R v WILSON [2020] NSWDC 624

District Court New South Wales

Medium Neutral Citation: R v WILSON [2020] NSWDC 624 Hearing dates: 19 May 2020 Date of orders: 19 May 2020 Decision date: 19 May 2020 Jurisdiction: Criminal Before: Judge W Hunt Decision: Sentenced to an aggregate term of imprisonment consisting of a head sentence of 3 years and 3 months imprisonment with non-parole period 19 months. Catchwords: CRIMINAL LAW – Sentence – Sexual intercourse with a child above age of 10 years and under age of 14 years - Sexual intercourse with a child above age of 14 years and under age of 16 years – Grooming child for unlawful sexual activity - Lack of insight – Troubled youth – Post traumatic syndrome disorder Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act, 1999 Cases Cited: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 Dinsdale v R (2000) 202 CLR 321 R v Osenkoski (1982) 30 SASR Category: Sentence Parties: The Director of Public Prosecutions Jackson Wilson Representation: Counsel: Ms A Bowens - Crown Mr S Bouveng - Offender

Solicitors: The Director of Public Prosecutions Legal Aid Commission File Number(s): 2019/129606 Publication restriction: There is to be no publication of the name of the complainants or any material which may tend to identify the complainants.

Judgment 1. HIS HONOUR: Jackson Richard Wilson is before the Court for sentence in relation to four matters. The two principal counts are that Count 1, he engaged in sexual intercourse with a child above the age of ten and under the age of fourteen in breach of s 66(C)(1) of the Crimes Act 1900 for which matter is provided a maximum penalty of sixteen years and a standard non-parole period of seven years has application. Count 2 is sexual intercourse with a child above the age of fourteen and under the age of sixteen years, in breach of s 66(C)(3) of the Crimes Act for which is provided a maximum penalty of ten years. There is no standard non-parole period applicable. Additionally, there are two related offences before the Court pursuant to s 166 certificate that fall for sentence as related matters. Both of those charges are grooming a child for unlawful sexual activity. In relation to the first count, that is a third victim over and above Counts 1 and 2, a person with the initials HL and there is another grooming child for unlawful sexual activity where the victim of that offence, AG, is the same victim as for Count 2. In relation to both of those matters, I am obliged to sentence Mr Wilson having regard to the Local Court jurisdictional maximum in each case of two years imprisonment. The maximum penalties for the two counts on indictment and the standard non-parole period for Count 1 indicate the seriousness with which the legislature and indeed, the community, take into account interference with people who are not of the age to consent to sexual intercourse. Children are entitled to grow up free of sexual trespass. 2. In these matters, the objective seriousness of the matters generally is a little undercut firstly because of the offender's relatively young age at the time of committing the offences and second, his own sexual naivety at the time of the relevant offences. It is common ground between the parties that the offender has been in custody solely in relation to these matters since 26 April 2019 and that any aggregate sentence that I impose today ought to be backdated to that date. It is also common ground between the parties that because the offender pleaded guilty early in the Local Court that he is entitled to a statutory utilitarian discount of twenty-five per cent in relation to each of the matters before the Court. 3. The facts in relation to the matter in brief are drawn from an agreed facts document as part of the Crown sentence bundle. Given much of the material is extracts of text communications between the offender and the relevant victim in relation to the grooming, I do not propose to read all of the material onto the record given that it is agreed. However, the following short summary is drawn from the agreed facts document; in June July 2018, HS, who is the victim in relation to Count 1, was twelve years old and living with her mother in Inverell. Her mother had met the offender and in around June or July, HS's mother had received a call from her brother asking for the offender to be able to come and live with her family as he had been thrown out of his parents' house and had nowhere to live. HS's mother agreed. One evening in June or July 2018 HS was staying with her cousin at a different address in Inverell. The offender was also staying there. He had consumed some alcohol. He, the victim and the cousin were sitting around a fire in the backyard. At some stage at about 8.30 on that evening, the cousin went to sleep and the victim and the offender stayed sitting around the backyard for a short period of time. The offender sent a text message to HS saying that he liked her. She responded by asking whether he knew how old she was. It was HS's belief that the offender knew that she was twelve years old and in Year 7 at school. At some point during the evening the offender and the victim started hugging each other and lay down on some blankets on which the offender had been sleeping. The offender placed his hand on