District Court New South Wales Medium Neutral Citation: R v JD [2011] NSWDC 256 Hearing dates: 12 December 2011 Decision date: 21 December 2011 Before: Letherbarrow SC DCJ Decision: Sentenced to a total term of imprisonment of six years and an effective nonparole period of four years Catchwords: CRIME - Sentencing - agrravated indecent assault - aggravated sexual intercourse without consent - hardship - health of parents - whether exceptional circumstances - prior good character of little relevance in matters involving sexual offences against children - regard to sentencing patterns at time of offences Legislation Cited: Crimes Act 1900, s61M(2), s61J(1) Crimes (Sentencing Procedure) Act 1999, s44(2) Cases Cited: R v Edwards (1996) A Crim R 510 R v Hart [1999] NSWCA 2004 R v Alla [2004] NSWCCA 378 R v Wood [2005] NSWCCA 233 R v Lo, R v Ouang [2004] NSWCCA 382 R v Capper [2000] NSWCCA 63 R v Tobias [2001] NSWCCA 522 Le v R [2006] NSWCCA 136 R v Rhule unreported, 25 July 1995 NSWCCA R v Muldoon unreported, 13 December 1990, NSWCCA R v H (1983) 3 A Crim R 53 R v JCW [2000] NSWCCA 209 MJL v R [2007] NSWCCA 261 R v MJR (2002) 54 NSWLR 368 R v Moon (2000) 117 A Crim R 497 at 511 Fisher v R (1989) 40 A Crim R 442 Georgopolous v R [2010] NSWCCA 246 Sivill v R [2009] NSWCCA 286 Khoury v R [2011] NSWCCA 118 Markarian v R (2005) 228 CLR 357 Pearce v R (1998) 194 CLR 610 Bonwick v R [2010] NSWCCA 177 Category: Sentence Parties: Director of Public Prosecutions - Crown JD - Offender Representation: Director of Public Prosecutions Higgins Director of Public Prosecutions Nikola Velcic & Associates File Number(s): 2010/392776 Publication restriction: Non-publication order as to names of complainant and accused Judgment 1HIS HONOUR: On 1 November 2010 the offender was found guilty at his trial before a jury on all four counts in the indictment. All such counts relate to offences committed against his daughter, the complainant, between January 2002 and May 2006 when she was aged between five and ten years and the offender was aged between forty-one and forty-six years. 2The first, second and fourth counts are offences of aggravated indecent assault and fall under s 61M(2) of the Crimes Act, 1900, for which the maximum penalty is imprisonment for ten years. It is agreed that there is no standard nonparole period relating to any of these offences, as whilst they were introduced during the relevant period averred to in the indictment, the evidence does not establish when during such periods the offences were committed. 3The circumstance of aggravation for counts 1 and 2 was that the complainant was under ten years of age at the time, namely five or six years. The circumstance of aggravation for count 4 was the complainant was under ten years at the time, namely seven, eight or nine years. 4The third count is a offence of aggravated sexual intercourse without consent which falls under s 61J(1) of the Crimes Act, 1900,for which the maximum penalty is imprisonment for twenty years. There is no standard nonparole period for this offence for the same reason as mentioned in relation to the offences contained in counts 1, 2 and 4. 5The circumstances of aggravation for this offence, both of which were averred in the indictment, are that the complainant was under the age of sixteen years of age at the time, namely seven, eight or nine years and was under the authority of the offender at the relevant time due to their father/daughter relationship. 6The facts surrounding the offences which I am satisfied the evidence establishes beyond reasonable doubt and which are consistent with the verdicts of the jury may be summarised as follows. All offences took place in the family home in the north west of Sydney where the complainant lived with the offender, her mother, who was the offender's wife, and her younger sister. 7At the time of the first count the complainant was around six years of age. The offender, when his wife was absent, asked the complainant to come into his bedroom and get into bed with him, asking her to take her underwear off and telling her that he did not have any underwear on. He then commenced touching her on the outside of the vagina. After about ten minutes the complainant said "stop" and she jumped out of the bed. 8The second count occurred on a separate occasion but around the same time as the first count and in similar circumstances with the only material difference being that the vaginal touching went on for a longer period, with the complainant estimating this as being about twenty minutes. 9The third and fourth counts occurred at the same time, some years later when the complainant estimated that she was eight or nine years of age. On this occasion after having a shower, the complainant realised that there was not a towel in the bathroom and momentarily went into the corridor and called out to the offender who was in the TV room to get her a towel. She then went back into the bathroom. The offender obtained a towel from the laundry, opened the bathroom door and gave the towel to the complainant who commenced drying herself. The offender then approached her and started to touch her around the labia of her vagina over a period of between five and ten minutes. During this time, the offender inserted one of his fingers into her vagina and moved it around, causing the complainant to scream and say "stop" because, to use her words, "it really, really, really, really, hurt". The offender removed his finger but then started to touch the complainant around her breast area. She asked him what he was doing to which he replied "Nothing". The complainant then put the towel around her saying that she had to dry herself and the offender said, "Okay" and the incident came to an end. 10The complainant went on to say that she remembered feeling further pain later when urinating. 