R v XY [2020] NSWDC 288

District Court New South Wales

Medium Neutral Citation: R v XY [2020] NSWDC 288 Hearing dates: 29 November 2019, 2 December 2019, 3 December 2019 Decision date: 21 February 2020 Jurisdiction: Criminal Before: Norrish QC DCJ Decision: Sentenced to a total term of imprisonment of 7 years; non-parole period 4 years. Catchwords: CRIME – sentence after trial – sexual intercourse with child under 10 years – indecent assault child under 16 years – under authority -offences occurred during one incident – no prior offending – prisoner of good character but for the offending – special circumstances – principles of totality. Legislation Cited: Crimes Act 1900 s 61M(2); s 66A Crimes (Sentencing Procedure) Act Cases Cited: Holder & Anor (1983) 3 NSWLR 245 Johnson v R (2004) 78 ALJR 16 Mill v R (1988) 166 CLR 59 Pearce v R (1998) 194 CLR 610 R v Tuala [2015] NSWCCA 8 R v XX (2009) 195 A Crim R 38 R v Youkhana [2004] NSWCA 412 Suleman v R [2009] NSWCCA 70 Category: Sentence Parties: Regina (Crown) XY (offender) Representation: Counsel: Mr C Bailey (Crown) Mr P Rowe (Defendant) File Number(s): 2018/00036967 Publication restriction: No publication of the names of the offender or the victim

Judgment 1. XY appears for sentence today in relation to two offences for which he was found guilty by a jury at the Orange District Court on 3 December 2019. The two offences are firstly that he between 9 February 2012 and 18 February 2012 at Orange in the State of New South Wales, did have sexual intercourse with the complainant whose name is not for publication, a child then under the age of ten years, namely, 9 years. This is an offence contrary to s 66A Crimes Act 1900 and carries a maximum penalty of 25 years imprisonment with a standard non-parole period of 15 years imprisonment. 2. The second count on the indictment alleged that the prisoner did, between 9 February 2012 and 18 February 2012 at Orange in the State of New South Wales assault the victim and at the time of the assault committed an act of indecency upon her, she then being a child under the age of 16 years, namely, nine years. This offence contrary to s 61M(2) Crimes Act at the time, carried a maximum penalty of ten years imprisonment with a standard non-parole period of eight years imprisonment. 3. The prisoner has been in custody since the date of the verdict, 3 December 2019. There was no other pre-sentence custody. The sentences that I impose will effectively commence from the date he came into custody, that is, 3 December 2019. The proceedings were to be transmitted to Orange so that the victim could at least hear them, however, unfortunately technical difficulties prevented that happening. 4. The facts of the matter are set out in a statement of facts drawn from the evidence of the victim at the trial. I should point out in relation to the trial that was conducted that the prisoner did not give evidence at his trial and the jury were left to determine the matter based upon the evidence available in the Crown's case. The prisoner at the time of the sentence, that is, today, as I calculated is 43 years of age, being born in 1977. The age of the victim is self-evident from the pleadings, that is, her age at the time of the offences in 2012. 5. The prisoner was in a relationship with the victim's mother at the time of the offending. From what I understand of the matter from the evidence at trial and from material available from other sources, including some history given by the prisoner, the prisoner was in a relationship with the mother of the victim for a matter of some years, he living in the Cowra district, the mother living in Orange. It would appear, from what I understand of the matter, that he did not live permanently at Orange throughout the period of the relationship but would visit Orange from time to time. 6. The precise pleading of the dates or the dates between which the offences were committed arises from the fact that the offences proven against the prisoner, which occurred in the course of what can be called the one 'transaction' or about the same time, occurred at a time when the mother of the victim was in hospital, giving birth to the son of the relationship she had with the prisoner. Apparently, she has other children, including the victim, who are not related to the prisoner. 7. The mother of the victim was admitted to hospital on 10 February 2012 and discharged on 17 February 2012. During the time she was in hospital, the prisoner was left to look after the children, including the victim. The victim's father was initially asked to assist the mother, however, he was unable to do so because of work commitments. 