R v Flinders

District Court of NSW|2019-10-10

Solicitors: Solicitor for Public Prosecutions (Crown) Legal Aid Commission NSW/ACT (Offender) File Number(s): 2018/00024014

Judgment

On Monday 22 July 2019, the jury found the offender not guilty of counts 1 to 3 and guilty of counts 4 to 7.

Count 4, sexual intercourse with a child (14 years) whilst under authority.

During the course of the trial, the Crown amended the dates of the count to between 1 September 2017 and 21 January 2018. It was clear that the offence occurred prior to count 5 and I am satisfied by the jury verdict that it occurred prior to 27 December 2017.
The offender told the complainant that he wanted to go to sleep in her bedroom after staying awake the previous night. The offender told the complainant to put something on in the room for him to watch and fall asleep to. The complainant, wearing a nightie, went into her bedroom to put a DVD on and the offender lay on the bed. As the complainant went to leave the room, the offender then told the complainant to come back, take your pants off and stand on the bed facing the wall. At this time, the offender was half sitting and half lying down on the bed. The complainant did what she was told and the offender then inserted his tongue into the victim's vagina and moved his tongue in circular motions. After about ten minutes, the complainant told the offender that her legs were hurting and he stopped what he was doing. The complainant got off the bed and pulled her underpants back up. The offender got up from the bed and left the room.

Count 5, sexual intercourse with a child (14 years) whilst under authority.

On Wednesday 27 December 2017, the complainant was 14 years of age and the accused was 30 years of age. The victim was home alone with the offender as her mother, it was said, was at work. The complainant was sitting on the futon lounge in the lounge room. She was wearing a t-shirt, shorts and underwear. The offender approached the complainant and told her to remove her shorts and underwear. The complainant complied with these instructions and the accused lay on the lounge and put his head between the complainant's legs. While there, the offender inserted his tongue into the complainant's vagina and performed cunnilingus upon the complainant for about 15 minutes.

Count 6, sexual intercourse with a child (14 years) whilst under authority.

On Sunday 21 January 2018, the complainant was fourteen and the offender was 30 years of age. The offender and the complainant watched a movie in the lounge room of the home before cooking pancakes. Later in the day, the offender told the complainant to put a movie on for him within the master bedroom as he wanted to go to sleep. The complainant went into the master bedroom and put on a DVD of a television show. The complainant lay on the bed and placed a doona over her legs as she watched the TV while the offender was eating. The offender entered the bedroom some time later.
The complainant was wearing a nightie, grey shorts and underwear while the accused was wearing a white thermal top and either green shorts or black tracksuit pants. The offender lay on the bed next to the complainant and said "Take off your pants". The offender then motioned with his hand for the complainant to come to him and said "Sit on my face" as he motioned for her to face towards the television. As the complainant did this, the offender told her to "turn around" and held her by the buttocks and upper thighs while he inserted his tongue into her vagina and performed cunnilingus upon the complainant.
After 15 to 20 minutes, the complainant said "My legs are hurting". The offender stopped and let go of the complainant who lay down next to him and pulled her pants back up. The offender then got up and left the room.

Count 7, sexual intercourse with a child (14 years) whilst under authority.

The complainant remained in the master bedroom as she was unsure what to do. Approximately five minutes later, the offender returned to the master bedroom and said to the complainant "Get back up, I want to eat again". The complainant removed her shorts and underwear and straddled the offender's face. The offender inserted his tongue into the complainant's vagina and performed cunnilingus upon her causing her pain. After a few minutes, the complainant said "It hurts". The complainant lay down next to the accused and began to cry. The accused said "If you're crying because you have a guilty conscious, you didn't say 'No' or do anything to stop it". The complainant began to cry more and the accused said "I can't deal with this" and went to sleep.
Later in the day, the complainant went to her grandparents' house and made a complaint about the inappropriate behaviour of the offender. Police were called as a result of this complaint and the complainant participated in a JIRT interview on Monday 22 January 2018. The offender denied the allegations in a recorded interview with the police and gave sworn evidence before the jury. The jury, by majority, in relation to counts 4 to 7, have accepted that the complainant was an honest and reliable witness beyond reasonable doubt.

AGGRAVATING FACTORS S 21A(2)(e)(b). THE OFFENCE WAS COMMITTED IN THE HOME OF THE VICTIM

The offender was in a relationship with the victim's mother. All three lived together. The offender had been in a relationship with the victim's mother since the victim was approximately five years of age and he played a significant part in her life since that time. I accept the Crown submission that the victim would have an expectation that home was a place of safety. The expectation was violated. The offences occurred in the family home.

