HIS HONOUR: On some date between September and November 2011, the offender, Aaron Perkins, committed an act of aggravated sexual intercourse on IM who was then aged ten. That offence is laid pursuant to s 66C(2) of the Crimes Act and carries a maximum penalty of imprisonment and a standard non‑parole period of nine years. I will have regard to those legislative guideposts or benchmarks in the way contemplated by the authorities.
The circumstance of aggravation was that IM was under the authority of the offender at the relevant time and for that purpose even though there was a significant breach of trust involved in the offending because Mr Perkins was caring for IM at the time, who was then a friend of his daughter's, I will not engage in double‑counting by having regard to that further, given that it is a circumstance averred on the indictment.
These are ex tempore reasons for sentence delivered on the day that I heard further submissions and considered further evidence from the parties and any inelegance of expression should be forgiven for that reason.
The matter has a slightly complicated procedural history that has some relevance. The offender pleaded guilty in the Local Court and was committed to this Court for sentence. It is common ground between the parties that he is to be afforded a utilitarian discount of 25%. The utilitarian discount in this case, apart from a saving of court time, the most significant part of that to the early plea of guilty, was that the victim of the proceedings did not need to give evidence nor have the prospect of possibly giving evidence hanging over her head before the offence was resolved in this Court.
Further, the plea of guilty has some work to do in relation to Mr Perkins' remorse which is a topic to which I will return to in due course. The matter came for sentence before me on 24 February 2020. On that date I heard oral evidence from the offender, his then second wife, and Ms Howell who is a very experienced treating psychologist, with speciality in the area of sexual offending against children. The matter was adjourned in part so that the lawyers could consider the effect of Ms Howell's evidence in making submissions about the offender's moral culpability and whether it was to be reduced because of a direct causal link between offending against him as a child. I will return to that topic in due course.
R v Perkins [2020] NSWDC 803 | Case summary | Zoe
The matter was adjourned until 9 March 2020 when for various reasons that sentence date was vacated and the matter was to proceed by way of further submissions and a hearing on 22 April 2020. Regrettably that further sentence fixture occurred at the very heightened commencement of restrictions in relation to the COVID‑19 pandemic. This Court took a policy at that time of adjourning proceedings where the inevitability was that a person who was on bail would be going into custody, in part to avoid a strain on the Correctional system and further threat of possible infection. All those issues have not gone away but it is now considered more safe that people from the community go into fulltime imprisonment to the extent that that can ever be considered a safe notion.
What that means is that the matter was adjourned further administratively until today's date. The delay, regrettable as it was, has occasioned no doubt further anxiety and stress for the victim and her family, and relevantly for this sentencing exercise, further stress upon the offender. In due course when I come to summarise his subjective case, one of the effects of that delay has been that his marriage has broken down, which is another way in which the offender has ended up punishing himself for his offending.
The facts in relation to the matter are agreed between the parties and can briefly be stated in this way. The victim, IM, was born on 8 July 2001. In 2007, she with her family, moved to Scotland Island. The offender at that time also lived on Scotland Island. He had two daughters. He was separated from the mother of those children and had custody of his children on the weekends at Scotland Island.
In about 2009 or 2010, the victim befriended the offender's daughters. During weekends she would often play with the offender's daughters and the three children would often visit each other's houses and stay overnight. The offender also became friends with the victim's parents and they would occasionally have dinner and drinks together. The offender went to the same school as the victim's father.
In about 2011, the offender moved to an address known to the Court. Between September and November 2011 when the victim was ten years old, she went to the offender's place for a sleepover with her friends, that being his daughters. The offender was drinking heavily that night. At around 10pm his daughters went to their room to bed. The victim went to sleep on a mattress in the lounge room and she was wearing a night dress and underwear. The TV and lights were turned off. The victim was unsure whether at that stage the offender had left the room or not.
At some later point, the victim was woken by the television being turned on. The offender was then present, watching the television. She asked him to turn the volume down. He replied but his speech was slurred and he was very intoxicated. The offender moved over to where the victim was on the mattress and asked her to take her underwear off which she did. He then placed his hands on her inner thighs, spreading them apart. The offender bent down and licked the inside of the victim's vagina and this occurred for approximately 10 minutes. The offender then went to his room and went to sleep.
