R v GCS [2020] NSWDC 458

District Court New South Wales

Medium Neutral Citation: R v GCS [2020] NSWDC 458 Hearing dates: 9 March 2020 Date of orders: 16 March 2020 Decision date: 16 March 2020 Jurisdiction: Criminal Before: Judge Priestley SC Decision: See [14] Catchwords: CRIME — Sexual offences — Indecent assault — Circumstances of aggravation Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Bonwick v R [2010] NSWCCA 177 SM [2016] NSWCCA 171 EJDG [2012] NSWCCA 251 Texts Cited: Nil Category: Principal judgment Parties: Regina (Crown) GSC (Accused) Representation: Counsel: Mr Clark solicitor for the Crown Mr Hussey for the offender File Number(s): 2019/00175659 Publication restriction: Unrestricted – Anonymised

Judgment The offender appears for sentence in respect of three charges of aggravated indecent assault. The first offence took place in 2001 against his eldest daughter AS when AS was 11 years old. The relevant legislation at that time was section 61M (1) Crimes Act which provided for a maximum sentence of seven years. The circumstance of aggravation was that the victim was under the age of 16 years. There is no standard non-parole period in respect of this offence. The second and third offences occurred in early 2010 against the youngest daughter of the offender, SS, who at the time was 10 years old. The relevant legislation at that time was section 61M (2) which provided that where a person commits an act of indecency on or in the presence of the other person they are liable to imprisonment for 10 years if the other person is under the age of 16 years. The circumstance of aggravation for these offences is that the victim was under the authority of the alleged offender in this case her father. There is a standard non-parole period for the second and third offences of eight years. The offender pleaded guilty at the earliest opportunity and is therefore entitled to the 25% discount on his sentence. There are no matters on a Form 1 to be taken into account. The offender was arrested in respect of these offences on 5 June 2019. At that time he was in custody for similar offending but which post dated the offending currently being sentenced. The offender was eligible for parole in respect of those matters on 23 August 2019 and the head sentence expired on 23 February 2020. The Crown concedes that in sentencing for the present matters the time in custody since 23 August 2019 should be taken into account but no more. The submission on behalf of the offender was that further time in custody should be taken into account on the basis of giving effect to the totality principle. The facts The facts can be shortly stated. The 2001 offence occurred when the offender was driving the victim home after a school play. In the course of what was a 30 minute car trip at night the offender put his left hand in between the victim's legs and rubbed and fondled her vagina through her leggings. This contact was not skin on skin but contact with the vagina over the victim's clothing. The victim pushed the offenders hand away. The offender then partially unzipped the jacket of the victim and fondled her breasts through the top of her shirt by squeezing and rubbing her breasts. For about 15 minutes the offender switched between rubbing the victim's breasts for about a minute and then rubbing and fondling her vagina. Notably the offender continued in this conduct despite the victim pushing him away. Also notably the following morning he apologised to the victim and said he would never do that again, a statement the offender appears to have adhered to in respect of AS. The victim has suffered long-term emotional and self-confidence issues as a result of this abuse. The second and third offences occurred in 2010, after the offender had separated from the victim's mother. The victim lived with her mother and stayed with the offender for one or two nights at a time. The offender and victim were sitting on a lounge together watching a movie. The second offence occurred when in the course of watching the movie the offender slipped his right hand underneath the victims singlet top and cupped her right breast with his right hand. This was skin on skin contact which was maintained for a period of some 15 minutes. On another evening in early 2010 the third offence occurred with SS again being the victim again whilst watching a movie. The offender again placed his right hand underneath the victim's top and placed his right hand on the victims breast cupping it with his hand for about two minutes until the victim said "Move your arm you have your hand in my shirt" and the offender said "oh sorry I did not realise" and took his hand out of the shirt. After this the victim did not stay the offender's home because she felt uncomfortable. That discomfort extended to crying on occasion when she saw him in public in the town in which she lived. Objective seriousness The seriousness of this offending is reflected in the maximum penalties and in the case of the second and third counts by the standard non-parole period. Both the maximum penalties and the standard non-parole period are each one aspect only of the larger task of sentencing. In arriving at the sentence that I have I have been mindful of these two legislative guideposts. They are not however the starting point or the endpoint in arriving at an appropriate sentence. I am required to identify all the factors that are relevant to sentencing. It is necessary to consider the objective seriousness of each offence. The first offence occurring in 2001 involved repeated rubbing of both the breast and the vagina of the victim over a period of 10 to 15 minutes. I consider it more serious than it would otherwise be because of the persistence in the conduct after the offender's hand had initially been pushed away by the victim. I note the aggravating