Regina v BR [2009] NSWDC 116

New South Wales District Court

CITATION: Regina v BR [2009] NSWDC 116

JUDGMENT DATE: 8 April 2009

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ

DECISION: Overall sentence of 18 years with non-parole period of 13 years.

CATCHWORDS: CRIMINAL LAW - sentence - child sexual assault - victims part of offender's family - letter of apology - psychological report - protective custody - victim impact statement -matters relevant to objective seriousness

LEGISLATION CITED: Crimes Act 1900 s66A Crimes (Sentencing Procedure) Act 1999

Regina v AJP (2004) 150 A Crim R 575 Regina v Davis [1999] NSWCCA 15 CASES CITED: Regina v Dent (unreported NSWCCA 14 March 1991) Regina v Hibberd [2009] NSWCCA 20 Regina v Skinner (1993) 72 A Crim R 151

PARTIES: R BR

FILE NUMBER(S): 2008/12667

COUNSEL: Mr Hancock (def)

SOLICITORS: Ms Gray (NSW DPP)

JUDGMENT

1. I have the task now of sentencing BR for a series of shocking and appalling sexual offences committed against young children. The young children were part of his family. One of the children was in fact his own son. 2. The place to start is to briefly tell the court what BR did to bring about the charges that I am sentencing him for. In about 2002 BR commenced a relationship with a woman whom I will refer to as KJ. I refer to her by initials only because of the law that provides that the victims of sexual offences should not be identified. KJ, when they commenced their relationship, already had four children. One was a girl, LH; she is now aged eleven. The other three were boys, DH now ten, LH now nine and RJS now six. During their relationship a child was born to them both; he is BRJ and is now three. During their relationship BR and KJ lived at various places around Sydney. The offences were committed by BR against all of the children that I have referred to. 3. Exhibit A contains a summary of what happened which is agreed between the prosecution and the defence. The first offence occurred in the first half of 2006. The victim was LH. She was eight or nine at the time. Her mother KJ was either at work or asleep. What BR did to eight or nine year old LH was to remove the clothing from the lower part of her body and then proceed to have sexual intercourse with her. That sexual intercourse was full penile vaginal intercourse. Next were two more offences committed by BR against LH. The first of those occurred in January 2006. KJ's half brother, a person I will refer to as WH, visited BR's home. BR asked WH what he would do if the girl LH sucked him off. BR then directed LH, still aged eight or nine, to suck his penis which she proceeded to do. About two or three months later WH again visited the family. BR showed all of the children in the house a pornographic film and they masturbated. BR once again had LH suck his penis. On both occasions this was done in the presence of KJ's half brother, WH. 4. The events that I have referred to resulted in three charges. The penile vaginal sexual intercourse with LH - which I said occurred in the first half of 2006 but I should correct to say sometime in the eighteen months between 1 January 2006 and 29 June 2007 - resulted in a charge of sexual intercourse with a child aged under ten. That is an offence against s 66A of the Crimes Act 1900. Parliament has fixed a maximum sentence of twenty-five years imprisonment to that offence. Not only that, Parliament regards it as so serious that in addition it has fixed a standard non-parole period of fifteen years to that offence. The two other events which I have described where LH sucked BR's penis also resulted in charges under s 66A of the Crimes Act. 5. I am sentencing BR for the offence of having penile vaginal intercourse with LH. That offence I will refer to as count 5 because it appears as count 5 on the indictment. When I am sentencing him for count 5 I will take into account the other two matters involving the sucking of BR's penis under s 32 of the Crimes (Sentencing Procedure) Act 1999. Those two charges appear on a form 1 under that Act which has been signed by BR and by me. 6. Next there were a series of crimes committed on the same occasion. They all occurred at some stage between 1 July and 27 September 2007. What happened is that BR took LH, then aged ten, into the bedroom which he shared with her mother. Once again her mother was evidently not around at the time. BR had LH remove her pants and spread her legs. Once again he had penile vaginal intercourse with LH and also had her suck his penis. LH's younger brothers came into the bedroom. BR pointed out to them where a man puts his penis, then he directed RJS, who was aged five at the time, to touch his sister's vagina. 7. That activity resulted in four charges. Two of them I am sentencing BR for and two of them I will take into account when I am sentencing BR for the first two charges. 8. The first charge was laid under s 61O(2) of the Crimes Act. That was a charge of inciting a child under ten to commit an act of indecency in circumstances of aggravation. The circumstances of aggravation were that the child was under the authority of the offender. That case involved BR making RJS touch his sister LH's vagina. That crime carries a maximum of seven years imprisonment. When I am sentencing him for that crime I am taking into account a further offence, that offence is under s 61O(1). That offence is inciting a child aged under sixteen to commit an act of indecency in circumstances of aggravation. That offence relates to LH. It is the same circumstances, namely the younger child touching her vagina, but that offence is concerned with LH's role in her vagina being touched by her younger brother. That offence is on a form 1 and, as I said, I will take it into account when I