R v Zelensky

District Court of NSW|2020-03-06

INTRODUCTION

On 18 December 2019, after an eight day trial, a jury of 12 found Alex Zelensky (a pseudonym) guilty of 19 counts involving a sexual or indecent assault of his stepdaughter Miriam (a pseudonym). The offences occurred in the family home or garage in the Wollongong area between 2009 and 2015; Miriam was between nine and 15 years old: 1. Seven convictions were for offences charged pursuant to s 61M(2) Crimes Act 1900; 2. Three convictions were for offences charged pursuant to s 66C(2) Crimes Act 1900 and 3. Nine convictions were for offences s 66C(4) Crimes Act 1900, as it applied at the relevant time.
At the time, a s 61M(2) offence carried a maximum penalty of ten years and a standard non-parole period eight years; offences pursuant to s 66C(2) carried a maximum of 20 years; and s 66C(4), 12 years.
For each s 66C offence, the circumstance of aggravation was that Miriam was under the offender's authority. With the exception of count 20, at the relevant time no standard non-parole applied to the s 66C offences. They do now. Given the timeframe for count 20 covered the introduction of standard non-parole periods, and as I cannot find when in that period the offence occurred, it has been agreed that I proceed on the basis that no standard non-parole period applied.
That said, s 25AA Crimes (Sentencing Procedure) Act 1999 applies to these proceedings. The maximum penalties have not changed, and importantly, the guidance offered by those maximum penalties have not changed. However, I cannot take into account a standard non-parole period that did not apply at the relevant time: R v Cattell [2019] NSWCCA 297.
Zelensky was acquitted of three counts. He is to have the full benefit of his acquittals. The acquittals indicated the care taken by the jury in this matter. It is obvious they accepted Miriam as a witness of truth but it appears that they were prepared to give Zelensky the benefit of the doubt in relation to an assault allegation witnessed by his second wife, and on the issue of consent or knowledge of consent on the two s 61J Crimes Act counts. Given Zelensky's grooming of Miriam over many years, the issues relating to proof, consent and knowledge of consent required sophisticated consideration; consideration that was apparently given by the jury.

