R v Van Der Baan

District Court of NSW|2010-02-05

HEARING DATE(S): 11/09/2009 30/10/2009

Convicted on each count. Sentenced to terms of imprisonment as follows: Robbery: Sentenced to a fixed term of imprisonment for 18 months to commence on 23/5/07 and to expire on 22/11/08. DECISION: Aggavated sex assault x 3 (BH): On each count, sentenced to a fixed term of imprisonment for 6 years and 9 months to commence on 23/11/07 and to expire on 22/8/14. Sentences to be served concurrently. Aggravated sex assault x3 (SP): On each count, sentenced to a period of imprisonment for 12 years, comprising a NPP of 9 years, to commence on 23/8/12 and to expire on 22/8/21, and a balance of term to commence on 23/8/21 and to expire on 22/8/24. Eligible for release to parole on 22/8/21. Sentences to served concurrently with each other and partially concurrently with the sentence imposed above.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900

R v Hibberd [2009] NSWCCA 20 Ibbs v The Queen (1987) 163 CLR 447 R v Allpass (1994) 72 A Crim R 561 R v Youkhana [2004] NSWCCA 412 R v Qutami [2001] NSWCCA 353 CASES CITED: R v Woodgate [2009] NSWCCA 137 Veen v R (No 2) (1988) 164 CLR 465 R v MJR (2002) 54 NSWLR 368 R v Shore (1992) 66 A Crim R 37 R v Moon (2000) 117 A Crim R 497 Thomson & Houlton [2000] 49 NSWLR 383 SGJ v R [2008] NSWCCA 258

PARTIES: Regina Jason Van Der Baan

COUNSEL: Ms S Harris - Crown Mr N Vertigan - Offender

SOLICITORS: Office of the Director of Public Prosecutions Legal Aid Commission

HIS HONOUR: The prisoner appears for sentence following pleas of guilty to seven offences. The sentence proceedings commenced on 11 September 2009, and continued on 30 October 2009, when the evidence and submissions were completed.

The seven offences comprise six offences of Aggravated Sexual Assault contrary to s 61J (1) and one offence of Robbery with an Offensive Weapon contrary to s 97 (1) of the Crimes Act 1900.

Each of the offences concerned one of two female victims. The offences were committed on two separate occasions, each occasion being in respect of one of the victims only.

The maximum penalty provided for each of the seven offences is 20 years imprisonment. As all offences were committed prior to 1 February 2003, there is no standard non-parole period applicable.

The first four offences concerned the victim BH, and included the offence of robbery with an offensive weapon, a flick knife. They were committed on 14 April 1995. The aggravating circumstance in each of the sexual assault offences was that at the time of the offence, the offender threatened to inflict actual bodily harm by means of an offensive weapon, the flick knife.

The remaining three sexual assault offences were committed on 2 August 1996, and concerned the victim SP. The circumstances of aggravation in the three offences were that the victim was under the age of 16 years, that is 15 years of age, and that the offender was armed with a knife.

The offender was arrested and charged with each of the offences on 28 January 2009. A plea of guilty was entered in respect of each offence in the Local Court on 8 April 2009.

In March 1995 the offender was 25 years of age, and was living in the Parramatta area.

At that time, the victim, BH was 18 years of age, and had just moved to Granville.

On 13 April 1995, the victim caught a train from Granville to Parramatta to visit the Youth Access Centre. When in the vicinity of the Parramatta Mall, the victim spoke to the offender and asked him for directions to the Centre. The offender introduced himself as "Jason". He told her he was going that way, and offered to show her the way. The two talked and the victim indicated that she was new in town. The offender volunteered to show her around Parramatta. The victim gave the offender the telephone number of the place where she was staying.

During that initial meeting, the offender indicated that he was working as a nurse's aide. There is independent evidence to confirm that at the time of the offences the offender was working as a personal carer. The victim described the offender as being "early 20s, medium build, long brown hair down to the middle of his back". She also described scarring to his hands. There is independent evidence that confirms that the offender did have long brown hair and scarring to his hands at this time.

On the morning of 14 April 1995, the offender telephoned the victim. They arranged to meet at Granville Railway Station at 4 p.m. that day with the view of travelling to Parramatta together.

About 4 p.m. that afternoon, the victim and the offender met at Granville Railway Station and travelled to Parramatta. They walked to a cafe and ate a meal. They then decided to go to the cinema.

The two walked for about 10 minutes. On the way to the cinema, the offender told the victim he wanted to visit a marijuana crop he had growing in some parkland in Parramatta. When they reached a parkland area adjacent to the Parramatta River, the offender directed the victim towards the river. The offender left the victim alone for a short period before returning.

The offender suddenly placed his left hand around the mouth of the victim and pressed the blade of a flick knife against her neck. The blade of the knife was about 2 inches long. He said, "You know, this is a knife, if you don't do what I say, I will kill you." The offender led the victim at knifepoint to a grassy area surrounded by trees. By this stage it was dusk and almost dark.

Offence 1 - Aggravated sexual assault - penile/vaginal

The offender told the victim to take her jeans off and sit on them. In fear, the victim took off her jeans. The offender removed the victim's underpants.

The offender pulled his jeans down to his knees. The victim said a number of times. "Please don't kill me", to which, the offender said "Shut up". He pushed the victim onto her back and commenced penile/vaginal intercourse. This hurt the victim. That continued for about five minutes. The victim is uncertain whether the offender ejaculated.

