a child, that is sixteen, at the time of the offending and I have therefore had no regard to the standard non-parole period in formulating the appropriate sentence.

18 It is a fundamental rule in sentencing that the sentence reflect the objective gravity of an offender’s conduct. That rule applies even when the offender was sixteen at the time of the offending. To break into someone’s home, even by opening an internal door, then to deprive a woman and commit many acts of sexual assault upon her demands a significant sentence of imprisonment.

19 One matter I should deal with as a discrete issue concerns the offender’s eligibility for referral to the Drug Court for consideration for the Compulsory Drug Treatment Correctional Centre program. The offender has been convicted of the offence of aggravated break, enter and commit a serious offence, the serious offence is the sexual assault of the complainant. For some time I received submissions about whether that disqualified him for referral to the Drug Court. However as soon as I realised that there was another constraint, another criteria, which the offender did not meet, it became unnecessary to continue consideration of the issue. The length of the sentence I will now announce, precludes the offender’s eligibility for referral to the Drug Court.

20 The offender is sentenced to imprisonment, I set a head sentence of eight years to commence on 4 November 2008 with a non-parole period of five years, that non-parole period will expire on 3 November 2013 on which day the offender is eligible to be released to parole.

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