R v Michael Jon Park

Arrest and guilty plea

1. Park was arrested on 29 October 2016. He has been in custody since that date.He initially denied the offences but made admissions to having the Facebook identity "Stephen Smith." He said Alice had told him she was 15 years old.
2. This matter was initially listed before the Local Court for hearing. When the earlier offences involving Susan came to light the two files were joined. Park indicated he would plead guilty and the matters were all committed to the District Court for sentence.
3. A detention application was granted on 26 April 2017. Park has been in custody since that date.
4. On 2 February 2018, Park adhered to those guilty pleas before me. There are five offences for sentence, four were committed for sentence and one related matter is on a s 166 Criminal Procedure Act certificate.

Maximum penalty and standard non-parole period

1. So far as Susan is concerned there are two counts of aggravated sexual intercourse without consent, child under 16: s 61J (1) Crimes Act 1900, maximum penalty 20 years, standard non-parole period 10 years. I am also asked to take into account two matters on Form 1's when I sentence for the each offence.
2. So far as Alice is concerned there are 2 counts of indecent assault, child under 16: 61M(2) Crimes Act 1900; maximum penalty 10 years, standard non-parole period 8 years. The s 166 matter concerns possession of child abuse material: s91H(2) Crimes Act 1900: An offence that if dealt with in the Local Court could attract a gaol sentence of up to 2 years.
3. Careful attention to the maximum penalties and standard non-parole periods is required. Both provide sentencing measures to be balanced with all other relevant factors. They also invite a comparison between the instant case and other cases. That said, I do not look first to a maximum penalty or standard non-parole period and then proceed by way of making a proportional deduction from them: Markarian (2005) 228 CLR 357 at [30] and [31].
4. The reasoning in Muldrock v The Queen (2011) 244 CLR 120 has been described as "opaque:" R Hulme, Judicial Officer's Bulletin: 24 no 10, November 2012. In Stewart [2012] NSWCCA 183, whilst not determining the issue, Button J observed that in relation to some features personal to an offender the dividing line between classification of them as objective or subjective could not be sharply drawn.
5. I am required to give content to the standard non-parole period that applies to each of the matters committed for sentence. In doing so I am required to assess objective seriousness without reference to matters personal to Park and wholly by reference to the nature of the offending: Muldrock v The Queen at [27].
6. Park's autism and consequent immaturity was causally connected to the commission of each offence but given what fell from the High Court I cannot take it into account in giving content to the standard non-parole period. However, as the court in Muldrock made clear neither can I engage in a staged approach to sentencing: at [28]. Accordingly, my finding where each the offence occurs on some notional range does not compel any one result. That standard non-parole period assessment, the causal connection between the offender's mental condition and the crime and Park's background must all be synthesised along with other relevant matters.
7. Giving content to the standard non-parole period for a s61M(2) offence is problematic. Section 61M(2) offences carry a maximum penalty of 10 years. The standard non-parole period is eight years. The ratio between that maximum and the standard non-parole period has been subject to criticism, justifiably so. In BT v R [2010] NSWCCA 267, RS Hulme J, described the relativity between the maximum and the standard non-parole period as "absurd." A case that would absent full recognition of the utilitarian value of a guilty plea attract the maximum penalty would theoretically attract less custody than a middle range offence after trial.
8. Here, the physical acts committed against both children differ only in that for a relatively short period digital penetration occurred. There are significant differences in the available maximum penalties but only a 2 year difference in standard non-parole periods.
9. Nevertheless, the Court of Criminal Appeal has reminded sentencing judges, "… an eight year standard non parole period has been prescribed by the legislature and the courts must give effect to it": NJK v R [2011] NSWCCA 151 at [40].
10. The offences relating to Alice were initially intended to be resolved in the Local Court. That decision was made before the Susan matters came to light. Given those facts I could not find the Alice matters ought to have remained in the Local Court. It is entirely appropriate they come before me: Wise v R [2006] NSWCCA 264 at [31]; R v Cage [2006] NSWCCA 304
11. As required by the Crimes (Sentencing Procedure) Act 1999 on each mater committed for sentence I take the matters on the Form 1 into account when determining the appropriate penalty for the offence to which they relate: Attorney General's Application No. 1: (2002) 56 NSWLR 146. The court does not "in any sense" impose sentences for that offence: Attorney General's Application No. 1 at [68.]. Such an increase recognises the need for personal deterrence and retribution for the crime for sentence: Attorney General's Application No. 1 at [39] - [42]. Here because the matter of the Form 1 helped inform my assessment of the criminality of the count for sentence it has already been incorporated as part of my the instinctive synthesis of relevant matters: Markarian v The Queen (2005) 228 CLR 357at [51]-[54]. Accordingly, I have taken care not to double count maters aggravating the offence for sentence

