R v Callaghan

Determination

The Court is required, in determining an appropriate sentence or sentences, to synthesise a number of competing factors. The purposes of sentencing as expressed in s 3A of the Crimes (Sentencing Procedure) Act 1999 include ensuring that an offender is punished for his conduct, the deterrence of crime both generally and specifically with regard to an offender, the protection of the community, the promotion of an offender's rehabilitation, ensuring the accountability of an offender for his actions, the denunciation of the conduct, and also recognition of the harm done to victims. As was observed by the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465 at 476: "…sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions."
I of course remind myself that the maximum penalties and the standard non‑parole periods specified similarly operate as yardsticks or guideposts in the determination of an appropriate sentence.
There is in our society an absolute prohibition on sexual activity with a child. The abhorrence with which the community regards sexual offences against children is one of absolute clarity. The commission of such offences is invariably selfish and self‑centred. It robs children of their innocence and tends to sexualise them before they reach psychological and physical maturity. It displaces a sense of trust in adults and inevitably creates psychological confusion that is likely to last well into adulthood. As Leeming J said in Ibbotson v The Queen [2020] NSWCCA 92 at [3], offending conduct of this nature amounts to the "reprehensible taking advantage of a child's trusting innocence".
I also note the observations of the Court of Criminal Appeal in R v Woods (2009) 195 A Crim R 173, per Giles, Latham JJ and Mathews AJ, where their Honours said at 53: "Offences relating to sexual activity between young children and adults are premised upon the vulnerability, dependency and immaturity of children. It is those attributes that render young children amenable to sexual exploitation by adults. The structure of the offences, and the legislative policies underpinning them, assume that young children are not capable, by and large, of understanding the significance of sexual activity (hence the absence of informed consent) or of asserting their will over that of an adult. How then can the fact that a victim cooperates with an offender be relevant to an assessment of the objective gravity of an offence of this type? That is not to say that evidence of a victim's resistance and/or an offender's efforts to restrain a victim are not relevant to an assessment of objective gravity for offences of this type. Such a circumstance would aggravate a child sexual assault offence. But the absence of struggle or resistance (that is, the child's cooperation) cannot, in our view, mitigate such an offence."
The present matter involves opportunistic and predatory conduct by the offender which commenced at the Brickpit area in Thornleigh shortly after 3.30pm on the afternoon of Tuesday 28 April 2020 and continued thereafter, as I have said, for approximately nine and a half hours before the police located Maria in the offender's premises. The child, who had been supposed to meet up with her mother at 4.30pm that afternoon, had been enticed by the offender into going into his vehicle on the promise of getting her phone charged so that she could contact her mother. She was also undoubtedly lured into the circumstance by the presence of his 8 year-old daughter. Her effective disappearance, after having been allowed to spend the day with her friend, was undoubtedly a parent's worst nightmare.
The Court is required to take into account a variety of different factors in ultimately determining an appropriate sentence. The objective seriousness of the individual criminal offences is required to be assessed. Various features that operate as aggravating factors need to be considered as well as factors which operate in mitigation. The age of a victim is an important factor in terms of assessing the objective seriousness of offending in child sexual assault matters. The courts have clearly recognised that the younger a victim of such sexual assault may be, they are likely to be less mature and more vulnerable than older children within the same age range of prohibited conduct. Parliament has recognised different age ranges reflected in differing maximum penalties with respect to different forms of child sexual assault.
In the present matter, the child was 12 years of age, the offender was 37 years of age at the time. The disparity between their ages is also a relevant factor. The Agreed Facts indicate that Maria told the offender that she was only 12 years old when he first approached her. I place no weight whatsoever on his subsequent assertion to police when he was arrested to the effect that she easily looked 19.
