(2002) 56 NSWLR 146
Bugmy v The Queen (2013) 249 CLR 571
[2013] HCA 37
Burrell v R (2000) 114 A Crim R 207
[2010] HCA 45
Markarian v The Queen (2005) 228 CLR 357
[2005] HCA 25
Mill v The Queen (1988) 166 CLR 59
Source
Original judgment source is linked above.
Catchwords
(2002) 56 NSWLR 146
Bugmy v The Queen (2013) 249 CLR 571[2013] HCA 37
Burrell v R (2000) 114 A Crim R 207[2010] HCA 45
Markarian v The Queen (2005) 228 CLR 357[2005] HCA 25
Mill v The Queen (1988) 166 CLR 59[1998] HCA 70
Muldrock v The Queen (2011) 244 CLR 12053 NSWLR 704
R v Thompson, R v Houlten [2000] NSWCCA 309(2000) 49 NSWLR 383
The Queen v Pham (2015) 256 CLR 550: [2015] HCA 39
Weininger v The Queen (2003) 212 CLR 629
Judgment (14 paragraphs)
[1]
Background
An offender who has the start in life that Cassell had does not bear equal moral responsibility with one with a background one might term normal or advantaged. His background has left a mark and compromised his capacity to mature and learn from experience. He has fewer emotional resources to guide his behavioural decisions. That does not mean that he bears no moral responsibility, but that background must be taken into account: R v Millwood [2012] NSWCCA 2 at [69]. His moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in the way set out in the material before me: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
[2]
Ill health
Offenders generally cannot escape punishment because of the condition of their health, but given the risks associated with an offender's medical condition, in particular his epilepsy and suicide risk, the realities of prison life should not be overlooked in the exercise of my sentencing discretion: Burrell v R (2000) 114 A Crim R 207; [2000] NSWCCA 262 at [27].
His Ill-health is a factor that mitigates punishment, particularly where, as here, imprisonment will be a greater burden on him by reason of his health and carries with it a significant risk. It can also be a special circumstance warranting a longer period on parole: R v Sellen (1991) 57 A Crim R 313. Care, however, should be taken not to double‑count such mitigating factors. Ill health does not necessarily mean that a prison sentence should not be imposed, or that the sentence should be less than the circumstances of the case would otherwise require: R v L, NSWCCA unreported, 17/6/1996.
[3]
Assault In Custody
Cassell was assaulted in custody. That it is a relevant factor on sentence. A sentencing court cannot ignore the lived experience of gaols. Judges must take into account and synthesise all relevant considerations. Even after the injury heals, a prisoner assaulted in custody will inevitably suffer anxiety and other concerns as they are being kept in or returned to the same type of environment where they were previously assaulted. Gaols are nasty, violent places, all prisoners are at risk. They have no control over who they associate with and no control over their immediate safety. If they could not be protected in the past it requires no imagination to conclude that person who has been assaulted in gaol will find incarceration, at the very least, more worrying than someone who has not.
[4]
COVID-19
Dr Furst notes a number of specific concerns about the COVID restrictions, imposed on Cassell. The present crisis has increased apprehension by all prisoners about infection in gaols, as it does in the community in general. As a community we are being asked, urged, compelled at times, to self-isolate. This cannot happen in a gaol. Social visits were suspended for over a year, reducing any capacity to remain in contact with pro-social friends and family. They have only just resumed. Access to telephone calls and AVL links increased. Prisoners are regularly quarantined and locked in cells for extended periods, sometime days and weeks. The evidence before me confirms that.
The offender has endured over a year of such restrictions; he may face them again. The lack of visits, and that heightened anxiety and concerns about the pandemic noted by Dr Ellis in his report have and will continue to have a negative impact on prisoners such as Cassell. They remain relevant factors that must be synthesised along with all other matters.
[5]
Submissions
At the outset Mr McKenzie, on the offender's behalf, accepted a significant term of imprisonment must be imposed. He told me the offender is disgusted by what he did and questions himself, matters he submitted I could take into account, along with the early plea, as indications of sincere remorse. He noted Cassell's lengthy and onerous time on remand and the impact of the pandemic restrictions on him. He took me through matters that went to Cassell's moral responsibility. He addressed evidence that Cassell will not only be at real risk of self-harm in custody, but also is particularly vulnerable because of his medical and psychological conditions and learning difficulties; conditions which go back to childhood.
In response, Ms McCrossin accepted that there was hardship and recognised the value of the early plea, but she submitted that there was no evidence of remorse, rather, that there was acceptance or responsibility in the face of a strong prosecution case, supported by the photo. In her written submissions she helpfully outlined factors relevant to my assessment of the objective seriousness of each offence for sentence.