FACTS FOR SENTENCE

Zelensky came to Australia as a refugee in 2001 from the Republic of Russia. He is a Muslim Chechen and suffered during the continuing conflicts and wars that plagued that region. He spent time in a refugee camp in Australia before receiving a temporary protection visa. He changed his name in 2018. He was the stepfather of the complainant Miriam.
Miriam was born in 1999 in the Middle East. She never met her real father, who died when she was about 12. She came to Australia with her mother as a refugee in 2001. She and her mother spent time in a refugee camp in South Australia. There, her mother, Kara (a pseudonym), met Zelensky. They formed a relationship and had a child together, Sami (a pseudonym). He was born in 2002.
Zelensky was the only father figure Miriam knew throughout her childhood. After the Kara was granted asylum in Australia, she moved to Parramatta. Zelensky later joined her. In 2008 Kara got a job in Wollongong. She and her children lived in a number of houses in Wollongong.
Zelensky, who had temporarily separated from Kara, also moved into the area. The relationship was rocky. They separated on a number of occasions. They finally separated after a family trip to Malaysia in 2009. After that separation, they did not reconcile. Kara moved out of the premises, leaving the two children with Zelensky.
After Kara moved out, the complainant told the jury she shared a bedroom with Zelensky. He slept in the double bed and she in the single. She said her brother Sami slept in the second bedroom. At trial, her brother disputed this. He told the jury he slept in the room with his father.
Zelensky, Miriam and Sami moved to another address in the same suburb, also a two-bedroom flat. In 2015 they were joined by Zelensky's new partner and her two children. Zelensky's new partner was Kara's former sister‑in‑law. Miriam was not happy Zelensky had formed a relationship with her aunt. Miriam moved out for a time and stayed with her mother and grandmother. She did, however, spend time at Zelensky's flat.
Kara did not give evidence at trial. Her statement was read to the jury. She committed suicide while the matter was awaiting trial. After separating from Zelensky she had remarried, had two more children. She and Miriam kept in contact.
In the middle of 2017, Miriam disclosed to Kara that Zelensky had molested her. Kara reported the abuse to police. In short summary, Miriam told police that Zelensky had begun to sexually abuse her from when she was four years old, that the sexual assaults were ongoing and continued to occur until 2016. She repeated those allegations at trial. She said that from the age of four, the accused began to touch her inappropriately. She said the touching became overtly sexual from when she was nine and continued until she was 15.
She told the jury that incidents happened every night when Zelensky would come into her bed and wake her up. The incidents became progressively more serious.
At first, he would rub himself against her and ejaculate into his own hand. After a time he began to rub his penis against her vagina. He also performed oral sex, and committed other indignities, on her.
The convictions relate to 19 incidents that could be specified. Miriam gave details of each allegation to the jury. In short summary: 1. Count 1 - s 61M(2): Miriam then aged nine to 11 - assault and acts of indecency. He used her hand to masturbate his penis. 2. Count 2 - s 61M(2): Miriam then aged nine to 11 - assault and act of indecency. He rubbed his penis on her naked back. She was bent over a bed. 3. Count 3 - s 61M(2): Miriam then aged nine to ten - assault and act of indecency. He rubbed her vagina while they were in bed together. 4. Count 4 - s 61M(2): Miriam then aged nine to ten - assault and act of indecency. After the count 3 incident, he rubbed his penis between her naked thighs. 5. Count 5 - s 66C(2): Miriam then aged ten to 14 - sexual intercourse child under 14. He performs oral sex on her. 6. Count 6 - s 66C(2): Miriam then aged ten to 14 - sexual intercourse child under 14. Miriam performs oral sex on him. 7. Count 7 - s 66C(2): Miriam then aged ten to 14 - sexual intercourse child under 14. He rubbed his penis inside her genital area. 8. Count 8 - s 66C(4): Miriam then aged 14 - sexual intercourse child under 16. He rubbed his penis inside her genitals, causing bleeding. 9. Count 9 - s 66(4): Miriam then aged 14 or 15 - sexual intercourse child under 16 - he performed oral sex on her in car in garage. 10. Count 10 - s 66C(4): Miriam then aged 14 or 15 - sexual intercourse child under 16. He put his fingers in her vagina while in the car in the garage. 11. Count 11 - s 66C(4): Miriam then aged 14 or 15 - sexual intercourse child under 16. He rubbed his penis inside her genitals while in the car in the garage. 12. Count 12 - s 66C(4): Miriam then aged 14 - sexual intercourse child under 16. He used his hand to rub around and in her vagina and genital area. 13. Count 13 - s 66(4): Miriam then aged 14 - sexual intercourse child under 16. He performed oral sex on her. 14. Count 14 - s 61M(2): Miriam then aged 14 - assault and act of indecency. He rubbed his penis on her genital area. 15. Count 17 - s 66C(4): Miriam then aged 14 or 15 - sexual intercourse child under 16. She performed oral sex on him at the same time as count 18. 16. Count 18 - s 66C(4): Miriam then aged 14 or 15 - sexual intercourse child under 16. He performed oral sex on her at the same time as count 17. 17. Count 19 - s 61M(2): Miriam then aged 15 - assault and act of indecency. He ran his hands over her naked body. 18. Count 20 - s 61M(2): Miriam then aged 15 - sexual intercourse child under 16. He put his wet fingers into her genitals. 19. Count 21 - s 66C(4): Miriam then aged 15 - assault and act of indecency. He rubbed his penis between her naked thighs.

