District Court New South Wales Medium Neutral Citation: R v Bailey, Jason (a pseudonym) [2021] NSWDC 372 Hearing dates: 8 July 2021 Date of orders: 8 July 2021 Decision date: 08 July 2021 Jurisdiction: Criminal Before: P Taylor SC DCJ Decision: 1. I impose an aggregate sentence of a fixed term of six months' imprisonment, to date from 26 August 2019 and expiring on 25 February 2020. 2. I would specify indicative sentences of two months' imprisonment on Count 2 and five months' imprisonment on Count 5 on the indictment. 3. The offender is entitled to be released forthwith. Catchwords: CRIME — Sexual offences — Sexual touching - Knowledge about consent SENTENCING — Mitigating factors — Unlikely to re-offend Legislation Cited: Crimes Act 1900, s 61, s 61HE, s 61KC, s 578A Crimes (Sentencing Procedure) Act 1999, s 3A, s 5, s 21A Cases Cited: Baines v R [2016] NSWCCA 132 Kearsley v Regina [2017] NSWCCA 28 Shanmugam v R [2021] NSWCCA 125 Wan v R; R v Wan [2019] NSWCCA 86 Category: Sentence Parties: Regina Jason Brian Bailey (a pseudonym) (Offender) Representation: Counsel: Mr P Segal (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Crime & Traffic Lawyers Pty Ltd t/as Criminal & Traffic Law (Offender) File Number(s): 2019/00265039 Publication restriction: Section 578A(2) of the Crimes Act 1900 applies to this matter, that there is to be no publication of any matter which identifies the complainant victim or may lead to her identification. Judgment 1. Section 578A(2) of the Crimes Act 1900 applies to this matter, that there is to be no publication of any matter which identifies the complainant victim or may lead to her identification. 2. Jason Brian Bailey, [1] the offender, was convicted on two counts of sexually touching Chloe Mendoza without her consent, offences under s 61KC(a) of the Crimes Act, which carry a maximum penalty of five years' imprisonment. He comes before this Court for sentence. 3. Mr Bailey is 62 years of age and was 60 at the time of the offences. The offences occurred at Mr Bailey's place of residence. He lived in a rented house with three other men, two older men like himself, and a younger man, Simon Park. 4. The victim, Chloe Mendoza, was Mr Park's 24-year-old girlfriend. She knew Mr Bailey to be a housemate of Mr Park and had spoken to him on occasions previously. It was her practice to stay at the house on weekends. 5. The offences occurred on Sunday, 25 August 2019. Mr Park had left the house that morning to buy some cigarettes, and Ms Mendoza was in the process of cooking pancakes. Mr Bailey had a conversation with Ms Mendoza about some music, and, in circumstances which were disputed at trial, had kissed Ms Mendoza. Thereafter, she went to the backyard of the house and when he came to that location, they had a further conversation. They returned inside the house and were watching television together in the lounge room when the offences occurred. In summary, the two offences involved Mr Bailey touching Ms Mendoza's breast outside her clothing, and subsequently underneath her clothing. 6. Both Ms Mendoza and Mr Bailey gave evidence of the sexual touching element of the offences, so that was not in issue. The jury verdicts establish that the sexual touching occurred without Ms Mendoza's consent, and that Mr Bailey knew of that lack of consent within the meaning of s 61HE of the Crimes Act. Apart from these matters, I cannot rely on any fact adverse to Mr Bailey unless it was proved beyond reasonable doubt, and I also should not rely on any fact in his favour unless proved on the balance of probabilities. 7. Mr Bailey was also charged with an offence of sexual touching arising out of the kissing incident on which the jury returned a verdict of not guilty. That verdict may have resulted from the jury not accepting Ms Mendoza's evidence that it involved a tongue kiss - Mr Bailey putting his tongue inside Ms Mendoza's mouth - and for that reason or otherwise, the kiss did not involve sexual touching, or because they, the jury, were not satisfied that it was not consensual or were not satisfied that Mr Bailey was aware of the lack of consent to the kiss. Or it could have involved a combination of these matters. Whatever be the correct resolution of this uncertainty, it is apparent from both this and the other complaints of Ms Mendoza that resulted in not guilty verdicts on other charges prosecuted, that the jury did not wholly accept Ms Mendoza's account. All that can be said is that the offences were committed after a non‑criminal kiss and some conversational interaction between Mr Bailey and Ms Mendoza. While the sentence must proceed on the basis that Mr Bailey sexually touched Ms Mendoza on her breast in the ways indicated, without her consent, and him relevantly knowing that she did not consent, that does not mean that all the circumstances of the sexual touching offences occurred as asserted by the Crown, or as testified by Ms Mendoza. 8. There is no dispute that the sexual touching was brief and that it did not involve threats, physical force or physical resistance. 9. Knowledge of a lack of consent is defined in s 61HE(3) of the Crimes Act to include, alternatively, actual knowledge, or recklessness as to the victim's consent, or where the offender has no reasonable grounds for believing that the victim consents to the sexual activity. The guilty verdict establishes that the jury were satisfied of at least one of these alternatives. 10. Mr Bailey gave evidence that he asked for and obtained Ms Mendoza's consent to the sexual touching. In view of the jury verdicts, this evidence is rejected. However, the jury verdicts admit of the possibility that Mr Bailey was guilty of the offence, even though he neither knew of the victim's lack of consent (within the meaning of s 61(3)(a) of the Crimes Act) or he was reckless as to whether she consented, [2] but that under s 61HE(3)(c), although he believed she was consenting, he had no reasonable grounds for that belief. 