R v H

Objective seriousness

1. The incident in question occurred when the Victim was 11 years of age and the Offender was 21 years of age. I bear in mind that the Victim's age was significantly below the threshold of under 16 years of age provided for in s 61J(2)(d) of the Crimes Act 1900 ('the 1900 Act'). I also bear in mind the age difference with the Offender. It is not in issue that at the time of the offending, the Victim was under the Offender's authority which is an aggravating factor under s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 ('the 1999 Act'). I accept the Defence submission that the Offender's actions were not planned and were impulsive. [4] The act in question involved a brief period of digital penetration involving one finger between the lips of the vagina. So much was accepted by both parties. The Victim did not sustain any injury and there was no added personal degradation of her. I accept that it was unaccompanied by direct other violence or threats. It occurred in the Victim's home which is an aggravating factor under s 21A(2)(eb) of the 1999 Act.
2. In assessing the objective seriousness, I have taken into account that the circumstances of aggravation referred to in s 61J (2) (d) of the 1900 Act and that the subject offending is relatively less serious than some of the other circumstances identified s 61J(2) of the 1900 Act.
3. Overall, the Crown submitted that the offending fell "about the middle of the range" of objective seriousness. The Defence submitted that the offending fell below the mid-range and well towards the lower range of objective seriousness.
4. I have had regard to the features above described noting the considerable significance of the actual character of the assault including the degree of physical contact. [5] Overall, I find the objective features affecting relative seriousness fall towards the lower range of seriousness.

Background

1. According to the report of Jason Borkowski dated 1 March 2021, [6] the Offender was born in Wee Waa and lived in various locations in Queensland and NSW throughout his formative years. He was raised by his biological parents until 8 years of age when he was placed in to the care of FACS, and thereafter he was entered into foster care where he resided until 15 years of age. From 15 years of age, the Offender was residing in seemingly transient accommodation arrangements living between his half-sister's residence and his foster parents' home. The Offender has four biological siblings and he estimated he had 18 half-siblings from his parent's various relationships.
2. In his childhood, the Offender reported living in western NSW with his biological parents. The Offender had minimal recollection of his father but did remember "getting hidings" frequently. He reported being sexually abused by his father who ended up being incarcerated for sexual abuse of his various children, when the Offender was in his adolescence. The Offender was unsure if his father had any substance use concerns. The Offender's father passed away in 2012 and the Offender had no contact with him since he was 8 years of age.
3. The Offender described his mother as "alright", but he felt she was restricted as to "what she could do" because his father was physically abusive towards his mother. He was unaware that his mother had substance use concerns or criminal history. He stated he had no contact with his mother between 8-16 years of age and he has had intermittent contact with her since, but he never established a maternal relationship.
4. The Offender advised that at 8 years of age, due to the aforementioned abuse, he was removed from his parents' care, and placed into the care of his maternal aunt and uncle, who raised him from 8-15 years of age. He referred to them as his foster parents. He stated that his foster parents were "alright", but he said their son was a "cruel bastard", who often physically assaulted him. He said that apart from Cannabis use by his foster father, he was not exposed to any other substance use concerns in that environment. He advised his foster parents were never employed.
5. In his childhood, the Offender mentioned that he lived with all of his biological siblings, as well as approximately, four or five half-siblings. When he was placed into foster care, several of his siblings also resided in the foster home. The Offender has described he was closest to his older paternal half-siblings and reported that several of his siblings have criminal histories.
6. In reflecting on his upbringing, the Offender indicated to Mr Borkowski that in his early childhood with his biological parents, there was minimal parental guidance or care and basic necessities such as food and clothing were barely adequately met. He said with his foster family he had access to some of those necessities more regularly.
7. The Offender stated that he remained with his foster parents until around 15 years of age, when he started to run away from home, primarily trying to avoid the physical assaults perpetrated by his foster brother (who was older than him). He said when he ran away, he would often go to his half-sister's homes. The Offender stated that at around 15-16 years of age he secured his own rental property where he resided for several years, and when not living in rental properties he said he would return to live with his half-sister.
8. The Offender told Mr Borkowski that he considered himself to be socially active in his formative years, however due to frequent relocations during his childhood and adolescence, he said it was difficult for him to maintain stable or consistent friendship groups. Although he has friends in Wee Waa where he spent several years in his adolescence, he stated that he has not had the opportunity to maintain regular contact with them. The Offender described his primary social contacts as his siblings.
9. According to the report prepared by Ms Thomas, [7] the Offender said he was 1 of 24 children born from his biological parents during various sexual relationships. He also described that he was placed into foster care following police investigations in relation to his parent's sexual assaults on 2 of his siblings.

