R v ROSENSTRAUSS [2011] NSWDC 46

District Court New South Wales

Medium Neutral Citation: R v ROSENSTRAUSS [2011] NSWDC 46 Hearing dates: 18 February 2011 Decision date: 18 February 2011 Jurisdiction: Criminal Before: Berman J Decision: The overall sentence is one consisting of a; non-parole period of two years, head sentence of three years. Catchwords: CRIMINAL LAW - Sentence - Indecent assault - historical offence Legislation Cited: Crimes Act - Probation and Parole Act Cases Cited: R v Olbrich [1999] HCA 54; (1999) CLR 270. Category: Sentence Parties: The Crown Jeffrey Stanley Rosenstrauss Representation: P Hamill SC - Offender Director of Public Prosecutions Hillman, Laxon Tobias Lawyers - Offender File Number(s): DC 2010/00095566

Judgment 1HIS HONOUR: Jeffrey Stanley Rosenstrauss appears for sentence today, having pleaded guilty at an early stage to three very serious offences committed against a young girl more than thirty years ago. He faces sentence now because it is only recently that the complainant has contacted the police and told them what the offender did to her. There is much that is agreed between the Crown and the offender, as regards to the circumstances of the offence, although precisely when they occurred is a matter of some dispute. 2The offender was a family friend, as such he was occasionally placed in a position of trust by the complainant's mother and the offender abused the opportunities thus presented to perform serious sexual assaults upon a young girl. She was entitled to look upon him as her protector, not as her abuser. There can be no excuse for what the offender did and he does not offer one. He must have recognised at the time he committed these offences that he was harming the child and that that harm would continue for some time. Nevertheless he continued with his actions and repeated them. 3The offences to which the offender pleaded guilty were laid under s 76 of the Crimes Act , that section has now been repealed. The maximum penalty for offences under s76 was six years imprisonment. The offences were indecent assault upon a child under the age of sixteen. Some of the conduct covered by these offences would now be charged in a much different way. For example, one of the offences would now amount to an act of sexual intercourse upon a child under the age of sixteen. Had the offender committed these offences today it would have inevitable that he would go to gaol for a very long time indeed. 4The indictment alleges that these offences were committed over a five year period for each offence. That time period is being chosen because of the factual dispute I mentioned earlier. I will return to the resolution of that factual dispute after I describe what the offender did. 5As I mentioned the offender was a family friend. Some time between 13 May 1975 and 13 May 1981, the complainant attended her physical culture class at a hall in Bondi. Usually her mother accompanied her but on this occasion the accused took her to the physical culture lesson. To get there they walked through the grounds of a school. Whilst in the school the offender said to the complainant "Get on your knees". She got onto her knees as he demanded. He then took hold of her head and pushed his penis into her mouth, moving it in and out. When he stopped he took the complainant to the hall to do her lesson. The offender admits that he did these things. The complainant says she was aged about five. The offender said she was aged perhaps nine or ten. 6The second offence I must specifically sentence the offender on occurred whilst the offender was driving the complainant in a blue VW Kombi van that he owned. He parked the van and asked her to undress from the waist down. She did so. He then got on top of her in a way that enabled her to see his penis. He started rubbing his penis up and down on her genitalia until he ejaculated. He handed her some tissues and asked her to clean herself up and then drove her home. The complainant said she was about six years of age when this occurred. The offender said that although he did those things, it was not until she was aged nine or ten. 7The next offence that I will describe appears on a Form 1 attached to the first of the events on the indictment, described as sequence 2 in the statement of facts. On this occasion the complainant was visiting the offender's home where he lived with his wife and family. The victim was playing a game called murder in the dark in a bedroom shared by two of the offender's children. Those two children were in the room as well. At one stage the offender took hold of the complainant and pulled her to the edge of the bed and pushed his penis against her face. The offender said that she was about eight when that occurred. 