In her submission, with the exception of sequence 3, each offence was at the highest end of the scale. Each displayed the offender's predatory, manipulative and exploitative conduct. What he did was sustained and showed complete disregard for the wellbeing of his victims; his only thought was his sexual gratification.
She noted the offending reflected a sexual interest in the two girls who were at the time children and asked that I be cautious about Dr Furst's report at p 4 that Cassell is "not attracted to children", as they were not an expert opinion but a recitation of Cassell's history.
She urged me not to double count matters raised in mitigation, but rather to focus on the deterrent and retributive purposes of sentencing. She noted that while a case had been made for special circumstances, that finding would be circumscribed, as the length of the aggregate sentence would, in the ordinary course, allow for a lengthy period for supervision and monitoring while on parole.
[6]
Mental health
In Dr Furst's opinion, Cassell meets the diagnostic criteria for alcohol use disorder, borderline personality disorder and epilepsy. While he did not suggest the offending was driven by any medical disorder, he said those underlying conditions will make Cassell's time in custody more onerous.
I do not accept Mr McKenzie's submission that Cassell should be a vehicle for general deterrence. That principle must apply here, subject to matters that otherwise reduce his moral culpability noted above. A retributive sentence is required. Others in the community must understand that to behave as Cassell did is not only criminally wrong, but that it causes considerable harm, both physical and psychological, to child victims. And that if they did what Cassell did they can expect significant punishment.
While Dr Furst stated at p 4 of his report that the offender does not have a sexual attraction to children; his interview with Cassell elicited no indication of a sexual preoccupation and he did not find any evidence of a paedophilic disorder. That said, it cannot be ignored that his offences on this occasion did involve children, indicating a lack of moral constraint.
While the offender was not intoxicated this night, if he can get assistance dealing with his alcohol use disorder and underlying conditions his chances for rehabilitation will be advanced. He would be well advised to complete any programmes offered him in custody. He is willing to seek professional help but his long period on remand has impeded help being made available to him, a factor I take into account.
[7]
Remorse
Generally, untested out of court statements of remorse made to third parties should be treated with caution and considerable circumspection: R v Qutami [2001] NSWCCA 353 at [58] - [59]; R v Palu [2002] NSCWCCA 381; Butters v R [2010] NSCWCCA 1 at [18].
However, some regard can be had here to Cassell's remorse expressed through his psychiatrist beyond the bare fact of his plea. What was reported is consistent with his early guilty pleas and acceptance of responsibility for multiple offences. Although not on oath they were tangible expressions of contrition and are consistent with the conduct and statements of Cassell over a period of time since his police interviews. He appears to have accepted the details of events given by the complainants and accepted personal responsibility for his crimes: Thompson v R at [118].
[8]
Danger of a crushing sentence
The severity of a sentence should not operate to destroy prospects of rehabilitation and reform. An extremely long sentence may be crushing upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. I make this comment given Cassell's history of suicidal ideation. This effect both increases the severity of the sentence to be served and can increase the risk of self-harm.
What is, however, proportionate or what might be seen as a crushing sentence can depend on the perspective of the observer; whether they are a victim, the community, the appeal court or the offender; Director of Public Prosecutions (Cth) v Beattie [2017] NSCWCCA 301
[9]
Need for victim vindication
Mitigating factors must be given appropriate weight, but they must not be allowed to lead to the imposition of a penalty which is disproportionate to the gravity of each offence. That having been said, the High Court in Munda made it quite clear that the proper role of the criminal law is not limited to the utilitarian value of general deterrence. Sentencing courts have an obligation to vindicate the dignity of each victim, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the State to the vulnerable against repetition of the offending: Munda v Western Australia (2013) 249 CLR 600: [2013] HCA 38 at [52] to [58].
[10]
Special circumstances
There is evidence Cassell will need considerable help and supervision in the community on release. He will need alcohol abuse treatment, his mental health conditions must be addressed and he will need considerable help adjusting to normal community life after his lengthy term. His epilepsy and suicidal ideation place him at additional risk in gaol. All provide a basis for a finding of special circumstances. However, in so finding, I am mindful of a requirement that the minimum period for which the offender should be imprisoned must properly reflect the gravity of his offences and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].
It important to note that studies reveal that offenders who receive parole supervision on release from custody take longer to commit a new offence and were less likely to commit a new indictable offence and committed fewer offences than offenders who were released unconditionally into the community: Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497, 2011, BOCSAR.