Offence 2 - Aggravated sexual assault - penile/anal

The offender removed his penis from the victim's vagina and told her to turn over. She complied through fear. The offender told her to take her top off, which she did, leaving her bra on. The offender attempted to insert his penis into her anus, telling her "Spread your legs further". Eventually, the offender inserted his penis into her anus and commenced intercourse. Whilst doing so, he said, "You've done this before, haven't you?" The victim said "No". The offender said, "Yes, you have, you slut". The offender said, "You're a slut aren't you?" a number of times, whilst having anal intercourse with the victim. He said "You like this don't you?", and when the victim did not reply, he said, "Act like you're enjoying it." The victim complied because she wanted to get the incident over with. The offender then said, "Say you're a slut". When the victim said "No", he slapped her across the back of the head and demanded she say it. The victim complied. The victim does not know if the offender ejaculated during the anal intercourse.

Offence 3 - Aggravated sexual assault - oral: penile/mouth

The offender removed his penis from the victim's anus and told her to turn over and sit down. He knelt above her and said, "Suck this bitch, and don't get any ideas". He placed his erect penis into the victim's mouth and took hold of the back of her head, forcing her forward onto his penis. The offender pushed his penis in and out of the victim's mouth for 2-3 minutes. The offender took hold of the victim's hair and forced her head down further on to his penis. The victim felt sick and tried to pull away, but the offender slapped her across the face and said, "Keep going, bitch".

A short time later, the offender removed his penis from the victim's mouth. The victim does not think he ejaculated.

Offence 4 - Robbery whilst armed with an offensive weapon.

He told her to remove her bra. She complied and he told her to turn over and lay on her stomach. He used the victim's bra to tie her wrists together behind her back. He said, "I won't tie you hard, just give me some time to get away." He said, "You better not tell anyone about this because if I get caught I can still get to you from jail, I know people". He took the victim's wristwatch and belt off her. He asked her if she had any money but the victim only had thirty-five cents. She is unsure if this was taken. The offender said, "You better not tell anyone" and left.

Throughout the incident, the offender was in possession of the flick knife.

The victim remained on the ground for about 10 minutes. She freed her hands and got dressed. She walked towards the river and climbed down a cliff. She managed to get the attention of a male person on the other side of the river, who called the police.

Police arrived. Under their instruction the victim attempted to climb back up the cliff, but she fell into the river. She was rescued a short time later by a rescue boat and taken to Westmead Hospital.

On 4 November 2002 the victim identified the offender to police as being the person who committed the offences upon her on 14 April 1995.

Mr Vertigan has informed the Court on behalf of the offender, by agreement, that the identification was as a result of the victim contacting the police shortly after viewing a television programme, "60 Minutes", concerning the offender in respect of an offence of which he had been acquitted.

On 29 November 2002, the offender was interviewed in relation to the matter and declined to say anything.

On 10 May 2007, the victim took part in a photo identification array and successfully selected the offender.

On 28 January 2009, the offender was arrested at Burwood Police Station and interviewed in relation to the matter. The offender took part in an ERISP and made admissions in relation to the offences. He remembered the victim as being "new in town". He could not recall going to a cafe with her, but admitted attending the Parramatta River area, with her and "raping her". The offender was charged.

A plea of guilty was entered in respect of each offence in the Local Court on 8 April 2009.

In August 1996 the offender was 26 years of age. He was living in the Parramatta area.

At the time the victim, SP, was a female child, 15 years of age.

On the evening of Friday 2 August 1996, the victim left her home address to walk to Parramatta Railway Station to meet a friend. She was alone, and it was already dark.

After walking for about half an hour, the victim commenced walking along Macarthur St, Parramatta. Macarthur St crosses the Parramatta River at a bridge called the Gasworks Bridge. In 1996, the bridge had two lanes for vehicles and a narrow footpath for pedestrians.

By the time the victim got to the bridge, it was dark. As the victim crossed the bridge, the offender grabbed her from behind. The offender covered her mouth with his hand and held a knife against her neck. The victim described the blade of the knife as being 10-12 cm in length. He pulled her backwards and said to her "Shut up you bitch".

He lifted the victim over a wall on the bridge, and then forced her to walk forwards down a set of steps that led to the riverbank. He continued to hold his hand over her mouth and the knife to her throat throughout this period. He directed her to an area underneath the bridge. Once under the bridge, he forced her backwards and she fell to the ground. He undid her jeans and forcibly removed them. He still had the knife in his hand whilst doing this, and would occasionally place it against her throat.

Offence 5 - Aggravated sexual assault - oral: penile/mouth

He said, "Sit the fuck up." The victim complied. The offender stood up, undid his trousers and pulled them down. He knelt in front of the victim and pushed his penis against the victim's mouth. The victim had her mouth closed, but the offender forced his penis into her mouth.

He took hold of the back of the victim's head and repeatedly pushed her head forward and back onto his penis. He was very rough, and said to the victim "You better not bite this bitch". He continued until he ejaculated into her mouth. The semen went into the victim's throat and she gagged.

Offence 6 - Aggravated sexual assault - digital/vaginal

The offender removed his penis from the victim's mouth, and pushed her backwards, onto the ground. He pulled her legs apart and positioned himself on his knees, between her legs. He pulled her underpants to the side with force and placed a number of his fingers inside her vagina. The victim could feel at least three fingers inside her vagina. Initially he held his fingers still inside her vagina but then moved them up and down and side to side. The offender said, "You're a tight little slut aren't you". The finger movements hurt the victim.

With his fingers still inside her vagina he moved on top of the victim. He started to kiss her. The victim initially resisted the kissing, but eventually complied. The offender placed his tongue inside her mouth and down her throat. He kept his fingers inside her vagina throughout this. This went on for 10 to 15 minutes.