Offences against Susan

1. On the first occasion Park placed his finger in her vagina he did not even bother to ask. He went ahead regardless of her wishes. The act of digital intercourse was however relatively brief. No physical discomfort was complained of although it is accepted the child would have been scared and uncomfortable.
2. On the second occasion Park performed digital intercourse he did so after Susan had said, "No I don't want too." He went ahead regardless; again, for a relatively brief period.
3. Both offences were accompanied by indecent assaults or an act of indecency.
4. Park was an adult, aged 19. Susan was only 13, pretending to be 15. He knew she could not consent to having sex with him. She did not consent to having any form of sexual intercourse with him. The child was in his home, in his bedroom, isolated from assistance. The acts were however relatively brief. No physical discomfort was complained of although it is accepted the child was have been scared and uncomfortable. While no one form of intercourse is necessarily more or less serious than the other, digital penetration of this type has a character that falls well below, for example full and lengthy penile vaginal intercourse with all the risk that act entails.
5. Given the character and nature of the acts covered by this section each offence would fall toward the bottom of the range of what are all very serious offences.

Offences against Alice

1. Park obtained a picture of the child's breasts by exploiting her youth and her naivety.
2. He hid his real identity. He used that picture to lure her out of her home and away from her friend. He had thought out what he intended to do. He had driven to her house in order to do it. He used the picture to threaten Alice and force her to comply with his acts. His acts, although relatively, brief, both involved skin on skin contact with intimate areas of her body. He was 22. Alice was almost 13, pretending to be 15. Each offence taking into account only the objective factors affecting the relative seriousness is in the middle of the range of seriousness.
3. I must also give effect to basic principles of sentencing law, set out in the Crimes (Sentencing Procedure) Act 199 and at common law. One important principle is that a sentence of imprisonment should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances: Hoare v The Queen (1989) 167 CLR 348 at 354; Way v R [2004] NSWCCA 131 at [125].
4. There are reasons here for departure from the standard non-parole period, including, the guilty plea, the subjective case for the offender and a finding of special circumstances. I start however from with this premise. Every act that involved the sexual exploitation of a child is serious: "The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity": see Clarkson v R [2011] VSCA 152, cited with approval in R v Gavel [2014] NSWCCA 56.

Absence of a VIS

1. No victim impact statements were provided to me. The absence of a victim impact statement does not give rise to an inference that an offence had little or no impact on a victim: s29 (3) Crimes (Sentencing Procedure) Act 1999.

Totality and accumulation

1. Particular care needs to be taken in sentencing for multiple offences where they involve discrete offending and two victims. The sentence for each offence must be independently determined but I must also have regard to the principle of totality.
2. The totality principle works to limit punishment to an overall assessment of the offender's criminality in its entirety and to recognise that sometimes just and appropriate punishment for each offence can result in a sentence that is unduly harsh or crushing. This point was made by Malcolm CJ in Clinch (1994) 72 A Crim R 301 at 306, approved in MAK [2006] NSWCCA 381: "...an extremely long total sentence may be 'crushing' upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. This effect both increases the severity of the sentence to be served and also destroys such prospects as there may be of rehabilitation and reform. Of course, in many cases of multiple offending, the offender may not be entitled to the element of mercy entailed in adopting such a constraint."
3. Sentences are not to be made concurrent because of the similarity of the conduct or because the conduct may be seen to be part of one course of criminal conduct. Public confidence in the administration of justice requires sentencing courts avoid any suggestion of a discount for multiple offending: MAK.

