R v MD [2020] NSWDC 285

District Court New South Wales

Medium Neutral Citation: R v MD [2020] NSWDC 285 Hearing dates: 19 - 26 November 2019; 7 February 2020 Decision date: 14 February 2020 Jurisdiction: Criminal Before: Norrish QC DCJ Decision: Sentenced to a term of imprisonment of 3 years; non-parole period 18 months. Catchwords: CRIME – sentence – assault and at time of assault committed an act of indecency upon child under the aged 10 years, namely 8 years – substantial age difference – in dynamic troubled relationship with mother - at home of victim – not planned – no breach of trust - criminal history but no prior convictions for indecent assault – good prospects of rehabilitation – special circumstances Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Category: Sentence Parties: Regina (Crown) MD (offender) Representation: Counsel: Mr T Bailey (DPP) Mr B Walsh (offender)

Solicitors: Mr Rolfe (offender) File Number(s): 2018/00049925 Publication restriction: Non publication order for the name of the offender and the complainant

Judgment 1. MD the prisoner appears today for sentence in relation to a count on which he was found guilty after a trial at the Orange District Court last year. That count alleged that he, between 5 June 2002 and 31 December 2002 at Parkes in the State of New South Wales, did assault the complainant, whose name is not for publication, and at the time of the assault committed an act of indecency upon her, she then being a child under the age of ten years, namely eight years. 2. The maximum penalty for the offence with which I am concerned at the time of the commission of the offence was ten years and in 2002 there was no standard non-parole period for that offence. Of course now, after initially fixing a standard non-parole period in the amendments to the Crime (Sentencing Procedure) Act of five years imprisonment the standard non-parole period for that offence is eight years imprisonment. 3. The case is somewhat unusual in a range of ways, particularly in relation to one aspect of the matter concerning aggravating factors in the case which I will come to shortly. 4. The prisoner was arraigned on four counts and found not guilty of three; that is counts 1, 3 and 4. In the trial the prisoner produced positive evidence in denial of the charges and particularly challenged in respect of some of the charges the opportunity for him to have committed the offences as alleged. I should point out that count 1 in the indictment for which he was acquitted was an allegation of sexual intercourse of a child under the age of ten years. It is not for me to comment upon the consistency or inconsistency of the count upon which the prisoner was found guilty. There is, it might be thought, some element of inconsistency, in the context of the Crown case being largely dependent upon the credibility of the complainant in verdicts of not guilty in relation to three counts but a verdict of guilty in relation to one. I might say in relation to the count on which the offender was found guilty there was prima facie, although the facts are somewhat confused, some evidence of "recent complaint" in respect of the allegation for which the prisoner was found guilty. 5. So far as the facts are concerned, to put the matter in some context, the prisoner was born in August 1957. Thus at the time of the commission of the offence in count 2 on my calculation he would have been approximately 44 years of age. The prisoner had been in a very uneasy relationship, if I be so bold to say so without criticism of either party, from 1998 until approximately 2014. In fact, as I understood the evidence, there was a child born of that relationship. 6. However, there was evidence at the trial which I accept, that the prisoner was not a permanent resident in the home where the victim lived with her mother and with siblings in their residence at Parkes. The prisoner appears from time to time, depending upon which particular period of time one is concerned with, to either be staying at the residence of the victim's mother, the property being owned by her or members of her family, or staying at other premises either with relatives within the town of Parkes, or alternatively at other residences, including a residence at Peak Hill. The Crown's statement of facts, or facts proposed by the Crown, suggests that the prisoner moved into the victim's family home at Condobolin in about 2002. In fairness to all the facts in the case it is impossible to be precise in that regard. But even when he "moved in" to the victim's family home it would seem that he, from time to time, lived elsewhere. However the facts upon which the prisoner was found guilty based upon the evidence of the victim were within a narrow range, if I could use that expression. The victim was involved in doing some chores at the back of the residence in what was called the "tack room" which was part of a shed on the property. The prisoner approached the victim when she was alone, although there is some suggestion that her brother may have been nearby, took hold of her, lifted her skirt up, pulled her underwear down and kissed the victim in her pubic area. Footsteps were heard coming towards the shed, the prisoner stopped and moved away from the victim and the victim went out to speak to her mother. 7. On the Crown case, having regard to the other counts on the indictment, the offence in count 2 was one of a number of violations of the victim reflecting a course of conduct. But in the circumstances of the acquittal of the accused in relation to the other three counts I could not conclude that this offence was part of a course of conduct. As I said the accused in the trial gave evidence and completely denied all the allegations and put a positive case in response to particular allegations, the circumstances of which I need not dwell upon. 8. The prisoner was arrested in relation to these matters in early 2018, the victim making complaint to the investigating officials some period of time shortly before that. The prisoner was interviewed by police and denied sexually assaulting the victim. 