R v Rush

Facts for sentence

1. At the relevant times; Rush was 18 years 5 months old, Sarah was 15 years 2 months and Anne 15 years 4.5 months. Sarah and Anne were best friends. Rush knew them both as he had been friends with Anne's brother since primary school. Anne began to socialise with him as part of their social group from when she was about 14 years old. Sarah also knew the offender through her brother as he would visit her house. A common group activity was to go four-wheel driving to places including the Eurobodalla National Park.
2. At about 8pm on 27 December 2012, Anne was at her home. She received a message from one of the group, Brian, (a pseudonym), asking if she and Sarah wanted to go "four wheel driving" with him and Rush. Anne called Sarah and they agreed to go with them. Around midnight, the young men, in Rush's hatchback, picked Anne up and then Sarah. The four drove to a headland overlooking an isolated surf beach on the NSW South Coast.
3. After parking at the bottom of the headland, the four all walked onto the beach, made up a wood fire and sat and talked, with music playing through a mobile phone. At some point Anne became cold and returned to the car with Brian.
4. Rush asked Sarah if she wanted to go for a walk. She agreed. They walked further along the beach and started kissing. He sat down on a sandy rise and pulled her towards him so that she was sitting between his legs. They kissed some more. Rush laid on top of Sarah and tried to pull her tights down her hips. Sarah expressed some initial reluctance and discomfort at this. They continued kissing. After a while Rush slowly pulled her tights down and suggested sex. Although not entirely comfortable about this, Sarah did not communicate this and they continued kissing. Shortly after the offender lifted her legs up and inserted his penis into her vagina. The intercourse lasted about five minutes. Sarah found it painful. Sarah then told him she wanted to go back to the car to check on Anne. Rush stood up, removed a condom and disposed of it in the bush: Count 1: s 66C(3),sexual intercourse with a child aged between 14-16.
5. Sarah and Rush then returned to the car. The four left the headland. Sarah was first to be dropped home, then Brian. Anne then moved into the front passenger seat beside Rush. He drove her towards her home and pulled up a short distance from her driveway. At this point Anne said she needed to get home as she was not meant to be out and was worried she would be caught. Rush got out of the car, opened her passenger door, leaned in, and started to kiss her.
6. Rush then told her he was interested in something more and asked her for fellatio. Anne said she wanted to go home but agreed to fellatio, which lasted about 20 seconds: Form 1: s 66C(3),Sexual intercourse with a child aged between 14-16.
7. Rush then asked Anne to have sex with him. Anne lay on the passenger seat and Rush removed her tights. Rush then had penile vaginal intercourse with her for a couple of minutes. When this ended, he drove her home; Count 2: s 66C(3),Sexual intercourse with a child aged between 14-16.
8. In the ensuing days and weeks Sarah and Anne spoke to each other about what had happened. In September 2015, 2 years and 8 months later, Sarah and Anne, then aged 17 and 18, discussed reporting Rush to the police (he was then 21). On 16 September 2015, they together attended Batemans Bay Police Station. Anne gave police a written statement on 8 December 2015. Sarah gave a written statement on 2 June 2016.
9. NSW Police obtained a listening device warrant in late 2016. On 11 January 2017, Anne visited Rush at his workplace, with a covert recording device. The audio of their conversation is incomplete but aspects of it could be construed in support of Anne's account and Rush (then 22) expressing some contrition and also insight.
10. On 9 February 2017, Sarah exchanged the following text messages with Rush, where they discussed the events from 2012.He told her: "I never really had the chance to apologise about all that shit, I'm sorry for everything me or the boys did or said. Yeah it was it's been on my mind a lot like how young I was and that. Looking back we were all really stupid doing what we did, and I mean all of us, it wasn't fair on you guys at all."
11. Rush was arrested on 17 February 2017. He participated in a recorded interview with police. After initially denying sexual acts with either victim he then made some admissions to fellatio and intercourse with Anne and sexual touching with Sarah (though not intercourse). Rush told police he remained uncertain as to the young Sarah and Anne's ages but said that he could have paid more attention. He said "'I really should have known how old they are, or at least, yeah, asked."

