District Court New South Wales Medium Neutral Citation: R v Dean [2021] NSWDC 676 Hearing dates: 24 September 2021 Date of orders: 30 September 2021 Decision date: 30 September 2021 Jurisdiction: Criminal Before: Buscombe DCJ Decision: Aggregate sentence imposed one of 5 years and 6 months with non-parole period of 3 years and 4 months Catchwords: CRIME — Child sex offences — Sexual intercourse with child >10 <14 CRIME — Child sex offences — Indecent assault with child <16 SENTENCING — Penalties — Imprisonment Legislation Cited: Crimes Act 1900 (NSW) ss 66C(1), 61M(2) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A Category: Sentence Parties: Director of Public Prosecutions (Crown) Nicholas Dean (Offender) Representation: Counsel: Mr R Murray (Crown) Ms S Hall (Offender) File Number(s): 2019/342632 Publication restriction: Publication restriction regarding name of victim SENTENCE Introduction 1. The offender stands to be sentenced, having been found guilty by a jury after trial of the following two offences. That between 1 March 2016 and 31 March 2017 in Galston the offender had sexual intercourse with MS, MS being a person above the age of ten years and under the age of 14 years, namely a person of the age of 11 or 12 years. That is an offence under s 66C(1) of the Crimes Act. It has a maximum penalty of 16 years' imprisonment and there is an applicable standard non‑parole period of 7 years. That offence was count 2 on the indictment. 2. The second offence that the offender is to be sentenced for is that between 1 March 2016 and 31 March 2017 in Galston the offender indecently assaulted MS, a person then under the age of 16 years, namely 11 or 12 years. That is an offence under s 61M(2) of the Crimes Act. It has a maximum penalty of 10 years' imprisonment with an applicable standard non‑parole period of 8 years. 3. The jury during the trial were directed to return a verdict of not guilty on count 1 on the indictment. The jury returned not guilty verdicts on counts 4 and 5 on the indictment. The Facts 1. Turning then to the facts, these being sentence proceedings after trial, I am required to find the facts upon which the offender is to be sentenced consistent with the jury's verdicts. To the extent that I find a fact adverse to the offender, I must be able to find that fact beyond reasonable doubt. The jury's verdicts on the two counts on which the offender is to be sentenced is a reflection of the jury's acceptance of the victim's evidence concerning the conduct relied upon for those counts. 2. The offender was a long‑term friend of the victim's father and had essentially known her for the whole of her life. After her parents had divorced, the victim and her father began to live at the offender's premises. One night when the victim was asleep in the room that she had been occupying in the offender's premises, he came into her room and lay on the bed. The victim described in her evidence that the offender touched her on the outside of her vagina, and he inserted his fingers into her vagina, and that the offender had touched her "clit". 3. It is that conduct that the Crown relied upon before the jury for the sexual intercourse count being count 2 on the indictment. The offender also during this same incident removed the victim's clothes, touched her on the breast and sucked her nipples. It is the sucking of the nipples by the offender which is what the Crown relied upon for count 3 on the indictment. It is unclear for how long the incident lasted in which counts 2 and 3 were committed, but inferentially, it seems to have been of short duration. 4. The Crown adduced before the jury certain evidence of other acts of alleged sexual misconduct by the offender as context evidence. That evidence fell within the following categories: evidence from the victim that when she was about four years of age the offender discussed a sex toy with her; the victim's evidence that on an occasion the offender showed her a pornographic website; the victim's evidence that the offender had talked to her about sexual matters between the ages of six and 12; the victim's evidence that the offender had on an occasion given her a vibrator; the victim's evidence that on an occasion when she was younger than eight years, the offender touched her on her clitoris, being the evidence that the Crown had relied upon for count 1, for which there had been a directed verdict. 5. The directed verdict arose because I was of the opinion there was no evidence that the conduct relied upon occurred between the dates particularised in the indictment for that count. The evidence of the conduct remained before the jury as context evidence. As I said earlier, the jury found the offender not guilty of the allegations contained in counts 4 and 5. Count 4 relied upon evidence from the victim that she recalled the offender using a vibrator on her clitoris, and this was said to have occurred during the same incident as counts 2 and 3. Clearly, the jury did not accept the victim on that issue concerning the use of the vibrator. 6. The two verdicts of not guilty on those counts, in particular, the verdict on count 4, leads to me not being satisfied of the following events that were relied upon for context evidence. I am not satisfied beyond reasonable doubt that when the victim was about four years of age the offender discussed a sex toy with her. I found that evidence very difficult to accept, given the age of the victim at the time of the alleged conversation. And together with the not guilty verdict in count 4, which related to the use of a vibrator, a sex toy, I do not accept the evidence beyond reasonable doubt. For similar reasons, I do not find beyond reasonable doubt that the offender at some point provided her with a vibrator. 