Shane Kovacs v R

District Court of NSW|2016-02-18

Judgment

Shane Kovacs (the appellant) appeals against the severity of the sentence imposed on him by the Chief Magistrate Judge Henson on 8 December 2015 at the Downing Centre Local Court.
The appellant had pleaded guilty of 3 counts of sexual intercourse with a person aged between 14 and 16 years contrary to section 66C(3) Crimes Act 1900. The offences were committed in September and October 2014 when the victim was 14 years of age and each involved penile vaginal intercourse. The maximum penalty for each count was 2 years imprisonment when dealt with summarily. On indictment the maximum penalty was 10 years imprisonment.
The Chief Magistrate imposed the following sentences of imprisonment: 1. Count 1 8 months with a non-parole period of 4 months to date from 8 December 2015; 2. Count 2 10 months with a non-parole period of 6 months to date from 7 April 2016; and 3. Count 3 14 months with a non-parole period of 8 months to date from 7 October 2016.
The effective term of imprisonment imposed was one of 2 years (less one day) with a non-parole period of 18 months. At [31] of the Chief Magistrate's remarks on sentence he made a "limited finding of special circumstances". The individual sentences imposed reflected that finding however, the effective term of imprisonment did not. That approach is inconsistent with the authorities: R v Attard [2004] NSWCCA 376 at [21], Fina'i v R [2006] NSWCCA 134 at [33] - [40] and Parkes v R [2013] NSWCCA 247 at [14].
The appellant was granted appeal bail on 8 December 2015.

Agreed facts

The Agreed Facts can be summarised as follows.
In about April 2014 the victim created a profile on an online dating and introduction service known as "Zoosk." In her profile she stated she was 19 years of age. The appellant made contact with the victim through the website's messaging service. They exchanged contact details and commenced contact via Skype.
The appellant and the victim began communicating daily. About one month later, the victim informed the appellant that she was in fact 14 years old. The appellant ceased contact with her. About one week later the victim contacted the appellant on Skype to say goodbye. The appellant told her that he could not stop thinking about her and they resumed online contact, including video calls on Skype.
They met in person at about the end June 2014 at a cinema in Chatswood. The victim was accompanied by a school friend. During the movie the appellant and the victim held hands, she placed her head on his shoulder and they hugged and kissed.
The appellant and the victim thereafter went out a number of times together. On occasions the victim brought friends with her. They went jogging together at a local oval about twice per week. Their relationship became more physical. The appellant discussed with the victim progressing their relationship to include sexual relations via Skype and they exchanged information about their lack of sexual history.
On a date in September 2014 after they met to go jogging, the appellant asked the victim if she was ready to progress their relationship and she agreed. They got in his car and drove a short distance to a quiet street. In the back of the car they had penile vaginal intercourse (Count 1). The appellant wore a condom.
On 24 September 2014 whilst jogging the appellant asked the victim if she wanted to have intercourse again. At about 1.30am the next morning the victim left home without telling her parents and met the appellant a short distance from her house. They got in his car and drove a short distance. In the front of the car they had penile vaginal intercourse (Count 2). The appellant wore a condom. The appellant returned the victim to her house at about 3.00am.
About one week later on a Sunday night, the victim let the appellant into her home. They had penile vaginal intercourse in the downstairs bathroom (Count 3).
On 29 October 2014 the victim's mother discovered the relationship between the victim and the appellant and made a complaint to the Police.
The appellant was arrested on 3 March 2015 and charged with a number of offences.