The first offence charged substantively is the offence of supplying a prohibited drug to a person under the age of 16 years. The offending behaviour involves supply on a single instance of an unknown quantity of the prohibited substance. The Agreed Facts refer to the victim having two puffs from the ice pipe or meth pipe. There is no evidence before the Court as to any conclusion that might be reached as to the amount of drug ingested by her in light of the subsequent blood analysis. The offending could not be described as trafficking to a substantial degree. The description by the offender to his 12 year-old victim that the drug was "the good stuff", her circumstance of isolation with him in his granny flat, the substantial age differential, and the surrounding circumstances leading her to initially run away from the premises, warrant a finding that the offending was objectively serious. This was not a supply to a purchaser or acquirer of a drug who, having obtained it, then went on their own way.
The Crown points to suspicion as to why the supply offence was committed, whilst conceding that the Court could not be satisfied beyond reasonable doubt that the prohibited drug was supplied in order to facilitate the subsequent sexual conduct. The Court is conscious to not double-count where the circumstance of the victim being affected by the intoxicating substance is relied upon as an aggravating feature with respect to the sexual interaction in the motor vehicle and as an actual element of aggravation with respect to the sexual conduct later that evening back at the granny flat.
On behalf of the offender, Mr Roff of counsel described the provision of the illicit drug as having been "almost a gesture of goodwill". He described that it took place without any threats, coercion or violence. No other act is said to have occurred against the victim at or around this time. Mr Roff submits that the objective seriousness of this offence falls towards the lower end of the range of objective gravity.
I do not agree. In my view, the offence of supplying the methylamphetamine to a 12 year-old child, contrasted with other circumstances of supply to persons under 16 years of age, which is the actual offence charged, falls within a broad mid-range of objective seriousness for such an offence. I should note that the presence of THC in her blood is not the subject of any evidence or any charge before me.
The second substantive offence chronologically was the act of oral intercourse which occurred in the offender's motor vehicle whilst located in Bloodwood Road, Fiddletown. It has been charged, relying upon the circumstance of aggravation that the victim at the time had been deprived of her liberty. The effect of charging the aggravated form of sexual intercourse is to increase the maximum available penalty for the sexual intercourse from 16 years, to one of 20 years' imprisonment. The standard non‑parole period is also increased from 7 years to 9 years.
Mr Roff, on behalf of the offender, described the offender as almost pleading with the victim to perform the act of oral sexual intercourse before he would take her home. He described the extent of the coercion as being limited. He described the deprivation of liberty as being minor and submitted that the offence "falls below the middle of the range of objective seriousness, perhaps at the midpoint of it and the lower end of the range".
The Crown described the deprivation of liberty as not arising in what might be described as a normal fashion by direct words or physical restraint but rather from all of the circumstances. The Crown points to the circumstances, including the age of the victim, the location at which the offending occurred, the absence of any means of communication by mobile phone of the victim, her belief that she was going to be driven home when she got into the car, the fact that she was in a remote location and effectively stuck there, her attempt to get away from the offender, her realisation when she could not see anything in sight, that there was no‑one around, and her statement to the offender that she would do anything if he drove her home. The Crown's position accordingly was that the period of time for which Maria was deprived of her liberty was quite short, being from the time she could not see anything in sight until the conduct amounting to the offence took place.
The situation of determining with some calculated accuracy the length of the period of deprivation of liberty for a child in the circumstances that had unfolded is not, in my view, one which can be or is required to be determined with arithmetical precision. Having effectively run away, or perchance escaped, initially from the offender's flat and having run the 200 metres or so to the closed gate to the offender's parents' premises, the young victim was at that time not in a situation of deprived liberty. Her screaming and assertion that the offender had shown her his penis, which assertion is not relied upon as the basis for a charge, attracted the attention of the neighbour that resulted in an offer to call police.
However, thereafter the child got into the offender's vehicle and subsequently told police that she thought he was driving her towards Berowra. However, in fact, after first heading in a direction which would have ultimately been able to proceed down through Dural and Cherrybrook and ultimately around to Berowra, the offender drove his vehicle effectively due north, through Arcadia, towards Fiddletown, and ultimately to the dead‑end which ends in the Marramarra National Park to the west of Berowra Waters. To the extent that it requires an assessment of when she was deprived of her liberty, that had occurred in real and practical terms from the time she had got into the offender's motor vehicle at his parents' front gate.