the victim's vagina underneath her underwear. She in turn touched the offender's penis. The offender then removed HS's pants and she was naked from the waist down. He then had placed his penis into HS's vagina and they had sexual intercourse for a period of time. He eventually withdrew his penis from the victim's vagina before ejaculating. The entire incident took about over an hour. 4. The victim woke up in the same position in the morning. The cousin saw both the victim sitting on a table in the shed and the offender lying on some blankets. Later that day the victim told somebody called JT what had happened the previous night. HS and the offender continued to stay in touch both via text message, social media and seeing each other face-to-face. In due course, HS's mother received a message asking her whether she realised that HS had slept with the offender. HS's mother approached her and asked her whether she had slept with the offender and she confirmed that she had. On 12 December 2018, the offender was arrested and taken to Inverell Police Station where he participated in a record of interview with the police. The offender made full admissions in relation to the offence. 5. I depart the facts to indicate that the Crown prosecutor has seen the record of interview in question. She characterised the offender as being truthful in relation to that matter, giving full cooperation to the police and sometimes being at a loss to deal with either emotionally or verbally some of the matters that were being put to him. In due course, consistent with the submission made by the offender and an agreement by the Crown prosecutor that that is an appropriate course, I propose to accord the offender a further five per cent discount on the basis of his assistance to the authorities pursuant to s 23 of the Crimes (Sentencing Procedure) Act, 1999 in relation to the way in which he provided material that could have been used to successfully prosecute him at trial had he not admitted his guilt in relation to that matter. 6. The facts in relation to the first of the grooming matters which involved a separate victim, HL, are that at the time of the relevant offending, HL was fourteen years old. The offender and HL had known each other for several years having met through mutual friends and they had had an on and off again boyfriend/girlfriend relationship on numerous occasions. At the time that the offender's mobile phone was seized on 14 November 2018 in relation to investigations concerning count one, various items were discovered on that phone. It must be said that both of the grooming matters and Count 2 came to the attention of the police because of an interrogation of the offender's phone rather than any separate complaint by either of those victims. Having said that, it is accepted that victims of child sexual offending and grooming offences are sometimes reluctant to come forward. 7. On 20 June 2018 between the hours of 18:04 and 21:48 there were communications backwards and forwards that between HL and the offender. It is accepted by his plea that some of that conversation has the character of grooming. That included for instance the offender asking, "Can we be friends with benefits?" Against that, various material within the communications that suggests on occasion that HL communicated matters of a sexual nature towards the offender which were not responsive to suggestions of that kind made by the offender. As an example HL said at the time that they were in separate places, "I have no clothes on." The offender said, "Why are you telling me?," The victim, "Cause I'm horny," and the effect of the balance of that material is HL expressing that she was horny for the offender and suggesting that she would, "Suck your dick." It is accepted within that the offender continued that conversation by saying, "Would you fuck me?," the victim said, "Obviously." The offender said, "How hard?," and the victim said, "As hard as you want." As I said, the offending was limited to an approximately four hour period on the one day. At the time that the victim HL was interviewed by police in early 2019, she confirmed that she had been in a relationship with the offender, that the messages I have discussed were sent between herself and the offender and that she was, "Leading him on and had no intention of meeting him for sex." At the time that the offender was interviewed, he admitted to being in a relationship with the victim and sending the relevant messages. He denied ever wishing to meet HL for sex. 8. The facts in relation to the grooming for AG overlap with the offending that is disclosed at Count 2 that is because there is text communications between the offender and AG, an episode of sexual intercourse that accounts for Count 2 and then some further communications between them. In relation to this matter, the first set of text communications went from 10.23pm on 16 April until about 9.34pm on 17 April after which the offender and AG met and had sexual intercourse. Thereafter the communications picked up on 18 April at 6.41am so that the offending in relation to the grooming took place across three days. The grooming in relation to this matter is more explicit than in relation to HL in the sense that after a discussion that AG and the offender might meet up, he is recorded as saying, "What you want to do if I come in, suck my dick, sit on my dick?" then, "What do you reckon so you will actually sit on it," AG said, "Yeah". 