Regina v Richards

[2021] NSWDC 603

District Court

New South Wales

Medium Neutral Citation:

Regina v RICHARDS [2021] NSWDC 603

Hearing dates:

8 October, 11 October, 2021

Date of orders:

9 November 2021

Decision date:

09 November 2021

Jurisdiction:

Criminal

Before:

Lerve DCJ

Decision:

Aggregate sentence – see [95] to [100]

Catchwords:

CRIMES – sexual offences – grooming a child for unlawful sexual activity – aggravated sexual intercourse with a child aged 14 to 16 years – sexual touching a child aged 10-16 years

CRIMES – back up offences on s166 certificate – possess prohibited drug – handle explosives without licence – possess prohibited weapon

Legislation Cited:

Crimes Act, 1900

Crimes (Sentencing Procedure) Act, 1999

Criminal Procedure Act, 1986

Drug Misuse and Trafficking Act, 1986

Explosives Act, 2003

Weapons Prohibition Act, 1998

Cases Cited:

Betts v R [2015] NSWCCA 39

Cahyadi v R [2007] NSWCCA 1

Culbert v R [2021] NSWCCA 38

Doan v R (2000) 50 NSWLR 115

Greaves v R [2020] NSWCCA 140

Greenwood v R [2014] NSWCCA 64

Jolly v R [2013] NSWCCA 76

R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434

R v BA [2014] NSWCCA 148

R v Gavel [2014] NSWCCA 56

R v Muldoon unrep. NSWCCA 13.12.1990

R v PGM (2008) 187 A Crim R 152

R v Tuala [2015] NSWCCA 8

R v Van Ryn [2016] NSWCCA 1

Imbornone v R [2017] NSWCCA 144

Category:

Sentence

Parties:

Regina
Mark RICHARDS

Representation:

Counsel:
Mr Fordham for the Offender

Solicitors:
Mr A Wright for the Crown

File Number(s):

2020/00343566

Publication restriction:

There is to be no publication of the name of the victim nor anything that would tend to identify them.

Judgment

1. The offender appears for sentence in respect of three substantive matters and five matters attaching to a Certificate pursuant to section 166 of the Criminal Procedure Act, 1986. The substantive matters are:

H77567042

Sequence 21: Procuring or grooming a child for unlawful sexual activity, contrary to s 66EB(2A) of the Crimes Act, 1900; and

Sequence 22: Aggravated Sexual Intercourse with a Child aged 14 - 16 years, contrary to s 66C(4) of the Crimes Act; and

Sequence 11: Sexual Touching a Child aged 10 -16 years contrary to s 66DB(a) of the Crimes Act.

2. The matters attaching to the s 166 Certificate are:

Sexual Act with a Child aged 10-16 years contrary to s 66DD(a) of the Crimes Act; and

Possess Prohibited Drug contrary to s 10(1) of the Drug Misuse and Trafficking Act, 1986; and

Handle explosives without Licence contrary to s 6(1) of the Explosives Act, 2003; and

Possess Prohibited Weapon contrary to s 7(1) of the Weapons Prohibition Act, 1998; and

Possess Prohibited Weapon, contrary s 7(1) of the Weapons Prohibition Act.

3. The offender was committed for sentence in respect of the three substantive offences from the Wagga Wagga Local Court on 14 July 2021. The pleas of guilty were adhered to at the sentence hearing of the Wagga Wagga District Court on 8 October 2021 and accordingly the offender is entitled to the full 25% discount for the utilitarian value of the pleas in those matters. The pleas of guilty were entered at what was the first opportunity for the offender to do so in respect of the matters attaching to the s 166 Certificate and accordingly the offender is also entitled to 25% discount for the utilitarian value of the pleas in those matters.

4. The maximum penalty for the offences of Procure or Groom a Child for the Purposes of Unlawful Sexual Activity and Aggravated Sexual Intercourse with a Child aged 14-16 is 12 years imprisonment. Parliament has specified a standard non-parole period of 5 years in respect of those offences. The maximum penalty for the offence of Sexual Touching a Child aged 10-16 years is 10 years imprisonment. There is no standard non-parole period specified in respect of those offences.

5. So far as the matters attaching to the s 166 Certificate are concerned the maximum penalty for the offence of Commit Sexual Act with Person between 10-16 years is 2 years imprisonment. The charge of Possess Prohibited Drug also carries a maximum penalty of 2 years imprisonment. The charge of Handle Explosives without Licence carries a maximum penalty of 12 months the two charges of Possess Prohibited Weapon carries a maximum penalty of 14 years, however, as they attach to a s 166 Certificate the jurisdictional limit of the Local Court of 2 years applies. In that regard I note authorities such as Doan v R (2000) 50 NSWLR 115 and more recently Greaves v R [2020] NSWCCA 140 at [66] per Cavanagh J (Hoeben CJ at CL, Hamill J agreeing).

