On the night of 21 July 2013, BG who was born on in 1968, took his then 15 year old stepson to Singleton, and in a motel room committed a series of sexual offences which lead to him appearing for sentence today on the following counts.
First, a count of aggravated indecent assault under s 61M(2) of the Crimes Act 1901, which carries a maximum penalty of ten years, with, what has been described as the anomalous standard non-parole period of eight years.
Secondly a charge under s 66C(4) of the Crimes Act of aggravated sexual intercourse with a child between 14 and 16 which carries a maximum penalty of 12 years imprisonment.
Thirdly, a count under s 61O(1) of the Crimes Act of aggravated inciting an act of indecency, which carries a maximum penalty of five years with no standard non-parole period.
Finally, a count under s 61J(1), of aggravated sexual assault. It carries a maximum penalty of 20 years imprisonment, with a ten year standard non-parole period.
All of those maximum penalties and where applicable its standard non-parole periods are important legislative guideposts or yardsticks to be taken into account in the sentencing process.
He pleaded guilty on the day of the trial being listed earlier this year, and in my view, a 10% discount on a term of imprisonment should be allowed for the utilitarian value of those pleas. It was conceded by Ms Cusack of counsel that a significant period of full time custody is required and it is unnecessary for me to consider any alternative forms of punishment.
I have to take into account the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 in the sentencing process.
He was taken into custody after his arrest on 16 March 2018, then granted bail some months later. His bail was revoked on the entry of his pleas and it is common ground that he has served six months in custody, and that the term of imprisonment should commence on 15 December 2018.
In short, as the Crown summarised it, the victim and the offender travelled to Singleton from Lismore in order to retrieve the offender's truck which was being repaired. They stayed the night in a motel room. The trip was suggested by the offender and was the first time the offender had taken the victim away on a trip. The victim's mother supported the suggestion, believing that the trip would help the offender and the victim form a bond. The offences were accompanied by intimidation to keep the acts secret.
The victim only disclosed the matters in September 2017 when he was 19 years old, after the offender had separated from his mother and moved out of the family home.
In 2013 the victim was in year 10 at high school and the offender, his stepfather, was working as a truck driver. On the night of the offending, they went to the Mid City Motor Inn in Singleton and checked into a room with a single and a double bed. They went across the road to the hotel and the offender consumed some alcohol, including four bottles of beer. He offered a beer to the victim, who had a few sips but he did not like the taste.
They were lying on their separate beds watching television and the offender told the victim to get a box out of his bag. He found the box and held it up and it was a box of condoms. The offender took a condom out of the box and handed it to the victim and told him to put it on. He said "You're starting to get to an age where you need to know these things".
The victim pulled his underwear and trousers down under the bedcovers and rolled the condom onto his flaccid penis and he felt confused and uncomfortable. The offender told him to come over to his bed and he inspected the victim's flaccid penis and then the offender played a pornographic video on his computer and the video was of two men and a woman having sex but the victim remained flaccid.
Count 2 on the indictment, the aggravated indecent assault under s 61M(2), relates to the offender saying "Let me have a look". He used his right hand to inspect the victim's penis by holding it and looking at it while the condom was on. He said "You should be able to get it hard easy at your age" and the offender shook his head in disbelief that the victim couldn't form an erection. The victim took the condom off at some stage.
Count 4, the aggravated sexual intercourse under s 66C involves the offender leaning over and taking hold of the victim's penis with his right hand and putting his mouth over the victim's penis, to which the victim said "Wow what the fuck" and he felt worried and scared. The offender sat back and he said "What did you say?" and the victim said nothing as he was fearful for getting into trouble for swearing, which had previously happened.
The offender then said "The tongue is delicate and when it's on your penis you should be able to get it up easily". The victim asked if he could go back to bed and the offender said "No you need to learn this" and the victim then asked if he could try to get an erection by himself in the shower and he went into the bathroom and shut the door and masturbated his penis to get an erection. The offender came in, the victim told him to get out but he would not and the offender said "I don't know what's wrong with you, just go to bed".
Count 6 on the indictment is the inciting a person under the age of 16 to commit an act of indecency in circumstances of aggravation, involved the offender saying to the victim "You need to do what I did to you so you know I won't tell anyone". The victim understood the offender meant that he wanted the victim to suck the offender's penis.
The victim insisted he would not tell anyone but the offender would not accept this and said "I'm not going to ask you again". He stood between the two beds wearing boxer shorts and a T-shirt and the victim got out of bed and the offender pulled his pants down, revealing his semi-erect penis. They were standing face to face, the offender said "Righto", the victim said "I won't tell anyone".