11. Whilst there was some evidence of alcohol consumption by Mr Bailey, self-induced intoxication is not a circumstance that can be considered in determining which of these three matters occurred, see s 61HE(4). 12. The Crown asserted on sentence that at least in respect of the first of the two offences, Mr Bailey was reckless as to the victim's consent. [3] However, I am not satisfied that the victim expressed her lack of consent in such clear terms so as to leave me satisfied beyond a reasonable doubt that Mr Bailey had actual knowledge of a lack of consent. In that event, I am not able to say whether any of the three alternatives in s 61HE(3) is more likely, so I make no specific finding on that, although I am satisfied on the balance of probabilities that there was, on Mr Bailey's part, either recklessness or a lack of reasonable grounds for belief of consent. He should therefore be sentenced on the basis that he did not have the knowledge identified in s 61HE(3)(a) of the Crimes Act. 13. The offences thus involved a relatively brief episode of sexual touching of the breast on the outside of and underneath clothing, and one of the less direct forms of knowledge of a lack of consent. 14. Touching of the breast, whilst unquestionably serious, is nevertheless "less intrusive and less overtly sexual and indecent than would be, for example the touching of the genitals", as the Court of Appeal said in Baines v R. [4] 15. None of the aggravating factors in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 were present. The location of the offence was not at the victim's home, and I am not persuaded that the location at his, Mr Bailey's, home increased the objective seriousness of the offences, or that there was any relevant planning involved in the offences. Whilst Mr Park was not at the house at the time, there was no certainty as to the duration of his absence, and it was the subject of common evidence that Mr Bailey indicated to Ms Mendoza in the kitchen or from the lounge room that Mr Park could be informed of the kiss. [5] 16. So far as the mitigating factors in s 21A(3) of the Crimes (Sentencing Procedure) Act are concerned, the offender does not have any significant record of previous convictions and no record of sexual offences. In the past 22 years, Mr Bailey has had one driving with the prescribed concentration of alcohol offence and received a bond for apparently obtaining a $6,190 financial advantage from the Commonwealth. Both of these offences occurred in about 2005. He has had no offences since. 17. The Crown submitted that contravention of domestic violence orders and the two small fines that resulted some 25 years ago, the driving offences, one of which I have referred to and another about 23 years ago, and the Commonwealth offence in 2005, deprive the offender of a clear history. I agree. So leniency must be limited. But Mr Bailey's clear record over the past 15 years and the absence of any other offence of this type at any time should be taken into account in his favour. 18. I have reviewed the sentencing decisions of Baines v R, [6] Wan v R; R v Wan, [7] Kearsley v Regina [8] and Shanmugam v R [9] to which I was referred. None of these decisions are especially analogous, the first involving a breach of trust by a masseur in committing similar offences, the next two involving the administration of an intoxicating substance with intent to commit an indictable offence, and the last involving sexual offences of significantly greater seriousness. More analogous were the cases identified at paras 119 to 126 of Baines, even though they too were at a significantly higher level of seriousness. 19. I also consider the statistics provided where of the five persons sentenced as principal offenders for sexual touching without consent in higher courts since 1 December 2018, two received custodial sentences and three received intensive correction orders. The utility of these statistics without the detail of the offences and offenders is very limited, and I have not given them any real weight in my decision. 20. Mr Bailey submitted to an interview (without the benefit of legal assistance) on the night following the offences, so he may also be entitled to some minor mitigation of penalty under paras (l) and (m) of s 21A(3) of the Crimes (Sentencing Procedure) Act. 21. I also take into account as significant the principal statutory guidepost that these offences carry a maximum penalty of five years' imprisonment. 22. In all these circumstances, I find that, although these are serious offences, the first offence is at a low level, and the second is towards the lower end, of objective seriousness for an offence under s 61KC of the Crimes Act. 23. I am persuaded that Mr Bailey is unlikely to reoffend. A Corrective Services psychologist reported that his STATIC-99R score was zero, placing him in the below average risk category of sexual reoffending for male sexual offenders, partly due to his age. 24. I take into account that Mr Bailey has not admitted guilt and is still maintaining his innocence. This shows a lack of remorse and contrition, and a lack of insight into his offending behaviour. However, his recent history, which apart from these offences, shows an absence of antisocial behaviour and with his below average risk rating, and despite the lack of remorse evidenced by his non-acceptance of guilt, I find that he has reasonable prospects of rehabilitation. 25. As I have said, Mr Bailey is 62 years of age. He has now no contact with his three siblings. He was previously married and had a daughter. In 2018, the year previous to these offences, his daughter then in her early 20s died of a drug overdose. His mother also died, and a housemate friend who lived with him at the house where he resided, with whom he was very close, died in his arms. Mr Bailey obtained no grief counselling in relation to the loss of his mother, daughter and his close friend. 