R v David John STEVENS

Maximum Penalties 34For the now repealed offence of rape contrary to s 63 of the Crimes Act 1990, that is counts 2, 3, 4 and 5 the maximum penalty is life imprisonment. For the offence of attempted rape contrary to s 65, count 6, the maximum penalty is 14 years imprisonment. For the offence of indecent assault contrary to s 76, counts 7 and 8, the maximum penalty is four years. For the offence of forcible detention with intent to carnally know, contrary to s 89 count 1 the maximum penalty is 14 years.

Objective Seriousness 35Every offence of rape or sexual misconduct against another is a serious offence. I have heard the victim read out her victim impact statement today and I accept the emotional and psychological harm suffered by her is significant and ongoing. I have had regard to the substantial adverse impact upon her. 36In assessing the objective seriousness of each offence I accept there is a continuum of seriousness for offences of this type. Some offences of sexual misconduct may be more serious than others. In some cases the degree of violence, the physical hurt inflicted, the circumstances of the forced intercourse or the humiliation may be greater in one case than another. 37I must assess the objective seriousness of the offences before me. In doing so I note that the counts of rape upon which the offender has been found guilty are brought pursuant to s 63 of the Crimes Act 1990, now repealed. That offence involved the act of penile vaginal intercourse. The section did not include several categories of sexual penetration within the offence of rape. It did carry a maximum penalty of life imprisonment thereby reflecting the seriousness with which it was considered and continues to be regarded. 38The objective seriousness of each offence here is heightened by the fact that others were present at the time the offender or principal offender committed each offence. 39Counts 1 and 2 were committed in the presence of the complainant's friends. All counts were committed in the presence of the offender's friends, all of whom were themselves a principal offender at some stage during the night. If they were not present in the van at the time the offence occurred they were standing outside the van in full view of the complainant. 40I find that what essentially occurred was a gang rape. Aside from count 1 the offences were committed in the enclosed space of the van, limiting the options available to the complainant to remove herself from the situation. 41She had tried unsuccessfully on at least one occasion. She could see that whilst she was being raped the rear door was blocked by four men or so. The victim would have been struck by fear and feelings of helplessness from the time she was thrown into the van by the offender to the time that she was dropped off at Mr Simon's house sometime later that night. 42This fear would have been exacerbated and sustained by the fact that in accordance with evidence of the victim during the trial that she did not have a great degree of knowledge of her location from the time that Sue Thomas and Vickie Chalker were dropped off and had left the van. She did not know what the intentions of the offender were after she was left at Mr Simon's place and whether he would have seen her had she tried to make her way home. 43However, I find that the offences were not planned or organised such as to enliven s 21A(2)(M). The offender's conduct was at first opportunistic. The offending conduct did however persist and demonstrated a completed disregard for the wellbeing of the victim. 44Taking into account these considerations in relation to each particular offence I make the following findings: 45The objective seriousness of the forcible detention of the complainant, count 5, was just below the middle of the range of objective seriousness. There were no accompanying threats of violence and any physical restraint of the victim by the offender was momentary. Although the victim initially described being thrown into the van she later said she was "placed" in the van. 46Julie Caldwell who also witnessed the event gave evidence about what she saw. She said that she saw Michelle picked up by one of the boys underneath her legs and back and that they took her to the back of the car and threw her in. 47She was however picked up and placed in the van against her will at a time when a number of men were in the back of the van. Although two of her girlfriends were in the front passenger seat I accept that she must have been fearful about what was going to happen. 48The acts constituting the four counts of rape fall into two categories in my view. In Counts 2 and 3 the offender was the principal offender. He perpetrated the rape himself. Counts 4 and 5 involve liability as an aider and abettor of the rapes. 49In a case of Catalan 1975 NSWCCA 226 his Honour CJ Street pointed out that rape has been many times categorised as one of the most serious crimes of violence. At that time rape was restricted to the act of penile vaginal intercourse. 50In the present case the rapes were not accompanied by violence, although I accept that the offender and principal offenders had to apply pressure on the victim overbearing her to ensure that she remained where she was. The victim at the time was a petite girl of 17 years or thereabouts. 