R v Sanchez

District Court of NSW|2021-08-17

Solicitors: Ms Vye, ODPP File Number(s): 2020/00275068

Judgment

The offender was born on 8 September 1960 in Santiago, Chile. He is now 61 years of age.

MAXIMUM PENALTIES

At the time of commission of the offences the relevant provisions of the Crimes Act 1900 (NSW) provided: s61E(1A) - Any person who assaults another person who: (a) is under the age of 16 years, and (b) is (whether generally or at the time of the assault only) under the authority of the person, and, at the time of, or immediately before or after, the assault, commits an act of indecency upon or in the presence of the other person, shall be liable to penal servitude of 6 years. There was no Standard Non-Parole Period applicable. S61M (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. There was no Standard Non-Parole Period applicable.

DISCOUNT FOR PLEA

It is common ground that the offender participated in an electronically recorded interview with police when arrested on 22 September 2020; that he was committed on 19 May 2021 having entered pleas of guilty to all offences at the earliest available opportunity, and is entitled to a discount of 25% for the utilitarian value of his pleas. I agree that discount is in accordance with the principles set out in R v Thompson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309.

FACTS

FV was born on 31 May 1984 and was aged between 5 and 6 years at the time of the Sequence 3, 4 and 5 offending. The offender was then approaching his 30th birthday and the age difference between FV and the offender was approximately 24 years. The offender is FV's uncle.
It is agreed that the offender "got [FV] to touch his penis" on the occasions of the Sequence 3 and 4 offending but his manner of doing so captured in the word "got" is not described in detail in the facts. This is not unexpected given the age of FV at the time of the offending. Given the age difference, the use of the word "got" implies beyond reasonable doubt control and causation on the part of the offender without violence, intimidation or threat.
All offences involving FV were committed whilst she was within her family home at Fairfield, Sydney.
Sequence 3: When the offender and FV were watching television, FV put her hand into the offender's pants and touched his penis. The offender exposed his penis. He experienced erection of his penis.
Whereas in written and oral submissions the Crown put that the offender placed FV's hand on his penis; as above observed, the facts described his causing her hand to contact his penis when inside his pants but not the mechanism of his having done so.
Sequence 4: On an occasion separate to that of Sequence 3, when in the dining room, the offender exposed his penis and FV touched it. He experienced erection of his penis. As for Sequence 3 it is not necessary to consider the mechanism by which he "got" FV to touch his penis.
Form 1-Sequence 5 (attaching to Sequence 4 offending): On a third occasion and on the laundry steps, the offender exposed his penis and asked FV to touch it, which she did. The offender experienced erection of his penis.
It is agreed that the offending in each of Sequences 3, 4 and 5 was of short duration.
SV was born on 4 February 1991 and was aged between 9 and 10 years at the time of the offending. The parties jointly approached the age difference between SV and the offender as of approximately 30 years at the time of the offending. On that basis, and consistent with the Agreed Facts, the offender was approximately 39 to 40 years of age. The offender is SV's uncle.
Sequence 7: On the occasion of this offence, when SV was nine years of age, the offender was playing a wrestling game with his son in the living room of SV's home. She joined in the game. The offender touched SV's vagina through her clothing with his fingers for about a minute. He did not penetrate her. There was no skin to skin contact. The offender experienced erection of his penis. The families of SV and the offender returned home and the offender left the house.
Sequence 9: Between 1994 and 2002 SV would visit the offender's home for sleepovers. The offender lived in a two-bedroom apartment with his wife and their son. SV would stay in the son's single bed with him. They would sleep head-to-toe. When SV was lying on the offender's son's single bed in his bedroom, on her left side facing the wall, the offender lay behind her in a "spooning position". The offender rubbed SV's chest and nipples and pushed his pelvis and genitals into her bottom as he rubbed up on her. The offender experienced erection of his penis. The offender pushed his penis in between the cheeks of SV's bottom. The offender ejaculated. SV felt that her pyjamas and the bed were wet. There was no skin to skin contact. The offender left and went to the bathroom.
SV did not tell anybody because she did not want to be blamed for the wet bed.
It is agreed that each of the Sequence 7 and 9 offending was of short duration.
While on holiday in Fiji in mid to late 2002, SV's mother asked if SV would tell her if she had been touched or abused. SV did not want to upset her mother so said that of course she would tell her. SV considered telling her family about what the offender had done, however her grandfather was unwell and she did not want him to suffer during the last weeks of his life. In October 2002, SV told her mother that when she was younger the offender used to touch her inappropriately.