Facts

6. When the Crown tender bundle was first received the facts extended to some 23 pages. The Crown was requested to reduce that. The Crown produced a six page summary of the longer document.

7. The offender was born on 15 January 1980 and accordingly in January 2019 he had his 39th birthday. The victim's date of birth is set out in paragraph 1 of the summary of the longer version of the facts but she turned 15 in about the middle of 2019. She was a student at the high school of the small country town in which she and the offender lived. The victim played in a local female only League Tag competition. The team was coached by the offender and his sister.

8. The "Grooming" charge relates to persistent and ongoing conduct by the offender over a significant period of time. It is necessary to set out this in some detail in order to demonstrate the extent of the offending to which that charge relates.

9. In February 2019 the offender commenced employment at the school the victim attended as a Student Learning Support Officer. Also in 2019 the offender began to communicate with the victim through SnapChat and began paying the victim more than the usual attention at training for the League tag team.

10. Over the course of several months the messaging became sexually oriented and flirtatious. The offender started sending to the victim photographs of himself every time he got out of the shower. These photographs showed the offender with a towel covering his lower body. He also continued sending messages to the victim complimenting her and asking to see more of her. Eventually the victim relented and started sending the offender photographs of her in a bikini or wearing only a bra and underwear. The offender started sending the victim photographs of himself lying in bed wearing only underwear.

11. The communications between the offender and victim became increasingly sexual and the offender continually attempted to get the victim to send him photographs of her body. At school the offender was flirtatious whenever he saw the victim including nudging her in the hallways. At training sessions for the League tag team the offender became more "hands on" doing things like tackling the victim in order to be physically closer to her.

12. In about July 2019 the offender began sending very long messages through SnapChat of sexual fantasy stories that the offender had himself made up. The offender described wanting to have sex with the victim and he sent the victim at least five of the erotic stories. The longer version of the facts indicate that the offender was very explicit in telling the victim what he wanted to do with her.

13. The victim began to feel that she was falling in love with the offender. The offender told the victim that he loved her and the victim told the offender that she loved him. Whenever the offender sent sexual messages the victim would respond by telling him that was what she wanted too. The offender told the victim that he could never handle living without her and if he was ever to lose her he would not be able to live anymore. The offender began to tell the victim that he would kill himself if they could not be together.

14. The offender operated a café in the country town in which they both lived. In the middle of 2019 the victim and some of her friends went to the café. On this occasion the offender walked up behind the victim to reach for some plates and in so doing brushed his penis against the victim's buttocks. This was apparently done through clothing. Later in the day they pierced each other's ears with safety pins.

15. The following day when at school the victim became aware that other students were talking about her and the offender. The offender and victim communicated with each other during the day including telling each other via SnapChat that they loved each other. In one SnapChat message the offender sent the victim a photograph of his penis.

16. In August 2019 the victim's mother became aware of the messaging and following a complaint to police the police sought and obtained an interim Apprehended Domestic Violence Order (ADVO) prohibiting any contact between the offender and the victim.

17. About three weeks after the ADVO had been put in place the victim was at home playing games on her iPad. She realised that she could request to play a game with the offender and she did so. The offender accepted the request and the pair started playing a game together.

18. The offender and accused recommenced communicating daily through SnapChat. In the first such conversation the offender told the victim that he did not want to be in the world and that he was still cutting himself (self-harming). He sent a message, "I want to kill myself and it would be easier if I wasn't here anymore".

19. After reading these messages the victim became extremely worried about the offender. The facts recite that she too felt depressed and began experiencing similar thoughts to the effect it would be easier if she too killed herself. The facts go on to recite that the victim had these feeling resurface every time the offender would discuss his depression and suicidal ideation to her.

20. In September 2019 the offender gave the victim a mobile phone to enable them to communicate secretly. The offender requested that the victim give him a hug by holding out his arms and the victim hugged him.

21. During the whole of the last school term of 2019 the offender and victim frequently sent each other messages to the effect that they loved each other. The offender obtained a tattoo of a waterlily with the word "forever". The facts recite that the waterlily is the victim's birth flower symbol.

