R v Mollel

OBJECTIVE FACTORS - the arguments

1. The Crown drew attention to the fact that although there was only one victim and one incident of offending conduct, the offender was a trusted family friend who gained access to the victim because of his relationship with the family. In these circumstances, it was submitted that what was involved amounted to a breach of trust within the terms of s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 (NSW) [16] and further, was committed in the home of the victim within s 21A(2)(eb) of the 1999 Act. The Crown further drew attention to the fact that the conduct itself involved the rubbing of his exposed penis on the exposed genitalia of the victim coupled with an act of ejaculation. In these circumstances, the Crown submitted that the offences for which the offender is to be sentenced, fell within the upper range of objective seriousness for offences of this kind.
2. Contrary to the Crown's submission, the offender's solicitor contended that this case did not involve a breach of trust. It was submitted that whilst family friends were a category of offenders in relation to which a breach of trust could arise "much depends on the circumstances of a particular case." [17] The offender's solicitor submitted that in the present case, there was no evidence that the complainant considered the offender a particularly close friend or reposed any trust in him. It was submitted that the offender could not therefore be described as having been regarded by the complainant as a trusted family friend.
3. The offender's solicitor also submitted that the offence under s 61M(2) of the 1900 Act encompasses victims between the ages of zero (0) to sixteen (16), and accordingly, as the victim in this case was thirteen (13), this was "very much towards the upper end of the relevant age range." [18] Further, the offender's solicitor drew attention to the fact that there was no violence or coercion involved in the commission of the offences and that as soon as the victim offered resistance (by pushing the offender away), the offender desisted from his conduct. [19] It was also submitted that the consent of the victim may also amount to a mitigating factor in a case of a victim in her early teens. [20] It was argued that the jury's finding of not guilty in relation to Count 2, combined with the fact that during deliberations, the jury twice enquired about the issue of consent, justified a finding that the jury was not satisfied that the victim did not consent to the conduct of the offender.
4. The offender's solicitor further submitted that the offending conduct was spontaneous and opportunistic, and unsophisticated and did not involve planning. [21] It was further submitted that the conduct constituting each offence was of short duration [22] and was an isolated incident. [23]

Determination of the objective seriousness

1. In assessing objective seriousness, I take into account the level of physical contact involved. In R v PGM, Fullerton J stated:- "[31] As this Court has observed, it is of considerable significance when assessing the objective seriousness in the indecent assault of a child to consider the actual character of the assault, including the degree of physical contact involved (see GAT v R [2007] NSWCCA 208 at [22]). Having regard to the degree of genital connection in counts 4 and 7, and the gravity of the conduct in count 3 which although grossly indecent nevertheless fell short of any actual physical connection, his Honour's characterisation of the offending as at the lower end of mid range is in my view indicative of error. Having regard to the facts in respect of count 4 on the indictment, facts which on one view may well have justified a charge under s 66A of the Crimes Act, it is difficult to hypothesise more serious instances of indecent assault. Even were it open for his Honour to have found the particulars of these offences as occupying a position in the lower end of mid range, when account is taken of the other factors bearing upon the assessment of the objective criminality constituted by that offending, his Honour's finding is in my view unsustainable." [24]
2. At the time of the offences, the offender was aged 33 and the victim was 13. The age differential between them is of some significance to the objective seriousness of the offence. [25]
3. I accept that the conduct constituting each offence was of short duration, spontaneous and opportunistic. I also accept that there was no violence or coercion involved in the commission of the offences. [26] Children are to be protected from sexual conduct even if they are willing participants. [27] Not that I accept that the acts the subject of the two offences were consensual as submitted. [28]
4. The offences occurred in M's home, an aggravating matter under s 21A(2)(eb) of the 1999 Act.
5. Although the offender's solicitor argued that what was involved did not engage s 21A(2)(k) of the 1999 Act as amounting to a breach of trust. I am satisfied that it did.
6. In R v Smith, [29] Wheeler J stated:- "[5] So far as the "position of trust" is concerned, I agree with what has been written by McLure J. I would add that an abuse of a position of trust will generally be of significance for one of two reasons. It may be that it involves an abuse of a position of power or authority which one person has over another, such as a school teacher and a pupil. The aggravating factor is the misuse of that position. Alternatively, it may be that because of some relationship between them the complainant reposed actual trust and confidence in the offender, so that the effect upon the complainant is likely to be more serious because the offender's conduct would, in addition to its other ramifications, tend to cause her to lose confidence in her own judgment and to cause difficulties in her relationships with others whom she might be disposed to trust. The two types of breach of trust may overlap …"
7. I am satisfied on the evidence that prior to this incident M trusted the offender and was fond of him, having met his on a number of social occasions including in their respective homes. The relationship in this instance was clearly one in which the M reposed trust and confidence in the offender. It extended to doing things together including M showing the offender her phone and laptop, and watching television together.
8. In my view the circumstances of the offences involved the second category of breach of trust referred to by Wheeler J.
9. Overall I accept that the offences fell well within the mid-range of objective seriousness for offences of this kind.