Offence 7 - Aggravated sexual assault - penile/vaginal

He told her to remove her underpants. The victim complied. He lifted himself off her and spread her legs apart. He knelt between her legs and forcefully pushed his penis into her vagina and commenced sexual intercourse with her. He lay on top of the victim and pushed his tongue into her mouth. The thrusting of the offender's penis caused the victim pain, and she started to cry. The offender said, "Stop crying bitch, you can't cry".

The offender continued to have sexual intercourse with the victim, thrusting his penis forcefully into her vagina. This went on for some time. He ejaculated inside her vagina. As he ejaculated the victim said, "How much longer is this going to take? I am supposed to be meeting people and if I don't show up they will alert the police." The offender said, "It will take as long as I want it to take, bitch".

The offender then stopped. He stood up, pulled his pants up and pulled the victim to her feet. He walked around behind her, held the knife against her throat and walked her to the edge of the river.

When they got close to the river, the offender said, "I'll let you go if you don't look at my face. You have to wait here until I go". The victim agreed. The offender instructed her to remain at the riverbank until he had gone. He then left.

The victim stood facing the river for about 10 minutes. She then made her way back to the area underneath the bridge, where she found her underpants and jeans. She put those clothes back on.

The victim made her way to Parramatta Railway Station. At the railway station, she met her friend and the two travelled to the victim's home by bus.

Once at home, the victim disclosed the incident to her mother. The victim went to Parramatta police station where she reported the incident to police. She then attended Westmead Hospital, where a Sexual Assault Examination Kit was obtained.

At the hospital she was also treated for cuts that occurred during the incident, one to her arm and one to her back.

At the time of the offences, the victim had never had sexual intercourse.

The Sexual Assault Examination Kit was subsequently taken to the Division of Analytical Laboratories. Semen was recovered from a vaginal swab on 6 August 1996. The DNA profile obtained from the semen was identified as matching the DNA profile of the offender and was the subject of a cold link report on 17 July 2008. A further DAL report of 28 October 2008 confirmed the match with a profile frequency of one in four billion.

The DNA notification was forwarded to Parramatta police.

On 28 January 2009, the offender was arrested at Burwood Police Station and interviewed in relation to the matter. He stated he did not know the victim and that he did not wish to say anything about the matter at that point. The offender was charged.

The offender consented to the carrying out of a buccal swab for further comparison.

On 25 March 2009 a further DAL report confirmed the DNA match.

A plea of guilty was entered in respect of each offence in the Local Court on 8 April 2009.

In respect of each of the victims there are three offences of aggravated sexual intercourse.

Each of the three offences relating to a victim was committed by a separate and different act of sexual intercourse as defined in s 61H (1) of the Crimes Act, 1900. Each was committed as part of a single ongoing assault. Each of the individual offences is relevant to the seriousness of the other, whether committed before or after an individual offence, as are the overall circumstances of the commission of the offences. The Crimes Act makes no distinction as to any of the defined acts of sexual intercourse being more or less serious than any other act contained within the definition.

There can be no prima facie assumption or general proposition that any one form of sexual intercourse is less or more serious than any other form. R v Hibberd [2009] NSWCCA 20 Tobias JA at [20 - 21]

"The 'heinousness' of the offending conduct depends on the facts of the case and not on the statute defining the offence." R v Hibberd Price J at [55] referring to Ibbs v The Queen (1987) 163 CLR 447; R v Allpass (1994) 72 A Crim R 561

In this matter where the three offences are part of a continuous sequence there is no utility or benefit in determining fine distinctions between each offence. It is the overall seriousness of the offences that is relevant.

The aggravated sexual assaults: 1. The offences were premeditated. (The offender befriended and offered to assist the victim, who was new to the area. He later telephoned her to arrange the place and time of the meeting, and later led her to the secluded location in parkland where the offences occurred.)

He was armed with a flick knife and used it to obtain acquiescence.

Each of the acts of intercourse involved physical force in the act itself.

The offender applied additional physical force by grabbing her hair and slapping her on the head and face.

The victim was demeaned and belittled by verbal abuse as well as being required to physically pretend she was enjoying it and refer to herself as a "slut".

The order of the offences ensured maximum degradation and embarrassment. (Vaginal intercourse was followed by anal intercourse and then oral intercourse. At the time of the oral intercourse, the offender's penis would have been covered by a combination of at least vaginaland anal secretions, if not also seminal fluid.)

Both the digital and penile vaginal intercourse caused pain to the victim.

She was left naked, with her hands tied behind her back with her bra.

On departure, he threatened that if she reported the matter he would get to her even from jail.

While the facts do not provide any adequate information as to the total time involved in the offences, there was at least five minutes involved in the penile/vaginal intercourse and 2-3minutes in the oral intercourse.

The offences disclose that the offender was driven by a need to sadistically dominate, demean and degrade the victim by placing her in significant fear for her life and wellbeing, to obtain acquiescence in her violation by the offender's extremely offensive conduct.

While it is possible to envisage ways in which the offences may have been made worse, such as the infliction of injuries or being in company, the facts disclose a series of assaults that can properly be regarded in their overall effect as being very serious offences within the category of offence. That is, they fall at the high end of the range.

Robbery with an offensive weapon: 1. The weapon was a flick knife described as having a 2-inch blade.

The offender robbed her after first using her bra to tie her hands behind her back.

The items taken were a wristwatch and a belt. There is no evidence of value. It is reasonable to assume that neither was of significant value.

On departure, he threatened that if she reported the matter he would get to her even from jail. The commission of this offence following on the sexual assaults was, to use a common expression, to "add insult to injury". Considered separately from the foregoing circumstances, there is nothing that takes it out of the ordinary for offences of this nature. However, the offence must be considered within the context of the overall circumstances of the assaults, and in such circumstances, it must be regarded as a serious offence despite the property stolen being apparently of no significant value. The seriousness with which all such offences of this type must be considered is indicated by the fact that the legislation provides a maximum term of imprisonment of 20 years.