22. The offender and victim continued to frequently send sexual photographs to one another and the offender referred to the victim as "babe" or described her as his girlfriend. The offender sent to the victim videos of himself masturbating. Occasionally the victim would send back photographs of herself in her underwear.

23. In around September or October 2019 the victim began seeing an age appropriate male friend. The offender began interrogating the victim about whether she had been sexually intimate with this male or if she had lost her virginity. The victim told the offender that nothing had happened. The offender messaged, "Good because its such a precious thing that I want".

24. However the offender continued to be angry with the victim and insisted that she had cheated on him. He told the victim that he wanted to kill himself because of what he believed she had done.

25. The offender repeatedly communicated with the victim encouraging her to meet him at a park in the town. Around the last day of school in 2019 the victim agreed to meet the offender. At the park the offender hugged the victim and the pair stood talking face to face. The offender grabbed the victim on either side of her face with both hands, pulled her towards him and kissed her on the lips for a few seconds. The offender also groped the victim's buttocks and breasts. Later that night the offender sent the victim a SnapChat message telling her how much he loved kssing her and told her how good her "bum" looked in her shorts.

26. The offender continued to send the victim videos of himself naked and masturbating in the bedroom. He also sent a photograph of a box full of sex toys. The victim continued to send photographs of herself dressed in only bra and underwear. The offender repeatedly asked the victim to take off the bra and underwear for the photographs. Eventually the victim relented and did so.

27. In late January 2020 the victim and offender agreed to meet at the park in the town. The offender kissed the victim and touched her vagina three times in a wiping motion on the outside of her clothing. A few days later they again met at the park where the offender showed the victim his new tattoo on his hip of the victim's name in bold writing.

28. Over the period of time the offender purchased gifts for the victim including clothing and shoes.

29. In January or February 2020 the offender and victim were again messaging each other via Facebook. The offender told the victim that he wanted to have sex with her and asked that she bring a towel to the park for that purpose. The victim felt nervous about this but the facts recite that the victim did not believe that the offender would have sex with her. Nevertheless she agreed to meet the offender at the park the next day.

30. At the park the offender hugged, kissed and groped the victim. He then moved his right hand and placed it in between the victim's legs before sliding his hand underneath the victim's skirt until his fingertips reached the victim's vaginal area. The offender rubbed the complainant's vagina with his hand for one to two minutes on the outside of her underwear. This is the conduct to which the charge of sexual touching (sequence 11 relates)

31. The offender then using his fingers pulled the complainant's underwear to one side and inserted two fingers into the victim's vagina. The offender then moved his fingers in and out of the victim's vagina for about three minutes. This is the conduct to which the charge of Aggravated Sexual Intercourse with child aged between 14 and 16 (sequence 22 relates)

32. The offender then moved his head under the victim's skirt and performed cunnilingus on her for about thirty seconds. He then lowered the victim's underwear, stood up and kissed the victim on the open mouth using his tongue. He went behind her and pushed her forward so she was bending over. He lifted her skirt over her buttocks and lowered his pants and underpants. He attended to have penile/vaginal intercourse with the victim however the victim experienced pain and the offender was unable to penetrate the victim. The victim faced the offender who again kissed her. The offender then masturbated to ejaculation with semen going onto the ground. It is the act of masturbating to ejaculation that constitutes the charge of Sexual Act with Child 10-16 years which attaches to the s 166 Certificate.

33. I note that the longer version of the facts at p 17 sets out that the cunnilingus and attempted penile/vaginal intercourse are "contextual matters". I have no note or memory of either party addressing on this issue. I deal with the matter on the basis that the offender is not extended the leniency that he would if the digital penetration was an isolated incident.

34. The longer version of the facts also sets out that later that night the offender sent a message to the victim to the effect of, "Lucky I didn't get it in because I didn't bring a condom with me".

35. In February 2020 the victim went to a rodeo with some school friends and later went to a friend's house. The offender sent messages via SnapChat and was angry that the victim was spending time with other boys. He asked in the messages for the victim to come and see him. She said no. The messages from the offender became increasingly angry.

36. The following day the victim and friends attended a festival. The offender saw the victim and called out to her but she did not respond. The offender sent messages throughout the day. Eventually the victim told the offender that she did not want to talk to him anymore and to stop calling her. He yelled, "If you hang up on me that's it, I am never talking to you again, I am cutting you off completely, that's it for us".

37. However the next morning the offender told the victim that he loved her. He insisted that she not spend time with her friends. He sent photographs of himself self-harming. He said in a message, "Don't do this, I can't do this without you, I can't lose you". The victim began to distance herself from the offender.