[11]
Synthesis
Ultimately, I must, as I have tried to do, identify all factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence should be given all the factors relevant to the offending behaviour and the offender: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; Hili v The Queen.
I have sought to do so but not every matter has to be, or can be, fitted into categories. Human behaviour and characteristics are too varied. The sentencing exercise involves: "A synthesis of competing features, which attempt to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment, usually expressed in time in custody:" Weininger v The Queen (2003) 212 CLR 629; [2013] HCA 14 at [24].
[12]
Indicated sentences
The indicated sentences take into account the reduction for the early guilty plea and, where required, matters on a Form 1.
Sequence 1, sexual intercourse with a child 14 to 16, I indicate a sentence of two years and three months imprisonment.
Sequence 2, sexual intercourse with a child 14 to 16, I indicate a sentence of two years and three months.
Sequence 3, intentionally incite child sexual touching, plus Form 1,
Sequence 4, I indicate a sentence of nine months.
Sequences 5 and 6, stalk intimidate, I indicate sentences of nine months.
Sequence 8, sexual intercourse with a child 14 to 16, two years seven months.
Sequence 10, which has the Form 1 matters sequences 7 and 9, I indicate a sentence of three years.
Sequence 11, sexual intercourse with a child 14 to 16, I indicate a sentence of two years and three months.
Sequence 12, sexual intercourse with a child 14 to 16, I indicate a sentence of three years.
Sequence 13, which has the Form 1 matter
Sequence 15, sexual intercourse with a child 14 to 16, I indicate a sentence of two years and seven months. Sequence 14, which has sequence 16 on it on the form, sexual intercourse with a child 14 to 16, I indicate a sentence of two years and seven months.
[13]
Aggregate sentence
The aggregate sentence will be nine years imprisonment. To give effect to my finding of special circumstances there will be a non‑parole period of five years and ten months imprisonment. There will be a balance of term of three years and two months. The sentence will commence on 27 January 2021. Cassell will be eligible for consideration for release to parole after a period of five years and ten months, which will be 26 November 2026. The balance of the term, of three years and two months, will commence on that date. Total sentence will expire on 26 January 2030.
I repeat, nine years, five years ten months, commence 27 January 21, eligible for release to parole 26 November 26, balance of term three years two months commencing on 27 November 2026. Total sentence expires 26 January 2030.
I will have a copy of Dr Furst's report sent to Community Corrections and Justice Health.
AUDIO VISUAL LINK CONCLUDED AT 11.59AM
[14]
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: 12 October 2022
Parties
Applicant/Plaintiff:
R
Respondent/Defendant:
Cassell
Cases Cited (28)
Procedural matters
Cassell has been in custody since 27 January 2021 and any sentence must date from then. On arrest he was charged with several offences. He admitted his offending while the proceedings were before the Local Court. It was agreed that he be sentenced for 11 offences and that other matters be taken into account on Crimes (Sentencing Procedure) Act 1999 Forms 1. Sequences 3, 10, 13 and 14 each have Forms 1 attached.
When he appeared before this Court, he adhered to those pleas and confirmed a request the Form 1 matters be taken into account. It is appropriate that I do so. While I do not sentence him for the Form 1 matters, there must be an increase in the sentence indicated for the offence to which they relate. The increase recognises the need for personal deterrence and retribution for the crime for sentence: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, [2013] NSWCCA 115; (2002) 56 NSWLR 146 at [39] - [42]. As the Form 1 matters form part of a sequence of events I will take care not to double count matters taken into account.
His guilty plea did mean that the matter could be concluded expeditiously and that neither complainant had to give evidence at trial; R v Thompson, R v Houlten [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [3].
I will impose an aggregate sentence. Each indicated sentences will reflect a reduction of 25% to take into account the utilitarian value of those early pleas. I have sought not to erode the benefit given for those pleas when formulating the aggregate sentence.
The matter came before me for sentence on 26 August 2022. I received all the exhibits, including Victim Impact Statements, one of which was read to the Court by Elizabeth. I received written submissions and heard from Ms McCrossin, solicitor for the Director of Public Prosecutions, and Mr McKenzie, counsel for Cassell. As it was a busy list and the matter started late it could not be finalised that day and was adjourned to today for sentence.
The offender did not give evidence, but no controversy arose about the material tendered on his behalf and I can safely act on it.
Maximum penalty
Offences involving sexual intercourse with a child aged 14 to 16 have a maximum penalty of ten years imprisonment: s 66C Crimes Act. The offence of intimidate intend to cause fear has a maximum penalty of five years imprisonment; s 13 Crimes (Domestic and Personal Violence) Act. The offence of intentionally incite a child under 16 to sexually touch has a maximum penalty of ten years imprisonment; s 66DB(b) Crimes Act.