am sentencing BR for the offence I first referred to, which is called count 2. The form 1 I have has been signed by BR and by the prosecutor and by me. 9. When BR on the occasion in the bedroom that I have been describing put his penis into LH's vagina, that resulted in a charge of sexual intercourse with a child aged between ten and fourteen, which is an offence against s 66C(2) of the Crimes Act. That has a maximum of twenty years imprisonment attached to it by Parliament. When I am sentencing BR for that offence - which is called count 3 because of its place on the indictment - I will take into account his crime of having LH suck his penis at around the same time. That also resulted in a charge of having sexual intercourse with a child aged between ten and fourteen against s 66C(2) of the Crimes Act. Once again that offence has been put onto a form 1 under the Crimes (Sentencing Procedure) Act, which has been signed by the prosecutor and BR and by me. 10. That does not exhaust a description of BR's depraved behaviour. On 27 September 2007, BR collected all of the children, except his own son BRJ who was only two at the time, from school. He took them back home. When they all got home this is what happened. The children got their shoes and hats off at the front door and started to move in towards their bedrooms. But BR got in front of them in the hallway. He blocked the hallway and pulled down his shorts. What was exposed was his erect penis. He said to each of the children that they had to "suck to pass". He demanded that each child suck his penis before they could go into their bedrooms. 11. Each child complied with his demand. Even his son - the two year old boy - complied, having been told by BR that it "was just a sausage". That depraved activity on BR's part resulted in five charges, one in respect of each of child. Each charge was one involving sexual intercourse because the act of sucking a man's penis is an act of sexual intercourse under the Crimes Act. 12. The offence he committed involving LH resulted in a charge under s 66C(2) of the Crimes Act because she was aged ten at the time. As I have already said that carries a maximum of twenty years imprisonment. Because the other four children were all under ten each of the acts of fellatio which BR had them perform on him resulted in a charge of sexual intercourse with a child aged under ten against s 66A of the Crimes Act. Once again as I have said, each of those offences carried a maximum of twenty-five years imprisonment and a standard non-parole period of fifteen years imprisonment. 13. The eldest child LH complained to her aunt on the day that these last events occurred. Her mother was also told. Police were brought in and they started an investigation. BR was arrested the following morning on 28 September 2007 and was charged on 18 December 2007. He has been in custody since 18 December 2007, bail refused. 14. I will refer now to some factors which are personal to BR. He has a criminal record but compared to the crimes that I am sentencing him for it is fairly insignificant. He has been convicted of goods in custody, carrying a cutting weapon and carrying implements to break into a car and swearing near a school. 15. He has written a letter of apology, which has been tendered by Mr Hancock who appears on his behalf and became exhibit 1. It is addressed to me and expresses his sincere apologies to the victims and the families for what he describes as the severe trauma which he has imposed upon them. He finds it hard to contemplate how it occurred. He does point out that as a child he was exposed to the same trauma but acknowledges that does not excuse his behaviour. He acknowledges that that the lives of his victims have changed forever. 16. Mr Hancock also tendered a detailed psychological report on BR; it was by Misia Temler and was dated 2 April 2009. That report pointed out that BR had had a fairly stable upbringing so far as his own family was concerned. He was visited regularly in custody by his mother and sisters and his family remains supportive. He has had steady employment over the years in a number of jobs. He has no issue about alcohol or drug use. Significantly, the psychologist noted that BR has a history of recurring sexual abuse over about a year by an elderly man when he, BR, was about eleven. 17. The psychologist noted that BR appeared to be ashamed and embarrassed by his actions. She said he relayed remorse and regret "but his insight into the harm done to the victims was shallow and lacking". She said that he had great difficulty in explaining why he was sorry and why his behaviour had been wrong. She performed various tests on BR which not surprisingly showed that he had some depression and a low IQ. 18. The psychologist made an attempt to assess the risk of BR re-offending. She thought that was in the medium to low range based upon certain static factors but acknowledged that that did not take into account what she described as the dynamic risk factors. She did at the same time think that those dynamic risk factors suggest that he was amenable to change and would probably benefit from treatment. She recommended that he would be assisted by a sexual offender group therapy program and recommended that he be referred to CUBIT, which is a program offered by the Department of Corrective Services. 19. I take into account as well that BR will have to serve probably all of the sentence which I impose upon him in protective custody. He has been in protective custody since being imprisoned and is, I am satisfied, likely to remain so for the rest of his time in gaol. 20. Each of the victims of BR's reprehensible behaviour provided a victim impact statement. Some of them were assisted by their mother because of their young age. 21. RJS, his mother noted since the offence, has become more violent and has had many suspensions and detentions and fights at school. He has used a knife. He himself is quoted as saying that he is very angry and sad about what happened to him. He has had to move schools. 