R v GAM

District Court of NSW|2020-06-11|Before: Spigelman CJ

Contents Judgment Introduction Charge, maximum sentence, SNPP Form 1 procedure Standard non-parole period The facts 2018 Count 1 - 2018 Objective seriousness - count 1 Count 2 - 2018: facts and objective seriousness 2005 / 2006 Count 1 and form 1 matter Count 2 Objective seriousness Section 21A. Subjective case Psychiatric report Testimonials Guilty plea Criminal history and Good character and prospects Likelihood of reoffending Relevance of the offender's own childhood sexual abuse Intoxication Victim impact statement Totality Special circumstances Sentencing considerations Orders

Introduction

The offender was born on 18 November 1973 and so is presently 46 years old. The offender is to be sentenced in respect of offending which occurred in October 2018 and in the period 1 December 2005 to 16 August 2006.

Charge, maximum sentence, SNPP

In respect of the 2018 offending there are 2 charges, both under the then section 61L of the Crimes Act being 2 counts of assault with an act of indecency. Each charge has a maximum sentence of 5 years imprisonment. There is no standard non-parole period. There are no matters to be dealt with by way of the Form 1 procedure nor are there any related or backup offences.
In respect of the 2005/2006 offending there is one count of aggravated indecent assault under section 61M(1) of the Crimes Act. This offence has a maximum penalty of 7 years imprisonment with a standard non-parole period of 5 years. There is a second charge under section 61 of the Crimes Act of common assault with a maximum penalty of 2 years. There is no standard non-parole period for this offence. In respect of the section 61M charge there is one matter to be dealt with by the Form 1 procedure. The offence here is a further occasion of aggravated indecent assault which occurred on the same occasion of the matter the subject of the charge.

Form 1 procedure

In regards to the Form 1 procedure which is relevant for the 2005/2006 s61M charge it is important that the focus remains on the principal offence for which the offender is being sentenced. The procedure allows that in doing this greater weight may be given to the elements of personal deterrence and the community's entitlement to extract retribution for serious offences. Those two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence; see Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ.

Standard non-parole period

I have noted the standard non-parole periods in respect of each charge above. The approach that I adopt in respect of the standard non-parole period is that it is to be considered a guidepost in the same way as the maximum sentence may be considered a guidepost.
The view I take is that although this is a sentence upon a plea, and not following a verdict at trial, I must give consideration to the SNPP. At [29] of Muldrock v The Queen [2011] HCA 39 it was said that Division 1A requires sentencing judges to state fully the reasons for arriving at the sentence imposed. In discussing what was required by section 54B(4) which was to the same effect as the current section 54B(3), the Court said that "the obligation applies in sentencing for all Division 1A offences regardless of whether the offender has been convicted after trial or whether the offence might be characterised as falling in the low middle or high range of objective seriousness for such offences". The obligation being referred to was the central purpose of Division 1A, to require sentencing judges to state fully the reasons for arriving at the sentence imposed.
Of course, a matter proceeding by plea gives an immediate point of distinction to a SNPP when the non parole period is being considered. So too may subjective factors and any allowance for special circumstances, as well as the assessment of the objective seriousness of the offending.