9. With regard to the objective facts I have taken into account the character of the indecency. I have also taken into account the substantial difference in age between the prisoner and the victim. It is of course entirely inappropriate for a person of this prisoner's age to have any sexual contact with a child of the age of this particular victim. And further it was inappropriate in the context of him having a de-facto relationship with the victim's mother, to have any sexual relationship with her. The age of the victim self-evidently reflects upon the prohibition that rightly exists in relation to the prisoner's conduct. 10. The Crown submitted there were essentially two aggravating factors required to be taken into account in the assessment of the objective facts. One matter the Crown adverted to by reference to s 21A(2) Crimes (Sentencing Procedure) Act, 1999, was that the offender "abused the position of trust or authority in relation to the victim" (s 21A(2)(k). And that the offence was an offence committed in the "home" of the victim (s 21A(2)(e)(b). 11. Interestingly the issue of whether the offence was literally "in the home" of the victim raises a matter of some semantics. The offence occurred in a building that was part of the dwelling structure of the premises. Although it was not a part of the structure where people lived as a general rule it was part of a shed attached to the property. It is to be fairly said that it might be regarded as an area within the "home" of the victim and thus in a technical sense it is true that that aggravating factor exists. However, in the context of the character of offending of the type with which we are concerned here, there will be a range of circumstances involving events occurring within the home of the victim that will, by their facts, reflect upon the vulnerability of the victim or the outrage of committing a crime of this character upon a child in a place where the child should feel safe. I accept as a general proposition that the victim should feel safe in the presence of the prisoner wherever she should be, but most particularly in premises where she lived. But in making that finding I bear in mind the facts of cases from time to time that reflect the circumstance of aggravation may, for example, reflect upon an assault committed whilst a child was lying in bed in a place quite clearly where the victim is entitled to feel safe in a very pronounced way. Thus, within the range of conduct contemplated by the sub-para to which I refer the location of the assault is not, in my view, as aggravating as it might be for example in the situation of the child being assaulted inside the home. Albeit, I hasten to say, it is still a serious matter having regard to what I have said. 12. I am not satisfied however beyond reasonable doubt that the complainant was under "authority" of the prisoner or that the prisoner "abused" a position of authority in relation to the victim nor, dare I say it, a position of "trust". It is true at the time of the commission of the offence the prisoner was in a relationship with the victim's mother. But it was quite apparent to me, both from the evidence within the Crown case, and from the prisoner himself, that the prisoner himself did not see himself as having any particular responsibility in relation to children of the mother of the victim other than the child of the relationship he had with that person, whilst he was present in the house as a partner of the mother of the child, I do not regard him in the context of what I heard at the trial as fulfilling the function of a "step-parent" in a formal sense and certainly it would seem throughout the period of the prisoner's relationship with the mother of the victim the prisoner had a problematic relationship it would seem, particularly with the siblings and the victim's mother. That is the victim's grandmother. I appreciate the particular matters raised with me by the Crown. I accept that if a clear relationship of stepfather to child was established then one could readily conclude that the accused had abused the position of authority in relation to the victim. But the evidence at trial did not clearly establish such a relationship or that the prisoner felt any particular relationship with the victim that provided him with particular authority over her. Although I appreciate consideration of that aggravation does not turn upon necessarily the prisoner's view of the matter. That is, of the relationship held by the prisoner. 13. So far as mitigating factors that arise out of the facts of the case, and I am dealing now just with the objective facts of the case, by reference to s 21A(3), I have concluded, although it is a serious offence, that the damage or loss or injury and emotional harm to the victim was not "substantial" in the circumstances of the material that was presented before me, I accept that the offence was not "planned" criminal activity. Those matters arising under s 21A(3) are relevant to an assessment of the objective facts. 14. The offence, as I said, carries a maximum penalty of ten years. It is a serious offence, certainly not at the lowest level of offending, particularly having regard to the context in which the offence occurred, the character of the touching or the character of the act of indecency of the prisoner and the difference in age between the prisoner and the victim. It is quite clear the prisoner was well aware of the child's age at the time of the offending. Whether the conduct would have developed into something else but for the approach of someone I am unable to say. I can only sentence the prisoner on the basis of the facts available to me from the trial. As I pointed out, there was no injury to the victim. 