R v Seizov

Facts for sentence

1. There are agreed facts before the Court, I will not set all of the details out but I will summarise them and of course take them into account.
2. On New Year's Eve 2015, the end of Year 12, a group of friends met in the Southern Highlands for a party, a number of the guests were sleeping over. There is nothing unusual about that. I was a teenager once and slept over at parties, I am sure most of the Court have. Again, it is not unusual for young people to drink, and at that age probably drink too much, and no criticism is made against any person for having a drink on New Year's Eve.
3. During the party Ms David was approached and declined a kiss from the offender. She politely said, "No thanks." She and her friend, Ms Jones, found a spare room to sleep in. Ms David was on the bed; Ms Jones was on a sleeping bag on the floor. They heard someone come in to the room. It was in fact the offender. He stayed on the floor between them. Ms Jones could feel someone rubbing against her but she paid it no particular regard at that stage.
4. Ms David was woken and she too noticed someone was on the floor, she went back to sleep. A short time later the offender lay behind her, he pulled her jeans and underpants down around her knees and put his arms around her waist and began kissing her cheek: Sequence 1.
5. The offender then put his hands on her hip and began thrusting her from behind. He was breathing heavily. She woke and she pushed him away and left the room. She looked down and saw that he was naked from the waist down and she could see his erect penis.
6. After Ms David had left the bedroom Ms Jones felt the offender rubbing her thigh. He got up and laid next to her. She froze; she did not know what to do. She pretended to be asleep. The offender rubbed her buttocks over her shorts and kissed her neck, face and mouth: Sequence 3. He then pulled her shorts down and inserted a finger into her anus: Sequence 4. He did this for a short period before removing it and then placed his finger in her vagina: Sequence 5. He then took her hand and pulled it down into his underwear and made her rub her hand on his penis: Sequence 6. Entirely understandably she was in shock and frozen.
7. The offender then climbed on top of Ms Jones, pushed her leg to the side, rubbed his penis on her vagina and then inserted his penis into her vagina. She felt pain as it went in, she pushed him off, "What are you doing?" she said. The offender said, "Sorry, sorry, don't tell" [her boyfriend], who he named.
8. The offender pulled his pants up and left. Ms Jones complained to Ms David. The offender also apologised. Other friends took him from the party. He confessed to one of his friends that he had done the wrong thing by Ms Jones.
9. No action was taken by anyone at that stage, there is no criticism of them. Young people often do not know what to do when confronted with such a situation. There, perhaps the situation may have ended, but for what occurred on 31 December the following year at another New Year's Party. That night a similar group of friends and the offender were present, so too was a young woman, Ms Myer. She spoke to the offender in a friendly manner. The offender, I am prepared to accept from his evidence today, was responsible for finding places for everyone at the party to sleep. It turned out that he and Ms Myer were the last two without a bed and there was only one left. They shared the bed. The offender put his arm over Ms Myer and said, "Is this okay?" She appropriately said, "Yes but don't take it further." The offender acknowledged that request.
10. Despite the incident the previous year, despite his expressions of remorse, despite the fact that I accept he said to himself that this could not and would not happen again, he took advantage of the sleeping or the tired Ms Myer. He rubbed his hand over her body brushing her buttocks, legs and vaginal area over her clothing. This occurred for some time and it occurred a number of times throughout the night. She would wake to find him rubbing her, she was very uncomfortable, understandably.
11. There was a perfunctory apology sent by a Facebook message the following day from the offender: Sequence 8. Complaints were made.
12. To the credit of each of the complainants they came forward and spoke to police. The offender was arrested on 12 June 2018. He made admissions in relation to the assaults on Ms David and in relation to Ms Jones. He said he could not remember what had occurred. In relation to Ms Myer he told police he knew what he was doing but was unable to stop himself. He told me in evidence that he has had time to reflect upon that and he still cannot explain, even to himself, why he offended against Ms Myer knowing everything he did and the harm that he had occasioned to Ms David and to Ms Jones.
13. Again to his credit, which is a reflection of the man and his family, he accepted his guilt in relation to all of the matters. He indicated his guilt in the Local Court and the matter has proceeded as expeditiously as possible to sentence today.