OFFENDER ADMISSIONS

Towards the end of 2002, the offender's wife noticed that her sister, the mother of SV, had become aggressive toward her. When his wife mentioned this, the offender told her "I did something to [SV]". When his wife asked what it was, "did you touch her?" The offender and said "yes". In response to his wife's further questions, the offender said that it had occurred a long time ago and he said that something had happened with FV as well. He said that his sister had witnessed something and had kicked him out of the house.
On 28 April 2020, SV attended Cabramatta Police Station and provided police with a statement. On 16 September 2020, FV attended Cabramatta Police Station and provided police with a statement.
On 22 September 2020 the offender was arrested and participated in an electronically recorded interview at Fairfield Police Station during which he made admissions to the above offences as follows: In relation to FV and Sequences 3, 4 and 5:

he denied that FV touched his penis but admitted that he exposed himself;
he became aroused at the time "just thinking… about it with the little girl";
he was a little bit scared to do anything with her. But he never did anything to her; and
after the incidents he was asked to leave the house by his sister who asked him what he was doing to her daughter.

In relation to SV and Sequences 7 and 9:

he told his wife what had happened 2 or 3 months after he assaulted SV but his wife did not want to know anything; and
his wife tried to contact SV to apologise to her for what the offender did to her.

The offender told police that he was not sure when his feelings towards children began.

OBJECTIVE SERIOUSNESS

The Crown submits that the objective seriousness for each offence falls into the mid-range. The Defence submits that the Sequence 3, 4, 5 and 7 offending falls into the low range and that the Sequence 9 offending falls into the mid-range. Whilst the assessment of objective seriousness for each of the offences must be considered separately; there are considerations in common. They are:

The offending took place over a period in excess of a decade and involved 2 victims;
The offender exploited the innocence and vulnerability of the child victims (inherent to these types of offending) and the advantage of familial access and influence of his age;
The offending occurred without threats, intimidation or violence; and
The offending involved premeditated planning to the extent of taking advantage of his very young nieces when alone with them to opportunistically engage in the offending for personal, sexual gratification.

In relation to FV, that the offending occurred in her home, where she was entitled to safety and security, aggravates the objective seriousness of Sequences 3, 4 and the Form 1 matter Sequence 5. Each incident involved skin to skin touching of short duration. FV was not caused to engage in physical action such as rubbing or stroking. FV was exposed to his erect penis but was not exposed to ejaculation.
FV was in the more youthful range of age of victims for the offences which aggravates the objective seriousness of the offending.
In my opinion, the objective seriousness of offending in each of Sequences 3, 4 and in the Sequence 5 matter, falls into the low range of the spectrum of offending of this type. The seriousness of the Sequence 3 offending is to some degree greater than for each of the Sequence 4 and 5 events because the offender caused FV's hand to go inside his pants to bring it within contact with his penis; whereas, for the Sequence 4 offence and the Sequence 5 Form 1 matter, he caused FV to touch his already exposed penis.
In my opinion, the objective seriousness of the Form 1-Sequence 5 conduct, to be taken into account when sentencing for the Sequence 4 offence, is of equal objective seriousness to the Sequence 4 offending.
In relation to SV, I reject the Crown's argument that the objective seriousness of the Sequence 7 offending is aggravated on the basis that the offender abused his position of trust. That he took advantage of his familial position as her uncle in his gaining access to her, as already mentioned, is a serious element of the offending; however, he did not breach a position of trust within the meaning of s 21A(2)(k) Crimes (Sentencing Procedure) Act 1999 (NSW) ('CSP Act') because the facts do not describe that SV had been left in his charge. The fact that the offender left when his family and the family of SV returned home, does not beyond reasonable doubt exclude the presence of others being within the apartment. In those circumstances, the statutory provision is not engaged: Henderson v R [2016] NSWCCA 8 at [53] to [57].
Whereas the Crown submits that offending in each of Sequences 7 and 9 is aggravated by the fact that the offences were committed in the presence of a child under the age of 18 years, being the offender's son (s 21A(2)(ea) CSP Act); the Defence counters that the agreed facts do not establish beyond reasonable doubt that the offender's son was present at the time of the offending (t22.25), I determine:

