Regina v REES

[2008] NSWDC 212

CITATION:	Regina v REES [2008] NSWDC 212
HEARING DATE(S):	20/06/2008
JUDGMENT DATE:	20 June 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Finnane QC DCJ
DECISION:	Non-parole period of four years. Commencing 20 June 2008 expiring 19th June 2008. Balance of sentence commencing 20 June 2012 expiring 19 June 2015. Consideration be given to releasing him on parole on the 19 June 2012, recommend that he be classified as soon as possible, and that consideration to given to placing him as soon as possible in a minimum security institution.
CATCHWORDS:	CRIMINAL LAW - sentence - sexual intercourse without consent - indecent assault - offender grandfather of victim - no remorse or contrition of offender
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 (NSW)
PARTIES:	Crown: Regina Offender: Alan Rees
FILE NUMBER(S):	07/11/0617
COUNSEL:	Crown: Ms E Wilkins S.C., of Counsel Offender: Mr G Heathcoat, of Counsel

SENTENCE

INTRODUCTION:

1. On the 18th of December 2007 a jury convicted, Alan Rees (the offender). On one count of sexual intercourse without consent. The jury found him not guilty of an offence of indecent assault.

2. The victim, a young woman, to be named here only as Miss S. at the time of the offence was living in the house of the offender. The offence occurred on the 30th of September 2006. The offender denied he was guilty of this offence and continues to deny his guilt. It follows that he has no remorse or contrition. I am obliged to accept the jury verdict, and I must treat him as a person who has been convicted of a very serious offence.

3. The maximum penalty for this offence is 14 years imprisonment. The standard non-parole period applying to any offence assessed as being a middle range offence is seven years.

4. The offender is now over 65 years old, is a rigger and a man of good character. He came to this country via New Zealand as a migrant and has lived and worked in this country for many years. He is married and has children and grandchildren. He is well regarded by his employer and by other people who know him. He has contracted the condition of asbestosis and will be afflicted by it until the day he dies. His wife is partially dependent upon him the support and at his age. And with this offence, he will find the serving of imprisonment, very difficult. It is unlikely that he would commit any offence, particularly an offence such as this ever again.

5. The offence was a single event of penile/vaginal sexual intercourse committed on a very young woman by a man who was the grandfather of her child. It has caused this young woman, considerable suffering and she will continue to suffer.

6. I have said, when sentencing offenders in the past for offences of this type, that for a woman, penile/vaginal rape is about the worst crime that can be committed since it involves the penetration of her body by the sexual organ of a male. The offender had a dominant position and abused it. In my opinion, the facts show that this offence is a mid range offence.

7. I must take into account, of course, factors which I have mentioned already, such as his prior good character, his hard-working and responsible attitude to life, his state of health, his relatively advanced years, and the fact that he is unlikely to commit any such offence in the future. It is a case in which I find special circumstances.

8. His counsel has surged strongly that I should impose a sentence of two years imprisonment and suspend it. I have given anxious consideration to this submission, because of the offender’s age and his poor state of health. I am also aware that because of the nature of this offence, he may well need to seek protection within the prison system, if I were to sentence him to full-time custody. It has been said in recent years in various cases in the Court of Criminal Appeal, that judges should not rush to concluding that because prisoners are in protection, that their lives unnecessarily more difficult than the lives of other prisoners.

9. I have taken the trouble myself to visit prisons, such as Goulburn, Bathurst, the Metropolitan remand and reception prison at Silverwater and all of the prisons at Long Bay. I have talked to the governors of prisons and the staff of prisons, and it is clear to me that persons on protection have a very much-restricted life within the prison in which they are housed. Many protection prisoners have to be protected not only from prisoners in the main section of the jails, but also from other prisoners on protection. Many protection prisoners are denied the opportunity of using sporting ovals and have restricted use of library facilities. This man, because of his age, in my opinion, would be considerably at risk of assault, or worse, were he confined to a prison.

10. At the same time, I must give effect in any sentence I impose to the seriousness of this offence. principles of general deterrence and retribution require that a sentence be imposed which will have general deterrent effect and will appropriately provide a sanction for the offence, which the offender committed.

11. The offender owns his own home and has employment. I have given consideration to the question whether I could impose a sentence of two years imprisonment and require the offender to pay a substantial fine of say $50,000.

12. If there had been a plea of guilty, an acknowledgement of remorse and contrition and an expressed willingness to undergo sex offender counselling, I might well have imposed such a sentence. However, the offender continues to maintain he is innocent and shows no remorse or contrition; I have assessed the offence is a midrange offence, and it would be inappropriate for me to impose this sentence.

13. I take into account the two guideposts of the maximum sentence and the standard non parole period and weighing up the subjective factors to which I have referred. I have decided to impose a sentence of a non-parole period of four years with the balance of three. I propose to recommend that the offender be classified as soon as a possible and that consideration be given to placing him in a minimum security institution.