Education

1. The Offender stated to Ms Thomas that he had learning difficulties from an early age. He advised that he required academic support classes during his educative years and left school without achieving a formal qualification. Mr Borkowski records that the Offender commenced school in Wee Waa and went to a number of primary schools due to residential relocations. He reported that he attended Years 7-9 of high school in Woolgoolga on the north coast of NSW, followed by Years 9-10 in Wee Waa. The Offender told Mr Borkowski that he got into trouble in primary school, but nothing that he considered significant. He stated that in high school he was sanctioned for misbehaviour and recalled being suspended in his last year of high school. The Offender explained that forming stable relationships at school was difficult, due to frequent relocations, but he was able to maintain a good group of friends when at Woolgoola High School during years 7-9 as it was the longest period that he spent in one location. He denied being bullied or picked on at school. He was asked to leave school in year 10.

Employment

1. After leaving school, the Offender told Mr Borkowski that he secured employment at a supermarket for approximately 8 months until he commenced working as a farmhand on various cotton farms, which was primarily seasonal work. He informed Mr Borkowski that he generally always maintained employment in his late adolescence, until he moved to his sister's home in Taree in 2016 at around 21 years of age, where he would assist her with her children, and at which time he was in receipt of Centrelink benefits. He told Mr Borkowski that he had a vocational goal of returning to work in the farming industry.

Relationship History

1. The Offender reported his first relationship at 16 years of age which lasted for approximately 2 years before an amicable separation. Thereafter, he commenced a relationship in 2017 which lasted for approximately 18 months until he was placed into custody. He stated that he had a daughter from that relationship who is now almost 3 years of age. He stated that he has only been able to have telephone contact with her which occurs on an almost daily basis. He stated that he was motivated to continue to be involved in his daughter's life. Ms Thomas' report indicates that the relationship commencing 2016 was volatile and records that the Offender and his partner separated in 2018 following intimate partner violence and domestic violence offences. The Offender's ex-partner has maintained regular contact since incarceration also placing the younger daughter on the phone to speak to him and placing money into his account. A supervised AVO remains in effect until 19.08.2021 to protect the Offenders ex-partner. The condition of the order is that the Offender must not approach or be in the company of his ex-partner for at least 12 hours after drinking alcohol or taking illicit drugs.

Health

1. The Offender told Mr Borkowski that he did not have a history of serious illnesses or medical conditions. The report, however, indicates that the Offender indicated that he had Attention Deficit Hyperactivity Disorder at approximately 9 years of age and he was prescribed medication for his condition. He maintained medical compliance until around 14 years of age due to not liking the effect of the medication and he ceased to take it. He denied any awareness of other mental health conditions. He advised he was referred for psychological counselling after he was removed from his parents care, and in response to the physical and sexual abuse he was subjected to by his father. However, Mr Borkowski records that the Offender expressed reluctance to discuss the abuse perpetrated by his father although he discusses it with his siblings. He has had no other mental health intervention. He denies any medications for physical or mental health conditions.