In relation to Sequence 9: I cannot be satisfied beyond reasonable doubt that the offender's son was present on the single bed, which he usually shared head to toe with SV, whilst the adult offender was also on that bed in the action of rubbing his penis between SV's buttocks and ejaculating and making the bed wet, in the absence of the agreed facts so specifically stating that the son was present; and
In relation to Sequence 7; I am not satisfied beyond reasonable doubt of the presence of the offender's son at the time he touched SV's vagina through her clothing for about a minute, in the absence of that fact being specifically agreed. The facts only go so far as to establish that at some point in time SV joined in the wrestling game in which the offender and his son were playing.

In each of the Sequence 7 and 9 offending, there was no skin to skin contact as there was for Sequences 3 to 5.
The Sequence 7 offending involved the offender touching SV's vagina. It occurred in her home where she was entitled to security and safety. Whilst physically placing his fingers on SV's genitalia for one minute is, in my opinion, more serious offending than such as for Sequences 4 and 5 where there was mere touching of his penis by FV; nevertheless, it falls into the low range of the spectrum of offending of this type.
The Sequence 9 offending is, in my opinion, the most serious. The sexual act of rubbing his penis between the buttocks of SV to ejaculation, was an act of greater sexual engagement than any of the other offending. In my opinion, it falls within the mid-range of the spectrum of offending of this type.
The sequence 7 and 9 offending occurred when SV was aged nine years and therefore at the more mature end of the spectrum of age of victim for the offence. In my opinion, that fact has some significance given the statutory goalpost's of the cascading punishments according to categories of offence according to age of victim.

SUBJECTIVE MATTERS

The offending against the two victims spanned more than a decade between approximately 1990 and 2002. The offender married in 1993 but did separate from his wife in 1996 due to her infidelity. He experienced resulting depression for about 1 year. He ultimately separated from his wife in 2018. Accordingly, he married a few years after indecently assaulting FV and a year or so before his first indecent assault of SV. The offender told Mr Schreiner, clinical and forensic psychologist, whose report dated 2 July 2021 was obtained by his solicitors; that the marriage was difficult from the start. He has a son and a daughter, aged in their 20s, from that marriage.
Corrective Services NSW psychologist, Ms Petrovski whose Sentencing Assessment Report is dated 9 August 2021, commented that potential acute dynamic risk factors for the offending include: emotional collapse, stress from having moved to Australia in 1987, his father passing away, his mother being unwell and that he was having martial relationship problems.
Mr Schreiner observed that diagnosing mental health difficulties retrospectively is extremely difficult and often unreliable and that psychometric testing did not permit making inferences regarding the offender's mental state at the time of his offending behaviour. Mr Schreiner found that on psychometric testing performed in 2021, that the offender achieved normal scores in all categories including depression, anxiety, personality and emotional functioning. At paragraph 4.3.1 Mr Schreiner concluded: "The overall assessment revealed no symptoms that would suggest the presence of a diagnosable psychological disorder. No pre-existing personality disorder was identified." Mr Schreiner observed that no psychological or personality factors were identified that would explain his behaviour.
Defence Counsel conceded the ultimate observation by Mr Schreiner that the offending "was impulsive and mostly out of character"; was based merely on the history of no other offending, the absence of offending for 20 years and that in all reported respects, the offender is otherwise a person of normal psychology, emotional structure and law abiding within the community.
The offender had the benefit of a normal emotional upbringing in Santiago. He has five brothers and six sisters. Two of his sisters live in Sydney. Albeit the family home was crowded and on occasion his father's income was unable to provide adequately for food; he suffered no difficulty at home. He was educated from Year 3 in a class which had boys ranging from age 8 to 15 years. He told Mr Schreiner of physical and emotional abuse of the younger boys which included sexual abuse, of which he was aware, but which he did not experience. He completed the equivalent of Year 12 education in Chile and qualified as an electrician. He also learnt carpentry from his brother who was a builder. He worked as an electrician in Chile for 9 years before emigrating to Australia. In Australia he has worked as a carpenter.
In my opinion, significant observations from the reports of Mr Schreiner, and Ms Petrovski are:

The offender is able to recall all of the events of the offending: Schreiner paragraph 2.1.4.
The offender denied sexual interest in children and minors: both reports.
The offender could not offer a rational explanation for his offending behaviour: Mr Schreiner paragraph 4.4.2.
The offender minimised the seriousness of some of his offences, asserting that FV would "ask" to see his penis: Petrovski page 2.
The offender shifted responsibility for the offences onto the victims, indicating that they initiated contact: Petrovski page 2.
The offender demonstrated minimal insight to his offending: Petrovski page 3.
The offender indicated that there was no significant impact on the victims, as they were able to complete high school and university: Petrovski page 3.

The offender's risk of recidivism has been assessed as follows:

In the SAR report at page 3: very low.
On LSI-R actuarial assessment: medium to low (SAR page 4).
By a Corrective Services NSW psychologist independent of Ms Petrovski: very low: Report 9 August 2021 attached to SAR, page 2.
By Mr Schreiner: minimal to low at paragraph 4.5.2.

A factor moderating the assessed risk of reoffending is that the offender is older than 60: CNSW psychologist report at page 1. Indeed, the low risk of recidivism assessed means that the offender does not qualify for specialist sexual offender courses during incarceration and parole.
Prior to the offender giving oral evidence FV and SV read their Witness Impact Statements. FV said that prior to her discovering that the offender had also indecently assaulted SV, she had convinced herself that she would keep the indecent assault upon her hidden until she died, believing that it was the right thing to do as she embraced family life. In what appeared to me to be a very balanced observation, she said that she had never forgotten and that the memories had plagued her for 30 years. She said; "You took my innocence! My childhood! I was changed." SV recounted her difficult psychological path in life albeit she has achieved substantial professional success. She spoke of feeling rage, shame and despair at the idea that family had failed to protect her. She has a heartfelt belief that the indecent assaults inflicted upon her a damaged psyche and are responsible for her requiring the long term assistance of psychiatrists, psychologists and psychotherapists. She has self-harmed. In 2015, she tried to take her life when she was 24.
There is no expert opinion evidence opining that the indecent assaults inflicted upon FV and SV by the offender caused identified psychological injury. I am not satisfied beyond reasonable doubt that it has. That observation does not diminish the legitimacy of personal belief held by them of damage caused. I accept the Crown submission that the Witness Impact Statements are consistent with the extent of the emotional harm which in the experience of Courts, is accepted as occurring in the course of such offending: t10.10.
During oral evidence the offender said that a long time ago he understood that he had been forgiven, but not now (t13.45); that he tried to apologise to SV but did not say that he had managed to do so (t14.13): He frankly stated that it was his choice to offend and that he has come to be very sorry for what he did (t14.20-36). In chief he said that upon release: "I try to restart my life and seek help, I made a mistake I need help to fix this problem, you know. Because 20 year I didn't do anything wrong since [SV] episode." (t14.40)
In cross-examination the offender was challenged on the quality of his claims of remorse. When it was put that he speaks of his apology now but did not do so when had the opportunity during the SAR interview; the offender repeated that he tried to apologise to SV many times but "is I couldn't, couldn't do it." (t16.25).
I observe that whilst the Agreed Facts include that, when asked by his wife in 2002, the offender said that he had done "something" with FV as well; there is no statement by him to Ms Petrovski, Mr Schreiner, or in the transcript, of his attempting to apologise to FV.
The offender is willing to engage in therapy and education directed against his reoffending; however, the expert reports do not identify any emotional or psychological problem requiring fixing. The Defence submitted that he has rehabilitated himself, as evidenced by his not offending over the last 2 decades.