9. After a communication that included making some arrangements about where the offender and AG may meet if AG was able to escape her family home, the text messages at 9.34pm on 17 April 2018 include AG providing her mobile number at the request of the offender and in due course, making arrangements to meet up. The communication picks up on 18 April 2018 at 6.41 at a time after the offender has concluded the sexual intercourse with AG (Count 2) and in summary, the conversation thereafter is consistent with the offender seeking to return a piece of jewellery to AG and then trying to establish the terms of any ongoing relationship between them. Relevantly, the offender said, "Okay I will let you know how I go in court as well. If I don't get locked up, we should spend some time together. By the way are we dating or not, I'm just wondering?," 1. and the victim responded, "Depends if you get locked up because if you get locked up then nah, I won't be able to have a root for ages but if you don't get locked up then sure we can date if you want." 1. The conversation included the offender indicating that he liked AG and her indicating that she also liked him. 2. The facts in relation to Count 2 are that after the communications that I have been referring to between 16 and 17 April 2018 by text the offender and the victim attended an address in Inverell with some friends. The offender and AG agreed to go out to the shed where there was a mattress. They kissed for a period of time before the offender made an unsuccessful attempt to locate a condom. They both undressed and the victim mounted the offender. The offender and the victim had unprotected penile vaginal intercourse in this fashion for about twenty minutes. The victim then got off the offender and lay down and he performed cunnilingus on her for about five minutes. He then positioned himself above the victim, re-inserted his penis into her vagina and commenced penile vaginal intercourse with her. After a time, the victim indicated that she had to go home. They got dressed and the offender walked the victim home to her address. 3. The parties are at odds in terms of their characterisation of the objective seriousness of the offending. The Crown Prosecutor contended that the offending was at about or above the mid-range of objective seriousness whereas Mr Bouveng, Public Defender for Mr Wilson, characterised the objective seriousness as being lesser than that. In relation to each of the matters there is some level of what might be described as acquiescence or agreement by the victim in each case. In relation to the matters of sexual intercourse, I take into account principle and authority that people under age without a legal ability to consent cannot properly agree to sexual intercourse. Even if they seem to be enthusiastic about that, the Court should not draw that as a mitigating circumstance. The parties accepted that a different approach would be taken to the grooming matters because of the very nature of some of the things that were set out in the conversations by the victims of those offences suggesting a level of engagement and sexual awareness over and above the offender's trespasses in that regard. 4. In relation to count one, I take into account across an age range that can go between ten and fourteen that HS was in about the middle of that range at twelve years of age. Notwithstanding that there was no ejaculation, I take into account both the nature of the intercourse that is, penile vaginal and that the matter is made more serious because that intercourse was unprotected. The age differential between the offender and HS was not insignificant at seven years' difference although I accept that the offender was still a relative juvenile at the age of nineteen at the time of the offences. In observing in relation to both this and Count 2 that there is an absence of aggravating circumstances. However, the absence of those aggravating circumstances should not be seen as mitigating. For instance, there was no threats made, there was no manipulation and in relation to count one, there is nothing to indicate any level of grooming in relation to Count 1. I take into account that the offending appears to have been spontaneous and that it took place over about one hour on one evening alone. The objective seriousness of that matter, taking into account all the matters that I have averred to means that the offending is below mid-range but not approaching the low range of objective seriousness. 5. In relation to the grooming in which HL was the victim, I take into account that the offending took place across a period between 20 and 21 June 2018 only. I take into account that there is no suggestion of any direct sexual contact as a result of that grooming. Having regard to the character of the communications set out in the agreed facts, I consider that the objective seriousness of that matter falls in the middle of the low range of objective seriousness of offending. In terms of the grooming in which AG was the victim, I take into account that that matter took place across 16 and 17 April, then again on 18 April 2018, although the material on 18 April seems to be of a different character to the material before the offender and AG had sexual intercourse. In relation to that matter, the objective seriousness is at the upper level of the low range of objective seriousness taking into account all the matters that I have identified. 