7. I accept beyond reasonable doubt that over a number of years the offender had spoken to the victim about sexual matters, and on one occasion had shown her a pornographic website. I therefore find that there was some grooming of the victim in relation to the offending that the jury found proved. 8. The victim made her first complaint about the offender to her stepbrother a little before Christmas 2018. The next complaint was to her mother in January 2019, followed by complaint to her father in March/April 2019. The victim made her police interview on 24 September 2019. The offender was arrested and charged on 31 October of that year. 9. There is no Victim Impact Statement before me, however, this Court is well aware of the long‑term effects sexual offending can have upon children. Objective seriousness 1. Turning then to my assessment of the objective seriousness of the offences. The victim's date of birth is 14 February 2005. As at the date of the offences, the victim was between 11 and 12 years of age. In relation to the sexual intercourse offence, the victim's age was close to the lower end of the range of the age range of victims that fall within the offence‑creating provision. In relation to the indecent assault offence, the age of the victim puts her above the middle of the age range of victims that fall within the offence‑creating provision. 2. The offender's date of birth is 22 December 1958, so he was around 57 years of age at the time of the offences. There was a very significant age gap between the offender and the victim, and there is no doubt that the offender was aware of the victim's age given the length of their association. The offences occurred in the home of the offender, but at a time when it was, in effect, the home of the victim and her father, and occurred in a bedroom where the victim was sleeping. 3. The offences occurred at night and the child was woken up by the offender at the time of the offending. In the circumstances of the offending, there was a breach of trust by the offender, given his long‑term friendship with the victim's father and the victim. At law, there is no hierarchy of seriousness in relation to sexual intercourse. Here, the sexual intercourse concerned digital penetration, which is generally considered to be less serious than penile‑vaginal or penile‑anal intercourse or fellatio by a child upon an adult. 4. It appears the offence was of limited duration, and there is no suggestion in the evidence that the offender had moved his fingers in and out of the victim's vagina. In the circumstances here, I assess the objective seriousness of the sexual intercourse offence in count 2 as a little below the mid‑range level of objective seriousness. In relation to the indecent assault offence, it involved the sucking of the child's nipple, and there had been touching of her breast immediately before that occurred. However, it was the specific sucking of the nipple which was what was relied upon for the offence. There was, therefore, skin on skin touching and sucking of an intimate part of the child's body. I consider the objective seriousness of this offence to also be a little below the mid‑range level of objective seriousness for such offending. 5. The Crown submitted that in terms of aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act, that there were two such factors established here: that the offences involved a breach of trust and that the offences occurred in the victim's home. Those aggravating factors were not put in dispute by the offender's counsel, and I am satisfied that they are both established here beyond reasonable doubt. I have had regard to them in my assessment of the objective seriousness of the two offences to avoid double counting. The offender's subjective case 1. Turning then to the offender's subjective case. In terms of documentary material, I have before me a psychological report by Megan Godbee, psychologist, dated 10 September 2021. The offender did not give evidence on sentence. 2. The offender is 62 years of age and was around 57 years of age as at the date of the offending. The offender has a very limited criminal history, and no criminal record of offending prior to the commission of the offences I am to sentence him for. I do not consider that his lack of a criminal record was in any way connected to the commission of the offences. His lack of a criminal record entitles him to some leniency in this sentence. Family background 1. Turning then to his family background, the offender described to the psychologist growing up in Chatswood as the middle of five children born to his parents. His parents separated when he was approximately ten years of age. The offender did not report any history of abuse or trauma throughout childhood. The psychologist concluded that, "His childhood experiences were largely stable and pro‑social, although his parents modelled relationship conflict and affairs." The offender described his own childhood as, "Just one of those great childhoods." According to the psychological report, the offender left home at 19 years of age and has lived independently since that time. 2. He told the psychologist that he met his wife at age 19, and they were married for 38 years. They had two children together, though the offender has no contact with his