216 A Crim R 305
R v Lane [2011] NSWSC 289
R v McGrath [2010] NSWCCA 48
199 A Crim R 527
R v MJR [2002] NSWCCA 129
54 NSWLR 368
130 A Crim R 481
RWB v R
Source
Original judgment source is linked above.
Catchwords
216 A Crim R 305
R v Lane [2011] NSWSC 289
R v McGrath [2010] NSWCCA 48199 A Crim R 527
R v MJR [2002] NSWCCA 12954 NSWLR 368130 A Crim R 481
RWB v RR v RWB [2010] NSWCCA 147
Judgment (12 paragraphs)
[1]
SENTENCE
On 6 June 2012, RL pleaded not guilty to 15 offences in an indictment. Those offences are as follows:
Between 8 April 1988 and 31 December 1989, at St Johns Park in the State of New South Wales, did assault DL, a person then under the age of 16 years, namely 10 or 11 years, and at the time of the assault committed an act of indecency upon DL, at a time when the said DL was under the authority of RL.
Between 1 February 1990 and 20 February 1990, at St Johns Park in the State of New South Wales, did assault DL, a person then under the age of 16 years, namely 11 years of age, and at the time of the assault committed an act of indecency upon DL, at a time when the said DL was under the authority of RL.
Between 1 February 1990 and 20 February 1990, at St Johns Park in the State of New South Wales, did commit an act of indecency with DL, a person then under the age of 16 years, namely 11 years of age, at a time when the said DL was under the authority of RL.
Between 7 August 1990 and 11 August 1990, at St Johns Park in the State of New South Wales, did have sexual intercourse with DL, a person then under the age of 16 years, namely 12 years of age, without the consent of DL, and knowing that she was not consenting to the sexual intercourse, at a time when the said DL was under the authority of RL.
In the alternative to count four:
R v RL [2013] NSWDC 337 | Case summary | Zoe
Between 7 August 1990 and 11 August 1990, at St Johns Park in the State of New South Wales, did have sexual intercourse with DL, a person then above the age of 10 years and under the age of 16 years, namely 11 years of age, at a time when the said DL was under the authority of RL.
Between 7 August 1990 and 11 August 1990, at St Johns Park in the State of New South Wales, did have sexual intercourse with DL, a person then under the age of 16 years, namely 12 years of age, without the consent of DL, and knowing that she was not consenting to the sexual intercourse, at a time when the said DL was under the authority of RL.
In the alternative to count six:
Between 7 August 1990 and 11 August 1990, at St Johns Park in the State of New South Wales, did have sexual intercourse with DL, a person then above the age of 10 years and under the age of 16 years, namely 12 years of age, at a time when the said DL was under the authority of RL.
Between 7 August 1990 and 11 August 1990, at St Johns Park in the State of New South Wales, did commit an act of indecency with DL, a person then under the age of 16 years, namely 12 years of age, at a time when the said DL was under the authority of RL.
Between 24 June 1992 and 7 December 1992, at Griffith in the State of New South Wales, did have sexual intercourse with DL, without the consent of DL, and knowing that she was not consenting to the sexual intercourse, in circumstances of aggravation, namely, that at the time of the offence DL was a person under the age of 16 years, namely 14 years of age.
In the alternative to count nine:
Between 24 June 1992 and 7 December 1992, at Griffith in the State of New South Wales, did have sexual intercourse with DL, a person above the age of 10 years and under the age of 16 years, namely 14 years, at a time when the said DL was under the authority of RL.
Between 24 June 1992 and 7 December 1992, at Griffith in the State of New South Wales, did commit an act of indecency with DL, a person then under the age of 16 years, namely 14 years, in circumstances of aggravation, namely, that at a time of the offence DL was under the authority of RL.
Between 24 June 1992 and 7 December 1992, at Griffith in the State of New South Wales, did have sexual intercourse with DL, without the consent of DL, and knowing that she was not consenting to the sexual intercourse, in circumstances of aggravation, namely, that at the time of the offence DL was under the authority of RL.