15. So far as other matters are concerned in respect of this prisoner. First of all he has a criminal history that does not entitle him to any particular leniency. He has a number of findings of guilt over the years. I have noted that he was born in 1957. He has appearances in the Local Court particularly from 1975 onwards. He has findings of guilt in relation to driving matters and minor offences up until 1986. He has convictions in respect of driving with the prescribed concentration of alcohol on three occasions, a conviction in March 1995 at the Orange Local Court in relation to driving with high range PCA, a conviction at the Orange Local Court on 3 December 1998 in relation to a middle range prescribed concentration of alcohol and another conviction for driving with high range prescribed concentration of alcohol in September 2000. He has convictions for crimes of violence. In 1997 he was convicted of assault occasioning actual bodily harm in the Parkes Local Court for an offence committed in March that year and fined and ordered to serve a community service order. He has a conviction in 1998 for assault occasioning actual bodily harm. That offence was committed in August 1998. The order of the Magistrate was set aside and on appeal to the District Court he was placed on a recognizance for a period of two years to be of good behaviour and to participate in programs to address alcohol rehabilitation and counselling. Whether he appeared before the District Court having served part of the sentence imposed by the learned Magistrate I do not know. But I will assume for the present purposes in the absence of evidence to the contrary that he did not. He has a conviction in 2010 at the Parkes Local Court for an offence committed in July of that year of what I would understand to be "affray". It is summarised as "three people use violence cause fear", placed on a bond for a period of twelve months. I accept by reason of the fact it was dealt with in the Local Court that it was not a serious matter. He has a finding of guilt in September 2017 for an offence committed in April of that year of wilful and obscene exposure in a public place. Again, he was placed on a bond for a period of twelve months, fined $300 in respect of that offence. Precise circumstances of that offence are not known to me. I am unable to say whether there is a sinister connotation to that offending in the context of the offence with which I am now concerned. There are a range of acts by a person that might attract that particular offence. 16. I have thus concluded as I said that his criminal history does not entitle him to any particular leniency. There is not anything in his criminal history that I could warrant a finding adverse to him that his criminal history presents as an aggravating factor in the circumstances of this offending. But I could not find as a mitigating factor that he was a person without significant criminal convictions, albeit that he has no prior convictions for indecent assault. 17. I have a Sentence Assessment Report, from Community Corrections. That confirms a number of things that were raised in his case both in his evidence and the evidence of his sister and his friend or partner who lives in Molong. The prisoner generally lives in Parkes with his sister but spends a few days of the week as I understand it at Molong. He has been receiving a disability support pension since 1997. He does not accept the truth of the charges against him. The consequence of that is of course there is no evidence of remorse and from the perspective of Community Corrections he has displayed "little insight" into the impact of his offending but agreed that he is willing to undertake any interventions that are required. 18. An assessment was undertaken by a psychologist from Corrective Services based upon available information but without interviewing the prisoner, which indicated that he was at "medium" risk of re-offending. This is by the use of an actuarial instrument described as the Level of Service Inventory Revised, or (LSI-R). I accept the submissions of learned counsel for the prisoner that one must approach this report with some circumspection. There are some details of his background which I am prepared to accept. However the reporter herself notes that she has had to undertake a predictive exercise so far as risk is concerned having regard to his criminal history and certain "objective factors", sometimes referred to as static factors. But the assessment is obviously incomplete. I am also mindful of the fact that the STATIC-99R assessments are not conclusive. There are reservations to be had about their accuracy of predictability. Sometimes of course they refer to factors which point to risk and I need not dwell upon an analysis of that, but the assessment did not include a formal assessment of dynamic risk factors and those dynamic risk factors of course would be matters particularly personal to the prisoner as far as his present circumstances are concerned. I have evidence from him about that and from his sister and his partner, but that information has not been assessed by someone qualified to do so. 19. There are aspects in terms of his background that are noted in the psychologist's report and are said to be, and I accept are, relevant in this sentencing exercise. The prisoner has a diagnosis of post-traumatic stress disorder. This diagnosis is in fact been in place for a considerable period of time over 30 years. The prisoner was involved in two very traumatic events as I understand it. In fact one of those matters was the subject of evidence by him at the trial. In January of 1983 he was involved in a fatal road accident, the circumstances of which I do not know particularly, although I accept whoever was to blame for that situation the prisoner was affected by it. In November 1986 whilst working as a doorman at a licensed premises in Orange, as I understand it, he was attacked by a large group of men and seriously injured. The prisoner had major surgery after the road fatality and also had major surgery after the attack upon him. At one point I remember a figure of '20 people' being identified as having attacked him and this has had a significant effect upon him throughout his life. As I have earlier pointed out there is evidence before the court that he has been on a disability benefit for some years reflecting, it seems, the impact of those earlier traumatic events. 