Substance Use

1. The Offender told Mr Borkowski that he started smoking cannabis at 10 years of age when he would steal it from his foster father. He stated that by 14 years of age he was smoking cannabis on a daily basis which continued until he was placed into custody in 2018. He reported that around 22 years of age he started using 'Ice' in the context of his peer acquaintances at that time. After several months of smoking 'Ice', he progressed to intravenous use and rapidly developed a physical and psychological dependence on the substance. The Offender said his life "went downhill" from then onwards when he was using 'Ice' up until he was placed into custody in 2018. He maintained that he has been abstinent from illicit substances since being incarcerated. However, he informed Ms Thomas that he was charged and disciplined for possession of a drug implement on 22/05/2019. The custodial record indicates that, and as a consequence, the Offender was taken off Buy-Ups for 42 days and off contact visits for 28 days. [8]
2. The Offender described to Mr Borkowski that he commenced drinking alcohol around 16 years of age but denied alcohol ever caused him problems in his day to day functioning or responsibilities. He denied previously attending any drug treatment or rehabilitation programs and said that he felt better since being abstinent from drugs whilst in custody observing that "'Ice' just ruins you".
3. Ms Thomas reports in pre-sentence interviews that the Offender described that he was smoking cannabis and drinking socially prior to the sex offence. The Offender informed Mr Borkowski that he has reduced his cannabis intake whilst he was living with his sister but denied that he was using 'Ice' at the time. [9]
4. Overall, I accept that the Offender's circumstances indicate that he has a deprived background and was exposed to violence and abuse such as that the principles in Bugmy v The Queen [10] are invoked to reduce his moral culpability in the context of subjective considerations. [11]

Prior Good Character and Record of Convictions

1. The Crown accepted that at the time of the offending, the Offender was of prior good character, a mitigating factor under s 21A(3)(f) of the 1999 Act and the Crown did not argue that s 21A(5A) of the 1999 Act applies. His criminal antecedent displayed that he had no prior convictions which is a mitigating factor under s 21A(3)(e) of the 1999 Act.

Likelihood of Reoffending and Prospect of Rehabilitation

1. The Offender informed Ms Pearce-Bakker at Kempsey Community Corrections Office that following release, he would like to reside with his brother in Muswellbrook. Ms Pearce-Bakker noted that it has not been determined if the address will be available as his brother has pending court matters. Ms Thomas records that the Offender has limited supportive relationships outside of his ex-partner and had been informed that his brother had pending court matters for alleged alcohol and violence related offending. The Offender explained that he had nowhere to live if he was not able to stay with his brother. His criminal history since the offence in question has been noted. [12] I have also noted that whilst in custody he has had a number of custodial disciplinary matters relating to a report of 10 August 2020 for disobeying a direction, failing to comply with correctional centre routine, sending and receiving an unauthorised letter in parcel and possessing a drug implement (earlier referred to). Overall, I accept the description of the Offenders history since the offending which has been described in the sentence assessment report as "minor criminal history with offences related to drugs and domestic violence". [13]
2. According to Ms Thomas, the Offenders STATIC-99R was 4. She described the most recent version of STATIC-99R Coding Rules refers to the category encompassing a score of 4 on this instrument as being "Above Average" risk, or Level IVa. She then explained that the rate of sexual recidivism for sexual offenders within the STATIC-99R 'routine' normative samples who had the same total score as the Offender is estimated to be about two more than that of a 'typical' sex offender.
3. Mr Borkowski accepted that the Offenders risk of re-offening was level IVa. He stated that within the routine correctional samples of sexual offenders with a Static-99R score of '4', the 5 year sexual recidivism rate is between 10% to 12%. This means that out of 100 sexual offenders with the same risk score, between 10 to 12 individuals would be charged or convicted of a new sexual offence after 5 years in the community. Conversely, between 88 and 90 individuals would not be charged or convicted of a new sexual offence during that time period. He noted that the Static-99R does not measure all relevant risk factors and the Offenders recidivism risk may be higher or lower than that indicated by Static-99R based on factors not included in this risk tool. He also noted that the dynamic (changeable) risk factors should also be considered in any estimate of risk of re-offence.
4. Ms Thomas agreed that the STATIC-99R assessment was based on large scale research evidence but did not necessarily reflect the risk of sexual recidivism for an individual and was not sensitive to the changes in an Offender's circumstances that may increase or decrease their actual risk of re-offending. She opined that a supplementary assessment that considers individual case-specific dynamic risk factors that can change over time, if targeted, is also required in order to generate an individualised risk assessment for the Offender. Ms Thomas noted that the assessment would also explore the Offender's motivation and decision making at the time of the sexual offence, which is not evident within current available information and made more difficult because of the Offender's denial of the relevant offence. However, Ms Thomas identified areas of dynamic risk requiring further assessment include:

• Emotional Identification with Children - due to the impairment of the Offenders verbal skills, he may find younger females easier to communicate, more understanding and easier to relate to than age appropriate similar aged females.
• Hostile Sentiments towards Females - intimate partner abuse and domestic violence; possible impacts of early childhood trauma and his views around females.
• Poor General Self-Regulation and Poor Cognitive Problem Solving - substance abuse appears to be common feature of the Offenders failure to fulfil interpersonal and legal problems and may either indicate difficulty with behavioural and emotional self-regulation and/or exacerbate and further compromise his ability to make sound decisions and problem solve.

