R v AS

R v AS - [2017] NSWDC 153 - NSWDC 2017 case summary — Zoe

[8]

Counts 1 and 2 (complainant NH)

On 1 April 2010, NH (DOB: December 1996), came to stay at XXX, Raymond Terrace with the offender and TH. NH was 13 years old. At this time TH was pregnant with the twins. TH was really good friends with NH's mother, VH-S. She offered to have NH stay at her house until such time as V could find appropriate accommodation for herself, her daughter and 3 foster children that she was caring for at that stage. NH had previously been living with her father.
NH remained living at the house for 5 or 6 weeks.
On one occasion whilst she as living with the offender she was sitting out the front of the house having a cigarette. The offender came outside and asked NH if he could have a cigarette. She said, "Yeah sure."
The offender said, "But I have to go round the corner to have it because I can't let TH see me smoke." It was dark at this time.
The offender went with NH around the side of the house to a driveway area. NH then described that "he just got me to lay down" (Q&A 70, Exh A). She could not remember how that had happened. The offender then pulled her shorts and underwear to the side and digitally penetrated her vagina (Q&A 80-93,Ex A)(Count 1) . She said, "I was just laying back closing my eyes, just going like, what the fuck" (Q&A 98, Ex A). The offender also performed cunnilingus on the complainant (Q&A28-32, 96-112,Ex A)(Count 2). She was asked whether she said anything to the offender. She said, "Too scared, just too shocked, like, what is going on, like, I didn't know what to do or what to say or anything, like, I don't know."
The complainant did not tell anyone about what had happened and she remained living with the offender and TH for several weeks.
Whilst she remained living with the offender he "always said he was going to have sex with me". She told him, "Well, you're not". (Q&A138, Ex A). The offender also told her, "Your pussy tastes good" (Q&A179, Ex A). She was asked: Q: "How did all this make you feel?" A: "I don't know, like, it was my fault, I guess."
The complainant did not tell anyone about the incident until 2012 when she told her then boyfriend, JG, who encouraged her to tell her mother. After telling her mother the matter was eventually reported to police. NH was first interviewed by police on 23 January 2013.

[11]

Counts 5 and 6

On another occasion when the complainant was still living with the offender she was out in a back verandah room playing the Playstation. It was about 11.30pm (Q&A 338, Ex C).
She described the following: "We were mucking around when I was playing the Playstation when he tug of warred it….And that was when, the first time that his hand went in between my legs and he, when his hand went up my shirt. And then he sat down and that's when he had his legs open" (Q&A333, Ex C).
She described the offender tickling her and then his hand went underneath her singlet top. She was wearing a singlet top with her pyjama shirt over the top. The contact was skin to skin (Q&A220). She described that he touched her on her breasts for "probably about a minute or two, 'cause I was pulling his hand away, because after that he put his hands down in between my legs". (Q&A227, Ex C) She later clarified it was her right breast that had been touched (Q&A 238, Ex C).
She said that whilst this was happening the offender was laughing and she was trying to push him off and saying, "No, no, please don't do that." (Q&A241, EX C).
In relation to the offender placing his hand between her legs and on her vagina she described it as follows: "He pushed his hand down and went up and touched me, and with his fingers he'd actually push on me down there and rub on me" (Q&A249, Ex C)
She described that the offender touched her vagina. The contact was not skin to skin but on the outside of her pyjamas (Q&A 250, Ex C).
She was 14 years old when this incident occurred (Q&A 280, Ex C)
The complainant did not disclose any of the inappropriate conduct until she told her grandmother around Australia Day in 2012, and her father AH in November 2012.
In January 2013 the relationship broke down between the offender and TH (for reasons other than the disclosure of the conduct alleged). Shortly thereafter the allegations made by SH were reported to police. She was interviewed on 23 January 2013.
The offender was arrested on 21 January 2014 in relation to the allegations made by NH. He participated in a record of interview and denied the allegations. He was subsequently charged with the allegations in relation to SH.

[13]

VICTIM IMPACT STATEMENTS

The Crown tendered on sentence a victim impact statement prepared by each complainant (see EXH 'A' on sentence). Both complainants show a significant degree of maturity and insight in relation to the effects of the offending upon them.
NH outlined the difficulties she experienced in her teenage years as a result of the offending including the impact of the offending upon her emotional stability, abusing alcohol and drugs (her motivation being to "numb myself"), missing school and constantly feeling "down and depressed".
She attended counselling in 2013 however described that "I could never allow myself to open up because I had always felt like I was to blame and now I know I am not".
She also described ongoing difficulties she experiences being around males and the efforts she has made to overcome the emotional impact of the offending.
SH outlined the extent of the impact that the offending has had upon her life. She described the impact as "severely distressing and profound". She described how it has affected every aspect of her life and such effects are ongoing. The effects included self-harming, abuse of alcohol and prescription drugs, being diagnosed with both anxiety and depression, and difficulties with establishing relationships with others. She described that the ongoing effect in the following terms: "Four years later and the impacts of the sexual assault still take up so much of my time and energy on a daily basis, there is not a day that goes by where what was done to me does not interfere or limit the life I lead in some way. Sexual assault has destroyed me in many ways, of who I was and of whom I am today. I have lost so much from this and most of those losses come straight down to who I was, my life has been set on a completely different path to the one I could have taken had I not been assaulted."
It is wholly apparent that in relation to each complainant that one of the central issues they have struggled with throughout the years since the offending is their perception of the significant betrayal of trust by the offender. NH stated: "When I first came to live with AS I was at a time in my life when I needed guidance and you took advantage of that and the trust a child has in adults and my mother's trust. I can never believe in adults and see them the same way again."
SH stated: "I had put both my trust and faith within AS, in fact I saw him like a second father figure. Every day now is a battle and I struggle to remember what life was like when something like my safety can be taken for granted."
Courts now well understand the significant effects upon victims of sexual offending. In R v Nelson (2016) NSWCCA 130 Basten JA stated as follows: "Early sexual relationships with adults will often exploit and exacerbate a precarious sense of self-worth and self-respect in the victim, which may have lifelong consequences, including an inability to form stable partnerships in adulthood and possible self-destructive behaviour."
One of the purposes for which a court imposes a sentence is to recognise the harm done to the victim of the crime (see s3A(g), Crimes (Sentencing Procedure) Act, 1999).