38. On or about 28 February 2020 the victim's mother needed to use the victim's phone and while using it saw a message come up from the offender. The victim saw her mother going through the messages on the phone. Her mother asked what was going on and the victim started to cry and told her mother that she had been in contact with the offender for a long time. Later that afternoon the victim sent a message to the offender telling him not to send any further messages. The victim pleaded with her mother not to contact the police.

39. The matters were reported to police after the victim's 16th birthday and the July 2020 school holidays. As part of the investigation police obtained a Surveillance Device Warrant. On 9 November 2020 the victim and offender spent over an hour talking and the call was recorded. The longer version of the facts recites the following exchange occurred:

Offender:   Do you regret any of it?

Victim:      Like what?

Offender:   Well, me personally, I've got no regrets in meeting with you, getting with you any of that I do regret some of the things that I did, um, but, yeah, no…I haven't regretted meeting you one second no matter what's happened.

Victim:      Yeah. And you don't regret like, what happened when we, like, saw each other…those couple of times and stuff?

Offender:   Like kissing you

…

Offender:   I don't regret it now, like we did that, we, that happened. It probably shouldn't have but it did and…I dunno if it affected you in any way or whatever or…you're upset about it.

40. The longer version of the facts (p 22) recites that when the offender thought about the victim after they had ceased contact he said, "I didn't know what to do, I was, I wanted you and I didn't want you, I wanted to talk to you, and I didn't want to talk to you. I hated you and I loved you and I have missed you a lot.”

41. Police attended the home of the offender on 2 December 2020. A search of the home revealed sex toys, a silver ring belonging to the victim and numerous pieces of clothing. This included underwear worn by the offender in some of the photographs and during the offending. In a drawer in the bedroom police located a resealable bag containing cannabis seeds that weighed 50 grams.

42. Police also located during the search 11 fireworks in a Tupperware container. The fireworks relate to the charge of Handle Explosives without Licence attaching to the s 166 Certificate. Also seized in the course of the search were three "zombie knives" which had a multi-edged blade including a serrated section. A hunting sling (sling shot) was also found. The knives and sling shot are the items to which the two charges of Possess Prohibited Weapons relate.

43. The offender was arrested on 3 December 2020 and he has been in custody since that date. Both parties agree that is the date at which the sentence imposed in this matter should commence.

Assessment

44. As I observed before going into detailing the facts to which the grooming charge relates, it was necessary to go into some detail of the offender's conduct. The offender was in a significant position of trust; that makes the matter more serious. The offender's conduct was extremely persistent and involved not only the messages, the photographs and the videos but also included purchasing gifts. The age difference was in the order of 25 years and therefore very significant. The offender became jealous when the victim began to socialise with age appropriate males. Given the period over which the offending occurred, the nature of the offending including the persistent and ongoing nature of the offending, the position of trust and the age difference the grooming charge is above mid-range.

45. So far as the charge contrary to s 66C(4) is concerned I note that the intercourse was digital. However, there is a clear line and body of authority that the type of intercourse should not be ranked in some type of hierarchy. See for example the decisions of Simpson J (as her Honour then was) said in R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 at [24], Jolly v R [2013] NSWCCA 76 and R v Gavel [2014] NSWCCA 56 at [97].

44. McCallum J (as her Honour then was) (Gleeson JA agreeing with additional comments, Fullerton J agreeing) in R v BA [2014] NSWCCA 148 at [37] observed that, "…Each case must be assessed according to its own circumstances".

45. Those decisions to which I have referred relate to more serious offending but it seems to me that the principle concerning there being no hierarchy of the type of sexual intercourse has a broader application.

46. The age difference and position of trust are again significant factors that inform the objective seriousness of the matter. The victim was towards the upper end of the age-range contemplated by the section. The matter is at the low end of the mid-range of seriousness.

47. That leaves the issue of the seriousness of the Sexual Touching Charge. The victim is again towards the upper end of the age range, but again there is the age difference and the position of trust. Note touching was on the genital area of the victim on the outside of underwear the matter in within the mid-range of seriousness.

48. Although attaching to the s 166 Certificate the charge of Sexual Act with a Child aged 10-16 years in my view is a serious example of that charge noting the conduct involved masturbating to ejaculation in front of a 15 year old girl.

49. The remaining matters attaching to the s 166 Certificate appear to me to be quite unremarkable examples of those offences. It occurs to me that if dealt with in isolation those matters would warrant fines to be imposed or at most release pursuant to a Community Corrections Order.

