R v DH

Assessment

1. In assessing the objective seriousness of an indecent assault (which is the subject of count 2), the nature and degree of the physical contact involved in the offence, the degree of force and the circumstances of humiliation are all relevant considerations. [1] An assault on a sleeping victim has been held to be in the upper end of the range of objective seriousness. [2] The Crown submitted that these principles are also applicable to an offence of sexual assault.
2. More specifically in assessing the objective seriousness of counts 1 and 3, I note the relevant considerations referred to by Price J (with whom James J agreed) in R v Hibberd [2009] NSWCCA 20 at [56]. There His Honour stated: Relevant considerations in determining where on the scale of seriousness an offence contrary to s 61I of the Crimes Act lies include "the degree of violence, the physical hurt inflicted, the form of forced intercourse and the circumstances of humiliation…" See Regina v Gebrail (Court of Criminal Appeal, 18 November 1994, unreported) per Mahoney JA at 10-11. To those matters I would add the duration of the offence. Non-consensual sexual intercourse by digital penetration has generally been considered to be less serious than an offence of penile penetration: see, for example, Regina v Santos Da Silva (Court of Criminal Appeal, 30 November 1995, unreported) per Grove J at 3, but each case will depend on its own facts. There is no canon of law which mandates a finding that digital penetration must be considered less serious than other non-consensual acts of sexual intercourse. Whilst the form of the forced intercourse is an important factor it is not to be regarded as the sole consideration.
3. The Crown submitted that count 2 fell in the mid-range of objective seriousness and counts 1 and 3 were above the mid-range.
4. The Defence submitted that each offence fell below the mid-range bearing in mind: 1. The offending itself was of relatively short duration. 2. The level of violence involved was not significant (albeit that the offences are offences of violence in and of themselves). 3. The injuries sustained were not substantial; and 4. It was opportunistic.
5. In this case, the victim's evidence was that the offender and herself were social friends and that she denied having any sexual relationship or intimacy.
6. Relevant to the assessment, I note that in each instance the offender: 1. Knew that the victim was not consenting as the victim was asleep; and 2. Obtained video footage of himself committing the offences.
7. The recording added to the humiliation and degradation of the victim and is an aggravating factor. There is no evidence however of the recording being disseminated.
8. Count 1 involved digital penetration and count 3 involved unprotected penile vaginal intercourse. There is no evidence of ejaculation. Count 2 involved skin on skin contact and the offender's mouth/tongue was on the victim's bare skin.
9. I can only be satisfied beyond reasonable doubt as to one finger being involved in the penetration of the vagina in Count 1. The offender is to be sentenced on this basis.
10. It was accepted by both parties that the offence was aggravated pursuant to s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the 1999 Act) as it was committed in the home of the victim as she was entitled to feel safe and secure. As far as the duration of the offending is concerned, counts 1 and 2 were relatively short and count 3 appear to be subsisting at the time that the video finished. I accept that in this case there was no evidence of violence beyond what was necessary for the offender to achieve his ends. Whilst there was no evidence of any physical hurt occasioned to the victim, she was of course asleep.
11. So far as the Defence submission that the offending was opportunistic, I accept that the equipment was obviously set up for the purposes of recording. What that equipment comprised of is not apparent. It is also not apparent whether the offender took any further action by way of preparation or undressed the victim. There is no evidence as to how the victim became intoxicated. The victim did however give evidence that she would sometimes be blackout drunk and her drinking when at Queen's Park was "pretty bad" [3] resulting in her falling asleep. In the circumstances, it appears that the offence involved some planning, although not much.
12. Overall, I would assess Counts 1 and 3 as being somewhere around mid-range and Count 2 below mid-range.