Guilty Pleas

1. Rush was originally charged with more serious offences. He said he was not guilty and in February 2018 he was committed for trial at Bega District Court. In November 2018 the initial date was vacated. A new trial date was fixed for 26 August 2019. On that a fresh indictment was presented. Rush said he was guilty to 66C(3) Crimes Act, offences relating to both Sarah and Anne. He also admitted his guilt in relation to a further s 66C(3) count involving Anne, which it was agreed would be put on a Form 1. Rush's belated acceptance of guilt can be regarded as a manifestation of the remorse and contrition there expressed and can provide support for the similar expressions of remorse made during the sentence proceedings.
2. The matter was then adjourned to the next sittings for sentence. On 18 October 2019, I received the prosecution material and heard both Sarah and Anne read their Victim Impact Statements.
3. The guilty pleas had some utilitarian value as the complainants did not have to give evidence, although they were kept in a state of anticipation until that date: Thompson v R; Houlton v R (2000) 49 NSWLR 383, at [3]. Another trial was able to be heard at Bega that week. The offender also had the advantage of lesser charges being preferred and a matter being placed on the Form 1. That utilitarian value must be recognised explicitly. In the ordinary course this would require reduction of each indicated sentence by 10%. In some cases a guilty plea, in combination with other relevant factors, can change the nature of the sentence imposed: Thompson, at [160].

Maximum Penalty and Form 1

1. An offence pursuant to s 66C (3) Crimes Act 1900, carries a maximum penalty of 10 years imprisonment. Careful attention to the maximum penalty fixed by Parliament is always required. It is a sentencing measure to be balanced with all other relevant factors. It also invites a comparison between the instant case and other cases. That said it is not appropriate just to look first to a maximum penalty and then proceed by way of making a proportional deduction from it: Markarian v The Queen (2005) 228 CLR 357, at [30] and [31].
2. The matter on the Form 1 will be taken into account when I determine the appropriate penalty for the offence to which it relates but I do not "in any sense" impose a sentences for that offence: Attorney General's Application No. 1 (2002) 56 NSWLR 146, at [68]. I do so as part of the instinctive synthesis approach to sentencing explained by McHugh J in Markarian, at [51]-[54].
3. A Form 1 matter generally operates to increase the sentence that would otherwise be appropriate. The increase recognises the need for personal deterrence and retribution for the crime for sentence: Attorney General's Application No. 1 at [39] - [42]. Here, the matter of the Form 1 helped inform my assessment of the criminality of the count for sentence. I have taken care not to double count what already been incorporated as part of my instinctive synthesis of relevant matters relating to the offence for sentence.

Assessing Objective seriousness

1. In assessing the objective seriousness for s 66C offences relevant features can include:

• The nature and circumstances of the sexual acts themselves;
• Any regard for or disregard for the safety and welfare of the complainant.
• Risk of pregnancy- if sex was unprotected or not.
• Pain or physical injury or their absence.
• The age of the offender.
• The age of the complainant: the younger the child relative to the age range specified for the offence, the more serious the offence.
• The relative difference between the age of the offender and the complainants.
• Any exploitation of a position of trust.
• Any aspect of taking advantage of someone the offender knew was very young.
• Absence of exploitation can be significant: R v Sea, Court of Criminal Appeal (NSW), 13 August 1990, unreported; R v Schwenke [2004] NSWCCA 289 at [15].
• The number of offences.
• The period of time over which the offences occurred.
• The presence or absence of physical compulsion or grooming.
• That the complainant was consenting.
• Whether the complainant was a willing participant, notwithstanding her age, is relevant, to the level of objective seriousness: Hogan v R [2008] NSWCCA 150 at [77].
• The nature of any relationship between the offender and the complainant - a same age, boyfriend - girlfriend relationship can mitigate the objective seriousness of the offence: Hogan v R.