8. The particulars in relation to the sexual intercourse matter are that the victim was at home with the prisoner. The prisoner told the victim to go into her mother's room, initially she ignored that request. However, the request was repeated and eventually the victim went inside. When she went into the bedroom, the prisoner was dressed in his boxer shorts and he told the victim to take off her clothes. She said "No" and went to leave the room. The prisoner walked over to the complainant and started to help her take off her clothing. She again said "No." The victim then took off her pants, as this was all the prisoner had told her to remove, and then he told her to get on the bed. She got on the bed and pulled the blankets over herself. The prisoner told her that she did not need them. The prisoner started to fondle his genitalia and rubbed his penis on her thigh. The victim asked what he was doing and the prisoner responded "Oh we're just going to have some fun". The prisoner told the victim to perform a "69er" on him. She said "No." The prisoner got up and moved in front of the victim. The prisoner grabbed the complainant's legs and started to lick her vagina. She said she didn't like it and she felt bad but he continued. She rolled over and closed her legs, at which the prisoner said "the wider you open your legs the more you'll want it" or words to that effect. The victim told the prisoner to stop and she did not like it. He then ceased licking her vagina and started to rub his penis using his hand again, and rubbed his penis on the complainant's leg and her thighs. The licking of the vagina is the act of sexual intercourse. The rubbing of the penis on her thighs is the act of indecency or the indecent assault reflected in count 2 in the indictment. 9. The victim pretended to be tired, trying to leave the room and the prisoner referred to some ejaculate on her legs and eventually he said that it was fine "you'll like it eventually, I've got to do it now before you're old enough to have kids". She went back to her room and it was the case that ultimately the matter was brought to the attention of the police. 10. She was interviewed by police in 2013 arising out of an argument that had erupted between the prisoner and the complainant's mother, with whom he had obviously a somewhat tempestuous relationship, when they were in Cowra to celebrate his son's birthday. After that argument on about 16 March 2013, the victim made an allegation against the accused that he had offered her money to, "do it with him". The police interviewed her in relation to the matter subsequently and in that interview conducted at the school she attended at the time, on 18 March 2013, she denied any impropriety on the part of the prisoner. 11. Subsequently, she made a complaint in a general way to some friends at school. Nothing further occurred out of that complaint. But at a subsequent time in 2017 the victim's mother and her father found alcohol and a homemade bong for the smoking of marijuana in her room. She was working at the time and she was confronted, after being picked up from work, about the items that were found in her room. She blamed the prisoner for matters concerned with the items in her possession. Then she asked to speak to her mother alone and then made a complaint to her about the incidents that she said occurred when her mother was in hospital giving birth to the prisoner's son. She attended the Orange Police Station on 20 November 2017 and a pre-recorded interview was undertaken which was available to the jury. 12. The prisoner was spoken to by police on 3 February 2018 and although he declined to participate in an electronically recorded interview, he, as the evidence at trial revealed, denied the detail of the allegation that was generally put to him by the police at that time. The prisoner has no criminal convictions. However, there is recorded at the Orange Local Court, as I understand it, for a matter alleged to have occurred on 24 October 2015, dealt with on 29 February 2016 almost four years ago, an offence of contravening an AVO which was dismissed pursuant to s 10. The offender also has a finding of guilt in relation to driving with an illicit drug present in his blood in February 2017, ultimately dealt with in August 2017 for which he was placed on a bond pursuant to s 10 for a period of 12 months. Given his age and his criminal history, there is no history of anti-social conduct or allegations of violence or any matters of a sexual nature. Although, to be frank, that is not necessarily uncommon in relation to offences of the type for which the prisoner is to be sentenced. 13. I understand from some of the history the prisoner has given to the psychiatrist, whose report was tendered on his behalf without objection from the Crown, the contravention of the AVO relates to the prisoner's relationship with the victim's mother. There is a great deal of material in that report by way of history given by the prisoner to the psychiatrist that may or may not have been relevant to the real issues in the trial. But as it was not the subject of evidence in the Crown case, it is not the subject of particular matters being raised with the victim. There has been no evidence from the prisoner either at trial or in the sentence proceedings about those matters. Clearly, I can pay no heed to that history contained within the prisoner's psychiatric report as it may have informed the circumstances of the alleged offending or even the circumstances in which the complaints against the prisoner that were prosecuted came forward. 