District Court New South Wales Medium Neutral Citation: R v Mollel [2017] NSWDC 36 Hearing dates: 10 – 13 October 2016; 17 – 21 October 2016; 24 October 2016 – 1 November 2016; and 9 December 2016 Date of orders: 03 March 2017 Decision date: 03 March 2017 Jurisdiction: Criminal Before: Hatzistergos DCJ Decision: 1. On Count 1, for the offence of aggravated indecent assault, the offender is convicted and sentenced to a period of imprisonment of 3 years. I decline to set a non-parole period. The sentence is to commence on 3 September 2016 and expire on 2 September 2019; and 2. On Count 3, for the offence of aggravated indecent assault, the offender is convicted and sentenced to a minimum term of imprisonment of 4 years and an additional term of 2 years. The sentence is to commence on 3 September 2016 and expire on 2 September 2022. The non-parole period will expire on 2 September 2020 at which stage, the offender will be eligible to be released to parole. Catchwords: CRIMINAL LAW – SENTENCE – aggravated indecent assault – victim under age of 16 – whether offender breached complainant's trust – whether offending conduct was spontaneous and opportunistic – offender's prior good character – special circumstances – whether offender will suffer isolation in custody – whether conditions of offender's custody likely to be more onerous – evidence required to assess whether imprisonment will be more onerous Legislation Cited: Crimes Act 1900 (NSW) s 61M(2) Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A(2)(eb), 21A(2)(k), 21A(3)(i), 21A(5A), 44(2), 45(1), 47(2)(a), 47(3), 54B(2) Cases Cited: BT v R [2010] NSWCCA Clarkson v R (2007) 171 A Crim R 1; [2007] NSWCCA 70 Corby v R [2010] NSWCCA 146 CT v R [2017] NSWCCA 15 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 R v Dagwell [2006] NSWCCA 98 R v Darrell Williams (Unreported, NSW Court of Criminal Appeal, 5 November 1991) R v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370 R v Huang (2000) 113 A Crim R 386; [2000] NSWCCA 238 R v McClymont (Unreported, NSW Court of Criminal Appeal, 17 December 1992) R v PGM [2008] NSWCCA 172 R v Smith [2004] WASCA 44 R v Stanbouli (2003) 141 A Crim R 531 R v Wicks [2005] NSWCCA 409 R v XX (2009) 195 A Crim R 38; [2009] NSWCCA 115 R v LP [2010] NSWCCA 154 RWB v R; R v RWB (2010) 202 A Crim 209; [2010] NSWCCA 147 Category: Sentence Parties: Regina (Crown) Mr Peter Mollel (Offender) Representation: Counsel: Ms D Daleo (Crown) Solicitor: Solicitor for the Director of Public Prosecutions (Crown) Mr M Mantaj (Offender) File Number(s): 2015/162772 Publication restriction: The publication and broadcasting of the name of the complainant and sister and anything which may tend to identify them is prohibited: Children (Criminal Proceedings) Act 1987 ss 15A(1)(a), 15A(1)(b) and 15A(1)(e) Judgment Preliminary 1. Following a trial commencing on 10 October 2016, the offender was found guilty on 1 November 2016 of two counts of aggravated indecent assault contrary to s 61M(2) of the Crimes Act 1900 (NSW). [1] Consequently I granted a detention application, effectively revoking the offender's bail. Sentencing submissions were heard on 9 December 2016 following which I reserved my decision on sentence. Facts 1. The victim in this matter is referred to as "M" and was aged 13 years at the time of the commission of the offences. 2. The background to the commission of the offences was largely uncontested, 3. M's stepmother had first met her husband, M's father, in Tanzania in 2007. M and her sister "A" were then living with their paternal grandmother. They migrated to Australia and moved to their Kensington in November 2013. 4. The offender is also of Tanzanian background. He moved to Australia on a proposed marriage visa at the end of 2013. 5. Both M's family and the offender's family were socially acquainted 6. M's father and stepmother attended the wedding of the offender and his wife. The offender lived in Gosford. 7. M's stepmother gave evidence that she did not see the offender frequently "maybe a handful of times." [2] She stated on one occasion they came to a picnic at Sydney Park, which was a "big gathering for an NGO … that [she] was working with." [3] She stated she invited both the offender and his wife. [4] She also stated that she had visited the offender and his wife a "couple of time[s]" at their place on the Central Coast, and they had similarly visited their home at Kensington a "couple of times." [5] She stated at their place, that M and A had been in attendance. She stated that she knows that they visited their home on the weekend of 30 May 2015. 