22. There is a child whom I may have referred to as LH; he is a male and presently aged nine. He is not the same person as the girl also referred to as LH who is presently aged eleven. The boy LH also provided a victim impact statement. His mother pointed out that he appears very confused about his own sexuality as a result of the offences. He has changed his appearance as a result and has developed certain problems in sleeping. He himself described himself as being sad about what happened and having changed a lot and suffering from nightmares. He also noted that he has had to change schools. 23. DH is the boy now aged ten. He described himself as being really scared and unsure what was going on when BR was committing these offences. He thought he was like a proper father until it started happening. He said he has changed a lot. People found out at school and he has had to change schools. This has resulted in a disruption to his life. He has nightmares, he feels like there is evil in his room. He feels faint and sick when he gets pictures in his mind about what BR did to him. He gets startled when he is touched by people unexpectedly. 24. I am sorry, the one that I have just read out is by LH, the girl who is now eleven. I will now read out the relevant parts of DH, the ten year old boy. He said that what occurred to him affected his learning and he no longer reads as fast as he used to do. He said he is no longer as outgoing as he used to be, his mother observed that he seemed to have lost his spark. 25. The three year old boy's victim impact statement was provided by his mother. She observed that what occurred had a huge impact upon the boy. She said his GP had noticed that his behaviour had regressed to being more like a two year old than a three year old. He had nightmares and would wake up screaming. He would kick his mother whilst sleeping in the bed and throw himself around yelling out "No, no, no" in his sleep. As it happens he was very close to his own father, the offender. The boy will not try new foods that the offender did not feed him. 26. There are some legal principles which I need to refer to in approaching these sentences. The Court of Criminal Appeal pointed out in Regina v Fisher (1989) 40 A Crim R 442 at 445 that "heavy custodial sentences are essential if the courts are to play their proper role in protecting young people from sexual attacks by adults". In Regina v Dent (unreported NSWCCA 14 March 1991) the court said that children are "...entitled to grow up free from defilement by sexual predators and free from risk of psychological upset, confusion and difficulties in later life, caused by such conduct". 27. I pause to observe that the victim impact statements clearly point to psychological upset and confusion and difficulty so far in the lives of the victims. I say at the same time that those very serious consequences are not surprisingly to be expected from offences such as these and would have been taken into account by Parliament in fixing the maximum sentence. To say that I do not find -and I do not - that the injury, emotional harm, loss or damage in each case was substantial in accordance with s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 is not to diminish the impact which these offences have had on each of the victims. 28. The standard non-parole period of fifteen years fixed by Parliament to the sexual intercourse offences against a person under ten are for offences in the middle range of objective seriousness following a trial which in turn resulted in a plea of not guilty. Nevertheless the standard non-parole period remains as a reference point after a plea of guilty. 29. I should have added when noting BR's personal information that he is now aged thirty one and pleaded guilty to all of the offences that I am sentencing him for. Some of the offences he pleaded guilty to at the earliest available opportunity. Others are acknowledged by Ms Gray, who appears for the prosecution, as being early pleas although not in the category of the earliest stages of pleading. 30. Returning to the legal principles which I need to take into account, in Regina v Davis [1999] NSWCCA 15 Wood CJ at CL, said on behalf of the court at [66] that "penile/vaginal penetration of a child is significantly more serious than many of the other forms of conduct encompassed within s 66A." It is also acknowledged as a rule, subject to the facts of each case, that fellatio is regarded as a lesser standard of criminal behaviour than anal or vaginal penetration. At the same time the authorities acknowledge that forced fellatio can nevertheless fall within the middle of the range of objective seriousness. Authority for that proposition is contained in Regina v Hibberd [2009] NSWCCA 20 at [10] where Tobias JA referred to the remarks of Simpson J in Regina v AJP (2004) 150 A Crim R 575. Simpson J in the same case said that the kinds of factors which are taken into account in assessing the objective seriousness of a s 66A offence include how the offences took place, over what period of time and with what degree of force or coercion, any use of threats or pressure and any immediately apparent effect on the victim. 