DISCRENMENT

On the whole of the evidence, whilst there was some degree of emotional turmoil due to the offender's marriage difficulties, there was no cognitive deficit, mental health condition or other external factor informing his repeated offending, involving two nieces, over a period spanning more than a decade. I am satisfied beyond reasonable doubt that unmoderated criminal culpability should be assessed for the offending. I am satisfied beyond reasonable doubt that the offender chose to engage in each of the indecent assaults with the children victims purely for personal sexual gratification, exploiting their vulnerability of age and his relationship as their uncle permitted. The offender does not argue that he did not know that it was wrong. To the contrary, particularly with regard to SV, he says that he thought to apologise but could not bring himself to do so. In relation to FV, the offender disclosed to his wife that he had done "something" to her.
Pursuant to section 25AA(3) CSP Act, the appropriate sentence must be in accordance with present sentencing patterns and practices, not those at the time of the offending. When sentencing an offender for these offences, the Court must have regard to the trauma of sexual abuse on children as understood today: R v Cattell [2019] NSWCCA 297 at [108]-[111] and [121]-[125]. In response to the Court's request, the parties have provided basic JIRS statistic based graphs of current sentencing patterns. In addition Henderson v R [2016] NSWCCA 8 and Cattell supra and other case law were considered.
Nothing said by the offender in his oral evidence dissuades me from being satisfied beyond reasonable doubt that he is, as described in the SAR, of the belief that the victims have not suffered significant impact from his offending.
The offender presents as a person who apologises and claims to be remorseful now that he is experiencing incarceration for his offending. His claim of remorse is significantly diminished by his attempts to shift responsibility for his offending onto the victims, indicating that they initiated contact, and by his failure to display insight to the harm he caused them and lack of empathy for them. I find the harm suffered by each of the victims, to be not less than serious emotional harm which in the experience of the Court is understood to occur from such offences.
The offender submits that his good character but for the offending is a mitigating consideration (section 21A(3)(f) CSP Act). The fact that he has not previously been convicted of a criminal offence in Chile or Australia is not challenged. That he has maintained employment and been an adequate father is not challenged. The testimonial evidence adds little. The Crown on the other hand submits that the offender's good character and lack of previous convictions is not of mitigating effect because the Court would be satisfied that his good character was of assistance in the commission of his offending (section 21A(5A) CSP Act).
That his familiar relationship as uncle assisted his access to FV and SV, is not the same thing as good standing within the community assisting in his commission of the offending: AH v R [2015] NSWCCA 51 at [21] to [24]. His repeat offending with each of the victims and over a period spanning more than a decade, deprives the offender of his claim of good character, within the meaning of the sub-sub section and generally of a claim for leniency that might otherwise be available had the offending been spontaneous and only involved an isolated incident: AH v R supra at [23] and [24].
I am not guided by Mr Schreiner's comment that the offending was out of character. In circumstances where Mr Schreiner was unable to identify any feature of the offender's psychological or emotional make up informing the offending, and that he found the offender's emotional and psychological structure to be normal; that opinion was not based on specialist knowledge. The Defence does not argue to the contrary. The offender's choice to commit the offence on each occasion was planned to the extent that he was taking advantage of the opportunity of being the victims' uncle, the age gap and the vulnerability of children of such young age.
I am satisfied that having considered all possible alternatives, no penalty other than imprisonment is appropriate: Section 5(1) CSP Act. The parties do not submit otherwise.
The offender is entitled to consideration of the hardship according to the special circumstances of this being his first incarceration and of the COVID pandemic conditions for prisoners.
