DPP V Sheldon [2009] NSWLC 17

Despite the jurisdictional limitation the principles set out in R -v- Doan (2000) 50 NSWLR 115 apply. In assessing the objective seriousness of the offence the Court, irrespective of any jurisdictional limit is required to have regard to the maximum penalty for the offence.

The offences were committed between the late evening of 25th October 2008 and the early hours of the morning of 26th October 2008. On 27th August 2009 the offender entered a plea of guilty to one charge. The remaining charge was placed on a Form 1 pursuant to Section 32 of the Crimes (Sentencing Procedure) Act 1999.

This outcome occurred following the holding of a Case Conference between the Director of Public Prosecutions and the offender conducted in accordance with the provisions of the Criminal Case Conferencing Trial Act 2008. Participation in the Criminal Case Conferencing Trial process in circumstances where a plea of guilty is entered prior to a committal for either trial or sentence to the District court brings with it a statutory benefit. I will return to this aspect later. Facts

A copy of the agreed facts was tendered by the DPP. In their tendered form they breach the requirements set out in Practice Note 1 of 2008. Accordingly I have abridged their content for the purpose of these sentencing remarks.

The facts disclose that on 25th October 2008 the 32-year-old offender attended a picnic in a suburban park. The victim was present at the time in the company of her father. The victim was at the time, 15 years of age. During the picnic, and with the permission of her father the victim consumed 1-2 alcoholic drinks. Later in the afternoon the father indicated a desire to attend a concert. The victim informed her father that she did not wish to go. The offender agreed that the victim could stay at nearby premises that he occupied with his then girlfriend and that the father could collect her from those premises after the concert.

The group dispersed and a number returned to the premises at which the victim had been invited to stay. The victim's father was at this time, accompanying his daughter. Upon arrival two members of the group went to purchase alcohol. They returned with a quantity of alcohol, including a bottle of what is described as "Passion Pop". I believe this is a cheap brand of carbonated alcoholic drink analogous to sparkling wine. The father of the victim gave his approval for his daughter to consume no more than half of the bottle over a period of time. Those present continued to consume alcohol.

At about 9 p.m. the victim's father and some others left to visit a nearby hotel to listen to a band. The victim was left with the offender and for a period of time kept to herself and her own entertainment consuming two glasses of the alcohol that had been bought for her. Some time after 11.30 p.m. the offender invited the victim to try a drink that he was having. It is believed that this was vodka and lemonade. The victim began to consume this drink almost immediately after finishing her earlier drink. The offender made her a second vodka and lemonade and offered her a cigarette, subsequently he gave her a third.

Both parties went outside to smoke their respective cigarettes and during this time the offender made a personal remark to the victim and asked if he could kiss her. The Victim replied in the negative. Feeling awkward the victim returned inside. She says that at this time she felt strange and unsafe. The offender followed her indoors and further conversation took place between them. At this stage the offender and victim were seated separately.

The victim went to the bathroom and when she returned the offender had moved from the chair he had previously occupied to the lounge she had been sitting on. She says he was sitting staring at her and leaned over and kissed her, moving her down on the couch to the point where he lay on top of her and removed her cardigan. The victim concedes she was not feeling uncomfortable at this time, whether by reason of the effects of the alcohol or otherwise is not clear from the facts.

The offender removed the victim's pants and performed oral sex upon her. It is this conduct that is reflected in the Form 1. Subsequently the offender had penile intercourse with the victim, asked if she was on the pill, the answer to which was in the negative. At one point the offender stated that he was 17 years of age at the time the victim was born. It is clear from this statement that he knew the victim was only 15 years of age. The offender suggested that a liaison with him might become a regular monthly event and made other suggestions to the victim of a sexual nature. At one stage, after asking her age and being advised that she was 15 the offender prophetically said, "I'm likely to get locked up for this".

Some time later the offender withdrew his penis and ejaculated. Further conversation of a sexual nature took place culminating in the offender saying to the victim " there's not going to be any tears tomorrow is there? And it's our little secret". The offender went and showered; the victim fell asleep on the lounge. Later the other occupant of the premises and some other people returned. Eventually the victim left the premises and returned in the company of her father and two other persons to her place of residence in Mosman. The Plea

The offender was first charged to appear before Court on 21st May 2009. He duly appeared. In the unusual circumstance of the brief having already been served by the DPP the Court made orders for a Case Conference to take place and, if necessary for any submission to be made pursuant to Sections 91 and 93 of the Criminal Procedure Act to be filed before the return date. A Case Conference duly took place. The Court record indicates that subsequent thereto negotiations took place between the DPP and the offender and his lawyer. On 27th August 2009 the offender entered a plea of guilty to one of the charges. The offender also signed a Form 1 filed by the DPP pursuant to Section 32 of the Crimes (Sentencing Procedure) Act 1999.