The next morning the offender woke the victim up. It was early and no one else was awake. He said, "I'm sorry, don't tell anyone". The victim then went to the bathroom and when she returned the offender was still in the lounge room. He asked her, "One more time?", and he said this several times although the victim repeatedly responded, "No I don't want to". Shortly afterwards, one of the offender's daughters came in and the offender pretended that nothing had happened. The offender later dropped the victim at Church Point in his car. During the car trip he said repeatedly, "Sorry don't tell anyone". The victim said, "Okay don't worry about it". The victim's parents picked her up on the boat and the victim did not in fact tell anyone.
About a month later, the victim attended the offender's house. Nothing occurred on this occasion. The offender continued to apologise to her and told her, "Don't tell anyone about it", and the victim said, "Okay don't worry about it".
In 2013, the victim was in Year 6. She was playing a game of secrets with several of her friends when it was the victim's turn to tell a secret. She said, "I was at my friend's house and her dad used his mouth on my private area". She did not expand on this and her friends told her, correctly, that she should have told someone. The victim declined to do so at that stage because she wanted to forget about it and not make a big deal about it.
Between January 2016 and June 2017, the victim was in a relationship with JM. She disclosed the offending to him. On Monday, 14 August 2017, the victim was attending a lecture in High School about sexual assault. The presenter outlined that sexual assault included oral sex. During the lecture, the victim realised that what the offender had done was sexual assault. This realisation caused her at the time to shake and cry. She disclosed the offending to her friends and her Year Group Co‑Ordinator, and a mandatory report was made. The victim told her mother and then later her father. She made a formal statement two weeks later. The offender was arrested on 8 May 2019.
I am required to assess the objective gravity of the offence this offender committed. There is no gradation in the seriousness of different types of conduct that at law constitute an act of sexual intercourse. While the nature of the particular act involved in a given case is an important consideration, it is the proven circumstances surrounding the commission of the act that are relevant. That said, here the nature of the sexual intercourse while no doubt invasive and distressing to the victim, both at the time and since, was less invasive than some modes of assaulting children in a sexual way. It has been put on behalf of Mr Perkins that the offending was of limited duration which characterisation is the subject of contest with the Crown.
Although of course, sexual assaults can take place over a very long period of time but I would not describe 10 minutes' duration of cunnilingus committed on a ten year old girl as being of limited duration nor brief. The offending was, as I have said, the breach of trust that was involved in the matter is caught by the charge that has been preferred against the offender and the subject to the plea. The offending was made more grave in my assessment, in the sense that it happened in the home of the victim for that evening. It was not her day‑to‑day residential home but apart from being entitled to feel safe with family and/or trusted family friends, children are entitled to feel safe within the place that is their residence overnight.
Further, matters that make the offending more serious than had these features not been present, are that the repeated requests by the offender to the victim to remain silent about the matter, including at a later date, and his invitation to have the victim participate in similar activities the next morning.
On the material that I have considered from Dr Howell and the offender's own evidence, I am satisfied that the offence was not pre‑planned and was opportunistic. Across the range of behaviour that is caught by this particular charge, the matter falls below the midrange of objective seriousness but does not fall into the lower range of objective seriousness for the reasons that I have identified.
I intend to move to some matters that are personal to the offender. He is not a person without criminal record. His last serious piece of offending took place more than ten years ago. He has a range of matters, some of driving and some of violence that are consistent with a person who has had a long term problem with alcohol. I am satisfied that since this offending, on the material before me, the offender has been a person without criminal offending and has been an active and contributing member of the community. His record denies him the leniency that would be available to somebody with an unblemished record but I do take into account the period since 2011 when he has been a more positive member of the community.
He gave evidence before me and he was to my mind genuine. Apart from giving evidence about his own circumstances, he talked about his sense of shame and remorse. For instance he said:
"I'm incredibly ashamed. I'm incredibly embarrassed and I'm disgusted with my behaviour and I feel so bad, words can't describe how I feel. I've let my family down and I've caused pain in the way that I know I have suffered from."
And then further:
"It's just an awful thing to have done and my behaviour was appalling and it just tears me up to think that I have caused pain."
This Court is regularly in receipt of expressions of remorse from the witness box. Often those expressions are formulaic. This offender's affect at the time that he gave that evidence, left me in no doubt that he was sincere about his regret. His references to understanding pain are as a result of his history of being improperly dealt with in a sexual fashion by three different individuals when he was growing up. I am satisfied on the balance of probabilities that Mr Perkins was offended against in that way when he was young. There is no question on the basis of Ms Howell's careful evidence and report and also reports from Tracey Jarvis who has treated the offender from time to time, as his psychologist, that that offending has left wounds on him of a deep psychological nature and that those wounds in turn led to his maladaptive strategies of using alcohol to try and dim those feelings within him.
