R v Ward

OBJECTIVE SERIOUSNESS

1. Turning to the objective seriousness of the offences, I make the following observations and findings. I have already noted the maximum penalties that the offences attract and the fact that counts 1 and 2 also have specified a standard non-parole period. These matters mark these offences as being of a type that parliament has treated seriously. The offences in counts 1 and 2 respectively involved sexual touching of the victim's breasts and buttocks through her clothes, and in each case the touching was relatively brief. The offender also did not persist with the touching when the victim protested. Also, there was no act of violence beyond the violence inherent in the offences themselves.
2. The count 3 offence involved the offender being completely naked and placing his erect penis near to the victim's face. He also did not immediately stop when he was told to get away, leading to the victim threatening to kick him and placing a pillow in front of her face as protection. Each of the three offences were obviously motivated by an interest in sexual gratification which was despite the fact that the offender had already been told earlier in the day that the victim wanted "nothing sexual" and notwithstanding that he had more recently been rebuffed when he said, "Let's fuck". Also, while it is accepted by the Crown that I could not be satisfied beyond reasonable doubt that the offender knew the victim to have a mild intellectual delay, I am satisfied that he would have realised that the victim was somewhat childlike and vulnerable.
3. It was submitted by the Crown that there was some planning by reason of the offender presenting himself as a 17-year-old and taking advantage of the victim's lack of sophistication in directing her to Ryde, driving her around and laying down on his bed. In my view, however, and while the offender probably had some general plans or hopes of some sexual contact with the victim and/or her friend, the specific offences are more correctly characterised as opportunistic.
4. I do accept that the victim was somewhat vulnerable due to her intellectual limitations, although on the other hand, it is to her credit that she had the confidence and mental strength to rebuff the offender's unwanted advances. In taking into account the victim's vulnerability, I am however mindful of the fact that her cognitive impairment is an inherent aspect or element of each of the offences. So, I have taken care not to double count this aspect in assessing the objective seriousness.
5. Having regard to all the facts, I regard the counts 1 and 2 offences as being below the mid-range and towards, although not within, the lower range of objective seriousness. I regard the count 3 offence as being within that same general range although perhaps slightly closer to the mid range for that type of offence.
6. A Victim Impact Statement was provided to the Court by TS. While the Crown does not rely upon it as aggravating any of the offences, it confirms the usual expectation or presumption that these sorts of offences can usually be expected to have significant and long-lasting effects upon victims and their families. The Victim Impact Statement in this case confirms this in plain words.

SUBJECTIVE MATERIAL

1. The offender's personal background and current circumstances have been placed before the Court, primarily by means of two psychological reports. The offender is now 28 years of age. His early life was complicated by parental arguing and domestic violence, as well as a drawn-out custody battle between his parents relating to the offender, who was the only child of that relationship. His parents separated when he was about five or six years old, which the offender told one of the psychologists attributed to his mother's serious problems with alcohol and drug abuse.
2. The offender attended high school until part way through year 9 but was suspended on multiple occasions for bullying, persistent disobedience and fighting. Subsequently however, he was able to complete a Certificate III in horticulture and has had a sporadic work history in landscaping as well as other jobs, mostly involving manual labour. He commenced using cannabis and alcohol at about age 13 and also has a history from about age 18 until about 25 of experimenting with other drugs including cocaine, acid, ketamine, ecstasy and methylamphetamine. He has apparently had no treatment to date for substance abuse issues.
3. He has had several girlfriends over the years but has never been married or lived with anyone as a full-time partner. At the time of assessment by the psychologist in 2022 however, the offender said he had been in a relationship for about ten months with his girlfriend Taylor who was aged about 25 and who accompanied him to that assessment. The psychologist, Ms De Santa Brigida, reached the conclusion that the offender would have met the criteria for Oppositional Defiance Disorder in his developing years and concluded that he transitioned later to Conduct Disorder/Adolescent Subtype. She further concluded that the offender meets the criteria for Post-Traumatic Stress Disorder based upon his report of having been sexually abused at around the age of 15 or 16, his childhood exposure to domestic violence, and the significant trauma associated with his having discovered and attempted to resuscitate his deceased mother, which occurred only some days before the offences before the Court.
4. Despite these diagnoses and the offender's difficult childhood, the psychologist Ms De Santa Brigida reached the conclusion that in terms of intelligence the offender was within the low average to superior or high average range.

REMORSE AND REHABILITATION

1. Turning to matters of remorse and prospects of rehabilitation. There is no remorse in this case. The offender confirmed this when speaking with the author of the Sentencing Assessment Report when he maintained his innocence despite the obvious fact that a jury of 12 was satisfied of his guilt beyond reasonable doubt. The psychologist, Ms De Santa Brigida, administered actuarial type testing which indicated that the offender is in the above average range for sexual reoffending, although noting the limitations of this type of testing which are, of course, group based rather than individual based. Other testing of the offender indicated that he has marked potential for problems with acting out and is inclined to be impulsive and sensation seeking as well as having a marked potential for problems with anger control.
2. While the offender's criminal history does not include previous offences of a sexual nature, his history of offending does suggest a problem with impulse control which is consistent with the conclusions reached by the psychologist in her report of January 2023. The Sentencing Assessment Report indicates that the offender has no insight into his offending, given that he continues to maintain his innocence. That report indicates also that the offender's attitude to any penalty involving his being supervised or doing community service work was rather negative. These are not matters that assist him.
3. On the other hand, he does have the support of his sister, he is apparently in a relationship, and has a recent history of engaging successfully in paid employment. Having regard to these positive factors and the fact that he is now approaching 29 years of age, there is some reason to hope that his increasing maturity will operate to reduce his previous capacity for impulsive criminal conduct. I assess his prospects of rehabilitation and staying out of trouble as being guarded but reasonable.

