Dawkins v R

Court of Criminal Appeal (NSW)|2018-09-10|Before: Basten JA, McCallum J, Bellew J, Hodgson JA, Rothman J, Johnson J

Judgment

BASTEN JA: I agree with the orders proposed by McCallum J, and with her reasons. The following observations are by way of further explanation, rather than qualification of those reasons.
First, although this Court is differing from the assessment of the seriousness of the offending reached by an experienced trial judge, there are aspects of the judgment which should be given limited significance for this purpose.
In at least three passages in his reasons the judge referred to the "incredible seriousness" of the offending. [1] A lawyer's analysis of the circumstances would suggest that such language is exaggerated. However, it is likely that the judge was intending, in colloquial language, to impress upon the offender the justification for the sentence of imprisonment which was to be imposed.
The judge also referred to "the terrible trauma that this [offending] would have already done to the family of the victim". Again, it would be inappropriate to take this statement as reflecting a judicial assessment of the seriousness of the conduct for the purpose of determining a sentence.
The second matter concerns the relevance of emotional immaturity in sentencing. The judge quoted the observations of Hodgson JA in this Court in BP v R to the following effect: [2] "[5] … In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties …" The judge considered himself bound to "follow" what had been said in BP, adding "but of course all 21-year-olds will be different." [3]

Circumstances of the offences

The applicant was sentenced on the strength of a statement of agreed facts which may be summarised as follows. The applicant and the victim were neighbours. The applicant lived at home with his mother and siblings. The victim lived with her mother and siblings. The offences commenced in April 2016 when the applicant was aged 21 years and the victim was aged 12 years. She was due to turn 13 in September 2016.
The applicant had become friendly with the victim's mother and sometimes agreed to babysit for her. He was not paid for the babysitting. In April 2016 he went camping with the victim's family and formed a close relationship with the victim. They spent a lot of time talking to each other and sending text messages to each other. In April or May 2016 they had penile vaginal sexual intercourse on a bed in the lounge room of the victim's home on a night when the applicant was babysitting the victim and her siblings. They had sexual intercourse on several other occasions until the relationship was discovered on 28 October 2016. On that date, the victim had told her mother that she would stay at a friend's house as her mother was not home. In fact, the applicant and the victim met at her home during the afternoon. They ordered pizza and watched a movie together. They then engaged in sexual activity (detailed below). At some point during the evening, the victim's mother found out that the victim was not at her friend's house. The victim's mother asked a friend to go to their house and look for the victim. The friend found the offender and the victim together within the victim's home.
The following day the victim and her mother attended a police station to report the matter. When asked by police, the victim initially denied having sexual relations with the applicant but said that she had feelings for him. Later that day the applicant voluntarily attended the same police station after admitting to his mother that he had had sexual relations with the victim. When he attended the police station he said: "I fucked up, so I am 21 years old and have been seeing a minor, like, she is under 16. I used to babysit her, she is my neighbour and I was really close to her mum".
The applicant then voluntarily participated in an electronically recorded interview in which he made full admissions to engaging in a sexual relationship with the victim knowing she was aged 12 years at the time of the first offence.
The charges against the applicant were based on his admissions, save for one additional offence which he did not describe to police but which was based on a statement subsequently taken from the victim.
The first was a charge of penile vaginal sexual intercourse based on the first act of intercourse between the applicant and the victim in April or May 2016 at the victim's home when the applicant was babysitting. The victim was aged 12 years at that time. An offence of aggravated indecent assault contrary to s 61M(1) of the Crimes Act was taken into account on a Form 1 in respect of that first offence (it is not clear why the indecent assault offence was not charged under s 61M(2)). That was based on an earlier occasion when the offender was babysitting in April 2016. He and the victim were lying on the lounge watching a movie together and he placed his hand inside her pants and touched her in the area of the vagina on the outside of her underwear.
The second offence for which the applicant was sentenced was an act of fellatio performed by the victim on the applicant in the lounge room at her home while the applicant was babysitting. She was aged 12 years at the time of that offence.
Three further offences involving oral intercourse were taken into account when the applicant was sentenced for that offence. One was an act of cunnilingus performed by the applicant on the victim in the lounge room at her home while he was babysitting. The agreed facts state only that the offence occurred "between April 2016 and 28 October 2016" (the latter being the date on which the applicant and the victim were discovered together). Accordingly, it is not clear whether the victim was aged 12 or 13 years at the time of that offence. Two further acts of oral intercourse on 28 October 2016 (when the victim was aged 13 years) were also taken into account in relation to that offence.
The third offence was an act of penile anal intercourse. That was the offence of which police learned only from the victim, not the applicant. The agreed facts state only that the offence occurred between April and 28 October 2016 and accordingly it is not clear whether the victim was then aged 12 or 13 years.
The fourth offence was an act of penile vaginal intercourse on 28 October 2016 (the night before the matters were reported). The agreed facts are that, before engaging in penile vaginal intercourse on that night, each performed oral intercourse on the other. Those offences were taken into account in respect of the offence of oral intercourse described above (the second offence). The applicant and the victim then had penile vaginal intercourse for a number of minutes. The applicant ejaculated outside of the victim's vagina. He was not wearing a condom. They then watched a movie together in the victim's room and it was during that time that they were found by the victim's mother's friend.
The indicative sentences stated by the sentencing judge were as follows: 1. for the first offence (penile vaginal intercourse when the victim was 12), taking into account the offence of aggravated indecent assault (touching the vagina on the outside of the victim's underwear), 5 years with a non-parole period of 3 years; 2. for the act of fellatio when the victim was 12, taking into account three other offences involving oral intercourse, 5½ years with a non-parole period of 3½ years; 3. for the act of penile anal intercourse, which did not attract the Ellis discount but only the discount for the plea of guilty at the first opportunity, 6 years and 3 months with a non-parole period of 4 years; 4. for the last offence (in respect of which it was specified that the applicant had ejaculated, which the sentencing judge viewed with greater seriousness owing to the absence of a condom), 5 years with a non-parole period of 3 years.
The sentencing judge's task in considering the issues of accumulation and totality was complicated by the fact that the applicant was entitled to a combined discount of 40% in respect of all of the offences other than the offence of penile anal intercourse. His Honour, being careful not to allow that complication to lead to a distortion of the sentence stated that he would, in effect, give the applicant the benefit of the combined discount for that offence in fixing the aggregate sentence.