FACTS:

14. Miss S. met the offender's son, David Rees, whilst both of them were attending a technical college. She met him in September 2000 when she was only 16 years old. David Rees was 26 years old. The offender and his wife did not approve of this relationship but permitted her to live with David Rees at their home. She first met the offender in November 2000 and she went to live in the Rees home about a year later. From an early time in her relationship with the offender, she had difficulties with him and regarded him as having a sexual interest in her.

15. At various times between 2001 and 2006, the complainant and David Rees lived at places other than the Rees home. In January 2002, she found she was pregnant to David Rees and on the sixth of September that year, her son Ethan was born. A third ever September 2006 the complainant was visiting the Rees home with her son. It would appear that she was staying at the house, with David Rees and Ethan over the weekend and that this was something she had done on a number of previous weekends. So that we offender and his wife, could have access to their grandchild on in the morning of the 30th of September 2006, she gave her son. Some breakfast and went to go to a toilet. As she did she saw the offender coming out of the bathroom with some red boxer shorts on he came towards her and cuddled her and tried to kiss her.

16. This was conduct that he had engaged in on earlier occasions. She did not like this conduct. He told her to go to the bedroom with him. He did so he stood in front of her in the bedroom took his pants off and told her to lie on the bed. He then told her to take her underwear of. He then sucked her nipples pushed her right thigh, away from her left thigh, popped on top of the and stuck his penis in her vagina, thrusting in and out for about five minutes. She thought that he had Jackie waited he then got off and told her not to tell anyone. She thought that he used a condom, but I cannot be certain whether or not he did.

17. He denied that there were ever any condoms in the house. She complained, very soon after the event to her cousin Laura, ECA double if Ari why but she did not go to the police. Rather, the offender drove her to work and after work. She told her mother about this episode of rape. next day she told Gemma Gutsche, a social worker at a women's refuge, a woman called Barbara and also David Rees. There was evidence independent of the complainant that supported the fact of these complaints being made. When she did go to see the police, it was too late for any tests to be conducted to verify that sexual intercourse had taken place.

18. The offender denied that these events had occurred, and sought to establish that they could not have happened. His wife, supported his denials about the verdict of the jury indicates that they rejected what the offender, and his wife said. I am bound by the jury verdict.

19. There was no subsequent conduct of this type, and there is no suggestion that the offender sought to engage in this type of conduct with the complainant on any subsequent occasion.

20. The events make it plain that the complainant submitted to what the offender was doing. I accept, as the jury did that he forced himself upon her and she chose to submit rather than to be injured. She cannot be criticised for this. There is no suggestion that any physical injury was caused to her but it is clear from the victim impact statement which I take into account that she has suffered considerably as a result of this forced sexual intercourse.

SUBJECTIVE MATTERS:

21. The offender came originally from Wales and met his future wife, in London. He and his wife married in 1966 and migrated to New Zealand in 1974 and then to Australia in 1979. The offender and his wife have a daughter, two sons and seven grandchildren. His wife claims to be close to him and claims that he is close to everyone in the family. There was evidence of the trial, and subsequently that the offender and his wife cared for his parents from 1984 until they died and it would seem that he also continues to support his younger brother who has alcohol dependency problems.

22. He has worked as a rigger and scatter older, since he arrived in Australia and has been permanently employed in a series of jobs. His present employer provided an excellent reference for him stop he is evidently a very valued employee he works six days a week. He suffers from chronic degenerative arthritis in his left ankle and he has asbestosis the evidence presented to me about his asbestosis suggests to me that whilst he is in custody he will be able to continue to receive a appropriate treatment.

23. He has no criminal convictions and is to be regarded as a man of good character. It is unlikely that he would offend again, and there is no doubt that his imprisonment will impose hardship upon him and require him to seek protection which will impose additional hardship on him. Whilst he is in prison the financial and moral support which he gives his wife and other family members will not be able to be given. They will suffer some deprivation as a result of this, but not such deprivation as to cause any substantial lessening of his sentence.

SENTENCING CONSIDERATIONS:

24. Because this offence has a standard non-parole period of seven years for a midrange offence, I must give consideration to whether the offence is a midrange offence. In my opinion, it is because it was a penile/vaginal intercourse between an old man and a quite young girl who was required to submit to his lust.

25. Taking into account the subjective factors, which I have already mentioned, it is appropriate that I give consideration to imposing a sentence which is less than that of a non parole period of seven years.

26. On the 16th of December 2005, I sentenced Edmund Turnell for of a similar offence of sexual intercourse without consent to a non-parole period of five years. His offences also involve penile/vaginal sex of a woman with whom he had been in a sexual relationship. Mr Turnell was very much younger than the current offender and persisted with the intercourse for a greater period.

27. The subjective factors to which I have referred, and led me to impose a lesser sentence than that which I imposed on Mr Turnell.

SENTENCE:

28. I sentence the offender to a non-parole period of four years. That sentence commences today the 20th of June 2008 and will expire on the 19th of June 2012 the balance of the term commences on the 20th of June 2012 and expires on the 19th of June 2015.

29. I recommend that consideration be given to releasing him on parole on the 19th of June 2012 and I recommend that he be classified as soon as possible, and that consideration be given to placing him as soon as possible in a minimum security institution.

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