R v Woods, Jacob [2008] NSWDC 177

New South Wales District Court

CITATION: R v Woods, Jacob [2008] NSWDC 177

HEARING DATE(S): 09/04/08

JUDGMENT DATE: 2 June 2008

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

DECISION: Convicted on all counts. Overall sentence amounts to aprox 6years; overall non parole period amounts to 4 years.

CATCHWORDS: Criminal Law - Sentencing - Sexual intercourse and other offences - prepubescent male victims (x3) - 10 episodes of offending - offending period 2 years - Aboriginal community - assessing mid-range of seriousness - fiarearm ofences - .22 calibre rifle - faulty working condition - unlicenced - strong subjectibve circumstances.

LEGISLATION CITED: Firearms Act 1996

Gladue v The Queen (1999) 1 SCR 688 [80] CASES CITED: R v Rushby (1977) NSWLR 597 R v Hayes [1984] 1 NSWLR 740 R v Cuthbert (1967) 2 NSWR 329

PARTIES: Regina Jacob Woods

FILE NUMBER(S): 07/61/0100

COUNSEL: J Thompson for Offender

SOLICITORS: Mr J. May ODDP Dubbo for Crown

JUDGMENT 1. Most adults have an interest in forming and pursuing sexual attraction to another person or persons. In general this interest is of no great moment to the criminal law. There are at least two crucial exceptions to this proposition; where there is an absence of consent the criminal law regards persistent pursuit of such an interest as anti-social conduct of such a degree that it amounts to criminal behaviour. 2. The second exception relates to children under sixteen and others of equivalent status, who are psycho-sexually immature lacking understanding of sexual options and appreciation of the significance and consequences of sexual relations whether casual or long established. As a child matures and comes to some understanding of the inequality of personal sophistication between himself and the adult, the power imbalance that existed between them, the measure of inappropriateness of sexual contact between them and the self-centred sexual greed and avarice of the adult in taking such advantage of the child, whatever pleasure that child may initially have taken from the experience can and should turn to resentment, outrage and a justified feeling of sexual exploitation and defilement. Equally, the criminal law regards the sexual exploitation of children and vulnerable adults as abhorrent anti-social behaviour of a high order. 3. There is little doubt that Jacob Charles Woods long before 16 January realised the abhorrent anti-social nature of his sexual relations with three of Bourke's young Aboriginal boys; NB born 1995, DG born 1996 and ME born 1998. By January 5 2007 police were aware he had been showing pornographic videos to young Aboriginal boys and suspected him of having indecent dealings with NB. Police searched his premises. Items of interest to them were a .22 calibre rifle, ammunition and pornographic videocassettes. Police found material confirming their interests in these items was well founded. 4. They also found a suicide note. Among its contents was recognition by Woods that he required help, needed counselling services and expression of remorse, "for doing it". A suicide attempt shortly before the search had failed because of a mechanical fault in the rifle. There is a world of difference between ending one's life on account of depression caused by one's anti­social behaviour, and accepting accountability to the community for one's criminal conduct constituted by that behaviour. The first is conduct of a beaten man. The second is conduct of a man who accepts that there still may be feats to achieve. Sometimes that second course is by far and away the more courageous course. 5. Upon his arrest, Jacob Woods, began to accept accountability for his criminal conduct. He is to be sentenced for twenty-one offences, which I shall identify shortly to which he has pleaded guilty. 6. As a sentencing judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentences for these offences before this Court committed by this offender harming these young victims in the Bourke community, Gladue v The Queen [1999] 1SCR 688 [80]. 7. My initial task requires an assessment of the objective criminality of the offences before the Court. I will also need to have regard to matters personal to this offender, subjective matters. The starting point for such assessments requires a sentencing judge to make findings of fact from the evidence before the Court relating to the offences and to the offender. 8. My fact finding task has been somewhat circumscribed in that the parties have tendered an agreed set of facts, to which I shall shortly return. It is sufficient at this point that I remind the Court the judge is not a party to the agreed set of facts. The tender of the agreed facts does not relieve him or her from his fact finding responsibility. It simply limits the material from which the facts may be found. To the extent, if it be the case, that the facts as agreed do not reflect the actual events that occurred it must be remembered the Court can only find the facts from the evidence placed before it. 9. The offender's rehabilitation prospects will have to be assessed even if looking through a glass darkly. Before any sentence can be made there are likely to be technical questions relating to deterrence, discounts, whether special circumstances are to be found, totality of sentence, Form 1 matters, back up charges brought from the Local Court to be finalised in this Court, whether any of these offences attract a standard non-parole period, the length of the parole periods and finally of course the ultimate overall length of term of imprisonment to be imposed. None of these can be commenced until the primary facts are determined. What weight needs to be given to all of these matters against the imperative that all sentencing should have as its primary focus, the protection of the community will also need to be determined see R v Cuthbert [1967] 2 NSWR 329, R v Rushby [1977] NSWLR 597, R v Hayes [1984] 1 NSWLR 740. Charges 10. Sexual intercourse (fellatio) with child