R v Steel [2020] NSWDC 950 | Case summary

Count 3

This is a charge that during that same date period, namely, between 18 June and 30 November 1998 at Wiseman's Ferry, the offender had sexual intercourse with ML without his consent, knowing that he did not consent. This offence is contrary to s 61I of the Crimes Act 1900 and carries a maximum penalty of 14 years' imprisonment.
The relevant facts for these three offences are that at the time of offending, ML was aged 17 and had just finished Year 10 at school. He knew the offender through a friend who was involved in the Scouts. He would visit the friend's house and the offender and other older people would be there. The offender, as I said, was an electrician and in 1998, ML sought some weekend labouring work from the offender at the Wiseman's Ferry Convention Centre where the offender was working. At the time, the offender was 27. He had accommodation, a room on the job site, and would pick ML up from his house and take him to the job site on a Friday evening for the weekend work.
On the first occasion that he collected ML and drove to the site, the offender shared marijuana, amphetamines and alcohol with ML. The next morning, ML did some work and the offender paid him some money. Over the following four to five weeks, ML continued to do labouring work for the offender. On some weekends, there would be no work, and the offender and ML would just stay in the room and share marijuana and amphetamines. On one of these occasions, the offender told ML that he was in trouble with some bad people who were going to hurt him if he did not give them photos, and asked ML if he would allow him to take some to help him out. ML trusted the offender and regarded him as a friend. He agreed to be photographed on condition that he could put a towel over his head. ML took off his clothes and lay on the bed with a towel over his head and on instructions from the offender, spread his legs apart and held his penis, with the offender encouraging him to try to get an erection. The offender had a camera and appeared to be taking photographs of ML. He offered him drugs in the room as an enticement to behave in this way.
There were three occasions in total where the offender incited ML to engage in this behaviour and specifically, to insert his finger into his own anus. One of these occasions is count 1 in the indictment. The other two occasions, constitute the two additional offences to be taken into account on a Form 1.
On some occasions, the offender, himself touched ML's penis, showing him how he wanted him to hold it. There was one occasion when the offender was taking photos of ML, who could not attain an erection. He had a towel over his head but heard the offender say, "will this feel better", and then the offender sucked ML's penis and commenced to fellate him. ML did not tell him to stop and attained an erection and the offender stopped. ML did not ejaculate. ML was under 18 at the time, specifically 17, and the offender was 27. This is the offence of homosexual intercourse which constitutes count 2 in that indictment.
On one of the last weekends that ML went to Wiseman's Ferry with the offender, the offender asked him if he would like to have sex. The offender had provided him with drugs and alcohol before making that request. ML initially agreed and lay face down on the bed whilst naked. The offender stood behind him and inserted his penis into ML's anus which caused him intense pain. ML instantly said to stop because it hurt. The offender said, "just wait", and tried to insert his penis further, which continued to hurt ML who told him to take it out and to stop, which the offender did. He stopped and according to the facts, ML claims that his anus was penetrated for a very short distance only during this particular offence.
The offender then asked ML if he would like to try to do the same which he agreed to try but without success. They both decided to stop trying to have anal intercourse and returned to the lounge area and smoked marijuana and drank alcohol. After this event, ML started to feel uncomfortable around the offender and began to avoid him. He had noticed that frequently, there were no other workers on the job site on the weekend and formed the view that the offender was using him.
ML did not make any complaint about these offences at the time. He did so initially in January 2009, at which time he was sharing a house with a person who was a New South Wales police officer working with the Child Abuse and Sex Crimes Squad. On one occasion in 2010 ML and this officer were drinking together, and the officer was talking to ML about the sort of work he did investigating child sexual abuse. It was during this conversation that ML, it would appear, first told anyone of these events involving the offender and was observed by the officer to be upset, crying and trembling.
In fact, the offender was not arrested in relation to any of these offences until 19 June 2018, that is 26 years after the events involving IC and 20 years after the events involving ML. By this stage the offender was 47.
It would appear that in about 2016 IC had made a complaint to police, who ultimately arranged for him to make a telephone call to the offender in the way that is commonly referred to as a pretext call. This occurred on 16 May 2018 and was recorded. He accused the offender of raping him in the toilet. The offender answered in a way which amounted to an admission. The content of that call can be found in para 19 of the facts involving the complainant IC.
The offender begged IC not to take any action and in particular referred to his family and wanting to spare them, and apologised to IC for his behaviour. In particular he said, "I apologise deeply, mate, and if I could come and see you I would come and get on my hands and knees and I would apologise." He said that he was "..stupid and an idiot. I was on drugs and I was a fuckwit." He also said, "I was raped as a child myself so I have a little bit of an indication, not that it means much to you, I understand."