Circumstances of the offender

The applicant had a strong subjective case, as the sentencing judge recognised. He had no criminal history. He had a history of diagnosed but untreated depression as a teenager, the significance of which was addressed in two psychological reports. The Crown tendered a report prepared by Corrective Services. The report (signed by two psychologists) assessed the applicant to pose a low risk of reoffending. The report described his case in the following terms: "Mr Dawkins reported that he grew up in a family where members were very open about personal issues, and he perceives his relationships with his friends similarly. It would appear that Mr Dawkins perhaps did not consider the need to instigate emotional boundaries with children as it was not his habit. What followed was inappropriate emotional openness with the victim and Mr Dawkins' perception that she responded maturely. This is likely to have led to feelings of closeness and intimacy, and enabled Mr Dawkins to view her as an intellectual peer rather than a child. During his contact with the victim, the emotional closeness he felt combined with feelings of acceptance and being needed by the victim likely enabled him to engage in the cognitive distortion that he was "in love" and that this was an intimate relationship between equals despite the fact that she was a child. Acceptance, feeling needed and a desire to please would have increased his self-esteem and positively reinforced his actions. This combined with his desire not to hurt the victim's feelings in the short term, would have contributed to difficulties in ceasing his offending behaviour once commenced."
The second report, from Mr Jason Borkowski, was tendered by the applicant at the proceedings on sentence. Based on actuarial assessments, Mr Borkowski placed the applicant in the "low-moderate" risk category. He considered that the applicant's attitude towards the offences, his willingness to consider his thought processes at the time of the offences and his acceptance of responsibility for his actions "bodes well for his treatment and rehabilitation prospects." As in the report from Corrective Services, Mr Borkowski assessed the applicant as having misconstrued his relationship with the victim, saying: "From a psychological perspective, it is hypothesized that Mr Dawkins' averse experiences throughout his formative years, and his subsequent psychological growth, has contributed to an arrested emotional development, and hindered his ability to form secure interpersonal attachments. In relation to the offences for which he is charged, it could be considered probable that Mr Dawkins' misconstrued the relationship he had with the victim, from which he perceived a sense of nurturance, and acceptance, and he disregarded the inappropriateness of the relationship."
The applicant also tendered references from family members who spoke in glowing terms of his caring nature, his regret in respect of these offences and the support he will receive from family upon his release.

