The Queen v DLW

District Court of NSW|2020-12-11|Before: Mr J

Introduction

The Offender appears for sentence in relation to an indictment which contained 4 charges, 3 of which he was found guilty. These charges are as follows: 1. Count 1 - aggravated sexual assault of victim aged under 16 years, in breach of s61J of the Crimes Act 1900 (NSW); 2. Count 2 - another count of aggravated sexual assault of victim aged under 16 years, in breach of the same section; and 3. Count 3 - another count of aggravated sexual assault of victim aged under 16 years, in breach of the same section.
These offences each carry a maximum penalty of 20 years' imprisonment, and a standard non-parole period of 10 years' imprisonment. As these offences were committed when the Offender was a juvenile, the standard non-parole period does not apply to this sentencing exercise.
The offence provision provides that any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows the person does not consent to sexual intercourse is liable under section 61J. The circumstance of aggravation relied upon by the Crown in this case was that the victim was under the age of 16, namely 11 or 12 years, at the time of the offending.
By operation of section 16 of the Children (Criminal Proceedings) Act 1987, as the Offender was a child at the time of the offending but over the age of 21 years when charged with the offences, he is to be sentenced at law.

Factual Findings

The victim in relation to all 3 Counts will be referred to as 'LM'. At the time of the subject offending, LM was between 10 and 11 years of age, and was a friend of the Offender's younger brother, Dwayne. The Offender was about 14 years of age at the time of the offences. I set out below the factual findings I made following trial, which will inform the basis for the sentence.

Factual Findings in Relation to Count 1

In relation to Count 1, the facts that I found beyond a reasonable doubt included: 1. some time between 4 February 2002 and 10 June 2003, the victim LM and the Offender were on a camping trip in Gloucester; 2. LM had gone there with his friend Dwayne, Dwayne's brother (the Offender) and Dwayne's father; 3. they were sleeping in a caravan at a camping ground; 4. the camping ground was located at 814 Thunderbolt Way, Barrington NSW; 5. the camping ground was named Poley's Place; 6. as at 20 November 2018 they had been holding a 'hoe down' twice annually since 1980; 7. the 'hoe downs' were held on the Easter long weekend and the October long weekend; 8. the 'hoe down' was attended by performers, children and adults; 9. the property consisted of 550 acres and about 40 acres of that were used for a camping ground; 10. the acts giving rise to Count 1 occurred around Easter 2002; 11. in 2002, Easter Sunday fell on 31 March; 12. Count 1 (and Count 2) occurred on a trip to Gloucester around Easter time, 1 year after the first incident, being an uncharged act; 13. LM was spearfishing for eels in the river with Dwayne; 14. Dwayne went to get some ice; 15. the Offender turned up at the river and saw LM in the water; 16. the Offender's father, was up at the shower block; 17. when LM saw the Offender, LM ran off into the bushes. He was chased by the Offender; 18. after being chased into the bushes, the Offender jumped on top of LM; 19. LM hurt his leg on a rock; 20. LM had made it about 2 metres into the bushes before he was jumped upon; 21. LM was wearing a pair of boxers with underpants beneath; 22. LM was not wearing a shirt; 23. after LM fell to the ground, the Offender pulled LM's pants down and inserted his penis into LM's anus; 24. as he did that, the Offender said "you'd better lie still or this time it's it"; 25. LM thought that the Offender meant that "he was going to try to kill me"; 26. LM was face down in the mud; 27. the whole of the Offender's body was on top of LM, his penis was in LM's anus, and his legs were wrapped around LM's legs; 28. the Offender was holding LM tight so he couldn't move his arms or legs; 29. after inserting his penis, the Offender then started moving up and down; 30. LM then heard Dwayne calling him, but LM could not speak; 31. after hearing Dwayne calling LM, the Offender pulled up his pants and ran off towards an old water tank; 32. Dwayne then came into the bushes looking for LM; 33. LM then pulled his pants up and walked out; and 34. he then walked down the stream and returned to spear fishing.