The Appellant's evidence

The appellant relied on the following documents: 1. Medical records from Liverpool Hospital dated 16 February 2016, 19 October 2015, 5 August 2015, 10 November 2014, and 7 November 2014; 2. Report of Dr Richard Furst, forensic psychiatrist, dated 29 August 2015; 3. Letter to the Magistrate dated 10 November 2015; 4. Letter of suitability to participate in group treatment program from Jessica Pratley psychologist dated 28 September 2015; 5. Character references from Angie Kovacs, Steve Kovacs, Matthew Carrier, Peter Chan, Andrew Troy, Stuart Marks, Thanh Tran, and Stacey Madden.
A presentence report dated 20 October 2015 and a presentence psychology consultation document were prepared and received by the Court.
The appellant gave evidence before me on 18 February 2016 and was cross-examined. He was supported in Court by his mother, his aunt, his stepsister, his sister's boyfriend and a long-standing friend.
The appellant's case can be summarised as follows.
The appellant is presently 29 years of age and lives with his sister. He is employed as a sound engineer. He has a long history of stable employment.
The appellant subscribed to Zoosk looking for a serious relationship. He had only been on two dates previously. By the time the victim told him her real age he had already formed a strong bond with her and he had been lonely for so long that he could not bring himself to stay away from her. He thought that they had both benefitted from the relationship because they had both suffered from depression at an earlier time.
After being charged he has spoken with family, friends and his therapist and now realises that the victim was not mature enough to have an intimate relationship with him. He has not had any contact with the victim and does not intend to do so, whether there is an apprehended violence order in place or not.
After the offences but before he was charged he sought counselling to deal with his feelings. He was given a Mental Health Care Plan by his general practitioner and undertook counselling with a psychologist. He was prescribed antidepressants and initially his condition was unstable causing him to act impulsively, for example by punching walls. He did not want to be dependent on the medication but he has subsequently settled on a combination of antidepressant and antipsychotic medication. During the course of treatment he was diagnosed as suffering from a borderline personality disorder. He was told that this was likely to exaggerate his emotional response to any given situation.
He was an involuntary patient at Royal Prince Alfred Hospital for 3 days in December 2014 after an episode of self harm. He was admitted as an involuntary patient at Liverpool Hospital for 2 weeks in April 2015 after suffering suicidal ideations for 3 days. He was admitted to Royal North Shore Hospital on 27 September 2015 for 5 weeks following a suicide attempt.
The appellant has investigated undergoing sex offender rehabilitation treatment in the community with his psychologist. He is currently on waiting list to enter the program. His acceptance to the program is dependent upon the outcome of these proceedings.
Dr Furst took a history that his parents separated when he was about 7 years of age. He has one sister and three younger half sisters who he is close to. The appellant had negative memories of his childhood and had increasing low self-esteem and depressive symptoms by his mid teens. He continued to suffer from mood swings in his early 20s as well as having a poor self-image resulting in feelings of stress, agitation and frustration. The appellant has had a number of episodes of deliberate self harm since November 2014 when the criminal investigation began. He has had panic attacks up to several times a day since that time. The appellant has been seeing a psychologist regularly from November 2014.
Dr Furst's opinion is that the appellant has suffered chronic dysthymia (a low-grade long-standing depressive mood disorder). He has subsequently developed an Adjustment Disorder with depressed and anxious mood as a result of being charged with the offences before the Court, although it could also be suggested that he has borderline personality traits. Dr Furst did not believe there was any element of paraphilia in his psychological presentation. Dr Furst is of the opinion that his chronic dysthymia and underlying personality disorder probably contributed to the poor judgement he displayed when engaging in a sexual relationship with the victim who was underage.
The appellant presents a high risk of self harm, including suicide, should he receive a custodial sentence. Dr Furst was of the opinion that the appellant was a low risk of reoffending in a sexual or nonsexual violent manner. I infer from his report that Dr Furst was of the opinion that the appellant would still benefit from a sex offender treatment program, irrespective of whether he received a custodial sentence.

Objective Seriousness of the Offence

The courts have repeatedly emphasised the extremely serious view that has to be taken towards matters of this kind: R v JVP (NSWCCA unreported 6 November 1995).
The ages of victims and a range of criminality of the offenders may vary greatly, rendering a wide range of sentences appropriate. The sentencing legislation does not permit the Court to deal with these offences by way of an Intensive Corrections Order or by ordering that any period of imprisonment be served by way of home detention.
The most significant matter which determines where a particular offence is to be placed in the spectrum is the degree to which the offender is seen to have exploited the youth of the victim: R v Sea (NSWCCA unreported 13 August 1990).
In this case, the appellant knew the victim's age and actively sought to pursue an intimate relationship with her for a number of months that culminated in the commission of the offences. There was an obvious power imbalance in the relationship. The appellant was 28 years of age and there was a significant age gap.
There is nothing in the facts to support the conclusion that the appellant was a "sexual predator" or that he sought to persuade the victim by deception or flattery. The victim was vulnerable, by reason of her age and lack of maturity and that presented the appellant with the opportunity to commit the offences.
I do not accept the characterisation of the relationship by the appellant as a significant and/or mature, and in any event that would not be a mitigating factor.

Deterrence

The abhorrence with which the community regards the sexual interference with children and the emphasis attached to general deterrence in sentencing offenders is reflected in the authorities: for example R v BJW (2000) 112 A Crim R 1 at [20].
Custodial sentences in some cases of sexual assault on children are essential if the courts are to play their proper role in protecting young people from sexual interference by adults: R v Fisher (1989) 40 A Crim R 442 at 445.
General deterrence may be attributed less weight in cases where the offender suffers from mental condition because such an offender is not an appropriate person to be made an example of: Muldrock v R (2011) 244 CLR 120 at [53]-[54]. The authorities do not mandate an entire disregard of general or specific deterrence by the sentencing judge. The extent of the reduction depends on the circumstances of the case: Palijan v R [2010] NSWCCA 142 at [27], R v Scognamiglio (1991) 56 A Crim R 81, R v Wright (1997) 93 A Crim R 48 and R v Lawrence [2005] NSWCCA 91.
The factors that are relevant to the assessment include the nature and extent of the mental condition suffered, whether the offender acted with knowledge of what they were doing and the gravity of their actions and whether the community require protection from the offender by reason of the mental condition suffered.
At the time that the offences were committed, the appellant's mental condition was not as evident as it became in about November 2014 when the criminal investigation began. At that time the appellant was acting with knowledge of what he was doing and should have been well aware of the gravity of his actions, having a younger sister about the same age as victim. I accept that as a person with a borderline personality disorder he may have found it more difficult to end the relationship but the causal connection between his mental condition and the offending conduct is weak. No more than a small reduction in the weight to be afforded to general deterrence is appropriate.
There is some need for specific deterrence in this matter. Whilst the appellant now recognises why his relationship with the victim was wrong, in his evidence he continued to seek to justify it by reference to his subjective circumstances, ie his lack of a serious relationship in the past.