51I find that the criminality involved in these four counts of rape is in the middle of the range of objective seriousness. Although the offender himself did not have intercourse with the complainant in counts 4 and 5 the verdicts reflect the jury's findings that at the relevant time he was present, knowing what was taking place and with the intention of assisting or encouraging of the crime. 52I find that the objective seriousness of the attempted rape, count 7, is also at the middle of the range of objective seriousness. Whilst no act of intercourse actually took place the attempt was made after a number of other men had either raped or indecently assaulted the victim. It was only the victim's act of biting the perpetrator that caused him to stop his actions. The offender here was also aiding and abetting. 53I find that the objective seriousness of the indecent assault of the victim by the offender, count 8, was low. I make this finding in light of the wider range of criminality that was encompassed within s 76 of the Crimes Act 1990 in the year 1978. At the time the offence included acts that now fall within the current definition of sexual intercourse. For example, acts of fellatio, cunnilingus and certain acts of penetration. 54The inclusion of several categories of conduct within an offence carries no implication that each category is as heinous as another. Seriousness in that instance depends on the facts of the case. The type of penetration or indecent assault is only one factor and by itself does not indicate how serious the offence is. 55Similarly the indecent assault of the victim by Rudolf Reichel, count 6, I find to be at the bottom range of objective seriousness. The acts of Mr Reichel were not accompanied by any threatening behaviour. To the contrary the evidence of the victim suggests that he felt uncomfortable committing those acts upon her. He was still clothed and while it does not diminish what Mr Reichel did, the victim's evidence suggests an element of peer pressure. The offender again is equally liable for this offence as an aider and abettor. 56In making these findings with respect to the individual offences I do not intend to convey that the totality of the criminality has not been taken into account. My analysis of the objective seriousness has been conducted taking into account all of the relevant circumstances and the criminality encompassed by the offences as they were at the relevant time. 57In imposing sentence I have taken into account the totality of the criminality involved. A consideration of the maximum penalty together with the range of conduct encompassed within a particular offence at the time is an easily ascertainable objective reference point in determining where the offender's conduct falls within the gravity of an offence. 58These offences were what are commonly referred to as historical offences. Aside from three complaints to her friends in the days following the offences, the victim did not contact police until some time in 2012, some 32 years after the offences occurred. The offender faced trial and is now being sentenced almost 36 years later. 59It is widely accepted, and not in dispute in this case, that sentencing for historical offences should be in accordance with the sentencing patterns in place at the time the offences occurred, see the decisions of Magnuson [2013] NSWCCA 50 (1 March 2013) and MJR [2010] NSWSC 653 (18 June 2010). 60Given the length of time that has passed, some precision is required in identifying, if possible, the correct sentencing approach to be applied in this instance to this offender. I have had particular regard to the principles enumerated by Button J in Magnuson. Button J noted a number of relevant factors in discerning a sentencing pattern with regard to sexual offences against children in the 1970s and 80s. This pattern was based upon five factors: statistics, summaries of cases, a recognition of a general increase in sentencing over the last quarter of a century, the increase in maximum penalties and the fifth being judicial memory. 61I accept the following principles as applicable to this sentencing exercise: sentences for the offence of indecent assault were more lenient in the late 1970s; lengthy head sentences were imposed for the offence of rape in the late 1970s; while head sentences were not shorter than an analogous offence today, statistics provide some support for the proposition that non-parole periods at the relevant time for the offence of rape were shorter than they would be for an analogous offence today. There has been a steady increase in sentences for serious offences, including sexual offences, since the late 1970s for the reasons expounded in Magnuson. 62I also note that standard non-parole periods for sexual assaults are now relevant and were not in the 1970s. The statutory ratio between the parole and non-parole period was governed by Parole of Prisoners Act 1966. It has often been repeated that a sentencing practice in the 1970s and 80s of a non-parole period of one-third to one-half of the term of the sentence was common. Sentencing should be in accordance with the fact that no statutory ratio existed at the time the offences were committed. This is a factor I can have regard to when considering special circumstances. 