As I have said, the offender was arrested and charged on 19 June 2018. He was granted bail and remained on bail until 14 August 2019. He was committed for trial on all offences in November 2018. The trials were listed to run as two back-to-back trials and came before me on 6 August 2019, commencing with the trial involving the victim IC, with the offender pleading not guilty.
Before a jury was empanelled there was a voir dire in relation to the admissibility of the pretext call. I ruled in favour of admitting this evidence and the offender then pleaded guilty to all of the counts involving IC the following day, 7 August. On 14 August the offender pleaded guilty to the three counts involving the victim ML, the Crown having withdrawn the earlier indictment which included as two separate additional counts the two offences which are now covered as additional offences on a Form 1, and then the offender pleaded guilty to the three remaining substantive accounts, asking that these two additional counts be taken into account.
These are all clearly serious offences and particularly so the offences involving the victim IC. For all of these offences there should be an element of general deterrence incorporated into the sentences to send a strong message to the community that sexual offences, particularly those against children, will have serious consequences involving lengthy gaol terms. All sexual assault offences are serious and those which amount to child sexual assault are particularly serious.
This Court for at least 24 years to my own knowledge has always regarded child sexual assault offences as serious and has been aware of and has taken into account the ongoing seriously adverse consequences of sexual assault on children. That knowledge has been enhanced over the years by the increasing number of psychological studies which reinforce the common knowledge of the District Court of New South Wales that sexual assault of children has ongoing traumatic consequences for them, often being catastrophic and usually lasting many years, if not for life.
There is a victim impact statement prepared by IC, which he read in Court. I accept that the offences against him have had a seriously adverse impact. One of the consequences of the offending regrettably was a cessation of his connection with the Scouting movement and as a result, the loss of his relationship with his mother, who continued to be involved in the movement. They became estranged.
I accept that he developed a mistrust of people in authority and had trouble developing meaningful relationships for a considerable time. He questioned his own sexuality, and memories of the sexual assault impacted adversely on his early sexual experiences as a teenager and on his first marriage. All of these are commonly seen impacts of child sexual assault. He used alcohol and drugs to cope. All of this has had adverse impacts on him and on his relationships, particularly in his first marriage.
More recently he obtained assistance and learned to understand some of the issues surrounding his sexual assault, which led to his formal reporting of the incidents to police in 2016 and his disclosure of them to his family, including to his second wife.
He appeared to be an impressive person when he read out his victim impact statement, who, in a very generous manner in that statement, said that the offender's pleas of guilty had, in his own words, lifted a weight off his shoulders. He said that he is now looking forward instead of back. It is to be hoped that this will mean he will now regard himself as a survivor of child sexual assault, not a victim.
The consequences to him were serious and that is a factor that I take into account when assessing the objective seriousness of the offending. Other factors informing the objective seriousness of the offences against IC include the fact that IC was only 14 and the offender was about 20. Not only was there this age difference, but there was a significant difference in life experiences.
Further, the offender was in a position of trust towards IC at the time, being a Scout leader. He plied IC with alcohol and knew that he was drunk when he went back to the tent with him and started to engage him in sexual behaviour. The evidence in my view does not allow me to make a finding that he gave him the alcohol with the express intention of sexually assaulting him, but he well knew at the time that he was drunk and more likely to be disinhibited because of that. On the evidence this cannot be said to amount to grooming in my view, particularly to the extent that that would amount to a circumstance of aggravation.
The offences in my view are more in the nature of spontaneous, at least the initial offence in the tent. After that there was some planning, albeit limited and rudimentary, because the offender took IC away to a toilet block and locked the door of a shower cubicle in order to ensure privacy.
The two offences of homosexual intercourse themselves were forceful and the anal rape in particular caused considerable pain to IC. The offence of homosexual intercourse is something of an anachronism and can cover a multitude of different factual circumstances. The offence in this case is made more serious because it did not involve any consent whatsoever on the part of the victim. The words used by the offender during the assaults in the shower cubicle also were demeaning and suggested that IC was to blame. He also made some verbal threats both then and when he subsequently visited the house in an attempt to prevent IC from reporting the assault. In all of these circumstances it seems to me that the offences involving IC fall at about midrange in terms of objective seriousness.