Aggravating factors

There are no relevant aggravating factors.

Mitigating factors

The appellant does not have any prior convictions: section 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.
The appellant was a person of good character: section 21A (3)(f) Crimes (Sentencing Procedure) Act 1999. The appellant tendered references from a number of people known to him. Each of the referees attested to his good character. He has always been gainfully employed.
The appellant is unlikely to re-offend: section 21A(3)(g) Crimes (Sentencing Procedure) Act 1999. This is the opinion of both Dr Furst and the Corrective Services psychologist, based on an actuarial assessment of risk factors.
The appellant has good prospects of rehabilitation: section 21A(2)(h) Crimes (Sentencing Procedure) Act 1999. The appellant has referred himself for significant treatment since being charged with the offence and has been prepared to undergo a sex offender treatment program.
The appellant has demonstrated remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. I am satisfied on the balance of probabilities that the appellant has demonstrated genuine contrition and remorse.
The appellant entered a plea of guilty at an early stage of the proceedings before the Local Court: sections 21A(2)(k) and 22 of the Crimes (Sentencing Procedure) Act 1999. The appellant is entitled to a discount on penalty that reflects the utilitarian value of that plea. The extent of the discount should generally be assessed in the range of 10-25%, but that is only a guide. The primary consideration in determining where in the range particular case should fall, is the timing of the plea so that the earlier the plea the greater the discount: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. I agree with the Chief Magistrate that the appropriate discount for the plea was 20%.

Consideration

I have considered section 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied that having considered all possible alternatives that no penalty other than imprisonment is appropriate.
The appellant was sentenced to a term of less than 2 years imprisonment by the Chief Magistrate. There being no appeal against inadequacy by the Crown and in the absence of a Parker direction from me, he can be considered for a suspended sentence.
The factors to be taken into account in my view are as follows.
First, he will find custody more onerous than other people by reason of his mental condition. It is likely that he will serve any custodial sentence on protection and under close supervision to avoid the risk of self harm.
Second, he has suffered significantly as a result of these proceedings. He has suffered suicidal ideations and been admitted as an involuntary patient on 3 separate occasions since November 2014.
Third, he has been reporting daily since he was charged.
Fourth, he is employed and that is beneficial for the treatment of his mental condition and sex offender programs are available to him in the community.
The offences committed are objectively serious, there is a need for general deterrence, there is a need for denunciation of the offending conduct, and there is a need for retribution. Whilst the subjective circumstances of the appellant are persuasive and almost compelling they are necessarily subsidiary to the duty of the Court to ensure that a punishment of appropriate severity is delivered.
The penalty imposed by the Chief Magistrate being one of full-time imprisonment was appropriate.
If I had sentenced the appellant at first instance I would not have differentiated between the terms of imprisonment for each of the offences. I would have started with a head sentence of 15 months for each offence, reduced to 12 months after the applicable discount. I have not given a Parker direction to the appellant and I will not increase the head sentences imposed by the Chief Magistrate for counts 1 and 2, but will reduce the head sentence imposed for Count 3 to 12 months. I have also come to a different view as to the application of the principle of totality, resulting in a reduction of the overall head sentence compared to that imposed by the Chief Magistrate.
I find that there are special circumstances because this will be the appellant's first time in custody, the circumstances of his incarceration are likely to be onerous and he will benefit from a longer time on parole to allow for treatment of his mental condition and to participate in a sex offender's rehabilitation program in the community, if necessary.
The Chief Magistrate was right to make the sentences partly cumulative and partly concurrent. However, the sentences ultimately imposed did not reflect the express finding of special circumstances that was implicit in the sentences imposed for each count.
In order to avoid the same complexity, it is appropriate for the Court to impose an aggregate sentence pursuant to section 53A Crimes (Sentencing Procedure) Act 1999.
The appropriate overall term of imprisonment is 2 years and 1 month. That term of imprisonment will be discounted by 20% in recognition of the plea of guilty.
The sentence that would have been imposed for each offence had separate sentences been imposed are: 1. Count 1 8 months imprisonment. 2. Count 2 10 months imprisonment. 3. Count 3 12 months imprisonment.
Taking into account all of those matters the appropriate aggregate sentence is 1 year and 8 months imprisonment with a non parole period of 10 months.

The orders I make are as follows 1. The appeal against severity is allowed. 2. I set aside the sentences imposed by the Chief Magistrate. 3. In lieu thereof I impose an aggregate sentence of 1 year and 8 months imprisonment with a non parole period of 10 months to date from 4 March 2016. 4. I direct that the offender is to be released to parole on 3 January 2017. 5. I note the appellant is of high risk of suicide and self harm. 6. I direct that a copy of Dr Furst's report be forwarded to the Department of Corrective Services forthwith

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: 04 March 2016

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Judgment (11 paragraphs)

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