The case for the offender

1. Park gave evidence. His affect was consistent with the comprehensive report of Mr Lavidis, psychologist. Park expressed remorse and sorrow for the harm his actions had caused his family. He said he had reflected on what he did. He expressed some understanding of how thoughtless and self-absorbed his behaviour to his two victims had been. He said he was coping in custody. He said he had resolved to follow a treatment plan devised by Mr Lavidis and supported financially by the Department of Veteran's Affairs. That plan can be implemented in custody and on release.
2. Mr Lavidis also answered follow up questions put to him by Mr Coulton, Solicitor for the Director: Exhibits 1 & 2. That report and the other material tendered put a different complexion on this offending than the simple recitation of objective facts reveals. It calls for a measure of understanding when dealing with Park. That said, mitigating factors on sentencing can only go so far. A custodial sentence of some length must be imposed.
3. The evidence reveals Park has always been a little different. That difference can be explained by what Mr Lavidis' testing reveals. Park has a developmental disorder- Autism Spectrum Disorder, mild form. That disorder did not prevent his joining the Australian Army. He can function at a high level in certain areas. He relished the routine of the Army. He copes well with the fixed routines of gaol. He was capable of focussing on an Army career. He did well in that career. He spent years obtaining the necessary pre-admission qualifications. Years of effort have been wasted by his criminal actions.
4. Where the disorder impacts him most is in his emotional relations with others. Mr Lavidis explained that at the time he committed both sets of offences he had, and still functions at, the emotional level of a 15 year old. He has limited understanding of the need, in any emotional relationship, for reciprocity.
5. His condition is amenable to treatment and a sensible and achievable plan has been put before me. It appears Park is highly motivated to engage in and continue with treatment. He has considerable support from family and friends.
6. A number of references were put to me. None in any way attempt to excuse Park's behaviour to his victims. All express shock and dismay but they also provide additional insights into the young man for sentence.
7. Park has strong pro-social support that will continue. His mother set out his background in an affidavit. She also detailed problems in providing necessary support. While on remand Park has not been able to study or work. Despite his mother's considerable efforts in enrolling him in a degree programme Corrective Services denied him access to study materials. Park has a place to live and work opportunities on release.
8. Although able to work, study and become a soldier there are a number of elements in Park's history, this offending included, that indicate how immature he is. The first set of offences were committed when he was 19; the second when he was 22. Often lesser sentences are imposed on youthful offenders than those imposed on adults who commit similar crimes. This difference recognises not just the immaturity of youth but also that with growing maturity risk of re-offending diminishes. The weight to be given to the element of youth does not vary depending on the seriousness of the offence: Hearne (2001) 124 A Crim. R 451, at [24].
9. Here, Park's mental condition and consequent immaturity played a role in his offending in a material way. In such circumstances it is understood that his moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a corresponding reduction in the sentence.
10. General deterrence, the impact on a sentence on others who might be tempted to offend as he did is always import in child sex matter but here also Park can be regarded as being less of vehicle for the application of this principle than others not so afflicted.
11. Specific deterrence remains an important consideration. The prospect of a return to gaol must act as a constant reminder of the need to continue to engage in treatment: DPP v Del La Rosa [2010] NSWCCA 194. Conversely, Park's condition means he is coping better than others with the routines of a custodial sentence. Overall, I am reasonably confident that with treatment and continuing support Park will not reoffend.

Special Circumstances

1. An aggregate sentence will be imposed. The non-parole period of each indicated sentence and the aggregate non-parole period must reflect the minimum period that Park must spend in gaol having regard to all the elements of sentencing including the need for adequate punishment, the objective seriousness of the crime, deterrence and his subjective circumstances.
2. Protection of the community is contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits: Blackman and Walters [2001] NSWCCA 121.
3. There are here significant positive signs that if Park is allowed a longer period on parole, rehabilitation is likely to be successful: Simpson (2001) 53 NSWLR 704. Further, given how well Park has adapted to the routine of gaol there is a danger he may become institutionalised if kept in custody too long. The sooner he can be restored to normal community life the better. A substantial finding of special circumstances is required.
4. All this, together with the need to take into account the impact of accumulation of sentences provide a strong basis for a finding of special circumstances. However the minimum period for which the offender should be imprisoned must also properly reflect the gravity of his offences and the manifold purposes of sentencing: R v Simpson at [59].