The offender said "I'm not going to ask you again just do it" and the victim was in fear that the accused might hit him or even kill him if he did not comply. The victim replied "I'm just going to put my mouth on it and straight off" and the victim got on his knees and prepared himself to suck the offender's penis but he felt as if he was going to throw up and he said "No I can't do it". The offender replied "Righto if you can't do it, you don't have to do anything, get on the bed" and the victim said "I'm not going to tell anyone".
Count 7, the aggravated sexual intercourse without consent under s 61J(1) involved the offender demanding the victim get on the double bed and pull his pants down, the victim said "No". The offender demanded that he do it with an aggressive tone in his voice. The victim kneeled on his bed, pulled his trousers and underwear halfway down to his knees and the offender pushed the back of the victim's neck, forcing his head onto the bed with his neck stuck in the side position.
The offender inserted his penis into the anus of the victim and thrust it in and out forcefully for a couple of minutes, causing the victim pain. The victim said nothing. The offender kept the pressure on the victim's neck with his hand and withdrew his penis and ejaculated on the back of the victim's upper left thigh.
The Form 1 matter of intimidation involved the offender saying to the victim "If you ever tell anyone this I'll do things to you that you wouldn't imagine, go and shower and wash it off". The victim went to the shower and washed himself off. He could see semen on his leg. He was in disbelief as to what had happened. The victim finished showering, got dressed and went to his bed. He was scared, he wanted to leave the motel room and run away but he thought the offender may beat him up or kill him.
The next morning the offender woke up, the victim was already awake and the offender said "I'll get a taxi and we'll check out and go pick up the truck" and they got the truck and returned home. The victim wanted to tell someone, but he was scared of the offender's threat. He did not want the offender to harm anyone and he felt he may not be believed, so he told no one. The pair communicated in the following years, but the victim kept communication to a minimum.
After the offender and the victim's mother separated, the victim felt that he could tell his mother about the offences. On 16 September 2017 he reported to his mother, and on the next day he attended Lismore Police Station. Police applied for a Supreme Court warrant for a listening device and recorded a phone call on 27 February 2018, where the victim recounted the night of 13 July 2013 in graphic detail to the offender but the offender made little comment and said multiple times that they should speak in person.
On 2 March 2018, the victim met the offender at a public place as arranged by text message. He was wearing a lawfully authorised listening device. He again spoke about the offences committed in 2013 and the offender spoke at length in reply. He provided explanations and suggested alcohol and prescription Prednisone medication played a role.
He said "I didn't do it to hurt you, you might find this hard to believe or to understand that I actually wanted to be closer to you than anyone else". He also indicated that exactly the same thing had happened to him but he conceded that he had never asked that person why he had done it. He said "You know you and I have never spoken about that night ever since and I feel guilty and I've tried to make it up to you in so many ways".
He also said:
"It was in the heat of the moment but obviously what I thought or was thinking at the time, yes I feel guilty and I can't honestly answer you whether I was trying to protect you or share something with you to be closer to you. I'm not blaming, I'm not going to blame 100% the alcohol or the Prednisone or everything, it just happened, that's the best I can explain it."
He said:
"Do you want to hold that one night against me that I fucked up because as I said, I can't take it out of your mind, I can only offer you that explanation."
Police arrested the offender on 16 March 2018. He participated in a recorded interview in which he agreed that he went on a trip to Singleton with the victim and stayed the night in a motel but he denied the sexual allegations. He agreed that he had spoken to the victim by phone on 27 February and in person on 2 March and he claimed that when the victim spoke to him about the offences in person, he denied that he committed the offences. This was despite being told that the conversation was recorded and he did not appear to deny any of the offences at any time and, in fact, expressed guilt and remorse during a lengthy conversation of about an hour.
The only matters on the offender's criminal record are two convictions for PCA in 1995 and 2001.
A victim's impact statement was read by the victim's mother. The weight which the Court should give to the statement is a matter that is not clearly specified in the legislation but as Basten JA said in R v Thomas [2007] NSWCCA 269:
"…it will often be appropriate to give weight to a victim impact statement where the conduct of the offender is otherwise established beyond reasonable doubt and the statement is restricted to subsequent effects on the victim".
This statement falls into that category and I take it into account in that way.
The offender did not give evidence and the histories contained in various documents have not therefore been adopted or subject to testing and are therefore treated with some caution as outlined in authorities such as R v Qutami (2001) 127 A Crim R 369(. However, the history provided by the offender is relevantly consistent with other objective material and is a reasonable basis upon which to proceed to sentence, notwithstanding the cautions to which I have referred.
There is a very lengthy history taken by a psychologist, leading to a report of 20 May 2019. A subsequent report was prepared by the same psychologist on the basis that there had been an intern present during the initial interview, which resulted in some discomfort and unwillingness of the offender to disclose some matters. What he disclosed in the second interview was an assertion of himself being a victim of child sexual abuse, but as Ms Cusack correctly acknowledged, she cannot go so far as to assert that that had any causative role in this offending.