Count 1 - 2018

The agreed facts are fully set out in the Crown bundle which became exhibit B.
The victim was a friend of the offender's daughter who was having an eighteen birthday party. That party was on the offenders property but was held in the shed away from the main residence which the offender made known was off limits to the partygoers. The victim however was staying in the residence in the lounge room. The victim had drunk about 5 drinks and went to bed about 10.30pm sleeping in the lounge room whilst her boyfriend, a nephew of the offender, returned to the shed. The victim was 18 years old.
The victim was wearing jeans a singlet and a cardigan when she went to sleep. She woke up to someone touching her genitals from behind with her jeans unbuttoned and thought it was her partner. The person behind rubbed the victim on top of her underwear before pulling the underwear to the side and touching her until interrupted by a party goer. The touching is estimated to have occurred for approximately 1 minute. This is the first count of indecent assault. At the same time as that was occurring the victim could feel a penis rubbing against her bottom through her clothes and this is the second count of indecent assault.
It was when the person said "I just want to fuck" which was not the approach normally taken by the victims partner that the victim realised it was not her partner, rolled over and saw the person was the offender. The victim's boyfriend returned and began to look for the offender and found him in his bedroom with the door locked and refusing to open it for some time. Ultimately there was a confrontation between the boyfriend and the offender and the offender said he may have got confused and had been drinking a lot. 3 days after the offence the victim reported it to a police station. The victim reported feeling some pain in her genital region for 3 days following the offending.
When interviewed by police the offender said he had been smoking cannabis, drinking beer and having shots of spirits. He said he did not immediately recall what he had done but that it started coming to him through the day after he had been told. He said "I just feel like a really dirty old man and I can't say any more than sorry I'm really sorry for what happened". He went on to say "I don't remember doing any of those allegations it's just disgusting and yeah I just can't believe I did that… I just feel sorry for the girl".

Objective seriousness - count 1

In terms of objective seriousness I note that the offending was carried out on a young woman lying unconscious asleep in an environment (whether it relevantly be a home or not) where she was entitled to feel safe. I note also that as I read the facts and in particular the act of pulling the underwear to one side that there was skin on skin contact. Further that was in the area of the young woman's genitals. This conduct is a far remove from a slap on a clothed backside or the grabbing of a clothed breast of a conscious person (without minimising the wrongfulness of such conduct). I consider the act to be above the low level of objective seriousness and being into the mid range.

Count 2 - 2018: facts and objective seriousness

The same factual background applies in respect of this count. Count 2 is the fact of the penis rubbing up against the bottom of the victim at the same time as he was rubbing her in the region of her genitals. The 2 different pieces of conduct making up the 2 charges need to be viewed separately. There is no skin on skin contact here and both victim and offender were relevantly clothed and I would assess this offending as being in the low range. I would also observe that ultimately where sentence is determined in respect of these 2 matters they should be considered to be the one course of conduct albeit with 2 physical acts to be considered.

Count 1 and form 1 matter

The 2 counts and the form one matter relating to this period all have as the victim the stepdaughter of the offender. The victim was born on 17 August 1992 and so was 13-14 at the time of the offending.
The first count occurred in the Christmas period 2005 when the offender and the victim's mother were having some drinks. The victim put a mattress in the lounge room to watch a movie and fell asleep. She was wearing underpants underneath pyjamas. The offender lay down behind the victim and reached around with his arm and touched her groin inside her pants and underpants. This is Count 1. At the same time as this was occurring the offender also placed his hand on the victim's breast; this is the form 1 matter. It is not stated in the facts as to whether this was on top of or underneath clothing but as I read the facts it appears to be over clothing and in any event without it being clear I would not rely on it adverse to the offender to be otherwise.

Count 2

Later, in 2006 the victim's mother moved out of the offender's home and the victim remained with him. On this occasion the offender was drunk having been at the pub and opened the front door and came straight to the room of the victim which she shared with the daughter of the offender, (whose 18th birthday party was the occasion of the 2018 offending). Once in the room the offender bent down and put his hand under the blanket and touched the victim's leg just below the knee. The victim kicked out and told him "fuck off". After this the victim moved out of the offender's home. She told her mother but thought she did not believe it. It was after the incident in 2018 when this victim spoke to the offender's daughter that contact with police was made.
Before leaving the facts I note the habit of the offender after each offence to pretend that he does not know what he was doing and to say that he thought it was his partner or that he later does not remember what happened. The idea that he mistook the 14-year-old girl for his partner is simply not credible.