Multiple offences

A sentence will be indicated for each offence. While each count involved discrete acts, they formed a part of an extended and repetitive pattern of sexual abuse against a child committed over many years. No one sentence could comprehend and reflect the criminality of the others, but as they form part of a course of conduct with many common factors, there must be some concurrence of sentences. The individual sentences should each be partially cumulative, otherwise there is a risk that the total sentence would fail to reflect the criminality of what was done to Miriam.
The aggregation of all the sentences must be a just and appropriate measure of the total criminality involved: Mill v The Queen (1988) 166 CLR 59. Those considerations must, of course, be balanced against the general principle that the ultimate aggregate sentence does not exceed what is called for in all the circumstances, including the case for the offender.
While public confidence in the administration of justice requires sentencing courts avoid any suggestion of a discount for multiple offending, legal principle also recognises that long sentences are intrinsically harsher than shorter terms as the impact of prison on a person compounds over time. Harsh penalties must be imposed in cases such as this but Zelensky must be released and if he is to return from prison to lawful and normal community life he must not have all hope of life after prison extinguished.

Objective seriousness

The objective seriousness of each offence for sentence must be determined in the light of the entirety of the facts and circumstances applied to it. No one form of sexual intercourse is more or less serious than the other. Matters that must be considered are: the degree or extent of physical intrusion and/or contact involved; the degree or extent of any coercion or psychological manipulation; the time over which the act or acts occurred, and whether any physical harm or injury resulted. There must be recognition of the psychological harm taken to be caused by the premature sexual activity occasioned by each offence. Similar considerations apply to acts of indecency type offences.
The convictions relate to a period from when Miriam was about nine or ten; until she was 15. The younger the child, the more serious the offence. The younger the child relative to the age period specified in the count, the more serious the offence.
Zelensky was the child's stepfather. He was the only father she knew. Mothers are entitled to trust their new partners, as are the children themselves. It is expected that such a position of trust will never be abused by exploitation. Children look up to stepfathers for protection and guidance. As here, they control most aspects of their lives. This is a particularly important factor, but it is also recognised that so far as the s 66C matters are concerned, an aggravating circumstance was under authority. Care should be taken not to double count such matters.
As a child, Miriam was totally dependent on Zelensky and her mother. As her mother was absent and estranged from her for periods, she often lived with the offender: her dependence on him at these times was total. The offences occurred in the family home or garage. Miriam was helpless to prevent what was occurring. She became psychologically conditioned to the abuse. Only as she got older did she come to realise she was being exploited for Zelensky's sexual gratification.
Zelensky started his abuse while Miriam was very young. He normalised sexual relations between himself and his stepdaughter. Where a perpetrator is a stepfather who has care of the child, the progression from normal care to sexual abuse would not have been clear to the young victim. By the time she was older but still under his care and control, Miriam was trapped in an abnormal relationship not of her making. The reactions to such sexual abuse, as expressed in Miriam's evidence at trial, are tragically common. They include guilt and shame, embarrassment, and feeling uncomfortable and confused by their own feelings. Such impacts can continue to have a deleterious effect in child complainants as they age and mature.
There is an absolute prohibition on any sexual activity with a child. It follows that every act that involves the sexual exploitation of a child is serious and is treated seriously by the courts. The guidance offered by maximum penalties, and where applicable standard non-parole periods, makes that clear.

Victim Impact Statement

The absence of a victim impact statement does not give rise to an inference that an offence had little or no impact on the victim: s 30E Crimes (Sentencing Procedure) Act 1999. I had the benefit of hearing Miriam give her evidence at trial about each event where she told the jury of the impact of the offending on her.