Victim Impact Statement

1. The victim provided a Victim Impact Statement (VIS) and stated that when she was contacted by police she was in utter shock and disbelief and had no memory of the video or the sexual occurrence taking place. She stated that she felt a betrayal of trust and has moved homes and state as she was worried that the offender would seek revenge. She felt that the offender's denial of the offence caused her to go through a horrible and embarrassing process. She described the offender as her best friend and that he took advantage of her and destroyed their friendship.
2. The Crown did not rely upon the VIS to engage to s 21A(2)(g) of the 1999 Act.
3. The impact of such offending is something that is real and personal regardless of whether the victim was asleep or not. It is important for the Court and the community to be reminded of it. The Court takes the VIS into account in the way the law provides pursuant to s 30E of the 1999 Act.

Subjective matters

1. The offender did not give evidence before me but relied upon a certificate of acknowledgement from John Morony Correctional Centre dated 17 September 2020, a certificate regarding Positive Lifestyle Programme dated February 2021, a report of Dr Richard Furst dated 12 February 2022, a letter from his parents dated 17 February 2022, a work readiness certificate from Mr J. Berry (Chief Industries Officer) at Corrections NSW dated 22 February 2022, a medical report from Dr Nimali Silva dated 10 March 2016, a report from Blacktown and Mt Druitt Hospital Medical Imaging dated 11 December 2020, a report of Dr Paul Darvenza to Dr Jun Zhang dated 17 August 2017 and a report from Dr Zhang dated 19 June 2019.
2. The Crown as part of its tender bundle included a report of Dr Christopher Lennings (psychologist) dated 1 June 2012 which related to earlier sentence proceeding involving the offender. Also tendered was the SAR dated 3 May 2022 together with an undated report from Mr Andrew McAlpine (psychologist) from John Moroney Correctional Centre.

Antecedents

1. The Crown argued that s 21A(2)(d) of the 1999 Act applied and as such the principles in Veen v The Queen [No 2] (1998) 164 CLR 465 were engaged as the offender had a prior conviction for a previous serious personal violence offence within the meaning of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) which was punishable by imprisonment for a term of 5 years or more.
2. The offender accepts that he has prior convictions but indicates that it is not an aggravating factor under s 21A(2)(d) of the 1999 Act.
3. The offenders record indicates that he was sentenced on 20 July 2012 to two charges of aggravated indecency - victim under 16 and whilst under the authority of the offender. These occurred between 22 January 2007 and 16 February 2007. The offender was sentenced to 120 hours of community service and a suspended sentence for 1 year subject to supervision. He was called up on 20 September 2013 in respect of the former order and placed on a 3-year s 9 bond with a requirement to undertake programs, treatment and counselling.
4. The offender has had a series of convictions thereafter for what appear to be relatively minor offences including drug possession, driving and shoplifting.
5. However, on 10 March 2021, the offender was convicted and sentenced to 12 months imprisonment commencing 18 August 2020 in respect of failing to comply with reporting obligations between 18 January 2020 and 13 February 2020. On 22 June 2021, the offender was convicted and sentenced to 11 months imprisonment commencing 19 November 2020 in respect of failing to comply with reporting obligations on 18 August 2020.
6. Essentially, the offender's criminal history indicates that he has been in custody continuously since 18 August 2020. His criminal history is such that he is not entitled to the leniency. I bear this in mind. I also bear in mind that the offender is effectively serving his first occasion of imprisonment and some time has elapsed between the 2012 offending and the offending in this case. Taking these matters into consideration, I do not consider that retribution, deterrence and protection of society indicate that a more severe penalty is warranted within the terms described in Veen v The Queen [No 2] (supra). Accordingly, I find that the aggravating factor in s 21A(2)(d) of the 1999 Act is not engaged.

Background

1. According to the report of Dr Furst, the offender was born in Sydney and attended local schools. After completing year 12 and some TAFE courses, he commenced in several capacities over the years including hospitality, real estate, running a cleaning business and as a car buyer.
2. Dr Furst obtained a history from the offender working in real estate in his 20s and then starting in a cleaning business with his then partner in his 30s. He then had an emotional breakdown because of the collapse of that business in 2004.
3. The offender described being in a de-facto relationship with a partner between the ages of 27 and 33. His then partner had two children of her own who become his stepdaughters and together they both had two further children.
4. The relationship ended in 2007 in circumstances discussed below.