under ten years (x4) contrary to s 66A Crimes Act . Sexual intercourse (fellatio) with child between ten and under fourteen that is aged ten and under fourteen (x7). Attempt sexual intercourse (anal penetration) with child between the age of ten and fourteen (x2). Possess unauthorised firing arm (x1) (contrary to s 7A(1) of the Firearms Act 1966). There are two further matters to be taken into account on a Form 1, namely intimidating a neighbour on 6 January 2007 with intention of causing him to fear physical harm, and resisting police officer in the execution of his duty. There are also seven offences to be dealt with pursuant to s 166 Criminal Procedure Act ; four relate to indecent acts committed in the course of dealing with ME; one relates to a private exhibition of an R18+ film to a minor; one relates to possess unregistered firearm; and one to fail to ensure safe keeping of a firearm. I think that all adds up to twenty-one. Facts 11. These offences came to light through a detailed electronic interview conducted between police and the offender. Initially Woods had come to the attention of police in circumstances earlier referred to. He nominated his three victims to police. Police sought to interview by audio\visual means each of the boys nominated by Woods. Clearly the boys were too young to fully comprehend that their relationship with the offender was damaging to them. They were unwilling to disclose to police the real dimensions of the relationship, confused or unaware that they were not to blame and indeed were the victims. The youngsters were clearly uncomfortable and probably scared in the presence of police and with the topics being pursued. Their interviews must have been painful for them and difficult for the police. Reading the interviews one could not help but worry whether the interview process was contributing any damage to the boys. 12. Insensitively and also mistakenly the transcripts of each interview's cover sheets carried the letters ERISP of the relevant child. The letters "SP" in ERISP stand for "Suspected Person". 13. It is inappropriate and unfortunate that those interviews should have been so described. One imagines and feels that the children may well have felt like suspected persons. Again I stress they were the victims. 14. The offences are scattered through a two-year period that appears to begin sometime after 6 February 2005 and ends sometime before 16 January 2007. Woods leased a two bedroom unit opposite the Bourke Police Station on 7 February 2005. T0hat lease terminated on 28 October 2005. During this period he committed three offences against NB to which I shall return. After 28 October 2005 Woods moved to Moree to be close to his then girlfriend, RK. He was twenty-three years old. He would return to Bourke to visit every couple of weekends or so. On 12 April 2006 Woods successfully sought the position of Aboriginal Community Liaison Officer (ACLO) with the Department of Education & Training in Bourke. On 5 June 2006 he was appointed. The position was administrative in nature; his office was not located on any school campus. Employment in the position saw him residing permanently in Bourke from late May 2006 until his arrest on 22 January 2007. 15. During the second period of residence he committed further indictable offences involving three victims, and an indictable firearm offence. As best I can calculate there were ten discreet occasions on which he offended, sometimes offending against two victims and sometimes more than two criminal charges arising from an occasion. 16. The offences, as best I can determine, appear to occur in this order; sequence number 23 an offence of oral sexual intercourse with child under ten years, namely NB. The agreed details are that between 6 February 2005 and 29 April 2005 the accused stated he was at his home in Richards Street, Bourke. He stated that the victim had come to visit him. He was watching a pornographic video when the victim started talking to the accused about the video and in particular, "sizes" on the movie. The accused stated that the victim said something about his being bigger. And the accused said, "No, it's not". The victim said, "Why don't I stick it in your mouth?" The accused said, "I bet you don't." The victim then placed his penis into the accused's mouth. The accused then performed oral sex upon the young boy. At that stage the boy was under ten. 17. The offence next occurring is offence sequence number 7, again an offence of oral sexual intercourse against NB. Between 28 April 2005 and 29 October 2005 the accused stated he was at his home in 2/24 Richards Street, Bourke. The accused stated the victim had come to visit him, "some long time later", after the offence just mentioned. The accused stated that he had oral sex with the victim by placing his penis into the victim's mouth. The accused cannot recall if he ejaculated or not. 18. The next offence, as best I can tell, is sequence 8 attempted sexual intercourse (anal) with child, NB, between ten years and fourteen years. Between 28 April and 29 October 2005 the accused admitted to attempting anal intercourse with the victim. The accused stated he was at home in Richards Street, Bourke with the victim. They commenced to fondle each other's penises. The accused then stated that the victim was on the lounge room floor on his knees and elbows. The accused stated that he placed himself on his knees behind the victim, put spit on his hand and rubbed the spit onto his penis. The accused then attempted to place his penis into the anus of the victim. The complainant said that it hurt him, the accused ceased trying to place his penis into the anus of the victim. 