1. Returning to this matter: The offender was aged 18 and 5 months the complainants were aged 15 and 2 months and 15 and 4 months. As Rothman J has noted, the difference in age between even an 18 year old and 15 year old can be significant. An 18 year old is permitted legally to drive, to drink, to attend bars and clubs, to smoke, to work and to vote. A 15 year old is still at High School and may only have recently reached puberty: Nelson v R [2016] NSWCCA 130, at [63] to [65].
2. While some may regard the age of 16 as arbitrary the law is, and has for over a century been clear and unambiguous; a person who is below 16 years is incapable of consenting to sexual contact: Crimes (Girls' Protection) Act 1910 (NSW); Crimes (Amendment) Act 1924 (NSW); CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440. Where a complainant is over the age of 16 they can consent to sexual activity and, as juries are commonly directed, "consent obtained after persuasion is still consent provided that ultimately it is given freely and voluntarily." Lack of consent however is not an element of a s 66C offence. Those of such a young age are deemed unable to give informed consent to sexual intercourse, no doubt because they do not appreciate the nature and consequences of the activity: Nelson v R, at [25].
3. Strictly, as Basten JA pointed out in Nelson, to describe sexual activities involving children under 16 as "consensual," "can reveal an approach which was erroneous both as a matter of legal principle and fact." However, the presence or absence of consent has often been held to be relevant in the assessment of objective seriousness for an offence contrary to s 66C: Dawkins v R [2018] NSWCCA 278: Wakeling v R [2016] NSWCCA 33; Hogan v R (2008) 186 A Crim R 52; [2008] NSWCCA 150, at [77].
4. Here the sexual acts were relatively brief. In one case, possibly both, a condom was used. There was no physical injury reported. However the act of intercourse caused Sarah pain. Rush stopped what he was doing to Sarah when she said she wanted to go back to the car.
5. Both girls had willingly gone out to the beach very late at night. The offender returned them to their homes. While both young women trusted Rush to do right by them, as a friend, there was no exploitation of a position of trust. There was no physical compulsion or grooming, just submission to an older man who had the girl in a position of vulnerability because she was alone with him. To the offender each complainant appeared to be a willing participant, notwithstanding her apparent youth. The agreed facts do not indicate any overt reluctance by a complainant. The offending behaviour was never repeated.
6. In those circumstances while serious, given the range of offending behaviour captured by s 66C(3), each offence falls well toward the bottom of the range of objective seriousness.

Subjective case for the Offender

1. Rush gave evidence to affirm his witness statement, Exhibit 1 - tab 1, was true and correct. He was not led further nor was he cross-examined. He accepted the agreed facts and his responsibility for the crimes committed. He expressed appropriate understanding and empathy for the complainants. He is "not proud" of what he did. He said that at the time he was reckless and too self-confident. As a more mature adult he now accepts he should have been concerned about the girls' welfare and the risk of hurt his acts might cause them as they were too young to make proper choices. In his statement he set out the impact on him of his arrest and a night in custody. He told me of his family background and the impact of his parents' divorce on him and his schooling and capacity to form friendships. His one close friend was Brian.
2. Since leaving High School he has been in constant employment. He has qualified as a mechanic and intends to secure further qualifications as a heavy vehicle and diesel mechanic, with ambitions to work in the mining industry. He is in a long term relationship and has participated in community and sporting activities.
3. A large number of family friends and work colleagues attended Bega court on both occasions to offer him their support. A large number of written testimonials were tendered. The authors were not required for cross-examination. His employer spoke of how valued he was. His current and a past girlfriend spoke of him being a respectful man who helped others. Other references spoke of his expressions of remorse for his crimes and the anxiety and depression the prolonged proceeding had caused him. They spoke of his community sporting activity with a local soccer team - uniformly he is regarded as honest and trustworthy. He has one drink driving conviction but putting that to one side, Rush presents as a young man of promise with no criminal inclinations or tendencies; a man who has and will continue to make a contribution to the community.
4. There was no repetition of his offending behaviour despite opportunities to do so and as some SMS messages tendered indicate there was some continuing contact with both complainants: Exhibit 1 tabs 4 & 5. There is nothing before me to indicate Rush will ever offend again or put members of the community at risk.
5. A report of Mr Facey Psychologist was put before me today: exhibit 3. The report indicates no significant static or dynamic risk factors indicative of possible re-offending. To the contrary - most factors in Rush's life indicate he is at little risk of re-offending. He has strong support from family and friends; he has people he can turn to. He is in a stable relationship and has work and accommodation. Apart from these court proceedings his life is relatively stress free. Counselling is available should he need it.

The Sentencing Assessment Report

1. At the conclusion of submissions on 24 October 2019, I indicated that, without predetermining all issues, I would be assisted by a Sentencing Assessment Report that could inform me as to whether adequate punishment by way of extensive community service could be imposed as part of a Community Corrections Order.
2. I now have the report of Ms Addlem Community Corrections Bateman's Bay, 10 December 2019. It confirms the history noted above and speaks of the insight Rush gained from hearing the Victim Impact Statements read to the court. A supervision plan can be put in place - that will first require referral and assessment by a senior Corrective Services Psychologist and then monitoring of subsequent treatment if required. Community service work is available to him.

Delay

1. Sentencing for a crime long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach: R v Todd [1982] 2 NSWLR 517, at 519: Mill v The Queen (1988) 166 CLR 59, at [14]. Delay in bringing a matter before the court in some cases may operate to the offender's advantage, for example by providing the offender the opportunity to establish a new life and demonstrate rehabilitation and thus make it less appropriate to punish the offender: AJB v R (2007) 169 A Crim R 32 at [29] - [3]; Wright v R [2008] NSWCCA 91, at [14].
2. All the evidence before the Court indicates that Rush has suffered significant anxiety and distress since his arrest. He has subsequently endured further anxiety as he waited to learn of his fate since the matter was adjourned from Bega so that a Sentencing Assessment Report could be prepared. Additionally, the rehabilitation that he has achieved will be adversely affected if a custodial sentence is now imposed. His employment is likely to be lost to him, and his relationships with others potentially damaged.

