Rodney Preston, now aged 45, appears for sentence after having pleaded guilty to three counts under the repealed s 66(C) of the Crimes Act 1900, of sexual intercourse with a person above the age of ten and under sixteen. The offence carried a maximum penalty of eight years imprisonment with no standard non-parole period.
A plea of guilty was entered in the circumstances which justify a 25% discount on the term of imprisonment which is conceded should be imposed, and it is unnecessary for me to consider any alternative to full time imprisonment. The maximum penalty is an important yardstick in the sentencing process, which must take account of the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999.
There are five counts of aggravated indecent assault contrary to s 61M(1) of the Crimes Act 1900, which carries a maximum penalty of seven years imprisonment, to be dealt with on a Form 1 attached to the first of the three principal counts, namely sequence 9. Also on the Form 1 is a single count contrary to s 61N of commit an act of indecency which carries a maximum penalty of 2 years imprisonment. Those matters will be dealt with in the way suggested by Chief Justice in the guideline judgment (Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146) on these matters, namely, by giving greater weight to two elements which are always material in the sentencing process, the first being the need for personal deterrence which the commission of the other offences will frequently indicate ought to be given greater weight by reason of a course of conduct in which the accused has engaged; and the second is the entitlement of the community to extract retribution for serious offences.
The offending occurred in June 1998 and for reasons which are completely unexplained, in the light of the facts to which I will refer, he was not charged until June 2020, some twenty-two years after the offending that he admits.
He has no criminal record in New South Wales but his criminal record in Queensland commences with break and enter in 1995 and then relevantly, he was given a sentence of twelve months imprisonment by the Brisbane District Court in May 1997 on three counts of carnal knowledge by anal intercourse of a minor, on dates between September 1995 and May 1996, as well as deprivation of liberty. After the current offending, he was sentenced to three years imprisonment with twelve months non-parole period for five counts of carnal knowledge of girls under the age of sixteen between January and September 1999 and one count of unlawful sodomy on a person under the age of eighteen years. He was then sentenced to four years with a fourteen month non-parole period in 2012 for three charges of carnal knowledge of children under the age of sixteen. He breached the suspended sentence, that sentence imposed in 2012 having been suspended for five years after serving fourteen months in custody and the only consequence of that breach was an extension of the suspension period for six months. He was the sentenced in the Beenleigh District Court in November 2018 for indecent treatment of a child under the age of sixteen, that offence occurring on 18 December 2017. He was sentenced to two years and six months imprisonment with a non-parole period of ten months so that he would have been eligible for parole on 1 November 2018. The mystery revealed by that record was answered by Mr Preston himself today who explained that he did not seek to be released on parole but he remained in custody for the entirety of the two years and six months so that he could undergo a treatment program.
The agree facts state that the complainant was born in 1984. The offending occurred between August and October 1998 when the complainant was 13 or 14 years old and the offender was 22 years old. She lived at Nana Glen with her mother, her mother's partner and three siblings. The offender lived with his parents in Brisbane. She connected with the offender using an internet chat room called, excite.com. At the commencement the chat she told him that she was 13 and he told her he was 22. After a while, they agreed to ring each other. They spoke on the phone on many occasions and she sent him a photograph of herself and her family.
[2]
Form 1: Sequence 3
After some weeks she spoke to her mother and it was agreed that she would go and collect him from Brisbane. On 3 June 1998 the complainant and her mother collected the accused and returned to Nana Glen. On 4 June 1998 the offender was sleeping on a fold out bed in the lounge room. The complainant got onto the fold out bed, held his hand and he kissed her on the lips and he hugged her and she could feel his penis; that is the first of the Form 1 matters.
[3]
Form 1: Sequence 4
On 6 June the complainant and the offender were watching videos and kissing all night. He touched around her waist and her backside, that is sequence 4 on the Form 1.
[4]
Form 1: Sequence 5
He returned to Brisbane on 7 June, they had regular contact over the next week or so. In August 1998 he got a bus to Grafton and he was picked up by the complainant's mother. As they had previously discussed over the phone, he lay down with her and grabbed her hand and I put it inside his pants onto his erect penis. She was shocked and did not know what to think.
[5]
Form 1: Sequence 14
Nothing further happened of a sexual nature for a number of weeks. There had been some discussion about him moving to the address at Nana Glen. They drove to collect his belongings and a dog from Brisbane and returned the same day. That evening, they were lying down in bed. He said to her, "Would you mind if I pulled it off," to which she shrugged. He then masturbated himself to orgasm. She passed him a shirt and he wiped himself off.
[6]
Form 1: Sequence 7
The next night, he rubbed his penis onto her vagina for a period of time.
Over the next few days when there was no one around, they would embrace and he would rub his penis against her.
[7]
Form 1: Sequence 8
The next incident relates to events which occurred one night. He placed his erect penis underneath her underwear and rubbed it against her vagina but he did not ejaculate.