6. In relation to Count 2, I take into account that the only level of planning in relation to that matter seems to have been the grooming that took place on 16 and 17 April 2018. I take into account that the nature of the sexual intercourse was penile vaginal and again, the sex was unprotected which makes the matter objectively more serious. Across an age range that involves fourteen to sixteen years of age, AG was almost sixteen at the time of the offending. The offender was by then twenty years of age which means that there was about a five year difference between them. Once again, I take into account the absence of aggravating circumstances but do not consider those matters to mitigate. Once again, I take into account that although AG might be seen to have been acquiescent, that matter is not a matter of mitigation when one takes into account that she was below the age of consent although clearly much older than HS. That matter, in objective seriousness, falls at the intersection between the top of the low range and the bottom of the middle range of seriousness. I take into account in characterising the objective seriousness of both of the matters in which AG was the victim that those matters were committed in breach of conditional liberty that is, bail for Count 1. 7. Moving to some matters that are personal to the offender. He was nineteen or twenty as the case may be at the time of the offending and he is now twenty-one years of age. He has no criminal convictions, he has two minor matters in the Children's Court and one matter in the Local Court, in relation to each of which no convictions were recorded. I am prepared to treat him as a person without criminal convictions and without a criminal history that would deny him leniency. He is entitled to leniency on that account and as will be differently the case with school teachers, scout masters and the like, there is nothing to suggest that his absence of criminal record put him in a position to commit these offences. The careful report of Ms Martens that is before the Court can be given more weight because of the offender's having adopted the history given to that psychologist in sworn evidence. 8. I will move briefly to the evidence given before me today before I deal with the history given to Ms Martens and the conclusions that she draws from it. The Crown prosecutor both very fairly and availably to my mind put a submission that the offender's evidence in court today was "without artifice." She drew comparisons between the way in which the offender conducted himself in the electronically record interview and in evidence today and effectively submitted that both of those accounts by the offender showed him to be a relatively naïve person, younger than his stated years. That view is consistent with an opinion formed by Ms Martens. I took the view that the offender was both honest and guileless. He certainly presents as somebody younger than his relatively tender years at twenty-one years of age. There is no doubt he is remorseful about his offending and he is developing insight in relation to why this offending was wrong. His perceptions about sexual matters have in my assessment been profoundly affected by the fact that at fourteen years of age his first sexual experience was acquiescent at a time when he was not in a position to legally consent to that sexual intercourse. That was with a twenty-four year old woman who had become a friend of his. 9. Although there is some material that the Crown prosecutor sets out in her written submissions suggesting that the offender had some sexual education at a time that he was admitted to a residential institution as a teenager, whilst the offender accepted that he had been given some guidance in that regard, he presented as still remaining somewhat confused about the effects of sexual intercourse on those of tender years; that is necessarily bound up with his own sexual experience and also the very chastened background he had. He gave some evidence prompted by me about his ability to currently deal with being in custody but accepted that when he first went into custody, it was difficult because he was both bashed by other inmates and subject to some sexual grooming by them. 10. The short family history that I recount is set out in more detail in the psychological assessment. The offender had a very difficult background, it is a background that can be properly described as deeply dysfunctional and is consistent in a non-Aboriginal context with some of the kinds of background discussed by the High Court in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 and attracts a dilution of the offender's moral culpability for these matters. His parents separated when he was relatively young and he remained in the custody of his father. His father took an unorthodox approach to disciplining him, setting an alarm that would go off at times when he was absent from his