R v Philip

THE ESSENTIAL FACTS

1. I find beyond reasonable doubt the following:
2. During the victim's childhood he and his family would, on an annual basis, travel to Hastings Point in northern New South Wales and camp there for three or four weeks over the Christmas holiday period.
3. The victim's family and the offender's family became friends with one another as they all camped there at the same time each year.
4. As at 2003 the offender was ten years older than the victim. The victim was 14 years of age and the offender was 24 years of age.
5. Notwithstanding that age difference they were friends and the victim looked up to the offender as if he was an older brother.
6. During the Christmas holiday period at the end of 2003 the victim and the offender were at the Hastings Point headland camping ground with their respective families as usual.
7. One night during that period the victim played cards with his family and then socialised with the offender and others. During that evening the offender gave the victim rum and Coke to drink and the victim was feeling the effects of that alcohol consumption.
8. At some point in the evening the victim was sitting next to the offender. The offender put his arm around the victim and leaned into him for a "cuddle". The offender then put his hands down the front of the complainant's shirt and used his fingers to play with one of the complainant's nipples. The victim said, "What are you doing?" The offender replied that he was "just drunk".
9. The next thing the victim recalls is waking up from sleep in the very early hours the next morning under a tree near the southern side of the headland. He was lying on his back with his shorts pulled down to his ankles and the offender was performing oral sex on him.
10. The victim was in shock and asked the offender what he was doing. The offender mumbled something and stopped.
11. The victim pulled his shorts up and got up. The victim had to help the offender walk back to the camping ground as he, the offender, was very affected by alcohol and was unsteady on his feet.
12. It is the sucking of the victim's penis without consent that constituted count 1.
13. As the victim and the offender walked back towards the campsite the offender kept putting his finger down the back of the complainant's shorts and attempted unsuccessfully to penetrate his anus with his finger. The victim kept moving away from the offender.
14. It is the events that took place when the victim and offender were walking back towards the campsite that constituted the facts underpinning count 3.

SOME OTHER FACTS

1. The victim did not report the incident for many years. The families remained close and from time to time he and the offender would see each other and socialise and the like.
2. On 23 April 2012 the offender pleaded guilty to and was convicted of an offence "assault with act of indecency". The circumstances of that offending was that on Saturday 7 July 2012 the offender was with a group of friends. The group included a man who the offender met for the first time that day. After drinking alcohol together that man went to sleep where after about 2am on Sunday 8 January(as said) 2012 the offender lay down next to the man and touched him on his chest while he was asleep. The offender then undid the button and zipper on the man's boardshorts still while the man was asleep and the offender then touched him on the groin and penis through his underwear.

ARREST AND TIME IN CUSTODY

1. The offender was arrested on 24 April 2022 in relation to the matters before me. He participated in a record of interview and was granted conditional bail after spending one night in custody. The offender has been bail refused since 20 October 2023 following the verdict being delivered by the jury. Accordingly, he has spent approximately five months in custody solely referable to the matters before me.
2. The time in custody relates to two periods - 24 February 2022, one day, and the period from 20 October 2023 until today.
3. The offender has submitted and the Crown accepts that the offender is entitled to have any sentence of imprisonment backdated so as to take into account that total time in custody.
4. Accordingly, I will backdate any term of imprisonment so that it commences on 18 October 2023.

