R v RD

Sentence hearing

1. The sentence hearing took place on 12 August 2016 at Taree District Court. The Crown bundle (Ex A), contained the criminal antecedents of the offender which contained two drink driving offences, some minor traffic offences and an offence in 2006 of contravene Apprehended Domestic Violence Order (four counts), for which a s 9 Bond was imposed for 18 months, and offences in 2012 of assault occasioning actual bodily harm and common assault, for which s 9 Bonds were imposed of 15 months and 12 months respectively. The offender had no prior offences for sexual assaults.
2. Exhibit A also contained a pre-sentence report under the hand of Ms Allison Judd, dated 22 July 2016. The report outlined the offender's previous supervision by Community Corrections in respect of the supervised good behaviour bonds referred to above. Case management in each case attempted to address ongoing mental health, domestic violence and drug and alcohol issues. His response to supervision was considered poor.
3. Under the heading "Family/Social Circumstances", the offender reported a dysfunctional upbringing. He was raised by extended family due to violence perpetrated by his alcoholic father. He is the father of two children who were the product of an 11 year relationship which broke down. His previous domestic violence offences concerned his ex-partner and their children. He described his 12 months relationship with MC as being "normal, supportive and loving".
4. Prior to the offending, the offender had been unemployed since around 2007. He maintained some casual employment, undertaking handyman work.
5. The offender commenced binge drinking behaviour at age 16 and commenced smoking cannabis from age 15. He commenced using methylamphetamine, or ice, in 2014, and by mid 2015 his usage had increased to daily usage.
6. The offender had reported a diagnosis of depression and anxiety related to his previous relationship background. Those mental health issues precluded him from actively job searching. The report stated: "A letter provided by his then psychologist, dated 18 June 2013, suggested he scored in the 'severe range for depression', and 'extremely severe for anxiety'. [RD] advised he did not follow the recommended treatment plans, including not following the recommended medication regimes. He claimed the side-effects of Zolof and Xanex he was prescribed made him feel worse. He also suggested his psychologist had referred him to further treatment and counselling, however, claimed the cost of treatment was unrealistic and he chose not to seek an alternative."
7. Justice Health confirmed his history of depression and advised he is currently medicated with anti-depressants and is compliant with the medication regime.
8. The offender was assessed as a moderate to low risk of re-offending as a sex offender. He described his former relationship as normal and his sexual needs were met by his then partner. He stated he was not sexually attracted to children. Under the heading "Attitude to Offending", the offender maintained that he could not recall committing the offences and suggested it was possible he had been set up. He claimed that he was "off his head on ice" at the time of the offences and stated that had he been abstinent from all substances, the offences would not have occurred. Throughout the interview he maintained he was not sexually attracted to or interested in children.
9. The offender had sent text messages to BH claiming them to be a "running joke". The author of the report stated that this conduct appeared to demonstrate a continued minimisation of the impact and effects of his actions on BH. The offender did, however, state that he was ashamed of his offending. He was open to programs to address his drug and alcohol problems and sex offender treatment. The author stated that he appeared potentially more motivated to attend such programs due to his desire to return to the wider community, as a opposed to a more inherent motivation to address his offending behaviour. He was assessed as being a high risk of re‑offending, with his identified criminogenic needs being:

• Alcohol/drug problems
• Sex offending
• Emotional/personal
• Educational/employment
• Financial
• Family/marital
• Accommodation
• Leisure/recreation
• Attitude/orientation

1. The offender had suggested that he had relatives who were prepared to offer him conditional accommodation in the Glen Innes area, otherwise he was at risk of homelessness.
2. It was considered that the offender would benefit from a period of supervision by Community Corrections to address the following case management strategies: Referral to drug and alcohol interventions/counselling Referral to mental health for assessment and ongoing treatment Referral to Community Corrections' psychologist for treatment and case management strategies to address sexual offending. Referral to accommodation support services
3. The offender was assessed as unsuitable for a Community Service Order.
4. Exhibit A also included the Victim Impact Statement from BH, which was read in court by her mother. It is clear from that statement that the criminal conduct of the offender has had a significant emotional and psychological impact on the young victim. She was also distressed about the effect the conduct had on her mother and family, and because the offences occurred in her home, there were constant reminders of the offending for her, which meant that she did not want to be left alone at home, even in the day time. Further, she had trouble sleeping and was suffering rumination about the events, headaches and migraines.
5. On 22 August 2016, after this matter had been adjourned for sentence to 2 September 2016, the Crown submitted, with the consent of the offender, a further Victim Impact Statement from JC, which had only been received by the Crown after the sentence hearing. Similar to the statement of BH, the statement of JC makes it clear that the criminal of the offender has had a significant emotional and psychological impact on the young victim. She too suffered nightmares and had difficulty sleeping following the incident. She was also concerned about the impact that these events have had on her own family, and that of her cousin BH.

