R v Wilson

Charges

1. When the matter was before the Local Court, Wilson indicated that he would plead guilty to an offence of aggravated sexual intercourse with a child aged 14 years and under the age of 16 years. The circumstance of aggravation charged was that he took advantage of the complainant being under the influence of alcohol and cannabis in order to commit the offence: Crimes Act 1900 (NSW), s 66C(4). That offence carries a maximum penalty of 12 years imprisonment.
2. For an offence, which taking into account only objective factors, falls within the middle of the range of objective seriousness Parliament has said there is a standard non-parole period of 5 years. That maximum period and that standard non-parole period are important guides to the exercise of my sentencing discretion. Any sentence should give content to the standard non-parole period.
3. The assault was placed on a s 33(2)(b) Crimes (Sentencing Procedure) Act 1999 (NSW) Form 1. I am asked to take it into account when I sentence for the principal offence. It will be taken into account. Although I do not sentence for it, it does here operate to increase the sentence for the principal offence. The increase recognises the need for personal deterrence and retribution for the crime for sentence: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 at [39]-[42].
4. The plea of guilty in the Local Court requires that I reduce the otherwise appropriate sentence by 25% to reflect the utilitarian value of that guilty plea. That is an important reduction.
5. Here, there is no evidence of actual remorse. The offender is not to be punished for that. It means that he has very little insight into his own problems, let alone the problems his actions and crimes caused the complainant. He has cooperated and facilitated the course of justice. Those are matters I take into account.

Objective seriousness of the offending

1. A judge is required to identify all the factors that are relevant to the sentence, discuss their significance, and make a valued judgment about the appropriate sentence: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [51] (McHugh J).
2. There is no requirement that I engage in a staged approach to sentencing. In fact, it would be wrong to do so. But sentences must be proportionate to the crime committed. That requires an assessment of the objective seriousness of the crime. It has been held that such an assessment is essential to set the parameters of an appropriate sentencing outcome.
3. All factors which bear upon the seriousness of the offence should be taken into account. They include factors personal to the offender that might be causally connected with the crime. Regard may be had to factors that contributed to the commission of the offence, such as mental disorders or mental impairment: Paterson v R [2021] NSWCCA 273 at [29]; Tepania v R [2018] NSWCCA 247 at [112].
4. The evidence about the offence speaks to its general seriousness as it involved sexual intercourse with a child aged under 16 and sex with a child who was intoxicated. It is important to note that every act that involves the sexual exploitation of a child is serious. There is an absolute prohibition on sexual activity with children, that is, anyone under the age of 16. The laws are there to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson [2011] VSCA 152; R v Gavel [2014] NSWCCA 56; R v Van Ryn [2016] NSWCCA 1. Further, any act that involves another person taking advantage, and here, advantage in a sexual manner of a child who, to their knowledge and with assistance, has become intoxicated, is treated very seriously indeed.
5. Other pertinent features include, here, the sexual acts themselves. There was an act penile vaginal intercourse with a child without protection carrying the risk of disease and/or pregnancy. There is nothing in the evidence before me that indicates that Wilson showed any particular regard for the safety and welfare of the complainant. In fact, what occurred that evening obviously attracted the attention of others in the community who called on the police to make a welfare check.
6. At the relevant time Wilson was significantly older than the child. He was 37, or 38. She was 15 and a half. The actual time over which the offence for sentence occurred is not known, but it is accepted that it was not an isolated incident. There is nothing in the evidence of the offence to indicate that the prosecution could establish the offence occurred without the complainant's consent. Nor is there any evidence about any willingness or active participation. It has held that consent is not really an appropriate term to use, as both a matter of fact and legal principle in matters such as this, as the absence of consent is not an element or inherent in offences against s 66C: Nelson v R [2016] NSWCCA 130 (Basten JA).
7. In Bell v R [2019] NSWCCA 251 at [32] and [33], it was said the better approach to the issue is, at best, noting that the act of sexual intercourse was "non-oppositional".
8. There are a number of matters that commonly arise in offences such as this that are absent - abuse of a position of trust, use of force, absence of exploitation and no indication of compulsion or grooming. The absence of an aggravating feature does not mitigate the seriousness of the offence. But the absence of aggravating features is relevant to assessment, as to where this offence falls on some notional scale, which can range using adjectives such as "inconsequential" through to "grave": Decision restricted [2023] NSWCCA 10 at [52] (Button JA).
9. The report from Ms Edwige also notes a history of profound of disadvantage, multiple significant childhood and adolescent traumas, leading to substance abuse, and mental health and cognitive impairments. It is her opinion at p 21, which seems soundly based, that at the time he offended Wilson had a mental health impairment that "significantly impaired his ability to make reasoned judgments, think clearly, regulate his behaviour and fully appreciate the wrongness of the act".
10. That mental health condition operates to reduce the objective seriousness of his crime. A crime which, as the history I will soon get to indicates, sadly perpetuated aspects of his own traumatic history.
11. All that said, this must be considered a serious crime, as all sexual crimes against children are, and as sexual crimes associated with drug use must be. It calls for a sentence of imprisonment of some length. So much is not in dispute as between the parties.