Guidance

While every offence and every offender requires individualised treatment, courts must, in the exercise of their undoubted discretion, take guidance from a number of sources. They include the maximum penalties prescribed; any applicable standard non-parole period; the decisions of other courts, particularly those designed to give guidance; and, of course, the purposes of sentencing which here, importantly include the deterrence of this offender and others from committing similar crimes, and the need to give proper recognition to the harm done to individual victims and the community in general.
While they are not prescriptive, careful attention to maximum penalties and the standard non-parole period for the s 61M(2) offence is required. The standard non-parole period represents the non-parole period for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.
Section 61M(2) carries a maximum penalty of ten years. The standard non-parole period was eight years. The ratio between that maximum and the standard non-parole period has been subject to criticism, justifiably so. The relativity between that maximum and the standard non-parole period has been described as "absurd" or "curious": BT v R [2010] NSWCCA 267; LB v R [2019] NSWCCA 151, at [39].
Here, that absurdity is obvious. By any measure, the indecent assault matters here were not as serious as those involving the acts of sexual intercourse; sexual intercourse offences that now - but not at the relevant time - have standard non-parole periods of nine or five years. To maintain a proper relationship between the sentences to be indicated requires significant variation in the non-parole periods indicated for the s 61M(2) matters.
I am still required to give content to the standard non-parole period, but in doing so, I do not engage in a staged approach to sentencing: Muldrock v The Queen (2011) 244 CLR 120, at [28]. It is not necessary to identify features of the offence which were or were not taken into account when considering the role of the standard non-parole period: s 54B(6); Tepania v R [20018] NSWCCA 247, at [103] to [120]. In assessing objective seriousness, a process of comparing and contrasting the actual offence with the abstract one is not necessary for any offence. Each relevant matter must be synthesised. Accordingly, any finding as to objective seriousness of each offence does not compel any one result.

Subjective case

Zelensky has a criminal record for domestic violence matters involving Kara in 2005 and 2011. Any domestic violence offence against a partner is regarded as serious but the conviction appears to reflect a volatile relationship with her that was the subject of some evidence at trial. Bonds were imposed and not breached. In all the circumstances, Zelensky cannot be treated as a first offender. That said, prior good character carries little weight in cases such as this.
On arrest, he was remanded in custody until granted Supreme Court bail. This aggregate sentence will be backdated to allow for that 105 days custody. Bail was revoked on 18 December 2019 after the verdicts. Accordingly the starting date for the sentence will be 4 September 2019.
Zelensky did not give evidence at trial or sentence. He gave Dr Furst, a forensic psychologist, a history consistent with that run at trial. The material allows for some understanding of the man now to be sentenced. The subjective material is uncontroversial. It was not put forward as evidence going to my assessment of the objective circumstances of the offences. It accords with other material before me, including at trial. It can be accepted.
The report also sets out Dr Furst's professional opinions and conclusions. They are important, as I must consider how the offender will serve his sentence, his prospects of rehabilitation, prognosis and future risk. The opinions in the report are supported by reference to information from Zelensky's GP and treating psychologists, who had been seeing him prior to his arrest for these matters. It is not suggested that any of the material presented has a causal connection with the offending behaviour.
Zelensky is a 51 year old Chechen male of Muslim faith. He had been living, prior to his incarceration in December, with his son Sami and new partner. He is in a relationship, and I have received references both from his son and his current partner. They both speak highly of him as a man, a husband and a father.
He was born in one of the former Soviet Socialist republics, now a republic of Russia. He was conscripted and served in the Russian Army. As a Chechen that was not an easy time. He served in a number of conflicts was caught up in the civil wars that plagued that part of the world. Dr Furst's Report details the impact of that service on him. He was subject to physical assaults. His brother was killed after which he fled for his own safety. His wife at the time refused to leave with him. He eventually made his way to Australia where he spent seven months in immigration detention before being granted a temporary protection visa.
In 2001, Zelensky settled in New South Wales and continued his relationship with Kara, whom he had met initially while they were in detention. He has worked continuously since that time. He told Dr Furst that he had been diagnosed with a bipolar disorder in 2008, however, Dr Furst's professional opinion is that the psychological symptoms detailed appeared to be more trauma-related and were highly suggestive of post-traumatic stress disorder (PTSD).
Dr Furst was confident in diagnosing PTSD given Zelensky's history. Dr Furst took into account Zelensky's time as a soldier, (which I need not detail), his experience in immigration detention, his periods of depression and isolation, and his high levels of anxiety described. Dr Furst also had access to records from Zelensky's GP and a treating psychologist, with whom he undertook many sessions between 2010 and 2014.
Dr Furst also noted a history of cannabis abuse, which, although in remission, he related to self-treatment for PTSD. He provided a helpful summary of what PTSD is. He noted, while cooperative and engaged in the interview process, Zelensky remained highly anxious and of low mood.
Given his 25 to 30 year history of chronic PTSD, and the underlying causes in the traumatic events that preceded that condition, Dr Furst forms the view that it will continue for the foreseeable future. His assessment used the Static-99 instrument. His subsequent analysis of the scores obtained put the offender at an average risk of reoffending. He noted his opinion, Zelensky falls around the lowest third on the spectrum of risk amongst other male sex offenders.
Dr Furst's opinion is with motivation and treatment, Zelensky has prospects of returning to the workforce in the future and positive prospects for being rehabilitated. He recommended that Zelensky be placed under the care of Justice Health because he required medication for his PTSD, which has not as yet been provided to him. He recommended engagement in cognitive behaviour therapy, through a psychologist working with Corrective Services,. He said Zelensky would benefit from attending programs such as the EQUIPS (addiction) program. He put forward some community options which are not presently relevant.
He indicated that given the history of PTSD and its ongoing features, the custodial environment was likely to be more onerous for Zelensky than the theoretical average inmate, particularly given the likelihood of exposure to violent incidents and increased anxiety and destabilisation of his disorder. I am aware from previous reports that Dr Furst, whose opinion I respect, has spent considerable time working in the custodial environment.
The references speak of the offender's assistance as a volunteer with organisations that support the settlement of refugees to Australia and the assistance he has provided to his present partner's family. His partner says, and I can readily understand, "It feels like my world has collapsed that he is not around anymore." She speaks of her own grief and loss.
His son Sami speaks of how tough it has been to have his dad in gaol; partly because, as a child, Corrective Services will not allow him direct visits. He struggles without his father.

