R v P [2017] NSWDC 84

District Court New South Wales

Medium Neutral Citation: R v P [2017] NSWDC 84 Hearing dates: 10 February 2017 Date of orders: 10 February 2017 Decision date: 10 February 2017 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Sentenced to an aggregate term of imprisonment consisting of a non-parole period of 2½ years with a head sentence of 4 years Catchwords: CRIMINAL LAW – Sentence – Forms 1 – Indecent assault – Sexual intercourse with a child between the ages of 10 and 14 years Category: Sentence Parties: The Crown P Representation: Counsel: Mr T Luckman - Offender

Solicitors: Director of Public Prosecutions Turnbull Hill Lawyers - Offeder File Number(s): 2015/88401 Publication restriction: There is to be no publication of the name of the complainant or of any material which may tend to identify the complainant .

SENTENCE 1. HIS HONOUR: The reasons that significant, and sometimes even harsh, sentences are imposed on those who commit sexual offences upon children are well known. One of the most important reasons involves the principle of general deterrence. Children are vulnerable to the exploitation of adults. They need to be protected from predatory behaviour on the part of those who would seek to obtain sexual gratification from children who often have no real understanding of what is taking place. 2. The offender has committed two serious offences against a child. When I sentence him for those matters he ask that I take into account other offences involving the same child. It is conceded by Mr Luckman, who appears for the offender, that nothing less than full-time custody is appropriate. That concession is an appropriate one. 3. The offender was 13 years older than the victim of his offending, a 12 year old girl who he knew through their joint membership of a soccer club. The offender began sending regular and frequent text messages to the complainant. On 14 September the complainant, and her family were at an end of season function. The offender was also there. At the end of the function the complainant and her family went home and the complainant went to bed. 4. The following morning, 1 o'clock in the morning that is, the offender sent a text message to the complainant asking her to come out and meet him at a park where he was drinking with friends. What the offender was doing was encouraging the complainant to sneak out of home without her parents knowledge. She did this, she dressed and quietly left her home, going on foot to the park. There the offender gave her something to drink. That is an offence on one of the form 1's. 5. After about two hours the others had gone, so that the offender and the complainant were on their own. Although they were together, the offender was still communicating with the complainant by way of text message. One of those text messages asked the complainant whether she wished "to do anything". Eventually, at about 4.45 in the morning, the offender took the complainant home. She had to be home because her father was due to get up at 5 o'clock in the morning. 6. When they got near her home the offender kissed her and tried to insert his tongue into her mouth. That is an offence of indecent assault appearing on another form 1. 7. Following this contact the offender resumed sending regular and frequent text messages to the complainant late at night. About three weeks after the incident I just described, again the complainant was at home and receiving text messages from the offender. He asked her to come back to the park and to bring some alcohol with her. Again she did what the offender asked. She took some rum from her father's drink cabinet and went to where the offender was with a number of other friends from the soccer club. The offender gave her some rum and cola to drink. That is another offence on the first form 1. 8. After a while the other people left and the offender and the complainant were left alone. They both got into the offender's car. Once again the offender sent text messages asking whether the complainant wanted to do anything asking if she wanted to try anything. He then kissed the complainant on her mouth. There is no suggestion that she invited him to do so. 9. He then unbuttoned her pants, slid her pants and her underwear to her knees before inserting his finger inside her vagina. The complainant asked him to stop, but he did not, he continued saying "Up a little bit further". The complainant then asked him to stop again. He removed his finger from her vagina and took her home. That is an offence of having sexual intercourse with a child between the ages of 10 and 14 years. The maximum penalty for that offence is 16 years imprisonment. 10. A short time afterwards there was another soccer function at a hotel. The complainant was not at this function, but the offender was. A party was held after the function ended, the offender was there. At about midnight he contacted the complainant and asked her to come out and meet him. 11. Again, she dressed, left her home and walked to a service station where she met the offender and another man. They walked to the house where the party was. Whilst out the front of the house the offender took hold of the complainant's hand and placed it on the outside of his pants on his groin. The complainant could feel the offender's penis through his pants. She removed her hand straight away. That is another offence of indecent assault. This appears on the second of the form 1's. 12. The complainant and the offender then went to a party where once again he supplied her with alcohol - Yet another offence on the second form 1. 