50. In this matter there can be no doubt that the offender's criminal conduct towards the victim involved a very significant breach of trust. That is taken into account in determining the objective seriousness of all of the offending. The factor of statutory aggravation pursuant to s 21A(2)(k) is made out. However, in the circumstances of this case where the abuse of the position of trust is taken into account in determining the seriousness of the matter to give that aspect of the matter further weight would be to make the error of double counting.

51. I understood the Crown to initially submit that the factor of statutory aggravation within s 21A(2)(l) of the Sentencing Act, i.e. the victim being vulnerable, was made out. I note the decisions of Betts v R [2015] NSWCCA 39 and Greenwood v R [2014] NSWCCA 64. Given the effect of those decisions I am not of the opinion that the factor of statutory aggravation is made out. However, as I have indicated a number of times the age of the victim and the position of trust in which the offender was are all matters that go to inform the objective seriousness of the matter.

Criminal History

54. The offender was born on 15 January 1980 and has no matters recorded against him. In other circumstances the offender would be entitled to leniency because of his lack of record.

55. Section 21A(5A) of the Crimes (Sentencing Procedure) Act 1999 provides:

In determining the appropriate sentence for a child sexual offence, the good character or lack of previous convictions of an offender is not to be taken into account as a mitigating factor if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence.

56. Mr Fordham for the offender submitted that the offender was entitled to some consideration for his lack of record and further submitted to the effect that he was aware of persons who have successfully been given a clearance to work with children when they have had matters on their record such as drink driving offences. I accept that that may be the case.

57. In this matter the offender was employed as a Student Learning Support Officer at the High School the victim attended. He would have been required to undergo the usual working with children checks. Clearly his lack of record would have been of assistance in this regard. The offender's employment enabled access to the victim. In those circumstances I am satisfied that the prior good character was of assistance to the offender in the commission of the offence.

58. Further, on the issue of character as the Crown submits the grooming behaviour continued for a very considerable period of time. In this regard the Crown refers to the decision of R v PGM (2008) 187 A Crim R 152 in which Fullerton J (Spigelman CJ, Barr J agreeing) said at [44]:

“In this case, while his Honour was entitled to take the respondent's previous good character into account, to afford it "very significant weight", in my view, failed to recognise the pattern of repeat offending over a period of seven months in the course of an ongoing relationship between the respondent and the child - a relationship which was deliberately fostered by him for his own sexual gratification. Where these features are present a finding that the criminal conduct is out of character fails to recognise that a determined and conscious course of offending, perhaps in the expectation that the child may not see the offending conduct as wrong thereby both avoiding detection and maximising the opportunity for repeated offending, diminishes the mitigating impact of a finding of good character (see R v Kennedy [2000] NSWCCA 527 at [21] and R v ABS [2005] NSWCCA 255 where at [25] Buddin J emphasised that repeat offending in the context of sexual offences deprives on offender of a claim for leniency that might otherwise be available where the offending was spontaneous and only involves an isolated incident).”

59. The grooming offence was committed over a longer period than the seven months as was the case in R v PGM.

60. However, as I observed in the course of the sentence hearing, the lack of record is something that can be taken into account in determining whether the offender is unlikely to reoffend and whether he has good prospects of rehabilitation.

Victim impact statement

61. The victim read to the court a particularly powerful victim impact statement. That statement, as victim impact statements often do speaks eloquently of the short and longer term harm caused to the victim by the offending behaviour.

62. The Crown submits that from the contents of that powerful victim impact statement that the victim has suffered substantial emotional harm and therefore the factor of statutory aggravation provided for by s 21A(2)(g) of the Crimes (Sentencing Procedure) Act is made out. The Crown relies on the decision of Culbert v R [2021] NSWCCA 38 at [119]-[120].

63. In that decision Adamson J (Hoeben CJ at CL agreeing with substantial additional comments, Hulme J agreeing) said at [119]-[120]:

“The relevant principles as to the use that can be made of victim impact statements to establish substantial harm as a matter of aggravation were summarised, with reference to authority, by Leeming JA (Harrison and Hamill JJ agreeing) in Gagan (a pseudonym) v R [2020] NSWCA 47 as follows:

‘[28] It was common ground that the aggravating factor [substantial harm] had to be established beyond reasonable doubt, as Simpson J noted in R v Tuala [2015] NSWCCA 8; 248 A Crim R 502 at [77]. Her Honour later observed that there can be difficulties in the use of victim impact statements where their content is the only evidence of harm. Her Honour cautioned that in such a case 'considerable caution must be exercised before the victim impact statement can be used to establish an aggravating factor to the requisite standard': at [80]-[81].

