R v Robinson (a pseudonym) [2020] NSWDC 425

District Court New South Wales

Medium Neutral Citation: R v Robinson (a pseudonym) [2020] NSWDC 425 Hearing dates: 29 June 2020 Decision date: 29 June 2020 Jurisdiction: Criminal Before: Colefax SC DCJ Decision: Aggregate term of imprisonment of 5 years with a non parole period of 3 years. Catchwords: CRIME - SENTENCE - attempted sexual intercourse without consent - indecent assault Legislation Cited: Crimes Act 1900 (NSW): ss 61(I) and 61(L) Category: Sentence Parties: Regina (Crown)

Robinson (a pseudonym) (the offender) Representation: Mr Carnell (ODPP Campbelltown)

Ms Tawagi (Solicitor for the offender File Number(s): 2019/00333802 Publication restriction: Non publication order made of the names of the victim and the offender and any other information which might, directly or indirectly, identify either of them.

Judgment 1. Mr Robinson (a pseudonym), you appear for sentence today in relation to two principal offences. 2. The first principal offence is attempted sexual intercourse without consent. This involves a contravention of s 61(I) of the Crimes Act. The maximum penalty for that offence is 14 years imprisonment and there is no standard non‑parole period. 3. The second principal offence is indecent assault. This involves a contravention of s 61(L) of the Crimes Act. The maximum penalty for that offence is five years imprisonment and there is no standard non‑parole period. 4. In addition to these two principal offences, you have asked me to take into account, in relation to the first principal offence, three matters of indecent assault contained on a Form 1, which I have certified. 5. As at October 2018, you were one of ten children to your parents and you were 23 years old. One of your siblings was a girl who was 16 years old. 6. On a night in October 2018 your sister was sitting up late - she was either reading or watching a movie. In the early hours of the morning, she went from her bedroom to get something to drink in the kitchen. When she got to the kitchen, you were there. She got something to drink from the fridge and started to drink. 7. It was at this point that you said to her "You've grown up and this area has grown too". When you said that, you pointed towards her breasts. You then reached out and grabbed your sister's breast for about ten seconds. She made an excuse to leave the kitchen and went back to her room. 8. This is the second principal offence of indecent assault. 9. Unfortunately, it was not the first time that you had sexually offended against that sister. About three years beforehand, when she was about 13 years old, she had been in the bathroom and had left that bathroom fully clothed. You came up behind her and grabbed her on her buttocks and held your hand there for about 30 seconds. This was not some innocent game or activity. It was an act that did have some sexual element to it because you told her that you had been watching an Indian romantic movie and that you were feeling "in the moment". 10. A few weeks after the incident referred to in [7], she was again reading or watching a movie in the early hours of a morning. You called her on her phone and asked her to come out of her room which she did. She unlocked her door (a practice she had begun after you committed the second principal offence) and went to the dining room where she saw you standing near the garage door. (You had your bedroom in the garage of the family house). You walked towards her, grabbed her arm with one hand and then grabbed her breasts with your other hand on the top of her clothes. This is the first indecent assault on the Form 1. 11. You turned her around so that you were standing behind her. You put your hand down the front of her pyjama pants and touched her vagina. This is the second indecent assault on the Form 1. 12. You pulled your hand out of her pants and pulled your own pants down and you rubbed your penis over her buttocks, over the top of her pyjama pants. This is the third indecent assault on the Form 1. 13. You pulled her pants and her underpants down to her thighs. Then you said "Let's do it somewhere else" and you took her, against her will, to your bedroom in the garage. 14. Once you were inside the garage, you forced her onto her knees. She was resisting you but you overpowered her and she ended up on her knees. You got onto your knees behind her and pushed her body down so that she was now on both her hands and her knees and you were behind her. You then attempted to insert your penis into your sister's vagina. You were pushing your penis against her exposed anus and vagina. You were doing this for what is said to be about 40 seconds. During all of this, she was saying "no" and "you shouldn't be doing this". You then stopped and let her go. She went back to her bedroom. 15. It is this attempt to insert your penis into her vagina which constitutes the first principal offence. 16. It is necessary for the Court to form an assessment of the objective seriousness of each of the principal offences for offences of their kind. 17. The first principal offence of attempted sexual intercourse is slightly below the midrange of objective seriousness. The second principal offence of indecent assault is towards, but not at, the bottom of the range for an offence of its kind. 18. Each offence is additionally aggravated because it occurred in the home of the victim. 19. About a week after these series of events, your sister complained to a young cousin about what you had done. Although the agreed facts do not say it, the only rational inference is that that (17 year old) cousin informed responsible adults in the family. The police were involved and you were arrested at the Paringa Mental Health Ward at Parramatta on 24 October 2019. You have been in custody solely referable to these matters since that date. 20. Your background, Mr Robinson, is a very sad one. You and your brothers and sisters were born in the east African country of Burundi and at a time when that country was torn apart by brutal civil war. Your family fled from Burundi to Tanzania and the first eight years of your life were effectively spent in a refugee camp in that country. Life in the camp was grim. 21. You and your family came to Australia in 2004. 