Alleged Abuse

1. The report of Dr Furst does not indicate any dysfunctional upbringing. Dr Furst does however record that the offender claimed that a brother who was six years his senior, sexually abused him from the time that he was 9 years of age until he was 11 years of age. He stated that his brother would wake him up when he was asleep and would play with his genitals and would also take him into the shower when he was awake making him perform fellatio on him. The abuse is described as only stopping when his older brother went to live in Newcastle to attend university.
2. Dr Furst recorded that the offender did not disclose the abuse he suffered to anybody at the time and struggled with those abuse experiences, suppressing memories and not telling anybody. He recorded that he felt depressed and that he wanted to tell his parents but was unable to do so.
3. The offender stated that his childhood victimisation and depression had a negative impact on his de-facto relationship.
4. Dr Furst recorded that the offender stated that he told his then partner that he had an issue with masturbating in front of others and would sit in the car and masturbate whilst people walked past - an apparent disorder of compulsive masturbating describing it as commencing when he was about 17 years of age and continuing until his early 30s.
5. The offender also described attempting suicide on numerous occasions over the years and has seriously contemplated it on several occasions. Dr Furst says this was suggestive of longer-term effects of childhood sexual abuse victimisation.
6. Thereafter, the offender was diagnosed with depression and prescribed antidepressant medication in 2005. Treatment was obtained through Dr Hala Gobran (his then GP). Dr Furst also obtained a history that the offender engaged in psychotherapy with Dr Kamal Touma. This was said to have involved 12 sessions of therapy in 2007 although Dr Lennings refers to there being as many as 20 sessions.
7. The offender's de-facto relationship ended in 2007 because of offending behaviour towards his older stepdaughter. Consequently, the offender was not allowed access to his biological children. The offender claimed that he was unemployed for several years thereafter and has lost most of his friends. There were also other allegations relating to his stepdaughter in the late 2000s which the offender maintained never happened and which were eventually no billed. This led to him accumulating stress approaching trial in 2012 that never eventuated. He then pleaded guilty to two counts of aggravated acts of indecency, victim under 16 and under authority of the offender.
8. Dr Furst records that the offender stopped taking medication for his depression in 2008. He has been prescribed Valium for anxiety in 2011 and has been on and off antidepressant medication and Valium over the last 10-12 years for apparent symptoms of stress, anxiety and depression.
9. Dr Furst records that the offender disclosed his childhood sexual abuse to Ms Jill Samowitz (clinical psychologist) between the latter months of 2019 and midway through 2020. He talked to Ms Samowitz about having been sexually assaulted by his brother and that he disclosed that abuse to his parents, which was very difficult to do. He described being keen to continue working with Ms Samowitz when released on parole as the psychological work he was doing with her was helpful including developing greater insight into the impact of his own childhood victimisation on his thoughts, beliefs and self-worth.
10. Dr Furst records that the offender spoke to a psychologist in custody about the sexual abuse he suffered at the hands of his brother several months ago. He had been prescribed Endep for his depression and received for treatment of nerve or neurological condition because of a cerebral vasospasm/stroke-like incident he suffered in December 2015.
11. Overall, Dr Furst opined that the offender's primary psychological and psychiatric problems relate to his reported history of child sexual abuse in his late childhood/early teens; internalisation and suppression of that abuse experience; a paraphilic disorder that emerged when he was about 17 or 18 years of age and persisted into his 30s, characterised by obsessive masturbation in public in the presence of unsuspecting people who apparently did not realise what he was doing and/or were asleep and likely somnophilia; substance abuse including regular use of cocaine and methylamphetamines; and a more recent history of unemployment, stress and anxiety.
12. The Defence urged acceptance of the offender's account drawing attention to the USB recording of the sexual acts being dated in 2016 being a date preceding the offender's arrest.
13. For its part, the Crown submitted that the Defence bore the onus of establishing that the offender was sexually abused as a child on the balance of probabilities. It noted that the reported sexual abuse was first described as being reported to Ms Samowitz just prior to the offences but this was at a time he was under investigation. Furthermore, the offender's report to Ms Samowitz is in total contrast to the earlier report prepared by Dr Lennings in relation to earlier offences.
14. The Crown submitted that in the absence of evidence, the Court would regard the assertion that the offender was sexually abused in boyhood with great caution without evidence from the offender considering the absence of corroboration from his parents and the fact that it may be a convenient invention to his clinical psychologist. Specifically, it drew attention to the absence of the notes of the clinical psychologist in this regard.
15. The offender's parents' letter to the Court dated 17 February 2022 makes no reference to the alleged abuse that is recorded by Dr Furst. The clinical notes of Ms Samowitz have not been tendered. Dr Lennings in his report records seeing the offender in multiple treatment sessions in 2007 as well as speaking to Dr Kamal Touma who the offender consulted for an extended number of therapy sessions. Dr Lennings also perused other records relating to the offender before conducting an updated interview in 2012. Yet nowhere does it appear that the alleged abuse is documented. To the contrary, the offender reported a good family background with no domestic violence, physical, sexual or emotional abuse at home.
16. The offender has not been called to given evidence. Overall, I am not satisfied that the allegations of sexual abuse by the offender's brother should be given any weight.
17. Having said that, I can accept that the offender suffered depression consequent to the failure of his business in 2004. Although he described to Dr Furst being prescribed antidepressant medication in 2005, Dr Lennings records that this was in 2004 and consequent to the business failure. Both reports record that this continued for a few years before being stopped. However, antidepressant medication and Valium again came to be used on and off for the last 10-12 years for apparent symptoms of stress, anxiety and depression. According to Dr Lennings, this coincided with the offender's loss of access to his children and the laying of court charges.

