R v MK

Sequence 1 - Indecent assault person under 16 years, s 61M(2) Crimes Act.

1. In January 2013 the victim commenced kindergarten. She was aged five years. At around this time the offender would often tickle the victim on her back and stomach area. The victim recalled this was fun, but as she grew older she noticed that the offender's tickling became more sexual. When the victim was in year 2 when aged seven or eight years, the offender tickled her vagina, skin to skin, on an occasion when she was in the garage with him.

Sequence 15 - Indecent assault person under 16 years, s 61M(2) Crimes Act.

1. On another occasion when the victim was aged seven or eight years she was sitting with the offender in an area just outside the garage. The victim hugged the offender and felt "relaxed and fun". The offender then placed his finger on the outside of the victim's vagina. The victim recalled that it felt "weird" and "like a very disgusting feeling".
2. Around October 2015 the victim's mother left her job and became a fulltime parent. Also around this time the offender obtained a job in Erina.
3. In September or October 2016 the victim's father decided it was time for the offender to move out of the garage at their residence. The offender returned to live with his grandmother at an address in Berkeley Vale. The victim would visit her grandmother's house on occasions, particularly during school holidays.

Sequence 3 and 16 - Indecent assault person under 16 years s 61M(2) Crimes Act.

1. Sometime in 2016 prior to the victim's tenth birthday, she was in the offender's bedroom at his grandmother's house. The victim rubbed the offender's penis with her hands. She recalled the offender was wearing "boxing shorts" with a little hole for his penis to come out. The victim then put her feet over her head and the offender touched the outside of her vagina with his hands.

Sequence 5 and 6 - Indecent assault person under 16 years, s 61M(2) Crimes Act.

1. Sometime in early 2017 the victim was in the offender's bedroom at his grandmother's house. The offender's grandmother was at home but was sleeping. The offender asked the victim if she wanted to do "the thing", but the victim said she did not. The victim rubbed the offender's penis with her bare hands and the offender then rubbed her vagina. The victim was aged nine years at the time of this incident.

Sequence 11 - Indecent assault person under 16 years, s 61M(2) Crimes Act.

1. The victim turned ten years old in 2017. On the following weekend, the victim went to her grandmother's house. During the visit the offender touched the outside of the victim's vagina with both of his hands.

Sequence 7 and 8 - Indecent assault person under 16 years s 61M (2) Crimes Act.

Sequence 9 - Sexual intercourse with child aged 10 to 14 years, s 66C(1) Crimes Act.

1. On another weekend shortly after the victim's tenth birthday, she visited her grandmother's house again. The offender took the victim into his bedroom and rubbed her breasts with his hands. The offender then put some plastic, similar to gladwrap, on his penis and the victim rubbed it up and down with her hands. The offender removed the victim's pants and underpants and she placed her feet over her head. The offender licked the victim's vagina and around her anus. The victim recalled that the offender's tongue felt "ticklish, bumpy and uncomfortable".

Sequence 12 and 13 - Indecent assault person under 16 years s 61M(2) Crimes Act.

Sequence 14 - Sexual intercourse with child aged 10 to 14 years, s 66C(1) Crimes Act.

1. On 2 October 2017, the victim's grandmother picked her up from her home. Arrangements had been made for the victim to stay with her grandmother for a week during the school holidays. The victim's younger cousin, was also visiting to celebrate her birthday. When the victim arrived at her grandmother's house her cousin was not due to arrive for another couple of days. The victim was going to sleep in her cousin's room until that time. On one of the nights prior to her cousin's arrival, the victim was in her cousin's bedroom at night. The offender came to the room and took the victim to his own bedroom.
2. The offender pushed the victim's "butt cheeks" apart and licked around her anus with his tongue. The offender also rubbed the victim's breasts underneath the shirt she was wearing. The offender then licked the victim's vagina with his tongue. The victim described the feeling as "something wet's going on your rude part and it feels bumpy, it's disgusting."
3. The victim returned home from this visit on Friday 6 October 2017.

Complaint

1. On 9 October 2017, the victim's mother fell ill with a gastric virus. On 10 October 2017 she was lying on the couch at home. She recalled the victim coming home from school and talking about a subject on the topic of "your body is yours". The victim's mother was still feeling very unwell and was unable to concentrate on what the victim was talking about.
2. Later that evening the victim's mother asked the victim how her day was at school, to which the victim replied, "I had a good day. We did a class about 'my body is mine' and health and stuff and touching." The victim's mother thought the victim seemed vague.
3. On 11 October 2017 the victim had a conversation with her teacher at school. As a result of that conversation police from The Entrance Child Abuse Squad made arrangements to speak with the victim. The victim was first interviewed by police at her home on 13 October 2017.
4. The victim participated in two further interviews with police on 17 and 19 October 2017.