The aggravated sexual assaults: 1. The offences were premeditated. (The offender was armed with a knife. The attack came when it was dark and at a place where the victim could be immediately removed to a secluded location where detection was unlikely.) It was submitted that the court should not find that this was a premeditated offence. The court finds beyond reasonable doubt that this was not an offence committed as a result of a spur of the moment decision made when conducive circumstances coincidentally occurred, but that the offender, carrying the knife in anticipation of committing the offences, either lay in wait at the location until a suitable victim appeared, or that he stalked the victim until she reached a suitable location. It cannot be determined and is not relevant to determine which of the two alternatives occurred.

The offences occurred when it was dark, and the victim was entitled to feel secure while walking on a public street.

He was armed with a 10-12 cm bladed knife, and used it to obtain acquiescence.

The removal of the victim from the bridge to underneath it was accomplished by physical force as well as intimidation with the knife.

Each of the acts involved physical force in the act itself.

The victim was demeaned and belittled by verbal abuse.

He ejaculated in the victim's mouth, the semen entering her throat and causing her to gag.

He placed at least three fingers in her vagina for a lengthy period of 10 to 15 minutes and moved them around with sufficient force to hurt her while simultaneously forcing his tongue into her mouth.

The penile/vaginal intercourse also caused the victim to suffer pain and to cry.

He further ejaculated while having penile/vaginal intercourse.

After the offences he forced her, while she was at least naked from the waist down, to the riverbank. At the time he was holding the knife to her throat. Although he later indicated that he would release her and subsequently did so, the victim, 15 years of age, must have been terrified, considering that he had replaced his clothes, indicating that he had completed the sexual assaults, that she was about to be disposed of in the river.

The facts do not provide sufficient information as to the time involved. However, it is clear that it must have been a significant period, considering that the digital/vaginal intercourse alone was estimated as taking 10-15 minutes.

The victim suffered cuts as a result of the offences, one to her back and one to her arm. They do not appear to have been deliberately inflicted rather than acquired as a result of the force assaulting her in the particular location, that is, by interaction with the ground or objects on it.

Again, the offences disclose that the offender was driven by a need to sadistically dominate, demean and degrade the victim by placing her in significant fear for her life and wellbeing, to obtain acquiescence in her violation by the offender's extremely offensive conduct.

While it is possible to envisage ways in which the offences may have been made worse, such as the infliction of deliberate injuries or being in company, the facts disclose a series of assaults that can properly be regarded in their overall effect as being very serious offences within the category of offence. That is, they fall at the high end of the range.

BH was 18 years of age at the time and is now 32. She states that she has done her best to forget about it and move on with her life. The offences have had a lasting emotional and physical affect on her. Her trust in strangers decreased dramatically and she is now very guarded with people in general. She is not social, and is suspicious of other's motives. Her relationships have suffered, especially her marriage, as she is very uncomfortable both emotionally and physically with intimacy.

Such an impact is the least that can be reasonably expected as a result of such a horrendous experience for an 18 year old. Her Victim Impact statement is a concise but eloquent demonstration of a victim endeavouring over 14 years to put the past behind her. The experience is one she will never be able to "forget", no matter how hard she tries, and it can be reasonably anticipated that it will continue to emotionally and physically affect her.

SP was 15 years of age and a virgin at the time, and is now 28. She outlines the offences as having had a dramatic affect on her. She describes herself as having been outgoing, ambitious and carefree prior to the offences. Since that time, she describes herself as having become paranoid, self-conscious, pessimistic and highly strung, constantly feeling anxious and on edge. She does not often trust people, especially men, and cannot form relationships because she cannot be intimate. Intimacy causes her to have flashbacks and she is only able to be intimate when "really intoxicated".

Although she was an underage drinker, she became a binge drinker when she turned 18, and it has had a significant impact on her physical health. She has not been able to "hold down" a job, and when dealing with men always wonders if they are the person who had assaulted her. When working evening shifts, she has had to walk home at night, scared that she would be assaulted again. On one occasion, her fear brought on an asthma attack. She does not drive, and this has limited her choice of jobs because of her ongoing safety fears. As a result she is currently unemployed.

She has a very limited social life, preferring to sit alone at home, in her bedroom, and drink. Her lack of trust in people in general means that she does not want to meet new people or make new friends. She has had trouble making new friends, because she perceives them as not really understanding what she has been through, and finds it hard to relate to them. She states, "I want to try to get on with my life, but I think the psychological scars I have been left with will always be there. I'm worried that I won't be able to settle down and have children or achieve the dreams that I once had for my future".

The offences have had a very significant emotional and psychological impact on the complainant. At the time of the offences she was 15 years of age and a virgin. The experience has had a severe impact on her enjoyment of life, and is highly likely to continue to do so for at least the foreseeable future, if not the remainder of her life. Such an impact can be reasonably expected as a result of such a horrendous experience for an inexperienced 15 year old.

The impact on each of the victims of the sexual assaults supports the finding that the offences are very serious but do not constitute an additional aggravating feature as provided by s 21A (2) (g) of the Crimes (Sentencing Procedure) Act, 1999, as such impacts are within the range, although only just within, of what might reasonably be anticipated as arising from offences of this nature. R v Youkhana [2004] NSWCCA 412

Before the commission of offences 1 to 4 above, the offender, DOB 16 October 1969, had been convicted of five offences. (Criminal History - Exhibit 1 Tab 4)

On 14 September 1988, he was sentenced at the Liverpool Local Court in respect of three offences: Malicious Damage - Fine of $100 and $60 compensation. Possess Prohibited Article (An explosive device - Cubit Report dated 31/07/2007 being part of Exhibit 2) - Rising of the Court. Public Mischief - Fine of $200.