8. On the occasions that they were together with the children, M's stepmother observed the offender and M interacting. She stated:- "… [the offender] was a nice guy and look the girls are very happy, friendly girls and they you know talks to them, he talked to them and joked with them, so yes the interaction …" [6] She also stated that both of the girls were "quite fond" of the offender. [7] 1. M's stepmother conceded that both M and A were "affectionate kids". She stated that M also showed everybody things on her phone and probably would have shown the offender things on her phone. [8] She also stated that "most definitely" M would have shown the offender things on her laptop. [9] She conceded that they would have been watching television together on the couch. However, she qualified her response by stating that she would not say that M was more favourable to the offender than any of their other friends. [10] 2. M's father stated that following his arrival in Australia until May 2015, he saw the offender three or more times with other members of his family in attendance. He stated that on one occasion, it was at Olympic Park. [11] He conceded that he attended the wedding of the offender and his wife, however, the children did not attend on this occasion. [12] He stated that the offender had come to his home in 2015 on one occasion and was picked up by his wife on the following day. [13] There was also an occasion where they met on the Central Coast for a day trip with his family. [14] 3. On 29 May 2015 the offender had come to M's father at his home in Kensington. Both the offender and another family friend, Mr Thomas Temba, stayed overnight at M's home, being a two bedroom unit at Kensington. The three males went out that evening, socialising at various late night venues, consuming alcohol, leaving M and her sister alone at the residence. 4. On the morning of 30 May 2015, M was sitting on her bed, the bottom bunk of a set of bunk beds, located in a room in which she shared with her younger sister A. The offender entered the room and sat down on the bed next to M whilst she was watching a show on her laptop. M's evidence was that she thought that the offender wanted to watch the show that she was watching and accordingly she offered him one of her earphones. Thereafter the offender removed the bottom part of M's clothing and started touching her on her exposed genitalia with his fingers. This constituted Count 1 on the indictment. 5. The offender then unzipped his jeans, took out his penis and rubbed his exposed penis on the outside of M's vagina and ejaculated. It was M's evidence that the offender was trying to insert his penis into her vagina. 6. This conduct gave rise to Counts 2 and 3 on the indictment, being a count of attempted sexual intercourse without consent in circumstances of aggravation, and a count of aggravated indecent assault (being framed in the alternative) respectively. 7. The offender was found not guilty of Count 2, but guilty of Count 3. 8. Immediately following the event, M contacted her stepmother, who at the time was away in the Blue Mountains with a friend. Later that day, M informed her father as to what had happened. M's father confronted the offender and asked him to leave the house. Police were subsequently notified and the offender participated in an ERISP interview on 1 June 2015 in which he denied the conduct asserted by M. The offender asserted M called him into her room, pulled him towards her and tried to kiss him. Further he asserted that M put her hand down his pants and took hold of his penis. It was the offender's assertion that there was a struggle between them and during the course of the struggle, he became erect and ejaculated. The offender stated he was then able to push M away and leave the room. As to the circumstances M calling her stepmother following the event in question, the offender's own account given to the police in the ERISP interview [15] of 1 June 2015 was as follows:- "Q137 O.K A137 She say, 'Mum, come, mum, come, mum, come.' She's so is just shouting in the phone. And then I've just take the phone, me, and then I'm just talk to [M's stepmother] and just tell, 'Nothing wrong, she is fine, just, just say that is have a stomach sore but I'm already tell her just have a drinks or maybe … a diarrhoea, just go the toilet and then she just do that, after five minute she good, she's watching movie she's – " 1. The jury's verdicts establish that they rejected the offender's account as stated in the ERISP interview. The jury's not guilty verdict in relation to Count 2 indicates that they were not satisfied beyond reasonable doubt that the offender was attempting to have sexual intercourse with M without her consent, knowing that she was not consenting. 