Arrest and interview

1. On 7 November 2017 the offender was arrested at Berkeley Vale. He was taken to Wyong Police Station where he participated in a record of interview with police. During that interview the offender made full and frank admissions to the offending conduct. Following the interview the offender was charged.
2. In relation to those agreed facts I note the following: 1. It is agreed between the parties that sequences 3, 5, 6, 8 and 11 all involved skin to skin contact. 2. It is agreed in relation to sequences 3, 5, and 8 that there was physical contact between the offender and the complainant during the act of the complainant rubbing the offender's penis, sufficient to constitute the assault element of the offence of indecent assault.
3. It is clear from those agreed facts that the offending between 2014 and 2017 was extremely serious.
4. In relation to sentencing for sexual offences against children, the Court has repeatedly indicated that sentences imposed must not only have a very significant element of general deterrence, but must also punish the offender and denounce the conduct (see s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW)).
5. Here the victim was betrayed by someone to whom she was related. The facts in my view demonstrate a very grave breach of trust.

Assessment of Objective Seriousness

1. In assessing the objective seriousness of the offences of sexual intercourse with person aged ten years or over and under 14 years (s 66C(1), Crimes Act), I have taken into account the following factors: 1. The age of the victim at the time, namely ten years, recognising that the offence relates to children 10 to 14 years. Accordingly, the victim is at the lowest end of the age range for the offence. 2. The age of the offender at the time, namely 26 years. 3. The nature of the sexual intercourse, namely cunnilingus, recognising that there is no hierarchy of seriousness based solely upon the type of sexual intercourse (see generally R v Hibberd (2009) 194 A Crim R 1 at [56].) 4. Each of these offences was not an isolated act. 5. I accept the opinion of Dr Furst that there is a causal connection between the offender's mental health at the time and the offending in circumstances where the offender was suffering from persistent depressive disorder, panic disorder and autistic schizoid traits.
2. Dr Furst noted as follows: "The presence of his mental disorders including low self-esteem, depression, anxiety and apparent autistic and/or schizoid traits coupled with his prolonged period of social maladjustment and the absence of any intimate relationship suggests he was probably lonely and sexually frustrated as a young adult during the period of his offences, contributing towards his eventual opportunistic incestuous offending".
3. I accept the submission of Mr De Mars on behalf of the offender that those mental health considerations are relevant to objective seriousness and reduce the offender's moral culpability (see Yun v R [2017] NSWCCA 317 at [47] and Tepania v R [2018] NSWCCA 247 at [112]).
4. Having taken into account those factors, I assess each offence of sexual intercourse with a person aged 10 years or over and under the age of 14 years as being below the middle of the range.
5. In assessing the objective seriousness of the 11 offences of indecent assault with a person under 16 years, pursuant to s 61M(2) of the Crimes Act, in addition to those common features to which I have referred, I have also taken into account the nature and extent of the physical act relied upon to establish each indecent assault.
6. I note that in respect of the indecent assault offences, the age range is between 7 years and 10 years.
7. In relation to assessing the objective seriousness of each offence, the particular distinguishing feature is the physical act relied upon. In respect of those matters, I assess the objective seriousness as follows: 1. Sequence 7 and sequence 13, at the low mid-range. 2. Sequences 3, 5, 8 and 15 as just below mid-range; and 3. Sequences 6, 11, 12, 1 and 16 as at the mid-range of objective seriousness.

Aggravating features

1. The Crown relied upon two aggravating features, namely that the offender was in a position of trust in relation to the victim in circumstances where he was the victim's older half-brother. Secondly, that the offences occurred in the home of the victim. I am satisfied that each of those aggravating features is established.

