District Court New South Wales Medium Neutral Citation: R v Pineda [2021] NSWDC 849 Hearing dates: 29/3/21, 27/4/21 Date of orders: 27/4/21 Decision date: 27 April 2021 Jurisdiction: Criminal Before: Bourke SC DCJ Decision: Convicted and sentenced to an aggregate term of imprisonment of 7 years with a NPP of 4 years (8/4/20-7/4/24). I find special circumstances. The indicative sentences are: Count 1 Sexual intercourse with child under 10 years – 5 years 3months with NPP 3 years (Form 1 taken into account). Count 2 Sexual intercourse with child under 10 years – 4 years 9 months with NPP 2 years 9 months. Catchwords: Crime – Sentence – Sexual intercourse with a child under 10 years Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Chamseddine v R [2017] NSWCCA 176 Colbert v R [2021] NSWCCA 38 R v MJR [2002] 54 A Crim R 368 R v Nelson [2016] NSWCCA 130 R v PGM [2008] NSWCCA 172 R v Tuala [2015] NSWCCA 8 RP v R [2013] NSWCCA 192 Category: Sentence Parties: NSW DPP – Crown Dominador Pineda - Offender Representation: Mr A Isaacs for Crown Mr A Cassels for Offender File Number(s): 20/107449 Publication restriction: Statutory non-publication of the identity of the complainant remarks on sentence 1. Mr Dominador Pineda is today for sentence in relation to two offences being two offences under s 66A(1) of the Crimes Act 1900, of sexual intercourse with a child under the age of 10 years. The maximum penalty for each of those offences is 25 years imprisonment and a standard non-parole period of 15 years is specified. Of course, the maximum penalty and the standard non-parole period are guideposts in the sentencing exercise to which I have had regard. 2. In addition, the offender asks that in sentencing him on the count 1 offence on the indictment that I take into account a further two offences to which he admits his guilt. Those offences are the sequence 10 offence of aggravated incitement of an act of indecency involving a child under 10 years, the maximum penalty for which is five years imprisonment, and the sequence 6 offence which is an offence of aggravated indecent assault of a child under 16 years of age, the maximum penalty for which is 10 years imprisonment and for which a standard non-parole period of eight years is specified. 3. He has pleaded guilty at the earliest opportunity and therefore he is entitled to, and I will allow, a 25% discount on account of the utilitarian value of that plea of guilty. FACTS 1. The facts are agreed and in summary are as follows: 2. The victim was born in June 2005 and was aged between 8 and 9 at the time of the offences. The offender is her maternal uncle, being the brother of the victim's mother. The victim lived in a home unit in Westmead with her mother, sister and two brothers. 3. The offender arrived in Australia in 2005 from the Philippines on a 90 day tourist visa but remained illegally in Australia since that visa expired. The offender stayed with the victim's family from time-to-time and at the time of the offences he was residing in their home. 4. The first incident of offending, which is a matter to be dealt with on the Form 1, occurred between about 1 July and 31 December 2013, when the victim was in Year 3 and was aged about 8 years. The offender at that time was 44 years old and would babysit the children while their mother worked at the Star City Casino. 5. On one of the days when the mother was at work, the victim and her sister were at home with the offender because the victim's sister was sick in bed with a fever. When the victim entered the kitchen to obtain a glass of water for her sister the offender said to her "come here" and patted his lap. The victim then approached the offender who was sitting on a sofa and sat on his lap as requested. The offender then pulled down his pants, exposing his penis, and told the victim to rub and touch it, which she did with her hands. As I have said, that is one of the matters that is to be dealt with on the Form 1. 6. Count 1 of the indictment for which the offender is to be sentenced involves the following facts. That offence arose at the same time as the incident that I have just described. After the incident that I have just described the victim said to the offender "I want to go", however the offender told the victim to sit on the sofa. He then laid her down and took off her pyjama pants and underwear and inserted his tongue into her vagina. This eventually stopped when the victim got up and said she had to take the glass of water to her sister. The offender sat the victim up and told her she could not tell anyone what had happened. 7. The offence that is the subject of count 2 on the indictment occurred some time between about 1 January and 31 December 2014, that is the following year. At that time the victim was in Year 4 and was aged between 8 and 9 years while the offender was about 45 years and was living in the unit occupied by the victim and her family. 8. One afternoon while the offender was laying on a bed in the second bedroom he told the victim to come into the room, which she did. The offender then started kissing the victim on the lips. He then took off his pants and told the victim to "suck on his dick" and the victim then sucked on the offender's penis as she was told. 9. After this the offender kept asking the victim if she had told anyone about the things he was doing to her. When she replied "no", the offender said "you're a good girl" and "if anyone found out then I'd be a bad person". At the time of this offence the other members were in the home unit but were not in the room where the offence took place. 10. The fourth offending incident is the sequence 6 offence which is on the Form 1. This offence took place sometime between about 1 January 2018 and 30 November 2018 when the offender was about 49 years of age and the victim was 13 years and was in Year 8 at high school. The offence occurred the night before the graduation from school of one of the victim's older brothers. 