In the alternative to count 12:
Between 24 June 1992 and 7 December 1992, at Griffith in the State of New South Wales, did have sexual intercourse with DL, a person then above the age of 10 years and under the age of 16 years, namely 14 years of age, at a time when the said DL was under the authority of RL.
Between 1 November 1993 and 7 April 1994, at Griffith in the State of New South Wales, did have sexual intercourse with DL, without the consent of DL, and knowing that she was not consenting to the sexual intercourse, in circumstances of aggravation, namely, that at the time of the offence, DL was under the authority of RL.
In the alternative to count 14:
Between 1 November 1993 and 7 April 1994, at Griffith in the State of New South Wales, did have sexual intercourse with DL, a person then over the age of 10 years and under the age of 16 years, namely 15 years of age, and at a time when the said DL was under the authority of RL.
On 14 June 2012, verdicts of not guilty were directed in relation to counts 11, 12, 13, 14 and 15.
The jury returned verdicts of guilty in relation to counts one, two, three, four, six, eight and nine on 22 June 2012.
Counts one, two and three are contrary to s 61E(1A) Crimes Act 1900 (NSW). The maximum penalty prescribed for this offence, at the relevant time, is imprisonment for six years.
Counts four and six are contrary to s 61D(1A) Crimes Act. The maximum penalty for this offence, at the relevant time, is imprisonment for 12 years.
Count eight is an offence contrary to s 61E(2A) Crimes Act. The maximum penalty prescribed for this offence, at the relevant time, is imprisonment for four years.
Count nine is an offence contrary to s 61J(1) Crimes Act. The maximum penalty for this offence, at the relevant time, is imprisonment for 20 years.
I convict Mr RL of each of these seven offences.
The proceedings on sentence have been delayed for a number of reasons. Neither side of the bar table take any point about the delay.
[2]
FACTS
The prisoner is to be sentenced for seven offences on five occasions, committed over a period of about four years and eight months, between April 1988 and December 1992. The complainant is either the natural daughter or step-daughter of the prisoner. The complainant was born on xx 1978. She was aged between 10 years and 14 years and eight months during the period of the offences.
The date of birth of the prisoner is 22 March 1951. He is now aged 62.
[3]
COUNT ONE
The first offence took place between 8 April 1988 and 31 December 1989 at St Johns Park. The complainant was aged between 10 years and 11 years and eight months.
At the family home in Hurstville Street, St Johns Park, the victim was cleaning up after dinner. The prisoner came up behind her whilst they were in the kitchen and pulled down her pyjama pants and rubbed his penis against her bottom, masturbated and ejaculated on her bottom.
[4]
COUNT TWO
This offence took place when the complainant's step-mother was in hospital, between 1 February 1990 and 20 February 1990. The family were still living at St Johns Park. The complainant was aged 11 years and about 10 months.
The prisoner had the victim sleep in his bed with him. This was the first night her step-mother, ML, was not there. The prisoner, who was naked, had the victim remove her nightclothes and then "spooned" her, putting his hand on one of her breasts and his penis between her thighs.
[5]
COUNT THREE
This offence also took place when the complainant's step-mother was in hospital between 1 February 1990 and 20 February 1990.
This offence took place in the lounge room. The prisoner had the complainant masturbate him by having her hand on his penis and his hand over her hand. This continued until he ejaculated.
[6]
COUNTS FOUR, SIX AND EIGHT
This is the fourth occasion of offending. It took place between 7 August 1990 and 11 August 1990. The complainant was aged 12 years and four months. She was watching "Great Expectations" on the television in her bedroom. The prisoner entered the room and told her to take off her pyjamas. The prisoner kissed her and then tongue kissed her. While he was kissing her, he was playing with her breast. He then sucked her nipples. He then inserted his finger into her vagina, moving it around. The prisoner removed his finger and then "He was playing with my clitoris and then he put his finger back in." (Count Four)
The prisoner then performed, as the complainant said, "oral sex", on her for a period of about "10, 15 minutes". She said, "He put his tongue in my vagina, and he was licking my vagina." (Count Six)
The victim was crying. The prisoner then told the victim to place her hand on his testicles - his penis was erect - whilst he masturbated until he ejaculated. (Count Eight)
She said she was crying throughout and after he left, cried herself to sleep.