The offender was at the time of the sentence proceedings, as I have said, supported by his second wife. She gave compelling evidence to my mind, both of the offender's remorse and the effect that his offending having come to light, have had on them as a family unit. Supporting the evidence that the offender gave, she was able to describe the diminishing effects of being in custody for a period on remand of more than two months had on the offender. His evidence on that topic included saying:
"I witnessed stabbings. I witnessed bashings. I was threatened on a daily basis from the day I got there. I couldn't get a toothbrush for five days but I was offered heroin within 5 minutes of being there. I saw violence and I had people threatening to cut my throat because I objected to them taking drugs and smoking in my cell. I was very anxious. I actually had to carry the gaol's boiling water around with me in case somebody tried to jump me."
It is inevitable that the offender will have to go into imprisonment again and I accept that it will be very difficult for him given that arduous experience on remand. I am sure that the period on remand has virtually done all the work of specific deterrence but there are other objects of punishment that need to be dealt with in this sentencing exercise. I have no doubt that to the extent that there is any need for rehabilitation, being imprisoned in the gaol environment is unlikely to do anything to advance this defendant's prospects of rehabilitation underlining to him the horror of needing to return to imprisonment for any reason after he is ultimately released.
Another issue on which both the offender and his then wife gave evidence about was the decimation of their joint business, styling and photographing real estate properties for marketing purposes against the backdrop of what was a growing but very successful business, as a result of local press coverage of the offending at hand and other adverse communications within the local peninsula community in which he lives. I am persuaded that the loss of the business and the economic impacts of that now demonstrated by some of the material before the Court, which shows that he is heading towards a bankruptcy, persuade me that that is an extra piece of extra curial punishment the offender has visited upon himself.
It was clear back in February 2020 that the offender had a strong alliance with his second wife and was a caring step‑parent to her nine year old son. He maintains positive supportive relationships with his adult daughters and his two parents, and as I understand it, had some members of the local community who stand by him without necessarily approving in any way of the way in which he offended against IM.
One of the purposes of sentencing is to recognise the harm done to a victim of an offence and accordingly to the community as well. IM has suffered harm both immediate and long term as a direct consequence of the offence committed by her trusted family friend and her distress was clearly apparent when she read her victim impact statement to the Court today. She spoke eloquently of the effects of the offending on her and aspects of that harm include psychological, social and emotional impacts, without in any way seeking to minimise the harm this offence caused. I am not of the view that there is evidence establishing that the impact on IM amounts to a separate feature of aggravation.
Accordingly, I have taken the harm caused by this offence into account, pursuant to s 3A(g) and not s 21A(2)(g) of the Crimes (Sentencing Procedure) Act. It is well understood that the effects and the long lasting effects of sexual offending against people of tender age. IM's victim impact statement was one manifest of that and indeed the offender's sorry emotional development is another.
One issue joined between the parties is that Mr Peluso says that I ought consider the offender's moral culpability is reduced on the basis that his offending against IM can be characterised as being causally linked to the offending against him as a child. Mr Chin for the Crown contends that the Court is entitled to take that material into account but in a more diluted fashion. There is no question in my mind that the offending against the offender when he was young has, as I have already observed, rendered significant damage to him and is largely if not solely responsible for the alcoholism that he has suffered from time to time. There is no doubt that his affectation by alcohol and significantly so on the victim's statement to police, was one of a range of factors operating on him that evening and the next morning.
On the basis of how affected he was at the time of the commission of the offence, I am prepared to be satisfied on the balance of probabilities that he remained somewhat affected by alcohol early the next morning when he made comments to IM suggesting that he wished to offend against her further. It is quite clear both in statutory form and on the basis of case law authority that self‑induced alcohol use cannot be a mitigating circumstance. Put another way, it cannot excuse this offending. That said, it helps explain why somebody who has, on all the material before me, never sexually trespassed against anyone other than IM, would act in the way that he did. That is it forms some kind of explanation rather than justification.
Ms Howell indicated that the literature does not support a finding that those offended against as children go on to offend. That is, there is not necessarily a causal link between those things and I am satisfied that she was not persuaded that there was such a causal link in terms of this offender's offending. That said, she made it clear that his overall emotional state at the time and the interaction of alcohol in his life generally, probably had their genesis in him being offended against.
