District Court New South Wales Medium Neutral Citation: R v Deville [2013] NSWDC 317 Hearing dates: 25 November 2013 Decision date: 25 November 2013 Before: Berman SC DCJ Decision: Sentenced to an overall term of imprisonment consisting of a non-parole period of 18 months and a head sentence of three years Catchwords: CRIMINAL LAW - Sentence - Sexual intercourse with a child above the age of 10 but under the age of 14 - Offender in a relationship with the complainant - Offender's dysfunctional background - Resulting pregnancy of complainant Category: Sentence Parties: The Crown Rodney James Deville Representation: Counsel: Mr E Kerkyasharian - Offender Solicitors: Director of Public Prosecutions - Crown Legal Aid Commission - Offender File Number(s): 2012/167214 Publication restriction: There is to be no publication of the name of he complainant or of any material which may tend to identify the complainant SENTENCE 1HIS HONOUR: Of course the primary purpose of offences dealing with sexual offences committed against children is to protect children, both generally and individually. By definition children are young and vulnerable. They are capable of being exploited and sometimes they even need to be protected against themselves. Where an adult takes advantage of the vulnerability of a child to satisfy lustful urges, the resulting offences can only ever be described as serious. 2The offender Rodney James Deville has pleaded guilty to three offences of having sexual intercourse with a child above the age of 10 but under the age of 14. For the first of those offences she was 12 years of age and for the third she was 13. The offences came about when Mr Deville moved in to the home where the complainant was living. From time to time Mr Deville's then girlfriend also lived there. A few weeks after he moved into the victim's home he asked her whether she wanted to go out with him. At this stage she was aged 11 and said yes. For a while the relationship was limited to hugging and kissing but matters progressed. The complainant began sleeping in the offender's bed when his girlfriend was not home. In late 2010 one night when the complainant was 12 and the offender was 18 they were in the offender's bed. The offender pulled the victim's pyjama pants down, inserted his penis into her vagina and had sexual intercourse with her. She did not tell anyone what had happened. 3The following year the complainant was in her own bedroom in bed when the offender came in and got into bed with her. Once more he had sexual intercourse with the complainant. At this stage he was 21 years of age. It is apparent that as a result of what I have described the complainant became pregnant. Matters were confirmed after the third of the offences on which Mr Deville is to be sentenced. 4Late in the evening of 19 May 2012 the complainant was feeling tired and experiencing stomach pains. She went to sleep in the offender's bed. During the night the offender pulled the complainant's pyjamas and underwear down and had sexual intercourse with her. She woke at 4 o'clock the next morning bleeding from her genital area. She woke her mother up and was taken to hospital by ambulance. When they got to hospital an ultrasound examination confirmed that she was pregnant and she was taken to a delivery suite. Matters did not progress well. An emergency Caesarean section was performed and she gave birth to a boy who was estimated to be 30 weeks gestation. I should make clear that, it is not suggested that Mr Deville's behaviour in having sexual intercourse with the complainant shortly beforehand caused the labour or any other injury to the complainant. 5Because of the child's age police were informed. At first the offender denied committing the offences but in May 2012 he broke down in tears and said to the complainant's mother that he had - as he put it - "fucked up". He admitted that he had committed the offences. He was then arrested. He declined to be interviewed but provided a DNA sample. Forensic analysis has confirmed that the offender is the father of the child born to the complainant in May 2012. 6What I have described is the offender taking advantage of the position he was placed in. He was invited into the complainant's home, and took advantage of the vulnerability of the complainant, while his girlfriend was absent, to have sexual intercourse with her. The form of sexual intercourse, penile/vaginal intercourse, is traditionally regarded as one of the more serious forms of intercourse, carrying with it of course a risk of disease and, as here, a risk of pregnancy. The offender's actions have caused a 13 year old to give birth to a child. It is difficult to describe that as something which is harmful. It is certainly a significant event in a 13 year old girl's life and while she may love the child, it is certainly a factor that I must take into account. Her life has been changed by the offender's behaviour and probably not for the better. 7The offender had a background which is easily described as dysfunctional. His parents were drug users and there were a large number of foster children in his home as well as natural siblings. The large number of foster children seems to have resulted, not necessarily from any great desire on the part of Mr Deville's parents to do good, but as a source of income. A psychological report tendered on behalf of the offender reveals that the offender's father worked collecting trolleys at a local supermarket, his mother assisted her husband with this business but did not otherwise work and it seemed that the family's main source of income was from fostering. 8The offender reported to the psychologist that his parents ostensibly left the children to their own devices with little in the way of supervision or support. This included assisting the children to meet their basic care needs. 