OBJECTIVE SERIOUSNESS

1. I have to consider the entirety of the facts and circumstances in relation to each offence and as the Crown submit, each incident. So far as sexual intercourse is concerned there is no strict hierarchy of offending. Different forms of sexual penetration can have different impacts on particular on complainants. Here, each of the incidents of sexual intercourse violated the physical integrity of Ms Jones. She did not welcome what occurred. She was vulnerable because she had trust in everyone at the party. She had not invited what had occurred, she had been drinking but she is not to be criticised for that. She was, if not asleep, very tired, when it began. She was not in a position to do much to prevent what had occurred. She was penetrated on three occasions. I accept that the offences were opportunistic and there appears to be no apparent planning. The episodes of penetration were brief. It is submitted by Ms Davenport, Senior Counsel, who appears for the offender that no force was used. That is true but it is also true that the offender took advantage of a tired, sleeping, intoxicated young woman who was not expecting what had occurred.
2. So far as the indecent assaults are concerned, each of them were serious, each of them was unwanted and each of them took advantage of the young woman concerned. Again, each young woman was entitled to proper respect for their physical integrity. It is for women to consent to being touched or engage in sexual intercourse. To pursue sexual contact which is not consented to is a serious crime and it is acknowledged in each case here that so serious are these matters that custodial sentences must be imposed.
3. The sexual intercourse offences carry with them standard non‑parole periods. It is common to assess matters such as this by reference to some abstract middle range offence. The Court of Criminal Appeal in Tepania v R [2018] NSWCCA 247, said, "A process of comparing and contrasting offence with the abstract one is not necessary". Nor is it necessary to identify features of the offence which were or were not taken into account when considering the role of the standard non‑parole period. Nevertheless, the Court has to have proper regard to the objective seriousness of what was done and have proper regard to the standard non‑parole period. There are reasons here for a variation, and a significant variation, from that standard non‑parole period. First, is my assessment of the objective seriousness of each individual offence for sentence. Judges have to make a harsh and sometimes mechanical comparison between horrors and judges of this Court have to deal with sexual intercourse offences which are significantly more serious in terms of their duration, use of force, physical harm than the matters presently before the Court, including regrettably those committed by a man that I had to sentence this morning.
4. The offences fall towards the bottom of what is a range of serious offending. That conclusion is not intended to diminish in any way the seriousness of the crime. Further there were early pleas of guilty, cooperation with authorities, acceptance of responsibility, expressions of remorse. There are subjective matters to be considered. There is the need to accumulate the sentences, impose appropriate sentences for each offence, to allow for the relativity between the objective circumstances of each offence and the need to give effect to a finding of special circumstances. These are all reasons to vary the standard non‑parole periods that apply.
5. There are matters so far as the sequence 4 is concerned, that I will take into account on the Form 1. I do not sentence for the matters on the Form 1 but they do here operate to increase the sentence that would otherwise be appropriate for that offence. I do so having regard to the guidance of the Court of Criminal Appeal in the guideline judgment from 2002. They require greater emphasis to personal deterrence and frankly retribution for sentence. I take the matters into account as part of my synthesis of all relevant material, a process that was explained by McHugh J in Markarian v The Queen (2005) 228 CLR 357.
6. I have to sentence for three distinct offences on three victims. I am required to impose an appropriate sentence for each offence and to structure the sentences such that the overall sentence is just and appropriate to the totality of Seizov's offending: Mill v The Queen (1988) 166 CLR 59. There must be some accumulation of penalty. Public confidence in the administration of justice requires sentencing Courts avoid any suggestion of a discount for multiple offending. This is particularly so where there are discrete episodes of offending and discrete victims.
7. Turning now to Seizov's case. He gave evidence and he made a personal apology to the complainants. One Victim Impact Statement is before the Court and I have had regard to it. The absence of a Victim Impact Statement from other complainants does not mitigate the sentence. It is entirely understandable that complainants would want to not voice in Court the impact of such offences. A Court sentences with proper reference to the maximum penalty and the standard non‑parole period on the basis that any such unwanted interference with physical integrity will have lasting psychological consequences. They were alluded to in the victim impact statement that is presently before the Court and I can presume there were similar consequences for the other young victims.
8. The term Victim Impact Statement is used, as I have said today and in other matters this week, I would prefer it if the Parliament had called them Survivor Impact Statements. It would have, I think, a greater impact because the Courts recognise that there was a serious crime committed against the complainants and they have survived this incident. They are to be commended for coming forward because their actions have led not just to the punishment of Seizov but to what I suspect will be a significant change in his own attitude and behaviour.
9. The subjective material before the Court is set out in the lengthy documents, references and reports. There is a report of a respected psychologist, Mr O'Dea. Its contents were affirmed by the offender in evidence today. The version of events that he put forward does not contradict in any way that of the young complainants. So far as the first party is concerned, I am prepared to accept that he was himself intoxicated by alcohol and was too young or too immature to cope with that state of intoxication but Parliament on behalf of the community have made it absolutely clear self-induced intoxication is not of itself a matter of mitigation: s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999. It is a matter however that I can take into account when I come to appreciate the man for sentence and formulate an appropriate sentence that allows for response to that problem. I am prepared to accept from his evidence today he realises the consequences of the abuse of alcohol, not just for himself, but for others.
10. Mr O'Dea sets out his personal history. He is now 21, on arrest he was studying and living in shared accommodation in Wollongong. He was in the third year of a University Degree. He has no other criminal history other than the matters presently before the Court. He was born in New Zealand to a loving and caring family. His family were significantly impacted by the Christchurch earthquake and moved to Australia soon after. They lived in the Southern Highlands where the offender attended a local high school and did well.
11. There is nothing in his background that can explain what occurred. I have a number of references from his mother, his uncle and his sister. The references speak of a young man who had all the advantages his family could give him. They speak of a young man about whom an allegation such as this makes no sense. His mother spoke of the pain that the family is experiencing. She shows appropriate recognition for the pain felt by each of the complainants and their families.
12. One of the best indicators of whether a person can turn their life around after a period in gaol is strong pro‑social supports from family and friends. There is abundant evidence that despite the crimes he has committed, or perhaps because of them, his family have rallied round to make sure that he will be supported. They will do what they can to prevent any repetition of this offending.
13. So far as Mr O'Dea is concerned, he finds no deep seated psychological problem with Seizov. He says that treatment programs in the community would be advised. Seizov does not appear to be a candidate for the sort of intensive programs often required for sex offenders before release but he will require assistance and assistance from experienced community forensic psychiatrists or psychologists in dealing with what are blatantly obvious problems dealing with his sexual behaviour and sexual dysregulation. He will need help in improving his social skills and relationship skills.
14. Dr O'Dea frankly says the offences can best be understood as opportunistic and coercive. It is an unfortunate fact the potential for re‑offending is present. Any help that the offender can be given to equip him for the future will be both in his and the community's interest.
15. Mitigating factors, and there are many here, can go only so far. As Mr Coulton points out in his short, succinct submissions, the offences here and the number of complainants requires proper regard to the purpose of sentencing, not just personal deterrence of the offender but what is commonly regarded as general deterrence. The need for signals to the community that such behaviour cannot and will not be tolerated. It is tragic that that signal is commonly sent but not regarded.
16. Proper recognition will be given for the plea of guilty by a reduction of 25% of the otherwise appropriate penalties. I will take care not to erode the benefit given for the early pleas by the process of accumulation.
17. I am indebted as always to Ms Davenport for her comprehensive and fair submissions. I hope this judgment does justice to them and to what was said by Mr Coulton. I have considered them in coming to my determination.
18. Ms Davenport's submissions draws attention to consequences facing the offender, a young vulnerable man in custody. Her submission is accepted. She says he is a young man who is yet to fulfil his potential who still has a capacity to meaningly contribute. His evidence today bears that out, but appropriately he also acknowledged that what he did requires punishment and that he will accept that punishment.
19. I have had regard to the Judicial Commission's Statistics that were put before me. I have also had regard to sentences imposed by this Court and importantly the guidance offered by appellant Courts. They are always welcome. A number of cases were summarised, one Cowling v R [2015] NSWCCA 213, indicates that for sexual intercourse offences by young people of good character on female victims starting point sentences of less than three years were regarded as "difficult to conceive of."
20. I could in cases such as this simply add up all of the crimes and impose a harsh and retributive sentence. I do not believe it is necessary but there must be appropriate recognition of what was done and the sentence must so far as it is possible seek to vindicate the dignity of each victim and recognise the harm that has been occasioned to them. There is also a strong basis of a finding of special circumstances. The offender had; strong family support, pro‑social support in the community and a strong work ethic. He is an intelligent man who is aware of what he has done and what his future has for him. His plea and his statement of remorse also speak in his favour.
21. The minimum period he must spend in custody must properly reflect the gravity of his offending and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704. I am also aware of studies by the Bureau of Crime Statistics that show those who receive proper supervision and support on release take long to commit other offences or are less likely to commit the offences than those who are released without that support. Parole has a positive role to play. Another reason for a finding of special circumstances.