In summary, his history is that he was the youngest of five children born in Parramatta. He described a positive home life and denied exposure to family violence, physical abuse, neglect or parental substance abuse. He had a close relationship with both is parents through childhood. Neither of his parents had abused illicit substances or had contact with the criminal justice system. He has a close ongoing relationship with his father and his mother has passed around the time of his current offending. His parents have been pro social influences during his life. He said that he lived with his parents on a farm in the Central Coast for about 14 years before moving out when he was 35. He had a regular history of employment and no significant history of substance or alcohol abuse or problematic gambling. He was in a long term relationship with a partner for 15 years after the age of 34 and he denied any infidelity or violence.
He reported a heterosexual orientation and no abnormal interests. He provided the psychologist with an ambiguous explanation of his offending and demonstrated limited insight into the causal factors. He said that he was not clear of the night or what happened between him and the victim but he was also said in the Sentencing Assessment Report to claim he has no recollection of the matter, and denied the offending and that is an instance of the need for caution in adopting some of the history.
He described an increase in symptoms of mental health difficulties since being placed in custody and the psychologist diagnosed post-traumatic stress disorder and assessed him as being in the average risk category for re-offending relative to other male offenders.
His position was summarised as a person who had a stable and unremarkable early home life, denying exposure to vulnerability factors such as family violence and accompanied by a pro social connection to his parents and family.
The psychologist was unable to identify specific causal factors for the offending behaviour, given his limited insight and vague account of his offences beyond what was recorded in the listening device transcript, indicating that he was motivated by seeking connection with the victim. The disclosure of the asserted child sexual abuse in the second interview did not alter the views of the psychologist.
There are medical reports from Justice Health and other private practitioners, indicating continuing back pain due to degenerative spinal changes and some hand pain being treated by surgery.
There is a psychologist's report as to the position of the offender's son, who presented as a highly distressed and anxious 16 year old boy, when examined by the psychologist in April this year. He identifies his father as his primary patron figure and he evidently maintains his father's innocence and the psychologist expresses concerns for his immediate welfare, given the sudden change in his father's plea to the charges laid against him.
I take account of the detailed letter from the offender's son, who has been living with his father, and the effects that his father's incarceration will have upon him does constitute a matter of some potential hardship to third parties and in accordance with the authorities, will be taken into account.
I take account of the reference from his 82 year old father, who speaks highly of him, and offers him continued support. Similar references from a Mr Jackson and from Mr Redshaw, assert that the offending is out of character, given their knowledge of this man, speaking highly of him and all the referees have been made aware of the circumstances of the offending.
Ms Cusack reminded me of the Justice Health records which indicated while in custody in May 2018 that he had asserted to the Justice Health nurses that due to some question of bail, he would like to speak to a psychologist in regard to his prior work in a funeral home before prison, suggesting some issue in relation to his employment in that funeral home.
There is a slight variation in the views between the psychologist and the author of the sentencing assessment report, who says that:
"BG remains in denial of his offending behaviour and appears to lack any insight into the impact of his offending on the victim and he appears unable or unwilling to take responsibility for his actions."
Notwithstanding that, the assessment was that he had a low risk of re-offending. I have been assisted by helpful and comprehensive written submissions prepared by the Crown Prosecutor and by Ms Cusack for the offender, and there is very little contest as to the principles to be applied. As the Court said long ago in R v Way (2004) 60 NSWLR 168:
"The ultimate objective remains one of imposing a sentence that is just and appropriate, having regard to all of the circumstances of the offence and of the offender, and so as to give effect to the purposes mentioned in s 3A of the Sentencing Procedure Act."
The relevant purposes of sentencing include; to ensure that the offender is adequately punished for the offence, to prevent crime by deterring the offender and others from committing similar offences, to protect the community from the offender, to promote is rehabilitation, to make him accountable for his actions, to denounce his conduct and to recognise the harm done to the victim of the crime and the community.
Both general and specific deterrence should be reflected in the non-parole period: R v X [2003] NSWCCA 56. The non-parole period must reflect the objective gravity of the crime, taking into account the subjective features and it must be the minimum period for which the offender must be kept in detention in relation to the offence: R v Bugmy (1990) 169 CLR 525; Power v The Queen (1974) 131 CLR 623; R v Barakat [2004] NSWCCA 201.
The legislature and the Courts have stressed that sexual abuse of young children is a matter of grave concern to the community and the maximum penalties that the legislature has set, reflect the community abhorrence and concern. The age of this offender, the relative absence of a criminal record and the fact that offences may occur spontaneously are common features of many cases where children are subject to sexual abuse by adults.