Drug and Alcohol

1. Dr Furst obtained a history in respect of the offender's drug and alcohol use and gambling. In respect of drinking, he was described as consuming to a mildly hazardous level when assessed by Dr Lennings in 2007. His heavy drinking was described as following losing his business.
2. The offender described using drugs on a regular basis from his mid-30s onwards, around the time of his marital separation and the charges that he faced in relation to his stepdaughter at the time. He described using both cocaine and ice approximately weekly especially when he was low/anxious. He continued his drug use over the following 10-11 years but reduced substantially after working with Ms Samowitz in 2019.
3. The offender also described having a history of problematic gambling, especially in the period after his aunt died in 2016.

Health

1. A letter provided to the Court by the offender's parents indicates that the offender was the fourth of 5 children. It describes that at the age of 8-10 he stopped growing and was medicated by a paediatric specialist and that later in high school he had a tachychardia. These matters were described as affecting him academically and in his sporting development.
2. In relation to the medical history, the offender was also diagnosed with lipoma on the brain by the neurosurgeon Dr Pell in 2016. His symptoms worsened whilst in custody in December 2020. As a result of the symptoms, he was sent for an MRI scan which showed his lipoma had increased by 0.25cm in 2016 to 2.5-3.0cm in his most recent MRI in December 2020. He has neuropathic pain affecting his neck, arms and hands, which is the primary reason for using Endep being a tricyclic antidepressant medication with analgesic properties.