11The complainant made certain complaints to her mother in September 2010 when she was about fourteen and a half years of age and was thereafter interviewed by police in October 2010. As a result, the offender was arrested on 25 November 2010 and spent eight days in custody for these matters before being granted bail. Upon him being found guilty his bail was revoked and he has spent a further fifty-one days in custody since, giving a total period of fifty-nine days of pre-sentence custody in relation to these matters. 12At the time of the sentence hearing before me on 12 December last the Crown tendered, inter alia, the offender's criminal history, exhibit A2, which reveals nil other matters, together with a victim impact statement from the complainant which is exhibit A4, dated 2 September last. It indicates that the complainant has suffered and continues to suffer from the type of psychological trauma one would expect from offences of this type and which has effected her life in various ways 13On behalf of the offender, six documentary exhibits were tendered at the sentence hearing. Exhibit 1 is a report from Mr W John Taylor, forensic psychologist, dated 17 November 2011. Exhibit 2 is a report from Dr Constantine Poulos also dated 17 November 2011. Dr Poulos is the offender's long term general practitioner. Exhibit 3 contains several reports from another general practitioner, Dr Tulevski, who has not only treated the offender for over ten years but has also treated the offender's father, currently aged seventy-eight and his mother, currently aged seventy-seven. Contained within it are separate reports as to the health of the offender and his parents, all dated late November 2011, together with medication summaries in relation to his parents. Exhibit 4 is a report from a further general practitioner Dr Fenessy dated 28 November 2011, relating to the offender's mother. Exhibit 5 is a letter dated 20 November 2011 from Ms Maria Kukucka, a cousin of the offender, whom has known him all her life. Exhibit 6 is a letter from Mr Robert Sestan dated 24 November last, whom is also a cousin of the offender and has known him for many years. 14Late in the afternoon of December 19 last, being last Monday, I received an email from the offender's solicitor enclosing a report from the Reverend Dr Peter Pal dated 11 December last. It was suggested in the email that this report "may be of assistance...particularly in respect of treatment programs available during the period of parole". I was also supplied with a letter from the office of the Director of Public Prosecutions to the offender's solicitors dated that same day, which in effect complains about this report's late supply and raised certain objections to it. In this respect, I note that the Revered Dr Peter Pal saw the offender on ten occasions between November 2010 and July 2011 and that whilst the awaited receipt of this report must have been known to the offender's legal representatives at the time of the sentence hearing before me, no mention was then made of it. After hearing argument as to the report's admissibility this morning I admitted it and marked it as exhibit 7. I also marked the DPP's said letter as exhibit A5. I then heard argument from the offender's solicitor as to how this report's contents bear upon the matter. I will return to this later. 15The subjective circumstances of the offender, all of which I have taken into account, are described in the various exhibits mentioned and were further described by the offender in the evidence he gave at his trial. 16The offender was born on 22 February 1960 and is now approaching his fifty-second birthday. He was born in Australia of Croatian parents and raised in Sydney's western suburbs. He gained his higher school certificate and completed an electrical trade course at TAFE by age twenty-two. At age twenty-five he obtained an associate diploma of library science and thereafter commenced to work as a library technician. He lived with his parents until he married the complainant's mother when he was aged thirty-three years in about 1993. Apart from the complainant, there is one other child from that marriage, the abovementioned younger sister of the complainant who is now aged nine years of age. 17In 1996, the offender injured his neck and back in a motor vehicle accident as a result of which he spent about twelve months off work and received some worker's compensation entitlements. He then returned to work part-time as a library technician, before being made redundant, whereupon he was out of work for about twelve months. He then commenced retraining in photographic studies in about 2001 when he was aged forty-one years. Thereafter, he worked in his own photography business based at home but involving travelling to various places such as Rosehill Racecourse and Star City to take photographic portraits of various people. After a couple of years that business slowed and the offender again retrained obtaining a certificate in market research when he was aged about forty-three years. He then conducted market research at places such as Darling Harbour and The Rocks up until sustaining a further workplace injury in November 2006 which resulted in him being on worker's compensation for approximately one year, after which he returned to such work but on reduced hours, up until late 2009 when he ceased work altogether. He has not worked since. 