Factual Findings in Relation to Count 2

In relation to Count 2, the facts that I found beyond a reasonable doubt included: 1. some time between 4 February 2002 and 10 June 2003, the victim LM and the Offender were on a camping trip in Gloucester; 2. Dwayne had left LM to go and get some hot chips; 3. LM was on a hill or embankment; 4. the Offender approached him and told him to pull his pants down. He refused. The Offender pushed him down the hill or embankment and dirt boulders started falling; 5. the Offender jumped down and said to LM "alright, if you, if you're going to, you go and dob, well, you'll have dirt boulders hittin' your head"; 6. the Offender again told LM to pull his pants down and LM again refused; 7. the Offender was then lying on top of LM. LM was face down; 8. the Offender was bouncing up and down on top of LM; 9. the Offender's penis penetrated LM's anus; 10. LM elbowed the Offender in the side of the ribs; 11. the Offender rammed LM's face into the dirt and said "lay still or I'll cave your head in"; 12. LM just laid there; 13. the Offender got up, pulled his pants up and walked off; 14. as the Offender was bouncing up and down, he was putting his penis into and removing it from LM's anus; and 15. the Offender told his dad that LM had elbowed him.

Factual Findings in Relation to Count 3

In relation to Count 3, the facts that I found beyond a reasonable doubt included: 1. on or about 5 June 2003, the 4th incident (Count 3) occurred in Mannering Park, NSW. That is, about 6 days before LM's 12th birthday; 2. on that day, LM was jumping off the jetty at Mannering Park with his friend, Michael; 3. Michael had snuck out and was caught by his mother; 4. LM was about to walk home and saw the Offender coming; 5. LM hid behind the toilet block, but thought that it was not safe, so he ran into a backyard, which turned out to be premises occupied by a friend of the Offender; 6. he was told to get out of their yard, so he ran back to the toilet block; 7. he was looking around the corner when the Offender came up behind him and pushed him over; 8. the Offender pulled LM's pants down and the Offender said "well, you, you move this time or youse hit me or do anything.. I'll kill you right now"; 9. the Offender had a knife in his hand; 10. the Offender laid on top of LM and put his penis into LM's anus and moved up and down; 11. whilst abusing LM, the Offender adjusted his grip on the knife, permitting LM to see it; 12. the knife had a black handle and had 3 holes in the blade; 13. the knife was pointy and the handle had small finger grips on it; 14. there was a star on the knife; and 15. LM was there for about 15 minutes before running home;
Those are the relevant facts for sentence in relation to the 3 counts, in respect of which the Offender has been found guilty.

Aggravating and Mitigating Factors

Turning now to consider any aggravating factors under section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The following aggravating factors arise for consideration: 1. actual or threatened use of violence (s21A(2)(b)); and 2. actual or threatened use of a weapon (s21A(2)(c)), the latter relating to Count 3.
As for mitigating factors, I do not find remorse, I find the prospects of successful rehabilitation are poor and the risk of re-offending at least moderate, given his subsequent offending.
At the time of the offence the Offender did not have a criminal record, and is therefore entitled to a favourable finding of good character.

Objective Seriousness

In respect of Count 1 the Crown submitted that the objective seriousness was at the upper end of the range. The offender submitted that it was below mid-range. I find the objective seriousness of Count 1 to be just above mid-range for the following reasons: 1. the offending was attended with violence; 2. the sexual assault was penile/anal; 3. the offending was accompanied with a threat of violence; 4. the victim's face was pushed down into mud, being a further act of degradation; and 5. the victim was 10 or 11 years of age.
In respect of Count 2 the Crown submitted that the objective seriousness of the offending was at the upper end of the range. It was submitted for the offender that fell below mid-range. I find that the offending falls just above the mid-range for the following reasons: 1. there was a threat of violence; 2. there was actual violence; 3. the sexual assault was penile/anal; and 4. the victim was 10 or 11 years of age.
In respect of Count 3 it was submitted for the Crown that the objective seriousness of the offending was the upper end of the range. The offender submitted that it was not less than mid-range. I find that the offending in respect of Count 3 was well above mid-range for the following reasons: 1. the Offender threatened to kill the victim if he moved; 2. the Offender was armed with a knife which was made obvious to the victim; 3. the duration of the offending was about 15 minutes; 4. the sexual intercourse was penile/anal; and 5. the victim was aged 10 or 11 years old.
In taking into account matters of aggravation being use of violence and use of a weapon as they relate to the counts, I have had regard to those factors in determining objective seriousness, and decline to find them otherwise as aggravating factors.