Objective seriousness

As to count 1 this is skin on skin contact again on an unsuspecting female this time necessarily a child given the nature of the offence. It is again contact in the most intimate of regions on the body. I would not assess this offending as being more objectively serious than the events of 2018 (leaving aside the different nature of the offending, ie the age element). It is the same area and it is also skin on skin but there does appear to be less intimate touching as the facts are of rubbing in the groin area, and not of the actual genitals (par 8 of facts re 2018 offending (exhibit B)). I would not describe it as simply as mid range but given the wide range of conduct that can fall to be within this offence it is inadequate to simply describe it as low range. I would adopt the classification as being on the borderline between low and mid range.
As to count 2, it needs to be remembered that this is a count of common assault without a sexual overtone. In all the circumstances it is concerning but it is difficult to assess the conduct for this relatively minor charge to be anything other than low in objective seriousness.

Section 21A.

The criminal history of the offender will be considered below. So too will the harm caused to the victim in respect of the 2005/2006 matter where there is a victim impact statement and in general terms to the victim of the 2018 offence. Otherwise I take into account in respect of all charges that the victim was vulnerable being unconscious at the time and in respect of the 2005/2006 matter because of the relationship between the parties in which it would be expected that the victim would feel protected lying on the mattress not the subject of offending. The same considerations to a lesser degree would apply to the 2018 offence. There is no family relationship in 2018 but this is a friend of a daughter and a girlfriend of a nephew and there would have been a degree of trust which has been breached here. Viewed in that way in both cases there has been to varying degrees and abuse of a position of trust albeit in 2018 not a formally recognised position of trust.
There was dispute between the parties as to whether subsection 21A(3)(eb) had any role to play. I accept the submission of the Crown in this regard who relied on the decision of Jonson v R [2016] NSWCCA 286. That case makes it plain that certainly there is no need for the offender to be an intruder before the section applies. That was all that was needed on the facts of that case. In that case at [40] Bathurst CJ noted the aggravating factor is not limited to the home of the victim but extends to the home of any other person. His Honour had earlier set out part of the second reading speech relevant to that section at [10] where it was said "it will aggravate an offence that was committed within a victim's home or another person's home. This aggravating factor preserves the notion of sanctity of the home, whereby individuals are entitled to feel safe from harm of any kind. This protection should apply in any home". I therefore consider it an aggravating factor in both the 2005/2006 offending and the 2018 offending.
The mitigating factors identified by the section so far is relevant are considered below.]