Hardship of prison

As a consequence of PTSD, Zelensky will suffer hardships not suffered by prisoners who do not have such a condition. He will not and has not yet had any choice about what treatment is offered or available to him or what medication is offered or available to him. Judges do not underestimate the lived experience of prison. He will be exposed to violent incidents while in gaol. He will continue to be anxious and I presume depressed over many years he must serve in custody. Such factors do operate to navigate the need for punishment; the more serious or burdensome they are, the more mitigation of penalty is required.

Family hardship

While each case depends on the seriousness of the crime and whether there is a need for deterrence, and the nature and degree of the impact of the sentence on others, there is a general principle recognised by his counsel Mr Khan that hardship to family and dependants is an unavoidable consequence of a custodial sentence and is not a mitigating factor unless such hardship is wholly, highly or truly exceptional: R v Edwards (1996) 90 A Crim R 510. As Mr Khan accepts, this is not such a case. That said, any impact of a long custodial sentence must be synthesised and taken into account, along with all other factors. I am, from the material before me, aware that his current partner, stepchildren and son will be without a breadwinner and father, and I am aware that this will impact upon them and that the offender, while he spends his time in custody, will feel that loss.

Special circumstances

After a long sentence, Zelensky will need considerable help adjusting to normal community life. His existing ties to family will be strained by his time in prison. His other ties to prosocial contacts in the community will be strained by his time in prison. Finding suitable work will be difficult; given the pace of the modern world, work practices will have changed by the time he comes to be released. His time in custody will most likely be spent in protection. He will be isolated, but I am aware that programs can still be made available to him while in protection.
He will be isolated, not just because of his crimes but because he has few ties in this country. His PTSD will be exacerbated by anxiety and exposure to the violence unfortunately inherent in our gaols. While ordinarily such factors require significant adjustment here, there is little utility in allowing more than five years for any parole period. That still requires some modest adjustment for special circumstances.

Submissions

Mr Khan, for the offender, and Ms Keay, Crown Prosecutor, have provided helpful oral and written submissions. I have had a chance to review the written submissions before today. I have considered and addressed them in coming to my determinations as to the appropriate individual and aggregate sentences. I trust these remarks do justice to those submissions.