Alleged error in assessing the objective seriousness of the offence

The applicant relies on two grounds of appeal: 1. In assessing the objective seriousness of the offence, his Honour erred in gauging the gravity of the aggravating circumstance, that is, the applicant's position of authority; 2. the aggregate sentence was manifestly excessive.
As already noted, in charging the applicant with aggravated sexual intercourse, the circumstance of aggravation relied upon by the prosecution was that the complainant was under the applicant's authority. That arose from the fact that he had acted in the role of babysitter for the victim and her siblings in their home and was babysitting at the time of some of the offences. The statement of agreed facts is silent as to any further detail of those arrangements. At the least, it is clear that there was more to the relationship than that. The applicant was a neighbour and family friend and had become close to the victim outside any babysitting arrangements.
The applicant gave evidence at the proceedings on sentence. He did not consider himself to have been babysitting the victim so much as her younger sister, who was aged four. However, in his evidence, he said: "On reflection I was the adult in the house, even though I've - I, at that stage, thought I was mainly there for the youngest four-year-old. I know that I was the adult in the house and I was observing them to make sure they weren't getting up to mischief."
Addressing that issue, the Judge said: "In circumstances where he was not only 21 and therefore significantly older than the victim who was 12 for these offences, he was also someone who was in a position of trust. By befriending the mother of the victim and forming a relationship with her where she saw him as someone who could be trustworthy and look after her children, not just the victim but her other children. It bespeaks of the seriousness of the matter that he would abuse that trust and take advantage of the situation. It matters little that, in fact, an aspect of the relationship between himself and the victim may have been caring, may have even involved feelings or aspects that could approach even stronger feelings amounting to love. The reality of this section of the Crimes Act is that we put in responsibility of adults to know that young girls like the victim here are not in a position to make emotionally mature decisions about the significance of engaging in sexual relationships with adults. And, as I said, at 21 you are an adult. At 12 you are not even remotely an adult, at 12 you are still incredible [sic] immature and not in a position to make such important decisions in life."
Later in his reasons, his Honour again referred to "the breach of trust in the situation". His Honour acknowledged that that was an element of the offence but continued: "…but nevertheless something that I am entitled to take into account in the assessment of the objective seriousness of the offence; the trust that a mother puts in anyone who babysits the children in any relationship, and to breach that is always a very significant factor in determining the seriousness of the offence. On top of that one must look individually at these actions and see that these were aspects of taking advantage of someone that he knew was of that age; not only did he live next door and therefore was fully aware of the circumstances, the mere fact that he was the babysitter, irrespective of the fact that he may have seen himself as the babysitter of even the younger child, but nevertheless he knew he was being put in a position of responsibility, bespeaks of why this matter must be approaching and close to the mid-range of objective seriousness and that is what I would find in relation to each of the matters having assessed them individually."
As submitted on behalf of the applicant, the circumstance that a victim is under the authority of an offender is one of several circumstances of aggravation created by s 66C(5)(d). That section provides: "(5) In this section, "circumstances of aggravation" means circumstances in which: (a) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or (b) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or (c) the alleged offender is in the company of another person or persons, or (d) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or (e) the alleged victim has a serious physical disability, or (f) the alleged victim has a cognitive impairment, or (g) the alleged offender took advantage of the alleged victim being under the influence of alcohol or a drug in order to commit the offence, or (h) the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence, or (i) the alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence."