As I indicated in my earlier summary of the facts as they have been presented to this Court, the detail of the circumstances which unfolded appear to be substantially abbreviated. The premises subsequently attended in Bloodwood Road, Fiddletown, in order to seek assistance in jump-starting the vehicle are at a location perhaps 20 minutes' drive north of the offender's premises. The Agreed Facts suggest when they first stopped in the vehicle, they waited for about 30 minutes on the pretext of waiting for somebody to deliver something. The facts then describe the victim punching a tree and running away until she got puffed and could not see anything, and then returning to the vehicle. Following the oral sexual intercourse, they are said to have waited for about an hour, hoping that somebody would come along because the car could not be restarted as it had a flat battery. When they ultimately went to the house of the good samaritan who provided jumper leads, it was approximately 8.30pm. That was more than three hours after leaving the premises in Gilligans Road, Dural.
The objective seriousness of the offending is not, in my view, tempered to any considerable degree by a precise determination of the parameters of the temporal deprivation of liberty. The Crown submits, bearing in mind that the offence is of the aggravated variety, that the offending conduct falls just below the mid-range of objective seriousness. The circumstance of the offending occurring in such a remote location and the aggravating factor that the victim was affected by the illicit drug which she had smoked and which had been provided to her by the offender, combined with her age of 12 years, in my opinion, places this offending within the mid-range of objective seriousness. I am conscious of the fact that the compliance of the child was obtained, metaphorically by a carrot rather than a stick. There were no threats and there was no physical violence. However, the child was in a situation of effectively having no choice.
The third substantive offence relates to the penile‑vaginal intercourse which took place following the return of the offender and the victim to his premises. Again, the aggravated offence has been charged with the concomitant increase in the maximum penalty. With respect to this charge, the Crown has particularised the taking advantage of the victim whilst under the influence of the drug in order to commit the offence. As is self‑evident from the factual circumstances, it was the offender himself who had earlier provided the victim with the drug. This conduct took place in the hours following the return to the Gilligans Road premises and had been preceded by the extended period of more than six hours where she had been isolated and in the company of the offender. She was well past the time that she was meant to have met her mother. The offender was well aware of the police having been alerted and had taken measures to avoid detection by police prior to his committing this particular offence and the other sexual acts which have been placed onto a Form 1 document.
The victim described her feelings of intoxication from the drug. She said that she felt dizzy, as if she was about to pass out, and that she could not get words out when she tried to speak. These effects would have been obvious to the offender. Whilst not a separate aggravating element, the victim had told the offender to stop when he started to touch her thigh and told him that she did not want to do anything. This is a factor which has relevance in determining the objective seriousness of the offending. The offender had penile‑vaginal intercourse without a condom. The victim said that she did not want him to. He did not insert his whole penis but she described that it hurt her a lot while the offender continued. She said that she was in so much pain, she wanted to cry. The offender stopped after a while. She did not say anything about him having ejaculated, however, there was subsequently forensic evidence of semen in her vagina. This is a factor which is capable of increasing the gravity of an offence: see KAB v The Queen [2015] NSWCCA 55.
On behalf of the offender, it was submitted that the offender only inserted a part of his penis but he stopped after a short time and that he did not ejaculate. It was accordingly submitted that the offence falls at or around the middle of the range of objective seriousness.
In the Crown's submission, the objective seriousness of the offending with respect to this substantive charge falls above the mid-range of objective seriousness. I am in agreement with that assessment.