11. The victim was at the time doing some homework in the living room when the offender came up behind her, reached under her shirt and grabbed her on the breast. He told the victim that he wanted to "do it one last time" but the victim sensibly and bravely told him to leave her alone. After this the victim spoke to her sister and told her what the offender had done. 12. The victim "had enough" of the offender's actions and decided to tell her mother. She did this by typing onto an iPad the words "Tito Juhn sexually harassing me, I am sorry" and woke her mother and showed her the message. 13. The mother hugged the victim and told her she was going to be okay and then, after speaking with her own sister, the mother confronted the offender asking him "why". The offender in an apparent admission said "I don't know why, I'm really sorry". When questioned further he said "I don't really know what happened to me, why I do that", although the offender did not actually tell the mother what he had done to the victim. 14. The mother told the offender to leave and not to return and then spoke by phone with her sister, the victim's aunt, who attended the house and was told by the victim that she had been "sexually harassed" by the offender. 15. The victim was told by her aunt not to tell anyone about the abuse as she may be removed from the mother. The victim's sister has confirmed that the victim had told her that the offender "did something bad to her" and would touch her when the family was not looking and she did not know what to do and that the last time he did it he had touched her "on the boobs". 16. When telling her sister about the offending the victim was very emotional and insisted on telling the mother, saying "I hate this, we're going to tell our mum", and it was after this discussion that the victim wrote the note on the iPad and showed it to her mother. 17. The matter came to police attention on 8 April 2020 when a report of sexual harm was made to police. Police attended the unit at Westmead where the offender was staying in the garage and he was detained under the Migration Act. While in custody the offender was informed of the allegations and invited to participate in an interview but declined, saying "no, I am not ready to talk about things, my heart might explode and I am not ready". He was then charged with the offences before the Court. 18. Those are the facts upon which he is to be sentenced. OBJECTIVE SERIOUSNESS 1. As is well known, sexual offending against children is regarded with extreme disgust in our community. In recent decades this has become particularly so because of the acknowledgment by the community and by the Courts of just how common and how damaging such offences are. The effects on victims are often lifelong and in many cases lead to significant psychological issues, including anxiety, difficulties in trusting others, a fractured sense of self-worth and often self-blame, even where as in this case the victim, who was a child, was completely innocent of any blame at all. 2. In recognition of the harm that such offences usually involve s 25AA of the Crimes (Sentencing Procedure) Act 1999 requires the Court to sentence the offender in accordance with current sentencing patterns rather than those which might have applied at the time of the offences. 3. The objective seriousness of the offences before the Court is also marked by the maximum penalty and the standard non-parole period that applies to them. In keeping with the acceptance of the prevalence and seriousness of child sexual abuse the Courts have acknowledged a change in community attitudes to such offences and have emphasised the need for serious punishment to be imposed. 4. As was said by then President of the Court of Appeal Keith Mason in R v MJR [2002] 54 A Crim R 368, the pattern of increasing sentences for child sexual assault matters, "has come about in response to greater understanding about the long term effects of child sexual abuse as well as by a considered judicial response to changing community attitudes". 5. In assessing the objective seriousness of the offences before the Court, one of the important factors is the nature of the sexual act involved. In R v PGM [2008] NSWCCA 172, Justice Elizabeth Fullerton said at para 26 in part, "while there is no hierarchy of sexual acts that constitute sexual intercourse for the purposes of the criminal law it is generally accepted that some forms of sexual activity may be regarded as more serious than others". 6. In general terms, as the Crown submitted, penile penetration is often regarded as more serious than acts such as fellatio, cunnilingus and digital penetration but each case must be considered in the light of its own facts. While the nature of the sexual act is important, it is not the sole consideration. Rather, I must take into account a range of factors including how the offences took place, their character, the age difference between the victim and the offender, as well as the specific age of the child within the age range specified in the offence, the duration of the offence, and the effects on the victim. 7. Generally speaking, the younger the child the more vulnerable and defenceless he or she will be and accordingly the more serious the criminality. It is, as the Crown submitted, important that considerable emphasis be placed on general as well as personal deterrence. 8. The offence in count 1 involved the offender inserting his tongue into the vagina of his 8 year old niece. The offence in count 2 involved the offender requiring the victim to take his penis into her mouth. Each of these offences are made worse by reason that they involved a significant breach of trust because of the fact that the victim was left in the house by her mother while the offender was present and she was not there. 