Synthesis

1. I thank counsel for their careful submissions in this matter. I trust this judgment does justice to them.
2. Ultimately sentencing is about protection of the community. The need to impose adequate punishment requires balancing, on the one hand, to protect the community and denounce the offence, and on the other hand, promoting the rehabilitation of the offender and taking into account the subjective circumstances, so as to result in a sentence reflecting justice to both the community and the accused: Veen v The Queen (No 2) (1988) 164 CLR 465, at 476.
3. Those purposes overlap; none can be considered in isolation. Some contradict others, some undermine others; for example, in some cases retributive punishment can seriously impede rehabilitation and an offenders capacity to resume normal community life.
4. Mitigating factors must be given appropriate weight, but they must not be allowed to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. Here, there can be some reduction in penalty because general deterrence need not be the preeminent factor. But the proper role of the criminal law is not limited to the utilitarian value of general deterrence. The courts have an obligation, to recognise the harm done to, and attempt to vindicate the dignity of, each victim. The courts have an obligation to express the community's disapproval of the offending and to afford such protection as can be afforded by the state to the vulnerable against repetition of the offending: Munda v Western Australia [2013] HCA 38, [52] to [58].
5. Here, Park thought only of himself and fulfilling his desires. Two young women were sexually and indecently assaulted. Their youth and vulnerability was exploited. The harm they suffered, and I presume still suffer, must be recognised.
6. The sentence imposed is only one indicator of the seriousness with which the court views the crime committed. A court sentencing an offender must take into account all relevant considerations. This mean a direct correlation between harm done and time served is impossible. A victim should never equate or measure her injury with the punishment actually inflicted on the offender.

The guilty pleas

1. Each guilty plea was entered in the Local Court. A guilty plea has utilitarian value to the efficiency of the criminal justice system. While, the Alice matters were initially listed for hearing no one had to give evidence. It was noted in R v Thompson (2000) 49 NSWLR 383 at [3], that one important reason advanced to justify the practice of allowing a utilitarian discount for a guilty plea was that in particular cases; especially sexual assault cases and crimes involving children, there is a particular value in avoiding the need to call witnesses, especially victims, to give evidence.
2. I propose to allow a 25% discount for the utilitarian value of the early pleas of guilty. That reduction will be applied to each indicative sentence. I have taken care not to erode the benefit of the plea by the process of accumulation.

Orders - an aggregate sentence

1. In respect of each count and in accordance with your guilty plea you are convicted. Applicable Form 1's have been taken into account.
2. The indicative sentences to be applied are as follows:

• with respect to offence 1- Susan - s 61J(1) Crimes Act 1900, imprisonment for 3 years 9 months with an indicated non-parole period of 2 years 3 months;
• with respect to offence 2 - Susan - s 61J(1) Crimes Act 1900, imprisonment for 3 years 9 months with an indicated non-parole period of 2 years 3 months;
• with respect to offence 1- Alice - s 61M(2) Crimes Act 1900, imprisonment for 3 years with an indicated non-parole period of 1 year 10 months;
• with respect to offence 2- Alice - s 61M(2) Crimes Act 1900, imprisonment for 3 years with an indicated non-parole period of 1 year 10 months;
• with respect to offence 3 - Alice on s 166 - s 91H(2) Crimes Act 1900, seven months imprisonment.
• The indicative sentences reflect a finding of special circumstances.

1. Having considered issues of accumulation, concurrency and totality, I am satisfied that an aggregate sentence of 5 years 5 months imprisonment with a non-parole period of 3 years 3 months should be fixed.
2. The sentences should date from 29 October 2016. You will be eligible for consideration for release to parole on 28 January 2020. The sentence expires on 28 March 2022.

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