It is clearly the case that the offender enters a plea of guilty before the Court at the earliest opportunity. The principles set out in R -v- Thomson & Houlten (2000) 49 NSWLR 383 and R -v- Borokowski [2009] NSWCCA as to the utilitarian value of such a plea would ordinarily apply as a consequence and require the court to identify the utilitarian value in percentage terms within a range of 10-25%. It is fair to say that in the ordinary course the offender would have been entitled to a significant discount. His plea however is affected not so much by the common law principles or Section 22 of the Crimes (Sentencing Procedure) Act 1999 but by the Criminal Case Processing Trial Act 2008. This legislation governs the manner in which indictable offences, whether dealt with on indictment or summarily are to be approached in terms of the application of a quantified statutory discount regime.

Case Conferencing is an administrative process legislatively authorised at the Downing Centre and Central Local Courts. In part the legislative purpose is to evaluate the effectiveness of establishing a regime for negotiation between the prosecution and the defence in matters that are amenable to the jurisdiction of the District Court and to provide a hierarchy of discounts for the entry of a plea of guilty, the timing of the plea and the jurisdiction in which the plea is entered.

In these proceedings Case Conferencing Orders were made on 21st May 2009. Subsequently, on 27th August 2009, a case conference having been completed, a plea of guilty was entered.

As a matter brought to plea within the Case Conferencing environment certain statutory consequences flow. Section 17 of the Criminal Case Conferencing Trial Act provides, inter alia:

"(1) if an offender pleaded guilty to an offence at any time before being committed for sentence the sentencing court must allow a discount for the guilty plea calculated as follows: The discount is quantified at 25%.

"Sentencing Court" is defined in Section 3 of the Act to mean "the court imposing a penalty in relation to the offence…" This definition together with the introductory words within Section 17(1) makes it clear that the Local Court is a sentencing court for the purpose of the Act. Having entered a plea of guilty prior to committal the offender is consequently entitled to a separate statutory discount of 25% on the appropriate sentence. This outcome is separate from any mitigation of penalty resulting from consideration of the provisions of Section 21A(3) and the subjective features relevant to the offender and the offending. The objective seriousness of the offence

It is manifestly obvious from the agreed facts that the offender used his life experience and alcohol to impose himself on the victim. The coexistence of the condition of alcoholism and probable associated depression do not in any way detract from the nature of his conduct. There are clear inferences from within the facts that point to the offender slowly moving towards his intended purpose of engaging sexually with the victim. 20. Despite the fact that the victim's father, unwisely by any objective consideration, permitted his daughter to have a limited amount of alcohol the offender plied her with more. This was not an act of social generosity. The clear inference arises that it was intended to increase the possibility that she might succumb to his desire by reason of the known disinhibiting capacity of alcohol. The nature of the conversation in part was directed towards exploring her relationships and sexuality. The positioning of the offender on the lounge where she had been seated was intended to bring him into close physical proximity and his conduct thereafter in lying on top of the victim, kissing her, performing the sexual act that is contained within the Form 1 and thereafter engaging in penile sexual intercourse represents the culmination of the manipulative exercise of his greater maturity and experience directed towards a young and vulnerable victim. Other aspects of the agreed statement of facts point to an ongoing focus on bringing the victim into a relationship of ongoing sexuality. To her credit she rejected his suggestions.

Unthinking members of society may suggest that there is nothing in the offender's conduct to suggest that what he did was against the victim's consent. They would be wrong and it is not to the point. Section 66C of the Crimes Act is protective in its purpose. The provisions are concerned with protecting young children from a range of experiences they may be required to confront in circumstances where their emotional, psychological and physical development is incomplete and the power imbalance between the child and the adult unreasonably favours the adult. The difference between the maturity say of a 25-year-old woman and a 15-year-old girl in each of these areas is significant. As clearly set out in Section 77 of the Crimes Act 1900 consent is no defence to an offence under this section. This highlights the legislative policy purpose in protecting the young. The approach is one that has been acknowledged by Courts in all jurisdictions over many years.