The prisoner asked her on a number of occasions if she was enjoying it, to which she answered no. She recalled him saying or making a comment like, "You're turning into a lady now", or "You're getting older now, and I'll teach you."
[7]
COUNT NINE
This took place when her step-mother was away visiting her daughter or her cousin. By this time, the family had moved to Griffith. This offence took place between 24 June 1992 and 7 December 1992. The complainant would have been aged between 14 years and two months and 14 years and eight months.
The prisoner called the complainant into his room, the main bedroom, "his and ML's room." "He told me that he wanted to try something. He asked me to take my clothes off and lie on the bed". The prisoner then spread her thighs apart and inserted the head of his erect penis into her vagina. She cried out "Ouch", "Stop, it hurts" and then he stopped.
[8]
SERIOUSNESS OF THE OFFENCES AND SOME SENTENCING PRINCIPLES
Defence counsel concedes count one is a serious example of this offence. A matter which contributes to this is the complainant was aged between 10 years and 11 years and eight months when the offence was committed. An element of the offence is the victim is under 16. She was though at the time quite young. See PWB v R [2011] NSWCCA 84; 216 A Crim R 305 at [12].
The defence also concede count two is a serious example of an offence contrary to s 61E(1A). The complainant at the time was aged only 11 years and 10 months. Again, I note an element of the offence is the victim is under 16. She was though at the time quite young.
She was the same age when count three was committed.
This matter of age in respect of each of the s 61E(1A) offences is something I will return to later in these remarks.
I take into account the forms of sexual intercourse in relation to counts four and six are other than penile-vaginal intercourse and the careful submissions of defence counsel in this connection. The offences were, though, ones of sexual intercourse without consent, as reflected in the maximum penalty, and the complainant was aged only 12 years and about four months. Again, I am fully aware an element of the offence is under 16. She was though at the time still quite young.
In relation to count nine, this was penile-vaginal intercourse. The complainant was aged between 14 years and two months and 14 years and eight months. Age under 16 is an element of the offence. The complainant was accordingly in the higher age range. This offence is also one of sexual intercourse without consent, as reflected in the maximum penalty.
Pain was felt by the complainant as a result of the intercourse, although the intercourse was brief and the prisoner stopped when the complainant expressed pain and asked him to stop. The offence is made more serious because the complainant was under the authority of the prisoner. This is a feature of aggravation.
The maximum penalty of 20 years imprisonment in respect of the count nine offence reflects the seriousness with which the legislature views this behaviour.
I note the Court of Criminal Appeal said in MH v R [2011] NSWCCA 230 digital intercourse is generally less serious than penile intercourse, particularly penile-vaginal intercourse, although there may be cases where this is not so.
The Crown, in the written submissions, correctly notes the abhorrence with which the community views offending of this type. The Crown notes,
"The community regards sexual offences against children, particularly young children, with abhorrence. Young children ordinarily have little or no capacity to take measures to protect themselves from those who would commit sexual offences against them. It is incumbent upon the courts, therefore, to send a very strong message of both general deterrence and denunciation when imposing sentences for offences of this kind."
Going back as early as 1989, the Court of Criminal Appeal has repeatedly stated,
"sexual assaults upon young children, especially by those who stand in a position of trust to them, must be severely punished, and … those who engage in this evil conduct must go to gaol for a long period of time, not only to punish them, but also in an endeavour to deter others who may have similar inclinations."
That is found in R v Fisher (1989) 40 A Crim R 442 (Yeldham J).
General deterrence must be a significant feature of this sentencing exercise.