[8]
Count 1: Sequence 9
Sequence 9 is the first principal count. He repeated the same conduct over several days. On one occasion he put his penis inside her vagina and moved it in and out. The complainant started crying as she believed she had lost her virginity, to which the offender told her she was still a virgin.
On another night after rubbing her vagina with his penis he engaged in penile/vaginal intercourse. The offender then he put another condom on and did engaged in penile/vaginal intercourse again but that is not the subject of any counts.
[9]
Count 2: Sequence 11
The second substantive count relates to an occasion in which the offender engaged in penile/anal intercourse with the complainant. She awoke to find the offender applying Vaseline to her anus and then engaged in penile/anal intercourse. He ejaculated inside the complainant.
Several times over the next few weeks the offender had penile/vaginal or penile/anal intercourse with the complainant. At some stage he was asked to leave the premises after a disagreement with the partner of the complainant's mother.
During the September-October school holidays in 1998 she went to live with her grandmother at Northaven. The offender drove to Northaven and stayed at a caravan park. They had sexual intercourse in the caravan, which is not the subject of any count.
[10]
Count 3: Sequence 12
He visited her on two further occasions and on the final occasion they had sexual intercourse on the day before he returned to Queensland. On that evening, she went into the backyard to speak with him and he said, "I want to make love with you before I leave." He engaged in cunnilingus continuing until she stopped him which was the subject of the principal count 3.
He then inserted his penis into her vagina, not wearing a condom, that is not the subject of any charge.
On another occasion, she stayed with him in his hotel room for several hours and they had penile/vaginal intercourse.
On 9 October he went back to the Nana Glen residence and collected the complainant. The offender suggested that the complainant write a note for her mother.
She took her belongings and went with him to a nearby car, two of his friends were there and they drove back to Brisbane.
The complainant's family had filed a missing person report. She was located by police that evening and taken to a safe house. When her parents came to collect her, she disclosed some of the offending committed by the offender on return car trip. She was subsequently interviewed by police and produced a written account of the offending along with letters and emails to and from the offender.
I am told by the Crown during the course of delivering these remarks that the situation was that charges had actually been laid against the offender but had not been served and it seems that a warrant was available for his arrest but it was not executed until his release from custody in Queensland in 2020.
The subjective case for the offender includes a letter of apology written by the offender to the complainant in which he expresses his remorse, his regard for the bravery and courage that she has displayed during this process and his regret at not having the insight into his offending at the time. He acknowledges that although he will never have her forgiveness, he hopes to assist her in the ongoing healing process.
I have a letter from Mr Barry Preston, the offender's father, on behalf of he and his wife. They are in their mid-seventies and sadly his mother apart from serious orthopaedic injuries sustained in late 2017, has been diagnosed with motor neurone disease with bulbar onset lateral sclerosis in October 2019. It is a progressive and aggressive disease with no cure. She has lost the ability to speak, eat or drink and has been fitted with a peg to allow nourishment to be administered by tube. Her life expectancy is uncertain but undoubtedly, very short.
They understand the offences with which he has been charged and while they obviously do not condone it, they stand committed to help and support so that he can have a new start to putting his life back together when he is paroled.
The medical records from Queensland Health Department cover the unfortunate situation of Mrs Mary Preston.
There is a reference from a lawn care operator who offers employment on his ultimate release. There are a number of certificates of completion of courses while he has been in custody and he is obviously attempting to fit himself with some skills that can be useful on his ultimate release.
A lengthy report of Mr Patrick Sheehan, forensic psychologist sets out the subjective history. It has not been adopted or tested and is treated with some caution, as set out in cases such as Imbornone v R [2017] NSWCCA 144 and R v Qutami (2001) 127 A Crim R 369, but the history is relatively uncontroversial and seems to be a reasonable basis on which to proceed.
He was born in Brisbane to a family of Australian-born parents in an intact family unit. He said his mother had an alcohol use disorder which was a source of tension, but that was resolved when he was about fourteen or fifteen. The family were pro-social, he was not neglected.
He said that his older brother was schizophrenic with periodic psychosis and psychiatric admissions. He had been sexually abused by him on two or three occasions at the age of ten, but he did not disclose abuse, but he subsequently came to understand that these experiences contributed to sexually distorted thinking and confused boundaries.
He had a difficult time at school and he found the school environment aversive and sought to avoid school wherever possible. He had intermittent employment over a number of years but he has been on a disability support pension since 2013. There is a long history of serious problems in social development being undermined by feelings of insecurity and rejection. There is an established pattern of binge drinking from his early teenage years and then smoking methylamphetamine and MDMA from 2016. He said that he detoxified on admission to custody in 2017 which is consistent with the Queensland custody records. He said that he was a victim of workplace armed robbery in 2010 and described a range of symptoms in keeping with post-traumatic stress disorder. He has been kept in custody in the special management area of protection because of the nature of his offences since his arrest in June 2020.