On 30 January 1989, he was sentenced at Parramatta Local Court in respect of two counts of Stealing contrary to s 501 and fined $400 on each.

These offences, other than noting them, have no relevance to the current matters before the court.

However, subsequent to the commission of the offences now before the court, Holt DCJ sentenced him on 14 November 1997 at Parramatta District Court for an offence of Aggravated Sexual Assault (s 61J (1)).

In addition, Tupman DCJ subsequently sentenced him on 8 November 2002 at Parramatta District Court for a further offence of Aggravated Sexual Assault, also taking into account an offence of Armed Robbery pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999.

The offences dealt with by Holt DCJ and Tupman DCJ are relevant and significant in relation to sentence for the offences now before the court.

It is necessary to understand the order of commission of all offences, and the order in which the offences before Holt DCJ and Tupman DCJ came before the court.

The order of commission: A. 14 April 1995 - Offences against BH.

B. 1 May 1996 - Offences against JL - (Sentence: Tupman DCJ - 8/11/2002)

D. 27 October 1996 - Offence against LE - (Sentence: Holt DCJ - 14/11/1997) The offender was first arrested for the last in time offence (D) and sentenced on a guilty plea by Holt DCJ on 14 November 1997. He was sentenced to a total term of 8 years imprisonment with a minimum term of 5½ years (25/11/96 to 24/5/02) and an additional term of 2½ years (25/5/02 to 24/11/04). Special circumstances were found to assist him with rehabilitation, to "rid him of his drug habit".

While serving that sentence, a DNA link was made to the earlier offences, B, above. This was reported to police in October 1998. He was charged on 1 September 2000. He was arraigned in the District Court and pleaded not guilty to an indictment containing two counts, that is, Aggravated Sexual Assault and Armed Robbery. Approximately one week before the trial date of 13 August 2001, he was re-arraigned on an indictment containing only the Aggravated Sexual Assault, to which he pleaded guilty and then asked that the Armed Robbery be taken into account.

Tupman DCJ sentenced him on 8 November 2002. He was sentenced to a total term of 8½ years imprisonment (24/5/2001 to 23/11/2009) with a non-parole period of 6 years (24/5/2001 to 23/5/2007). Her Honour appears to have allowed "about twelve months" (Remarks P 29) for the Armed Robbery taken into account. Her Honour took into account the totality of the sentence imposed by Holt DCJ and the sentence imposed by her Honour. Her Honour did not find special circumstances "with the exception that I propose a partial accumulation of this and the existing sentence".

The practical result was that the offender served 4½ years of the 5½ years non-parole period imposed by Holt DCJ, at which time he commenced to serve the sentences concurrently.

The earliest possible date of release on parole was 23 May 2007, and the sentences expired before (Holt DCJ - 24/11/04) or on 23 November 2009 (Tupman DCJ).

The offender has been in custody from 25 November 1996 to date. Although the previous sentences have expired, he is currently in custody, bail refused because of the matters now before the court.

He was still in custody in respect of the sentence imposed by Tupman DCJ when charged on 28 February 2009 with the current offences, A and C above, parole not having been previously granted, although he became eligible from 23 May 2007.

Facts in Relation to the Relevant Criminal History in Chronological Order of Commission

1 May 1996 - Offence of Aggravated Sexual Assault against JL - Armed Robbery taken into account. (Summarized from Remarks on Sentence of Tupman DCJ) o The aggravating circumstance was threatening to inflict actual bodily harm on the victim by means of an offensive weapon, a pistol.

o The victim advertised in a newspaper for a person to share her accommodation.

o The offender responded by telephone. In the call he claimed to be a personal care assistant in a mental hospital. After a subsequent call several days later he attended the premises by arrangement at about 6 pm.

o The offender having inspected the premises presented a pistol at the head of the victim as he was leaving and demanded money. (Accepted as being a replica pistol, although unknown to the victim.)

o Still armed with the pistol, he directed her to her bedroom and ordered her to remove her clothes and lay on the bed. She complied.

o With his penis he penetrated her vaginally while touching her breasts and making offensive remarks, calling her a slut and asking her if she enjoyed it.

o The victim put her clothes back on and the offender walked her, while holding her with one arm around her body and holding the pistol, to the room where the baby had been left in a bouncer.

o He repeatedly threatened her, that if she told the police he would return, before leaving.

It is relevant to note that in this matter there was a single act of sexual intercourse, penile/vaginal.

27 October 1996 - Offence of Aggravated Sexual Assault against LE. (Summarized from Remarks on Sentence of Holt DCJ) o The aggravating circumstance was threatening to inflict actual bodily harm on the victim by means of an offensive weapon, a 25 cm knife with a 15 cm blade.

o The victim advertised in a newspaper for a person to share her accommodation.

o The offender responded by telephone and subsequently attended the premises at about 12:30 pm on the day before the day they had agreed he was to attend, after first having established that she lived alone.

o While inspecting the premises he took hold of her from behind while holding the knife. She was ordered to lie on a bed and her hands and ankles were tied with cord cut from her dressing gown. Her hands were tied behind her back. He also forced a sock into her mouth and bound it in place.

o He said he was not going to "rape" or hurt her and only wanted money before searching the premises.

o When he returned, he untied her and removed the sock before saying, "I'm going to fuck you". He partially disrobed her and ordered her to complete the task. She complied.

