R v MK

[2019] NSWDC 489

District Court of NSW|2019-06-14

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At a glance

Source facts

Court

District Court of NSW

Decision date

2019-06-14

Source

Original judgment source is linked above.

Judgment (29 paragraphs)

[1]

SENTENCE

MK, now aged 28 years appears, for sentence in relation to 11 offences of indecent assault person under the age of 16 years, pursuant to s 61M(2) of the Crimes Act, and two offences of have sexual intercourse with person aged 10 years or over and under 14 years, an offence pursuant to s 66C(1) of the Crimes Act.
The maximum prescribed penalty in respect of the offences of indecent assault person under 16 years of age is 10 years' imprisonment. There is a prescribed standard non‑parole period of eight years.
In respect of the offence of have sexual intercourse with person aged 10 years or over and under 14 years, the maximum prescribed penalty is 16 years' imprisonment. There is a prescribed standard non-parole period of 7 years.
The victim, BW, now aged 11 years, is the offender's half‑sister. The offending occurred between 2014 and 2017.
The offender pleaded guilty to all offences in the Wyong Local Court on 2 October 2018. Having regard to the timing of the plea, I propose to allow a discount on sentence of 25%.
The offender has been in custody, bail refused, since his date of arrest on 11 November 2017. Accordingly, the sentence imposed today will be backdated to that date.

[2]

Agreed facts

The offender was born in 1991. His parents separated a short time later and the offender lived with his mother and grandmother. In around 2000, the offender's mother met her current husband. In 2003 they purchased a home in Blue Haven and moved in. The offender remained living with his grandmother. The offender's mother and her current husband have three children, one of whom is the victim BW.

[14]

Assessment of Objective Seriousness

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.
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".
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]).
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.
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.
I note that in respect of the indecent assault offences, the age range is between 7 years and 10 years.
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.

[17]

Subjective circumstances

The offender is now 28 years of age.
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.
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.

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.
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.
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.
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.
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.
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.
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."
I note that the offender had worked at a chemist outlet for two years up until the time of his arrest.

[22]

Future Treatment

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.
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.
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.
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."
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.
He concluded as follows: "I take full responsibility for my actions and I cannot fully express the remorse I feel."
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.
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.
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.
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.
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).

[28]

Determination

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.
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.)
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.
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.
As previously indicated, I propose to impose an aggregate sentence pursuant to s 53A(1) of the Crimes (Sentencing Procedure) Act.
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:
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.
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.
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.
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.
Stand up please MK.
In relation to each offence you are convicted.
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.
I fix a non‑parole period of 5 years to date from 7 November 2017 to expire on 6 November 2022.
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.
If you just take a seat please. Are there any further matters that I should refer to in my remarks?
DE MARS: Not that comes to mind from me.
HODGEMAN: No, not from the Crown's perspective your Honour.
HER HONOUR: If you could confirm those dates please.
HODGEMAN: Yes your Honour, the dates appear correct from the Crown's perspective.
DE MARS: I don't disagree with that your Honour.
HER HONOUR: That completes the matters.

R v MK

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Judgment (29 paragraphs)

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