[16]

Counts 4, 5 and 6

Counts 4, 5 and 6 have an applicable standard non parole period of 8 years.
In relation to count 4 the Crown and Mr Marr on behalf of the offender have submitted that the offending is towards the lower end of the range. I assess the objective seriousness as being below the middle of the range and towards the lowest end of objective seriousness having regard to the age of the complainant; namely 13 or 14 years old (noting that the offence relates to children aged 0 - under 16 years), the nature of the physical contact (rubbing the complainant's breast on the outside of her bra); the duration of the offending (relatively short occurring during a game of tickling).
In relation to count 5 the Crown has submitted that the offending is in the middle of the range of objective seriousness. Mr Marr on behalf of the offender has submitted that it is just below mid-range. I assess the objective seriousness as below the middle of the range but above the lowest end of objective seriousness having regard to all of the above mentioned common factors and taking into account that the nature of the physical contact, namely, touching the complainant's right breast underneath her singlet top (skin to skin contact) for a period of one to two minutes.
In relation to count 6 the Crown and Mr Marr on behalf of the offender have submitted that the offending is towards the lower end of the range. I assess the objective seriousness as being below the middle of the range but above the lowest end of objective seriousness having regard to all of the above mentioned common factors and taking into account the nature of the physical contact namely, rubbing the complainant's vagina on the outside of her pyjamas.
In relation to the sentencing for sexual offences against children, the Court notes the remarks of Lee J in R v Dent (unreported NSWCCA 14/3/91): "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……." "Little children are entitled to grow up free from defilement by sexual predators and free from risk of psychological upset, confusion and difficulties later in life caused by such conduct" (at p8-9)

[21]

OFFENCES IN RELATION TO SH COULD HAVE BEEN DEALT WITH AT THE LOCAL COURT

It has been submitted by Mr Marr on behalf of the offender that the Court should take into account on sentence that counts 4, 5 and 6 are Table 1 offences and would have been dealt with in the Local Court had the Crown not made an election. The available maximum penalty in the Local Court was 2 years because of the jurisdictional limit.
I understand the background is that count 4, 5 and 6 were listed for hearing in the Local Court. The hearing date was vacated after the Crown decided to rely on the evidence of SH as tendency evidence in the trial of counts 1, 2 and 3 concerning NH.
The relevant principles were summarised in R v Palmer [2005] NSWCCA 349 where Hall J (with whom Grove J and Smart AJ agreed) dealt with a ground of appeal that the sentencing judge had failed to take into account the fact that the offences were capable of summary disposal. He summarised the principles as follows: The first is that a judge in the District Court is not bound by the jurisdictional limit imposed on the Local Court when dealing with an offence on indictment which was capable of summary disposal, but may have regard to that limit when the case is one which could appropriately have been disposed of in the Local Court: Regina v. Crombie [1999] NSWCCA 297 at [16]; Regina v. LPY (2002) 136 A. Crim. R. 237 at 240 and Regina v. El Masri [2005] NSWCCA 167 at [30]. Secondly, the fact that a matter could have been dealt with in the Local Court, had the prosecuting authority not elected otherwise, remains a relevant consideration in the exercise of the discretion reserved to the sentencing judge:Crombie (supra) at [15]. Thirdly, however, the relevant decisions that establish that principle do not go so far as to require the sentencing judge to proceed upon the basis that the maximum available sentence is that which could have been imposed in the Local Court. At most they establish that the circumstance identified is to be taken into account. Depending upon the objective and the subjective criminality of the offender, it may properly be regarded as calling for some mitigation of the sentence that would otherwise be imposed in the District Court for an offence prosecuted upon indictment. Where it appears that that circumstance has been entirely overlooked by the sentencing judge, it may properly justify the granting of leave to appeal: Crombie (supra) at [16]. Fourthly, the significance of the loss of the chance of the matter being dealt with in the Local Court varies from case to case. In some cases it would contribute to mitigation of sentence. It is a matter to be taken into account, but is not a universal factor for the reduction of sentence: Regina v. Doan (2000) 50 NSWLR 115. Fifthly, the failure by a sentencing judge to mention the matter in his or her remarks on sentence and the length of the sentence does not necessarily establish that the sentencing judge failed to have regard to the matter. In some circumstances the length of the sentence may not suggest that the matter was overlooked: Regina v. Depoma [2003] NSWCCA 382 at [17]. Finally, in circumstances where a sentencing judge has made no reference to the summary disposal argument in his or her remarks on sentence, it is necessary to consider whether that omission is indicative of error. One way of testing that proposition is to consider whether the sentence itself appears manifestly excessive in all the circumstances of the case - if the factor had been taken into account and given appropriate weight, a substantially lesser sentence was appropriate in the case: El Masri (supra) at [45] per Johnson, J. (with whom Hunt, AJA. and Hulme, J. agreed). (emphasis added)
Having regard to the facts in the present matter I am satisfied that it is a proper matter in which I should take into account that the offences were capable of summary disposal and I propose to do so.

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Cases Cited (7)