SUBJECTIVE FACTORS

1. The offender has no prior antecedents. In the course of the trial evidence as to his good character were given by his wife and other witnesses called on his behalf.
2. The Crown submitted that although the offender was a person of prior good character, this had limited weight. [30] The Crown did not submit that s 21A(5A) of the 1999 Act applied, but did submit that the offender's prior good character should be given less weight as the offending occurred in the context of the offender having access to the victim as a result of being a trusted family friend and the principles of general deterrence would be of significant consideration in the Court's sentencing exercise. [31]
3. I accept that this is so.
4. The offender has not expressed remorse for his conduct. [32]
5. Accepting that the offences were opportunistic involving a single overall episode and one victim at a time when he may have been affected by intoxicating liquor, I would find the prospects of rehabilitation as being reasonable and likelihood of reoffending as low. That is not to suggest his conduct in question is mitigated by intoxication - it is not.

SPECIAL CIRCUMSTANCES

1. The offender contends for a finding of special circumstances based on: 1. The fact that this is the offender's first time in custody; and 2. The offender is likely to experience isolation in custody.
2. The offender is a Tanzanian national. From the contents of the ERISP interview with Police it is clear that he has a somewhat limited command of English with his native tongue being Swahili. It was submitted that this factor and his ethnicity will make his time in custody more onerous as he is likely to experience isolation and racial discrimination. In this regard, some limited (but not much) recognition is to be given to his circumstances in prison. [33]
3. The solicitor for the offender further submits that following sentence the offender proposes to ask that he be placed in protective custody. There is no evidence as to the conditions the offender is likely to serve in that custody are more onerous.
4. The Court of Criminal Appeal has repeatedly applied the principle that where an offender seeks to receive a reduction of sentence on the ground that conditions of imprisonment will be more onerous, it is for the offender to lead evidence of what those conditions entail. [34] Whilst I accept that offender may apply to serve his sentence in protective custody, it would be erroneous to take into account in mitigation either in the determination of the sentences or in the finding of special circumstances under s 44(2) of the 1999 Act without evidence that the conditions of imprisonment will be more onerous. [35]
5. The Crown nevertheless did not oppose a finding of special circumstances on the other grounds identified by the offender.
6. Overall, because this is the offender's first time in custody, he has reasonable prospects of rehabilitation and he will be somewhat isolated as his solicitor has submitted, I am satisfied that it is appropriate to find special circumstances.

SENTENCE

1. In sentencing the offender I have regard to the maximum penalty of 10 years imprisonment for each offence of which he has been found guilty and the standard non-parole period of 8 years provided under s 54B(2) of the 1999 Act. [36]
2. I also bear in mind the purposes of sentencing in s 3A of the 1999 Act.
3. In R v Wicks, [37] McClellan CJ at CL stated:- "[39] The decisions of appellate courts make plain that there are a number of common elements when sentencing offenders for child related sexual offences. General deterrence is of paramount importance (R v Levi (1997) unreported, NSWCCA, 15 May 1997, R v D (1997) 69 SASR 413; R v AJW (2001) 80 SASR 246; Bell v R [2001] WASCA 40). Any abuse of a position of trust is considered to be an aggravating feature. Other relevant factors in sentencing for this type of offence include the type of conduct committed, the number of victims (see R v LLK (2003) 146 A Crim R 1), the number of occasions on which the offending occurred, the period of time over which the offending occurred and whether the offending was part of a course of conduct (see R v H [2001] NSWCCA 117)."
4. The offender has served 59 days of pre-trial custody before a detention application was granted on 1 November 2016. This is to be taken into account [38] and accordingly the sentence is to commence on 3 September 2016. [39]
5. The solicitor for the offender submitted that the sentences should be made concurrent for the two offences, The Crown did not submit otherwise. I am satisfied that it is appropriate to do so having regard to the principles summarised by Hall J in R v XX. [40]
6. On Count 1, the offender is convicted and sentenced to a period of imprisonment of 3 years. In light of the fact that I propose this term be served concurrently with the sentence for Count 3 and its length would be surpassed by the non-parole period for Count 3, I would decline to set a non-parole period. [41] The sentence for this count is to commence on 3 September 2016 and expire on 2 September 2019.
7. On Count 3, the offender is convicted and sentenced to a minimum term of imprisonment of 4 years and an additional term of 2 years. The sentence is to commence on 3 September 2016 and expire on 2 September 2022. The non-parole period will expire on 2 September 2020 at which stage the offender will be eligible to be released to parole.