[29] True it is that there are cases where victim impact statements have been used to ground a finding of substantial harm: see for example Muggleton v R [2015] NSWCCA 62; 250 A Crim R 180 at [40] and Marrow v R [2015] NSWCCA 282 at [52]. Each case turns on its own facts and, in particular, on the nature of the harm disclosed in the statement.’

The extent of the harm suffered by the victims was described in considerable detail in their victim impact statements. Although the sentencing judge did not identify the two matters relied on by the Crown as justifying the finding of substantial harm, hypervigilance and guilt for the harm suffered by younger victim or victims, these circumstances were apt to elevate the harm suffered by the victims from the usual harm to be expected from such offences to the level of "substantial" harm, as required by s 21A(2)(g). In these circumstances, I am satisfied that it was open to the sentencing judge, having regard to the content of the victim impact statements and the submissions made at the sentence hearing, to find that the harm suffered by the victims was substantial.”

64. Mr Fordham submits that the victim impact statement is insufficient to warrant a finding of substantial emotional harm. Adamson J in Culbert noted at [118] that counsel for the offender at the sentencing hearing "did not submit in the proceedings on sentence that the victim impact statements were insufficient to establish that the victims had suffered substantial harm."

65. Further, in Culbert at [55]-[56] Hoeben CJ at CL said:

“I am also satisfied that it has been established beyond reasonable doubt that in two respects substantial harm in accordance with s 21A(2)(g) of the Sentencing Act has been established by the VIS. Those two respects are:

1. the magnitude of anxiety and hypervigilance described by the victims, particularly in relation to their own children; and

2. the feelings of guilt on the part of the two older siblings for not disclosing the abuse, thereby allowing the applicant to offend against the two younger sisters.

The other matters raised in the VIS, although extremely serious, can be properly characterised as inherent in offences of sexual intercourse, sexual assault and sexual indecency against a child. In that respect, they do not qualify as an aggravating factor under the Sentencing Act.”

66. Further, I note the decision of R v Tuala [2015] NSWCCA 8 and in particular the judgment of Simpson J (as her Honour then was) at [77]-[84].

67. Culbert can be distinguished on the basis that there was no issue taken at the sentence hearing on the issue of the VIS being able to be a foundation for a finding of substantial emotional harm. I note also that part of the judgment of Hoeben CJ at CL on the issue. The Victim Impact Statement clearly sets out that the victim has been receiving counselling. It would have been relatively simple for the Crown to obtain a report.

68. In these circumstances I am not prepared to find on the victim impact statement that the factor of statutory aggravation in s 21A(2)(g) of the Sentencing Act has been made out.

69. However, I note the effect of the crime on the victim must be taken into account by reason of s 3A(g) of the Sentencing Act. Although this matter is not historical there is no reason to doubt that the court is still obliged to comply with s 25AA(3) of the Sentencing Act, which relevantly provides:

When sentencing an offender for a child sexual offence, a court must have regard to the trauma of sexual abuse on children as understood at the time of sentencing (which may include recent psychological research or the common experience of courts).

General Deterrence

70. As with any child sexual assault offence there is a particular need for the sentence to reflect the need for general deterrence. This goes back to at least the Crown appeal in the matter of R v Muldoon unrep. NSWCCA 13.12.1990. More recently, see for example the leading judgment of Hulme J in R v Van Ryn [2016] NSWCCA 1 at 179 where his Honour said:

"The Crown referred to EG v R [2015] NSWCCA 21 at [42] where Hoeben CJ at CL said:

'General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually abuse children intentionally and repeatedly that their actions will not be tolerated and that they will receive significant punishment.'"

Subjective Case

71. Ms Sue Morey, the offender's mother, gave evidence on behalf of the offender. She lives in the country town where the offending occurred and works at a local child care centre which at the moment has 51 children enrolled. She has lived in the town for most of her life. The offender is able to live with her upon his eventual release. Further Ms Morey is ready and willing to assist the offender attending any counselling. She has already spoken to her General Practitioner in that regard.

72. Exhibit 1 on sentence is a report dated 27 September 2021 by Diana Grujoska, Psychologist. The offender is the oldest of four children. He reported that he had a good childhood. Although his parents divorced when he was 14 he denied any instances of violence or abuse in the family. He was close to his step-father and he had a close relationship with his maternal grandparents.