It is necessary in due course, when deciding the appropriate sentences for the offences involving IC, to sentence in accordance with the current sentencing patterns and practices pursuant to s 25AA(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW). It is not always an easy task to determine current sentencing practices and patterns. There can be no doubt but that the sentencing patterns and practices for indecent assault offences, even those involving children, have changed significantly since counts 1 and 4 were committed. I accept that the current sentencing patterns and practices for such offences would, unless there were relatively exceptional circumstances, mean that the s 5 threshold for imprisonment is reached and in those circumstances there would be no alternative but to impose a period of full time custody given that intensive correction orders and alternatives to full time custody are not available.
In the past, instances of indecent assault, even involving children, may have given rise to suspended sentences or even, when relatively minor, bonds. I accept in this case, in accordance with the current sentencing practices and patterns, that especially for the second indecent assault where the offender tried to masturbate the victim to an erection, in order that he might sexually penetrate the offender, in circumstances where he himself had just anally raped the victim, is at about the midrange and the s 5 threshold is clearly crossed. Full time custody is the only appropriate penalty in the circumstances. Probably the same would be true for count 1, but it is not necessary to be so precise and analytical because, both in relation to count 4 and counts 2 and 3, there is no doubt that full time custody is required.
So far as counts 2 and 3 are concerned, the offences of homosexual intercourse, the current sentencing practices and patterns in my view are in reality no different to those which would have pertained had the matter been sentenced in the mid-1990s. Anal rape, that is non‑consensual homosexual intercourse of a 14-year-old by a scout leader in a toilet block after getting him drunk, would always have led to a gaol term.
In determining the length of the appropriate term, I must have regard however not just to the objective criminality, but also a number of other factors including, as I have said, the need for general deterrence to be a part of the sentence and also the subjective case involving the offender to which I will refer shortly.
There are also relevant issues of delay to be taken into account in this matter, both for the offences involving IC and ML. It is the case that the offender here has escaped punishment for a considerable period of time, but unlike in some other cases, including the decision of R v Cattell [2019] NSWCCA 297 to which I have been referred, he has not used this intervening period to continue offending. In fact, as will become clear, since 2001 the offender has committed no offences and has undertaken and achieved what I regard to be complete rehabilitation. The fact that he has used this period of delay to effect complete rehabilitation is a factor that I will take into account when assessing the issue of delay relevant for both groups of sentences.
I must also take into account the fact that the offences for IC are pleas of guilty. There is however, just a 5% statutory discount available for the pleas of guilty in circumstances where they were entered after the trial had commenced.
Turning then to the offences involving the victim ML, the objective seriousness of the offences involving him is also significant but they cannot be regarded as child sexual assault offences. ML was 17 at the time of the offences and for the first two consented to the activity. In each case, the offending in my view falls towards the bottom half of the range for offences capable of being charged, either pursuant to s 78Q or s 78K. Equally, for count 3, the charge of sexual intercourse without consent, in my view falls below the midrange in terms of objective seriousness.
ML in fact consented to the commencement of the sexual intercourse but withdrew consent when he experienced pain after initially consenting to the anal intercourse. The offender fairly soon thereafter did not continue with the intercourse and the activity that constitutes the offence, that is the continuation of the anal intercourse after consent was withdrawn, lasted for a very short period of time, albeit in circumstances where ML continued to experience pain. There was also in that case an age difference between the two, that is 10 years, but that is not particularly great and not as great as some of the age differences seen in offences of a similar type.
ML went to the Wiseman's Ferry area with the offender willingly and continued to visit apparently without being coerced. He willingly used drugs and alcohol with the offender. It is argued that there was a breach of trust, evidenced in all of the offending involving ML, which I accept is the case to a limited extent. It may be that the offender used the excuse of providing weekend work for ML to be there on some occasions, but the evidence is not clear about that.
It is also the case that ML continued to visit, even knowing that on many weekends there had been, and may continue to be, no work being provided. On all occasions it seems to me that the only real breach of trust evidenced is the trust that younger people should be able to repose in adults to treat them in a way that does not involve sexual use. This finding however must be tempered by the fact that in large part the sexual involvement of ML was consensual.
There is no evidence by way of victim impact statement to determine the ongoing impact that these events have had on ML. He was not a child in the way that this is defined and therefore the provisions of s 25AA(3) of the Crimes (Sentencing Procedure) Act 1999 do not apply. There is no evidence about the impact on him of these offences, except for the observation made by his friend the police officer about his demeanour in about 2009 when he disclosed the offences to him. I accept that the offences are likely to have had some ongoing psychological sequelae on him but I am not in any way able to make a determination or finding about the extent of that.