20. The prisoner is a person of Aboriginal background. He left school at a young age, leaving school at 14. He has been married previously. He is the father of seven children according to the psychologist's report of at least two prior relationships, although two of his children were stillborn. He has not had contact with his children for quite a number of years. I accept as it is relevant to the assessment of him at this point from the evidence he gave and the evidence of his sister and his partner that his domestic circumstances have stabilised considerably. Particularly since he separated from the victim's mother. That appears to have been a dynamic relationship from what I understand and there was a lot of pressure upon the relationship having regard to what apparently was the bad relationship the prisoner had with the mother's siblings and the grandmother of the victim who has passed away. The brother of the victim's mother gave evidence at the trial and he admitted matters of tension leading to him in fact threatening the prisoner at one stage with a knife. So one can see in that domestic circumstance a number of pressures upon the prisoner were not of his making necessarily, which I accept. But, of course, none of this provides an excuse for the conduct found against the prisoner. 21. So far as the assessment of the prisoner's circumstances by the psychologist from the Corrective Services Department she has reflected upon matters that she says in her report concern the prisoner's relationship with other people. I cannot act upon that information given that it would appear to be hearsay material, possibly two or three times removed from him. The psychologist noted as in the Sentence Assessment Report previous intervention to address the prisoner's alcohol abuse. I accept from the evidence available to me now that that is an area where the prisoner's situation has stabilised considerably and I accept that he has a stable domestic situation now free of the tensions that might have existed in his relationship with the victim's mother. The prisoner indicated that he was willing to undertake any interventions directed and he will need to be assessed both in custody and out of custody. It seems to me in the circumstances of his existing psychological conditions, having regard to his personal background, the difficulties of his upbringing and the like, that the prisoner needs an extended period of time of supervision on release to parole to address issues pertinent to the allegation against the prisoner but also to assist him to adjust to community living and to continue counselling in relation to alcohol use which has been difficult for him in the past. 22. So far as his risk to the community is concerned, I am not qualified to reach a concluded view in relation to that. I cannot act with confidence upon the psychologist's report with no disrespect to the psychologist. But I bear in mind a couple of things. Firstly the prisoner's age militates in favour of him in terms of his risk to others, particularly in relation to conduct of this type. The facts of the matter are the prisoner no longer has access to children, as I would understand it. This is not a situation where the prisoner continues to have a relationship with children or have a relationship particularly with the victim. There is a current AVO in place protecting the victim but as I understand the relationship of the victim and her family has been severed for a number of years. The evidence available to me does not speak of matters that reflect a current risk. I cannot conclude that the prisoner is a person of deviant sexual proclivity as such other than what might follow from the character of the charge brought against him. But it has to be seen in context as an isolated incident given the verdicts of the jury. I have had regard to the health summary provided by his counsel setting out the fact that he is subject to a range of medications at the present time. He reiterated in his evidence before me that he did not admit the commission of the offence. I accept that he has the support of his sister in the future as with his partner in Molong. That partnership at Molong has reaped benefits for the prisoner. She spoke positively of aspects of his character, his support for her after the death of her husband, his kindness to her, the fact that he is a very private person, very quiet and undemanding in the context of the relationship that they have. 23. As I have indicated I have accepted the submission of his learned counsel who skilfully represented his interests at trial and on sentence, that the offence was "not planned". I am prepared to accept by reference to the character of the offending that he is unlikely to re-offend, primarily having regard to his age and the other matters that I have identified about his personal circumstances at the moment. I have taken into account in relation to his criminal history that he, over the years, has had a number of orders that are made. He has been sentenced to a term of