63The Parole of Prisoners Act 1966 also implemented a system of remissions which was operative in the 1970s. The application of the system of remissions in relation to sentencing for historical offences was considered in the case of AJB v Regina [2007] NSWCCA 51 (5 March 2007), in particular paras 31 to 33, where it was considered that it was inappropriate for a latter court to try to replicate the executive practice of the treatment of prisoners. Accordingly, I have not taken into account any potential remissions available in the late 1970s in this sentencing exercise. 64I have reviewed a large number of cases concerning sexual and indecent assault, and similarly a large number concerning representative accounts for patterns of conduct spanning over months or years. This is not the case here. The offender and the victim were, relatively speaking, of a similar age. The victim was just over 17 and the offender 19. They moved, it would appear, in the same social circles. The offences occurred on one night and are not representative. 4The Crown provided me with a copy of an interim report entitled Sentencing Sex Offenders in New South Wales. It included appendix B, a schedule of cases and sentences imposed. The schedule sets out the facts in very brief form, very little is indicated about the offenders' subjective cases in those cases. 65The Crown has referred me in particular to the case of R v Flaherty & Ors (1968) 3 NSWLR. That case involved a number of sexual assaults upon the victim perpetrated by ten offenders. The man Flaherty was found to be the leader of the group and the instigator of the offending behaviour. He not only raped the victim himself but went to some effort to enlist at least two of the other offenders to attend the location to further sexually assault the victim. 66Although sentenced with respect to one count, the total criminality involved in the incident was taken into account when imposing a sentence of ten years with a non-parole period of six. 67I find that the case of Flaherty & Ors more objectively serious than the present case. It involved ten offenders, the victim was younger than the present victim. Most significantly in my view Flaherty, after raping his victim and aware of the fact that she was subsequently being raped by others at the scene, left the scene with his co-offender, returned to Cabramatta, met two of his co-offenders and suggested to them that they should go to the scene to have intercourse with the victim. However, I must have regard to the fact that in the present case I must sentence this offender not on one count but on eight counts relating to sexual misconduct. 68I have reviewed the statistics of higher criminal courts for 1977, 78, 79 and 1980. However, I am cognisant of the fact that statistics should be examined with care. 69I have had regard to what the High Court has said in the decision of Hili v R [2010] 520 CLR 537 at para 54. It said: "Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts." 70It was also said in Hili that: "Past sentences are no more than historical statements of what has happened in the past. They can, and should, provide a yardstick against which to examine a proposed sentence." 71With respect to delay, this is not a case where there has been extraordinary delay between charging and sentencing. It is not a case, for instance, where the offender has been left in a state of uncertain suspense. However, it seems to me that in the case of Todd [1982] 2 NSWLR 517 the then Chief Justice, Street CJ, said: "Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstances that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understand and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner". 72I am prepared to take into account the long delay of 36 years when sentencing the offender, I take it into account with respect to those considerations of fairness referred to in the case of Todd. A term of imprisonment at this stage of his life will be particularly difficult and disruptive for him. That said, any mitigation afforded to the offender by virtue of delay is slight as I have already taken into account his rehabilitation in the interim. I do not take it into account additionally here. 73Mr Stevens' prospects of rehabilitation, character and other subjective features in 1978 would have been an important consideration if sentencing occurred at that time and I considered what they would likely be. Equally, the offender's conduct in the intervening period of some 36 years is also a factor I can, and have, had regard to. 74At the time of his offending behaviour, Mr Stevens had a record for driving matters. He was also on a s 588 recognisance for an offence of steal motor vehicle. The fact that he was on conditional liberty is an aggravating factor and I take it into account in that regard. 75Since then the offender has had a number of convictions, however was not dealt with by way of a term of imprisonment. He has had no convictions since 2002. I find that the offender does not have a significant record of previous convictions. 76I find that the lengthy period that has elapsed without further offences being committed of serious violent type allows for a finding that the offender has rehabilitated. In making that finding I have also has regard to the fact that for a substantial period of time he has not offended at all. I also find that the offender is unlikely to re-offend. 