Youth

1. There is a general sentencing practice that lesser sentences can be imposed on youthful offenders than those imposed on adults who commit similar crimes. The principle underpinning the practice lies in the recognition of the immaturity of youth: DM v R [2005] NSW CCA 181; Hearne v R (2001) 124 A Crim R 451. Had the offender been brought before the court when he was 18 his youth would have meant that individualised treatment directed to his rehabilitation would have been regarded as more important than considerations of the general deterrence of others: R v GDP (1991) 53 A Crim R 112.

Rehabilitation

1. Three of the purposes for which a court may impose a sentence on an offender are to prevent crime by deterring the offender from committing similar offences, to protect the community from the offender and to promote the rehabilitation of the offender. Where an offender has demonstrated that all of these have been met the court can proceed with some confidence in extending such leniency as the law allows commensurate with the need to consider and apply other countervailing factors. As the joint judgment of the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465 at 148 noted: " … sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment . The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions."

Assessing victim harm

1. I have received and considered the Victim Impact Statements read to the Court on 11 October 2019.
2. Sarah told me that on the night she had been made to feel unrespected, unvalued and used. As a consequence she lost self-worth and self-respect. She told me how she has lost trust in men and is scared of being looked down on and judged.
3. Anne spoke of the negative changes in her approach to social, sporting and community events that followed the crime. She too is scared and has lost trust in men. She told the offender and the court of her struggles with worry, anxiety and depression. She finished however by recognising her pride in seeing this matter through and how as a consequence she is now a stronger person.
4. The Victim Impact Statements speak to the real, and all too common, impact such offences have on young women; women who want friendship, respect and age appropriate intimacy, not abuse. When young men think only of themselves and their sexual desires they show no respect for young women as equals. The law has a protective function one aim of which is to state clearly that young women are deserving of respect. Another is to recognise by appropriate punishment that the negative impact of their crimes on young women, who themselves are still maturing and developing their sense of self-worth, can be significant.
5. A court sentencing an offender must take into account all relevant considerations. The sentence imposed is only one indicator of the seriousness with which the court views the crime committed. This means a direct correlation between harm done and punishment inflicted is impossible. A complainant should never equate or measure the harm done to her with the punishment actually inflicted.

Victim Vindication

1. Each victim or survivor of a sexual crime committed against them is in need, or deserving, of such protection and vindication as the criminal law can provide. The need for such vindication is especially relevant when the offence was committed against a child.
2. There is also a need or obligation when sentencing to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of such offences. While I am confident that the offender has matured since 2012 and is unlikely to re-offend - a very lenient sentence may not be sufficient to deter others from committing such crimes.

Retribution

1. Retribution is a notion that reflects the community's expectation that an offender will suffer punishment and that particular offences will merit severe punishment: Ryan v The Queen (2001) 206 CLR 267. Sexual offences involving children fall into that category. Although it is important to note that a proper purpose of the criminal law is not to give effect to the irrational prejudices of ill-informed public opinion: R v Windle [2012] NSWCCA 222, at [46].
2. Retribution is a term often used interchangeably with deterrence. A proper sentence marks the Court's view of the seriousness of the crime, and should let other wrongdoers know the retribution which will fall upon them if they commit similar crimes: R v Herring (1956) 73 WN (NSW) 203, at 205

Other cases

1. I have had regard to statistics and the other cases to which I have been referred. An extensive list was provided by Mr Allan. The consistent application of principle must always be considered. The guidance offered by appellate courts and other decisions is always welcome. The pattern of past sentences for an offence may serve as a guide or help establish a range, however each case and each offender is individual: Hili v The Queen (2010) 242 CLR 520; Barbaro v The Queen (2014) 253 CLR 58, at [74]; The Queen v Pham [2015] HCA 39.