factor is the age of the victim so that I can take into account the fact that this is a father abusing the trust placed in him by his daughter. At the same time the fondling of both the vagina and the breasts was over the clothing of the victim. It was submitted by the offender that there was some partial skin on skin contact in respect of the breasts however a review of the agreed facts at paragraph 7 expressly states this was through the top of the victim's shirt. Further it would appear that the offending was, at least in respect of this victim, a one off and the circumstances of it happening in a motor vehicle whilst travelling home from a school function suggest it was opportunistic and with little planning. The offender frankly acknowledged the age disparity though that to some degree is part of the abuse of trust. The offender submitted that the age of 11 was towards the higher end of this category of offending against a person under 16. I do not find that argument terribly persuasive; it is almost 5 years less than the maximum age or almost half the lifetime of the victim and the unavoidable fact is that 11 is a young and vulnerable age. In terms of an indecent assault I do not consider this to be in the low category. Whilst there is no hierarchy of the intimate areas of a person's body this was fondling of a most intimate part of a young girl. The Crown submission was that this offending is around the mid range of objective seriousness but in support of that submission argues that it was not just a short isolated incident. I reject that submission because there was only one incident involving AS. I accept however that it was lengthy relatively speaking and I also accept the submission of the Crown that it is "about" the mid range of objective seriousness. The fact that it was not skin on skin constrains me to assess it as just below the mid-range. The second offence occurring in 2010 also appears to be opportunistic in nature. In this case the assault was one of skin on skin and extended for a period of at least 15 minutes. In terms of this offending that is a long time. The conduct of the offender is limited to cupping the breast. This offence however does not have the additional matter of aggravation on top of what is required to make out the elements of the offence for the offence requires it to be of a person under the age of 16 as well is being a person under the authority of the offender. Bearing that aspect of the matter in mind I would assess this offending as at the top of the low range. The third offence can be distinguished from the second by reason that it was of a duration of only about two minutes and ceased when the victim said to the offender to move his hand. This offence is also opportunistic, though also clearly the same modus operandi as the second offence, suggesting a greater degree of forethought. I would assess this offence as of a lower objective seriousness than the second offence. Subjective matters I have indicated the benefit to the offender of the early guilty plea above of the full 25%. I also consider that the offender's criminal history permits leniency. In this regard whilst the offender has now spent time in custody for similar offending that offending occurred after the present offending being considered. Putting those matters to one side the offender had a stealing offence in 1983 of two counts in respect of each of which there was a $250 fine imposed. The fines imposed suggest that whatever was stolen was of a relatively modest value and was an offence of almost negligible seriousness. That was the extent of his criminal history prior to the matters now being considered. The offender relied upon a report of a psychologist. The Crown conceded that this was a favourable report. That is hardly unusual in circumstances such as these. The Crown accepted the need for rehabilitation as justifying special circumstances. The Crown also accepted that, as noted above, whatever sentence is imposed should be backdated to the date of the end of the non-parole period of the earlier custodial sentence which was 23 August 2019. The Crown did not concede that there should be any further backdating of the sentence. In that regard I consider that had all the offences been dealt with at the same time the principle of totality would have meant that some degree of concurrency of the non parole period was likely. I accept the offender's submission in that regard and propose backdating the commencement of the sentence to 23 June 2019. The main points made by the psychologist were as follows: the offender comes from a family characterised by loving and respectful relationships. The offender's family were devout Christians and whilst the offender stepped away from the church between the ages of 15 to his late 20s now embraces his faith. He described his schooling years as average with a limited amount of friends and as being bullied impacting, the offender says, on his self-esteem. He had no behavioural issues but obtained below-average results. He left school in year 10, began an apprenticeship but then left that to work as a store person and forklift driver which he did for many years. Ultimately he worked as a bus driver. He denied any history of abuse but referred to what he considers victimisation by the bullying at school and he bottled up his emotions There was nothing unusual in his sexual development and he denied any sexual interest in children. With his first wife he had six children. When that marriage ended he relocated to Coffs Harbour after, he says, "the Lord spoke to me". Later he moved to Narrabri and met his second wife. He has no notable mental or physical health history other than experiencing symptoms of depression after being charged with the current offences and his wife and children ceased contact with him. He sought