77I have placed minimal weight on specific deterrence due to the very lengthy period that has transpired between the offences and the sentencing and the fact that he has, in my view, rehabilitated during that period. I note that he maintained throughout the trial, as was his right, a denial that he was ever present in or at any of the incidents where other men were present in the back of the van and where the victim may have been sexually assaulted. The jury, clearly, did not accept this evidence. 78There is no indication that the offender has since acknowledged responsibility for the offences for which he has been convicted. I have no evidence, therefore, from which I can find that the offender is remorseful. 79A number of references have been tendered on behalf of the offender. They are written by co-workers, neighbours and other members of the community and friends and by his current partner. It is evident from those references that the offender is a well-respected and supportive member of the community with a generous and caring nature. It appears that many families have enjoyed the use of his property over the years. 80The references of Martin Irvin and Rhonda Swadling give specific example of the offender caring for members of the community who are experiencing hardship. The references also speak of his good work ethic. I accept the truth of those statements. In particular the references are singular in expressing the close nature of the offender's relationship with his daughter Lily who is nine years old. He is, I accept, a devoted father. 81Also in evidence before me is exhibit 4 which is a schedule of the number of days the offender has spent with his daughter over the past three years. Although not in his custody, he has spent an extensive period of time with her and has been dedicated to her. Those references also highlight the expected difficulty that the offender's daughter Lily will experience as a result of any likely period of separation from her father. The references seem to indicate that the young child's mother is, at times, unreliable and that the separation of the child from her father will be particularly hard. 82Mr Irvin describes the offender as "an excellent neighbour, supportive of the members of the small Braefield community in which we live, he is devoted to Lily and committed to her wellbeing". Mr Irvin also describes the attention and assistance the offender has given with Mr Irvin's own disabled daughter. Mr Irvin states that "the offender is well regarded and respected, he has always been willing to help people out". He also states that the offender is totally devoted to his daughter Lily and describes the offender as "a selfless sort of bloke". 83Patricia Bartley, who was a partner of the offender's between 2006 and 2009, also deals with the close relationship between the offender and his daughter. 84Rhonda Swadling describes the very caring nature of the offender. She states, in part: "At holiday times David would bring Lily's play equipment down to the river for the children to play on and I watched him spend time making sandpits for the children to use. David appeared to be very aware of where the children were so they would not come to any danger." 85She also states that he is very dedicated to his daughter and that he treated everybody with respect, and finally she states that "he is supporting, nothing was too much trouble and he seemed constantly concerned for the care of everybody around him". 86There is also a reference from Richard Dreyer, who is a retired police officer, who has known the offender for approximately 20 years and describes him as a hard worker and a competent tradesman. Mr Dreyer states that "often there would be several members of the police force camping on David's property with their children at the same time". Mr Dreyer states that he was shocked when he heard of the convictions, that the offender had always seemed very polite and got on well with women who visited the property. Mr Dreyer considered the offender as honest and very close to his daughter. 87The rest of the references speak highly of the offender and in particular they emphasise the close relationship he has with his daughter. 88His current partner, Cassandra Ernshaw, has remained supportive of him, indeed she is in court today together with some other members of the community where he lives. Ms Ernshaw has also provided a letter to the Court and describes how the offender and herself together with Lily, his child, and Mia, her child, have become a family. I have no doubt that Ms Ernshaw will remain supportive of the offender during the period that he has to spend in custody. 89I also have no doubt that the offender is a devoted father. I witnessed that concern at the conclusion of the trial in May. I have no doubt that Lily will struggle, albeit as any child would, with any prolonged separation from her father to whom she is so attached particularly at this young age. Hardship to the dependants and family members of offenders is, unfortunately, an unavoidable consequence any custodial sentence. 