Synthesis

There is a community expectation that anyone who sexually abuses a child over many years should suffer severe punishment; Ryan v The Queen (2001) 206 CLR 267; R v Windle [2012] NSWCCA 222. A proper sentence marks the Court's view of the seriousness of the crime and should let this offender and others know the retribution which will fall on them if they commit similar crimes: R v Herring (1956) 73 WN (NSW) 203, at 205.
The offender is not to be punished because he exercised his right to go to trial, but he gains none of the benefits that often flow from either a plea of guilty or expressions of remorse. A proper sentence must also take into account his subjective case.
A proper sentence must take into account the various purposes of punishment, together with any matters put forward by the offender. Ultimately, sentencing courts have an obligation to vindicate the dignity of the victim of sexual and indecent assaults, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the State to the vulnerable and against repetition of the offending; Munda v Western Australia (2013) 249 CLR 600: [2013] HCA 38, [52] to [58]. Here, that can only be done by the removal of the offender from the community for a considerable period.
I confirm the convictions entered after the jury's guilty verdicts. I have to indicate each individual sentence.

Indicated Sentences

Each of the indicated sentences for s 61M(2) matters carries a standard non-parole period. I note s 54B(4) Crimes (Sentencing Procedure) Act requires that I indicate the parole period. I do not need to do so for the other offences. Count 1 - s 61M(2): I indicate a sentence of three years with a non‑parole period of two years three months. Count 2 - s 61M(2): I indicate a sentence of three years with a non‑parole period of two years three months. Count 3 - s 61M(2): I indicate a sentence of three years with a non‑parole period of two years and three months. Count 4 - s 61M(2): I indicate a sentence of two years six months with a non-parole period of one year ten months. Count 5 - I indicate a sentence of seven years. Count 6 - I indicate a sentence of eight years. Count 7 - I indicate a sentence of seven years. Count 8 - I indicate a sentence of six years. Count 9 - I indicate a sentence of five years. Count 10 - I indicate a sentence of five years. Count 11 - I indicate a sentence of five years. Count 12 - I indicate a sentence of four years and six months. Count 13 - I indicate a sentence of four years and six months. Count 14 - s 61M(2): I indicate a sentence of four years with a non‑parole period of three years. Count 17 - s 66C(4): I indicate a sentence of six years. Count 18 - s 66C(4): I indicate a sentence of five years. Count 19 - s 61M(2): I indicate a sentence of two years with a non‑parole period of one year six months. Count 20 - s 66C(4): I indicate a sentence of four years and six months. Count 21 - s 61M(2): I indicate a sentence of three years with a non‑parole period of two years three months.

Aggregate sentence

The aggregate sentence reflects a modest finding of special circumstances. Having considered issues of accumulation, concurrency and totality, the total aggregate sentence is 18 years' imprisonment. There will be a non-parole period of 13 years commencing 4 September 2019 and expiring 3 September 2032. The balance of the sentence of five years is to commence upon the expiration of the non-parole period and expire on 3 September 2037. You will be eligible for consideration for a release to parole at the expiration of the non-parole period on 3 September 2032.
I direct that the Registrar, District Court Wollongong forward with the warrant a copy of Dr Furst's report (exhibit1, Tab 1) to enable the offender's Justice Health review.
Recommend to Justice Health that the offender be immediately reviewed upon his return to custody.

Crimes (High-Risk) Offenders Act 2006

Mr Zelensky, I have to advise you that this Act applies to serious offences, the serious offences of which you have been sentenced. What it means is you could be subject to executive action after your non-parole period expires and after the sentence expires. That executive action could, if an order is made in the interests of the community, mean that you could be detained or subject to conditions after you have served your sentence, but it is not a matter I can take into account in mitigation of sentence.

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: 22 April 2020

At a glance

Court

Decision date

Source

Judgment (16 paragraphs)

Parties

Cases Cited (9)