SENTENCING PRINCIPLES

1. It is necessary for me to have regard to the factors relevant to the matter identified in s 3A of the Crimes (Sentencing Procedure) Act 1999.
2. Those factors are well known and need not be repeated here.
3. The Crown has emphasised that matters such as the present require significant weight to be given to both general and specific deterrents. It has been submitted by the Crown that the sentence I impose should reflect the seriousness of the offending and send a clear message to the community and to the offender that this type of offending will not be tolerated and that the consequences of such offending are serious. I accept that submission.
4. I will come to an analysis of the objective seriousness of the offending shortly but what it boils down to is that this case involves sexual violence against an underage and vulnerable child. The child was vulnerable to the offender because he was so much younger than the offender, looked up to the offender as if he was an older brother and was probably drunk but definitely asleep at the time of offending.
5. Such conduct, whether judged by the standards of 2003 or the standards of today, is abhorrent and utterly unacceptable. Nobody should think that it was somehow considered less serious in 2003 than it is today. It is very important and I will give significant weight to the need to denounce the offender's conduct and to make him accountable and to recognise the harm that has been done to the victim, not just for the benefit of the victim, but also so that the conduct is denounced publicly to the community generally.
6. Of course, and on the other hand, as has been submitted on behalf of the offender, it is also important that I take into account the prospects of the offender being rehabilitated which has relevance at a number of levels including as to the important question to be considered which is the need for the community to be protected from him.

OBJECTIVE SERIOUSNESS OF THE OFFENDING

1. The Crown has submitted that both counts 1 and 3 should be considered at what is described as the "lower end of the middle range of objective seriousness".
2. The Crown has emphasised that the offence occurred whilst the victim was holidaying with his family and the offender's family and that the offender had provided alcohol to the victim so as to cause him to become intoxicated.
3. The victim was aged 14 years at the time of the offending which places him at the upper end of the age bracket set out in the section. The victim looked up to the offender as an older role model and described what happened as "betrayal of trust from a brotherly figure" which left him "with severe trust issues".
4. The victim was not awake when the offending commenced. The victim could not have consented, nor could the offender have thought he was consenting, as he was asleep at the time the oral sex commenced. The victim was affected by alcohol at the time. The Crown has submitted that in engaging in the conduct whilst the victim was asleep and probably drunk means that there was a "predatory aspect" to the conduct.
5. In relation to count 1 the Crown has emphasised that the offender must have actually known that the victim was not consenting because the victim was asleep. In relation to count 3, the offender either knew or was reckless as to whether the victim was consenting as the victim kept moving away from the offender. In any event, count 3 did not require any proof of lack of consent.
6. On the other hand, on behalf of the offender, the offending was described as "opportunistic and momentary" and a submission was made that I should reject branding the conduct as "predatory". The offender also emphasised the short period over which the offending took place and the fact that there was no violence involved.
7. On behalf of the offender it was submitted that I should find that the offending was objectively towards the lower end of offences of this kind having regard to all of the circumstances but in particular the age of the victim being towards the upper threshold contemplated by the offence, the character of the acts being spontaneous and impulsive, the fact that there was no pre‑planning, the absence of repeated acts, the limited physical contact involved, that both had consumed and were disinhibited by alcohol and that the conduct was short in duration.
8. As has been stated on many occasions the short duration of a sexual assault is not ordinarily a factor which operates to reduce the objective seriousness of an offence. However, a sexual assault of an extended duration can have the effect of increasing the objective seriousness of the offence. See cases like R v Oxley [2022] NSWDC 2000 at [17] per Grant DCJ; R v Daley [2010] NSWCCA 223 at para 48. I think that is right, however the short duration of the offending can be taken into account as a relevant factor to determine the question of whether what occurred was a spontaneous and impulsive act involving limited or no planning or premeditation or on the other hand whether it was planned predatory conduct.
9. As to whether there was pre‑planning involved, I am satisfied and the offending was not planned and was spontaneous or opportunistic in its nature. I reject the Crown's descriptor of "predatory in nature".
10. I find the use of tags such as midrange, low range but in particular concepts such as "towards the lower end of midrange" very unhelpful.
11. In this case, on the one hand I have the Crown submitting that the objective seriousness of the offending ought be found "at the lower end of the middle range" and the offender suggesting that I should find that the objective seriousness of both offences are "at the lower end of offences of this kind".
12. It is impossible from those descriptions to have any understanding of how far apart the parties are in their description.
13. I prefer to express my view by reference to what the offender actually did which was whilst in a position of trust towards a 14‑year‑old boy who was drunk and asleep he sexually assaulted him.
14. With that description I think the Crown's submission to the effect that the offending falls somewhere within the midrange of objective seriousness is more apt than the offender's submission that it is towards the lower end.