Whilst the offending involved FV and SV in acts of indecent assault which varied in character and were separated by a period of several years; in my opinion, it is appropriate to impose an aggregate sentence of imprisonment with respect to all offences, instead of imposing a separate sentence of imprisonment for each. This is particularly because the modus operandi of accessing his young nieces by exploiting their vulnerability of age and his advantage of age and familial relationship, in order to indecently assault them, was present across all of the offending. By imposing an aggregate sentence the totality of the offender's overall criminality in accordance with present sentencing patterns can be best addressed.
In my opinion, condign punishment must contemplate that there is no rational basis offered by the offender for his egregiously assaulting his nieces. As an otherwise law abiding person, unaffected by deprivation of upbringing or disfunction of reasoning, emotion, personality or cognition, he simply chose to so act. That the offender was experiencing some difficulties within his marriage; in the absence of expert psychologist opinion that that circumstance likely informed the offending in some way; in my opinion, is not of significance. It does not moderate adequacy of punishment for the offending or the importance of general deterrence and specific deterrence in the synthesis of appropriate sentence. The appropriate sentence must denounce the offender's conduct and recognise the harm done to the victims and the community. The appropriate sentence must make the offender accountable for his actions.
He having not offended for approximately two decades and having selected the opportunity of abusing his familial relationship with his young nieces rather than offending with children in the community generally; provides for no adjustment of the ratio of non-parole period to balance term for the purposes of achieving rehabilitation. Specifically, Community Corrective Services psychologist Ms Petrovski, in the SAR commented that due to the offender's risk of recidivism being low, he is not eligible for either custodial or community-sex offender programs. Whilst Mr Schreiner stated that the offender would benefit from continued counselling whilst incarcerated, his report does not identify a need for counselling related to rehabilitation purposed toward the protection of the community. Mr Schreiner was speaking of counselling to deal with the offender's fluctuating emotional well-being, whilst incarcerated.
Ultimately, in my opinion, there are no significant moderating considerations in the instinctive synthesis of sentencing. As already acknowledged, the offender is entitled to a 25% discount on account of his entering pleas of guilty at the earliest available opportunity.
The offender has remained in custody since his arrest on the 22nd of September 2020, a total of 1 year and 2 days. In my opinion, appropriate indicative sentences are as follows: Offence Maximum Penalty Indicative Sentence after 25% Discount for Plea First Victim Sequence 3 Section 61E(1A) 6 years imprisonment 2 years imprisonment Sequence 4 Section 61E(1A) taking into account Sequence 5 Section 61E(1A) Form 1 6 years imprisonment 3 years imprisonment Second Victim Sequence 7 Section 61M(2) 10 years imprisonment 2 years and 3 months imprisonment Sequence 9 Section 61M(2) 10 years imprisonment 3 years and 3 months imprisonment

In my opinion, pursuant to section 53A the appropriate aggregate sentence in accordance with s 25AA(3), is imprisonment with a non-parole period of 2 years and 9 months, commencing 22 September 2020 and expiring 21 June 2023, with a balance term of 11 months expiring 21 May 2024.

ORders

I make the following Orders: 1. The offender is convicted of each offence. 2. The offender is sentenced to a term of imprisonment comprising a non-parole period of 2 years and 9 months; with a total term of 3 years and 8 months 3. The sentence commences on 22 September 2020 and expires on 21 May 2024. 4. The non-parole period expires on 21 June 2023. 5. The offender is eligible for consideration of release on parole on 21 June 2023. 6. I direct the offender accept the supervision and guidance of the Community Corrective Services and obey all reasonable directions of that Service.

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: 22 October 2021

Criminal (Sentencing Procedure) Act 1999(NSW)ss 5(1), 21A(2)(ea), 21A(2)(k), 21A(3)(f), 21A(5A), 25AA(3)

Crimes Act 1900(NSW)ss 61E(1A), 61M(2)

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