14. It would appear clearly there was some element of dysfunction at work in the prisoner's relationship with the victim's mother. The extent of dysfunction within the family of course is something I cannot comment upon and draw no conclusion about, as it really, as I said was not pursued in the trial and there is no reliable evidence, bearing in mind the hearsay representations of the prisoner to the psychiatrist have not been the subject of test by the prosecution. 15. The prisoner, as I would understand it was at the time of the offending 35 years of age on my calculation. A Sentence Assessment Report has been prepared. It sets out some detail of the background of the prisoner which I am prepared to accept. As I am prepared to accept at least some of the details contained within the psychiatric report that do not impinge upon the evidence at trial. The son of the relationship of the victim's mother lives with the mother. The prisoner because of these proceedings has no contact with his son. As I would understand it, the prisoner's family connections are almost entirely in Cowra and on release he would return to Cowra to live. 16. His parents have supported him throughout the trial and I have noted were present at the sentence proceedings last Friday. The prisoner has not previously been the subject of any supervision by Community Corrections, his lack of what I could call "antisocial" conduct in the past apart from the matters I am concerned with now, reflects that fact. 17. The risk assessment undertaken by Community Corrections reveals him to be a "low risk of re-offending", having regard to the actuarial instrument used by that organisation, that is Community Corrections. Of course the assessment of risk is complicated by the prisoner's plea of not guilty to each charge and his denial of the truth of the allegations against him. 18. With regard to the victim, she was nine years of age. Although she showed signs of distress during the course of giving evidence, at least in circumstances where I spoke to her directly sometimes in the absence of the jury, she was a "quite confident" witness and delivered an impact statement that was prepared by her in this matter in a mature and self-possessed fashion. The victim impact statement is a mature document, perhaps reflecting maturity beyond at least the presentation of the victim. 19. I am required of course to take into account the victim impact statement pursuant to s 26 Crimes (Sentencing Procedure) Act. However, I am mindful of a great deal of authority that discusses the extent to which by reference to the effect upon the victim of the prisoner's conduct, the victim impact statement of itself can establish beyond reasonable doubt, aggravating factors that might otherwise be available, pursuant to the operation of s 21A(1) of that Act. Obviously, conduct of this type towards a nine year old child, will have harmful effects upon a child. I note discussion in decisions such as the decision of Tuala [2015] NSWCCA 8, particularly at [77], as well as at [14], and also an earlier decision of Youkhana [2004] NSWCA 412. Ultimately, I take into account what the victim said, reflecting what might be expected as resulting from conduct of this type. But I cannot conclude that the relevant emotional harm and damage reflects an aggravating factor under s 21A(2) of the Act beyond what would be expected in a case of this type. 20. In respect of the case presented on behalf of the prisoner, there are a number of references. The issue of whether the prisoner's character should have been before the jury at trial is an interesting point. Perhaps it might have invited examination of the relationship of the prisoner with the mother. But I am not here to make comment upon any tactical decisions that were made. There is a picture of the prisoner from the reference material which was not available to the jury for it to take into account. But again that is a matter for the prisoner and his legal advisors. 21. I have a reference from a retired Superintendent of Police who served the NSW Police Force for 35 years. He has known the parents of the prisoner for over 50 years and has had a great deal of social contact with them and their children, the prisoner having two sisters. He reflects upon the positive qualities of the prisoner's family. He expresses surprise at the prisoner being in the situation in which he now finds himself. He described the prisoner as somewhat of a "loner" being "quiet within himself". However, he always found him open to speak to and speaks positively of his work ethic and his general conduct in the times that he has had extensive contact with him. 22. I have a reference also from the mother of the best friend of the prisoner. She is a woman who worked in "child protection services" for the Department of Community Services in Cowra and has known the prisoner for over 20 years and knows the family fairly well. She regards the prisoner as someone she could trust amongst her own family. She notes the breakdown of the relationship of the prisoner with the mother of the victim and the lack of contact with his son, which has had a great effect upon the prisoner. But that is of course something subsequent to the offending. She speaks of the positive relationship the prisoner had with his son and again her surprise at the charges brought against the prisoner and his conviction and that from her observation of him, the conduct proven against him was "out of character". 