VICTIM IMPACT STATEMENT

1. The victim gave a moving and compelling statement before me as to the impact he believes the crime has had on him.
2. Out of respect to the victim I do not propose to record in detail what he said. It is sufficient to say that his life since his mid‑teens has taken a turn for the worse. He became heavily involved in illicit drug‑taking and by the age of 16 was anxious, depressed, isolate, drug‑dependant and he says full of shame. He has sought treatment from psychologists and doctors but the cycle has continued. He has been admitted to a mental health facility and has spent many periods in rehabilitation clinics trying to deal with his drug problems.
3. He believes that the impact of the crime on him has resulted in the loss of his adolescence, self‑esteem, trust, relationships, safety, job opportunities and financial security. Whilst on the other hand it has caused him great trauma, depression, fear and a mental health diagnosis together with his drug dependency.
4. It is heartening to also record that the victim believes that the process of reporting the crime and these Court proceedings has helped him come to terms with what has happened and has been of assistance in regulating the feelings he experiences associated with the trauma.
5. I found the victim's statement to be honest, moving, rational and reasonable. He is a brave young man doing the very best he can to deal with a number of significant and difficult life issues. The Court wishes him the very best for his future.
6. However, it needs to be said that there is no expert evidence from any medical professional supporting the connection the victim sees between the offending and his various issues.
7. As was pointed out respectfully by counsel for the offender, there was in the trial significant evidence that does suggest that the victim was having some difficulties prior to the offending. The offender's counsel put it that that "trajectory" of his life had already changed course. In particular, unbeknownst to his parents, the victim had missed significant amounts of school in the year previously and had been punished for various behavioural matters. He also disclosed to a family friend at around the same time as the offending another event that had occurred in his life which, as he described it then, did or may well have had significant traumatic significance to him.
8. I do not accept the offender's submission that the victim's life trajectory had already changed and taken him off course prior to the offending. There were difficulties but to my mind they were the type of difficulties confronted by many boys as they reach adolescence. However, whilst I accept unreservedly the victim's belief that the various issues he has had to cope with in his life since around the time of the offending are all as a result of the offending, I am not satisfied that connection has been made out.
9. Moreover, without in any way seeking to diminish the impact of the offending on the victim, or indeed any other victims of sexual assault, I am not satisfied that the immediate and ongoing trauma suffered by the victim as a result of this crime was any greater than is assumed by the penalties already imposed by parliament.
10. What this means is that one of the reasons, indeed probably the most important reason, that the penalties for these sort of offences are so severe is because it is now acknowledged by the community through parliament that inevitably this sort of crime will cause significant, and almost certainly, ongoing trauma to the victim.
11. The Crown expressly did not make a submission to the effect that there was significant trauma or injury over and above what might be expected in this sort of crime occasioned to the victim.
12. Nonetheless, the statement made by the victim before me in this Court is important, not just to provide him with a forum to state his belief as the consequences of the crime on him, and to state that belief in the presence of the offender, but also to remind me emphatically not to lose sight of the significant weight that needs to be given to the need to denounce the conduct of the offender and to record that such conduct inevitably has significant detrimental and almost always ongoing consequences for the victim.

THE OFFENDER'S CRIMINAL HISTORY

1. As I have said, the offender has one relevant conviction being the event that I have described above.
2. He pleaded guilty to that offence and a magistrate fined him $750.
3. He otherwise has no relevant criminal history.