1. Mr Borkowski noted that dynamic risk factors were those which related to the Offenders current psychological state and life circumstances and were rated according to the Sexual Violence Risk-20 (SVR-20). He stated that these can be considered to provide an index of current live risk, which can change over time and are therefore amenable to intervention. He identified a number of factors as being protective against the risk of reoffending being:

• The Offender did not endorse attitudes that support or condone sexual offending, or any other sexual violence;
• He did not endorse attitudes consistent with sexual abuse in general;
• There is no history of mental illness indicated, that would likely contribute to his risk of sexual re-offending;
• He did not indicate any previous concerns in regard to sexual self regulation, and there was indication of sexual deviancy.
• The Offender has a history of engagement in regular employment with evidence of various employability skills;
• The Offender presents with a history of age appropriate, long term intimate relationships;
• The Offender has no prior history of sexual offending, and there are no indications of an increase in offending in this nature.

1. Ms Thomas noted that the Offenders risk as determined on STATIC-99R falls within the 'Above Average' risk category making him eligible for a High Intensity Sex Offender Program in custody. She also noted that Above Average risk offenders are also eligible to take part in community based sex offender programs. The general time frame to complete custody and community-based program was at least three years. In addition, she observed that it was possible that the current offending represented an extension of the Offender's history of general violence, hostile sentiments towards adult females and poor general self-regulation and cognitive skills under the influence of substances as opposed to sexually deviant attitudes. Therefore, case planning could identify the Intensive Drug and Alcohol Treatment Plan for prioritisation as an appropriate program to reduce the Offenders recidivism risk. She noted that case planning could identify the Intensive Drug and Alcohol Treatment Plan as an appropriate program to reduce the Offenders recidivism risk if the Offender only offends violently (or sexually) in the context of substance use or to obtain drugs or alcohol/money for drugs or alcohol. Eligibility to participate in such program required 12 months to serve at the time of referral.
2. Ms Thomas noted where the Offender continued to reside in rural NSW and to be subject to community supervision, his access to CSNSW community based sex offender specific intervention would be relatively restricted. Case-management would include referral to a psychologist for further assessment of potential dynamic risk factors with the aim of developing a risk and self-management plan in consultation with the supervising officer. She noted this was an assessment and advisory service and not treatment. Case management recommendations would include:

• Referral to the Child Protection Watch Team.
• Consultation would be undertaken to assess the Offenders suitability for participating in EQUIPS Addiction and EQUIPS Domestic Abuse programs (general criminogenic programs to reduce recidivism risk which are available in custody and within the community).
• Drug and alcohol testing to assist manage and monitor this acute risk factor.

1. Ms Thomas further states that if the Offender were to engage with a private treatment provider for offence specific interventions, it would be beneficial if they were experienced in the management and treatment of sex offenders with complex treatment needs.
2. The sentencing assessment report noted the Offender was at Medium-High risk of reoffending. If supervised, community corrections recorded that they would implement the following supervision plan:

• Refer to a Psychologist for assessment for appropriate program referral to address criminogenic needs
• Referral to general practitioner for mental health care plan for psychology referral
• Refer to community based alcohol and drugs services for assessment and counselling
• Refer to EQUIPS Foundations program
• Relevant one on one cognitive behaviour interventions to assist the Offender to sustain abstinence and identify triggers associated with offending and readiness to change
• Motivational interactions with the Offender to enhance compliance and insight into his offending behaviour
• Third party checks with Police, family members and service providers to monitor compliance and reintegration