Further, the offending took place over a considerable period of time, as already noted. The offending progressed and escalated from indecent assaults through to sexual intercourse without consent, digital and cunnilingus, and then penile-vaginal intercourse without consent. The factual context, the offences extending over time and escalating in terms of the sexual behaviour engaged in, discloses very serious criminality on the part of the prisoner.
The offences charged were not isolated occasions. The offending was a course of conduct. Uncharged criminality is only relevant to deny the person leniency. It is only in this way that I take into account the other behaviour.
I acknowledge the harm done to the complainant, as is clear in her victim impact statement.
The Crown does not submit this is a feature of aggravation in this case pursuant to s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999 (NSW), which provides, "the injury, emotional harm, loss or damage caused by the offence was substantial". I accept this submission. I cannot be so satisfied of this beyond reasonable doubt. On the other hand, I do not accept the defence submission the feature of mitigation as noted, "the injury, emotional harm, loss or damage caused by the offences was not substantial", is made out, even on the balance of probabilities, which is the appropriate standard. Just because an offence is not aggravated in a particular way, it does not necessarily mean the feature of mitigation is made out.
One of the purposes of sentencing noted in s 3A Crimes (Sentencing Procedure) Act, subpara (g), is to recognise the harm done to the victim of the crime and the community. I take into account the victim impact statement in this way. I am, though, very aware the statement relates also to the effect of other behaviour referred to in the trial but not charged, and offences in respect of which the prisoner was found not guilty.
In relation to each of the offences, there was a breach of trust. In saying that, I am mindful of the decision in JRM v R [2012] NSWCCA 112:
"During the appeal the Crown also drew attention to his Honour's finding that the Applicant had committed a gross breach of trust, drawing attention to the recognition in MRW v R [2011] NSWCCA 260 at [77], that this is a concept distinct from abuse of authority that is an element of the offence (albeit, because of the possibility of double counting, one to which a sentencing judge should be careful not to give too much weight) - see MRW v R at [78]."
I give weight to this matter as noted in this case.
On the other hand, I note that under authority was not an element of count nine. Both parties conceded that the feature of aggravation under authority was made out and I have already made reference to that. In addition, in respect of that offence, there was a breach of trust.
The complainant was entitled to feel safe in her own home.
[9]
RELEVANT LAW
As already noted, s 3A Crimes (Sentencing Procedure) Act applies to this sentencing. This is because although the section commenced on 1 February 2003, it applies to the determination of a sentence for an offence whenever committed. The exception to that is not applicable to this case.
Section 21A Crimes (Sentencing Procedure) Act applies to this sentencing, the transitional provision being the same as that noted above in respect of s 3A.
Standard non-parole periods do not apply to this sentencing exercise and I take no account of them whatsoever: R v McGrath [2010] NSWCCA 48; 199 A Crim R 527, R v Lane [2011] NSWSC 289 at [59]-[62] (Whealey J). Each of the offences were committed well prior to the commencement of the standard non-parole period legislation on 1 February 2003. By the terms of cl 45 of Sch 2 of that Act, they do not apply to offences committed before the commencement of these provisions.
The repealed s 44 Crimes (Sentencing Procedure) Act is the relevant legislation in respect of this sentencing as it applies in relation to the determination of sentences for offences committed before 1 February 2003.
Consistent with R v MJR [2002] NSWCCA 129; 54 NSWLR 368; 130 A Crim R 481, MJL v R [2007] NSWCCA 261, RWB v R; R v RWB [2010] NSWCCA 147; 202 A Crim R 209, the prisoner is to be sentenced with respect to the range of sentences or sentencing patterns which applied at the time of the offences.
The Sentencing Act 1989 (NSW) did not commence until 25 September 1989. Accordingly, the Probation and Parole Act 1983 (NSW) would have been the relevant legislation for most of the period in respect of count one, 8 April 1988 to 31 December 1989. Remissions were being applied to both the head sentence and the non-parole period up until 25 September 1989. I make this observation only so it cannot be said it was overlooked.