Submissions

1. Mr Allan, in exhaustive oral and written submissions, drew my attention first to the events themselves, which he submitted, while serious, were not of themselves so serious as to preclude non-custodial options. He noted; the absence of exploitation or abuse of trust, the neutral location where the acts occurred, that the offences were not planned, that no force, violence or threats were made; that there were no reports of physical injury, and that there was no repetition of the offending.
2. He asked that Rush be given full credit for the pleas of guilty and remorse including his early expression of regret, which he asked I find was genuine. He noted evidence from the offender, his family and friends of insight into his offending behaviour as a young and immature man. He contrasted Rush's behaviour and attitude six years ago when he was just out of High School with the mature responsible and rehabilitated man who stands for sentence.
3. Mr Allan notes, these were Rush's first offences and he was until they were committed of very good character. He submitted that taking into account all relevant matters and giving appropriate weight to the various and sometimes contradictory purposes of sentencing an option other than custody is available.
4. In a succinct response, Ms O'Reilly, Crown Prosecutor, picked up a remark I made when some references were tendered that these offences could have a deeply personal impact on their victims; impacts that may not be put on public display. She submitted that while regard had to be had to Rush's expressed remorse and rehabilitation, only full time imprisonment could adequately punish what she suggested were offences against two girls on the same evening by a trusted friend; offences falling "just below mid-range."

Non-custodial options

1. I must determine whether a custodial sentence should be imposed and if so the length of the sentence. No one should go to gaol unless the circumstances of the offence and the offender justify imprisonment. A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate: s 5 Crimes (Sentencing Procedure) Act 1999; Martin v R [2013] NSWCCA 24. I need to ask would a non-custodial option adequately punish the offender for the crimes committed against these two young women. In doing so I need to take care not to allow the subjective matters, powerful as they are, to obscure a proper evaluation of what the offender did and the nature of the offences he committed: R v Zamagias [2002] NSWCCA 17, at [34].
2. If a custodial sentence is to be imposed it cannot be served by Intensive Correction in the Community even though such a disposition may be appropriate and raise no community safety concerns: s 67 Crimes (Sentencing Procedure) Act 1999. The unavailability of an Intensive Corrections Order does not require any other option be more or less severe. If a custodial sentence is to be imposed it is accepted that a powerful case for a finding of special circumstances and a reduction in the time that must be served in custody can be allowed: s 44 Crimes (Sentencing Procedure) Act 1999. This portion of the sentence would not in all the circumstances need to be lengthy as it would be the fact of imprisonment that would be of significance in punishing the offender and denouncing his conduct: R v Moon (2000) 117 A Crim R 497, at [81].
3. A court in determining whether there is an alternative to full time custody cannot lose sight of the fact that the more lenient the alternative the less likely it is to fulfil all the purposes of punishment - in such cases a judge must harden their heart and inflict retributive punishment.
4. However, sentences are ultimately about community protection. Where alternatives to gaol exist they must be considered. Gaol can break bonds with pro-social members of the community. It can impact on subsequent employment. It should only be imposed if other options could not meet the purposes of punishment. In Blackman & Walters v R [2001] NSW CCA 121, Wood CJ at CL referred, with approval, to the following passage from the judgement of King CJ in Yardley v Betts (1979) 22 SASR 108 at 112-113:
5. "The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits. If a sentence has the effect of turning an offender towards a criminal way of life, the protection of the community is to that extent impaired. If the sentence induces or assists an order to avoid offending in future, the protection of the community is to that extent enhanced. To say that the criminal law exists for the protection of the community is not to say that severity is to be regarded as the sentencing norm..."

Synthesis

1. Where there are competing sentencing factors that must be taken into account there is no correct balance: Veen v The Queen No 2 at [478]. While I must have proper regard to the purposes of sentencing I do not simply average out such considerations: one factor can be determinative. As the High Court said in Weininger v The Queen (2003) 211 CLR 629, joint judgement, at [23]. "Sentencing is … a synthesis of competing features which attempts to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment usually expressed in time or money":
2. Here real emphasis must be given to the offender's rehabilitation. His crimes were serious and had serious consequences, but they were committed by an immature young adult, whose behaviour was therefore not as morally reprehensible as it would have been had he committed the offences as a mature adult. It appears his offending was limited to this one night. He committed offences against two young women, still at law children. He hurt two young women. That hurt continues. He must be punished for what he did but sending him to gaol in 2019, for an offence committed in 2012 when he 18 years old, is not the answer in this case. A better resolution is an order that he perform a substantial amount of community service

Orders

1. Count 1: You are convicted. You are ordered to comply with a community correction order. The term of the order is 2 years 6 months. Additional condition that you perform community service work for 125 hours. Supervision by Community Corrections for as long as required.
2. Count 2: You are convicted. You are ordered to comply with a community correction order. The term of the order is 3 years. Additional condition that you perform community service work for 175 hours. Supervision by Community Corrections for as long as required.
3. Form 1 taken into account. 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: 07 January 2020