Victim Impact Statement

A victim impact statement was tendered by the Crown and marked Exhibit B in the sentence hearing.
In the statement the victim, LM, recounted the difficulties that he experienced in maintaining focus and concentration throughout much of his schooling and childhood, which he attributed to the trauma experienced at the hands of the Offender. He stated that he was prescribed various medications for these behavioural issues, however the medications did not help, and instead only caused negative side effects.
He also stated that he still experiences side effects of the trauma today, including anger management issues, as well as an over-protectiveness of his own children, which he attributes to trust issues stemming from the abuse that he suffered as a child. The victim also stated that he still has difficulty sleeping, and his mental health has further deteriorated as a result of the added stresses caused by the legal proceedings, which have forced him to relive the trauma. He stated that he turned to alcohol as a coping mechanism during the course of the trial.
That victims of sexual assault suffer emotional and other harm is now well recognised (see s 25AA(3) of the CSP Act). In sentencing this Offender, I have had regard to the obvious trauma suffered by the victim, referrable to the offences committed upon him.

Psychological Assessment Report

A psychological assessment report dated 6 December 2020 was prepared by Katie Martens, forensic psychologist, and marked Exhibit 1 in the sentence hearing.
Ms Martens prefaced her report by noting that it is "possible that my report is limited in the extent to which it captures the totality of Mr [DLW]'s experiences", as she experienced some difficulty in obtaining clear responses from the Offender.
Ms Martens noted that the Offender continues to deny the allegations, and indicated an intention to appeal his convictions.
The Offender told the author that his relationship with his parents was "off and on", and that his mother was "strict and cruel". He recalled to the author that his mother was "psychotic", and frequently gave the Offender medication to "make me sleep". Ms Martens noted that medical documents indicated that the Offender's mother may have suffered from Schizophrenia. The Offender also stated that he had experience of being beaten by his mother with bamboo shoots and metal.
The Offender reported that his father was often away working long hours. However, he would occasionally wake the Offender at 3am upon returning from work, in order to inflict physical discipline upon him at the request of the Offender's mother. The Offender also stated that he observed domestic violence between his parents. The Offender stated that his mother passed away in 2009 as a result of organ failure, which the Offender attributed to her abuse of painkillers.
The Offender reported that he was subjected to sexual abuse at around age 4, of which he has a limited memory. The Offender stated that he left home at age 14 after running away.
Ms Martens noted that the Offender reported suffering from an intellectual disability that has impacted his capacity to read and write. The Offender stated that he had attended 4 schools as a child, including specialty schools, at which he experienced major difficulties with his learning. He reported being expelled from one school in Year 9 or 10.
In respect of work, the Offender reported mostly working in "cash in hand" roles, such as collecting trolleys, construction or lawn mowing.
Under the heading 'psychosocial history', Ms Martens observed that the Offender reported having 3 biological children and, at the time of his arrest for these charges, he "had been in an intimate relationship which had spanned 1.5 years".
With regard to sexual history, the Offender reported that he has had four sexual partners, and stated an exclusive heterosexual orientation. The offender further denied having ever held a sexual interest in children, or towards males in general. He voiced a belief that it was not ok for adults to engage in sexual acts with children.
The Offender stated to Ms Martens that he was prescribed a number of psychotropic medications throughout his childhood, including Ritalin, Catapres and Risperdal, however he typically avoided taking medication wherever possible, as a result of his mother's overuse when he was younger. Otherwise, he reported minimal to no use of drugs or alcohol, aside from occasionally using alcohol to assist in coping with emotions, and "trying cannabis during adolescence". Ms Martens noted that the Offender was documented as having "substance abuse" in his medical history in 2009, which "could suggest a history of greater problems with alcohol or drugs than [DLW] disclosed in the current assessment".
Ms Martens noted that the Offender has a number of mental health diagnoses, including Autism Spectrum Disorder, Attention Deficit Hyperactivity Disorder, Schizophrenia, Bipolar Affective Disorder and Depression. His mother also reportedly had a diagnosis of Schizophrenia, as previously referred.
The Offender stated that he has received assessments from multiple mental health professionals, many of whom have provided him with contradictory advice or who have disagreed with respect to the accuracy of diagnoses.
In summary, Ms Martens stated the following: It is difficult to gain a clear picture of [DLW]'s mental health concerns due to his significant difficulty sustaining focus throughout conversation. It does appear, however, that his clinical picture includes elements of social anxiety, preoccupations with stressful events or worries, difficulty tolerating distressing emotions, impaired social relationships, possible intellectual delay, impaired executive functions such as focus, concentration, train of thought, and also mood disturbance. There are indications of a history of psychotic experience. … Unfortunately, due to the overlap with symptoms, complicating factors, and [DLW]'s' tangentiality, an accurate diagnosis is difficult to achieve and would likely be best provided following a period of longer-term intervention with a mental health professional.
The Offender reported that, since being in custody, he has been subject to physical assaults and threats of harm, which have spanned some 3 years.
Ms Martens further noted that relevant factors experienced by this Offender which have been associated with risk of sexual offending include his own experience of childhood abuse, mental health concerns, lack of coping skills and impaired social skills. However, the author also observed that "it is likely that [DLW] has experienced some developmental maturity since [the subject offending]", which could impact upon propensity to engage in further harm.
A large portion of Ms Martens' report was based upon self-reporting from the Offender, and it is well established that untested statements made to third parties should be treated with caution by sentencing judges: R v Harrison (2002) 121 A Crim R 380 at [32]. However, as I will elaborate upon shortly, much of this information was confirmed by the Offender as sworn oral evidence. Accordingly, I am inclined to accept the contents of the report of Ms Martens.
Despite the references to a number of psychiatric conditions in the Offender's past, there is no suggestion of any connection between those conditions and the subject offending. No submission was advanced on his behalf to the contrary, and no submission was advanced that this moral culpability was somehow reduced by reason of any psychiatric condition.