19. Next in sequence are sequences 1 and 22; between 20 May 2006 and 16 January 2007 the offender stated that he was at his home in Church Street, Bourke. The victim, NB, came to visit him. He placed a pornographic video for them to watch in order to gain sexual arousal. The offender had oral sex with NB by placing his mouth over the victim's penis. The victim then went on to give the offender oral sex by placing his young mouth over the offender's adult penis. The offender cannot recall if he ejaculated or not. 20. The next offence would appear to be sequence 2 between 20 May 2006 and 16 January 2007. The offender admitted to attempting anal intercourse with NB. The offender stated that he was at his home in Church Street, Bourke when the complainant called by. The two commenced to fondle each other's penises. The offender claimed that the young child was on the lounge floor on his knees and elbows. The offender then placed himself on his knees behind the young complainant, put spit on his hands, which he rubbed onto his penis. The offender stated that he sought to place his penis into the anus of the child. The child said it hurt, the offender ceased trying to place his penis into the victim's anus. 21. The next offences are sequence 17 and 24 these are the first offences that involve the young person ME who was then under ten years of age. Between 20 May 2006 and 1 September 2006 the offender was at Church Street, Bourke lying on the lounge under a blanket. Young ME came and lay with the accused under the blanket. The offender started touching the child around his belly area before moving his hand downwards. He told the young child to let him know if he wanted him to stop. The offender then touched the victim's penis. That progressed to oral sex whereby the offender placed his mouth over the young child's penis. The young ME spent the night at the offender's premises sleeping on the floor, while the offender slept on the lounge. 22. The offence next in time would appear to be sequence 18 again with the young person ME. Between June 1, 2006 and 1 September 2006 the offender was at Church Street, Bourke. He indicated that other children were also at his home but they were outside leaving he and ME alone. The offender stated that the victim, "Wanted to do it then". The offender stated that ME said, "Give us a suck". To which the offender replied, "No, not now later". All the other boys later went to sleep and the offender and young ME were alone in the lounge room. The offender stated that ME pulled his penis out and said, "Now". And the offender responded by performing oral sex, by placing his mouth over the young child's penis. 23. The offences next are sequence 3 and 4 these are offences of oral intercourse again with ME and oral intercourse DG. Between 1 September 2006 and 13 November 2006 the offender stated that he had oral sex with both victims, both were at his home and it was nighttime. Other boys were also at the home. They were, however, asleep. The offender said that both young boys began mucking around with each other in that they were fondling each other penises. He then commenced to masturbate his own. The offender then stated that he placed his mouth over the penis of ME for a couple of minutes. He then stated that the put his mouth over the penis of DG for a couple of minutes. He then witnessed both boys give each other oral sex. He stated he then masturbated his own penis and feel asleep. On that particular night he had been drinking alcohol. 24. The offences that next appear to have occurred are sequence 9 and 10 and these are offences involving young NB. Between 30 November 2006 and 5 January 2007 the offender stated he was at his home in Church Street, Bourke. NB had come to visit. The offender then placed a pornographic video on to watch in order to gain sexual arousal. He had oral sex with NB by placing his mouth over the young boy's penis. The offender went on to state that NB also gave him oral sex by fellating him. The offender cannot recall if he ejaculated or not. Young DG was present during these acts and that boy was masturbating. The offender is unsure whether he suggested to DG that he should masturbate. 25. To complete the review of the sexual offending of the two-month period between 1 September 2006 and 30 November 2006 the sequences of offences are 11, 13 and 26. They are acts of indecency with a child under sixteen, aggravated indecent assault of a child under sixteen and aggravated indecent assault on a child under ten. The victims were DG for two of those offences and ME for one of them. Between 1 September 2006 and 30 November 2006 both DG and ME were at the offender's home in Church Street, Bourke. It was nighttime. Other boys were also present but they were asleep. Both the young complainants began mucking around with each other in that they were fondling each other's penis. The offender then commenced to masturbate his own penis. He allowed DG to masturbate his adult penis. He then masturbated the penises of both young victims. It was after that had occurred that the sequence offences 3 and 4 were committed. 26. While it is difficult to untangle the occasions from the charges it would appear that there were nine or ten occasions when there were sexual offending taking place over a two year period. 27. There are other offences that I am dealing with. Sequence 19 was the private exhibition of a RX18+ film or a R18+ film in the presence of minors. The offender stated that he would view pornographic videos for his own sexual gratification and often young males would be present or would arrive at the offender's home while he was watching the pornographic videos. 28. Some of the facts that I have recounted indicated that the videos did not come on, on occasions until after the young persons had arrived. The offender admitted to watching pornographic videos at the time or shortly before the above sexual assaults occurred. He watched pornographic videos for his own sexual arousal. Police have obtained information by interviewing a number of young males as young eight in relation to watching pornographic videos with the offender in his premises. A number of pornographic videos were seized during the execution of a search warrant. 