o He ordered her to lie down, splay her legs and masturbate herself. She complied.

o He then ordered her to kneel on the bed and further assaulted her by an act of penile/vaginal intercourse from behind.

o He then said he was "going to give it to you up the anus". Despite her pleading not to do so he had penile/anal intercourse.

o Shortly thereafter he again assaulted her by having further penile/vaginal intercourse and ejaculated.

o He demanded to know the location of money and valuables before further searching the premises and retying her before departing.

o Semen was located on both vaginal and anal swabs.

o The victim suffered soft tissue damage to both the vagina and anus.

o Approximately 80 compact disks were stolen, as well as a watch and several rings, one of which was a diamond ring, and another a diamond and sapphire ring. It is relevant to note that in this matter there were four acts of sexual intercourse, in sequence: penile/vaginal, penile/vaginal, penile/anal and penile/vaginal. The victim was also forced to masturbate herself. A significant amount of property was stolen.

Despite those facts, the offender came before the court for a single offence of Aggravated Sexual Assault. The court has been informed, and it is agreed between the parties, that the prosecution at the time regularly dealt with matters such as this by proceeding with what was referred to as a "representative" single count, although asking the court to take into account the overall conduct, which clearly included in this matter a number of distinct offences. It is difficult to understand how the court could take into account the facts before the court relating to the robbery when there was no relevant charge before the court. Either those facts should not have been before the court, or there should have been a separate charge or a charge to be taken into account pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999.

The offender is now 40 years of age. At the time of the offences against BH, he was 24 ½ years of age, and at the time of the offences against SP, he was 26. He has been in prison since 25 November 1996, more than 13 years. Considering the lengthy period of custody, one third of his life and most of his adult life, a significant part of the offender's personal circumstances are concerned with the period of custody.

There is no current Probation and Parole Pre-Sentence Report before the court, that is, a report that addresses these offences and any relevant recent personal history.

Tendered on behalf of the offender is a psychiatric report of Dr. R. Furst, forensic psychiatrist, dated 28 July 2009. That report is the only report before the court that does address these offences. It is part of Exhibit 2, together with a number of other documents fully described in the schedule to the exhibit.

They include historical reports tendered before Holt DCJ from government department sources - Psychological Report: Pre-Sentence (Ms L. Sullivan & Ms N. Sutton - Dept of Corrective Services), Psychiatric Report (Dr. C. D. Corcos - Corrections Health Service) and a Probation and Parole Pre-Sentence Report (Ms H. Knowland).

The other documents in the exhibit, with the exception of a number of Certificates of Achievement and the NSW Criminal Court Statistics for 1997, postdate the Tupman DCJ sentence of 8 November 2002, and can be generally described as Probation and Parole Pre-Release Reports and Reports of the Serious Offender Review Council (SORC) relevant to past considerations of parole. They also contain an Acute Crisis Management Unit discharge summary, dated 21/05/03, and a CUBIT Treatment Report, dated 31/07/07.

With the exception of the Probation and Parole Pre-Release Report, dated 19/03/09, and a Supplementary Report of SORC, dated 21/04/09, all other reports and summaries predate the offender being charged with these offences on 28 January 2009. The only relevance of these offences to those reports was to note that he had been recently charged with them, and to take that fact into account in again refusing reduction of sentence on parole.

The offender was first eligible for release on parole on 23 May 2007. That he was not released on that date or before being charged with these offences, a period in excess of 1½ years, is not related to these matters. It is directly related to determinations that he was not suitable for release by SORC for reasons other than these offences.

In addition, the court has available the Remarks on Sentence of Holt DCJ and Tupman DCJ containing the personal circumstances of the offender as accepted by them, obviously with the limitation of what was not then known of his other offending behaviour. This court is not bound by their Honour's findings but may be assisted by them. This is particularly so in that the offender gave evidence before Holt DCJ but not Tupman DCJ or this court. It is also not clear what reports were before Tupman DCJ in addition to any reports that had been before Holt DCJ. There was evidence from Dr. O. Neilssen, forensic psychiatrist, before Tupman DCJ, but this only went to the question of the offender's claim to have no recollection of committing the offences her Honour was dealing with, a proposition rejected by her Honour.

Of note is that he made a similar claim of having no memory of committing the offences dealt with by Holt DCJ, both to the reporting pre-sentence officer and on oath before his Honour, but years later admitted, for the purpose of a Pre-Release Report, dated 23 January 2007, that he had not been truthful. (Exhibit 2 item 5 - Pre-Release Report of Ms A. Annas - P. 3 to 4)

A further difficulty is that almost all of the offender's personal history appears to have been sourced almost entirely from him, and simply repeated from time to time either by him or by one report referring to the content of an earlier report based on self reporting.

Apart from the admitted lack of truthfulness already referred to, it is of concern that in the Probation and Parole Report of Ms H. Knowland, dated 25 July 1997, who had spoken with both his father and a prior de facto partner, that "He has been described as a compulsive liar". (Exhibit 2 Item 8 P. 3)

He made assertions for the purpose of sentence by Holt DCJ that the offence of 27 October 1996 (D) was entirely out of character, and explained it as resulting from stresses associated with the birth of a stillborn daughter several months earlier and misuse of drugs. (Exhibit 2 - Psychological Report of Ms L. Sullivan, July 1997 - P.4) The passage of time has brought to light the three previous attacks. (A, B and C) The earliest was on 14 April 1995, approximately 1½ years before the claimed "out of character" offence.