22. You had difficulties at school. You were confronted with racist behaviour at Fairfield. Your primary schooling was disrupted because of that fact and other confronting aspects of moving to a completely different culture. 23. You managed to complete High School at Year 10 but you have had no effective employment. This is because two parallel streams of problems have confronted you. 24. First, since you were 16 years old, you have abused cannabis and alcohol persistently and excessively; and from 2018 you have been abusing methylamphetamine (otherwise known as "ice".). 25. Secondly, over and above that, since 2013 you have had to deal with a very serious mental illness - schizophrenia. You have been admitted to various mental health units at numerous hospitals. You have at least on one occasion attempted to take your own life. Your form of schizophrenia is paranoid schizophrenia and that cannot have been helped, indeed it can only have been aggravated, by the illegal drugs that you have been taking. 26. Doctor Martin has told me a recognised consequence of schizophrenia (quite apart from the hearing of the voices and the delusional beliefs) is that it causes disinhibition and poor judgment. And it would seem, on the balance of probabilities, that that disinhibition and poor judgment was behind your attack on your sister on that night. 27. It is concerning in this context to know that you had been non-compliant with taking your medication for a few months around the time of your offending behaviour. 28. Dr Martin has also told me that you have a poor prognosis unless you have, what he describes as, very assertive psychiatric monitoring and that you remain abstinent from all illicit substances. 29. Furthermore, Doctor Martin has told me that you will require ongoing psychiatric treatment in custody and referral to what he said were appropriate programs as part of parole with monitoring of your mental state and monitoring efforts to ensure that you remain abstinent. 30. Precisely what resources are available to Community Corrections and the Parole Officers in that respect has not been placed before me. 31. Your offending against your sister in 2018 (and 2015) are not your only criminal matters. You have a number of offences of violence and antisocial behaviour, offences of stalking, and an offence of having a knife in a public place. These are very concerning matters. You are therefore not entitled to the leniency which can be extended, in appropriate circumstances, to a first offender. 32. Your mental illness, however, means that you are not an appropriate vehicle for the full application of general deterrence. That is, it is not appropriate that the sentence imposed upon you is one that is significantly crafted to deter others. But specific deterrence, that is crafting a sentence that will deter you from re-offending, is fully engaged - as is the need to protect the community and to encourage your rehabilitation. 33. Having read carefully Dr Martin's report more than once today, my assessment is that your prospects of rehabilitation must be guarded and will ultimately depend on whether or not you get the assertive psychiatric monitoring that Dr Martin refers to. 34. You entered a plea of guilty at an early opportunity and that, in part, reflects some remorse on your part. 35. You have got a large family in Australia - approximately 80 members of the family are here including eight siblings in Sydney and two in Brisbane. Your brother gave evidence for you today and he was a very impressive young man. He is prepared to provide you with temporary accommodation once you are released from custody and to assist you get back on your feet. He will seek to have you referred to specialised community counsellors in the Burundi and East African communities which you have not had access to in the past and who are more familiar with the traumas that you have undergone as a child - traumas which mean that you have suffered from a dysfunctional upbringing in the manner that the High Court has addressed in Bugmy v The Queen. 36. In relation to each of the principal offences, no sentence other than one of full‑time imprisonment is appropriate notwithstanding your difficult mental health issues. But because of those mental health issues, and the exacerbation of them because of the Corona virus pandemic and the changed circumstances in the custodial setting, I intend making a finding of special circumstances to vary the ratio of the head sentence to the non‑parole period. 37. I intend imposing an aggregate sentence and therefore I need to state the indicative sentences underpinning the aggregate sentence. 38. In relation to the first principal offence of attempted sexual intercourse and taking into account the three matters on the Form 1, except for your plea of guilty, the indicative sentence would have been 6 years imprisonment. Because of the early plea of guilty, the indicative sentence is 4 years, 6 months. 39. In relation to the second principal offence of indecent assault, except for your plea of guilty, the indicative sentence would have been 1 year imprisonment. Because of the plea, it is 9 months. 40. In the result, I impose an aggregate sentence of 5 years' imprisonment. 41. I fix a non‑parole period of 3 years to date from the date of your arrest on 24 October 2019 and which will expire on 23 October 2022. 42. I fix a balance of 2 years to date from 24 October 2022 and which will expire on 23 October 2024.