Offender's Oral Evidence

The Offender gave oral evidence during the course of the sentence hearing on 29 April 2021.
During this evidence the Offender confirmed that he was sexually assaulted over a period of some 6-12 months by "the babysitter's son" when he was aged 4 and the perpetrator was aged 16 (T4.15). The Offender stated that he believed this abuse impacted negatively upon his ability to trust people, as well as affecting his depression, anxiety and ability to attend and participate at school (T5.6).
When I asked the Offender to elaborate on the sexual abuse which he suffered at the age of 4, he stated that it occurred "numerous times" in a caravan at the back of 'Matthew's' parent's house (T14.8), and it would occur between 3 and 6 times per week over a period of 6 to 12 months (T14.40).
The Offender also confirmed that he had attended multiple special needs schools during his childhood, which aimed to address his learning and behavioural issues (T5.26).
When I enquired further about his upbringing, the Offender again confirmed that he was physically beaten by his mother, and by his father at the request of his mother (T13.15). He also stated that the relationship between his parents was "not very good" (T12.39), often involving violence (13.42), and that it "hurt" not having a good relationship with his parents (T12.42).
The Offender gave evidence that he is currently prescribed various medications, however has difficulty accessing these in prison, particularly when he is moved between different prisons. When asked by his counsel, the Offender stated that he has prescriptions for his Attention Deficit Hyperactivity Disorder, mild Schizophrenia (with which he was diagnosed at about age 8 or 9), Asperger's Syndrome, Depression and Anxiety.
The Offender also gave evidence in respect of his time in custody, again stating that he has been the victim of numerous assaults. This permits a finding that his time in custody is and will continue to be more onerous than for other offenders.
Under cross-examination, the Offender stated that he has, over the course of his life, seen psychologists in relation to the sexual assaults he suffered at age 4. He stated that these appointments have "helped to have someone listen" and "helped [him] move past it" (T11.7). He also stated that he had been regularly obtaining psychological help for his mental health and associated conditions up until his arrest in 2017, and stated he was "working hard and I was doing really good" (T12.3).
I found the Offender to be a reliable witness, and accept the evidence provided by him during the course of the sentence hearing.