9. In taking this breach of trust into account, however, I have been careful not to treat this as a situation where the victim was under the offender's authority because that would involve a more serious offence. 10. The offences occurred in the victim's home where she should have been able to feel safe from predatory behaviour like this. While the facts do not disclose the duration of the offences, the facts for count 1 indicate that it only came to an end by the actions of the victim in insisting that she needed to take water up to her sister. 11. The offending was also accompanied by manipulative conduct in the offender telling the victim she was a good girl and not to tell anyone. As I have said, the duration of the offending is not known but in any event, even if the offences were only short in time duration, this is a common aspect of such offences and does not reduce their seriousness. 12. At the time of the count 1 offence the victim was only 8, which is comfortably under the threshold age of 10, which is an element of the offence. At the time of the count 2 offence she was 8 or 9, which is just under the threshold age of 10. However, with both offences, there was a very large age difference of 36 years between the victim and the offender. 13. That age gap is relevant of course because it demonstrates a high degree of exploitation of the victim's youthful naiveté by a mature adult: see the decision in Chamseddine v R [2017] NSWCCA 176. 14. While there was no physical violence or gratuitous cruelty associated with either offence beyond that inherent in them, that is a common feature of this type of offending and it does not mitigate its seriousness. 15. In my opinion the objective seriousness of each of the offences is somewhat similar, which I assess as being just below the mid-range. VICTIM IMPACT STATEMENT 1. It was submitted by the Crown that the offending is aggravated because there has been substantial harm caused. A Victim Impact Statement which was prepared with the assistance of a social worker was admitted into evidence in these proceedings and supported by a statutory declaration from the social worker. The Victim Impact Statement indicates that the offences have affected the victim in a variety of ways. She describes flashbacks and nightmares, sleep problems, panic attacks and fears being around males. The victim says these issues have impacted on her education in that she is often unable to attend school due to anxiety and other issues and that these issues have also impacted adversely on family relationships and that due to these psychological problems she has ended up in hospital. 2. The contents of the Victim Impact Statement are given support by a report from the Westmead Childrens Hospital. That report records that the victim was admitted to that hospital from 8 March until 23 March 2021 due to persistent low mood, poor sleep, poor appetite and poor concentration. It states that the victim had experienced increased distress, worsening mood and emotional exhaustion in the weeks leading up to the sentencing hearing. The report further records that the victim feels a loss of trust towards her mother as well as shame arising from the abuse, such that she has not told her father or brothers about it or about her admission to hospital. A diagnosis of Post Traumatic Stress Disorder was made by the doctors who treated the victim as well as a diagnosis of moderate depressive episode. 3. In addition, the Court has received a report dated 23 March 2021 from Westmead Childrens Hospital social worker, Sarah Wood, who has been providing sexual assault counselling to the victim since August 2020. Ms Woods' report notes that the victim initially presented in April 2020 with high levels of distress which she attributed to the sexual assault offences and that between then and August 2020 she had discontinued any counselling as she found it too distressing. However, on 3 June 2020 she attended the emergency department at Westmead Childrens Hospital due to low mood and increasing suicidal thoughts, for which she was given medication and referred to a mental health service for ongoing treatment. 4. The report of Ms Wood confirms the large number of problems that the victim herself describes, including regular triggering of memories of the offending, resulting in feelings of danger, flashbacks and panic attacks and a sense of "blacking out", that is dissociation, and that these things have led to her sometimes missing class at school. Furthermore, it describes the victim's feelings of disgust and self-hatred and a sense of hopelessness, problems with trusting people, especially males, as well as regular thoughts of suicide. These suicidal thoughts became more intense when the subject of preparing a Victim Impact Statement was raised with the victim. Fortunately, the report indicates that the victim has made some positive progress and has attended appointments consistently and developed an understanding of her symptoms and developed also some emotional regulation skills. 5. In this case, the Crown, as I have noted, has submitted that the Court should find that the offending is aggravated because it has resulted in substantial harm for the purposes of s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999. 6. In R v Tuala [2015] NSWCCA 8 Simpson J noted that, "Victim Impact Statements are, by operation of s 28, of the Crimes (Sentencing Procedure) Act 1999 a "part of the landscape in the sentencing process". At para 64 her Honour said that: "In order to qualify as substantial harm the harm needs to be shown to be greater than ordinarily attaches to an offence of the kind in question. That is because the prescribed maximum penalties already take into account harm of the kind expected". 