In R -v- Zapalla NSWCCA 5 November 1991 the court observed, inter alia: " One begins with the proposition that our community views with great concern the sexual molestation of children by adults and that has been acknowledged by the legislature in providing for greater penalties when the victim is under 16… That acknowledgment has been in our legislation over a long period of time. Little children are entitled to grow up free from defilement by sexual predators and free from risk of psychological upset, confusion and difficulties in later life caused by such conduct.

The law has always sought to protect young children against sexual predators particularly adult men. The law recognizes of course that as young girls grow up there is an inevitability of contact with sexual overtones and more with members of the opposite sex of the same age or a little older and that is simply one of the facts of life. But when it comes to the case of an adult male past middle age tampering with girls of twelve and thirteen years of age the crimes become crimes of enormity."

In these proceedings the offender is approaching middle age and the age of the complainant at 15 is a greater age than the example referred to in Zapalla but the remarks are still relevant. The age difference between the offender and the victim at the time of the offences was 17 years. The power imbalance produced by that difference is significant.

That the offender's conduct proceeded in these circumstances and against his own self-warning " I'm likely to be locked up for this" underscores the reprehensible nature of his criminal behaviour. The two instances of conduct by the offender are in my view within the middle range of objective seriousness but only on the bases of the age of the offender being closer to 16 and there having been two acts of criminality rather than more episodes. Although one offence is contained on a Form 1 the Court is nonetheless required to reflect both acts of misconduct in the one sentence.

The criminal justice process exists for the protection of the community. So much is clear from Section 3A(c) and (g) of the Crimes (Sentencing Procedure) Act 1999 and from the common law. The need to protect children under a certain age is manifest. They represent the future of our society and for the reasons set out above cannot be expected to either protect themselves or be the determinant of what is or is not acceptable within society at large.

In terms of the statutory considerations relevant to aggravation within the Act I am of the view Section 21A(2)(g) is applicable in this matter. I believe the harm to the victim comes within the ambit of substantial. This much is made clear in my view from a reading of the Victim Impact Statement tendered by the Crown. Outside this document it is obvious from the fact that the victim complained of the offender's conduct firstly to a friend, then to her mother and confirmed it to police that it had a significant impact upon her. It is undoubtedly the case that the offender's criminal self-indulgence has created an unwelcome series of memories for the unfortunate victim.

The sadness and disappointment reflected in the victim's statement, the clear long term difficulties created for her by the offender could not fail to touch the heart of any reasonable and right minded member of society. Irrespective of any penalty the offender may suffer from this Court the consequences of his criminal behaviour will endure both within the memory and diminished quality of life of the victim and others with whom she is associated for many years to come. The victim impact statement is relevant for the purpose of Section 3A(g) - the statutory requirement to recognize the harm done to the victim of the crime and the community.

Realisation on the part of the victim that she had been taken advantage of in circumstances where the calculated and deliberate use of alcohol had brought about involvement in an activity that is unlikely to have occurred at all had she been in possession of her wits cannot make the memory of the event any easier. Children depend upon adults, particularly those to whom some measure of trust has been given to act in the interests of the child, not on their own self-interest. I have no doubt that the conduct of the offender will again and again at least in the short term cause the victim to question adult behaviour. Mitigating factors 29. Sentencing an offender requires a Court to take into account not only the aggravating factors and objective seriousness of the conduct but also those that may count in favour of an offender. I have already referred to the plea of guilty and the discount it attracts in a matter brought to finality within the ambit of the Criminal Case Conferencing trial.

The penalty is mitigated by reason of the absence of any significant antecedents on the part of the offender. The Crown informed the Court the offender had no prior antecedents. The Pre Sentence report contains a reference to a prior drink driving matter in the State of Queensland. No date is given for this offence. Whilst in Tsakonas -v- R [2009] NSWCCA 258 it was established that driving offences could be taken into account as previous convictions for the purpose of being an aggravating factor the absence of specificity and the apparent severity of penalty warrants a conservative approach in relation to this disclosure.

For the purpose of sentencing in this matter I am prepared to find that the self disclosed matter in another state does not prevent the court from finding that the offender "does not have any record (or any significant record) [my emphasis] of previous convictions" such that he comes within the ambit of Section 21A(3) (e) of the Sentencing Act. Whilst such a conclusion may be regarded as outwardly favourable to the offender it is qualified in terms of the ability to mitigate penalty by reason of the view of the Court that general deterrence is of such importance of matters of this nature. The authority for this approach is to be found in R -v- Kennedy [2000] NSWCCA 527 at [21]-[22].