Victim impact statement

1. There was no victim impact statement provided to the Court on behalf of the victim. Notwithstanding the absence of a victim impact statement, courts now well understand and accept the very significant effects upon victims of sexual offending.
2. In R v Nelson [2016] NSWCCA 130, Basten J, stated as follows at [23]: "…Early sexual relationships with adults will often exploit and exacerbate a precarious sense of self-worth and self-respect in the victim, which may have lifelong consequences, including an inability to form stable partnerships in adulthood and possible self-destructive behaviour."
3. One of the purposes for which a court imposes a sentence is to recognise the harm done to the victim of the crime (see s 3A(g) of the Crimes (Sentencing Procedure) Act.)
4. It was submitted on behalf of the offender that one of the relevant matters in assessing objective seriousness was the absence of force to commit the offences. In respect of the relevance of an absence of force in child sexual assault offending the remarks in R v BA [2014] NSWCCA 148 at [33] are instructive as follows: "…An aspect of the seriousness of sexual offences committed against young children is that their youth and inexperience deprives them of the capacity to resist or protect themselves. The fact that an adult entrusted with the care of a child is able to prey upon the child's trust and vulnerability to commit sexual offences without resort to the use of force is hardly a mitigating factor. It speaks of a pernicious abuse of trust."
5. Accordingly, I have not taken into account that factor as reducing the objective criminality.

Subjective circumstances

1. The offender is now 28 years of age.
2. He has no previous criminal convictions. Whilst I give that fact some weight, the weight to be attributed to that fact is reduced having regard to the duration of the offending.
3. The following material was tendered on behalf of the offender:

• Exhibit 1, a report of Dr Furst, forensic psychiatrist, 6 February 2019.
• Exhibit 2, a letter from the offender's aunt, 30 January 2019.
• Exhibit 3, a letter of the offender's grandmother, 30 January 2019.
• Exhibit 4, defence written submissions.
• Exhibit 5, a letter under the hand of Wayne Cook, Chaplain, MRRC, 22 November 2018.
• Exhibit 6, course certificates, dated 17 December 2018 and 27 April 2018.
• Exhibit 7, a letter written by the offender.

1. The offender's background was outlined in the report of Dr Furst who examined the offender for one hour on 9 November 2018. There was also evidence given by the offender and his aunt, in relation to his background which can be summarised as follows.
2. The offender was born in Gosford. He grew up on the Central Coast. The offender's mother was very young when he was born. The offender's aunt indicated in evidence that the offender's mother did not cope well with having a child at such a young age and the offender would spend time both with his aunt and his grandmother.
3. The offender went to live with his aunt when he was four years of age. He remained living with his aunt until he was 12 years of age when he went to live with his grandparents.
4. He returned to live with his mother after she had commenced a relationship with her new partner. A decision was made for the offender to move into the residence in a detached dwelling in order to look after the three children, including the victim.
5. The offender reported to Dr Furst that he attended school until year 10. He reported being subjected to bullying at school and performed poorly academically. Dr Furst noted that the offender was not in special classes and did not appear to have an intellectual disability. The offender indicated that his main interest when he was growing up was computers. He preferred his own company and did not socialise, avoiding social situations. Dr Furst considered this was suggestive of autistic and/or schizoid traits.
6. After leaving school the offender completed hospitality courses between the age of 17 and 18 years. He did work experience in that industry until he realised that it did not suit him. He did not work throughout the majority of his early twenties.
7. Dr Furst noted as follows: "[The offender] reported feeling frustrated and depressed when unable to find work. He felt lonely, lacked motivation to do things, lacked energy, felt tired each day and had trouble concentrating. His self-esteem was low and his self-image was consistently poor, maintained by his obesity. He also felt suicidal on occasions. He suffered insomnia. He reported a history of anxiety dating back to his early twenties, tending to think about the worst possible outcomes. [The offender] also experienced regular physical symptoms of anxiety, including shaking, sweatiness, racing heart rate and feeling light headed, his episodes of anxiety lasting for about ten minutes at a time. He reported such episodes of acute anxiety symptoms highly suggestive of panic attacks, occurring approximately two to three times a week over recent years, often with no apparent trigger."
8. I note that the offender had worked at a chemist outlet for two years up until the time of his arrest.

Drug and alcohol history

1. The offender reported no history of problematic alcohol. He denied using illicit drugs.

Medical history

1. The offender reported no significant medical history. A history of obesity was noted. He reported no regular medication.

Attitude of offender to offending

1. In relation to the offender's attitude to the offending, Dr Furst noted as follows: "[The offender] acknowledged his offending including the wrongfulness of his actions. There was evidence of cognitive distortion supporting his offending throughout the period in question, including beliefs that his younger sister was 'happy with the situation' and the sexual nature of his actions at the time. He was unable to explain why his offending actions continued over the years in question and escalated prior to his arrest, especially as he described feeling 'horrible' and 'guilty' in the days after abusing his sister on each occasion. He is now able to appreciate that although he does not feel that he hurt his sister physically, [she] is probably 'messed up in her mind' as a consequence of his actions, suggestive of victim empathy. He also said, 'I hope I haven't hurt her too much'."
2. In my view it is clear that the offender has shown limited insight into the grave criminality demonstrated by the offending. I accept however, this to some extent may well be explained by his mental health issues.