The Offender's Age at the time of the Offences

The Offender was about 14 or 15 years of age at the time he committed these offences. Although the Offender is clearly being dealt with at law, the special principles applicable to children under section 6 of the Children (Criminal Proceedings) Act 1987 (NSW) remain relevant in this sentencing exercise. This was clarified in R v AA [2017] NSWCCA 84 at [65], where Beech-Jones J highlighted occasions in which the Court of Criminal Appeal confirmed the need for sentencing judges to consider the 8 principles applicable in sentencing children when dealing with an adult offender for an offence committed whilst they were a juvenile.
I acknowledge that their specific degree of application depends upon the nature of the offences charged, as well as the age, circumstances and conduct of an offender (see R v Voss [2003] NSWCCA 182; R v AEM [2002] NSWCCA 58). Although the conduct of this Offender as a 14 year old was no doubt serious, it remains my view that the principles maintain relevance in this sentencing exercise. Accordingly, I have had regard to those 8 principles dictated by s 6 of the Children (Criminal Proceedings) Act 1987 (NSW).
The principles regarding sentencing juvenile offenders when they are adults was discussed in JA v R [2021] NSWCCA 10 where Davies J, with the other judges agreeing, referred to an earlier decision of KT v R [2008] NSWCCA 51, in which McClellan CJ at CL stated at [22]: "The principles relevant to the sentencing of children have been discussed on many occasions. Both considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence. In recognition of the capacity for young people to reform and mould their character to conform to society's norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation."
And at [23]: "The law recognises the potential for the cognitive, emotional and/or psychological immaturity of the young person to contribute to their breach of the law. Accordingly, allowance will be made for an offenders youth and not just their biological age…Where the maturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult."
His Honour went on to refer to the need for emphasis to be given to rehabilitation rather than general deterrence and retribution when sentencing young offenders but also the need for moderation in that consideration in circumstances where the child was conducting himself as an adult or was committing a crime of violence or of considerable gravity.
The weight to be given to considerations relevant to a person's youth diminishes as the offender approaches the age of maturity ([26]).
At the time of this offending, the Offender was 14 or 15 years of age. Based on the subjective evidence it is likely, in my view, that his level of maturity and intellectual capacity was considerably less than his chronological age. Notwithstanding the gravity of the offending, I consider that general deterrence and principles of retribution are, in this case, of less significance than in other cases where the offender was an adult the time of the offence. I also consider that the maturity of the offender reduces his moral culpability and justifies a more lenient sentence than would be imposed upon an adult offender.
I also take into account that had the Offender been charged shortly after the offences then the sentence outcome would have been vastly different than that which is to follow on the occasion of the Offender being sentenced as an adult. Although no submission was advanced by counsel for the Offender concerning delay, I am cognisant of the effects of delay referred to in cases such as R v Donald [2013] NSWCCA 238 at [49], R v Todd (1982) 2 NSWLR 517 at [519], and Mill v The Queen (1988) 166 CLR 59 at [56].
Whilst questions of rehabilitation often arise during periods of delay, this is not once such case given the intermediate offending for which the Offender is presently serving a custodial sentence, however I do consider that the delay has caused an unfairness to the Offender, in that not only has been subject of a state of uncertain suspense, but the sentence to be imposed today at law is markedly different to the sentence which he would have received had he been sentenced as a minor.

Formulation of Sentence

Following the amendment of the CSP Act, the court is required to sentence an offender for a child sexual offence in accordance with the sentencing patterns and practices at the time of sentencing, not the time of the offence. I am satisfied that the sentence to be imposed meets that obligation.
In considering the sentence outcome, the court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. It was submitted by the Crown, and accepted by counsel for the Offender, that the section 5 threshold has been crossed for all 3 counts, and that a period of full time custody is inevitable. I accept those submissions, and find that no sentence other than one of full time imprisonment is appropriate in the circumstances.
Before turning to sentence, I have also had regard to the purposes for sentencing set out in s 3A of the CSP Act. That is: 1. to ensure that the sentence is adequate, having regard to the conduct of the Offender; 2. to deter both the Offender and others from committing similar offences; 3. to protect the community; 4. to promote the Offender's rehabilitation; 5. to make the Offender accountable; 6. to denounce the Offender's conduct; and 7. to recognise the harm done to the victim.
I have had regard to those factors, moderated by taking into account the age of the Offender at the time of the offending.
I intend to impose an aggregate sentence. As already indicated, the standard non-parole period does not apply, given that the Offender was a minor at the time of committing these offences (s54D(3) CSP Act). I provide the following indicative sentences: 1. Count 1 - 5 years with an indicative non-parole period of 2 years 6 months; 2. Count 2 - 5 years with an indicative non-parole period of 2 years 6 months; and 3. Count 3 - 6 years with an indicative non-parole period of 3 years.