OBJECTIVE SERIOUSNESS

The fact that the offender was in a position of authority over the victim cannot be taken into account as an aggravating feature, however, when assessing the objective seriousness of the offence, it is appropriate to assess the nature and seriousness of the offender's breach of duty as an authority figure. In assessing the objective seriousness of the offending, I take into account the following factors in relation to each offence individually: 1. The form of conduct or intercourse (not to be regarded as the sole consideration); 2. The degree of violence. In this case, there was no violence; 3. The physical hurt inflicted. In relation to count 6, the complainant complained that her legs were hurting and in count 7, she made a complaint that whilst the offender was performing cunnilingus , it hurt her; 4. Any circumstances of humiliation. It is apparent that the complainant was distressed in relation to count 6 and 7 as she was reduced to tears and was met with the offender saying "You're crying because you have a guilty conscience. You didn't say 'No' or do anything to stop it" with him then saying "I can't deal with this" and then he went to sleep; 5. The duration of the offence. It would appear that each offence was of short duration; 6. The age difference between the offender and the victim. The victim was 14 years of age, the offender was 30 years of age. It is a significant age difference between the two and adds to the degree of seriousness in relation to the offences; 7. The inequality of the relationship (if any existed) between the offender and the victim. The offender was in the role of a stepfather and abused that position but I must be careful not to double count that because it is a circumstance of the offence in that the charge is one that the offender had authority over the victim.
The conduct of the offender was predatory and opportunistic. His conduct was serious but did not involve penetration. The offending conduct was objectively serious. The principle that is to be applied to the offending is "general deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the Courts is to send a message to those who would sexually abuse children intentionally and repeatedly, that their actions will not be tolerated and that they will receive significant punishment": EG v R [2015] NSWCCA 21, Hoeben CJ at CL at [42].
Ms Lewer submits that there were never any other accompanying acts of penetration when considering the type of act. Cunnilingus is defined as sexual intercourse: s 61HA(d). There is nothing in this definition which indicates that any form of sexual intercourse is more or less serious than any other form. There is no "hierarchy" of sexual offences ranked by the level or degree of seriousness according to the particular kind of penetration or sexual connection: R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575 at [24], Tindall v R [2019] NSWCCA 136, Simpson AJA at [12].
In Tindall, it was held that the absence of an aggravating factor does not diminish the gravity of the offence which must be assessed on its own facts: [6]-[8]. I do not find that the absence of acts of penetration is a relevant consideration in assessing the objective gravity of the offending of the offender.
Ms Lewer on behalf of the offender submits that when regard is had to the position of authority, the nature and circumstances of the intercourse, the absence of violence, threats and coercion, the absence of grooming behaviours and the period of time over which the offences occurred, the offences fall somewhat below the middle of the range for offences of the same type.
Reliance upon the absence of a factor is not a correct approach and needs to be rejected. As Simpson AJA in Tindall said at [7], "It reflects an approach that has repeatedly been rejected by this Court dating back before 2009, pithily expressed by Grove J in Saddler v R [2009] NSWCCA 83; (2009) 194 A Crim R 452, when his Honour said: '3 It is a well established common law sentencing principle that the absence of a factor which would elevate the seriousness of offending in a particular case is not a matter of mitigation. In plain language, it does not make what has been done by an offender less serious because it could have been worse.'"
Her Honour also referred to Bravo v R [2015] NSWCCA 302, Mills v R [2017] NSWCCA 87; R v CGT [2017] NSWCCA 163 and Faehringe v R [2017] NSWCCA 248. Her Honour referred to what RA Hulme J said in Mills at [57] "…The fact that it is possible to identify factors which are absent which, if present, would have made the offence more objectively serious, does not make the offence less serious than it is".
The Crown submits that the offence is mid-range. I find that the offences are slightly below the mid-range of objective seriousness.