The applicant submitted that the circumstance of aggravation had to be compared with other examples of its type and also considered by reference to where it fell within the hierarchy of circumstances prescribed as matters of aggravation. He relied on the decision of this Court in Cohen v R [2011] NSWCCA 165, where Simpson J (as her Honour then was) explained that a matter relevant to the assessment of the objective gravity of the offence is "the circumstance that took the offence into the aggravated category" (at [44]; Allsop P and Buddin J agreeing at [1] and [72]). In that case, the Court concluded that the circumstance of aggravation was of a relatively low order in the hierarchy, a factor that contributed to the Court's conclusion that objective seriousness had been overstated by the sentencing judge.
Separately, the applicant submitted that it is relevant to have regard to the fact that the victim was in fact consenting "even though it is a more serious offence to have intercourse with a child without consent under s 61J." I note that the maximum penalty is in fact the same in each instance but it may be accepted that the presence or absence of consent is relevant in the assessment of objective seriousness for an offence contrary to s 66C: Wakeling v R [2016] NSWCCA 33 at [47] per Davies J, with whom Hoeben CJ at CL and Johnson J agreed at [1] and [2]; applying Hogan v R (2008) 186 A Crim R 52; [2008] NSWCCA 150 at [77] per Beazley P, with whom Johnson J and I agreed at [85] and [86].
The applicant submitted that the "position of authority" relied upon in the present case self-evidently must rank significantly below other positions of authority such as teachers, treating health professionals, religious advisers, sporting coaches and even au pairs or nannies. He noted that babysitters are usually paid informally (if at all - the applicant was not); that they have no ethical obligations or training and indeed are rarely expected to have qualifications or training at all. He further submitted that, as in the present case, the age of the children in question informs expectations as to care.
The Crown submitted that, as framed, ground 1 "appears to be a complaint as to the weight given to the aggravating circumstance" and does not identify error. I do not think that is how this ground was intended to be put. It has been accepted that the task of assessing the objective seriousness of the offending is an evaluative exercise to be undertaken by the sentencing judge: Mulato v R [2006] NSWCCA 282 at [37] per Spigelman CJ; at [46] per Simpson J. The task has been characterised as being similar to the exercise of a discretionary power, with respect to which this Court will be slow to intervene: Lee v R [2016] NSWCCA 66 at [8] per Basten JA. It follows that it is not enough for the applicant to establish that the offences might reasonably be regarded as less serious than the sentencing judge regarded them to be. But where an applicant establishes that a particular characterisation given to the seriousness of the offence was not reasonably open, error is established.
The Crown submitted that the Court should have regard to exchanges between the sentencing judge and counsel during the proceedings on sentence where the issue now raised was "squarely addressed by his Honour in the course of proceedings and in a manner favourable to the applicant". I do not think this is a case in which it is appropriate to have regard to those exchanges. The question is whether the sentencing judgment reveals error.
In the sentencing judgment, the judge referred to pertinent features of the offences including the nature and circumstances of the sexual acts themselves; the ages of both the applicant and the victim and the relative difference between them (in respect of which his Honour accepted that the case was not as serious as matters involving older offenders); the position of trust involved in the role of babysitter (a feature of any person in a position of authority); the aspect of "taking advantage of someone the applicant knew was of the age of 12"; the period of time over which the offences occurred; the absence of physical compulsion or grooming and the fact that the victim was consenting.
However, as explained in Cohen, those features had to be analysed in the context of the range of aggravating circumstances contemplated by the statute.
The circumstances of aggravation listed in s 66C(5) contemplate cases of actual violence, threats of violence involving weapons, gang rape, offences committed against physically or cognitively impaired victims and cases involving kidnapping or house breaking. Such offences are often committed in substantially more serious circumstances than those of the present case. Within the category of offences committed against a victim who is under the authority of the offender are offences committed by parents against their children; teachers against their students and treating professionals against their patients. The present offences are obviously serious, as reflected in the maximum penalty and standard non-parole period prescribed. However, within the range of s 66C offences, I do not think it was open to assess them as falling "just slightly below the mid-range of objective seriousness".
For those reasons, mindful of the caution to be exercised by this Court, I am unable to regard the conclusion his Honour reached as to objective seriousness as one that was reasonably open.
In light of that conclusion, it will be necessary to re-sentence the offender.