In this case, I intend to impose a fixed term in respect of count one.
The Sentencing Act would have been the relevant legislation in respect of the balance of the offences had the prisoner been sentenced when or about the time the offences were committed. Under that Act, the terminology was "minimum" and "additional" terms. The concept of "special circumstances" was introduced in the 1989 Act. Remissions in respect of the head sentence and non-parole period were abolished.
I note none of the offences at the time could have been dealt with summarily.
In respect of the s 61E(1A) offences, and indeed the s 61E(2A) offence and the s 61D(1A) offences, during the relevant period none of the available offences had as an element or a feature of aggravation child under 10.
Sections 61A to 61G were repealed on 17 March 1991. Sections 61H to 61O were in force from 17 March 1991.
From 17 March 1991, the offences were rewritten to commence from s 61H as noted. Sections 61L and 61M provided as follows:
"Section 61L Indecent assault
Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 5 years.
Section 61M Aggravated indecent assault
(1) Any person who assaults another person in circumstances of aggravation, and, at the time of or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 7 years.
(2) Any person who assaults another person, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 10 years, if the other person is under the age of 10 years.
(3) In this section, circumstances of aggravation means circumstances in which:
(a) the alleged offender is in the company of another person or persons, or
(b) the alleged offender is in the company of another person or persons, or
(c) the alleged victim is under the age of 16 years, or
(d) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or
(e) the alleged victim has a serious physical disability, or
(f) the alleged victim has a serious intellectual disability."
Sections 61N and 61O were enacted as follows:
"Section 61N Act of indecency
Any person who commits an act of indecency with or towards a person under the age of 16 years, or incites a person under that age to an act of indecency with that or another person, is liable to imprisonment for 2 years.
Section 61O Aggravated act of indecency
(1) Any person who commits an act of indecency with or towards a person under the age of 16 years, or incites a person under that age to an act of indecency with that or another person, in either case in circumstances of aggravation, is liable to imprisonment for 5 years.
(2) Any person who commits an act of indecency with or towards a person under the age of 10 years, or incites a person under that age to an act of indecency with that or another person, is liable to imprisonment for 7 years.
(3) In this section, circumstances of aggravation means circumstances in which:
(a) the alleged offender is in company with another person or persons, or
(b) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or
(c) the alleged victim has a serious physical disability, or
(d) the alleged victim has a serious intellectual disability."
Accordingly, the feature of under 10 was enacted. This means in relation to the s 61E(1A) and (2A) offences, the age range is much greater, being from birth to age 16.
As already noted, at the time also, in respect of the s 61D(1A) offences, sexual intercourse without consent, there was no offence which had as an element or feature of aggravation child under 10. So equally, the age range is much greater, being birth to 16.
The Crown properly concedes the statistics in terms of the number of cases are only sufficient to be of any assistance in respect of the s 61J offence. It remains the position though the statistics provided for the s 61J offence are for a seven year period from April 2005 to March 2012. The offence in this case was committed in 1992. Accordingly, the statistics relate to a very much later period of time.
The Crown has brought forward some cases. The defence tendered the Schedule which was attached to the case of PWB.
In PWB, Hulme J said the following at [68]:
"Although as I have said, the Applicant was entitled to be sentenced in accordance with the sentencing standards applicable at the time of his offending, in the case of the second offence, 1991, it is not easy to determine what those standards were. I have no difficulty in accepting that they were more lenient than at present. This has been recognised in Featherstone v R [2008] NSWCCA 71 at [45]; McGrath v R [2010] NSWCCA 48 at [62]; and R v RWB [2010] NSWCCA 147 at [176] and accords with my own recollection of events. However, such recognition provides no indication of what the standards were."
The relevant period in this case is April 1988 to December 1992.
No real pattern for offending of the nature committed by the prisoner is available. I am certainly of the view the standards in the late 1980s, early 1990s were more lenient. Such is my personal recollection. That, though, is only a recollection.