23. I also have reference from an employer who owns a property not far from Cowra. He has employed the prisoner for the last two years but has known the prisoner for over 20 years and speaks of him highly as a worker of industry. Punctual, good tempered and a "pleasure" to work with. He speaks positively of his general character and apart from being saddened at the prisoner's predicament also speaks positively of the prisoner's contact with members of his family. 24. Finally, a reference from a man whose family are very well known business people and prominent people in the Cowra district. Some members of that family have been Mayors or Presidents of the Local Government organisation that covers the Cowra area. He expresses his shock at the prisoner's conviction in relation to these matters, speaks positively of his character, his good conduct at social occasions and indicating no suggestion of misconduct on his part or any reason to believe that he would be a risk to other people, particularly children. 25. One of the matters that emerged from the history given by the prisoner is his regular use of cannabis. This seems to have been a matter that may have reflected upon in the victim's complaint to her parents. Whether this is true or not, I do not know. It was not really examined at the trial as to the provision to her of the bong that was found in her room. Be that as it may, the counsel for the prisoner raised with her the issue of whether the prisoner may have committed the offence in circumstances where he was using cannabis. In the context of the victim's evidence and with no evidence from the prisoner, it is an impossible task for me to identify the ingestion of cannabis as in any way contributing to the offending. It could not be regarded as a mitigating factor in any event. The fact that the prisoner says that he was a regular user of cannabis over the period of time that the offending, in fact for a number of years beforehand and subsequently, does not of itself reflect the fact that he was using cannabis on the day in question. As I said, the prisoner raised a number of issues, relating to the domestic relationship of the victim's mother in that report that I cannot act upon. 26. So far as the psychiatric report is concerned, getting to the nub of it, the psychiatrist's report identified no past psychiatric history, never has the prisoner previously been treated for depression or anxiety or mood disturbance. The prisoner did suffer a significant back injury in 2007 requiring surgery, a further back injury in 2010 and suffers pain from lifting heavy objects and the like. Working in the rural sector of course, back injuries are not only common but are an impediment from time to time in being able to perform work. He has had no history of head injury or epilepsy and I have reflected upon his history of cannabis use. 27. He has had an unremarkable upbringing. He had no special learning difficulties or any evidence of attention deficit or hyperactivity disorder. He was a good sportsman. He completed Year 12 as I understand it at Cowra High School, attending the local State schools. He has had an unremarkable line of relationships since leaving school, except for of course the circumstances of his contact with the victim's mother. 28. The psychiatrist undertook a Protocol known as the 'Risk of Sexual Violence Protocol' or (RSVP) and the Static 99 Risk Assessment, he noted some deficiencies in the Static 99 instrument. He said ultimately from his testing of the Static 99R instrument that the prisoner's score of "1" categorises him at the lower end of what is described as "Level III - average risk which demonstrates features typical of offenders in the middle of the risk distribution". He notes, however, that that follows upon his conviction for these offences which of course might be taken into account as the significant matter in risk prediction. In the absence of the convictions, there will be no real substantive evidence of risk. He noted, however, a gap of eight years between then offending behaviour and the current litigation. Ultimately, he would regard the prisoner, with the various historical factors taken into account, as "below average risk of offending". 29. In relation to the RSVP, it identifies denial of the offending behaviour, despite a guilty finding and he notes some risk factors associated with further offending behaviour. However, in the absence of evidence of physical coercion, chronic conduct or diversity of offending behaviour, or even escalation of sexual violence or attitudes that condone sexual violence, he would see him as being a person of "low risk" of sexual offending recidivism. He has not been a victim of childhood sexual abuse and does not suffer a major mental illness which puts him at risk. He does not have an anti-social personality disorder or features of psychopathy and his cannabis abuse is not regarded as ultimately significant. 