8The next offence is a matter that the offender must be specifically sentenced for. It occurred in some squash courts in North Bondi, where the wife of the accused worked. As well as squash courts there was an indoor pool, spa and a sauna. The complainant got into the spa with her sister and the accused. The accused then put his hand into the bikini pants worn by the complainant and began fondling her genitalia. He took hold of her hand and put it on his penis. The complainant got out of the spa and went into the pool and then into the sauna. Shortly after that the offender entered the sauna, took hold of the complainant's hand once again and put it on his erect penis. She attempted to leave but he again put his hand in her pants from behind. He fondled her genitals with his finger. The complainant thought that she was about eight when that occurred. Once again, the offender's recollection is that she was older. 9This is not a case where the age of the complainant is immaterial to the sentence which will be imposed upon him. Although it is not a matter which greatly affects the ultimate sentence, it does have some effect and needs to be resolved. That is not an easy thing to do because of the state of the law and the state of the evidence. I will not go through each aspect of the evidence that was called on this issue. The offender's ex-wife gave evidence, as did the complainant. Their evidence for reasons they explained, suggested that the complainant's recollection was true as to the age that she was when she was assaulted in the manner I have described. 10The offender gave evidence as did his son. Their evidence suggested that the offender's version is correct, that is that the complainant was older than she recalls. Part of the difficulty I have resolving this issue is that from my assessment, each witness was doing the best to tell the truth as he or she remembered it. No witness was lying. Looking back at events thirty years ago, there is a clear possibility that events are misremembered. That appears to have happened in this case, whichever side is accepted. 11The law is not much help either. The state of the law, to summarise it very simply, is this. If a circumstance is one of aggravation, the Crown must prove it beyond reasonable doubt. If the circumstance is one of mitigation, then that needs to be proved by the accused on the balance of probabilities. That is easy to accept, but it is difficult to apply to this case. Is the age of the child a matter of aggravation, if she was as young as she said she was, or a matter of mitigation if she was as old as the offender said she was? 12The High Court decision of R v Olbrich [1999] HCA 54; (1999) CLR 270 is summarised, perhaps inaccurately, by saying that the person who asserts has to prove it. In this case both parties are asserting something. Neither Mr Hamill SC nor Mr Crown were able to assist with providing me with any authority as to the way that disputes such as this should be resolved. In those circumstances I will do what I consider appropriate, which is to adopt the more cautious approach. That is to require that the Crown prove these matters beyond reasonable doubt, that is prove that the complainant was younger than the offender said she was beyond reasonable doubt before I will sentence the offender on that basis. I have reached the conclusion that I cannot be satisfied to that level. 13The evidence of the offender's son Adam, suggests that his mother's memory as to when it was that she worked at the squash court, is inaccurate. When the complainant went to the police, she said to them that her recollection was that she was in the Kombi van because the offender was doing a "rent run". But the evidence clearly established the offender did not commence doing the rent run until the complainant was the age he said she was. Of course there are explanations consistent with the Crown position but they do not overcome the problem that the Crown faces, that is proving something beyond reasonable doubt where there is little more than memory of events thirty years ago. As I said, it makes a slight difference but not much to the ultimate sentence to be imposed upon the offender. 14For years the complainant told no-one about what had occurred to her. It was not until the offender separated from his wife, that she first disclosed to Miss Robb that she had been indecently assaulted by the offender, but she did not provide any detail. In June 2009 she went to the police. The police then arranged for what is sometimes called a pretext telephone call to take place, in which the complainant rang the offender on his mobile phone, and spoke to him about his behaviour and in which the offender made admissions. The offender admitted all of the offences alleged by the Crown. 15It is recognised that sentencing someone for an offence which occurred so long ago has its own difficulties. One of those is that the law requires that I sentence the offender using the sentencing range which was in existence at the time or soon after the offences occurred. Since the late seventies and early eighties, sentences for this type of behaviour have increased enormously both as a result of legislative change and change in the attitude of judges of the seriousness of such conduct. But I repeat, the law says that I must sentence the offender using the sentencing range which existed had he been dealt with for these offences soon after they were committed. 