Victim impact

1. The absence of a Victim Impact Statement does not give rise to an inference that the offence had little or no impact: Crimes (Sentencing Procedure) Act, s 30. A submission was made by the Director of Public Prosecutions that the harm done was substantial and this was an aggravating feature: Crimes (Sentencing Procedure) Act, s 21A(2). Here, the presumption of harm is already a feature of this offence and one reason for the maximum penalty and high standard non-parole period.
2. Absent evidence of a specific harm beyond what was expected, this aggravating feature, if taken into account, would involve double counting. And I am endeavouring in this judgment not to double count matters, either in aggravation or mitigation for penalty.
3. But it needs to be said, as was said by Ms Edwige in relation to this offender's own history, that any sexual offence against the child can have a profound effect on their mental health, their relationships, their education, and have an economic impact upon them for the rest of their lives.
4. The impacts are interconnected in complex ways, as the history I am about to recount in brief summary, illustrates that very proposition. These matters were carefully enunciated in the Royal Commission into Institutional Responses to Child Sexual Abuse in their Final Report from 2017: Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse: Final Report - Volume 3 Impacts, (2017) at 11.

Other factors

1. The offender has a lengthy criminal history. He has been before the courts since he was very, very young. He has continued to offend, both in South Australia and New South Wales. He has failed to change his behaviour, take advantage of periods on conditional release. There are many reasons why that has occurred, but it is remains an objective fact.
2. His record means that he is not entitled to the leniency often given to first offenders. His record is relevant to the determination of a proper sentence for many reasons. While there are no sexual crimes on his long record, the commission of crimes while intoxicated is not uncharacteristic. His offending while intoxicated, it is part of a pattern of continued disobedience towards the law.
3. His prior criminal history cannot result in a sentence disproportionate to the gravity of the offence here. But it means, as is accepted, that all the matters to be considered require a careful analysis of the purposes of sentencing which go to retribution, and deterrence, and importantly protection of the community.