29. Then the next offences that need to be recounted as part of the offending conduct are sequence 20, 21 and 25. At 11.30am on Tuesday 16 January 2007 police interviewed NB then aged eleven. NB knew the offender had a gun, that he kept it in a cupboard or underneath the bed, that it was a point 22 calibre rifle and that he had both seen it and used it. NB claimed that he had "a shot out of it" when he went roo shooting with the offender and a number of other minors some three weeks prior to the interview. 30. Before commencing the execution of the search warrant on Church Street, Bourke, the offender was formally cautioned and questioned briefly about the firearm the police were looking for. The offender answered police questions, which were recorded on a video. He said there had been a .22 calibre rifle at the house but it was not there now; it belonged to him; it was not registered and he didn't have a firearms licence. He also told police that it didn't shoot properly and that he had "just dumped it" with some other rubbish on or about the preceding Sunday at the local tip. 31. During the execution of the search warrant police were searching the offender's car. The offender told police the rifle was actually in the boot of the vehicle. Police opened the boot and found only a rifle case and some live and spent ammunition. The offender claimed the firearm had been in the boot that morning and he had no idea where it was. He later said a number of minors knew where the weapon had been 32. At 9.55pm on 16 January police observed the offender walking towards the police station at Bourke carrying a rifle. Police, not surprisingly, became alarmed and confronted the offender at the front door of the police station. He surrendered the firearm without incident. I am satisfied it was always his intention so to do. The firearm is a .22 calibre rifle, manufactured in Germany, with a serial number on it and "Tasco" brand sites fitted to the weapon. 33. In the record of interview conducted on 19 January at Orange Police Station, the offender gave another version of the firearm, (Q & A 562-584). He said that he knew that "one of the boys took it" out of the car and that "they told him" that "they" had it at the time police entered the front of the house. He said the rifle was not in the boot of the car; "it was actually sitting on the back seats" and that one of the minors just reached in and grabbed it through an open window. The accused goes on to say that the boy who took the rifle "possibly" also took twenty rounds of ammunition, but these had been subsequently returned to the house, but he could almost guarantee that they were probably not there any more. An Overview of Offending Conduct 34. An overview of the offending discloses that NB was a victim dating from early 2005 through to the end of 2006. There were four occasions when the offender sucked the young boy's penis, two occasions when the young boy fellated the twenty-four year old and two occasions when the offender tried to penetrate the boy's anus. All offending against NB constituted indictable charges. 35. There were three indictable offences committed against ME, all constituted oral sex upon him. ME was also subjected to acts of indecency towards him and aggravated indecent assaults on a total of four occasions. This latter group of offences before me are not indictable matters but matters usually dealt with in the Local Court, being in my Court pursuant to powers given to the Crown pursuant to s 166 of the Crimes (Sentencing Procedure) Act 1999. 36. There were two indictable offences committed against DG, both oral sex upon him. There were also two aggravated indecent assaults against DG, that are Local Court charges being dealt with in this Court. 37. The two matters on the Form One concern a neighbour of the offender. Very late on Saturday night, 6 January 2007 the neighbour was watering his lawn. Numerous bottles and iron bars were thrown from the offender's residence on to the neighbour's roof. The neighbour saw a number of young boys running into the offender's premises. Not surprisingly he called upon the young boys to stop throwing the items. Instead of supporting the neighbour, as would have seemed logical, the offender became aggressive towards his neighbour. He commenced to threaten the neighbour with violence. The abuse continued well past midnight. Police were called two times. By the second time the offender appears to have lost the plot entirely. Police arrested him and as they walked him to the paddy wagon the offender's aggression shifted towards the police. He resisted arrest, was handcuffed and appears thereafter to have gone quietly with the police. 38. It is difficult to reconcile his behaviour in front of the young persons who were then at his home with the position in the Bourke Community as the ALCO with the Department of Education and Training. What lesson were these young boys to take from that bullying, violent and irrational behaviour. Need for Parental Vigilance 39. The facts disclose these young boys of very tender years were apparently permitted by their parents to stay overnight at the offender's residence. The level of contact that the offender had with the boys' parents is not before me. The level of knowledge of the offender by the parents is not before me. But this case again illustrates the importance of parents being highly vigilant about the sexual safety of their children. That vigilance can take many forms including warning the child, and investigating with appropriate inquiries the background and behaviour of the adult male disclosing an interest in children that includes long periods, including periods overnight, alone with the child. 40. It was the arrest for conduct towards his neighbour in irrational support of the young children that I suspect caused the police to have concerns about the offender. 41. At the completion of the search warrant the accused was released from custody, pending further inquiries. Among the items found by police was a handwritten suicide note. It was in the following terms: "Dear All, I am sorry. Tell my family I love them and I will look over them".