30. He diagnoses, what he describes as a "paedophilic disorder - non-exclusive/sexually attracted to females". That assessment is based upon the conviction. He notes suggestions of "monetary coercion" and the character of the criminal conduct that I have outlined, but notes it is offending that occurred on a "single occasion" and is a "historical" offence. He says otherwise, but for the offending, and that is of course a very significant issue to note, he would not have come to that conclusion. He also notes the "cannabis use disorder" and an "adjustment disorder with depressed mood", largely as a response to his current custodial and legal circumstances. He says, ultimately, there is no mental condition that is causally connected to the offending. He believes that in the context of his past history, the prisoner is not a risk in the general sense. However, whilst in custody he will not be offered treatment in a custodial setting. He said that he would remain a protected inmate during the term of his sentence and there will be risks for him in custody, particularly bearing in mind he has never been in custody before. He said that the Court should take into account the special needs he will have on his release from custody to adjust to community living. 31. I have taken all that material into account in the assessment of this matter. In sentencing the prisoner of course, I am required to have regard to the "purposes of sentencing" and of course this particular sentencing exercise, having regard to these offences, requires consideration of a range of purposes, including the need for adequate punishment, to prevent the prisoner and others from committing similar offences. Although in my view and the context of the isolated character of the offending and the distance in time since the offending and the lack of relationship with the victim, the risk of further offending or the need for "personal deterrence" is substantially diminished. I am required in that context, to consider the protection of the community from the offender, to promote his rehabilitation, to make him accountable, to denounce his conduct and to recognise the harm done to the victim. 32. In the context of the submissions that were made, helpfully by both the learned Crown and Mr Rowe for the prisoner, turning to s 21A(2), the aggravating factors that are to be taken into account are firstly that the offences committed in the home of the victim and secondly the offences were committed whilst the victim was subject to the "authority" of the prisoner, which is an aggravating factor not pleaded in the indictment. I bear in mind in the context of assessing the character of the authority, the prisoner's authority over the victim was a temporary one albeit that it gave him an opportunity to commit the offence. The prisoner in reality, had no abiding responsibility for the victim. But it still was an offence committed when he had been left with the care of the victim, perhaps in circumstances where it might have been preferable for the father of the victim to take on that particular responsibility. Although of course, I am certainly not criticising the father of the victim in any way whatsoever. 33. The learned Crown made some reference to additionally, the offence involving "a breach of trust". It is well settled in the context of considering that matter that breach of trust exists where there is a "special relationship between the victim and the offender at the time of offending" (see Suleman v R [2009] NSWCCA 70, particularly at [26]). In this particular matter, I cannot divine, nor is there any reliable evidence of a "special relationship" between the victim and the offender. I am mindful of the fact that when a person is under the authority of an offender, there are elements of trust that are reflected by the expression "under authority". But I could not find as an additional aggravating factor a breach of trust on the part of the prisoner. I should point out, the prisoner was obviously not subject to conditional liberty at the time of the offending. In fact the two matters that I have identified in the criminal history have to be recognised as being matters recorded after the offending. So at the time of the offending, the prisoner did not have any record of previous convictions. I am prepared to accept, he was a person of good character and notwithstanding the findings of guilty subsequently, he comes to court as a person of good character but for the offending behaviour. 