In 2007, before being charged with these offences (A and C), the offender explained the offences for which he had been sentenced as not being sexually motivated in that he intended to commit a robbery and not a sexual offence on 1 May 1996 (B), and that in respect of the later offence on 27 October 1996 (D), he was testing or challenging himself to see if he would commit another sexual offence. (Exhibit 2 Item 5 - Pre-Release Report - A. Annas - 22/01/07 Item 9 - CUBIT Treatment Report 31/07/07)

Clearly, the offender modifies his explanations from time to time in an attempt to diminish his culpability and adjusts what is then known to what he perceives as being in his best interest.

The foregoing information highlights the need for the court to approach the question of the offender's personal circumstances with a degree of circumspection. R v Qutami [2001] NSWCCA 353; R v Woodgate [2009] NSWCCA 137

The court accepts that the offender had a very deprived upbringing in a dysfunctional family as the youngest of six children where both parents drank heavily and there was frequent domestic violence including physical violence towards the offender by his mother. His mother died when he was approximately 15 years of age, and he left school to obtain employment.

His early childhood was marred by delinquency to the extent that in 1997 Dr. Corcos diagnosed him as having suffered from a "conduct disorder". Drug use commenced before the death of his mother, but after her death it escalated, and he was abusing marihuana, Benzodiazepines (including Valium, Serapax and Rohypnol) and was using amphetamines twice weekly, and occasionally cocaine. As occurs with approximately 50% of those who develop a "conduct" disorder in childhood, he went on to develop a severe personality disorder of an anti-social nature in adulthood, exhibiting strong narcissistic traits and a tendency to try to place responsibility for his situation onto others. He has had difficulty managing stress, and has exhibited distress and frustration in the past by self-mutilation (superficial skin wounds), in an attempt to influence others to fulfil his demands.

In 2009 Dr. Furst, forensic psychiatrist, reviewed the reports contained in Exhibit 2 as well as the facts, criminal history and Remarks on Sentence of Tupman DCJ. The report contains a combination of information sourced from the reports as well as the offender. His report contains in part the following:

"His pattern of low mood, mood swings, poor sleep and self-harm has continued throughout most of his incarceration over the last 13 years, including cutting himself on numerous occasions, and being admitted to D Ward in Long Bay Hospital in 1997 for two weeks after a suicide attempt.

He was diagnosed with Borderline Personality Disorder, Antisocial Personality Disorder and ADHD by Prof Finlay-Jones and admitted to the Kevin Waller Unit at Long Bay in 2000, a unit that specializes in the management of inmates with personality disorders and self-harming behaviours. He was also prescribed Dexamphetamine for his ADHD for about two years, which seemed to help with his concentration. I note he was admitted to the Acute Crisis Management Unit in Bathurst from 24/04/03 to 21/05/03 after being placed under the care of the Risk Intervention Team with thoughts of self-harm. I note he was treated with the combination of the antipsychotic medications Largactil, Fluenthixol, and the antidepressant Avanza. Mr Van Der Baan said that his mood had been improving in 2007, however he felt things were "going backwards" in 2008 as he was treated for a heart condition (Atrial Fibrillation) with the Beta-Blocker Sotalol, which he thought exacerbated his mood swings. He was also stressed by unsuccessful parole applications. He had thoughts of harming himself after being charged with the current offences before the court in January 2009, leading to his admission to the Acute Care Management Unit in the MSPC, Long Bay on 30/01/09 where he has remained over the past six months. I understand that he has been seeing a clinical psychologist on a weekly basis and Dr Sam Roberts, psychiatrist, every month." (Exhibit 2 Item 1 P. 4)

While Dr. Furst's summary can be accepted, it is of note that there are no reports before the court from either the psychiatrist or clinical psychologist referred to by Dr. Furst, and that the offender was the only source of the information relating to being admitted to the Acute Care Management Unit for six months. In the absence of reports, the offender's admission to the Acute Care Management Unit, and his being "seen" by a psychologist and a psychiatrist, does not assist the court.

Dr. Furst goes on to refer to participation in the Custody Based Intensive Management Program (CUBIT) and the benefits claimed by the offender, as well as stating that changes described by the offender were supported by the CUBIT Treatment Report and quoting: "…a high level of participation in group sessions, the opinion that he has "taken full responsibility for his offending", showing "enthusiasm and engagement in group activities, contributed to discussions, shared his experiences, adequately completed all tasks, listened to feedback, and provided insightful and valuable feedback to the support group members". He "demonstrated a comprehensive understanding of key therapeutic issues"."

The CUBIT Treatment Report of 31/07/07 contains under "Conclusions and Recommendations" the following:

"In CUBIT, Mr Van Der Baan has demonstrated a willingness and ability to address some issues in his life that have been problematic. Overall, Mr Van Der Baan has made significant progress in treatment. He has accepted full responsibility for his sexually offending behaviour, has a greater understanding of his lifetime patterns, can demonstrate empathy skills, coping and emotion management skills and interpersonal relationship skills, and has a comprehensive understanding of his offence pathway, risk factors, self management plans and warning signs. Mr Van Der Baan's intellectual understanding of the association between the thoughts, feelings and behaviour related to his offending developed significantly throughout treatment. Although Mr Van Der Baan has addressed a number of the issues that led him to sexually offend and has demonstrated progress in the areas listed above. It is essential that he remains focused on these in order to sustain the positive life changes made so far."

The report continues to list a number of issues requiring vigilance and suggested further needs in custody and conditions of release.

Dr. Furst also refers to the CUBIT Treatment Report including an assessment of the offender's risk of future sexual recidivism being rated as "Medium-Low using the Static-99". Static-99 is an actuarial risk assessment of an offender relative to other male sexual offenders. Dr. Furst merely notes the assessment without comment, that is, he does not purport to agree or disagree with the assessment, and does not provide any opinion as to the offender's risk of re-offending.

