R v SD [2021] NSWDC 90

District Court New South Wales

Medium Neutral Citation: R v SD [2021] NSWDC 90 Hearing dates: 19 February 2021 Date of orders: 19 February 2021 Decision date: 19 February 2021 Jurisdiction: Criminal Before: Buscombe DCJ Decision: Sentence imposed to be served by way of Community Corrections Order for a period of 2 years and 10 months. Catchwords: CRIME — Child sex offences — Sexual intercourse with child <10 Legislation Cited: Crimes Act 1900 (NSW) s 66A Children (Criminal Proceedings) Act (NSW) 1987, s 6 Crimes (Sentencing Procedure) Act 1999 (NSW) ss 25AA, 3A, 5 Cases Cited: SW v The Queen [2019] NSWCCA 194 Category: Sentence Parties: Director of Public Prosecutions (Crown) SD (Offender) Representation: Counsel: Mr A Terracini (Crown) Mr J Curtis (Offender)

Solicitors: File Number(s): 2019/00253899 Publication restriction: Non-publication order re complainant's name and identity

SENTENCE

Introduction 1. The offender stands to be sentenced having pleaded guilty to the following offence: That between 1 January 1995 and 30 October 1995 at Mona Vale he had sexual intercourse with JB (there is a non-publication order in relation to that name) a child under the age of ten years, namely eight or nine years. 2. That is an offence under s 66A of the Crimes Act and, at the relevant time, had a maximum penalty of 20 years imprisonment. 3. At the time of the offence, unlike now, there was no standard non-parole period.

The Facts 1. The facts are agreed and the following is taken from the facts. The victim's father, PB, and mother, CB, divorced in 1993. The victim's father then commenced a relationship with a RS. The offender is Ms S's nephew and occasionally stayed with her and the victim's father. 2. Between January and October 1995 the offender was staying at their premises in Mona Vale, along with the victim and other members of the family. 3. One night between January and October 1995, when the victim was nine years of age, the victim had her friend LS staying at her house. They both slept in the victim's bedroom on a trundle bed, the victim slept on top and LS slept on the pull out trundle. 4. At some point at night when the victim and LS were both asleep the offender entered the victim's room. The victim woke up to see the offender had his hands in her underwear. The victim tried to cross her legs to make him stop. The offender was trying to get the victim's legs open and the victim was squirming and trying to turnover so the offender would stop. 5. The offender then penetrated the victim's vagina with his fingers, he put his fingers in and out of the victim's vagina multiple times causing her considerable pain. 6. The victim wanted to scream but was so scared she had tears streaming down her face. 7. The victim sat up and said, "Who's there?". There was no response. The victim asked louder, "Who's there?". The offender said, "Carl is cold and needs a blanket". Carl was a reference to the victim's step-brother and cousin of the offender. 8. The victim said, "Get out". The offender got a blanket out of the wardrobe and left the victim's bedroom. 9. The next morning the victim looked in Carl's bedroom and saw that the blanket was on the bunk up the top where the offender was sleeping. 10. That morning the victim talked to LS about what had occurred. 11. The victim did not see much of the offender that day. The victim returned to her mother's house on the Sunday. 12. In terms of the complaint, the next person the victim told about the offence was a person she met at Pony Club whilst she was 12 or 13 years of age. The victim's mother overheard part of the conversation and asked the victim about what had happened. 13. The victim's mother contacted her father following the conversation and they met at Mona Vale. 14. The mother heard the victim say, "Well what happened to me was my cousin in there" gesturing between her legs. The following day the mother asked the victim about it, the victim said, "He put his fingers inside of me, S, and there was another girl in the room, LS, we've spoken and she didn't tell her mother either, he said he was coming in for a blanket". 15. The next day the victim's mother met with the victim's father and RS and told them what had occurred. RS contacted her sister, LD, the mother of the offender, and told her that the offender had to leave their house. 16. The next day LD flew to Sydney and picked up the offender. As they were leaving LD said to the offender, S, "J has said you sexually assaulted her two years ago", the offender said nothing. 17. The victim told her husband DB about the offences early in her relationship. She had known Mr B since she was 13 and does not specifically recall when she told him what had occurred. 18. The victim also told a friend when she was 21. 19. The victim told her cousin about the offence about five years ago, that was KB, who suggested that she contact police. The victim did not contact police because she did not believe police would do anything because it occurred a long time ago. 20. The victim also told her other cousin, RB, about the offences around the same time. 21. The victim also spoke with her father and Ms S about the offences. At some point Ms S told the victim that she had received a letter from the offender apologising for committing the offences. The victim subsequently obtained those letters and provided them to police. 22. Around September 2011 RS and CS met with the offender. During the meeting the offender admitted to sexually assaulting the victim. He was asked to write two letters, one to the victim, and one to Ms S and PB. 23. Ms S followed those letters up and eventually received two typed letters which I understand were received in 2011. The typed letters from the offender are set out in the agreed facts, I will not read all of it, but I will read a part of it. It contains: "Dear J, I can understand if you don't read this letter but I would like to express my sorrow for the pain and suffering that I may have caused you over the years. I can't even imagine what it must have been like living with this and having no one believe you. I am also sorry that we ended up living in the same area and that you have seen me at the shopping centre. I am sorry it took me so long to admit to this, it was very hard to finally admit to it after so long and I really should have apologised to you when I first came clean." 1. He wrote a similar letter to the complainant's father and Ms S. 2. On 15 August 2019 police attended Gosford Police Station where they met with the offender. He was arrested for the offence, he declined to be interviewed. 3. A moving and very powerful victim impact statement was read to the Court by Ms B earlier this morning. As is so often the case, a sexual offence perpetrated upon a young child has life-long devastating emotional consequences for the victim.