31. Another factor which I need to take into account is that one of the offences, as I said, involved BR having his two year old biological son suck his penis. In Regina v Skinner (1993) 72 A Crim R 151 the Acting Chief Justice, Kirby J, as his Honour then was, said at 155: " A number of the offences were committed against the respondent's own natural child. In saying this, I do not mean to indicate that offences against the children of others were less serious. However, there is an inevitable element of repulsion and special shock when it appears that a person has committed such an offence against his own child ." 32. I turn now to what I must do, that is to assess the objective seriousness of the offences that I am sentencing BR for. That involves an assessment of just how serious each of the offences is compared generally to offences of that type. The offence referred to as count 2 which is where BR incited RJS to touch his sister's vagina was aggravated by being in the presence of a child and committed in the victim's own home. The child of course was LH and the victim RJS lived in the home where the offence occurred. Those are both aggravating factors under s 21A(2)(ea) and (b) respectively. The crime already takes into account as an element of the offence that it was committed under authority. The maximum as I said is seven years imprisonment. Because of the aggravating features of being in the presence of a child and in the victim's own home I regard that offence as being in the middle of the range of objective seriousness. 33. The offence which occurred on the same occasion where BR had penile/vaginal intercourse with LH was also committed in her home and in the presence of other children. That carries a maximum of twenty years imprisonment. I regard that too as falling within the middle of the range of objective seriousness but towards the lower end of that range. 34. The offence which occurred in the corridor on 27 September 2007 against LH aged ten also carried a maximum of twenty years. It was forced fellatio committed in the presence of other children and in the victim's home. I regard that too as falling within the middle of the range of objective seriousness but towards the lower end of that range. 35. Counts 7, 8 and 9 were the crimes of enforced fellatio committed in the hallway against DM aged nine, LH aged seven and RJS aged five. I should add - just before I speak further about those offences - that in relation to count 6, the sexual intercourse in the corridor with LH, I also take into account that she was the youngest age that a victim of that crime could be. Returning to counts 7, 8 and 9, Mr Hancock argues that I need to take into account that each of those offences was serious but of very short duration, momentary as he said. He argued that the section encompasses or contemplates far more serious behaviour than the momentary fellatio which was the subject of those counts. There was no physical injury involved nor any threats, pressure, force or coercion apart from the offender not letting them pass until they complied with his request. The ages of the victims were nine, seven and five respectively. Mr Hancock argued that those offences were all below the middle of the range of objective seriousness and I accept that submission. They all in my opinion, fall just below the middle of the range. 36. Count 10, which is the same fellatio committed in the corridor by the two year old natural son of BR, falls in my opinion into a different category, because of the aggravating feature that BR was the biological father of the victim in that case and because of the fact that it was a gross abuse of trust and committed in the victim's home as well as in the presence of other children. I regard that case as being within the middle of the range of objective seriousness for such crimes. 37. Finally count 5 is the sexual intercourse committed against LH aged eight or nine which was full penile/vaginal intercourse. It was committed against her in abuse of a position of trust whilst she was under BR's authority and committed in her own home. It is in my opinion, because of the nature of the intercourse and the circumstances of aggravation, within the middle of the range of objective seriousness. 38. I now need to fix appropriate sentences for these crimes, having assessed where each lies in the range of objective seriousness. As Mr Hancock correctly points out, this involves fixing a penalty for each offence, considering matters of accumulation or concurrence and importantly the matter of totality. That is, whether the overall sentence reflects the overall criminality of BR's behaviour. 39. I start with counts 7, 8 and 9, the sexual intercourse offences committed against DM, LH - the boy LH - and RJS in the corridor at home. As I said, I accept Mr Hancock's submission that they are below the middle of the range of objective seriousness. Although the maximum is twenty-five years imprisonment for each of those offences, I regard an appropriate sentence for each of those as seven years imprisonment. BR has pleaded guilty to each of those crimes. Although there is some difference between the times at which he pleaded guilty to different offences, I propose to err in his favour. I propose to, because of his plea of guilty, discount that sentence by twenty-five per cent. I will round that off to two years, so that the sentence that I propose to fix for each of counts 7, 8 and 9 will be five years imprisonment. I should say that I take into account in looking at the seven years as an appropriate sentence before the discount, his limited amount of remorse and the fact that he will serve his sentence on protection. 40. I turn now to count 2. I regard an appropriate sentence for count 2 as four years. That also takes into account the limited remorse and serving a sentence on protection. I will discount that by twenty-five per cent because BR has pleaded guilty. As a result I regard an appropriate sentence for count 2 as three years imprisonment. 