At the time the assessment was made, the current offences were not and could not be taken into account for the purpose of Static-99 or in understanding the representations made by the offender as to his reasons for the offences before Holt DCJ and Tupman DCJ. Little assistance can be gained from the CUBIT Treatment Report or the Static-99 assessment in those circumstances.

Dr. Furst expressed the opinion, consistent with other psychiatric opinion, that at the time of the offences the offender was "suffering from a distorted sense of self and the world around him as a consequence of his severe personality disorder and development experiences. … there is no indication that he was suffering from a severe depressive illness, a major mood disorder, or a psychotic disorder. He was aware of his actions and aware of their wrongness".

During the offender's imprisonment he has participated in and completed a number of educational courses. Exhibit 2 contains 25 certificates of participation or achievement and TAFE course results. The most recent relates to obtaining a Certificate II in Business from TAFE in October 2007. It is commendable that the offender has used his time in custody to complete a significant number of courses to improve his education and skills to assist him in the future.

The victim BH identified the offender from the "60 Minutes" television programme on 4 November 2002. He was interviewed on 29 November 2002 and declined to say anything. On 28 January 2009 he was again interviewed, and made admissions to the offence.

On 28 January 2009 he was also interviewed in respect of the offences against SP. He said that he did not know the victim and declined further interview.

He was charged with the offences against BH and SP on 28 January 2009.

He entered a plea of guilty to all offences in the Local Court on 8 April 2009.

Dr Furst's report includes a claim by the offender that he has written letters of apology to the victims BH and SP. There is no evidence to confirm that claim. The court does not accept that any letters of apology would necessarily evidence contrition or remorse in the circumstances of these matters. Remorse or contrition may occur at any time, but 13 or 14 years is an inordinately lengthy period of inaction.

There is no other material before that court that evidences contrition or remorse in respect of the offences.

A plea of guilty may sometimes in itself provide such evidence. The court is not able to find in the circumstances of the substantial evidence available to the prosecution in relation to these offences, including perhaps similar fact evidence from the offences dealt with by Tupman DCJ and/or Holt DCJ, that the pleas were any more than an acknowledgement of the strength of the Crown cases.

The offender has completed a number of educational courses during his imprisonment. These included 24 hours of a 26 hour Drug and Alcohol course, completed on 13 April 2006. Although, he has been breached on eight occasions while imprisoned for failing or refusing urine tests, possessing prohibited goods and drug implements; the last occasion was in July 2004. He has also attended for eight sessions of information in the "Understanding Sexual Offending" course, a non-therapeutic program, in May 2005.

Despite his lengthy period in custody, he did not commence the CUBIT program from when it was first available to him until 5 September 2006. He completed the program by July 2007 and the CUBIT Treatment Report, dated 31/07/07, is favourable to him. However, because of the matters already referred to, the report only evidences compliant participation rather than genuine rehabilitation. That is, the treatment and counselling were based on the knowledge of only those offences dealt with by Tupman DCJ and Holt DCJ. The offender's participation and progress was assessed against that limited information. Entirely different opinions may have been expressed given the knowledge of the nature of the offences now before the court, and the clearly false explanations advanced by the offender during the program as to why he committed the offences dealt with by Tupman DCJ and Holt DCJ.

On the offender's behalf it was said, "I can't submit … that he has great prospects of rehabilitation but there is evidence to suggest that he has some reasonable prospect of rehabilitation."

The court is unable, in the absence of credible evidence that takes into account the commission of these offences, to find that the evidence before the court demonstrates any significant past rehabilitation or prospect of future rehabilitation. That is not to say that there is no prospect of rehabilitation. Advancement in age may in itself assist in rehabilitation.

The offender committed offences of Aggravated Sexual Assault against four separate women on four separate occasions within an 18-month period. Although there were differences between the offences, they were all significantly similar in that they reveal that the offender was driven by a need to sadistically dominate, demean and degrade the victims by placing them in significant fear for their lives and wellbeing, to obtain acquiescence in their violation by the offender's extremely offensive conduct. The word "horrendous", used by Holt DCJ, to describe the offence against LE can aptly be used to describe the offences against each of the other victims.

In the light of the number of occasions of offending, the nature of the offences, and the absence of any acceptable evidence to the contrary, the offender must be regarded as a significant ongoing risk to the community. However, such a conclusion cannot lead to any extension of an appropriate penalty for the offence to provide preventative detention for protection of society. Veen v R (No 2) (1988) 164 CLR 465

It is clear that the sentences to be imposed in respect of such serious offences as these must be terms of full time imprisonment. The parties are in agreement with that conclusion and their submissions have accepted such sentences as inevitable.

There has been a significant delay between commission of the offences and sentencing.

In R v MJR (2002) 54 NSWLR 368 it was held that where, by reason of delay, an offender is exposed to a harsher punishment and sentencing regime than that which existed at the time of the offence, and if an authentic and credible body of statistical material exists that is capable of reconstructing what would have been done previously, then the approach outlined in R v Shore (1992) 66 A Crim R 37 should be adopted. In Shore Badgery-Parker J at [42] said: "In my opinion I should, so far as I am able to do so, seek to impose upon the offender a sentence appropriate not only to then applicable statutory maxima but also to then appropriate sentencing patterns. That is by no means easy, but in my view I must endeavour to do so."

In the absence of such statistical material, the court is constrained to take the non-statistical approach, as described by Howie J in R v Moon (2000) 117 A Crim R 497 at 511, and approved by Sully J in R v MJR at [107] and endorsed by Spigelman CJ at [31].

At a glance

Court

Decision date

Source

Judgment (247 paragraphs)

Parties

Cases Cited (8)