assistance from the psychologist. There were no significant substance use issues. As noted above at the time of the offending he had no criminal history outside of the 1983 stealing conviction. Putting aside errors in the dates of the offending in the report the facts were discussed and the offender made no attempt to minimise his role in the offending. He expressed notable remorse. He spoke of his guilt and shame surrounding the hurt he had created for himself and his family. He said he didn't really know why the offending happened and frankly stated that it was wrong what he did and that it was filthy. He said he was truly sorry not because he got caught but because he did it. The offender was assessed as having some symptoms of depression and having some anxiety concerning his sentencing in the future but he puts his faith in the Lord which assists him in coping with the situation. The offender was further assessed as being sincere. The offender was described as being motivated for treatment. An assessment of risk was carried out by differing techniques including the static 99R. This placed the offender in the low-moderate risk category relative to other sexual male offenders. This result is a guide only. When dynamic risk factors which relate to a offenders current psychological state and life circumstances were considered the risk assessment was of a moderate-low risk of reoffending. A number of factors were identified as guarding against further offending including the offender's reasonable social capacity, his openness to psychological support, a lack of psychopathic traits and some social support which I take to be a reference to his parents predominately. The report went on to note that the offender endorsed age appropriate sexual interests, did not endorse antisocial attitudes, had a lifestyle mostly goal directed, had a law-abiding social network and accepted responsibility for his actions. Against those factors however the psychologist noted the offending was targeting a vulnerable child victim under his authority, on more than one occasion and in the view of a psychologist the offending involves psychological coercion due to the age and power differences between the offender and victim's. The report reached some conclusions and made recommendations including: based on his characteristics including of difficulty with psychosocial coping he may have developed emotional detachment from his children; to this end psychological support would benefit the offender. There is a risk that the offender will withdraw socially and counselling and peer based pro social activities encouraging interaction and socialising would benefit him. The view is offered that the offender may benefit from the sex offenders treatment program. This can be offered in custody but it may be that the offender is not high on the priorities for such treatment in custody which may be more readily available to him in the community. It was suggested he seek out a registered clinician in this regard which could occur upon release. In addition to the psychologist's report was a letter from a different psychologist, Mr Duncan, dated 7 June 2018 indicating that before the commencement of his custodial sentence the offender had attended upon him for treatment of depression and stress on four occasions and demonstrated a readiness to address his psychological and behavioural issues. The letter is addressed to the presiding judge at the Tamworth Local Court and I infer that the psychologist was aware of the offences then being dealt with. That is supported by reference to impulsive behaviour and that he had not at any time denied his "sickening" (the offender's words) actions. The prognosis of Mr Duncan was of steady long-term progress as being possible. That letter supports a finding of special circumstances which I do make based on that letter together with the other aspects noted above of the psychological report. The offender is a 56-year-old man. He suffered significant bullying at school. I find it difficult to place too much emphasis on a history of bullying at school as being in some way an explanation for offending of the type being considered. It is not being put forward as any kind of causal factor. Nor do I find it very persuasive that the events took place at times of marital discord. The more obvious overall picture is that the offender does have impulse control issues. There was no submission made along the lines of sexual gratification. Given the nature of this offending it is difficult not to draw that conclusion however it was no part of either parties' submissions so I do not make such a finding. In simple terms this offending shows a lack of impulse control, is markedly indecent in the way that I have assessed it above and has caused significant damage to those the offender was trusted to protect and nurture, something reflected in the victim impact statements which I have considered in accordance with s30E of the CSPA. The offender is said to have the support of his parents and of his church. I accept the submission that the offender shows some insight into his offending. This is borne out by the treatment he has sought, and also the fact of the apology in respect of count one the following morning and, in respect of count three the ceasing of the activity when confronted by the victim. The fact that the offending against AS occurred only on one occasion suggests a recognition on the part of the offender that what he was doing was wrong. The same cannot be said as convincingly in respect of SS given that she removed herself from his availability by not visiting him after the second occasion of the offending. Sentencing options There was no dispute that there was no sentence that was appropriate other than a term of full-time custody. There is in this case a need for to achieve general