41. I turn now to count 6. That carries a maximum of twenty years imprisonment. I regard an appropriate sentence as eight years, taking into account the limited remorse and the fact that he will serve the sentence in protection. I discount that by twenty-five per cent and I will fix the sentence for that count as six years imprisonment. I should have added, in respect of count 2, that I also took into account the offence on the form 1, again s 61O(1) of the Crimes Act. 42. Turning to count 3, taking into account the offence on the form 1 which involved fellatio and was count 4, I regard an appropriate sentence as nine years imprisonment. I propose to reduce that by two years, to reflect BR's plea of guilty. The sentence for count 3 will be seven years imprisonment. 43. Count 5 carries a maximum of twenty-five years imprisonment and a standard non parole period of fifteen years. I take into account counts 11 and 12, both acts of fellatio in company, which were themselves offences against s 66A of the Crimes Act. I need to take into account there as a guide or a reference point, the standard non parole period. I regarded that offence as within the middle of the range of objective seriousness. One starting point would be sixteen years imprisonment. However because of his limited contrition and the fact that he will serve that time in protection, I would reduce the overall sentence to ten years imprisonment. I would in turn discount that by some twenty per cent to eight years imprisonment. Hence the penalty for count 5 will be eight years imprisonment. 44. Finally is count 10, involving the two year old BRJ. That too is an offence against s 66A and I need to take into account the fact that a standard non-parole period has been fixed. Again I would start with a nominal sentence of sixteen years imprisonment. Because of the significant aggravating features in that offence, I would regard the discount to ten years which I allowed in count 5 as too much and would regard an appropriate sentence as twelve years. Once again I take into account BR's plea of guilty and I reduce that by twenty-five per cent, namely three years and I regard an appropriate sentence for count 10 as nine years imprisonment. 45. I am going to sentence you now BR, if you would stand up. Obviously Ms Gray and Mr Hancock if you would follow the figures and we will check at the end that they work out. 46. For the offence committed against the boy DM aged nine against s 66A of the Crimes Act, being count seven, I sentence you to five years imprisonment to commence on 18 December 2007 and to expire on 17 December 2012. Because of other sentences which I propose to impose there will be no non-parole period. 47. In respect of count eight, where you had forced fellatio with the boy LH against s 66A of the Crimes Act, I sentence you to five years imprisonment to commence on 18 June 2008 and to conclude on 17 June 2013. For the same reason there will be no non-parole period. 48. For count nine, the forced fellatio against the boy RJS against s 66A of the Crimes Act, I sentence you to five years imprisonment to commence on 18 December 2008 and to expire on 17 December 2013. Once again there will be no non-parole period for the same reason. 49. For count two, which is the inciting of RJS to touch his sister's vagina, an offence against s 61O(2), I sentence you to three years imprisonment to commence on 18 March 2009 and to expire on 17 March 2012. There is no non-parole period for the same reason. 50. In respect of count six which is the forced fellatio with the girl LH in the corridor against s 66C(2) of the Crimes Act I sentence you to six years imprisonment to commence on 18 September 2009 and to expire on 17 September 2015. There will be a non-parole period of three years to commence on 18 September 2009 and to expire on 17 September 2012. 51. In respect of count three which is the full sexual intercourse with LH aged ten against s 66C(2) of the Crimes Act I sentence you to seven years imprisonment to commence on 18 March 2010 and to expire on 17 March 2017. There will be a non-parole period of three years to commence on 18 March 2010 and to expire on 17 March 2013. 52. In respect of count five, which is the full sexual intercourse with LH who was eight or nine years of age under s 66A of the Crimes Act, and taking into account the two offences, I sentence you to eight years imprisonment to commence on 18 December 2012 and to expire on 17 December 2020. There will be a non-parole period of four years commencing 18 December 2012 and expiring on 17 December 2016. 53. Finally, in respect of count ten, the forced fellatio with your own biological son BRJ in the corridor against s 66A Crimes Act, I sentence you to nine years imprisonment to commence on 18 December 2016 and to expire on 17 December 2025. There will be a non-parole period of four years to commence on 18 December 2016 and to expire on 17 December 2020. 54. The overall sentence is eighteen years commencing on 18 December 2007 and expiring on 17 December 2025. The non-parole period is thirteen years commencing on 18 December 2007 and expiring on 17 December 2020. Have a seat BR. GRAY: Your Honour, I've double checked the dates as much as my mathematical ineptitude suffices and they appear to be fine to me. There's just two things I'd just like to raise. Your Honour in your Honour's full remarks on sentence referred to the fact that in relation to count two and count three you were taking other matters into account. When your Honour was just formally delivering judgment then you just didn't mention in relation to count two that you took the matter in the form 1 into account and in relation to count three that you took the matter into account on the form 1. Your Honour did that in relation to count five though.