THE OFFENDER'S SUBJECTIVE CASE

1. On behalf of the offender it was submitted that he has good prospects of rehabilitation because he has been actively involved in the community, he has an extremely good employment history culminating in 16 years' service with New South Wales rural fire service reaching the rank of Superintendent/District Manager until he was stood down and subsequently dismissed, consequent on the matters before me.
2. He also has good support from his family.
3. It follows, so the submission goes, that he is a motivated man who can adhere to commitments and personal undertakings and is likely to be compliant in relation to any treatment or efforts he makes to change his ways.
4. It was also submitted on his behalf that the Court should take into account the fact that he has lost his job and has been placed on the child protection register as "extra curial punishment." I reject that submission but do take into account the fact that he has been placed on the register as a factor when assessing his prospects of reoffending. As far as losing his job is concerned, I am afraid I think that is a natural consequence of his conduct and cannot be described as punishment at all. I do, however, take it into account as a relevant factor when assessing his overall fall from grace, that has been a direct result of him having been convicted of these offences.
5. The offender, as is his right, maintains his plea of not guilty. He denies the offending conduct happened at all. In those circumstances it is very difficult for me to assess whether at some point in the future he will come to terms with what has happened here and come to have some insight into his conduct and remorse and regret for what he has done.
6. He is certainly not at that point yet. For present purposes I cannot rule out that at some point in the future he will achieve some level of insight and seek to come to understand why he behaved in the way he did. As to prospects of rehabilitation, there is before me a sentencing assessment report which does seem to be infected with a number of errors of fact which were pointed out to me by counsel for the offender. The report concludes that the offender's risk of reoffending is T3/Medium. However, the author of that report considered what was described as his "prior conviction" to be a "significant escalation in severity of his offending behaviours." That does not make any sense. Firstly, the offending dealt with by the magistrate cannot be described as a prior conviction at all in the sense that it was not prior to the offending before me, and secondly, on any view of what I know about the facts of respective incidents it constitutes a "de-escalation" of conduct in that obviously what was before the magistrate was much less serious than the matters before me.
7. As to prior criminal history, objectively what I have before me is a man who has committed two criminal acts over a 20 year period about ten years apart. It is true that the acts are similar but I think in the circumstances the time gap is such that I do not think it demonstrates a pattern of aberrant behaviour, rather it is a series of discrete activities about a decade apart and I do not discern an ongoing pattern of behaviour.
8. I have also taken into account the fact that the offender pleaded guilty to the matter that was dealt with by the magistrate. That must show that in relation to that offending the offender did demonstrate some remorse and insight and understanding that what he did had been wrong.
9. Notwithstanding the opinion expressed in the sentencing assessment report, I have concluded that in all the circumstances I think the chances of the offender reoffending are low.
10. It follows from that that I have concluded that his prospects of rehabilitation (and notwithstanding his persistence in denying the conduct) is reasonable and there is limited need in those circumstances for me to place undue weight on protection of the community. See, for example, Yardley v Betts (1979) 22 SASR 108 per King CJ.

AGGRAVATING FACTORS

1. The offender's criminal history, which I have already dealt with, is conceded to be an aggravating factor pursuant to s 21A(2)(d). That the other offence is a serious personal violence offence as defined is itself an aggravating factor.

MITIGATING FACTORS

1. Pursuant to s 21A(3) the offender has pointed to the following factors which I accept all stand in his favour. 1. The offences were not planned (s 21A(3)(b). 2. The fact that the offender is unlikely to reoffend (s 21A(3)(g). 3. The fact that the offender has reasonably good prospects of rehabilitation (s 21(3)(h) and 4. Whilst he did plead not guilty and therefore did put the victim through the trauma of giving evidence and being cross-examined, he did cooperate significantly in pre-trial procedures and agreed to many facts which significantly shortened the trial (s 21A(3).

CONCURRENT SENTENCES/TOTALITY

1. Both parties addressed me as to concurrency.
2. The Crown's submission is that the offences, whilst committed during the course of a single episode on one night, are of such a different nature and each individually involved significant or extreme brevity, that whilst some accumulation is necessary there has to be acknowledgement that there were two separate and distinct crimes. The Crown relies on what was said by Howie J in Nguyen v R [2007] NSWCCA 14 at [13].
3. On the other hand, the offender has submitted that the offending really forms part of one continuous episode and should be seen as such.
4. I think there is a lot to be said for the offender's submission in this regard, although I do not think it would be appropriate to wholly accumulate any sentence.
5. Ultimately what is necessary is to look at the totality of the criminality involved and any proposed sentence so as to ensure that the result is appropriate. See Mill v R (1988) 166 CLR 59; R v Bussey [2020] NSWDC 802 per Hunt DCJ at paras 40 to 43 and the cases collected there.