18In the meantime, the offender separated from his wife in July 2008. His wife took the complainant and their other daughter with her at the time of separation. 19In relation to his own health, the medical evidence establishes that the offender suffers from a number of conditions. From a physical perspective his main problem would appear to be chronic low back pain with frequent acute exacerbations consequent upon disc protrusions at the L4/5 level which have also lead to sciatica. He further has neuralgia in his left shoulder. In addition to these problems, the offender suffers from gastro-oesophageal reflux and dermatitis as well as having a hearing loss. From an emotional perspective, Mr Taylor records a history of claustrophobia since childhood which required cognitive therapy treatment in 2007 but which condition has deteriorated since. Both Dr Tuleveski and Mr Taylor also record a history of depression and anxiety, with the former stating that it has been in existence for the last few years and worsened prior to his trial and the latter recording that it commenced since recently going into custody. 20Dr Tuleveski further lists the offender's current medications which are numerous. He also opined that the offender's "pending incarceration for an extended period will further aggravate all his conditions to critically serious level". 21Dr Poulos, who states that the offender has been a patient of his for twenty-one years, some nine years longer than Dr Tuleveski, does not detail the offender's health in any way in his short report, recording, inter alia, that he had "not experienced any indication of psychological issues nor deviant behaviour" in the offender and that it is "very disconcerting that this man should be incarcerated for serious offences against his offspring". 22Whilst the offender's stated medical conditions are significant, there is no evidence that his reasonable needs in relation thereto will not be adequately met whilst he is in prison. However, I have taken into account that they will make any period of imprisonment more onerous upon him than otherwise would be the case. 23The medical evidence also details the effect that any sentence of imprisonment imposed upon the offender will have upon his elderly parents. In relation to the offender's father, Dr Tuleveski records that his health over recent years has been deteriorating and "he needed support from his son" without which both he and his wife "will find it difficult to cope on their own". Dr Tuleveski records the various medical conditions from which the offender's father is suffering and further states that he "cannot look after his frail wife and they both rely a lot on their only son's support and help". 24In relation to the offender's mother, Dr Tuleveski records that she is "frail" suffering from numerous medical conditions including aortic valve disease and that if the sentence imposed upon the offender "is too long (she) will not be able to cope without his support and help which (he) has been offering for the past few years". Dr Tuleveski goes on to state that the offender's father is "also frail with a number of medical problems and find(s) (it) difficult to support his wife". 25In the further report relating to the offender's mother from Dr Fenessy (exhibit 4), numerous medical conditions from which she suffers or has suffered are recorded and she states that from "July of this year she has been under increasing levels of stress due to her son having been charged with a serious offence". Dr Fenessy goes on to state that this stress has caused a general deterioration in her health and that her underlying medical conditions are "likely to continue to deteriorate and she will require assistance in activities of daily living such as homecare, shopping, meal preparation and at times may require self-care assistance". Finally, she states that the offender's mother's "medical conditions are likely to gradually deteriorate over the upcoming years requiring full time care in her home". 26Despite the various ailments that the offender's parents suffer from, the evidence established that they still live together and in a separate address from the offender whom up to his recent incarceration continued to live at the family home. 27The general principle is that hardship to a family and dependants is an unavoidable consequence of a custodial sentence and is not a mitigating consideration unless such hardship is "wholly", "highly" or "truly" exceptional; R v Edwards (1996) A Crim R 510. 28It was not argued on behalf of the offender that any hardship caused to his parents as a result of any custodial sentence imposed upon him will be exceptional to the degree as understood in the authorities. In any event, the evidence is unclear as to the precise nature of the support which the offender provides his elderly parents, although I accept that it is probably reasonably significant. Having reviewed various examples as to what has been held to be exceptional and what has not (see R v Hart [1999] NSWCA 2004; R v Alla [2004] NSWCCA 378; R v Wood [2005] NSWCCA 233; R v Lo, R v Ouyang [2004] NSWCCA 382; R v Capper [2000] NSWCCA 63; R v Tobias [2001] NSWCCA 522 and LE v R [2006] NSWCCA 136), I would not have found that the present matter involves that degree of hardship. 