A matter of prime importance is general deterrence, which seeks to make the community aware of the attitude of the Court to child sexual offences. Those who stand in a position of trust for children must be severely punished, as Yeldham J said in R v Fisher (1989) 40 A Crim R 442:
"… those who engage in this evil conduct must go to gaol for a long period of time, not only to punish them, but also in an endeavour to deter others who might have similar inclinations …"
I must take into account, where relevant, the mitigating and aggravating factors in s 21A of the Crimes (Sentencing Procedure) Act. I accept as set out in the victim's impact statement, the potential harm wrought upon the victim. In relation to counts 4 and 6, breach of trust being an aggravating feature is also an element of the offence, so it is not an aggravating factor. However in relation to counts 2 and 7, it is clearly an aggravating factor.
As the Court said in PB v R [2016] NSWCCA 258:
"There are few worse breaches of trust than breaches of trust from a parent or step-parent; parents who offend against minors is inconsistent with every notion of trust required of them
Given the inconsistent assertions from the offender in the sources to which I have referred, it is difficult to form a firm view as to whether he is truly remorseful or whether he has pleaded guilty to simply reflect a recognition of a strong Crown case. However, I did take into account that he does not have a significant record of convictions.
The prospects of rehabilitation, given the absence of further offending, are at least reasonable and the pleas of guilty of course are to be taken into account as a mitigating factor. There is no evidence as to whether the offender will be kept in protection and whether there is any particular hardship or the onerous nature of such protection.
Ms Cusack submitted that all the offending should be dealt with by way of concurrent sentences, but one must consider questions of totality and accumulation in accordance with the principles set out in Pearce v The Queen (1998) 194 CLR 610. The Court needs to strike a balance between the principle of totality and ensuring that effective punishment is imposed for each individual offence: R v Wheeler [2000] NSWCCA 34. While these offences occurred on a single evening, the gravity seemed to escalate, culminating in a violent penile-anal sexual assault accompanied by a threat to not disclose to anyone what had happened.
Reference has been made by the Crown to the recent decision of the Court of Criminal Appeal in TP v R [2018] NSWCCA 140, but as Ms Cusack puts, it is not a statement in any authority. It is simply an example of a sentencing exercise involving some similarities to this case.
I have been taken to varying iterations of the sentencing statistics by both counsel and they are, as often indicated, a blunt tool but of some limited guidance in the exercise.
Ultimately the Crown's submission was that the offending should be regarded as sexual predation on a child for the offender's own gratification on which he ejaculated on the victim after anally penetrating him, bringing the episode to a conclusion after threatening him to keep silent about what had occurred.
The fact that the offender had suggested the trip in the first place, had with him a box of condoms, played a pornographic video to the victim which he happened to have on his computer, suggests that this was not simply a spontaneous or unplanned event. The offender then threatened the victim along the lines of "If you ever tell anyone of this I will do things to you that you couldn't imagine, go in the shower and wash it off". That speaks to his clear and unambiguous understanding at the time that what he had done was seriously wrong.
I accept the Crown's submission that, although as the Court said recently in cases such as McDowall v R [2019] NSWCCA 29, it is unnecessary to place matters in a notional range of objective seriousness, this offending and particularly count 7 (s 61J), the anal sexual assault should be regarded as above the mid-range of objective seriousness.
As Ms Cusack submits in assessing the objective seriousness, one has to take account of the degree of violence, the physical hurt inflicted, the form of forced intercourse and the circumstances of humiliation. She places stress on the fact that the boy was 15 and-a-half, towards the upper end of the age range for this particular offence, there was no history of physical violence before or after this night, the threat was never repeated and nor were threats used to commit the offences, and the degree of force was minimal. The general proposition that Ms Cusack puts is correct, that the younger the child the more serious the offending. I accept that there is a basis for a finding of special circumstances, given that this is the first time in custody for this offender and the evidence suggests that there would be a benefit in an extended period of supervision beyond the normal statutory ratio.
The orders I make are as follows:
1. The offender is convicted of each offence.
2. I impose an aggregate sentence of imprisonment of 9 years, to commence on 15 December 2018 and expiring on 14 December 2027.
3. I impose a non-parole period of 6 years, expiring on 14 December 2024. The offender is eligible for release to parole on that date.
4. The indicative sentences are:
1. Count 2 (s 61M(2)) - 14 months; NPP 10 months
2. Count 4 (s 66C(4)) - 3 years 7 months
3. Count 6 (s 61O(1)) - 2 years, 5 months
4. Count 7 (s 61J(1)), taking into account the Form 1 matters (006) - 6 years, 3 months; NPP 4 years, 4 months
1. I find special circumstances.
Note - These extempore remarks were revised without access to the court file
[2]
Amendments
12 August 2019 - Anonymise quote at [45].
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Decision last updated: 12 August 2019