Special Circumstances

As may be inferred by the indicative non-parole period, I find that special circumstances exist, by reason of the sexual abuse suffered by the Offender as a child, and his upbringing in a deprived and traumatic environment. I have also taken account of his age and immaturity at the time of offending. Accordingly, the portion of the sentence to be served on parole will be increased beyond the statutory ratio.
As this sentence is being imposed upon another sentence, it is necessary to give consideration to the overall ratio of the non-parole to parole period. Whilst I intend to reduce the non-parole period for this sentence to 50% of the head sentence, I do so aware that the overall ratio for the two sentences is greater (70%), but less than the statutory ratio.

Commencement Date

It was initially submitted for the Offender that the commencement date ought to be the date upon which the Offender was found guilty. That is, 25 September 2020. The difficulty with that submission is that on 11 December 2020 the Offender was sentenced to a term of imprisonment of 16 years with a non-parole period of 12 years. The non-parole period will expire on 26 June 2029 being the earliest date upon which he may be released. If I were to accede to the submissions of counsel for the Offender then it is possible if not likely that the sentence in the present matter would be wholly subsumed by the sentence which commenced in December 2020. To approach the determination of the commencement date in that fashion would ignore the facts that there are different complainants, separate acts and periods of offending. Plainly, the criminality of the offending for which the Offender is currently serving a sentence cannot reflect the criminality of this index offending.
I am conscious of the need to not impose a crushing sentence and, for that reason, intend to allow a degree of concurrency between the sentence which is currently being served and that which is to be imposed today. I intend to commence today's sentence on 26 June 2025, allowing a period of 4 years' concurrency with the sentence presently being served.

Conviction and Sentence

DLW, you are convicted of the following offences: 1. Count 1 - aggravated sexual assault of victim aged under 16 years, in breach of s 61J of the Crimes Act 1900 (NSW); 2. Count 2 - another count of aggravated sexual assault of victim aged under 16 years, in breach of the same section; and 3. Count 3 - another count of aggravated sexual assault of victim aged under 16 years, in breach of the same section.
For those convictions you are sentenced to an aggregate term of imprisonment comprising a non-parole period of 6 years, commencing 26 June 2025 and expiring 25 June 2031, at which time you will be eligible for consideration to be released on parole. The balance of term is 6 years, resulting in a head sentence of 12 years, which expires on 25 June 2037.
I am required by s 39(1A) Crimes (Domestic and Personal Violence) Act 2007 (NSW) to impose an apprehended violence order. The offence is a "serious offence" within the meaning of s 40(5)(c).
I order that, for the period of 5 years, the Offender must not: 1. assault or threaten the Protected Person (the victim LM) or any person with whom he has a domestic relationship; 2. stalk, harm or intimidate the Protected Person or any person with whom he has a domestic relationship; 3. intentionally or recklessly damage any property that belongs to the Protected Person or belongs to or is in the possession of any person in a domestic relationship with him; or 4. attempt to find or by any means contact the Protected Person or any person with whom he has a domestic relationship.
The effect of the sentence which I have imposed in relation to those convictions means that you will be serving an additional 2 years in prison before you will be entitled to be considered for parole. It also extends the total sentence out to 25 June 2037.

I certify that the previous 74 paragraphs are the reasons for the Remarks on Sentence of his Honour Judge D Wilson SC. J Bailey Associate 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: 16 July 2021

Crimes Act 1900(NSW)ss 61J(1)

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