73. The offender has been gainfully employed since leaving school and he currently works as a sweeper in custody.

74. He had been in a relationship for 21 years with his wife, the mother of his three children who are aged 13, 11 and 6.

75. Of concern the offender told the author of the report (paragraph 9; page 4) that "…he developed a friendship with the victim as he was the coach of her tag league. He said that many young people look up to him for guidance and support and that this is how their relationship began. He advised that they became emotional support for one another and he could relate to her.” The concern is that the offender does not appear from those statements to understand how entirely inappropriate the relationship with the victim was.

76. The offender told Ms Grujoska that he has always had an issue in managing his emotions. He gave an account of being diagnosed with depression after the break- up of his marriage about five years ago. The offender's mother advised that the offender had struggled with depression.

77. Ms Grujoska administered a number of tests. At paragraph 25 she opines that the results were significant on the scale of Schizotypal and Borderline personalities, which suggests that the offender has severe issues with interpersonal relationships where on the on the one had he feels a deep need to be distant from others and on the other hand has a strong desire to feel connected. On the clinical scales that reflect current symptoms that require treatment the offender has significantly elevated scores on measures of anxiety, dysthymia and drug dependence. At paragraph 28 the author sets out that the offender's profile reflects significantly high scores for clinical syndromes of major depression and thought disorder.

78. The offender reported to the author of the report that he smoked cannabis on a daily basis since he was 16 years of age but he did not smoke when he was with his partner. I note that the offender as part of the grooming conduct gave the victim drug paraphernalia. He binge drank alcohol when he was younger.

79. The Static-99R test and STABLE-2007 tests were administered to determine the likelihood of re-offending. The offender is at a low risk of being charged or convicted of another sexual offence. When the scores of the two tests are combined the offender falls in the low risk category.

80. The author of the pre-sentence report opines that the offender is at a medium risk of re-offending. There is no material to suggest on which that opinion is based. Ms Grujoska administered two different tests. The offender has a nil criminal history. Given the material before me I am prepared to find on balance that the offender is unlikely to re-offend.

81. Ms Grujoska recommends that in custody the offender engage in the Real Understanding of Self-Help (RUSH) programme which will assist him to address emotional and interpersonal deficits. It is also recommended that the offender participate in face to face psychological intervention and if possible to engage with a psychologist well versed in Dialectical Behaviour Therapy as this has been shown to be an effective treatment for individuals with difficulties managing their emotions.

82. The need for such intervention and the issue of reintegration into the community indicates a need for an extended period of supervision. This taken with the offender's age and that this is his first time in custody and the partial accumulation of sentences justifies a finding of special circumstances.

83. At paragraphs 19 and 36 of the report the author sets out that the offender appears to be genuinely remorseful. At paragraph 19 the author repeats what the offender said in that, "I've ruined her life", that he thinks about the hurt he has caused to the victim and her family every day.

84. However, the Sentence Assessment Report which is part of the Crown tender bundle, exhibit A on sentence, indicates differently. Under the heading "Attitudes" on p 2 the author of the report sets out the offender failed to acknowledge the seriousness of his actions and assumed minimal responsibility for his offending behaviours, he described the relationship with the victim as a "close friendship", he cannot recall the sexually explicit messages and the facts were "worded wrong". Later in the report (p 3) under the heading "Insight into impact of offending" the author sets out that the offender failed to recognise and verbalise empathy or insight into the impact of his behaviour on the victim aside from mentioning that it was wrong to have such a relationship with a child, that his responses were primarily concentrated on justifying or minimising his offending behaviour and that he appeared largely focused on the impact the offending has had on him and his family.

85. Mr Fordham, counsel for the offender, submits that the court is able to make a finding on balance that the offender is remorseful. As I understood Mr Fordham's submissions he relied heavily on the extract of the lawfully recorded telephone conversation between the offender and the victim which is extracted at [39] above.

86. In that call the offender said that he had no regrets in meeting with and getting with the victim. He did regret some of the things he did but did not regret meeting the victim for "one second". He did not regret the kissing but acknowledged that it "Probably shouldn't have happened".

87. As I observed at the sentence hearing the contents of that recorded conversation do not amount to an unequivocal expression of remorse. The statements to the psychologist are entirely untested. In that regard I note the effect of the decision of Imbornone v R [2017] NSWCCA 144 at [57]. I note that the offender's mother was not asked about what she knew of the offender's attitude to his offending. In all of the circumstances, but noting in particular what appears in the Sentence Assessment Report and the lawfully recorded phone call, I am not prepared to find on balance that the offender is remorseful.