90Courts are frequently faced with such circumstances. However, the law provides that it is not a mitigating factor on the sentence of an offender unless that hardship is wholly, highly or truly exceptional. While any such separation is a matter for concern, it is not of the exceptional nature described in the authorities. That being said, I have taken into account the expected hardship of the offender's daughter and the impact upon him as part of the synthesis of the offender's subjective case. 91With respect to special circumstances, I do find special circumstances. This is the first time the offender is subject to a term of imprisonment. He will require a longer than usual period of supervision to assist him in his reintegration back into the community both psychologically and practically. Special circumstances may also be found in the fact that there was a different sentencing practice in relation to fixing of the non-parole period at the time of these offences which did not require a finding of special circumstance in order to avoid a statutory relationship between a non-parole period and the balance of the term. 92Not withstanding the subjective circumstances of the offender, general deterrence, remains a relevant matter in this case. The sentence needs to reflect the nature of the offending and to be proportional to the criminality involved in the offences committed. 93During the course of submissions I referred to the decision of AJB and in particular with reference to the statement made there that general deterrence was not a significant matter in the applicant's case because, in light of the very lengthy period that had transpired between the offences and the passing of the sentence and his reform, it was not appropriate to make an example of him to deter others from similar conduct. 94I cannot fully agree with that statement. Notwithstanding the fact that it has been some 36 years, I find that general deterrence is a factor that I should take into account in light of the nature of the offending behaviour. 95In imposing sentence I have had regard to the purposes of sentencing which are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. I have particularly had regard to general deterrence, recognition of the harm done to the victim, punishment and denunciation. 96That said, in a case such as this where there has been such a lengthy delay between the offence and sentence and where the offender is rehabilitated, it seems to me that it is the fact of imprisonment as well as the length of the sentence which will be of great significance to punish the offender and denounce his conduct. The weight to be given to general deterrence in this case is moderated by virtue of the fact that there has been a very lengthy period that has transpired between the offences and the passing of sentence and his reform. However, as I have said, general deterrence remains a relevant purpose of sentencing and must be given significant weight. 97After considering the purposes of sentencing and other matters which I have set out, I am satisfied pursuant to s 5 of the Crimes (Sentencing Procedure) Act 1999 that no penalty other than full-time imprisonment is appropriate, and indeed there has been no dispute about that. 98Each offence was substantially contemporaneous and in a sense connected, however the sentence for one offence cannot completely, in my view, comprehend the criminality of any of the other offences. Each offence was characterised by separate serious acts of criminality with four different principal offenders. Accordingly, the sentence for each will be partially accumulated. However, I do intend to impose an aggregate sentence in this matter. Before I do so, I am obliged to set out indicative sentences with respect to each of the offences. 99With respect to count 1, that is contrary to s 89 of the Crimes Act 1900, the indicative sentence is one of three years. 100With respect to count 2, that is the count that this offender raped the complainant, the indicative sentence is seven years. 101With respect to count 3, again a count of rape involving this offender as the principal offender, the indicative sentence is seven years. 102With respect to count 4, that is a count of rape where the offender aided and abetted Mark Johnson, the indicative sentence is five years. 103With respect to count 5, again a count of rape where the offender aided and abetted Edward Lewockie, the indicative sentence is five years. 104With respect to count 6, that being the indecent assault perpetrated by Rudolf Reichel, the indicative sentence is one of nine months. 105With respect to the attempted rape where this offender's liability is one as aider and abetter the indicating sentence, that is on count 7, is four years. 106With respect to the indecent assault perpetrated by this offender, that is count 8, the indicative sentence is 18 months. 107In terms of the aggregate sentence, Mr Stevens, you are convicted. Taking into account special circumstances, I impose an aggregate sentence of ten years imprisonment to commence from today, 1 August 2014, and expiring on 31 July 2024 with a non-parole period of four years six months commencing from today, 1 August 2014, and expiring on 31 January 2019. In imposing that sentence I have taken into account the one day you spent in custody. On 31 January 2019 you will be eligible for release to parole. 108The exhibits will be returned forthwith. 109HER HONOUR: Any other orders sought? 110SPEAKER: Would your Honour consider making a direction that your remarks on sentence be taken out and placed on the court file. 111HER HONOUR: Yes, and I'll also have the statistics together with the tables relating to those statistics placed on the court file and attached to my reasons.

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