DETERMINATION

1. In determining the appropriate sentence in this case, I have regard to the terms of s 3A of the Crimes (Sentencing Procedure) Act 1999 and the important purposes of sentencing as set out in that section, which of course, include the need for adequate punishment, the importance of deterring others and the offender from similar offences, the need to protect the community, to make the offender accountable, to denounce his conduct and recognise the harm done to the victim and the community generally by these sorts of offences. But also, to promote the rehabilitation of the offender. I am satisfied for the purposes of s 5 of the same Act that the so-called threshold referred to in that section has been passed.
2. Counsel for the offender submitted that, if examined separately, each of the offences on their own would perhaps not pass the s 5 threshold. In my view, there is some merit to this submission. However, I must, of course, look at them together, and when that is done, as was acknowledged, they amount to a course of persistent conduct in the face of a clear lack of consent. I am therefore, as I have said, satisfied that a term of imprisonment is the only appropriate sentence.
3. I intend to impose an aggregate sentence, given that there are three offences for which I must impose penalty. In determining the overall sentence, I have had regard to totality principles as well as the extent to which the sentences ought to be concurrent or cumulative. In my view, there is a need for some notional accumulation. While the three offences occurred over a fairly limited period of time, they did involve three separate and deliberate acts separated in time and punctuated by repeated indications from the victim that the offender's actions were unwanted. In those circumstances, it is appropriate for there to be some notional accumulation although it should not be great.
4. As I am imposing an aggregate sentence, I am required to declare the indicative sentences that I would otherwise have imposed. These are, of course, not the ultimate sentence - that will be made clear in a few moments. The indicative sentences are as follows. For count 1, imprisonment of 14 months, and I would specify a non-parole period of nine months. For count 2, 14 months imprisonment and again, a non-parole period of nine months. For count 3, imprisonment of ten months.
5. Instead, I impose an aggregate sentence of 18 months imprisonment. I have given consideration as to whether that sentence ought be served by full time custody or in the community pursuant to an Intensive Correction Order. In making that assessment, community safety is to be the paramount consideration, although, I must also keep firmly in mind the other purposes of sentencing to which I have already made reference.
6. As was confirmed by the High Court of Australia in the recent case of Stanley v Director of Public Prosecutions [2023] HCA 3, I am required to look to the future possible impacts of the sentence of imprisonment, depending on whether it is to be served by full time detention or by an Intensive Correction Order in the community. As parliament said when enacting the relevant provisions, community safety will not always be best served by a term of actual imprisonment, but each case must depend on its circumstances.
7. In this case I take into account the fact that, before being granted bail, the offender had served a period of actual custody, slightly in excess of one year seven months, and this was during some of the worst restrictions associated with the COVID pandemic. In my view, this has already met many of the requirements of sentencing, including adequate punishment, denunciation, personal and general deterrence and the other factors in s 3A of the Crimes (Sentencing Procedure) Act 1999. Given this and the fact that the offender has engaged himself in useful employment, he is in a relationship, has the support of his sister and stable accommodation, I am satisfied that community safety would be better served by not returning the offender to the negative influences he would re encounter in gaol. I am satisfied that an Intensive Correction Order is the more appropriate penalty.
8. Mr Ward, stand up and I will announce and explain the sentence to you. I order, pursuant to s 7 of the Crimes (Sentencing Procedure) Act 1999, that the term of imprisonment of 18 months be served by Intensive Correction Order in the community. That will be subject to a number of conditions. The first two of them are standard conditions. The first condition being that you be of good behaviour during that period of 18 months from today. Secondly, that you accept supervision of Community Corrections. I impose four additional conditions. Firstly, that you not consume illicit drugs or any prescription drugs other than those prescribed for you by a medical practitioner. Secondly, that you undertake counselling in relation to drug relapse prevention or similar counselling as directed by Community Corrections. Thirdly, that you undertake any other counselling or psychological treatment as directed by Community Corrections. Fourthly, that you perform 150 hours community service.
9. I order that you report to the Community Corrections office at Wyong within seven days from today and I direct that a copy of the psychological reports of Ms De Santa Brigida dated 23 November 2022 and the report of Dr Melissa Hughes dated 6 September 2021 be forwarded to the Community Corrections office at Wyong. I also note that there is a statutory non-publication provision such that the name of the complainant and her friend to whom I have referred must not be published.
10. Mr Ward, do you understand those orders? That is a term of imprisonment which has been imposed upon you for a period of 18 months from today and if you were to breach any of those conditions, those six conditions that I just read out, then you would be referred - you would likely be referred to the State Parole Authority who can simply order that you serve the remainder of the term. Do you understand? Ms Crown, Mr Wasilenia, anything that I've overlooked?
11. CROWN PROSECUTOR: No.
12. WASILENIA: No.
13. HIS HONOUR: You'll have to go to the registry and enter into that intensive correction order. Thank you.

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