Maximum penalties provide sentencing measures to be balanced with all other relevant factors. They are an important guide to the exercise of a sentencing discretion.
The maximum penalties also invite a comparison between this case and other cases. The consistent application of principle requires careful consideration be given to other decision of this and appellate courts, but sentencing is a discretionary judgment and the mix of factors that must be weighed in determining the appropriate sentence will never be precisely the same as in a past case or cases: The Queen v Pham (2015) 256 CLR 550: [2015] HCA 39 at [46], Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45.
Assessing objective seriousness
A judge must make an objective assessment of the seriousness of each crime and the matters causally related to it. Here there were two victims and a large number of distinct offences. The charges seek to encompass the whole of the offender's criminal conduct which formed a single episode of criminality with common factors.
Here, as is obvious, both complaints were children and their age relative to that of the offender and to the age range set out in the offence charged are matters that must be considered. That age range fixes the maximum penalty range available to me. It is generally the case that the younger the child relevant to the range the more serious the offending.
Each offence was committed in the presence of the other child and some of the offending involved multiple acts that could have been separately charged. That said, care must be taken not to double count matters in aggravation of penalty, or which are common to each offence: Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [40].
I am required to impose an appropriate sentence for each offence and to structure the aggregate sentence such that the overall sentence is just and appropriate to the totality of Cassell's offending behaviour: Mill v The Queen (1988) 166 CLR 59;[1998] HCA 70 at 62-63; Nguyen v The Queen [2016] HCA 17.
Objective seriousness
The objective seriousness of the particular offending must be determined in the light of the entirety of the facts and circumstances in question. But I start from this basic premise: Every act that involves the sexual exploitation of a child is serious. There is an absolute prohibition on any sexual activity with a child. The law is strictly enforced and is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity. It follows that every act that involves the sexual exploitation of a child is serious and is treated seriously by the courts. The guidance offered by the maximum penalties makes that clear.
Every sentence must be appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances. In assessing the objective seriousness of individual matters, the act or acts done, the character of the sexual acts or acts of intercourse and the degree of physical contact involved is of significance. In sexual intercourse matters there is no hierarchy of seriousness of the kinds of sexual intercourse: R v KNL [2005] NSWCCA 260. Accordingly, my focus must be on the degree and nature of the penetration of the child's genitalia, what else occurred at the time of penetration and the time over which the acts occurred, and whether any pain, physical hurt or harm was caused the child; some degree of psychological harm is generally presumed.
Another important principle is that a sentence of imprisonment should never exceed that which can be justified as appropriate or proportionate, but again care must be taken; the absence of aggravating features does not mitigate.
Each offence exploited a young girl in a vulnerable position. The offences occurred over a period of an hour in public places. The girls were induced to do what they did out of fear because of the threats made. With the exception of the intimidation offences (sequences 5 and 6) what was done was solely for the offender's sexual gratification. He had no regard for his victims, only for himself. At not stage was either child a willing participant in what occurred. In brief summary
Sequence 3 - The offender was alone at night with Elizabeth. His requests were persistent and manipulative despite her repeatedly saying no.
Sequences 5 and 6 - The offender made several serious threats to each complainant causing them considerable anxiety and distress. His apparent motivation was because they had dared to seek assistance from McDonald's staff.
Sequence 2 - The digital intercourse with Elizabeth was relatively brief.
Sequence 8 - The offender was rough with Elizabeth during the oral intercourse.
Sequence 1 - The digital intercourse with Kate was relatively brief, but accompanied by other sexual acts.
Sequence 10 - The penile/vaginal intercourse with Kate was rough. He pulled her on top of him and went on for about ten minutes. No condom was used, risking disease or pregnancy.
Sequence 11 - The offender, while engaged in the other act of intercourse, gratuitously inserted his finger into the child's anus. Again, he used her as he wished without any regard for her or her wellbeing.
Sequence 12 - Similarly, the penile/vaginal intercourse that followed with Elizabeth was rough and went on for some time and involved a change of position. No condom was used, risking disease and/or pregnancy. The offender was either oblivious to or ignored what must have been the obvious distress shown by the child. He did, however, stop when he was asked.
Sequence 13 - Despite Elizabeth being unwilling and trying to pull away, the offender inserted and kept his penis in her mouth and push her head down on it.
Sequence 14 - Aware that Kate did not want to touch his penis, he inserted it into her mouth. He was rough with her and pushed her down.