Prospects of rehabilitation and likelihood of re-offending

1. Apart from the alleged childhood sexual abuse, Dr Fust noted the offender's primary psychological and psychiatric problems relate to a paraphilic disorder that emerged when he was about 17 or 18 years of age and persisted into his 30's characterised by obsessive masturbation in public in the presence of unsuspecting people who apparently did not realise what he was doing and/or were asleep and likely somnophilia, substance abuse including regular use of cocaine and methylamphetamine and a more recent history of unemployment, stress and anxiety. Dr Furst opined that although the offender denied the offending, the description of the offending would fit with somnophilia being a condition that would account for his behaviour of masturbating in front of his stepdaughter when she was asleep in the early 2000s.
2. Dr Furst's concurred with Dr Lennings diagnosis of paraphilia. The Crown submitted that the timeline would add to the apparent excitement from sexual thrill from masturbating in the presence of his stepdaughter being asleep (or thought to be asleep) [one of the 2007 offences] raising the likelihood of the presence of a somnophilia (being sexually aroused by people who are sleeping). This was especially so having regard to the contents of the recorded sexual interactions between himself and the victim.
3. Dr Furst opined that the offender's prospects would be improved by completion of the HISOP (high-intensity sex offender program) or MISOP (medium intensity sex offender program). When released to parole, Dr Furst recommends appropriate referral/psychological interventions in relation to his paraphilic disorders being Forensic Psychology Services, a specialised division of Community Corrections. Sessions with Ms Samowitz would also be of assistance in relation to his reported symptoms of stress, anxiety and depression. Dr Furst also recommended that the offender engage with a psychiatrist working for Justice Health with a view to commencing treatment with either a SSRI antidepressant medication and/or an anti-libidinal medication most likely Zoloft and/or Androcur. He stated that a forensic psychiatrist would then be required to continue such treatment on an ongoing basis in the community.
4. The SAR notes that the offender revealed that at the time of the offences he may have had illicit drugs and/or cocaine in the system but he did not see illicit drug use as an addiction but rather a social thing when triggered about his childhood. The offender attributed his offending behaviour to his childhood trauma which he stated resulted in himself medicating with drugs and alcohol.
5. The SAR notes that the offender was last supervised under a s 9 bond for sex related offences. Perusal of service records indicated that the supervision component was terminated as he had attended risk related programs. Since coming into custody he did not come to the attention of custodial staff for anti-social behaviour and has gained employment in corrective services industries and service records indicate he is a valued employee.
6. Applying the Static-99R instrument, Dr Furst found the offender equated with an average risk of future offending compared to the typical offender - around the 12% risk of re-offending in the 5-year period post release seen in the average male sex offender in NSW. In coming to this assessment, Dr Furst opined that the risk classification was consistent with the offender's overall clinical and dynamic profile. Specifically, he was engaged in psychological therapy, was employed for several years in the past and had a long-term relationship with his then partner and has a dynamic risk factor that relate to unresolved sexual deviance, a history of childhood sexual abuse and related emotional problems and continues to deny the current offending.
7. The report from Mr McAlpin, assessed the offender as being an above average risk compared to other male sex offenders on the STATIC-99 considering the offender's previous sex offences, the non-contact nature of his past sex offence, significant sentencing occasions, and the nature of his victims being unrelated to the offender. The offender's age at the date of release was considered a protective factor associated with a slight reduction in his overall risk of re-offending.
8. I have not been provided with the relative scores from the Corrective Services psychologist as opposed to the comprehensive report and detailed scoring that was being prepared by Dr Furst. Both assessments appear to have factored in the offender's claims of being subject to sexual abuse a matter which I do not find established on sentence.
9. With that qualification, I would still prefer Dr Furst's assessment of the offender as being an average risk of future offending. I accept that the risk of re-offending can be reduced by attendance to the programs and treatment recommended by Dr Furst noting that these broadly correlate with those recommended in the SAR.
10. The offender otherwise appears to have pro-social family support from his parents. The SAR indicates that although the offender maintained his plea, he was willing to engage with interventions.
11. The offender completed the Positive Lifestyles Program which is an 8-week course run by the Salvation Army including one on one sessions with the prison chaplain, weekly modules to be completed in time for preparation for class. The course covered self-awareness, anger, depression, loneliness, stress, grief, loss, assertiveness, self-esteem and future directions.
12. Dr Furst records that the offender engaged well with Positive Lifestyles and that it had been working well in custody making a reasonable adjustment over the last 18 months.
13. Overall, I would find that the offender has average risk of reoffending and provided he follows through on the recommended actions has reasonable prospects of rehabilitation