16Mr Hamill and Mr Crown both provided me with a great deal of assistance, in particular referring to old authorities which showed what sentences were being imposed for broadly comparable cases. Those cases demonstrated the accuracy of Mr Hamill's submission, or I should say concession, which was that had these matters been dealt with soon after they were committed, a full time custodial sentence would have been almost inevitable. 17One other problem that arises when a judge sentences an offender for an offence that occurred so long ago is that often, and this is such a case, the offender is a much different person than the person he was at the time of these offences, I must sentence him as he is now rather than he was then. 18One aspect of the delay can be put to one side. This is not a case where the offender has spent thirty years in fear that this day would come. He himself gave evidence that he had been able to put these offences out of his mind. In that time the offender has done much of which he is entitled to be proud. A great deal of evidence today focussed on his voluntary work with the Rebecca L Cooper Medical Research Foundation; that foundation set up using money which the late Ms Cooper was determined would not go to the consolidated revenue, which funds medical research. The offender is on the board and gives up a lot of his time in the administration of that organisation. He is also a person who has worked hard over his life, at times working multiple jobs and is entitled to regard himself as a success in his work. Of course the question arises as to whether the offender would have been able to achieve all that he has achieved if the truth were known, that is that he had performed these serious sexual acts upon a young child. So this delay has enabled the offender to live his life as a man with an unblemished character, whereas in fact is that is not the case at all. Of course that is not to ignore the voluntary and valuable work he has done which demonstrates his underlying good character which he is entitled to call in aid at a time such as this. 19The offender pleaded guilty at an early stage, so the sentences I would impose are twenty-five percent less than they would otherwise be. His pleas of guilty are consistent with what I accept is genuine remorse. The offender expressed his sorrow to the complainant in the pretext phone calls, to the psychologist who interviewed him for the purpose of these proceedings and to his friends and family. I am satisfied that this is not only a case where the offender is sorry because he must now be punished for what he has done, but is genuinely sorry because of the harm that his behaviour has caused to an innocent young girl. Those consequence of course were clearly to be expected, foreseeable and important to bear in mind. The offender has good prospects of rehabilitation, indeed he has already demonstrated that. These offences appear to have been isolated and are completely unexplained. A faint attempt was made to suggest that perhaps financial stressors and pressures may have had something to do with it. The material before me suggests that these stressors were commonplace. 20Mr Hamill suggested that one way of dealing with this matter would be this; to impose a custodial sentence on one matter but then suspend it for the other matters. However, having looked at the comparable cases provided by the Crown and Mr Hamill which are consistent with my experience as to what sort of sentences were being imposed for this sort of behaviour, I am satisfied that nothing less than full-time custody is required for each matter. Given the length of the total sentence, no alternative but full-time custody arises. Such a sentence is required to mark in a very concrete way the gravity of the offender's conduct, to deter others, to demonstrate that the courts understand the harm that such conduct brings about, and that when offences such as this are detected the law will respond in a measurable and significant way. The offender must be punished for what he has done. I will make a finding of special circumstances in the offender's favour. This is his first time in custody at the age of 61 and as Justice Howie pointed out, the Probation and Parole Act (as it was at the relevant time) provided no statutory ratio between the non-parole period and head sentence and so that is another reason for finding special circumstances. 21The offender is sentenced as follows: 22For the second count on the indictment a fixed term of imprisonment of one year to commence today 18 February 2011. For the third count on the indictment the offender is sentenced to imprisonment for a fixed term of one year to commence on 18 August 2011. For the first count on the indictment, taking into account the matter on the Form 1, the offender is sentenced to imprisonment. I set a non-parole period of one year to date from 18 February 2012, a head sentence of two years. 23The fixed terms are imposed because there is no utility in setting a period of eligibility for parole because of the sentence on the first count. The overall sentence is thus; non-parole period of two years, head sentence of three years and the offender is to be released to parole on 17 February 2013.