Mental state examination

1. Upon assessment, Dr Furst was of the opinion that: 1. There was no indication of psychosis; 2. The offender appeared of average intelligence; and 3. He was anxious and low in mood.
2. Dr Furst was of the opinion the offender met the criteria for diagnosis of the following mental disorders: 1. persistent depressive disorder; 2. panic disorder; 3. autistic/schizoid traits.
3. As previously indicated, Dr Furst accepted some interplay between the offender's mental health issues and the offending. Dr Furst assessed the offender as a low to moderate risk of re-offending after conducting a risk assessment.

Future Treatment

1. Dr Furst recommended that the offender be referred to a clinical psychologist whilst in custody so that an assessment could be undertaken of his need to participate in a sex-offender treatment program. Dr Furst further recommended that the offender would probably benefit from an individual approach to psychological treatment to address his various mental health issues. It was noted that the offender, in the opinion of Dr Furst, did not appear to require any specific psychotropic medication. Dr Furst made further recommendations in relation to his treatment in the community.
2. The offender gave evidence during the sentence proceedings. He indicated he is currently being held at Parklea Correction Centre, where he has been since March 2019. He has been in custody since 7 November 2017. He agreed that during his record of interview with police he expressed a great deal of shame about his offending.
3. In relation to his current attitude to the offending, the offender read out a letter that he had written. It was marked exhibit 7 in the proceedings. In the letter the offender indicated that "not a day goes by that I do not regret my actions." It is clear, in my view, that the offender does accept full responsibility for his offending. He indicated that whilst he has been in custody he has had time to reflect upon his actions, and described himself as, "disgusted and distraught" to think of what he did.
4. He indicated to the court as follows: "At the time of the offending I was in a very bad place both physically and mentally. I was on a downward spiral that most definitely would have ended in my death either by suicide or from my reckless lifestyle."
5. The offender then reflected upon his time in custody, indicating that he has been given the opportunity to have access to psychologists and a prison chaplain whilst in custody. The offender indicated that he now feels that he is in a much better place both mentally and physically, notwithstanding that what he did to the victim "haunts" him.
6. He concluded as follows: "I take full responsibility for my actions and I cannot fully express the remorse I feel."
7. The offender also indicated in evidence that the offending has profoundly affected his relationship with his mother. He acknowledged that he still has the ongoing support of his aunt, and she continues to visit him.
8. The offender's aunt also gave evidence. She indicated that her past employment has included being a youth refuge worker, managing facilities for out of home children, managing three group homes and persons with disabilities, and working in a role of behaviour support for a private provider in Newcastle. She has also, in the past, provided assistance to offenders.
9. The offender's aunt outlined the very significant impact of the offending upon the offender's family. She described the family as "fractured", and indicated that it is only the offender's grandmother and herself that continue to support the offender by visiting him in custody. She further indicated that she is prepared to support the offender upon his release from custody and to focus upon his rehabilitation. The offender's aunt indicated that because of her professional connections she will be able to ensure that the offender gets the best opportunity for rehabilitation through engagement with psychologists, psychiatrists and treatment within the community. The offender is very fortunate indeed to have the ongoing support of his aunt, in both a personal and professional capacity.
10. I have also had regard to the two references provided on behalf of the offender from his aunt and his grandmother. It is clear from each of those references that the offender has expressed a sincere regret for committing the offences and also that he has the continuing support of those two members of his family.
11. Also tendered on behalf of the offender was a letter from Wayne Cook, Chaplain at the MRRC indicating the assistance the offender has sought from the Chaplain services including attendance at the positive lifestyle program (see exhibit 5 and 6).

Mental health issues

1. Having regard to the evidence of Dr Furst, I am satisfied that the offender is suffering from the diagnosed mental health conditions as referred to by Dr Furst. In my view those conditions are relevant in the following ways (see generally DPP (Commonwealth) v De La Rosa [2010] NSWCCA 194 at [177]): 1. I am satisfied the offender's time in custody will be more onerous. 2. I am satisfied that there is a reduction in moral culpability which I have already taken into account with respect to an assessment of the objective seriousness. 3. I am satisfied less emphasis is required on general and specific deterrence.
2. Having regard to matters 1 and 3, I propose to moderate the otherwise appropriate sentence.

Prospects of rehabilitation

1. I am satisfied the offender has good prospects of rehabilitation having regard to the opinion of Dr Furst, that the offender is a low to moderate risk of re-offending, his excellent family support, his previous employment and the absence of a criminal history. I am also satisfied the offender is unlikely to re-offend.