SUBJECTIVE FEATURES

The offender is now thirty two, he was thirty at the time of the offending. I have before me a letter from his mother dated 4 October 2019 which informs me that the offender was born in the United States in Houston, Texas and lived there until they moved to Australia in April 2000. He was 13 years of age when his father and his mother divorced. She says that during Matthew's childhood, he was always a very bright child, excelling in his schooling and being recognised as a gifted child and was asked to sit the College entrance exams (SAT's) while he was in year 7. He did very well and was given a letter by Duke University offering him a place with them once he graduated year 12. Matthew was advanced a year when he arrived in Australia because they felt he was more advanced and would be better suited to moving ahead. Matthew was a prefect and leader during his high school senior year and did well in his studies. The letter informs me that the offender had some time in the Australian Army.
It goes on to say that she became estranged from her son for a period of time. This was during his relationship with RS. "Matthewwas drinking a lot during this time and I broke off contact. Matthew has always had a strong family support system both in the United States and here in Australia. During the past 21 months, Matthew has been supported by visits, letters and phone calls from his family. We have endeavoured to guide him during this time to focus on future plans and putting his time to use with study while he was awaiting trial."
She says that Matthew will always have the support of his father in the States, herself a registered nurse and his stepfather, Directing Manager along with his siblings in achieving his goals. "We will always be available to him for support".
There is a letter from the offender which tells me that he started working in hospitals and worked as an operating theatre orderly. After he injured his knee, he turned to alcohol to self-medicate, not only the physical problems of his knee but also his depression. He had always struggled with certain abuses at the hands of his sister when he was young. He went back to working in the operating theatre which he continued to do for a number of years until he moved to Penrith where it was incredibly difficult for him to find work.
Since he has been incarcerated, he has stayed out of trouble and has worked when there has been the opportunity and he has taken courses and attended church and was baptised at Goulburn. He informs me that he will be returning to the United States when his sentence has expired. He has concluded a number of programmes in gaol including TAFE programmes to further his education.

PROSPECTS OF REHABILITATION

The offender has a limited criminal history. He has never received a custodial sentence. He has never been dealt with for any sexual offence in the past. There is no evidence that the offender suffers from major mental illness or other disorder such as paraphilia which would adversely impact upon prospects of rehabilitation. He has already undertaken some programmes in custody which is significant given the limited number of programmes available to people on remand. He will likely have access to additional programmes while in custody once he has been sentenced.
The offender also has the support of his family in Australia and the United States which is a factor which will assist his prospects of rehabilitation in the future. There is no evidentiary basis for the Court to conclude that he poses any significant risk of re-offending after release. I find that the offender has prospects of rehabilitation.

TOTALITY

There should be a degree of accumulation between each offence. The total aggregate sentence derived through the process of accumulation of individual sentences must appropriately reflect but not exceed the overall criminality in the multiple offences.

SPECIAL CIRCUMSTANCES

I find that there are special circumstances due to the age, first time in custody and the need for extended supervision for the offender to be re-integrated into society. It would appear that he had a major alcohol abuse problem before the offending and during the course of the offending and it may have been part of the causation of his offending. This will need to be addressed and that is why I take the view that special circumstances exist to have a lengthy period of parole for the offender to be supervised while he is in the community.

ONEROUSNESS OF CUSTODY

It was submitted by Ms Lewer that because of the nature of the offences, the offender has served his time on remand in protective custody to-date. She went on to say that there is no basis to conclude that this will change in the future. I do not have any evidence before me in relation to the custodial situation of the offender, nor what will his custodial situation be after I pronounce my sentence therefore, I am unable to make any findings about the onerousness of custody due to the lack of evidence.

COMMENCEMENT DATE OF SENTENCE

The offences were committed between November 2017 and January 2018. On 23 January 2018, the offender was arrested. He has been bail refused since that date. The parties agree that the commencement date for sentence should be 23 January 2018.

SENTENCE

In my view, the matters that are paramount in regard to sentencing of the offender are general deterrence, specific deterrence, denunciation and protection of the community. Pursuant to s 53A of the Crimes (Sentencing Procedure) Act, I impose an aggregate sentence. Each offence has a standard non-parole period and I am required to indicate the indicative non-parole period for each offence.
Count 4, the indicative sentence is 42 months, the non-parole period is 31 months.
Count 5, the indicative sentence is 42 months, the non-parole period is 31 months.
Count 6 and count 7, I find to be objectively more serious than the previous two counts. Count 6, the indicative sentence is 44 months with a non-parole period of 31 months. Count 7, the indicative sentence is 44 months with a non-parole period of 31 months.
I impose an aggregate sentence of 12 years imprisonment with a non-parole period of eight and a half years. The commencement date for sentence 23 January 2018. The head sentence will expire on 22 January 2030. The offender will be eligible for parole on 22 July 2026.
I am obliged to tell you of the existence of the Crimes (High Risk Offenders) Act 2006 which applies to "serious offences" including the offences for which you have been sentenced. In summary, this means that the State can apply to the Supreme Court for an order that you continue to receive supervision or be held in detention at the end of your sentence if the Court considers you would be a "high risk offender" who poses an unacceptable risk of committing a serious offence.
It is therefore in your interest to engage in rehabilitation opportunities that may be offered to you in the course of your sentence.

Amendments 25 February 2021 - - anonymised name of witness. 25 February 2021 - Offender given a pseudonym. 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: 25 February 2021

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Judgment (16 paragraphs)

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Cases Cited (8)