bedroom; there was a period of about a year where he was effectively imprisoned in his bedroom and was only able to leave that area either to go to the bathroom or to take meals. At some time around the age of thirteen he was ejected from his father's premises and went to live with his mother. Within a relatively short period of time, his mother also ejected him from her premises and from about the age of fourteen until he reached adulthood, he was accommodated at a residential accommodation for troubled youths known as Pathways. He gave evidence before me, in answer to cross-examination by the Crown prosecutor that he tried to block out his period at Pathways partly because other youths bullied him and assaulted him on occasion, threatened to stab him. At a time after he had left his father's care, his father committed suicide and Ms Martens assesses that the offender still blames himself for that event. That misplaced sense of guilt has added to the emotional difficulties that he has suffered as a result of a very difficult time in his family life and then being in institutional care thereafter. In some ways, it is extraordinary that he has such a limited criminal record, apart from these matters, given the parlous upbringing that he had. 11. Ms Martens found the offender's presentation as being consistent with his earlier diagnosis of post-traumatic stress disorder and past diagnoses of anxiety and depression. She noted that the offender indicated to her that he had not been in receipt of the proper medication since he has been in custody. Within the history that Ms Martens recorded she noted the offender's report that he first attempted to end his life when he was fifteen by cutting himself and that he has continued to attempt to end his life every few weeks including his period in custody. 12. In relation to the early sexual contact that I have adverted to, Ms Martens indicated, "He stated that he had not then held concerns about the significant age gap but in hindsight now views it to be inappropriate." Notwithstanding the material that suggests that there was some limited attempts to educate him while he was at the institution called Pathways, Ms Martens observes that it was only after the offender was arrested that he learned that the legal age of consent was sixteen years of age. He summarised the position as accepting that he knew it was wrong but he did not understand it was against the law. I am satisfied on the basis of his evidence today that he now understands both the legal age of consent and how that operates in terms of people who seem to be agreeing to something while not being capable of providing legal consent. Ms Martens observed that because of the matters that I have just been referring to, together with the offender's initial use of pornography that this; "Likely served to provide him with an unhealthy and unrealistic understanding of sexual behaviour, this was compounded by his initial sexual encounter which was characterised by a substantial age gap, power imbalance and would have served to normalise adult, young adolescent sexual behaviour." 1. Although Ms Martens observed that the offender indicated a lack of insight, his evidence before me indicates at the least that he has a growing level of insight about both the difficulty with this offender and the likely effect of it on the young women involved. 2. On a number of statistical tests Ms Martens opined that the offender presents an above average risk of re-offence. She reached the opinion that; "It appears his sexual conduct was influenced by his difficulty forming age appropriate peer relationship, lack of self-regulatory skills and a failure to recognise the harm associated with his behaviour. Considering his offences, it is likely that any future risk would be realised in the form of disregulated sexual activity with adolescent females." 1. She observed that; "He would benefit from focused intervention to address his dynamic risks factors and develop insight into the impact of sexual harm." 1. That said, the offender expressed himself as wanting to remain out of trouble when he is released and has indicated that he proposed to mix with peers of his own age. He expressed, in an uncontrived fashion, that he took the view that anyone under the age of eighteen represented a risk for him and he would avoid that upon release. I am prepared to characterise, notwithstanding what the statistical indications are, that the offender has reasonably good prospects for rehabilitation and if he accepts the supervision of Community Corrections and any other counselling to which he is directed in the community, he is on balance, unlikely to reoffend. Of course this is a matter where the Court is obliged to have regard to all the purposes of sentencing as set out in s 3A of the Crimes (Sentencing Procedure) Act. In circumstances where Ms Martens posits an opinion that his background and his mental state are likely to have had causal links with his offending behaviour, both Mr Bouveng for the offender and the Crown prosecutor accepted that his background and his mental health difficulties were causally linked to his offending. Accordingly, it flows from that in my mind in this particular case that principles of general deterrence and specific deterrence have less weight in this particular sentencing exercise. The Crown prosecutor in her careful written submissions reinforced by her oral submissions put that notwithstanding the Crown's assessment of the objective seriousness of the offending, this was a case where, partly because of the offender's relatively young age, both at the time of the offending and now at sentence but also matters to do with his background and his psychological make-up and the candour of his evidence mean that this is a matter where rehabilitation can form a predominant part of the sentencing consideration. 