The offender's evidence

1. The offender tendered a report of Mr John Nolan, clinical psychologist, dated 27 July 2016. That report outlines his family and education background. He left school at year 10 and became a tyre fitter by trade. He worked as a tyre fitter for 10 years. His main interests in life have been drawing, fishing and building bird aviaries. Following the breakdown of his relationship with the mother of his two children, the offender suffered bouts of depression which he linked to the loss of his children. Whilst incarcerated, he has been prescribed the anti-depressant Avanza and has been seen by a psychologist. In 2014 he was diagnosed with Bi-polar Effective Disorder, however, the writer opined that it was unlikely a bi-polar diagnosis could have reliably made at that time because of his use of illicit drugs and alcohol to excess. Upon testing, however, he was said to be suffering from extremely high levels of depression and anxiety.
2. In respect of the offending behaviour, the offender told the psychologist that he could not remember any of the behaviour. He had pleaded guilty because he believes he did offend, and he did not want to cause further victim harm by actively defending the charges. He stated that he was more than willing to receive treatment for his offending, and did not have a sexual interest in children. Under the heading "Remorse", the offender said: "He feels 'like disgusting rubbish' He said 'it makes him feel sick'. He cannot understand why he committed the offences. He said 'it makes him feel lost'. As part of his remorse, the offender said he will do everything he can in gaol to understand why he offended and learn how not to re-offend. He expressed his willingness to enter treatment for child sex offenders as soon as it is possible."
3. The author made a diagnosis under DSMV of Persistent Depressive Disorder ("Dysthymia"). However, as a clinical and forensic psychologist, he does not have the qualifications of a psychiatrist to make such a diagnosis. He set out the following treatment plan: "To provide psychologically focussed cognitive and behavioural therapy (CBT) to: - Improve emotional, psychological and/or behavioural distress; - Psycho-education to support the rationale for treatment; - Improve communication, coping and problem solving; - Improve self-esteem and adjustment to life; - Improve social interaction and develop social supports; - Support development of alternative behaviour to drinking and drug use; - Develop strategies to find effective ways of dealing with negative thinking; - Develop relapse prevention skills."
4. In addition, the treatment plan should include treatment for child sex offending.

The Crown submissions

1. The Crown relied on a detailed written outline of submissions which set out the legal principles underlining the purposes of sentencing as contained in s 3A of the Crimes (Sentencing Procedure) Act 1999 ("C(SP)A"). The Crown also set out general principles relating to the sentencing of sex offenders who exploited children. None of these principles, nor the authorities relied on, were controversial.
2. The Crown submitted that the offences involved a high degree of criminality involving the sexual exploitation of two young children (one of whom was 10 years of age at the time of the relevant offending, and the other 7 years of age). The Crown submitted that the younger the victim the more serious the criminality, relying on R v T (1990) 47 ACrimR 29 at [30]. Whilst the age of the complainant is an element of the charges for which the offender is being sentenced, the Crown submitted that the court would take into account the age of each complainant in relation to both the objective seriousness of the offending and as an aggravating feature.
3. The Crown relied on the following aggravating factors pursuant to s 21A(2) of the C(SP)A: "(eb) The offences involving BH occurred in the home of the victim, notwithstanding that the offender was entitled to be present in the premises at the time of the offending, relying on R v Melbom [2013] NSWCCA 210; and R v Atkar [2015) NSWCCA 123. (k) Abuse position of authority. It was submitted that the offender was in a position of authority in respect of both victims. (l) Vulnerable victim. The Crown submitted that where the age of the complainant is significantly below the maximum age provided by the particular fact, that is a factor to be taken into account, relying on RJA v R [2008] NSWCCA 137.
4. The Crown submitted that the offender's plea of guilty in the Local Court was a mitigating factor, entitling him to a utilitarian discount on sentence of 25%. The Crown further submitted, in oral submissions, that intoxication was not a mitigating factor, relying on R v Stewart [2012] NSWCCA 183; and R v Loveridge [2014] NSWCCA 120.
5. With respect to the offender's mental health diagnosis, the Crown submitted that in order for mental illness of an offender to be relevant to the assessment of culpability, it must be shown to have contributed to the commission of the offence, relying on R v Engert (1995) 84 ACrimR 67; R v Hammond [2008] NSWCCA 138. The Crown submitted that there was no evidence that the offender's pre-existing depression contributed to the commission of any of the offences, beyond leading to his heavy use of illegal drugs, which did not constitute a mitigating factor.
6. The Crown submitted that no finding of special circumstances should be made pursuant to s 44(2) of the C(SP)A. It was submitted that in light of the gravity of the offences for which the offender was being sentenced, applying the statutory formula, would provide sufficient time for supervision on parole. The Crown also provided a number of comparative sentencing cases and statistics produced by the Judicial Commission in respect of the relevant offences.
7. The Crown conceded that each sentence had to be determined on its own facts, by way of application of proper sentencing principles, and that whilst useful as a guide only, the JIRS statistics did not demonstrate the facts behind each of the sentences represented, and therefore should be approached with caution.
8. Finally, the Crown submitted that this may be an appropriate case for an aggregate sentence under s 53A of the C(SP)A.