There is no evidence of any attempts or threats made by the offender to ML to prevent him from telling anyone about this. Overall, the offending involving ML in my view falls towards the lower end, below the mid-range of objective seriousness, on the basis of these findings.
There were pleas of guilty also entered by the offender to the offences involving ML. As I understand the argument, there are no statutory limits on the discount that is available to take into account the utilitarian value represented by those pleas of guilty. I do not accept that the plea should attract a discount as high as 25%, but there is a utilitarian value represented by the pleas in relation to the events involving ML. The facts and circumstances regarding the charges with him as the victim are quite different to the charges involving IC given the consent issues involved. That trial has been avoided and it has been unnecessary for ML to come to court to give evidence. There is a utilitarian value in those circumstances and in my view it is in the vicinity of 15%.
The offender comes to court with a criminal history and he cannot be said to be a person of good character because of that, however it is relatively minor and a significantly long time ago. In New South Wales there is one entry in the Children's Court in 1997 for assault occasioning actual bodily harm. There are four convictions in 1999 for possessing a prohibited drug, dealt with by way of fines in the Local Court consistent with them being relatively minor offences. There is an assault conviction in 2001 dealt with by way of Community Service orders.
He has a record also for two offences in Queensland at the time when he was living on the Gold Coast. One is in 1991 and the other in 1994 and both involved drug possession or similar offences and in both cases with fines imposed.
The offences before me occurred in 1992 and 1998 at around the time when his criminal record indicates that he was regularly using drugs. He has led a life free of crime for almost 20 years since the assault offence dealt with in the Local Court in New South Wales in 2001.
Turning then to other aspects of his subjective case, there are a number of documents relied on in addition to a sentence assessment report obtained and tendered. They include a psychiatric report from Dr Richard Furst and references from friends and associates. The offender's wife also gave evidence on his behalf. I found her to be an impressive witness who had a very realistic understanding of the situation in which both she and the offender now find themselves.
He is, as I have said, now 49 and his subjective case overall is impressive. Following his pleas of guilty on 14 August 2019 he did not seek to have his bail continued because of a recognition that he would inevitably face a term of full‑time custody.
He is married and has two children now aged 15 and 12. He was living at Kellyville with his wife and children before he went into custody. He had a good upbringing and his parents still reside in Sydney and have a close relationship with him, his wife and his children.
He was educated to School Certificate level and has always been employed. Whilst at school he worked part-time in a fruit shop and mowing lawns. After leaving school he did an apprenticeship as an electrician fitter/mechanic and he is a licenced electrical fitter/mechanic.
As a teenager and young adult however he used drugs, including marijuana, amphetamines and other drugs and also drank alcohol to excess. He became a heavy user of illegal drugs at around this time and this was the time at which he committed the offences before me.
I accept that there is some connection between his use of drugs at the time and his commission of the offences. I accept Dr Furst's diagnosis that he suffered from substance abuse disorder. His own description of himself in his conversation with IC that he was stupid and an idiot, was on drugs and was a fuckwit, it seems to me displays a degree of insight.
He lived on the Gold Coast for a short time in the mid 1990's and then came back to Sydney in 1996/1997. He met his wife in about 1997 but they did not live together initially however. She became aware of his heavy use of drugs and did not approve of it. Eventually she gave him an ultimatum that either he stopped using drugs or she would leave him. He accepted that ultimatum and withdrew from using drugs with the assistance of his wife and her parents and his own parents.
He went through a withdrawal process at her parent's house with the assistance of the family. Once she was satisfied that he had kept his promise and was no longer using drugs, the offender and his wife married in 2003 and now as I have said, have two children aged 15 and 12. Neither his wife nor his children were aware of these offences until he was charged by police in June 2018. They are all now aware of the offences but continue to provide support and love for him.
The offender and his wife bought a house with a substantial mortgage in 2008 and they both worked in paid employment in order to satisfy the mortgage which amounts to about $2,000 a month. After the offender went into custody, his wife could no longer continue to pay for the mortgage and was forced to sell the house. His initial contract employment was terminated at the time he pleaded guilty. The offender's wife and children have moved to a different suburb away from their own home since then.
His employment history is impressive. About 12 years ago he started employment as a foreman within the commercial electrical side of a business and about 6 years ago commenced employment as a data centre maintenance supervisor earning a reasonable income. His wife is a qualified nurse who also works in full-time employment.
I accept from Dr Furst's report that he does not suffer from any specific mental disorder, albeit that he did suffer from substance abuse disorder in the past, and in particular I accept Dr Furst's opinion that he does not suffer from paedophilic disorder.