In this case, I will proceed as noted in [75] of PWB:
"In these circumstances, the approach to be adopted is the normal sentencing approach having regard to the statutory provision relevant to the particular time - see R v Moon [2000] NSWCCA 534; 117 A Crim R 497 at [70]-[71], R v MJR [2002] NSWCCA 129; 54 NSWCCA 368 at [107]. That approach allows for such assistance as may be obtained from the decisions of other judges."
[10]
SUBJECTIVE FEATURES AND DEFENCE SUBMISSIONS
The prisoner, as already noted, is now aged 62. He would have been aged about 37 to age 41 when the offences were committed.
The prisoner does not have any prior criminal record. He is entitled to the benefit of this as a feature of mitigation.
I accept he has good prospects for rehabilitation. I am not prepared to make a finding, even on the balance of probabilities, he is unlikely to re-offend. It is always very difficult to make a finding as to future behaviour. I make no finding one way or the other.
I have taken into account and considered the psychological report of Dr Katie Seidler, dated 6 March 2013.
I accept the prisoner suffers from the following conditions and these medical conditions will make his conditions of custody more onerous, although the defence concedes all of these medical conditions are currently being treated adequately within his custodial situation:
arthritis causing joint and back pain - for which he takes Osteopanadol;
narcolepsy;
depression - for which he takes a derivative of Zoloft; and
hypertension - for which he takes Coversyl.
The prisoner is supported by his wife. This support is ongoing.
The prisoner is serving his sentence on protection and I accept this is a more onerous form of custody. His age also makes him more vulnerable in custody.
I accept there are special circumstances, those being as noted in the defence submissions: the advanced age of the prisoner; the medical conditions of the prisoner; that this represents the prisoner's first time in custody; that accumulated sentences will be imposed on the prisoner.
The allowance for special circumstances will be nine and a half months.
[11]
ACCUMULATION, CONCURRENCY, SPECIAL CIRCUMSTANCES AND TOTALITY
The Court in every case must bear in mind the maximum penalty prescribed and the particular facts and circumstances, both objective and subjective, of the case, and the requirement for general deterrence.
The principle of totality must be given consideration to and in relation to that principle, the matter of concurrence and accumulation.
The effective non-parole period imposed in this case is the one which, in my view, is the least possible in all the circumstances, appropriately reflects the seriousness of the offending, the requirement for general deterrence and the subjective matters.
I impose the following sentences:
Count one, fixed term of 1 year, commencing on 22 June 2012, expiring on 21 June 2013.
Count two, fixed term of 1 year, commencing on 22 June 2013, expiring on 21 June 2014.
Count three, fixed term of 1 year, commencing on 22 June 2013, expiring on 21 June 2014, to be served concurrently with the sentence in respect of count two.
Count four, fixed term of 2 years, commencing on 22 June 2014, expiring on 21 June 2016.
Count six, fixed term of 2 years, commencing 22 June 2014, expiring on 21 June 2016, to be served concurrently in respect of the sentence to be served in relation to count four.
Count eight, fixed term of 6 months, commencing on 22 June 2014, expiring on 21 December 2014, also to be served concurrently with counts four and six.
I have imposed fixed terms and declined to specify non-parole periods (except for count eight, it being a term of 6 months) because of the sentence to be imposed in relation to count nine.
Count nine, imprisonment for 3 years 6 months, commencing on 22 June 2016 and expiring on 21 December 2019. The non-parole period is 10 months, commencing on 22 June 2016 and expiring on 21 April 2017.
The total effective sentence is 7 years 6 months, with a non-parole period of 4 years 10 months.
You will be eligible for consideration for release to parole on 21 April 2017.
The special circumstances are those noted in my remarks on sentence.
[12]
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: 21 August 2015
Parties
Applicant/Plaintiff:
R
Respondent/Defendant:
RL
Legislation Cited (5)
Probation and Parole Act 1983(NSW)
Sentencing Act 1989(NSW)
Accordingly, the Probation and Parole Act 1983(NSW)