deterrence. It should also be a sentence that denounces this behaviour and punishes the offender. At the same time the sentence should permit his continued rehabilitation. A matter that was raised in submissions was that these offences could have been dealt with in the Local Court. The consequence of that is that the maximum term of imprisonment that could be imposed by a Local Court by way of an aggregate sentence is five years; see section 53B Crimes (Sentencing Procedure) Act. It is established that the fact the matter could have been dealt with summarily is a relevant consideration in the exercise of the discretion reserved to the sentencing judge. It does not extend to restricting the District Court to the jurisdictional limit of the Local Court. In Bonwick v R [2010] NSWCCA 177 per Davies J at [43] two relevantly important principles were said to emerge from the cases his Honour had discussed. The first is that the extent of the criminality is an important consideration in having regard to the Local Court penalty. The second was that where it appears that the matter of the Local Court penalty has been entirely overlooked by the sentencing judge that may properly justify the grant of leave to appeal. As is self-evident this is not a matter that I am unaware of. Further as will become apparent as only one of the offences was as serious as to be just below the mid range, and with the other two offences being of a lesser seriousness the sentence that I will ultimately impose will be in line with possible Local Court outcomes. In determining just what those outcomes should be I have been assisted by the reference by the Crown to 3 section 61M cases. The first such case of Scales is in terms of its facts more serious as it appears there was a skin on skin contact with the vagina. That offending was held to be just below the mid range of objective seriousness. The offender there however had a poor subjective case with a criminal history that included sexual intercourse with a child between 10 and 16 years and earlier offences of indecent assault on a person under 16 years. The initial effective sentence of a non-parole period of six years and a balance of term of two years was reduced to a non-parole period of three years and a balance of term of three years. The offender in that case benefited from an early plea and the discount of 25%. In the matter of SM [2016] NSWCCA 171 the sentence was a non-parole period of one year three months with a balance of term of one year three months. That was a sentence in respect of conduct of going into a 13-year-old bedroom laying down beside her and holding her breasts. The sentence was imposed after a conviction following a trial so does not reflect any discount for any plea. The report does not disclose the subjective case. Lastly in EJDG [2012] NSWCCA 251 an aggregate sentence of the non-parole period of three years with a balance of term of two years was imposed for two counts of aggravated indecent assault which were both counts of skin on skin contact on the outside of the vagina. The offending was considered deliberate and premeditated. This is distinguishable from the present circumstances as I have found that they were opportunistic and of course there was no skin on skin contact with the vagina. The most comparable of these cases is SM in respect of which it should be borne in mind there was no 25% discount. It also needs to be fully appreciated that every case needs to be considered on its own facts bearing in mind not just the facts of the offending but the subjective matters of the particular offender. Assessing those facts and bearing in mind the purposes of sentencing I have arrived the following indicative sentences prior to allowing for the 25% discount: Count 1: 2 ½ years. Count 2: 2 years. Count 1: 1 ½ years. Allowing for the 25% discount and allowing for a degree of concurrency particularly in relation to counts 2 and 3 which occurred in the early part of 2010, and bearing in mind also the principles of totality I impose an aggregate sentence of 3 years and 9 months. I note the provisions of section 54B of the CSPA and the consideration of the standard non parole period in sentencing. As noted above I have taken this into account. I note the provisions of s54B(4), and had I not proceeded by way of an aggregate sentence I would have imposed non-parole periods of one year (count 2) and 9 months (count 3) in respect of counts 2 and 3 respectively. In doing so this would divert from the standard non-parole period for these offences. The basis on which I have done this is the strong subjective case of the offender, in particular his prior criminal history at the date of this offending, his apparent insight into his offending and the case that was made out, and indeed conceded by the Crown, as to special circumstances, and in particular I would note the need for a longer period under supervision to assist with rehabilitation. In setting the non-parole period in respect to the aggregate sentence it is important that the period to be served in custody reflect the seriousness of this offending whilst at the same time recognises the case made for special circumstances. The non-parole period shall be a period of two years and six months. For the reasons discussed above the non-parole period and head sentence will have a commencement date of 23 June 2019. ORDERS GSC, on the charge under section 61M(1) and the 2 charges under section 61M(2) you are convicted. I have set out the indicative sentences above in respect of each charge. You are sentenced to an aggregate term of imprisonment 3 years 9 months to commence from 23 June 2019 and expiring on 22 March 2023. The non-parole period is two years and 6 months to commence from 23 June 2019 and expiring on 22 December 2021. The earliest date for release is 22 December 2021.