2. I accept that the jury's verdicts on Counts 1 and 3 indicate that they accepted that the offender:- 1. Pulled down M's clothing exposing her genitalia; 2. Touched her on the outside of her genitalia with his fingers; and 3. Removed his penis from his jeans; 4. Rubbed his exposed penis on the outside of M's exposed genitalia and ejaculated. OBJECTIVE FACTORS – the arguments 1. The Crown drew attention to the fact that although there was only one victim and one incident of offending conduct, the offender was a trusted family friend who gained access to the victim because of his relationship with the family. In these circumstances, it was submitted that what was involved amounted to a breach of trust within the terms of s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 (NSW) [16] and further, was committed in the home of the victim within s 21A(2)(eb) of the 1999 Act. The Crown further drew attention to the fact that the conduct itself involved the rubbing of his exposed penis on the exposed genitalia of the victim coupled with an act of ejaculation. In these circumstances, the Crown submitted that the offences for which the offender is to be sentenced, fell within the upper range of objective seriousness for offences of this kind. 2. Contrary to the Crown's submission, the offender's solicitor contended that this case did not involve a breach of trust. It was submitted that whilst family friends were a category of offenders in relation to which a breach of trust could arise "much depends on the circumstances of a particular case." [17] The offender's solicitor submitted that in the present case, there was no evidence that the complainant considered the offender a particularly close friend or reposed any trust in him. It was submitted that the offender could not therefore be described as having been regarded by the complainant as a trusted family friend. 3. The offender's solicitor also submitted that the offence under s 61M(2) of the 1900 Act encompasses victims between the ages of zero (0) to sixteen (16), and accordingly, as the victim in this case was thirteen (13), this was "very much towards the upper end of the relevant age range." [18] Further, the offender's solicitor drew attention to the fact that there was no violence or coercion involved in the commission of the offences and that as soon as the victim offered resistance (by pushing the offender away), the offender desisted from his conduct. [19] It was also submitted that the consent of the victim may also amount to a mitigating factor in a case of a victim in her early teens. [20] It was argued that the jury's finding of not guilty in relation to Count 2, combined with the fact that during deliberations, the jury twice enquired about the issue of consent, justified a finding that the jury was not satisfied that the victim did not consent to the conduct of the offender. 4. The offender's solicitor further submitted that the offending conduct was spontaneous and opportunistic, and unsophisticated and did not involve planning. [21] It was further submitted that the conduct constituting each offence was of short duration [22] and was an isolated incident. [23] Determination of the objective seriousness 1. In assessing objective seriousness, I take into account the level of physical contact involved. In R v PGM, Fullerton J stated:- "[31] As this Court has observed, it is of considerable significance when assessing the objective seriousness in the indecent assault of a child to consider the actual character of the assault, including the degree of physical contact involved (see GAT v R [2007] NSWCCA 208 at [22]). Having regard to the degree of genital connection in counts 4 and 7, and the gravity of the conduct in count 3 which although grossly indecent nevertheless fell short of any actual physical connection, his Honour's characterisation of the offending as at the lower end of mid range is in my view indicative of error. Having regard to the facts in respect of count 4 on the indictment, facts which on one view may well have justified a charge under s 66A of the Crimes Act, it is difficult to hypothesise more serious instances of indecent assault. Even were it open for his Honour to have found the particulars of these offences as occupying a position in the lower end of mid range, when account is taken of the other factors bearing upon the assessment of the objective criminality constituted by that offending, his Honour's finding is in my view unsustainable." [24] 1. At the time of the offences, the offender was aged 33 and the victim was 13. The age differential between them is of some significance to the objective seriousness of the offence. [25] 2. I accept that the conduct constituting each offence was of short duration, spontaneous and opportunistic. I also accept that there was no violence or coercion involved in the commission of the offences. [26] Children are to be protected from sexual conduct even if they are willing participants. [27] Not that I accept that the acts the subject of the two offences were consensual as submitted. [28] 3. The offences occurred in M's home, an aggravating matter under s 21A(2)(eb) of the 1999 Act. 4. Although the offender's solicitor argued that what was involved did not engage s 21A(2)(k) of the 1999 Act as amounting to a breach