1. As her Honour also noted at para 79: "Where the Victim Impact Statement tends to be confirmatory of other evidence, either in a trial or in the sentencing proceedings, or where it attests to harm of the kind that might be expected of the offence in question, there is little difficulty with acceptance of its contents". 1. In these current proceedings, it was conceded at para 52 of the offender's submissions that there has been psychological harm to the victim. No objection was taken to the admission of the Victim Impact Statement, the victim impact report or the psychiatric report from Westmead Childrens Hospital. However, it was submitted that I would not be satisfied beyond reasonable doubt that any harm was substantial, given that the Victim Impact Statement is not on oath and is untested. 2. As to the report by the social worker, it was submitted that the weight to be given to this is diminished because her first contact with the victim was almost seven years after the first offence and because the social worker is not in a position to diagnose the various complained of conditions, including flashbacks. 3. The correct approach to the use of the Victim Impact Statement has been considered by the New South Wales Court of Criminal Appeal in a number of cases including R v Tuala, to which I have referred already, R v Nelson [2016] NSWCCA 130, and recently, in Colbert v R [2021] NSWCCA 38. Considerable caution is required before a Victim Impact Statement can be used to establish that substantial harm has been caused. That is particularly so where the facts referred to in the Victim Impact Statement are in issue or where the victim's credibility is in issue or where the Victim Impact Statement is the only evidence of harm or where the harm alleged goes well beyond that which might be expected. 4. In this particular case, the Victim Impact Statement is given considerable support by the reports from the social worker and the psychiatric report. Also this is not a case like in R v Tuala, where I, the sentencing judge, have concerns about the victim's credibility. In my view, the contents of her Victim Impact Statement are significantly supported by the two reports to which I have referred. 5. Also, in my opinion, this is not a case like RP v R [2013] NSWCCA 192 where the asserted impact on the victim went well beyond what might have been expected from the nature of the offending. Rather, it seems to me that the effects experienced by the victim, and observed at least in part by others, are consistent with the presumption that real harm can normally be expected to arise from such offending. 6. Of course, each case will depend on its own unique circumstances and it is probable that some victims will be more adversely affected than others. While I have approached the contents of the Victim Impact Statement with the necessary caution, I am satisfied, based not only on the contents of the statement itself but also on the supporting nature of the reports to which I have referred, that the harm arising from the offences is substantial. 7. In taking this harm to the victim into account, I have taken care to avoid any double-counting. That is necessary, as the Courts have said, because an inherent part of the seriousness of sexual offences arises from the acceptance of the risk of substantial harm that ordinarily arises. In other words, presumed harm provides a basis for the significant maximum penalties for such offences and is also one of the reasons that Courts treat them so seriously. 8. In this case, where the Victim Impact Statement is supported by other material, I am satisfied beyond reasonable doubt that the risk of substantial harm has materialised into real and demonstrable harm that is substantial. SUBJECTIVE MATTERS 1. Turning to subjective matters, the offender's background and current circumstances have been placed before the Court in part by means of a psychiatric report of Dr Christina Matthews. 2. The offender, who was born in the Philippines, reported a childhood surrounded by poverty but a childhood that was nonetheless reasonably happy and did not involve any abuse or neglect. 3. Although the offender reported some suicidal thoughts when first imprisoned, and significant stress in the lead up to his sentencing hearing, he denied any previous diagnosis of psychiatric illnesses. 4. He has some history of high blood pressure but this is managed by medication and he reported no other significant medical issues. 5. Prior to coming to Australia, he was engaged in regular employment in traffic enforcement for a local government authority. Although he has two teenage children from a former relationship in the Philippines he has had no contact with them for a number of years. 6. He confirmed to the psychiatrist that he arrived in Australia about 15 years ago on a tourist visa which he overstayed and that thereafter he worked occasionally as a cleaner but was hesitant to gain long term employment due to his fears of being detected and deported. 7. Although the offender denied experiencing any paedophilic thoughts about the victim or any other child, the psychiatrist found him to be reluctant to discuss details of the offences and concluded that this led to some diagnostic uncertainty as to whether or not a formal diagnosis of paedophilic disorder can be made. Nonetheless, she did conclude that the offender fulfils the criteria for sexual deviance. Ultimately the psychiatrist concluded, based on testing, that the offender falls within the low to moderate risk range for sexual reoffending. 