The offender's submissions

1. Learned Counsel for the offender did not take issue with the general principles of sentencing outlined in the Crown's submissions. It was submitted that the Victim Impact Statement of BH should not be relied on as an aggravating feature pursuant to s 21A(2) of the C(SP)A, and that the Crown was not relying on it for that purpose. That also applies to the Victim Impact Statement of JC. Further, in respect of the second sequence of offending concerning JC, those offences did not take place in the home of the victim and therefore that was not an aggravating feature.
2. It was submitted that there were four episodes of offending concerning the first victim BH. Any uncharged acts referred to in the Agreed Facts should be disregarded. Of each of the four episodes, there was two acts on each occasion, and therefore it was submitted that the sentences should be substantially concurrent.
3. In relation to the objective serious of the offending, it was submitted that the court may take into account the age of the victims, but that there was an absence of aggravating features sometimes seen in such offending. For example, there was no infliction of physical violence, and each episode was of very brief duration.
4. In respect of the offending pursuant to s 61J of the Crimes Act, that section set out nine circumstances of aggravation, of which the Crown relied only on two thereof. Therefore, seven of the nine circumstances of aggravation were absent in this offending. In respect of the objective seriousness of the offending in respect of the second victim, JC, it was submitted that the offending was below the mid-range of offending for such offences. The episode was relatively brief and there were two offences arising from one episode. Therefore, any sentence in relation to the second victim should be largely concurrent with the sentences concerning the first victim.
5. It was submitted that the offender had expressed remorse for his criminal behaviour to the psychologist, Mr Nolan. He also demonstrated victim empathy, notwithstanding the content of [23] of Mr Nolan's report, which is outlined above. Further, drug and alcohol use was not a mitigating feature of the offending.
6. It was submitted that special circumstances should be found, given that this was the first time in custody for the offender. He would find full time custody more onerous by virtue of being a protected inmate, and he would benefit from an extended period of supervision to address his mental health issues, his drug and alcohol issues, and his sexual offending, in order for him to be reintegrated into the community.
7. It was submitted that the court should also take into account his contrition and remorse, together with principles of totality in sentencing.