Remorse

1. I am satisfied the offender is genuinely remorseful having regard to the letter he wrote to the Court (exhibit 7) and his evidence before the Court, together with his admissions to police that were both full and frank and further, his plea of guilty.

Special circumstances

1. It was submitted on behalf of the offender that the Court would vary the statutory ratio between the non‑parole period and the parole period in circumstances where special circumstances exist firstly, because it is the offender's first time in custody, and secondly, because of the extended period of time required to ensure his rehabilitation.
2. I am satisfied special circumstances exist and I propose to vary the statutory ratio pursuant to s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Totality

1. In relation to totality, the relevant sentencing principle to consider is whether the sentence for one offence can comprehend and reflect the criminality of the other. If so, the sentences should be concurrent, but if not there should be some accumulation (see generally Cahyadi v R [2007] NSWCCA 1).
2. I propose to impose an aggregate sentence in this matter. Had I imposed separate sentences, I would have made sentences for the following sequences wholly concurrent: 1. Sequences 7, 8, 9. 2. Sequences 12, 13, 14. 3. Sequences 3 and 16. 4. Sequence 5 and 6.
3. In addition there would have been some partial accumulation between the sentences imposed for those separate episodes of offending and the remaining offences.
4. In determining the appropriate sentence, I have had regard to the submissions on sentence, both oral and written made on behalf of the Crown and by Mr De Mars on behalf of the offender.

Determination

1. In determining the appropriate aggregate sentence, I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act.
2. Having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate (see s 5(1) of the Crimes (Sentencing Procedure) Act.)
3. I have had regard to the objective gravity of the offences, the relevant prescribed maximum penalties, the offender's subjective circumstances and the prescribed standard non‑parole periods in accordance with s 54B(2) of the Crimes (Sentencing Procedure) Act.
4. I acknowledge the anomaly in relation to the standard non‑parole periods in respect of each offence in circumstances where, whilst the offence of sexual intercourse with a person aged 10 years or over and under 14 years has a maximum prescribed penalty of 16 years, it has a standard non‑parole period of 7 years, where the offence of indecent assault person under 16 has a maximum prescribed penalty of 10 years, it has however a standard non‑parole period of 8 years.
5. As previously indicated, I propose to impose an aggregate sentence pursuant to s 53A(1) of the Crimes (Sentencing Procedure) Act.
6. Pursuant to s 53A(2)(b) the sentences that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence are as follows:
7. Sequences 7 and 13 - indecent assault person under 16 years, s 61M(2) of the Crimes Act. The starting term is 16 months less 25% discount for the plea of guilty, leaving a total term of 12 months with a non‑parole period of 8 months.
8. Sequences 3, 5, 8 and 15 - A starting term of 3 years, less 25% for the plea of guilty, leaving a total term of 2 years and 3 months with a non‑parole period of 1year and 6 months.
9. Sequences 6, 11, 12, 1 and 16 - A starting term of 3 and 6 months, less 25% for the plea of guilty leaving a total term of 2 years and 7 months with a non‑parole period of 1 year and 9 months.
10. Sequences 9 and 14 - offences of sexual intercourse with person aged 10 years or over and under the age of 14 years pursuant to s 66C(1) of the Crimes Act. A starting term of 4 and a half years, less 25% for the plea of guilty, leaving a total term of 3 years and 4 months, with a non‑parole period of 2 years and 3 months.
11. Stand up please MK.
12. In relation to each offence you are convicted.
13. I sentence you to an aggregate term of imprisonment of 7 years and 6 months to date from 7 November 2017 and expire on 6 May 2025.
14. I fix a non‑parole period of 5 years to date from 7 November 2017 to expire on 6 November 2022.
15. I have found special circumstances and varied the statutory ratio between the non‑parole period and the parole period, so you will spend less time in custody and more time on parole. The earliest date upon which you will become eligible for parole is 6 November 2022.
16. If you just take a seat please. Are there any further matters that I should refer to in my remarks?
17. DE MARS: Not that comes to mind from me.
18. HODGEMAN: No, not from the Crown's perspective your Honour.
19. HER HONOUR: If you could confirm those dates please.
20. HODGEMAN: Yes your Honour, the dates appear correct from the Crown's perspective.
21. DE MARS: I don't disagree with that your Honour.
22. HER HONOUR: That completes the matters.

Amendments 11 December 2019 - Typographical error in dates corrected 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: 11 December 2019