8. The psychiatrist expressed the opinion that the offender probably is currently experiencing an adjustment disorder with anxiety, which appears to be related to his arrest and incarceration. There was no evidence however to suggest that he was experiencing any major mental illness prior to his arrest or that his offending can in any way be attributed to mental health problems. 9. A Sentencing Assessment Report has been placed before the Court which confirms much of the background I have described already. In terms of his attitudes to his offences, the author reports that the offender claimed to have been lonely and to have had feelings that he and the victim had a strong connection. Although he said he was aware his behaviour was inappropriate and that he accepts responsibility for his actions the author of the report says that the offender attributed some blame towards the victim for her role in the offence. Furthermore, the author reports limited insight of the offender as to his offending behaviour and that although he acknowledges having made a mistake he continued to downplay the seriousness of his offences and was dismissive of any physical or mental effect on the victim. 10. The Sentencing Assessment Report ultimately notes nonetheless that the offender is of a below average risk of committing further sexual offences according to actuarial testing performed by the psychology unit of Corrective Services New South Wales. REMORSE AND REHABILITATION 1. The psychiatric report notes that while being interviewed the offender stated that he accepted the charges and was very remorseful for any harm caused and expressed a number of times his desire to apologise to the victim. However, it is difficult to attach much weight to this given that the offender gave no evidence on oath. 2. Furthermore, the suggestion that this is indicative of remorse is contradicted by the contents of the Sentencing Assessment Report which, as I have noted, refers to limited insight and a tendency to downplay the seriousness of the offences and to direct blame towards the victim. 3. In my view therefore there is no real evidence of remorse. 4. Nonetheless, the offender is a 52 year old man who, so far as the Court is aware, has not previously offended, and in those circumstances it seems to me that his prospects of rehabilitation are reasonable. DETERMINATION 1. In determining the appropriate sentence in this matter I have had regard to the principles of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. I am satisfied that the so-called threshold referred to in s 5 of that Act has been passed and that no sentence other than one of full time custody is appropriate. 2. I intend to impose an aggregate sentence given that I have more than one sentence to impose. In those circumstances it is necessary for me to nominate the indicative sentences, that is the sentences that I would have imposed had I not chosen to impose an aggregate sentence. 3. Mr Pineda, the sentences I am about to refer to are what are called indicative sentences, they are not the actual sentence that I will impose. I will make that clear at the end of these remarks. 4. I should also say that I make a finding of special circumstances for adjusting the ordinary ratio between head sentence and non-parole period based upon this being the offender's first period in custody and the fact that he will serve that custody in a somewhat isolated situation given that he has no family with whom he is in contact in Australia and the fact that he is a foreign national. I note of course that the sentence that I am to impose is likely, if not inevitably, to result in the offender being deported, but in accordance with authority I have not taken that into account in my sentencing decision. 5. The indicative sentences, after taking into account the 25% discount, are as follows. For the count 1 offence, and taking into account the matters on the Form 1 document, a head sentence of five years, three months imprisonment with a non-parole period of three years, and for count 2, a head sentence of four years, nine months, with a non-parole period of two years, nine months. 6. As I have said, those are the indicative sentences. 7. I have given consideration to the question of to what extent there should be accumulation between the two sentences and I am satisfied that there is a requirement or a need for there to be some accumulation, given that the offences involved two incidents separated by a period of time. 8. I have had regard also to the principle of totality, that is the importance, given that I am imposing sentence for two offences, to ensure that the overall period of imprisonment is not one that is overwhelming or crushing. 9. Having regard to the various things that I have said, I impose the following aggregate sentence. 10. I impose a head sentence of seven years imprisonment with a non-parole period of four years. Those will date from 8 April 2020, which is when the offender was taken into custody. The head sentence will therefore expire on 7 April 2027 and the non-parole period on 7 April 2024. 11. Mr Interpreter, I might just get your assistance here if you could interpret this: 12. The head sentence that I have imposed is one of seven years imprisonment and there is a non-parole period of four years imprisonment, both to date from 8 April 2020. 13. Can I ask you to interpret that please to Mr Pineda? 14. OFFENDER: Yes, Sir. 15. The non-parole period, as I have said, will expire on 7 April 2024 and it will be on that date that Mr Pineda will be eligible for release on parole, but I note that when he is granted parole it is likely that he will be taken into Immigration custody prior to being deported to the Philippines. 16. INTERPRETER: He understood it. 17. HIS HONOUR: Thank you. ********** 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: 20 March 2024