26. Whilst these matters are likely to have impacted adversely on Mr Bailey's mental state, I am unable to conclude that they played a direct role in the offences. 27. Mr Bailey's childhood was difficult. His father was physically abusive towards him and his mother. His father died of cancer when he was 17. Mr Bailey left school at 15 to work as a factory worker, and was thereafter regularly employed, sometimes in the Defence Department or for Transport NSW, or as a manager of hotels. At the time of the offences, he was employed at a shopping centre and was about to be promoted to a permanent manager. This employment was lost as a result of him being in custody pending trial for these offences. 28. Mr Bailey had a spinal injury from a work-related accident in 2009, which led to treatment including a knee reconstruction in about 2015. He is prescribed pain medication but gave evidence that whilst on remand he was unable to get proper pain relief. He also suffers from asthma, diabetes and high blood pressure. 29. Mr Bailey, as a result of the offences, was assaulted and knocked to the ground by Mr Park, and after his subsequent arrest for the offences, he lost significant cash money and all his possessions at the house where he resided whilst he remained on remand. And as I mentioned, he lost his prospect of improved employment. Whilst these matters are not at all trivial, it seems to me that only the loss of the not insignificant moneys and all his possessions seem to fall within the test of serious loss or detriment, and I take that matter into account in his sentence. 30. Since obtaining bail in May of this year, Mr Bailey has been unemployed on Centrelink benefits, although he is seeking and hopes to obtain employment. 31. Mr Bailey spent 1 year, 8 months and 16 days in custody solely referable to the offences, from 26 August 2019 until 10 May 2021. Thus, his time in custody included the time when incarceration was more restrictive, being subject to COVID-19 restrictions. Mr Bailey also had the difficulty of being in custody whilst suffering from his medical conditions, where although he received treatment for them, including twice being hospitalised whilst in custody, those conditions would tend to make his period in custody more difficult. 32. I have read and taken into account the victim impact statement of Chloe Mendoza. Ms Mendoza refers to her feelings of ongoing anxiety and shame arising from the offences. She has found some psychological benefit in writing, including a rap poem about her experience she titled "Don't hesitate to say no". 33. As the two offences occurred at the one location, and on the one occasion, one after the other, thus constituting a brief course of conduct, it seems to me that an aggregate sentence for the offences is appropriate. 34. Section 3A of the Crimes (Sentencing Procedure) Act provides that: "3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows— (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community." 1. The need for deterrence, accountability, denunciation and adequate punishment of the offence and recognition of the harm occasioned by sexual assault persuades me that the offences satisfy the s 5 threshold in the Crimes (Sentencing Procedure) Act and that no penalty other than a period of imprisonment is appropriate. 2. However, the circumstance that Mr Bailey comes before me for sentence after having been held in custody for more than 20 months in respect of the offences cannot be ignored. That circumstance renders inutile any sentencing option of an intensive correction order or consideration of the appropriate non-parole period once it is apparent, as it is here, that the period of custody significantly exceeds the appropriate non-parole period for the offences. 3. One consequence of this is that it limits the Court's ability to impose a sentence that embraces matters of rehabilitation, such as counselling about grief, alcohol consumption, insight into sexual offences, including a proper understanding of what may be embraced within the question of consent, and the need for ongoing social support now that Mr Bailey lives alone whereas previously, he had male housemates. Nevertheless, these matters warrant Mr Bailey's serious consideration as a way to further his rehabilitation, to improve his life and to prevent the risk of reoffending, and I would urge him to explore the matters to which I have referred: grief counselling, alcohol consumption and insight into sexual offences, as well as the need for ongoing social support to explore these matters, including with his medical practitioner. 4. In my view, the appropriate aggregate sentence for the offence should be a fixed term of six months' imprisonment. Any sentence must take into account the period served which, as I indicated, significantly exceeds that fixed term. I would specify indicative sentences of two months' imprisonment in respect of the first offence, Count 2 in the indictment, and five months' imprisonment in respect of the second offence, which was Count 5 on the indictment. 5. Mr Bailey, would you please stand. 6. Jason Brian Bailey, you are convicted on two counts of sexual touching without consent. I impose an aggregate sentence of a fixed term of six months' imprisonment, to date from 26 August 2019 and expiring on 25 February 2020. The offender is entitled to be released forthwith. ********** Endnotes 1. This is a pseudonym. As are all other names in this judgment. 2. S 61HE(3)(b). 3. See Outline of Crown's submissions on sentence, 2 July 2021, at [11(b)]. 4. [2016] NSWCCA 132 at [75], see also [26]-[27], [39]. 5. Tcpt, p 205(46), p 556(37). 6. [2016] NSWCCA 132. 7. [2019] NSWCCA 86. 8. [2017] NSWCCA 28. 9. [2021] NSWCCA 125. 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: 29 September 2022