In these circumstances the offender can rely on his previous good character but to a limited extent only. He may also rely on the conclusion drawn by the Court that he is unlikely to re-offend and there are good prospects for rehabilitation. For reasons to do with behaviour of the offender since being charged with these offences the Court is also prepared to accept there is a significant degree of remorse on the offender's part. There is information before the Court that this event may have provided somewhat of a catalyst for long overdue change within the behaviour and attitudes of offender.

The psychiatric and Pre Sentence reports disclose a long-term history of alcohol abuse. Like so many offenders appearing before this Court the offender proffers the view that his conduct and his decision-making processes were skewed by his consumption of alcohol. With respect to the offender, that is an explanation not a justification and one that warrants necessary caution in terms of acceptance for obvious reasons.

The facts disclose a nascent desire for the victim formed during the picnic. Common sense informs that his subsequent conduct, whether fuelled by the disinhibiting nature of alcohol or otherwise was the carrying out of a hastily constructed plan to achieve his desire. The observation made by the victim's father upon his return that the telephone was off the hook may well be regarded as an indication of a desire not to be distracted from the pursuit of his objective. Further, his comment during the commission of one of the offences shows that his mind was not so clouded by alcohol as to prevent him from knowing full well the gravity of his behaviour yet he proceeded nonetheless.

Since this event however he has undertaken psychological counselling. The report discloses an involvement with Alcoholics Anonymous together with positive reinforcement and ongoing support from a network of friends. These facts are established in documents tendered to the court. All these steps are encouraging. The offender would do well to maintain his commitment in all areas beyond the end of the sentencing process. The Sentence

I have set out the facts, relevant statutory considerations and the subjective factors relevant both to the issue of objective seriousness of the offender's conduct [including that in relation to the matter contained on the Form 1] and to the personal circumstances of the offender because all are part of the mix that leads towards what the Court considers to be an appropriate sentence for the offending. It was not argued before this Court that the offender is deserving of a sentence towards the lower end of the range of options available under the Crimes (Sentencing Procedure) Act 1999. This approach is sensible given the nature of the offending.

The attention of the Court was drawn to sentencing statistics contained within the resources of the Judicial Commission of New South Wales. Counsel for the offender also produced a number of sentencing decisions from superior courts. The latter although helpful are also reflected within the sentencing statistics of the Judicial Commission. Although necessary caution needs to be given to such statistics they can be useful in identifying patterns of sentencing in relation to discrete offences. I am however, mindful of the observations made by the Court in R -v- Bloomfield (1998) 44 NSWLR 734 regarding the principles to be applied in considering them in particular cases.

I accept that the statistics presented identify a wide range of sentencing options exercised within the jurisdiction of the local Court in recent years. Predominantly however the statistics highlight the reality that in 60% of cases imprisonment has been the ultimate penalty imposed, whether in the form of full time imprisonment or suspended sentences. More significantly, although the sample is small, in instances where there has been more than one offence, as is the situation in these proceedings 90% of sentences result in an initial determination that imprisonment is appropriate.

Ultimately however the sentence in these proceedings is not to be determined by statistical analysis other than for the purpose of ensuring a measure of consistency in outcome. The tenor of my remarks thus far make it clear that the sentence to be imposed for the combined acts of the offender cannot be one that would be viewed by the wider community as mercifully weak. To take such an approach would be to abandon the purpose of denunciation and deterrence. The message to the community would become confusing and unhelpful.

In matters of this nature general and particular deterrence are of paramount importance. These twin realities together with the other purposes of sentencing, particularly acknowledgment of the impact of such crimes on victims, need to be properly recognized against a background where in recent times the penalties for sexual assault offences have been increased by Parliament. The consequence of increased penalties was considered in R -v- Way (2004) 60 NSWLR at [52] where the court said, inter alia: "Traditionally any intention on the part of the legislature that the offence should attract a heavier sentence has been manifested by an increase in the statutory maximum. The courts are expected to recognize and reflect that intention when sentencing offenders for offences after such amendments are made." The penalty for this offence was increased from eight to ten years in 2003.