29Exhibits 5 and 6, being the letters written by the offender's cousins, detail, inter alia, his prior good character and apparent kind and gentle nature but are also clearly written from a perspective of doubt as to his guilt. Whilst I have taken into account the offender's prior good character and lack of previous convictions, in matters of this nature involving sexual offences committed against a young child, such factors carry little weight and emphasis is given more to matters of general deterrence and the need to protect children against sexual molestation; R v Rhule unreported, 25 July 1995 NSWCCA, R v Muldoon unreported, 13 December 1990, NSWCCA. 30During the trial, without objection from the defence, the Crown led context evidence from the complainant involving numerous similar acts which were not the subject of any charge. At the sentence hearing before me. Mr Higgins of counsel, who also appeared at the trial, submitted that such evidence was irrelevant on sentence due to the fact that he would not be submitting that the offences for which the offender was convicted were isolated incidents, thereby constituting a factor in mitigation. The Crown's position was, as I understood it, that whilst it agreed that the uncharged offences cannot be used to increase the punishment, the sentencing judge still sentences on the basis that the offences were not isolated incidents. The difference between these submissions is in my view more apparent than real, nevertheless I have approached my task by ignoring such uncharged acts, except to the extent that the offender cannot argue in their light that such a mitigating factor exists in the present matter; R v H (1983) 3 A Crim R 53; R v JCW [2000] NSWCCA 209; MJL v R [2007] NSWCCA 261 at [15]. 31As to the issue of recidivism, the report of Mr W John Taylor (exhibit 1) is of assistance. Mr Taylor conducted a number of tests upon the offender in this regard and interviewed him at some length. Mr Taylor also had the benefit of a New South Wales police fact sheet and the complainant's ERISP dated 13 October 2010 32As to general recidivism, Mr Taylor concluded the offender had a low to low/moderate risk. This was also his view in relation to violent recidivism. In relation to sexual recidivism, he concluded that the offender was of low risk. 33Overall, Mr Taylor considered that the offender has a low risk of recidivism and that he also has good prospects for rehabilitation which would be enhanced if he could undertake appropriate prison based treatment programs but for which he would not have access as he still maintains his innocence in relation to all the offences. Further, following his release from prison, Mr Taylor was of the view that the offender could undertake suitable treatment within the community. I accept Mr Taylor's views as to both the risks of recidivism and the prospects of rehabilitation and have taken them into account. 34The abovementioned report from the Reverend Dr Peter Powell (exhibit 6), also discusses issues relating to recidivism and rehabilitation, whilst emphasising the offender's maintenance of his innocence. The Reverend Dr Powell stated, interviewed and assessed the offender over ten, one hour sessions between November 2010 and July 2011. This was upon referral from a friend. Whilst his report is useful, the Reverend Dr Powell makes several comments which seem to express some doubt as to the offender's guilt, including reference to the views of a third party which are critical of the offender's wife. In any event, he concludes that the offender's "risk of sexual offending is in the low range" on the basis of the tests administered and this opinion is not materially different from that expressed by Mr Taylor. 35As to the treatment options the Reverend Dr Powell states that the offender's "case presents some contradictions in making an assessment" based upon the offender's maintenance of his innocence of all of the offences and "his psychological profile and clinical interviews (which) do not reveal any indicators that he would behave in that way." Consequently, the Reverend Dr Powell concludes that such treatment options are somewhat limited. Further, he concludes that there "is no guarantee of treatment" whilst in prison although he does suggest that the offender "would be eligible for inclusion in both individual and group processes at the pastoral counselling institute" once released upon parole. As to treatment options his opinion is somewhat similar to that of Mr Taylor's referred to above. 36As mentioned these offences took place between approximately six and nine years ago and in circumstances where standard nonparole periods do not apply. This has two consequences. Firstly, regard must be had to the sentencing patterns that existed at the time of the relevant offence; R v MJR (2002) 54 NSWLR 368. Whilst neither party provided me with any representative samples of relevant cases dating from such times nor any statistics, I have attempted to have regard to relevant sentences handed down at such times in arriving at the sentences set out below. 37Despite the relative shortness of the period that has elapsed since the commission of the offences in question, I have also had some regard to the approach suggested by Howie J in R v Moon (2000) 117 A Crim R 497 at 511 which was approved in R v MJR. Further, whilst it is appropriate to note in the offender's favour that sentencing in practice for offences of this type have moved adversely with respect to him since the period over which the subject offences were committed, it must also be borne in mind that offences of a sexual nature with respect to children in a family situation have always been treated seriously. As the Court of Criminal Appeal noted in Fisher v R (1989) 40 A Crim R 442 at 445 per Yeldam J: "Sexual assaults upon young children especially by those who stand in a position of trust to them must be severely punished and...those who engage in this evil conduct must go to gaol for a long period of time, not only to punish them but also in an endeavour to deter others who may have similar inclinations." 