The case for the offender

1. The case for the offender is set out in the report of Ms Edwige, 29 August 2024. She was not required for cross-examination. Apart from her conclusion as to the offender's mental state at the time, she does not in any way address the facts of the matter, nor does she parrot anything said by the offender, as sometimes occurs with less professional forensic psychologists. There was no attempt to undermine the seriousness of a crime itself. It is a careful and detailed analysis which I can give considerable weight.
2. Wilson's personal history is uncontroversial, although sad and tragic. He is now 39. He is a Barkindji man through his mother. He had little, if anything, to do with his father. He was raised in Wilcannia, primarily in a multigeneration-multifamily home. His mother was often absent as told Ms Edwige, "floating around". He was subject to extreme poverty. As a child he was exposed to alcohol, crime, and sexual abuse. He responded, as a nine-year-old, by taking up petrol sniffing as a coping mechanism.
3. He was happy when his mother moved him and the family to Adelaide. Although his mother was often not in the family home, he reports that his then stepfather was perhaps the first and only person who has provided some positive supports to him. He also reveals that his stepfather was a drug dealer which means that his belief this was positive support came from a very low starting point.
4. Unsurprisingly, when he was ten or 11, he came to the attention of police. He spent time in a now notorious youth training centre in South Australia. There, he was subject to sexual and other forms of abuse.
5. Unsurprisingly, his education was disrupted. He had to learn to read and write in gaol. Unsurprisingly, he took up the use and abuse of substances, and then illicit drugs, well before he had any capacity to make rational decisions.
6. He has however, been able to form relationships. He says that he is the father of 16 children to three different women. It appears that, at some stages those relationships overlapped. But there is simply no evidence that he has ever sought to be, or had the capacity to be, a father to his many children. Again, perpetuating intergenerational trauma to which he himself has suffered.
7. About three years ago, he moved with his brother to a house they had brought in Wilcannia, his home country. He met a new partner, but tragically she passed away. And, even more tragically, her body was not discovered for some time. Unsurprisingly, all of those circumstances led to an increase in his illicit drug use.
8. He was not, despite being on an Intensive Correction Order, engaged in any drug rehibition programs.
9. Ms Edwige details, with appropriate references, how these multiple traumas, could have an impact on a child, and how those impacts are reflected in his criminal and other history. His normal psychosocial development was impacted by his history of profound disadvantage. There remains, what Ms Edwige describes as, "intrusive trauma symptomology", including a number of related and stress related medical conditions.
10. Wilson has never engaged in drug and alcohol rehabilitation. He has not worked in the community. What he has learnt about life, both positives and negatives, he appears to have learnt in gaol.
11. His early history, drug use and petrol sniffing, leads Ms Edwige to conclude that it is plausible that he has an acquired brain injury because, on presentation to her, she noted cognitive deficits. As I noted earlier, she believed that at the relevant time he was actively psychotic. She notes that although antipsychotic medication had prescribed to him, he has stopped taking it.
12. She also notes that his significant mental health issues impact on his ability to function in the community. She says that he has symptomology consistent with Complex Post-Traumatic Stress Disorder, Post-Traumatic Stress Disorder, and Substance Use Disorders, all untreated.
13. She also notes the experience of incarceration has not been a positive one. He is not serving his time in custody well. There is evidence that he has been seriously assaulted during this time in custody. The Correctives Services Conviction Report, contained in Exhibit A on p 102, notes his classification was at times "NA - non association". NA is effectively solitary confinement. This is consistent with the history provided.
14. That a person has been assaulted in gaol is relevant and explains his hypervigilance. This is not a matter which involves any extra curial punishment, but judges do not ignore the lived experience of gaol when they synthesise all relevant considerations. If someone has been assaulted in the past, that makes their time in custody so much harder because they will be and need to be vigilant, it is against the possibility they will be assaulted again.
15. Wilson's underlying mental illness, the fact that he had multiple mental problems, can be taken into account, and will be taken into account, and do reduce the need to denounce his crime. He is less a vehicle for general deterrence than prisoners without those conditions. They do increase the burden of a custodial sentence.
16. But his mental illness also requires consideration of what measure should be taken in the future to protect the community. Obviously, the longer he is removed from it, the more the community is protected from him. But he must be returned to the community. And, if he can be returned with a plan, with supervision and with support, then that will result in greater long-term protection for the community, than simply releasing him without such support.
17. Factors involving mental illness are complex and do not always point towards amelioration of penalty: Engert v R (1995) 84 A Crim R 67; Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194.

Moral culpability

1. There are many paths here to the reduction of the offender's moral culpability. They include:

• The effects of childhood deprivation: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571;
• Childhood trauma such as being the victim of sexual assault: Nasrallah v R [2021] NSWCCA 207; and
• The mental health issues to which I have already referred: De La Rosa.

1. Often, as here, they are inextricably interrelated. The High Court in Bugmy acknowledged the impact of the effect of profound deprivation is not confined to the commission of a single offence. Where a person's childhood or adolescence has been so affected, this can have an inhibitory, as it did here, impact on the development of prosocial values.