of trust. I am satisfied that it did. 5. In R v Smith, [29] Wheeler J stated:- "[5] So far as the "position of trust" is concerned, I agree with what has been written by McLure J. I would add that an abuse of a position of trust will generally be of significance for one of two reasons. It may be that it involves an abuse of a position of power or authority which one person has over another, such as a school teacher and a pupil. The aggravating factor is the misuse of that position. Alternatively, it may be that because of some relationship between them the complainant reposed actual trust and confidence in the offender, so that the effect upon the complainant is likely to be more serious because the offender's conduct would, in addition to its other ramifications, tend to cause her to lose confidence in her own judgment and to cause difficulties in her relationships with others whom she might be disposed to trust. The two types of breach of trust may overlap …" 1. I am satisfied on the evidence that prior to this incident M trusted the offender and was fond of him, having met his on a number of social occasions including in their respective homes. The relationship in this instance was clearly one in which the M reposed trust and confidence in the offender. It extended to doing things together including M showing the offender her phone and laptop, and watching television together. 2. In my view the circumstances of the offences involved the second category of breach of trust referred to by Wheeler J. 3. Overall I accept that the offences fell well within the mid-range of objective seriousness for offences of this kind. SUBJECTIVE FACTORS 1. The offender has no prior antecedents. In the course of the trial evidence as to his good character were given by his wife and other witnesses called on his behalf. 2. The Crown submitted that although the offender was a person of prior good character, this had limited weight. [30] The Crown did not submit that s 21A(5A) of the 1999 Act applied, but did submit that the offender's prior good character should be given less weight as the offending occurred in the context of the offender having access to the victim as a result of being a trusted family friend and the principles of general deterrence would be of significant consideration in the Court's sentencing exercise. [31] 3. I accept that this is so. 4. The offender has not expressed remorse for his conduct. [32] 5. Accepting that the offences were opportunistic involving a single overall episode and one victim at a time when he may have been affected by intoxicating liquor, I would find the prospects of rehabilitation as being reasonable and likelihood of reoffending as low. That is not to suggest his conduct in question is mitigated by intoxication – it is not. SPECIAL CIRCUMSTANCES 1. The offender contends for a finding of special circumstances based on: 1. The fact that this is the offender's first time in custody; and 2. The offender is likely to experience isolation in custody. 1. The offender is a Tanzanian national. From the contents of the ERISP interview with Police it is clear that he has a somewhat limited command of English with his native tongue being Swahili. It was submitted that this factor and his ethnicity will make his time in custody more onerous as he is likely to experience isolation and racial discrimination. In this regard, some limited (but not much) recognition is to be given to his circumstances in prison. [33] 2. The solicitor for the offender further submits that following sentence the offender proposes to ask that he be placed in protective custody. There is no evidence as to the conditions the offender is likely to serve in that custody are more onerous. 3. The Court of Criminal Appeal has repeatedly applied the principle that where an offender seeks to receive a reduction of sentence on the ground that conditions of imprisonment will be more onerous, it is for the offender to lead evidence of what those conditions entail. [34] Whilst I accept that offender may apply to serve his sentence in protective custody, it would be erroneous to take into account in mitigation either in the determination of the sentences or in the finding of special circumstances under s 44(2) of the 1999 Act without evidence that the conditions of imprisonment will be more onerous. [35] 4. The Crown nevertheless did not oppose a finding of special circumstances on the other grounds identified by the offender. 