88. The offender has good family support upon his release. His mother is willing to assist with counselling. The offender has no record. With some minor hesitation I am prepared to find on balance that the offender has good prospects of rehabilitation.

General Remarks

89. In passing sentence I will need to give proper regard and effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely:

1. to ensure that the offender is adequately punished for the offence,

2. to prevent crime by deterring the offender and other persons from committing similar offences,

3. to protect the community from the offender,

4. to promote the rehabilitation of the offender,

5. to make the offender accountable for his or her actions,

6. to denounce the conduct of the offender, and

7. to recognise the harm done to the victim of the crime and the community.

90. Section 5 provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Clearly in this matter given the offending, the need for general deterrence, the maximum penalties and standard non-parole offences for two of the offences there must be a sentence of imprisonment. No contrary submission was made. Clearly that imprisonment must be full time custody.

90. The "grooming" offence is a relatively recent amendment to the Crimes Act. Although neither party directed my attention to the statistics kept by the Judicial Commission I have accessed them. In respect of offences contrary to s 66EB(2A) the sample is two cases. In one case the total sentence was 3 years and in the other case the total sentence was 6 years. I am in somewhat uncharted territory so far as that offence is concerned.

91. This is an appropriate matter for the invocation of s 53A of the Crimes (Sentencing Procedure) Act and the imposition of an aggregate sentence. If separate sentences were imposed there would need to be some partial accumulation to take account of the different offending. The sexual touching charge and the sexual intercourse with child aged 14-16 years occurred as the one ongoing incident and accordingly the extent of the accumulation so far as those two charges are concerned would be slight. However, given the ongoing nature of the grooming offence and the period of time over which that offending occurred the level of partial accumulation so far as that charge is concerned would need to be meaningful.

92. Given the nature of the offending involved in the offence of Sexual Act with a Child attaching to the s 166 Certificate it is appropriate to impose a sentence of imprisonment in that matter. Noting the offending occurred immediately after the offending to which the charge contrary to s 66C(4) of the Crimes Act relates, provided the principles enunciated in authorities such as Cahyadi v R [2007] NSWCCA 1 at [27] are applied the sentence would be wholly concurrent with that imposed in respect of the charge contrary to s 66C(4) of the Crimes Act.

93. Taken in isolation, the other matters attaching to the s 166 Certificate would not necessarily warrant a sentence of custody noting the age and lack of record of the offender. In those circumstances I propose to deal with those matters by s 10A of the Crimes (Sentencing Procedure) Act and impose conviction and no further penalty. The weapons and drugs however should be forfeited.

94. It will be necessary to set out the sentences that would have been imposed had separate sentences been imposed. Those sentences are:

1. In respect of the charge contrary to s 66EB(2A) of the Crimes Act, i.e. the "grooming" offence (sequence 21) a non-parole period of 3 years and 2 months with a balance of term of 1 year 8 months making a total sentence of 4 years 10 months indicating a starting point of 6 years 6 months;

2. In respect of the charge contrary to s 66C(4), i.e. the charge of sexual intercourse with a child aged 14-16 years (sequence 22), a non-parole period of 2 years 2 months and balance of term of 1 year 2 months making a total sentence of 3 years 4 months indicating a starting point of 4 years 6 months;

3. In respect of the charge contrary to s 66DB(a) of the Crimes Act, i.e. the charge of sexual touching (sequence 11) a total sentence of 1 year 10 months indicating a starting point of 2 years 6 months; and

4. In respect of the charge contrary to s 66DD(a) of the Crimes Act i.e. the charge of Sexual Act with a child between 10-16 years (sequence 14) attaching to the s 166 Certificate a total sentence of 11 months indicating a starting point of 15 months.

Orders

96. The offender is sentenced to an aggregate sentence of 6 years and 6 months with a non-parole period of 4 years and 4 months. The balance of term will be 2 years 2 months.

97. The non-parole period will commence on 3 December 2020 and will expire on 2 April 2025. The balance of term will commence on 3 April 2025 and will expire on 2 June 2027.

98. The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.

99. In respect of Sequences 17, 18, 19 and 20 i.e. charges of: Possess Prohibited Drug; Handle explosives without licence; Possess Prohibited Weapon; and Possess Prohibited Weapon, the offender is convicted and pursuant to s 10A of the Crimes (Sentencing Procedure) Act no further penalty is imposed.

100. The cannabis seeds and weapons are forfeited to the Crown for the purposes of destruction.

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Decision last updated: 10 November 2021