Psychiatric report

The offender relied on a report dated 10 June 2020 from Dr Bruce Kahn, a forensic psychiatrist. A significant part of the offender's subjective case is that he himself had been subject to sexual abuse as a child, in his case at the hands of a relative namely his father. Exhibit 2 was a statement of facts as to the offending of the offender's father on the offender.
The brief personal history of the offender was of growing up in Newcastle until about the age of 15 when his parents separated which would make it about 1988. This report and the information at the sentencing hearing showed that recently the offender's sister had spent about 6 months with the offender providing him some support. The offender seems to have been bullied at school and was at that time somewhat confused saying he did not know what class he was in. He talks of a sexual experience at age 14 were a girl exposed herself to him but more significantly was the sexual abuse suffered by him at the hands of his father which has caused him nightmares, terrible memories, stress, anxiety and hurt. He has one child with whom he has a good relationship. He finished school in the early part of year 10 and got a job at Coles. He found school difficult and did not listen or study. He enjoyed baseball. He is well liked at the golf club where he now works. His history of abusing alcohol was at its worst at a carton a day, and he also speaks of drinking 8 schooners at the pool comp at the pub. He says he now drinks socially, describing it as a beer or two after work occasionally. He does not now presently take any other drugs of an illegal type. His medical and psychiatric history is unremarkable apart from being started on Pristiq in 2014 though he still says he feels anxious impatient and lacks concentration even when taking it.
He became markedly upset when discussing the abuse by his father. He appeared to express genuine regret and remorse and shame as to the current offending and did not attempt to excuse or justify his actions. The doctor described him as having fair insight.
The conclusions drawn by the psychiatrist were that the offender suffers developmentally due to the abuse and drinking of his father and being bullied at school. Additionally it appears he has suffering from ADHD most of his life and being largely untreated and also suffering from PTSD symptoms which have largely resolved presumably due to the abuse he suffered. His drinking habits have seen him lose his license 5 times and be involved in a near death motor vehicle incident in the year 2000. I would note that none of this has seen him cease drinking completely. The doctor suggests this is had an influence on his offending behaviour if not directly caused it.
There is concern that a custodial sentence will have a disproportionately harsh impact on his mental health. The impacts referred to however do not really set the offender apart from many other prisoners. The bases are put forward as being a history of depression, the nature of his offending and the ability of prison to meet his mental health needs. His ADHD is said to maybe compromise his resilience. It is also feared his PTSD symptoms may be rekindled.
In terms of likelihood of reoffending the doctors view was if he remains sober there is very little chance of reoffending. The strategy to be imposed is one of strict sobriety described by the doctor as "no alcohol. Period."
As already noted there were sincere expressions of contrition and remorse.
The conclusions I draw based on this material is, to adopt a perhaps too much used phrase, that the offender "self medicates" and seeks solace in alcohol and not without good reason given his traumatic experiences in the past. Regrettably however the alcohol medication results in antisocial behaviour as demonstrated by his record and the offending in question. As obvious as it may be that the alcohol plays a large part in this offending it is also as obvious that abstinence is the answer. Accepting the evidence of the offender put forward through the doctor the fact is if he did not drink he would not offend yet he chooses to drink. That is not intended to be as trite as it sounds for the devil of addiction is well recognised particularly if it arises in circumstances as traumatic as these. What I find particularly concerning in this case is the evidence that shows that he continues to drink in what he considers to be a controlled way with the consequence that on the basis of present behaviour he is a higher risk of reoffending than he would otherwise be. Even allowing for the strength of addiction to alcohol the fact that he cannot now, after nearly dying in a motor vehicle accident in 2000, having lost his license 5 times, and having committed the offences in 2005/2006 and 2018, get the message that he should not drink. This demonstrates a chronic but simple inability to act in his own best interests. I do not say that it demonstrates a lack of insight; on the contrary I consider his statements of remorse and contrition and understanding of this offending to be very insightful aided no doubt from the own nightmares he himself suffers. The benefit he receives from demonstrating remorse and insight is offset by the likelihood of reoffending.

Testimonials

The offender's sister gave evidence. She confirmed a statement she had made which became Exhibit 3. She had recently lived with the offender from November 2019 until shortly before the sentencing hearing. She speaks with him most days by phone. She encouraged him to seek help for his depression and seeks to ensure he takes his medication. Some of the observations of the sister are less than reassuring in that she refers to his car accident in 2000 caused by intoxication as being "a nasty car accident" without reference to the involvement of alcohol, which according to the psychiatrist was involved. She also says she supports him because what happened to the 2018 victim was not "as bad" as what had happened to him. In terms of the offending she said that he feels bad about what happened to the stepdaughter in 2005/2006 and effectively says he doesn't remember the incident in 2018. She confirms the difficulties he has arising from the abuse of his father.
In her evidence there was recognition of the continued drinking of the offender without indicating much real understanding of just how much better things would be if he did not drink at all. The evidence was that he continues to drink on Friday and Saturday nights.
There was also a statement of the offender which became Exhibit 1. It was in the form of a "background statement" though it was signed. That document recognises that a motor vehicle accident was caused by his drinking though it states that was 2004 not 2000 but I take it to be the same incident. He states he commenced drinking at age 16 and used cannabis at age 23. It shows consistent employment since about 1990 apart from the period of 2003 to 2011 when he was on workers compensation.

Guilty plea

I find the offender is entitled to the 25% discount for entering his plea at the earliest time. There is no dispute on this point.