34. I concluded that he is unlikely to re-offend, has good prospects of rehabilitation. I have also concluded as it is relevant to the assessment of the objective facts to the offences that I am concerned with were not "planned". In assessing the objective seriousness of the offending because each of the offences has a "standard non-parole period" and I am required to have regard to the terms of Pt 4 Div 1B of the Act. I have concluded that the offending, notwithstanding the aggravating factors present but having regard to all the circumstances, was below the "middle range of objective seriousness". Matters I have taken into account in coming to that conclusion is the character of the conduct reflected in each charges. In relation to the sexual intercourse matter, the age of the complainant at the time, albeit she was very young, was two months short of the maximum age pleaded, that is, ten years. The offending was of relatively short duration. Of course there was some persistence by the prisoner and some pressing of the victim. I could not conclude beyond reasonable doubt there was relevantly "coercion". Ultimately there was the fact that the prisoner desisted from the conduct but only after some persistence. In relation to the indecent assault matter, the age pleaded is 16 years and the child was nine years. But the section contemplates a range of conduct involving children from a very young age, close to birth right up until 16 years. 35. I accept relevant to the sentencing of the prisoner, the prisoner facilitated the course of justice. The Crown accepts this is so and thus it is a matter to be taken into account pursuant to s 22A. I have borne in mind the need for the prisoner to receive professional assistance which he may not receive in custody on his release from custody. I have borne in mind in the context of him having never been in custody, the circumstances of custody will present some hardship for him, having regard to the character of the offending. But that having been said, there is ample authority from superior courts to indicate that notwithstanding the risks that are in custody for people of the prisoner's background, the truth of the matter is that there are steps that can be taken to provide protection, although they may involve some restriction upon movement and opportunity to undertake programs whilst in custody. These matters that I have identified through the helpful submissions of Mr Rowe were largely accepted by the learned Crown. Although he did invite me as I have done in the assessment of the objective facts to bear in mind the fact that the prisoner did invite the victim to enter the mother's bedroom at the time of the offending which is to be considered in the context of that aggravating factor of the offence occurring within the home of the victim. 36. The Crown, if I have not already said so, accepted the analysis of learned counsel for the prisoner that I should conclude that ultimately, the offending was below the middle range of objective seriousness. I appreciate it is not at the lowest level in relation to particularly the sexual intercourse matter, neither for that matter the indecent assault allegation or offence. 37. I have concluded pursuant to s 44 of the Act that there are "special circumstances" warranting an adjustment of the relationship of the non-parole period to the balance of sentence. Of course in sentencing the prisoner, I am required to have regard to the totality of the criminality. 38. I am required to have regard to what has been said about this matter by the High Court in both Johnson v R (2004) 78 ALJR 16, particularly at [17] and in the landmark judgment of Mill v R (1988) 166 CLR 59, particularly at 63, where the learned majority of the High Court reflected upon the discussion of principles of totality falling from the leading English academic D A Thomas in his landmark text "Principles of Sentencing". Street CJ, in his usual eloquent way in the decision of Holder & Anor (1983) 3 NSWLR 245, particularly at 260, provides a useful guide to the task of reflecting totality of criminality by the "telescoping" of sentences. Hence, there will be some partial accumulation of the longer sentence upon the shorter sentence to the extent of one year. Of course underlining the task for me and although it is only in respect of two counts, I bear in mind what the majority of the High Court said in Pearce v R (1998) 194 CLR 610, particularly at [45] as to the proper approach to sentencing, as well as Hall J's summary of principles in R v XX (2009) 195 A Crim R 38, particularly at [52]. 39. Thus, I have arrived at the sentence and I will move to make those formal orders. 40. XY, in relation to count 1, you are convicted. You are sentenced to a term of imprisonment of three years by way of non-parole period commencing on 3 December 2020, expiring on 2 December 2023. I fix a balance of sentence of three years imprisonment, expiring on 2 December 2026. 41. In relation to count 2, you are convicted. You are sentenced to a term of imprisonment of one year six months imprisonment by way of non-parole period commencing 3 December 2019, expiring on 2 June 2021. I fix a balance of sentence of one year six months imprisonment, expiring on 2 December 2022. 42. The total sentence imposed is seven years imprisonment with a non-parole period of four years imprisonment. 43. XY, I don't have the opportunity of allowing you to discuss the matter with your counsel; I have to move onto another case but do you understand the sentence I've imposed? 44. OFFENDER: Yes your Honour. 45. HIS HONOUR: Right, thank you, you are excused.