Endnotes

1. Hereinafter referred to as the "1900 Act"
2. T 201.45 - .48
3. T 202.2 - .4
4. T 202.4 - .5
5. T 202.5 - .7
6. T 202.42 - .44
7. T 202.49
8. T 217.6 - .19
9. T 217.21 - .23
10. T 217.33 - .35
11. T 110.42 - .44
12. T 110.50 - 111.3
13. T 111.11 - .13
14. T 111.20 - .23
15. Exhibit J
16. Hereinafter referred to as the "1999 Act"
17. Defence Submissions on Sentence, undated at [6]. The Defence relied on: R v Stanbouli (2003) 141 A Crim R 531
18. Defence Submissions on Sentence, undated at [1]
19. Defence Submissions on Sentence, undated at [2]
20. Defence Submissions on Sentence, undated at [3]. The Defence relied on: R v McClymont (Unreported, NSW Court of Criminal Appeal, Gleeson CJ, Mahoney JA and McInerney J, 17 December 1992) and R v Darrell Williams (Unreported, NSW Court of Criminal Appeal, Gleeson CJ, Clarke JA and Campbell J, 5 November 1991)
21. Defence Submissions on Sentence, undated at [4]
22. Defence Submissions on Sentence, undated at [5]
23. Defence Submissions on Sentence, undated at [7]
24. [2008] NSWCCA 172 at [31] (Fullerton J with Spigelman CJ and Barr J agreeing)
25. R v Dagwell [2006] NSWCCA 98 at [35] (Howie J with Beazley JA and Adams J agreeing)
26. Although not a matter of mitigation: BT v R [2010] NSWCCA 267 at [22] - [24] (RS Hulme J with McColl JA and Latham J agreeing)
27. R v McClymont (Unreported, NSW Court of Criminal Appeal, Gleeson CJ, Mahoney JA and McInerney J, 17 December 1992)
28. See: CT v R [2017] NSWCCA 15 at [71] - [75] (Hoeben CJ at CL, with Johnson and Latham JJ agreeing)
29. [2004] WASCA 44
30. See: R v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370 which affirmed R v Kennedy [2000] NSWCCA 527
31. Crown's Submissions on Sentence, undated at [15]
32. s 21A(3)(i) of the 1999 Act
33. R v Huang (2000) 113 A Crim R 386; [2000] NSWCCA 238, 391 [18] - [19] (Adams J with Spigelman CJ and Newman J agreeing)
34. Clarkson v R (2007) 171 A Crim R 1; [2007] NSWCCA 70, 50 - 51 [273] (Howie J with Sully J agreeing)
35. RWB v R; R v RWB (2010) 202 A Crim 209; [2010] NSWCCA 147, 235 - 236 [192] - [195] (Simpson J with Johnson and McCallum JJ agreeing); and R v LP [2010] NSWCCA 154 at [21] (Buddin J with Hodgson JA and Whealy J agreeing)
36. See: Corby v R [2010] NSWCCA 146 at [71] (Johnson J with Beazley JA and Kirby J agreeing) and Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, 131 [25]
37. [2005] NSWCCA 409 at [39] (McClellan CJ at CL with Adams and Hoeben JJ agreeing)
38. s 47(3) of the 1999 Act
39. s 47(2)(a) of the 1999 Act
40. (2009) 195 A Crim R 38; [2009] NSWCCA 115, 48 [52] (Hall J with Tobias JA and Kirby J agreeing)
41. s 45(1) of the 1999 Act 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: 07 March 2017