Criminal history and Good character and prospects

The offenders criminal history is brief. In 1990 he had a high range PCA. In 2000 he was convicted of common assault. In 2003 there was a second high range PCA. In 2014 he was convicted of a domestic violence related offence of stalking/intimidating. He has never had a period of full-time custody, with the closest penalty to that being a section 9 bond in 2014. My view is this record does not deny him of all leniency though clearly not as much leniency as if he had no offending. Of concern is two of the 4 offences are involving alcohol and it would not be surprising if the stalking matter was alcohol-related though I do not act on that basis.
The subjective material suggests that the offender maintained good relationships with those he works for and also, perhaps surprisingly, with his daughter as well as his sister.
The evidence also shows that he is in a new relationship of some 12 months. Thus there are indications that he will has both community and family supports and has a history of employment. As with other considerations such as likelihood of reoffending much of the assessment of what the future holds turns on the ability of the offender to cease drinking.

Likelihood of reoffending

I have commented on this above. The evidence strongly suggests that in the absence of continued drinking there is little likelihood of reoffending. The evidence also suggests that he will continue to drink. The evidence shows two serious cases of offending in a period of approximately 12 years. To adopt the terminology often seen in sentencing assessment reports this offender's history suggests there is a low to medium likelihood of reoffending.

Relevance of the offender's own childhood sexual abuse

As noted above I accept this offender is genuinely remorseful and contrite. The view that I have formed of the offender is that he is a genuine and sincere person. I accept the submission for the offender that to a significant extent his offending has come about as a consequence of his own life experiences and circumstances. It was submitted on the part of the offender that the relevance of his background is that it explains his mental health and alcohol use which in turn can be seen to be features present in his offending.
I was helpfully referred to the "Bugmy Bar Book", a resource found on the Public Defenders website and linked to the Judicial Commission website. Reference is there made to research showing that survivors of childhood sexual abuse maybe at greater risk of engaging in risky sexual behaviours, a comment based on the Australian Institute of Family Studies report "The long term effects of Child Sexual Abuse", CFCA paper no. 11 2013, at 8.
The report of Dr Kahn expresses the views that the offender's development was adversely affected by the abuse he suffered, and that alcohol played a causative role in the offending. As I read the report, the conclusions do not state a link between the offending and the drinking, but based on all of the evidence, my view is that is the sensible interpretation of the evidence.
The consequence of this is that there is a lessening of the offender's moral culpability, which impacts on the sentencing considerations.
In assessing just how significant this impact on sentence may be is difficult. A person with an intellectual impairment and low impulse control is not able to "stop" being intellectually impaired. Here, the offender has an affliction of sorts, which has led to abuse of alcohol. The offender is more able to cease drinking than someone is able to ceased some other impairment. Like many considerations in a sentencing matter, the emphasis to place on the effects of the childhood abuse is a question of degree. It is a matter which I take into account.

Intoxication

It is plain from the offenders material that he was significantly intoxicated at the time of this offending. In my view by reason of the provisions of section 21A (5AA) this cannot be taken into account as a mitigating factor. I do not understand the submission of the accused to be that it should be taken into account as a mitigating factor. It is relevant in the sense discussed above relating to the offender's background.

Victim impact statement

The victim of the 2018 offences provided a victim impact statement which in accordance with the provisions of section 30E of the CSPA I take into consideration. It sets out significant effects on the victim. Ironically perhaps, and sadly, these are very much the same sorts of matters that were being argued in favour of the offender as a consequence of the abuse suffered by him. In considering the harm to others I have taken into consideration this statement.

Totality

In R v Holder [1983] 3 NSWLR 245 it was said the principle of totality calls for an evaluation in a broad sense of the overall criminality involved in all of the offending and then determine what downward adjustment is necessary if any so as to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.
In the present case the difficulty is that the offending occurred in such clearly distinct periods of time and circumstances.
In Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27] it was said:
"[T]here is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both." (underlining added).
The position is a little further complicated here because the parties take quite different views of the 2018 offending. Whilst both the Crown and the offender recognise the 2005/2006 offending as being the more serious, that is a reflection of the offence itself which is an offence against a child and which carries a greater maximum sentence. The offender argues that the section 5 threshold has not been crossed in respect of the 2018 offending but has been in the earlier offending. Yet in terms of a physical assault my view is the later offending was more aggressive and intrusive and the whilst the victim was no longer a child, she was just 18.
Ultimately my view is that the section 5 threshold is crossed in respect of both offences. Does then the principle of totality have any work to do with offending taking place 12 years apart but having clear common characteristics. The underlined passage above shows that it can. In my view in this case, given the common feature of the background of the offender, the and the similarities in the offending conduct, there is here a role for totality to play to properly reflect the criminality for which the offender is being punished. There will be a degree of concurrency to reflect this.