The psychologist recounts the history to which I have referred and noting that he completed an intensive sex offender treatment program over an eight month period of 340 hours in 2019 and 2020 and he spoke favourably of the program in terms of coming to face his history of problematic sexual behaviour and formulating plans to offset future risk of offending. He was assessed as being well above average risk category for sexual reoffending, he clearly needs further supervision in addition to the intensive residential treatment program that he completed in custody. He is coping well with the gaol environment, there are no apparent concerns for his mental health in the protection area although of course being in protection does reduce his level of amenity and limit his placement options.
The facts that I have recounted describe a very serious period of offending over some months involving a vulnerable thirteen or fourteen year old girl. Numerous very serious sexual offences were committed. The Crown submits that the offences that is, all offences, fall in the mid-range in terms of objective seriousness, whereas Ms Anderson submits that they are all in the low range. Insofar as it is necessary to attempt to categorise them even if there is no standard non-parole period, I would place the entire episode of offending as in the low to mid-range.
In terms of aggravating features, Ms Anderson challenges the assertion that he abused a position of trust in relation to the victim and I accept that he was not in the frequently encountered position of a grandfather or a family member taking advantage of a young person. Ms Anderson cautions me against using the victim impact statement to establish whether the emotional harm to the victim was substantial and thus constituting an aggravating factor. As Basten JA said in R v Thomas [2007] NSWCCA 269, it is often appropriate to give weight to a victim impact statement where the conduct of the offender is otherwise established beyond a reasonable doubt and the statement is restricted to subsequent effects on the victim. Here the victim impact statement satisfies that description and describes the lasting and significant consequences of the offending against her when she was a young teenager and I accept that the emotional harm to her was substantial.
As to whether the offences were committed in the home of the victim, Ms Anderson refers to what was in R v CTG [2017] NSWCCA 163 at [82] - [84] which points out that not all cases in which offences occur in a home will qualify as an aggravating factor and as was said at [84], this is not a case where offences being committed in the home would constitute an aggravating factor. However, as the Crown submits, the counts which are the subject of the pleas are representative of a range of conduct that took place over several months and weren't isolated incidences, they involved repeated sexual intercourse with the victim both vaginally and anally, and he engaged on occasions in unprotected sex with the victim placing her at risk of sexually transmitted diseases and pregnancy.
I accept in terms of mitigating factors that he has expressed a limited degree of remorse in the letter to which I have referred and he has pleaded guilty. I find that his prospects of rehabilitation are reasonable given his past engagement in a lengthy treatment program and his recognition of the need for further treatment. It is important to note as I have in recounting the Queensland record that at the time of this offending, he committed similar offences in 1995 and 1996 including three counts of carnal knowledge by anal intercourse of a minor so it cannot be said that at the time of the offending he did not have any record and he certainly has a significant record of similar offending up to the present time.
I take account, as Ms Anderson submits, of the fact that there was no apparent complaint by the complainant until she was effectively considered a missing person and ran away to follow the offender, but of course, that is no excuse or justification.
Ms Anderson concedes the need for general deterrence and specific deterrence to be significant factors in the sentencing process.
I accept that there is a basis for a finding of special circumstances given his reasonable prospects of rehabilitation and his need for an extended period of supervision, the diagnosis of a depressive disorder made by Mr Sheehan and the difficult conditions in custody occasioned by the pandemic which is likely to endure for some time and prevents his family from having any visits and eliminates the prospect of seeing his mother whose health is very compromised and declining rapidly.
It has been submitted that I should consider questions of totality in the light of the Queensland matters and his incarceration in New South Wales immediately upon release from a significant sentence in that Queensland. The Crown submits that that should have little relevance given the very lengthy time gap between the present offences and the 2017 offences that led to his last period in custody in Queensland. Although the High Court said in Mill v The Queen (1988) 166 CLR 59 that totality principle can apply when dealing with offences committed within a short period across state borders, the Court of Criminal Appeal in RLS v R [2012] NSWCCA 236 said that a relevant consideration is whether or not the offence that the offender is being sentenced for was committed at or about the same time as the previous offences.
In those circumstances I take the view that questions of totality have very little relevance to the sentence that I should impose.
The orders that I make are:
1. that the offender is convicted of each offence.
2. Taking into account a discount of 25% for the pleas of guilty, the indicative sentences are:
1. Count 1 (sequence 9), taking into account the Form 1 matters (Sequences 3, 4, 5, 7, 8, 14): 4 years, 6 months;
2. Count 2 (sequence 11): 3 years, 10 months;
3. Count 3 (sequence 12): 3 years.
1. I impose an aggregate sentence of five years and three months commencing 19 June 2020.
2. I impose a non-parole period of three years and four months expiring 18 October 2023.
3. I find special circumstances.
[11]
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Decision last updated: 07 January 2022