5. Overall, because this is the offender's first time in custody, he has reasonable prospects of rehabilitation and he will be somewhat isolated as his solicitor has submitted, I am satisfied that it is appropriate to find special circumstances. SENTENCE 1. In sentencing the offender I have regard to the maximum penalty of 10 years imprisonment for each offence of which he has been found guilty and the standard non-parole period of 8 years provided under s 54B(2) of the 1999 Act. [36] 2. I also bear in mind the purposes of sentencing in s 3A of the 1999 Act. 3. In R v Wicks, [37] McClellan CJ at CL stated:- "[39] The decisions of appellate courts make plain that there are a number of common elements when sentencing offenders for child related sexual offences. General deterrence is of paramount importance (R v Levi (1997) unreported, NSWCCA, 15 May 1997, R v D (1997) 69 SASR 413; R v AJW (2001) 80 SASR 246; Bell v R [2001] WASCA 40). Any abuse of a position of trust is considered to be an aggravating feature. Other relevant factors in sentencing for this type of offence include the type of conduct committed, the number of victims (see R v LLK (2003) 146 A Crim R 1), the number of occasions on which the offending occurred, the period of time over which the offending occurred and whether the offending was part of a course of conduct (see R v H [2001] NSWCCA 117)." 1. The offender has served 59 days of pre-trial custody before a detention application was granted on 1 November 2016. This is to be taken into account [38] and accordingly the sentence is to commence on 3 September 2016. [39] 2. The solicitor for the offender submitted that the sentences should be made concurrent for the two offences, The Crown did not submit otherwise. I am satisfied that it is appropriate to do so having regard to the principles summarised by Hall J in R v XX. [40] 3. On Count 1, the offender is convicted and sentenced to a period of imprisonment of 3 years. In light of the fact that I propose this term be served concurrently with the sentence for Count 3 and its length would be surpassed by the non-parole period for Count 3, I would decline to set a non-parole period. [41] The sentence for this count is to commence on 3 September 2016 and expire on 2 September 2019. 4. On Count 3, the offender is convicted and sentenced to a minimum term of imprisonment of 4 years and an additional term of 2 years. The sentence is to commence on 3 September 2016 and expire on 2 September 2022. The non-parole period will expire on 2 September 2020 at which stage the offender will be eligible to be released to parole. Endnotes 1. Hereinafter referred to as the "1900 Act" 2. T 201.45 – .48 3. T 202.2 – .4 4. T 202.4 – .5 5. T 202.5 – .7 6. T 202.42 – .44 7. T 202.49 8. T 217.6 – .19 9. T 217.21 – .23 10. T 217.33 – .35 11. T 110.42 – .44 12. T 110.50 – 111.3 13. T 111.11 – .13 14. T 111.20 – .23 15. Exhibit J 16. Hereinafter referred to as the "1999 Act" 17. Defence Submissions on Sentence, undated at [6]. The Defence relied on: R v Stanbouli (2003) 141 A Crim R 531 18. Defence Submissions on Sentence, undated at [1] 19. Defence Submissions on Sentence, undated at [2] 20. Defence Submissions on Sentence, undated at [3]. The Defence relied on: R v McClymont (Unreported, NSW Court of Criminal Appeal, Gleeson CJ, Mahoney JA and McInerney J, 17 December 1992) and R v Darrell Williams (Unreported, NSW Court of Criminal Appeal, Gleeson CJ, Clarke JA and Campbell J, 5 November 1991) 21. Defence Submissions on Sentence, undated at [4] 22. Defence Submissions on Sentence, undated at [5] 23. Defence Submissions on Sentence, undated at [7] 24. [2008] NSWCCA 172 at [31] (Fullerton J with Spigelman CJ and Barr J agreeing) 25. R v Dagwell [2006] NSWCCA 98 at [35] (Howie J with Beazley JA and Adams J agreeing) 26. Although not a matter of mitigation: BT v R [2010] NSWCCA 267 at [22] – [24] (RS Hulme J with McColl JA and Latham J agreeing) 27. R v McClymont (Unreported, NSW Court of Criminal Appeal, Gleeson CJ, Mahoney JA and McInerney J, 17 December 1992) 28. See: CT v R [2017] NSWCCA 15 at [71] – [75] (Hoeben CJ at CL, with Johnson and Latham JJ agreeing) 29. [2004] WASCA 44 30. See: R v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370 which affirmed R v Kennedy [2000] NSWCCA 527 31. Crown's Submissions on Sentence, undated at [15] 32. s 21A(3)(i) of the 1999 Act 33. R v Huang (2000) 113 A Crim R 386; [2000] NSWCCA 238, 391 [18] – [19] (Adams J with Spigelman CJ and Newman J agreeing) 34. Clarkson v R (2007) 171 A Crim R 1; [2007] NSWCCA 70, 50 – 51 [273] (Howie J with Sully J agreeing) 35. RWB v R; R v RWB (2010) 202 A Crim 209; [2010] NSWCCA 147, 235 – 236 [192] – [195] (Simpson J with Johnson and McCallum JJ agreeing); and R v LP [2010] NSWCCA 154 at [21] (Buddin J with Hodgson JA and Whealy J agreeing) 36. See: Corby v R [2010] NSWCCA 146 at [71] (Johnson J with Beazley JA and Kirby J agreeing) and Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, 131 [25] 37. [2005] NSWCCA 409 at [39] (McClellan CJ at CL with Adams and Hoeben JJ agreeing) 38. s 47(3) of the 1999 Act 39. s 47(2)(a) of the 1999 Act 40. (2009) 195 A Crim R 38; [2009] NSWCCA 115, 48 [52] (Hall J with Tobias JA and Kirby J agreeing) 41. s 45(1) of the 1999 Act 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: 07 March 2017