Special circumstances

In this case I find there are special circumstances. They are present in this case due to the fact of this being the first period of incarceration for the offender at age 46, and also because of the need to have a lengthy period of supervision to assist the offender in becoming abstinent.

Sentencing considerations

Section 3A sets out the purposes of sentencing. They are in short: 1. to ensure the offender is adequately punished; 2. both general and specific deterrence; 3. to protect the community; 4. to promote rehabilitation of the offender; 5. to make the offender accountable for his actions; 6. to denounce the conduct; 7. to recognise the harm done to the victim and community.
General deterrence, denunciation and protection of the community are relevant principles of sentencing in cases of child sexual abuse; see EG v R [2015]; NSWCCA 21 at [42]. Yet here I find the offender's background lessens the need for general deterrence, though there remains a need for specific deterrence. There is also a need, having considered the victim impact statement to recognise the harm done to the victim, a point well made sadly by the offender's own experiences. There is also a need to denounce behaviour such as this which is far too often seen as not being a significant impact when plainly it is as demonstrated by this case, however again in this case that is lessened by the offender's background.
My view is that the 2018 offending, the section 61L counts, do call for a custodial sentence. Notably, the benefit of good character at this time is diminished by the 2005/2006 offending. Even without that consideration, the first count is mid range offending, and for the reasons given above to arrive at that assessment, a community based order is inadequate.
I propose dealing with this matter by way of an aggregate sentence.
In relation to the 2005/2006 offending, in respect of the more serious section 61M offence, and taking into account the Form 1 matter and the guilty plea, I would impose an indicative sentence of 18 months. In accordance with s54B(3) I record that had I not proceeded by way of an aggregate sentence I would impose a 12 month non-parole period. The reasons for varying from the standard non-parole period is due to the plea of guilty discount, the fact that the matter is less then the mid range of objective seriousness and due to the various subjective features I have taken into account above.
As to the common assault ordinarily that would not attract in my view a sentence of imprisonment. The more appropriate sentence for that offence viewed in isolation would be to impose a community correction order. My view however is in the circumstances of this case that order would be entirely spent in the course of any term of imprisonment and is a pointless exercise. In order to reflect the wrongdoing of that offence I propose that there be a conviction and a 2 month sentence of imprisonment that will be wholly concurrent with the term for the other offending. To achieve this by way of an aggregate sentence I can indicate the aggregate sentence would be the same overall without their having been the offence of common assault.
As to the 2018 offending in respect of the first section 61L offence I note my assessment of the matter being in the mid range and I note also the 25% discount. Taking all things into account the indicative sentence here for the offence where the underpants were moved to one side and the area of the genitals was touched is 18 months. In respect of the rubbing with the penis through clothing the indicative sentence is 4 months.
I have arrived therefore at indicative periods of imprisonment for events occurring some 12 years apart but which have marked similarities and similar root causes. I have indicated my approach to the common assault charge, and I have stated why I consider the principle of totality has here a role to play. The conclusion I come to is that the aggregate sentence should be 33 months. The non-parole period will be 18 months consistent with the finding of special circumstances.
I note in respect of the indicative sentence for each offence I have taken into account the 25% discount for the guilty plea.

Orders

I make the following orders: 1. the offender is convicted in respect of the 2 charges from 2005/2006 and the 2 charges arising from 2018. 2. The offender is sentenced to a non-parole period of 18 months to commence from 16 June 2020 and expiring on 15 December 2021, with a balance of term of 15 months expiring on 15 March 2023.

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 June 2020

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (25 paragraphs)

Parties

Cases Cited (4)