Time in Custody

1. Dr Furst also noted that the offender's background and psychological issues and his general clinical profile suggests that he is unlikely to find the custodial setting more onerous than the average inmate coming before the courts for sentence facing similar charges.
2. The Defence nonetheless submitted that COVID-19 has resulted in an increase in onerous conditions and the Court has been asked to take those onerous conditions into account. The Court is mindful that the pandemic has caused the suspension of in-person family visits, as well many courses and programmes. There have also been frequent lockdowns in prisons, with reduced minimal time out of cells. There has also been an increase in the need for isolation due to the presence of COVID-19 in custodial settings.
3. The offender's parents' letter to the Court documents some of the impacts that COVID-19 has had on the offender whilst he has been in custody.
4. I accept that the circumstances are such that the present COVID-19 pandemic is making incarceration more onerous generally particularly in terms of visitation and the need for physical distancing. Such has been acknowledged in Moodie v R [2020] NSWCCA 160 at [144] per Bell P (as His Honour then was).
5. The effects will no doubt vary during the pandemic, and I would also take into account the added anxiety caused by the fact of incarceration during the currency of the pandemic. It noted that the offender contracted COVID-19 in February 2022 and was transferred to MRRC.
6. I also note however that if appropriate circumstances arise, early parole may be available pursuant to s 276 of the Crimes (Administration of Sentences) Act 1999 (NSW).
7. Nonetheless, it is appropriate to take these matters into account and I do so.

Sentence

1. The offender was charged, and bail refused on 24 August 2020. At that time, he was already imprisoned for: 1. Failing to comply with reporting obligations between 18 January 2020 and 13 February 2020 - imprisonment for 12 months with 6 months non-parole commencing 18 August 2020; 2. Failing to comply with reporting obligations on 18 August 2020 - imprisoned for 11 months with 6 months non-parole commencing 19 November 2020. His non-parole period concluded on 18 May 2021.
2. Since 19 October 2021, the offender has been in custody exclusively in relation to the counts on which he is being sentenced for. The Defence submitted that the Court should consider imposing an aggregate sentence because this was one course of offending of continuing sexual assault and further given the principles of totality bearing in mind the time that he served.
3. I will propose to commence the sentence from 19 December 2020, it being accepted that the threshold in s 5(1) of the 1999 Act had been met.
4. In sentencing the offender, I bear in mind the purposes of sentencing is s 3A of the 1999 Act. The offender is to be punished, made accountable, his conduct denounced and the harm to the victim is to be recognised. The sentence needs to provide for general and specific deterrence and in that way provide protection for the community. The sentence also needs to provide for the offender's rehabilitation.
5. In sentencing the offender, I note the maximum penalties and standard non-parole period as guideposts.
6. I would make a finding of special circumstances to enable an appropriate ratio considering the earlier period of custody but also to account for the health conditions of the offender and need for an extended period of parole.
7. I will depart from the standard non-parole in the case of Counts 1 and 3 considering my assessment of the of the objective seriousness of the offending and the subjective factors referred to.
8. I propose to proceed by way of aggregate sentence and indicate sentences for each count as follows: 1. Count 1: 3 years and 6 months with a non-parole period of 2 years and 4 months. 2. Count 2: 12 months. 3. Count 3: 4 years and 6 months with a non-parole period of 3 years.
9. As such, the orders of the Court will be as follows:
10. The offender is convicted.
11. After considering principles of accumulation, concurrency and totality, I set an aggregate term of 5 years and 3 months imprisonment to date from 19 December 2020 to 18 March 2026. The sentence will comprise: 1. A non-parole period of 3 years and 4 months from 19 December 2020 to 18 April 2024. 2. An additional term of 1 year and 11 months from 19 April 2024 to 18 March 2026 during which the offender shall be eligible to be released to parole. 3. The offenders earliest possible release date shall be 18 April 2024.

Endnotes

1. See Zhao v R [2019] NSWCCA 203 at [85] (per Johnson J).
2. See EJDG v R [2012] NSWCCA 251 at [27]-[28] (per McClellan CJ with Latham and Fullerton JJ agreeing).
3. T 22 .35-23.1. 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: 14 June 2022