38The second consequence flowing from the fact that these offences were committed in circumstances where no standard nonparole period applies is that the court should not embark upon any assessment of the "objective seriousness" of the offences as this is a concept which applies only to offences carrying such a standard nonparole period; see Georgopolous v R [2010] NSWCCA 246 per Howie J at [30]-[35]. Accordingly, any such assessment is irrelevant in the present matter. Nevertheless I must still identify the seriousness of the offences; see Sivill v R [2009] NSWCCA 286 per McClellan CJ at CL [2] - [5]; Khoury v R [2011] NSWCCA 118 per Simpson J at [67] - [77]. 39In this respect, there is no doubt in my mind that the current offences are very serious. The first two counts involve genital touching, with the second count occurring approximately over twice the length of time of the first. The fourth count involved touching around the breast area which although of less gravity is nevertheless still to be deplored. Count 3 involved digital penetration, a more serious offence in itself committed in circumstances of significant gravity. Further, all the offence were committed upon a child of tender years by her father. For offences of this type general deterrence and retribution require earnest consideration as does personal deterrence. 40In determining the appropriate sentence I have taken into account all the matters referred to above in accordance with the approach described by McHugh J in Markarian v R (2005) 228 CLR 357 at [51]. Having done so I am of the view that no other sentence than a term of imprisonment is appropriate in the circumstances in relation to each offence. 41Each of the sentences to be imposed on the offender has also been determined in accordance with the principles stated in Pearce v R (1998) 194 CLR 610. In order to reflect the totality of the offender's criminality it will be necessary to partially accumulate a number of the sentences. Further, for similar reasons and also because they occurred at the same time and because the sentence for one can comprehend and reflect the criminality of the other, I intend to make the sentences for the third and fourth counts entirely concurrent. 42Whilst Mr Higgins suggested that I should do likewise in relation to the first and second counts, I do not believe that this is appropriate in the circumstances, taking into account the totality principle and the fact that these offences, whilst apparently committed relatively close in time were discrete acts, with count 2 being committed over approximately double the period of time of count 1. 43I also find special circumstances in accordance with s 44 (2) of the Crimes (Sentencing Procedure) Act 1999. In this respect, I rely upon the need for partial accumulation of the sentences, in satisfaction that the offender will benefit from an extended period of supervision to maintain strategies to assist in his rehabilitation generally and the fact that he will need time to readjust properly into the community after what will be his first sentence of imprisonment. However, although the offender will be on protection, I am not satisfied from the material before me that on the balance of probabilities the sentences to be imposed will be more onerous than would otherwise be the case as a result of protection. 44It was not submitted on behalf of the offender that I should take into account as a relevant consideration in his favour the fact that counts 1, 2 and 4 could have been dealt with in the Local Court, nevertheless I have done so pursuant to Bonwick v R [2010] NSWCCA 177. The effective sentence to be imposed will be backdated to 23 October 2011 to take into account the fiftynine days presentence custody. 45For each offence the offender is convicted and sentenced to imprisonment. 46For count 1, a nonparole period of twenty months is set. The total term of the sentence imposed is two years and six months imprisonment commencing on 23 October 2011 and expiring on 22 April 2014. The nonparole period expires on 22 June 2013. 47For count 2, a nonparole period of two years is set. The total term of the sentence imposed is three years imprisonment commencing on 23 April 2012 and expiring on 22 April 2015. The nonparole period expires on 22 April 2014. 48For count 4, a nonparole period of twelve months is set. The total term of the sentence imposed is eighteen months imprisonment commencing on 23 October 2012 and expiring on 22 April 2014. The nonparole period expires on 22 October 2013. 49For count 3, a nonparole period of three years is set. The total term of the sentence imposed is five years commencing on 23 October 2012 and expiring on 22 October 2017. The nonparole period expires on 22 October 2015, when the offender is eligible to be released to parole. 50The offender is accordingly subject to a total effective sentence of six years and an effective nonparole period of four years. 51I direct that copies of exhibit 6 and 7 be attached to the offender's commitment warrant. 52Have I made any mathematical or other mistakes? 53HARRIS: Not that I can see your Honour. 54VELCIC: No your Honour we can't pick up any mathematical errors. 55ADJOURNED 56 57 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: 14 October 2013