1. Mr Borkowski recorded when considering commonly cited dynamic risk factors associated with sexual offending, the Offender presents with several factors that warrant clinical attention. Of primary concern is the Offender's disadvantaged upbringing which involved the abuses he was exposed to, the lack of adequate parental guidance, nurturance or support, the dysfunctional domestic environments, all of which are likely to have had implications for the Offender's psychosocial development, and his attachment experience and subsequent relationship/intimacy skills. He also mentioned that the Offender's substance use was notable. Also prominent, and worth further consideration in relation to any behavioural dysfunction was his reported childhood history of ADHD which he could not exclude at this time and he recommended he undergo further psychiatric review to determine the possible presence of ADHD symptomology. He stated that the possible presence of a trauma related disorder associated with the abuses that the Offender had been subjected to in his formative years can manifest in emotional instability, and behavioural dysregulation.
2. Mr Borkowski noted that in the event that the Offender receives a custodial sentence, it would be recommended that he would be referred to the Corrective Services Sex Offender Treatment Program for assessment suitability to attend a custody based intervention program. With further assessment around risk, he may suit placement thereafter if appropriate, in either the CUBIT (moderate to high risk) or the CORE (low risk) program. Mr Borkowski opined that the Offender may also benefit from assessment to participate in the EQUIPS Program described as a therapeutic and educational program developed to reduce the risk of reoffending for a wide range of offenders. The EQUIPS Program was designed to address addictive behaviour including substance abuse. An alternative would be the Ngara Nura program, which is a modified therapeutic community within Long Bay Correctional Complex, that provides a longer term drug treatment facility with throughcare and post release support. In the event that the above therapeutic programs were not available, then placement where the Offender had access to psychological counselling to manage cognitive and emotional concerns, and to develop behaviour management and coping strategies, and counselling for drug dependence, while also having access to employment and training opportunities, with reintegration support, will provide the best opportunity to reduce any future risk of reoffending. Mr Borkowski noted the success of any correctional based treatment services is dependent on a well-established community reintegration plan with all services and supports in place and available upon release. Following any period of incarceration, he noted that the Offender would benefit from a period of parole supervision to ensure he has access to and support in establishing and engaging with relevant professional service providers.
3. So far as community based treatment options were concerned, Mr Borkowski reported that treatment in relation to sexual offending could be achieved through engagement in a moderate intensity treatment program that could be provided in the community. He noted that due to residential location, participation programs offered by Forensic Psychology Services may not be viable and accordingly a referral to a psychologist in the private sector should be considered. He also stated that psychological intervention that focus on the Offender's psychological symptoms including possible trauma, and development of more appropriate self-regulation strategies, problem solving, decision making, and consequential thinking skills. If the Offender were to have difficulty in managing his illicit substance use, then he recommended placement in an intensive residential drug rehabilitation program would be a benefit in assisting him to consolidate abstinence from illicit substances, gain an understanding of the underlying causal factors that contribute to ongoing substance abuse, as well as providing him the opportunity to establish relevant community based support networks, as well as post treatment outpatient and support services. He recommended that the Offender be reviewed by a psychiatrist for further assessment, monitoring and implementation of any pharmacological options (if required). Such interventions could be accessed through local community mental health services or a private psychiatrist. He noted that the opportunities for employment and vocational training and employment skills is strongly encouraged as a means of reducing the risk of reoffending and providing a structured routine and access to a wider prosocial network; as well as providing him with motivation, goal directed behaviour and a healthy self-esteem. He noted that the Offender had limited access to prosocial support networks apart from his ex-partner and his siblings and an opportunity to access or establish prosocial support networks will be favourable for effective rehabilitation.

Endnotes

1. Exhibit A on sentence at tab 5.
2. Exhibit 1 on sentence.
3. See T29.20-24.
4. s 21A(3)(b) of the 1999 Act.
5. R v PGM [2008] NSWCCA 172 at [31].
6. Exhibit 1 on sentence.
7. Exhibit A on sentence found at tab 5.
8. Exhibit A on sentence found at tab 4.
9. Exhibit 1 at p6.
10. [2013] 249 CLR 571.
11. See Ellis v R [2020] NSWCCA 303 at [35]-[36].
12. Exhibit A on sentence at tab 3.
13. p 2 of the sentencing assessment report dated 9 February 2021.
14. Muldrock v The Queen (2011) 244 CLR 120; (2011) 281 ALR 652; [2011] HCA 39.

Amendments 29 June 2021 - Coversheet - corrected catchwords 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: 29 June 2021