I accept more probably than not, at the time of both sets of offending he was, to an extent, experimenting with his sexuality, albeit completely inappropriately especially in relation to IC. There was, however, in my view a significant connection between his drug use and the disinhibition that that created, and his offending behaviour. In fact, he has completely turned his life around since the last criminal offence in 2001. There is no further criminal offending since then and no further drug use. He has become a very useful member of the community, as is seen from the references provided, and also a devoted husband and father.
I accept that he has shown true contrition and remorse for his offending behaviour. That much, in my view, is clear from the words he used in his telephone call with IC. The pleas of guilty are also some evidence of contrition, albeit entered late. So is the fact that he did not seek to continue his bail after the final pleas of guilty.
There has been to some extent some extra curial punishment in that the Child Welfare authorities have prevented the offender from having contact with his children since he went into custody on 14 August 2019, despite the fact that the offences before me are of a very different type to intrafamilial child sexual assault and were many years ago. He was only able to see his children for the very first time after 14 August on 15 December 2019, which has had an adverse impact on them and on him.
Notwithstanding any actuarial assessment of his risk of reoffending, I in fact, accept both Dr Furst's opinion and the opinion of Community Corrections that he is a low risk of reoffending generally and also, in relation specifically to any sexual offences. That is because of the length of time, 20 to 26 years since the offending, the complete change in his life and character, the absence of drug and alcohol use and the pro-social contacts and life that he has established since, at least, 2003.
In my view, his prospects of rehabilitation are excellent and part of that is because his family remains supportive of him, will continue to be so and will be there for him when he is released from custody.
There are some special circumstances, those being that this is his first time in custody and the second that there is a need for him to be released to the community as soon as possible because of the ongoing negative impacts that his incarceration has on his family and, in particular, his children.
I then turn to the relevant sentences for these offences. For those involving the victim IC, taking all of these matters into account and also taking into account the small statutory discount available to him, I have concluded that for count 1 there should be an overall term of imprisonment of 12 months; for count 2, an overall term of 3 years; for count 3 an overall term of 4 years and for count 4 an overall term of 12 months. If they were entirely accumulated with each other that would give rise to a term of imprisonment of 9 years which in my view is too much to represent the total criminality. The totality can be dealt with by an overall term of imprisonment of 5 years. I thus propose to sentence as an aggregate sentence for each of these offences pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999, with an overall aggregate term of 5 years and an aggregate non-parole period of 3 years, just a little less than two-thirds of the overall sentence.
For the victim ML, for count 1 taking into account the 15% discount and also taking into account the two Form 1 offences, the term should be 9 months. For count 2 taking into account the 15% discount, the term should be 18 months and for count 3, bearing in mind that the maximum penalty is 14 years but on the assessment that it is in its own terms towards the bottom of the range and taking into account a 15% discount, the term should be 2 years. If these were each made concurrent with each other, the overall sentence would be 4 years and 3 months which in my view would be excessive. The total criminality in my view can be represented by an overall term of 3 years with a non-parole period of 2 years. I propose to deal with these offences too then by fixing an aggregate sentence of 3 years with an aggregate non-parole period of 2 years for them.
That would mean that the offences involving IC would give rise to an aggregate sentence of 5 years and for offences involving ML, an aggregate sentence of 3 years. They should overlap to some extent to represent total criminality and to take that into account, I will be sentencing for a period of 6 years overall with an overall non-parole period of 4 years. They will all be backdated to commence on the day the offender went into custody, namely, 14 August 2019.
Therefore, I make the following formal orders: 1. For all offences, the offender is convicted. 2. Offences involving victim ML; indictment dated 14 August 2019: The offender is sentenced to an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 of 3 years with an aggregate non-parole period of 2 years. The sentence will commence on 14 August 2019 and will expire on 13 August 2022 with an aggregate non-parole period of 2 years commencing 14 August 2019 and expiring 13 August 2021. 1. The indicative sentences are as follows: Count 1: 9 months, Count 2: 18 months, Count 3: 2 years. 2. I have taken into account the Form 1 offences when sentencing for count 1. 1. Offences involving victim IC; indictment dated 2 August 2019: The offender is sentenced to an aggregate term of imprisonment of 5 years commencing 14 August 2020 expiring 13 August 2025 with an aggregate non-parole period of 3 years commencing 14 August 2020 and expiring 13 August 2023 with parole thereafter of 2 years commencing 14 August 2023 and expiring 13 August 2025. 1. The indicative sentences are as follows: Count 1: 12 months, Count 2: 3 years, Count 3: 4 years, Count 4: 12 months.

R v Steel

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