I am not persuaded that there is a sufficient basis for me to find that the offender's moral culpability is reduced as a result of either the intoxication or his sad, own history as a victim. I prefer to take it into account in the way that Mr Chin contended that I should. That is in line with authorities, such as Henry v R [2009] NSWCCA 69, R v Rich [2000] NSWCCA 448, [48] and [49] but the other factor of the offender's childhood sexual abuse has relevance and I would suggest powerful relevance as a subjective factor that the Court can take into account alongside a number of the other matters that I have identified.
The relatively recent delay in the proceedings is a factor that will slightly temper the sentence to be imposed as a result of the higher level of anxiety that Mr Perkins must undoubtedly have felt as his personal and financial world further deteriorated and he knew that he needed to return to the sentence, to fulltime imprisonment.
Section 5 of the Crimes (Sentencing Procedure) Act indicates that fulltime imprisonment should only be imposed if there is no other alternative to it. That is the situation here and so much has been conceded very properly by Mr Peluso.
The purposes of sentencing are expressed in s 3A of the Crimes (Sentencing Procedure) Act 1999. They include punishment, deterrence both general and specific, protection of the community, promoting rehabilitation, denouncing an offender's conduct and recognition of the harm caused both to the victim of an offence and to the community. No one purpose has priority over any other, each forming part of the instinctive process of sentencing requiring a court to make a value judgment as to the appropriate sentence, having regard to all the relevant facts and circumstances as are known to the Court, including those surrounding the commission of the offence and its objective gravity, the offender's subjective circumstances and other factors which bear upon the appropriate sentence including, as I have already said, the legislative guideposts of the maximum penalty and the standard non‑parole period.
I am mindful in sentencing the offender that matters adverse to him must be proved beyond reasonable doubt but that any fact or circumstance taken into account in his favour, needs to be only proved on the balance of probabilities.
On balance of all the material before me including the powerful oral evidence and the careful assessments of Jenny Howell, supplemented by the opinions of Ms Jarvis, and having regard to the material also garnered from the sentencing assessment report, I am ultimately persuaded that the offender is unlikely to re‑offend. I consider while ever he continues to stoutly address his alcohol issues, he has reasonably good prospects of rehabilitation. His commitment to counselling with Ms Jarvis on a range of issues and over a lengthy period of time augur well in that regard. I do adopt the findings of Ms Howell in terms of there being a lack of pre‑meditation and genuine remorse expressed to her as well as to the Court.
In sentencing an offender for this class of offence, it is important to have in mind principles that are perhaps well expressed by Justice of Appeal Sheller, with whom the balance of the Court agreed in R v BJW [2000] NSWCCA 60 at paras [20] and [21]:
"The maximum penalty that the legislature has set out for such offence reflect community abhorrence and concern about sexual abuse of children. General deterrence is of great importance in sentencing such offenders and especially so when the offender is in a breach of trust to the victim."
And then a little further on:
"Recognition is given to the fact that children in a family situation [this is an analogue to that for the week in purpose] are virtually helpless from sexual attack from the male parent and the children have a right for protection from sexual molestation within the family and that this can only be achieved by the Courts imposing sentences of a salutary nature."
This is a case in which of course issues, as is so often the case in the instinctive synthesis involved in sentencing, pull in different directions, Notwithstanding the way in which I characterised the objective seriousness of this single offence, it was serious offending. There is much in the offender's history and more recent circumstances of his life, that evoke some weight leaning towards a more moderated sentence than might otherwise be imposed.
The Crown did not oppose me making a finding of special circumstances. Finding special circumstances has the effect of re‑arranging the proportion that is otherwise required by s 44(2) of the Crimes (Sentencing Procedure) Act. I am persuaded here that it is proper that Mr Perkins has a longer period of support on parole, partly to enable him to rehabilitate the circumstances of his life as well as rehabilitate himself after the experience of prison.
Additionally, this will represent his first time in imprisonment and that is another circumstance that can be properly identified as a special circumstance.
Just stand up please, Mr Perkins.
It is common ground between the parties that the offender has already served two months and nine days on remand in maximum security conditions and that any sentence to be imposed upon him ought date notionally from a period having regard to that.
Mr Perkins, you are convicted. You are sentenced to a period of imprisonment of five years' imprisonment with a non‑parole period of three years. I indicate that I make a finding of special circumstances.
The sentence of five years dates from 8 June 2020 and expires on 7 June 2025. The non‑parole period means that the earliest date of release to parole is 7 June 2023.
That sentence has regard to the 25% utilitarian discount.
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Decision last updated: 12 January 2021