9Matters got worse when the offender's mother began a sexual relationship with one of the foster children. His parents separated and the offender now wishes to distance himself from his mother to a significant degree. One of Mr Deville's siblings has now served a custodial sentence as a result of his reaction to his mother's behaviour. Others of his siblings as well as his father have also served custodial sentences in the past. 10There are suggestions of the offender suffering brain damage as a young child but Mr Kerkyasharian who appears for Mr Deville today concedes that there is insufficient evidence for me to make a finding in that regard. But it is clear that whatever the cause, Mr Deville's time at school was a difficult one. He was bullied both at primary school and high school and has had learning difficulties. He did not complete his school certificate and has worked from time to time in particular with his father collecting trolleys. He has used drugs on occasion and indeed has a conviction for possessing drugs and introducing a drug into a detention centre. He received a community service order for that latter offence which has now been completed. He has also abused alcohol and explained some of his behaviour which has led to these offences by saying that it arose because he was intoxicated. 11As is common a psychologist subjected Mr Deville to some tests. There was a significant difference between his intellectual functioning as regards different aspects of those tests with his verbal skills being substantially lower than his non verbal skills. The psychologist summarises matters this way: "I do not believe that any such deficit can explain Mr Deville's offending behaviour but would suggest that Mr Deville is someone who lacks insight and reflective capacity and whose reasoning and ability to understand concepts presented verbally as well as expressing himself within this domain would be compromised and superficial." 12It is important to note that it is in verbal reasoning that Mr Deville's major deficits arise. There is nothing to suggest that he would not have been fully appreciative of the wrongfulness of his conduct in having sexual intercourse with a girl who was either 12 or 13 at the time. 13Although he has expressed remorse, it is qualified. He does say to people that he feels like a low life for what he has done but it cannot be ignored that there are some suggestions of an effort to put some of the blame on the complainant, suggesting that she had a crush on him and noting that her mother allowed her, that is the complainant, to sleep in his bed. 14The maximum penalty for each of these offences is 16 years imprisonment which reflects the gravity with which the legislature says offences of this kind should be treated. 15The offender did not plead guilty at the first opportunity either. The charges to which he ultimately pleaded guilty were presented to him when he was first arraigned in this court. He pleaded not guilty to them and it was only on the day of the trial that those pleas of guilty were entered. There had been some indication a few days beforehand that that is what would happen. It cannot be suggested that the pleas of guilty came at the earliest opportunity but they nevertheless retained a significant utilitarian benefit. I will impose upon Mr Deville sentences which are approximately 20% less than they would otherwise have been to reflect the pleas of guilty and when they were entered. 16It cannot be ignored that the offender himself was relatively young. At law he was an adult but when a person turns 18 there is not some blinding flash of enlightenment which causes a person to mature overnight. The age of the offender may explain some of the findings made by the psychologist as regards the offender's behaviour and attitudes towards these offences but the offender clearly knew that what he was doing was wrong, both legally and morally. Having committed one offence he did not take steps to ensure that he did not commit a second and a third. He appears not to have regretted what he did but continued on acting as he had before. 17The offences are of such seriousness that in my opinion nothing less than a full time custodial sentence is required. As I began these remarks on sentence, it is important to protect children and it is important to protect the child in this case. Anyone who has sexual intercourse with a young girl of 12 or 13 years of age, for whatever reason, must know that significant and even harsh sentences will be imposed. This will be the offender's first time in custody. He believes that he is at risk more than others whilst in custody because of the occupation of the complainant's father. He will do his time in custody hard if only for that reason alone. That is another matter I take into account in determining the length of the appropriate sentences. 18I have decided to partially accumulate sentences as well. No person having committed one offence should feel that he or she can commit a second and a third offence without receiving extra punishment. Each of these offences caused harm to the complainant and so there needs to be a level of partial accumulation to reflect that circumstance. 19There are clearly special circumstances in this case. I will reduce the non parole period at the expense of a period of eligibility for parole in order to ensure that upon release from custody the offender is supervised for a longer, than would ordinarily be the case, period of time. I do not do this as a favour to him. I do this in order to promote his rehabilitation, to minimise the risks of further offending of this kind. 20I sentence the offender as follows: 21On count 2 on the indictment I impose a fixed term of imprisonment of 18 months to date from 25 November 2013. That is a fixed term because of sentences I will announce next. 22On count 4 on the indictment the offender is sentenced to imprisonment. I set a non parole period of 12 months to date from 25 May 2014 and a head sentence of two years. 23On count 6 on the indictment the offender is sentenced to imprisonment. I set a non parole period of six months to date from 25 November 2014 and a head sentence of two years. 24Thus the overall sentence consists of a non parole period of 18 months and a head sentence of three years. The non parole period will expire on 24 May 2015 on which day the offender is to be released to parole. ********** 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: 12 May 2014