Section 21A(2) of the Crimes (Sentencing Procedure) Act 1999 sets out factors of aggravation in respect of the commission of criminal offences. The circumstance that the supply of the prohibited drug and the act of penile intercourse took place in the offender's home is submitted by the Crown to be a technical aggravating factor, and the Crown's submission is, however, not of great significance, particularly with respect to the sexual intercourse allegation where in most circumstances where such an act occurs, it occurs in a residence. The surrounding circumstances, namely, the semi-rural location of the premises and its isolation are relevant surrounding circumstances, but the fact that the offending took place in a home does not, in my view, operate as a factor of aggravation.
The Crown also points to the fact of vulnerability because of the geographical isolation in which the victim was placed. This is of course an element of the offence in the motor vehicle and must not be double-counted as an aggravating factor where it is relied upon as a circumstance of aggravation for that actual charge. The vulnerability of the child because of her age and her vulnerability by virtue of the geographical isolation similarly need to be carefully assessed so as not to fall into the error of double-counting.
Section 21A(3) refers to factors in mitigation. The offender pleaded guilty in the Local Court and this is a relevant factor in mitigation. In accordance with authority, he will be entitled to a 25% discount on an otherwise appropriate sentence as a reflection of the utilitarian value of his plea and a recognition of a level of remorse and contrition thereby being evinced.
Mr Roff submits that the offending conduct was not part of a planned or organised criminal activity. I have earlier described the offending conduct as opportunistic. However, to the extent that there was an unfolding series of opportunistic offending behaviours, the last act of sexual intercourse in his flat would appear to have entailed a degree of premeditation and some level of forethought and planning. The offender had observed the police when he returned and took precautions to avoid detection by them before returning with the victim to his flat. The offending conduct was not, however, part of a planned or organised criminal activity.
The offender does not have a record of relevant previous convictions other than his conviction for possession of a prohibited drug in September 2019 and his subsequent conviction for driving with an illicit drug present in his blood in October 2019. His earlier conviction for break and enter in 2018 had resulted in an Intensive Correction Order which had been completed approximately a month before the present offending. He had no prior convictions for sexual offending.
The offender has expressed a degree of remorse in his letter of apology. The Court's acceptance of what is expressed in that correspondence is tempered to some degree by the absence of sworn testimony and cross‑examination. It was submitted on his behalf by Mr Roff of counsel that the offender's reported hazy memory of the events would be found to be consistent with his ingestion of alcohol and drugs on the day. It was submitted that this can be associated with disinhibition and poor decision‑making over and above his mental health conditions. It was submitted on behalf of the offender, "This may go some way to reducing, at least to a certain extent, his moral culpability." I reject that submission.
As pointed out by McClennan CJ at CL in Bourke v The Queen [2010] NSWCCA 22 at para 26, "Intoxication, whether by alcohol or drugs, may explain an offence but will ordinarily not mitigate the penalty." His Honour made reference to R v Rosenberger (1994) 76 A Crim R 1 where the Court of Appeal in Queensland per Fitzgerald P, Pincus and Lee JJ, said: "Ordinarily intoxication, whether by alcohol or other drugs, will not mitigate penalty... The proper policy appears to be generally to decline to give an offender the benefit of a reduction in sentence on the ground of his drunkenness at the time of the offence."
That expression of principle applies equally to intoxication on the basis of the influence of prohibited drugs. I have had regard to the blunt instrument of the statistics retained by the Judicial Information Research System. Where possible, I have had recourse to the cases both at first instance and in the Court of Criminal Appeal where a hyperlink has been provided within the JIRS system. In particular, I have perused Bell v The Queen [2018] VSCA 281; Dawkins v The Queen [2018] NSWCCA 278; R v Swain [2020] NSWDC 198; and R v Ramon [2020] NSWDC 858. I have also obtained and perused R v AJ (Judge Shead SC, NSWDC, 27 August 2020, unreported), R v Burns (Judge Whitford SC, NSWDC, 30 March 2020, unreported), and R v Bui (Judge Pickering SC, NSWDC, 27 November 2020, unreported).

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Cases Cited (10)