adult daughter. According to the psychologist's report, he has maintained a close relationship with his son, but has not told him about these proceedings. The psychological report indicates that the offender and his wife's marriage was in difficulty from their early 40s, although they did not separate for some time. The offender and his wife did separate in 2016. The offender also has a daughter to another woman in a same‑sex relationship to whom he donated sperm so the couple could have a child. He has had some contact with that daughter over the years. Education and employment history 1. Turning then to his education and employment history, the offender told the psychologist that he disliked primary school, noting he was diagnosed with dyslexia, and treated as "dumb" by his teachers due to his literacy difficulties, though he excelled in practical subjects such as science. The offender told the psychologist that he found high school more enjoyable, as he had become "very self‑reliant and independent". The offender was never suspended or expelled. 2. He left school when he was approximately 16 years of age to begin working. He told the psychologist that he had always wanted to be a chef and began an apprenticeship. However, he was not earning enough money, so he left the apprenticeship. He then worked for his father in steel sales for ten years before opening his own steel business, which he had for 38 years. His business collapsed suddenly in 2016 and he has not started any new business venture due to these Court proceedings and has been supported by Centrelink. Substance use 1. Turning then to his substance use, according to the psychologist, the offender had an unproblematic relationship with alcohol until 2012 when he began to experience burnout at work and his alcohol consumption increased. This continued for approximately four years, after which the offender reportedly recognised that his alcohol consumption was leading to low mood and stopped drinking. 2. According to the psychologist, the offender began using methylamphetamine, colloquially ice, in 2016. The offender described trying several antidepressants and saw various psychologists to address his low mood, but nothing had worked. Upon trying methylamphetamine at a party, the offender felt "his depression stopped immediately," and he began smoking half a gram of it every day. 3. His use of methylamphetamine appears to have commenced around the time of the collapse of his business when he was around 58 years of age. It also coincided with the commission of the subject offences. The offender attempted rehabilitation for four months, but did not feel the program suited him and left. The offender described currently considering attending another program, but noted he no longer has the health insurance to pay. 4. The psychologist noted that the offender had distorted beliefs about ice, stating that it keeps him stable, though he is aware it is going to kill him. In these circumstances, where the offender commenced his ice use at around 58 years of age, I do not consider that his drug use in some way reduces his moral culpability for the offending. Medical history 1. Turning then to the offender's medical history, the offender told the psychologist that he has long‑term heart health issues, and had his first cardiac event at age 36. These proceedings have, of course, been previously adjourned due to the offender experiencing two cardiac events in May and July of this year resulting in his hospitalisation. According to the psychologist, the offender also in 2016 fell seriously ill, and believes he experiences persisting fatigue from this period. 2. The offender also told the psychologist that he suffered a rare side effect to penicillin as a young man, and he experienced an illness similar to leukaemia. As a result, his blood does not clot well, and he is worried about minor injuries leading to fatal bleeds. The offender's sentencing has also been delayed due to the offender contracting COVID‑19, although I am told he has now recovered from that disease. Psychological/psychiatric history 1. Turning then to his psychological history, which as is often the case, corresponds with his substance use. The offender told the psychologist, as I have mentioned earlier, that he did not have any mental health concerns prior to 2012 when he experienced low mood and his problematic relationship with alcohol began. The offender then experienced a significant period of depression following his 2016 illness where he first began using ice. 2. The offender told the psychologist that when he was charged with the present offences his depression worsened. He said he began to think about suicide approximately three years ago, and expressed the ongoing belief that, "My life isn't worth living now," however, denied developing a plan to harm himself due to his children and grandchildren. The offender told the psychologist that, "Ice is the only thing that keeps me going." Attitude to the offence 1. In terms of his attitude to the offence, the offender denies the offending, which is of course his right, but demonstrates no remorse or insight into his offending. The psychologist assessed the offender as having a very low risk of re‑offending. The psychologist noted the main risk factors relate to be his interpersonal difficulties, his depression and his substance use, which can be targeted in treatment. The future and risk of re-offending 1. The offender has essentially no other significant criminal history and a history of employment. I noted earlier the psychologist's assessment of his risk of reoffending. I consider that, despite his denial of responsibility for the offending, the offender has reasonable prospects of rehabilitation. Given his denial of the offending, I do not consider I am able to make a finding that he is unlikely to reoffend, however. Imposition of sentence 1. I am sentencing the offender during the re‑emergence of the COVID‑19 pandemic, and I note he has already had the disease. As at the date of sentencing, there are public health orders in place which would result in there being no in‑person visits to the prisons. It is uncertain for how long that will occur. It is well known that inmates are currently spending much longer periods in their cells than they normally would and that fewer rehabilitation programs are available. 