Against these circumstances counsel for the accused submitted that the underlying conditions of alcoholism and depression identified in the Psychiatric report militate against an emphasis on general and specific. I assume counsel was referring to the decision of R -v- Sconamiglio (1991) 56 A Crim R 81 in addition to his reference to R -v- Israel [2002] NSWCCA 255. Both these decisions of principle refer to the exercise of discretion to reduce the importance of general and specific deterrence in circumstances where the offender's conduct may be explained by his mental condition at the time.

In R -v- Israel at [23] the Chief Justice said: "to the extent that mental illness explains the offence then an offender's inability to understand the wrongfulness of his actions or to make reasonable judgments or to control his or her faculties or emotions will impact on the level of culpability of the offender, even where the illness does not amount to an excuse at law."

The degree of consideration to be given to the existence of a mental disorder or abnormality relative to the commission of the offence will not always result however in a reduced sentence R -v- Engert (1996) 84 A Crim R 67.

In R -v- Wright (1997) 93 A Crim R 48 at [50 and [51] in considering the weight to be given to the existence of mental illness the Court said: "considerations of general (or even personal) deterrence are not rendered completely irrelevant and the significance of an offender's mental incapacity is to be weighed and evaluated in light of the particular facts and circumstances of the individual case." And further at [51] "But if the offender acts with the knowledge of what he is doing and of the gravity of his actions the moderation need not be great." As already noted it is readily apparent to the Court that despite the underlying circumstances identified in the psychiatric report the offender was clearly in control of his decision-making processes and well aware that what he was doing was wrong. What other conclusion can be reached when considering the words "I'm likely to be locked up for this". I reject the submission that general (and personal) deterrence is materially weakened by the circumstances of the offender's condition as set out in the psychiatric report. General deterrence remains undisturbed as the paramount consideration on sentence in these matters. 41. As is required I have considered the admonition contained within section 5 of the Sentencing Act. In balancing the competing factors I come to the conclusion that no other alternative sentence than one of condign punishment can properly reflect the objective seriousness of the offender's conduct. This is despite the efforts he has taken to address both his alcoholism and underlying psychological issues. Ultimately however the sentence must be one that adequately punishes the crime and the offender.

The appropriate sentence for an offence of this nature categorised as being within the middle range of seriousness [including consideration of the conduct referred to in the Form 1] is a term of imprisonment for 2 years Applying the legislative discount of 25% for the utilitarian value of the plea the resulting sentence is one of 1 year and 6 months.

It is important at arriving at this sentence not to overlook the potential for rehabilitation of the offender and not to impose a sentence that unnecessarily curtails the prospective success of his efforts thus far. However his efforts, belated though they may be, are acknowledged within the sentence as identified. Altering the offender's attitude and behaviour by addressing issues to do with causation of the offence may, with the other purposes of sentencing, avoid a repeat of the conduct and by so doing protect the community in the future. Where this is probable the Court has an obligation to the community in a protective capacity to attempt to facilitate such a change in behaviour, but not to the exclusion of properly reflecting the expectations of society in punishing this type of conduct.

In these circumstances there is a need to provide for an appropriately lengthy period of parole to enable ongoing supervision and rehabilitation. It is within the sentencing discretion of the Court to find, under Section 44(2) of the Act that special circumstances exist to warrant a departure from the standard relationship between the head sentence and the non-parole period. I find that such circumstances do exist.

I do not believe that it is appropriate that the sentence for these acts of the offender warrants an order for Periodic Detention. The need for general deterrence in offences of this nature is in my view paramount. Observations made by the Court in R -v- Taylor [2000] NSWCCA 442 persuade me that suspending execution of the sentence is not justified because of the capacity of such an outcome to undermine the paramount principle of general deterrence. Full time custody is the only appropriate result.

The order of the Court is that the offender be sentenced to a term of imprisonment of 1 year and 6 months commencing forthwith. The non-parole period is fixed at 10 months of full time custody after which the offender may be released on parole for a period of 8 months. The offender will be eligible for release on 21st October 2010. Release on parole is to be subject to the supervision and direction of the Probation and Parole Service and is to include:

1. Referral to the Department of Community Services Forensic Psychology unit for treatment in their low risk group;
2. Supervision by the Service with a view to monitoring continued stability, maintenance of abstinence and continued engagement with treatment and involvement with Alcoholics Anonymous;
3. Continued engagement in psychotherapy either with his psychologist and or attendance group psychotherapy if found suitable for such an option following assessment in accordance with order 1.

Graeme Henson Chief Magistrate 22nd December 2009

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