Synthesis

1. The critical issues here, raised by the submissions of both parties, is obviously the length of the sentence, but also the structure of the sentence. It is accepted that the longer the offender is kept in the community under supervision and with assistance, the greater the community can be protected. But Ms Buckner, for the Director, makes the important point that past behaviour is a good indication of future behaviour. And in the past, Wilson has not engaged. There are many reasons for this, not the least being he resides in a place where access to services is extremely limited. But living in Wilcannia also puts him on country and with family, in a place where he has some motivation to remain drugfree, and to contribute to that community, rather than disrupt it.
2. It is impossible to have any great confidence that Wilson will, after so many years, and given all his underlying problems, change immediately. That would be impossible. But Ms Edwige has provided a treatment regime and a plan which has culturally appropriate aspects to it that should be tried. His prospects are not good. The longer he has under supervision, and the more willingness he shows, and the more motivation he has to engage in the process of rehabilitation, the greater the chance the community will be protected from future crimes. Custody may have some short-term benefits, but motivation is critical here. And while I note that returning to the same environment where the crime was committed, and where his drug use appeared to be out of control, as a concern, there is little alternative so far as what should occur when he is released. That said, the minimum period for which he should be imprisoned should properly reflect the seriousness of his offence and the other purposes of sentencing.
3. I have sought in these remarks to address and give effect to the submissions of counsel. I have to synthesise all relevant matters. Some aggravate, some mitigate. There are conflicting purposes of punishment which makes the exercise of the discretion so difficult in a case such as this. On one hand, Wilson's removal from the community is of importance, but ultimately the long-term protection of the community is more important.
4. A proper sentence must mark the Court's view of the seriousness of the crime. And while imprisonment in the past has not had any particular impact on Wilson, this time in custody seems to have been served harder than any other, and that may provide him with some motivation not to offend. Here principle relating to general deterrence can be moderated but they still have some force as others in the community also have to understand that, if they offend as he did, they will be imprisoned: R v Herring (1956) 73 WN (NSW) 203 at [205]; Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267; R v Windle [2012] NSWCCA 222.
5. Mitigating factors will be given appropriate weight. They cannot, however, lead to the imposition of a penalty disproportionate to the gravity of the crime committed.
6. Courts also, in matters such as this, have an obligation to vindicate the dignity of the victim of sexual crimes and to express the community's disapproval of that offending. How we protect the vulnerable, however, requires both punishment and a structured release to the community in the hope that resources can be made available and taken up, requiring here, a finding of special circumstances. I note, however, that Wilson will not be released unless the State Parole Authority is satisfied the safety of the community can be protected.

Orders

1. In relation to the matter before the Court, Wilson is convicted. I take into account of the plea of guilty. I make a finding of special circumstances. I take into account the matter on the Form 1.
2. The sentence will commence on the day he went into custody which is 23 May 2023. Had it not been for the plea of guilty, there would have been a sentence of 4 years and 6 months. Rounding down, there will be a sentence of 3 years and 4 months. The non-parole period of the sentence is 2 years. It will commence on 23 May 2023. He will be eligible for parole on 22 May 2025. To reflect my finding of special circumstances, the balance of the sentence will be 1 year and 4 months, which will commence on 23 May 2025 and expire on 22 September 2026.
3. A copy of Ms Edwige's report should be sent by the registry to Community Corrections, so it can be taken into account by the State Parole Authority.

High risk offender warning

1. Mr Wilson, as a consequence of my sentence, and of your plea of guilty, and of the crime you committed, you will be place on what's called the sex offender register. You will be informed of the requirements of that registration. But it does mean that you will have restrictions on your access to children, restrictions on your access to electronic communications, perhaps even the internet, and you'll be subject to regular reporting, and will have to inform people of your address, and that could continue for many years. It's a serious crime to breach those reporting conditions. It could be breach of parole or a separate crime bringing you back into custody. Mr Cooper will, I'm sure, explain more. He may also want to put you in touch with civil lawyer in South Australia. That might then at least mean the victim gets some compensation from whatever award Mr Wilson gets.

---

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 December 2024