Re-sentence

In that circumstance, it is not necessary to determine ground 2. However, it is helpful in re-sentencing the offender to record some of the submissions made under that ground.
The applicant referred in this context to the decisions in Nelson v R [2016] NSWCCA 130, R v Schwenke [2004] NSWCCA 289 and three cases referred by Fagan J in Nelson at [122]-[131]. Those decisions are not precedents and do not bind the court. While conceding their limited utility, the applicant nonetheless submitted that the decisions strongly indicate that the sentence imposed on the applicant was unreasonable.
The applicant further sought to demonstrate the unreasonableness of the sentence by reference to his very strong subjective case and the fact that he was entitled to a combined discount of 40% for his pleas and assistance. When regard is had to that discount, the starting points of the individual indicative sentences were very stern, in my assessment.
As already noted, the applicant has a very strong subjective case. As found by the sentencing judge, he was of prior good character; he has good prospects of rehabilitation; he has no criminal record; there is a low risk of reoffending and he is remorseful. I respectfully adopt those findings. Material tendered on re-sentence in this Court confirms that he is making good progress in accordance with the promise he showed before the sentencing judge.
The applicant's youth is a significant factor in this case. He was aged 21 years when he committed these offences. As noted by the sentencing judge, this Court recognised in BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159 (at [5]) that "emotional maturity and impulse control develop progressively during adolescence and early adulthood and may not be fully developed until their early to mid-twenties."
The sentencing judge made a finding of special circumstances (at p 24 of ROS) on the basis of the applicant's youth, the fact that he has not previously been to prison and the recognition that prison can frustrate the rehabilitation of young people. In my view, the adjustment should be very substantial.
I have already noted the applicant's history of depression and the psychologists' assessment of the significance of that history. I am satisfied on the strength of those remarks that immaturity and arrested emotional development were significant factors in the commission of these offences. In my assessment, those considerations warrant a considerably shorter period in custody than was imposed at first instance and a substantial period of supervision on parole. It is clear that the applicant will require careful support and supervision for a significant period upon his release from prison.
In all the circumstances I have recited, I am satisfied that a lesser sentence was warranted and should have been passed. I consider that the applicant should be re-sentenced to an aggregate sentence of imprisonment for 5 years with a non-parole period of 2 ½ years.
The indicative sentences on which that sentence is based are: 1. for the first offence (penile vaginal intercourse when the victim was 12), taking into account on a Form 1 the offence of aggravated indecent assault (touching the vagina on the outside of the victim's underwear), a starting point of 7 years giving 4 years and 2 months (rounded down) after applying a 40% discount; 2. for the act of fellatio when the victim was 12, taking into account the three other offences involving oral intercourse, a starting point of 8 years giving 4 years and 9 months (rounded down) after applying a 40% discount; 3. for the act of penile anal intercourse which did not attract the Ellis discount, a starting point of 6 ½ years giving 4 years and 10 months (rounded down) after applying a 25% discount; 4. for the last offence, a starting point of 7 years giving 4 years and 2 months (rounded down) after applying a 40% discount.
For those reasons, I propose the following orders: 1. Leave to appeal granted; 2. Appeal allowed and sentence imposed at first instance be quashed. 3. The offender is sentenced to an aggregate sentence of imprisonment for 5 years with a non-parole period of 2 ½ years, to commence on 29 October 2016; 4. The first date on which the applicant is eligible for release on parole is 28 April 2019. The sentence will expire on 28 October 2021.
BELLEW J: I agree with McCallum J.

Endnotes

Judgment on sentence, p 10 and p 26.
[2010] NSWCCA 159; 201 A Crim R 379.
Judgment on sentence, p 23.
BP at [6].
Judgment on sentence, pp 23-24.
Judgment on sentence, p 16. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 December 2018

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