Orders

1. There will be an aggregate sentence in this matter. I have to indicate each sentence and where it carries a standard non‑parole period indicate the non‑parole period for that sentence. I then have to formulate a total sentence which reflects all of the matters I have discussed and then synthesise them.
2. In relation to sequence 4, taking into account the three matters, sequences 3, 5 and 6 on the Form 1, there will be a sentence of three years I indicate a sentence of three years and nine months with a non‑parole period of one year and eight months.
3. Sequence 7, the starting point of four years, I indicate a sentence of three years with a non‑parole period of one year and six months.
4. In relation to sequences 1 and 9 there will be indicated sentences of nine months imprisonment on each matter so far as taking into account pleas of guilty. So a starting point of 12 months, a sentence of nine months in each.
5. Sequence 8 matters relating to Ms Myer, I indicate a sentence of 1 year 3 months with a non parole period of 11 months..
6. The aggregate total sentence in this matter will be four years and two months which will date from 12 June 2018. There will be a non‑parole period of two years and one month. You will be eligible for consideration for release to parole on 11 July 2020. The total sentence will expire on 11 August 2022. A significant finding of special circumstances was made to reflect the matters to which I have referred.

Amendments 17 September 2019 - Amended to correct punctuation in [2] and [3] 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: 17 September 2019