SENTENCING FOR CHILD SEXUAL OFFENCES

1. S 25AA of the Crimes (Sentencing Procedure) Act requires the Court to sentence an offender for child sexual offences in accordance with the sentencing patterns and practices at the time of sentencing, not at the time of the offence.
2. I am required under s 25AA(1) to expressly state that I am proceeding upon that basis and do so. I am also required to have regard to the trauma of sexual abuse on children and in accordance with s 25AA(3). What that means is that it is now acknowledged that the understanding of society generally and also the courts on that topic has changed dramatically over the last 20 years. It is now well understood and acknowledged that conduct of the type before me will almost inevitably cause some considerable trauma and ongoing trauma to the victim.

STATISTICS

1. Both parties addressed me at some length as to sentencing statistics and so called comparable cases in relation to what were described as similar offences under similar or the same provisions.
2. The one thing that is clear from that analysis is that there is an extremely broad range of penalties imposed. This no doubt reflects the extremely broad range of factual scenarios that can make up offending which can constitute a breach of the particular sections.
3. I really do not think I get much direct assistance from the cases to which I have been referred, however I have considered the cases to which both counsel have taken me.

S 5(1) CRIMES (SENTENCING PROCEDURE) ACT 1999

1. It is common ground that the threshold has been crossed and that no penalty other than imprisonment is appropriate in this matter.
2. Pursuant to s 67(1)B of the Crimes (Sentencing Procedure) Act, an intensive corrections order is not available as counts 1 and 3 both fall within the definition of a prescribed sexual offence and an ICO is therefore not available for those offences.
3. In any event, I would not have concluded that an ICO would have been appropriate, having regard to the objective seriousness of these offences together with the subjective case of the offender even if such an option was open to me.

SPECIAL CIRCUMSTANCES

1. It has been submitted on behalf of the offender that there ought be a finding of special circumstances so as to increase the ratio of the minimum non-parole period to the head sentence. On behalf of the offender it is put that the good prospects of rehabilitation of the offender, which I have already accepted, the fact that this is the first custodial sentence experienced by the offender are both put forward as special circumstances. I accept those submissions and find that there are special circumstances which justify an increase from what would be the standard non-parole period and I propose to make such an adjustment.

RESOLUTION

1. Having regard to all the matters which I have mentioned but in particular the objective seriousness of the offending which I have described, together which can only be described as a not particularly strong subjective case on behalf of the offender, and giving particular weight to general and specific deterrence and the need to denounce as firmly and as publicly as possible, the conduct of the offender and using the standard non-parole period and the maximum sentence for each offence as a guidepost, and seeking to instinctively synthesise all of the relevant matters so as to come to an appropriate sentence, I have concluded that an aggregate head sentence of four years is appropriate.
2. If not for the imposition of an aggregate sentence, I indicate the following sentences would have been imposed for each count.
3. For count 1, a period of three and a half years imprisonment with a non-parole period of 29 months and two weeks.
4. For count 3, a period of one year's imprisonment with a non-parole period of nine months and two weeks.

ORDERS

1. The offender is sentenced to an aggregate term of imprisonment of four years (48 months) to date from 18 October 2023 and to expire on 17 October 2027.
2. There will be an aggregate non-parole period of 32 months which will expire on 17 June 2026 which is the first date the offender will be eligible for release on parole.
3. I indicate the following indicative sentences for each count.
4. Count 1, a period of three and a half years imprisonment with a non‑parole period of 29 months.
5. For count 3, a period of one year imprisonment with a non-parole period of nine months and two weeks.

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