Determination

1. Section 3A of the C(SP)A sets out the purposes of sentencing as follows: "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community."
2. The objective seriousness of the offending in respect of the offences concerning BH has to be assessed in relation to each of the four incidents which each gave rise to one count of aggravated sexual intercourse without consent pursuant to s 61J(1) of the Crimes Act and one count of aggravated indecent assault on a person under 16 years of age pursuant to s 61M(2) of the Crimes Act. Each of the four incidents occurred after BH had gone to sleep in her own bed, and each concerned the offender pulling down her underwear and then rubbing her exposed vagina, and then performing cunnilingus on her. BH was 10 years of age at the time of the first three incidents and 11 years of age at the time of the fourth. She was therefore vulnerable, and the offences constituted a gross breach of trust, given that the offender was her step-father. The fact that the offences occurred in her home and involved exploitation of her young age also have to be taken into account. I accept the offender's submission that seven of the nine circumstances of aggravation as defined in s 61J(2), were absent, However, only one such circumstance needs to be present to establish that element of the offence. I accept, however, that in the case of BH, there was no infliction of physical violence and each episode was of very brief duration. I therefore find the objective seriousness of the offending in respect of each of the eight sequences relating to BH, fell below the mid-range of offences for s 61J(1). Each of the offences still constituted serious criminal conduct, involving the sexual exploitation of a child of 10 years of age.
3. The objective seriousness of the offending in respect of JC, sequences 1 and 2, needs to be determined in view of the first count being an offence pursuant to s 66A(1), with a further offence of aggravated indecent assault pursuant to s 61M(2). Both counts arose out of the same incident which was of short duration. In this case, the victim was seven years of age and therefore very vulnerable. In the course of that offending the offender scratched her vagina, causing her some pain, and performed cunnilingus on her. I accept that the offending was of short duration and the objective seriousness of the offending pursuant to s 66A(1) was below the mid-range for an offence pursuant to that section. Similarly, the offending pursuant to s 61M(2) was below the mid‑range for an offence under that section. However, the offending did involve a high degree of criminality involving the sexual exploitation of a seven year old girl.
4. I have taken into account the following maximum penalties and standard non‑parole periods: 1. For the four counts of aggravated sexual intercourse without consent pursuant to s 61J(1) of the Crimes Act, a maximum penalty of 20 years imprisonment with a standard non-parole period of 10 years imprisonment; 2. For the five counts of aggravated indecent assault on a person under 16 years of age pursuant to s 61M(2) of the Crimes Act, a maximum penalty for each offence of 10 years imprisonment with a standard non‑parole period of 8 years imprisonment; and 3. In respect of the one count of sexual intercourse with a person under 10 years of age pursuant to s 66A(1) of the Crimes Act, in respect of the child JC, a maximum penalty of 25 years imprisonment with a standard non-parole period of 15 years. The maximum penalties and standard non-parole periods are guideposts in the sentencing process.
5. I note that the offender entered an early plea of guilty and is entitled to a utilitarian discount on sentence of 25%. There is no evidence that the offender's mental health diagnosis, to the extent that it was described by Mr Nolan, contributed to the commission of the offences here. His pre‑existing depression may have contributed to his heavy use of alcohol and illicit drugs, including ice. However, that does not constitute a mitigating factor to be taken into account in the sentencing process. I accept, however, that the offender has expressed some remorse for his criminal behaviour, as noted by Mr Nolan.
6. I have had regard to the Victim Impact Statements of both BH and JC. They set out the impact that these offences have had on the victims' emotional and psychological state. I note that there is no medical evidence against which to assess the Victim Impact Statements, however, it is a matter of common sense that these offences have had a substantial impact on both victims and their families. I have therefore taken the Victim Impact Statements into account, but I make it clear that I have done so not to aggravate the offender's culpability.
7. The fact that the offender is in full time custody for the first time does not warrant a finding of special circumstances. Nor has it been established on the evidence that he would find full time custody more onerous by virtue of being a protected inmate. However, it is clear that the offender would benefit from an extended period of supervision by Community Corrections to assist with drug and alcohol interventions or counselling, referral for mental health assessment and ongoing treatment, together with any ongoing treatment and case management strategies to address his sexual offending. For those reasons, I am satisfied that special circumstances have been established pursuant to s 44(2) of the C(SP)A so as to vary the ratio between any non‑parole period set and the head sentence.
8. General deterrence must have a place in the sentencing process here, together with specific deterrence. The offender's pre-existing mental health problems do not diminish the need for general deterrence, as a clear message of denunciation of the criminal conduct of the offender must be sent to the community.
9. I am satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate for the various offences. I also note that the offender has been in custody for 5 months and 7 days, and the commencement date of any sentence will be 18 February 2016.
10. I intend to proceed to sentence the offender by way of an aggregate sentence pursuant to s 53A of the C(SP)A. Section 53A provides as follows: S 53A Aggregate sentences of imprisonment (1) A court may in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any 2 or more of those offences instead of imposing a separate sentence of imprisonment for each. (2) A court that imposes an aggregate sentence of imprisonment under this section on an offender must indicate to the offender, and make a record of, the following: (a) The fact that an aggregate sentence is being imposed, (b) The sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence. (3) Subsection (2) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions. (4) The term, and any non-parole period, set under this Division in relation to an aggregate sentence of imprisonment is not revoked or varied by a later sentence of imprisonment that the same or some other court subsequently imposes in relation to another offence. (5) An aggregate sentence of imprisonment is not invalidated by a failure to comply with this section."
11. I note that any aggregate sentence must be "just and appropriate" to the totality of the offending behaviour - see Mill v The Queen (1988) 166 CLR 59 at [63]. In R v Van Ryn [2016] NSWCCA 1, the court had regard to the following summary of the correct approach to the assessment of sentence for multiple offences, with proper regard to the totality of the criminality involved: "[228] Street CJ described the principle of totality in sentencing in R v Holder; R v Johnstone (1983) 3 NSWLR 245 at 260 as follows: The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently, a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation, a sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences."
12. The court went on to emphasise the need to maintain public confidence in the administration of justice when sentencing for multiple offences, and also referred to the judgment of Howie J in R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41 at [27]: "There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. … Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both." (See also R v Caldwell [2016] NSWCCA 55)
13. In respect of the four incidents concerning BH, and the incident concerning JC, each incident gave rise to offences as outlined above. Having regard to the principles of sentencing referred to above, and in particular those of totality and proportionality, I propose to aggregate the sentences to be imposed, having first assessed the indicative sentences to be imposed in respect of each count. It is clear that the aggregation of sentences pursuant to s 53A must reflect some accumulation of the indicative head sentences - see R v Rae [2013] NSWCCA 9, and JM v R (2014) ACrimR 528.. However, given that each incident gave rise to two offences as outlined above, the degree of accumulation will be less than would otherwise be the case.
14. The Court is required to indicate the sentence that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence. This provides transparency in the sentencing process - see McIntosh v R [2015] NSWCCA 184 at [135]. As each of the offences carries a standard non-parole period, the standard non-parole period will be also indicated for each offence.
15. The indicative sentences I would have imposed for each offence are as follows:

A. Offences involving BH 1. Sequence 1 - aggravated sexual intercourse without consent - 3 years imprisonment with a non-parole period of 1 year and 8 months imprisonment. 2. Sequence 2 - aggravated indecent assault on a person under 16 years of age pursuant to s 61M(2) of the Crimes Act 1900 - 2 years imprisonment with a non-parole period of 12 months imprisonment. 3. Sequence 3 - aggravated indecent assault on a person under 16 years of age pursuant to s 61M(2) of the Crimes Act 1900 - 18 months imprisonment with a non-parole period of 12 months imprisonment. 4. Sequence 4 - aggravated sexual intercourse without consent on a person under 16 years of age pursuant to s 61J(1) of the Crimes Act 1900 - 3 years imprisonment with a non-parole period of 1 year and 8 months imprisonment. 5. Sequence 5 - aggravated indecent assault on a person under 16 years of age pursuant to s 61M(2) of the Crimes Act 1900 - 18 months imprisonment with a non-parole period of 12 months imprisonment. 6. Sequence 7 - aggravated indecent assault on a person under 16 years of age pursuant to s 61M(2) of the Crimes Act 1900 - 18 months imprisonment with a non-parole period of 12 months imprisonment. 7. Sequence 8 - aggravated sexual intercourse without consent on a person under 16 years of age pursuant to 61J(1) of the Crimes Act 1900 - 3 years imprisonment with a non-parole period of 1 year and 8 months imprisonment.

B Offences involving JC 1. Sequence 1 - aggravated indecent assault with a child under the age of 10 years pursuant to s 66A of the Crimes Act - 18 months imprisonment with a non-parole period of 12 months imprisonment. 2. Sequence 2 - aggravated sexual intercourse with a child under the age of 10 years pursuant to s 61M(2) of the Crimes Act - 3 years and 9 months imprisonment with a non-parole period of 2 years and 6 months imprisonment.

Sentence

1. I hereby sentence you as follows: 1. You are hereby convicted of each of the following offences concerning BH: Sequences 1, 4, 6 and 8, being offences pursuant to s 61J(1) of the Crimes Act 1900 of aggravated sexual intercourse without consent. Sequences 2, 3, 5 and 7, being offences pursuant to s 61M(2) of the Crimes Act 1900 of aggravated indecent assault on a person under the age of 16 years. 1. You are hereby convicted of the following offences concerning JC: Sequence 1 - offence pursuant to s 61M(2) of the Crimes Act 1900 of aggravated indecent assault on a person under the age of 10 years, and Sequence 2 - offence pursuant to s 66A(1) of the Crimes Act 1900 of sexual intercourse with a person under 10 years of age. 1. The sentence I impose pursuant to s 53A of the C(SP)A is a non-parole period of imprisonment for 4 years, commencing on 18 February 2016 and expiring on 17 February 2020. 2. There will be a further balance of term of imprisonment of 2 years and 6 months commencing 18 February 2020 and expiring on 17 August 2022. The total term will be 6 years and 6 months imprisonment.
2. You should understand that release to parole is not automatic. The State Parole Authority will hold a hearing sometime before that date and decide whether they are going to release you to parole on that date or some later date. You should understand that your parole will be subject to stringent conditions, one of which is not to commit offences whilst on parole. Other conditions will include things such as who you associate with, where you live and doing what your parole officers direct. If, during the time you are on parole, you breach any condition of parole, the State Parole Authority will revoke your parole and you will have to go back to gaol to serve the balance of your sentence.

Amendments 05 September 2016 - replaced name with "RD" on coversheet 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: 05 September 2016