2. While the COVID restrictions in the community are set to ease during October, it is uncertain what the position will be in the prison system. The offender clearly has very significant medical issues, and I note this will be his first time entering custody and he is in his early 60s. I consider that I should make a finding of special circumstances when setting the non‑parole period for those reasons. 3. I will utilise the aggregate sentencing provisions when imposing sentence. If I had not done so, my approach to accumulation and concurrency would have been as follows. Although the offences arise out of the one incident, there should be a limited degree of accumulation in order to reflect the separate criminality involved in each offence. 4. I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act which includes the need to impose adequate punishment, general and specific deterrence, protection of the community, denouncing the offender's conduct, recognising the harm done to the victim and the community, and rehabilitation of the offender. 5. Sexual offending against young children is abhorrent to all right‑thinking members of our community. Children should be free to grow into adolescence and adulthood without being preyed upon by sexual predators like this offender. It is well known that sexual offending upon a child often causes difficulties for the whole of a person's life. In recent years, the courts have been inundated with offences involving sexual offending against children, no doubt representing the sad fact that such offending is very prevalent in our community. 6. General deterrence, being the need to impose a sentence to deter other members of the community from such offending must bear significantly in the sentence that I impose here. The maximum penalties and the standard non‑parole periods have been taken into account as legislative guideposts. It will be seen that I have departed from the standard non‑parole periods due to my assessment of the objective seriousness of the offences and my finding of special circumstances. 7. I will firstly record the indicative sentences and the indicative non‑parole periods. In determining the indicative sentences and fixing the aggregate sentence, I have had regard to all of the objective and subjective factors I referred to earlier. The sentences Mr Dean will hear me first announce are what are called indicative sentences. He will then hear me announce an aggregate sentence which is the sentence and the non‑parole period that he will serve. It is not arrived at by simply adding up all the indicative sentences. When announcing the aggregate sentence, I will tell you the date it starts from, the date it ends and the date when you are first eligible for parole. 8. Just stand up, Mr Dean, please. The offender is formally convicted of the two offences that he was found guilty of by the jury. On the offence in count 2 of sexual intercourse with a person above the age of 10 years and below the age of 16 years, I record an indicative sentence of 4 and a half years' imprisonment, with an indicative non‑parole period of 2 years and 9 months. On the offence in count 3 of indecent assault of a person under 16 years, I impose an indicative sentence of three years, with an indicative non‑parole period of 1 year and 10 months. 9. I impose an aggregate sentence of 5 and a half years' imprisonment with an aggregate non‑parole period of 3 years and 4 months. The aggregate sentence commences 26 September 2021, and expires on 25 March 2027.* 10. The non‑parole period expires on 25 January 2025. The earliest date you are eligible to be released to parole is the date of the expiry of the non‑parole period, which is 25 January 2025. Whether you are, in fact, released to parole that day is a matter for the State Parole Authority, which will no doubt take account of your behaviour in prison in determining whether you are released then or on another date. *This date reflects the sentence being backdated by 4 days to reflect pre-sentence custody, following discussion with counsel. ********** ORDERS: 1. The offender is convicted of the offences of which he was found guilty by jury after trial 2. Record the following indicative sentences: 1. Count 2: 4 years and 6 months imprisonment with an indicative non‑parole period of 2 years and 9 months 2. Count 3: three years with an indicative non‑parole period of 1 year and 10 months 1. Impose an aggregate sentence of 5 years and 6 months imprisonment with a non-parole period of 3 years and 4 months. The sentence commences 26 September 2021 and expires on 25 March 2027. The non‑parole period expires on 25 January 2025. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2021