imprisonment previously, but that was set aside on appeal. He has had the benefit, it would seem to me, of a number of recognizances or bonds and on a number of occasions there have been orders made for him to comply with conditions in relation to counselling. Of course I have to bear in mind in the context of assessing his prospects of rehabilitation that the offence that I am concerned with occurred nearly 18 years. Of course, there have been many changes in the prisoner's personal circumstances since that time. If this offence had occurred, for example within two or three years or four years of the offence, one might be more circumspect about his prospects of rehabilitation. But it seems to me that the offence on context is to be seen as occurring at a time when he was involved with other offending, but with the exception of the obscene exposure offence in 2017, there has been a considerable break since that offending. Ultimately I can determine that having regard to his age and noting the matters I have observed of his criminal history, allowing for the fact that he has had the benefit of supervision in the past which has not obviously entirely worked, I am prepared to make a finding that he has "good prospects of rehabilitation" at this stage of his life. 24. With regard to the other matters that may arise under s 21A(2), I cannot find that the prisoner does not have a record or significant record of previous convictions or though the significance of his record is not in relation to sexual offending. I hasten to say, he was not a person of good character at the time of the offending. I have to bear in mind that in taking into account his criminal history I particularly have to concentrate on the convictions that exist at the time of the relevant offending in 2002. Subsequent offending has to be taken into account in assessing predictive issues such as his prospects of rehabilitation and his likelihood of re-offending. There appear to me by reference to s 21A(3) no other mitigating factors. 25. I am required to have regard to s 3A of the Act, I have to ensure adequate punishment; I have to deter this prisoner and others from committing similar offences. To the extent that I am required, I have to protect the community from the offender although I do not believe that is a significant matter in this exercise at this time. I have to promote his rehabilitation, make him accountable for his actions, denounce his conduct and also recognise the harm done to the victim. 26. I have determined that there are "special circumstances" pursuant to s 44 of the Act. I have already identified what those special circumstances are. I have concluded that I should fix a non-parole period that is 50% of the total sentence to be imposed, not because there is any particular fixed ratio that is required on a finding of special circumstances, but on the basis that I feel the prisoner needs at least 18 months supervision to assist him in the manner to which he will require supervision. There is just one other matter, noting all the submissions that were made on behalf of him by counsel. I am mindful of the fact that he has substantial health difficulties. He has physical difficulties with movement and the like. He requires considerable medication as the brief health summary printout reflects. He will thus require particular attention from Justice Health on his admission and I trust that Corrective Services will attend to that and I would ask Corrective Services when they arrive to see that he is triaged by Justice Health on his receipt into custody. 27. It seems to me in the context of his history of health issues, his physical inhibitions and the like, that his health will impact upon the circumstances of his custody more so than it may on a person who is otherwise healthy on their receipt into custody. I bear in mind of course his age coming into custody. It is advanced, somewhat younger than me of course, but advanced and this will present for the prisoner I would imagine issues during the time that he is in custody. 28. Thus, MD, if you could stand up please. In relation to the offence for which you were found guilty you are convicted. You are sentenced to a term of imprisonment of 18 months by way of non-parole period commencing on 14 February 2020 and expiring on 13 August 2021. I fix a balance of sentence of 18 months expiring on 13 February 2023, the total sentence is three years imprisonment with a non‑parole period of 18 months. 29. HIS HONOUR: Any matters Mr Crown? 30. BAILEY: Just this, s 39 of the Crimes Personal Domestic Violence Act applies at this point to consider whether there ought to be another apprehended violence order made. I hand up a document, it's a record of such an order made in these proceedings against the offender on 16 February 2019 for a period of-- 31. HIS HONOUR: Show me the existing order, what period of time is it Mr Crown? 32. BAILEY: Two years. 33. ROLFE: I can indicate that following the jury's verdict my client instructed me to consent to the making of that order on 19 December last year after the jury reached its verdict in this matter. 34. HIS HONOUR: So this order was made last year? 35. ROLFE: In December. 36. HIS HONOUR: In December. 37. BAILEY: Your Honour sees on the last page 16/12/19. 38. HIS HONOUR: I see, what should I do about it Mr Crown? 39. BAILEY: That extends beyond the date to which the offender will be released to parole, that probably suffices. 40. HIS HONOUR: I think it probably suffices for the order to exist at least until the balance of sentence expired. But it is always open for there to be an extension of that order is there not? 41. BAILEY: That's right. 42. HIS HONOUR: I think I will leave it as it is Mr Crown, I appreciate you bringing that to my attention. 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