2. There are always some cases in which it is appropriate to extend to an offender particularly a young offender a considerable level of leniency, either in terms of the length of the sentence or the mode in which the sentence is carried out. I have given consideration to the decision of Dinsdale v R (2000) 202 CLR 321 at para 68 in which Kirby J held that the Court's sentencing discretion permitted the Court to take into account peculiar sentences of the case which arouse a measure of mercy in the particular case. King CJ in R v Osenkoski (1982) 30 SASR at paras 212 and 213 also acknowledged that there must be a place in the exercise of mercy or leniency where that leniency in the particular stage of the offender's life might lead to reform to the extent there is reform necessary. 3. I have determined to impose an aggregate sentence. When it comes to the structuring of the aggregate sentence the Court is obliged to have regard to notional issues of totality. I accept the thrust of Mr Bouveng's submission in terms of Count 2 and the grooming offence that involved AG that there is such a significant interplay between them as to matters that a full level of notional concurrence can be adopted. I accept further that there must be a notional level of partial accumulation between count one and Count 2 and the same applies in a more muted fashion in relation to the grooming that involves HL. Unopposed by the Crown I propose, as invited by Mr Bouveng, to find special circumstances. The special circumstances that I identify are that it is Mr Wilson's first time in custody, his youth and his need for a much more extended period on supervision in the community to make good his partial rehabilitation to date. I have regard to the fact in the overall sentencing exercise taking into account that the offender's time in custody has been or will be more onerous because of his mental health difficulties, because of his youth and vulnerability and because of the particular restrictions engaged by the COVID-19 situation. It is regrettable that circumstances meant that his mother had not been able to visit him while he was at a remote gaol, and that once he moved much closer to her rural address, the COVID restrictions meant that personal attendance visits are not possible to date. This young person has spent his time in custody without any personal visitors at all. In determining the indicative sentences, each of the indicative sentences have discounts applied to them. Because Count 1 has a standard non-parole period I am obliged to indicate both a head sentence and a non-parole period. As I have indicated, each of the matters a twenty-five per cent utilitarian discount applied to the indicative sentences and ultimately a thirty per cent discount on the basis of a finding of utilitarian discount and a small s 23 discount having been applied. 4. The starting point sentence for Count 1 would have been four years; with the application of a thirty per cent discount, the indicative sentence for Count 1 is two years nine months and two weeks with a non-parole period of eighteen months. The indicative sentence in relation to the first grooming count that involves HL, the starting point sentence would have been eight months and the indicative sentence after discount is six months. The indicative sentence the second grooming matter which involves AG the starting point sentence would have been ten months and with the application of the twenty-five per cent discount becomes seven months and two weeks. In relation to count two, the starting point sentence before discount would have been three years six months and so that the indicative sentence is two years and six months. Having found special circumstances, the aggregate head sentence will be one of three years and three months to date from 26 April 2019 and expire on 25 July 2022. There is to be a non-parole period of nineteen months which means that the earliest date of release to parole would be 25 November 2020. I convict the offender in relation to all four counts. The non-parole period upon that adjustment represents just something slightly less than fifty per cent of the head sentence. That is an intended consequence given the importance of rehabilitation for the offender and the community and means that this young man needs to spend an absolute minimum time continuing in full time custody against the objective seriousness of the offending and it is proposed that he have that much more extended period. I recommend to the State Parole Authority that he be required to accept the supervision of Community Corrections and undertake any community based sex offender education that is available to him.