13. About 3 o'clock the offender called a taxi which took him and the complainant to a laneway in Maryland where he had left his car parked. They got into the car. Once again the offender began communicating with the complainant by text message, despite the fact that she was seated right next to him. He sent her a message asking her if she wanted to do anything, then pulled her pants and underwear down slightly before inserting his finger in her vagina. This penetration was of relatively short duration, a matter of seconds. What appears to have stopped these events occurring was that the complainant's mobile telephone rang. 14. This call was from the complainant's father who become aware that the complainant was missing from her room. When the phone rang the offender removed his finger from her vagina and began to panic. He told the complainant what she should say in order that he would not be discovered as a person who had been doing what he had been doing. 15. Two or three days after that the complainant told her parents what had happened. Police became involved on 18 December. A conversation took place between the complainant and the offender and the complainant's father in which the offender denied doing anything with the complainant and denied ever being at the park with her. Some months later he attended a police station, he was interviewed and again he denied the allegations of sexual assault. 16. When the matter was listed for trial the offender pleaded not guilty and continued to maintain that plea of not guilty, even after the first trial was vacated because of the unavailability of a witness. Eventually he did plead guilty. 17. He claims he is remorseful. I will accept that he is remorseful now but I do have to note that this remorse came upon him very belatedly. 18. The offender comes from a good family and has had an excellent upbringing. There is no real explanation for his behaviour, no real explanation as to why he would commit a serious offence on a girl who he knew was only 12 years of age. 19. It is to be noted that the offender was drinking at the time these offences occurred, but it is clear that self-induced intoxication is not a mitigating factor in an offence, especially an offence of this kind. 20. The only real suggestion of an explanation seems to be that this was a time of emotion for the offender. He had a relationship which had broken down and he had lost a job. That scarcely explains why the offender would seek sexual gratification from a 12 year old girl. There is nothing to suggest that he was in any way encouraged by the complainant and indeed her reluctance to engage in sexual activity with the offender is obvious. 21. The offender has prior convictions but they are of little relevance. I should have said earlier when discussing the plea of guilty that despite its lateness, the plea of guilty does have utilitarian value. I will discount the sentence that I would have otherwise imposed by about 15% to reflect that circumstance. 22. Of course, what I have to do is to assess the objective gravity of the offences, particularly the offences on the indictment. It is sometimes said that the form of sexual intercourse which occurred here, digital penetration of the complainant's genitals, is one of the least serious forms of sexual intercourse. What judges might think about the gravity of the various forms of sexual intercourse does not necessarily match how the victims of such offences see them. However, I will sentence the offender on the basis that this was one of the less serious forms of sexual intercourse. 23. That is not to deny the significant harm that these offences have caused. 24. A victim impact statement was tendered. It reveals exactly the sort of harm that can be expected from offences of this type. Such harm was entirely foreseeable. The offender must have known there was at least the risk that he would cause such harm when he committed the two offences on the indictment. 25. I also note that these offences appear to have been of a relatively short duration, although whatever comfort the offender gets from that circumstance is limited in the case of the second offence because it was the complainant's father's telephone call which caused the offence to cease. 26. Related to that is this circumstance, there is no suggestion that the offender would have voluntarily ceased his offending had the complainant not disclosed what was happening, firstly to her parents and then to the police. 27. In assessing the objective gravity of the offences I have also got to take into account the substantial efforts the offender took to bring about a situation where he was able to commit these offences. The Crown described what the offender was doing as "grooming", an accurate description as far as I am concerned. He was exploiting the complainant's naivety. He was encouraging her to leave her home in the middle of the night and supplying her with alcohol. 28. I mentioned that the offender was remorseful. He expressed in evidence, his ability to understand the likely consequences of his offending and apologised for his behaviour. Why this remorse was not experienced sooner, I do not understand, but nevertheless despite its belated nature I will take into account that the offender has accepted responsibility for his criminal conduct. 29. It is always difficult to assess an offender's prospects of rehabilitation, but I am satisfied that I can, in this case, describe them as good. It is unlikely that the offender will offend again, particularly in this way. The sentence I am about to impose on him will have a significant impact in that regard. It will be such that it will act as a personal deterrent to him acting in this way in the future. 30. But, I return to where I started. The sentence will also act as a deterrent to others who might have broken up with a girlfriend and lost a job. Sentences such as I am about to impose should act as a deterrent to such people seeking sexual gratification from a young girl. 31. There are special circumstances in this case, the offender will be serving his first time in custody and he will be assisted by an extended period of supervision on parole as he reintegrates with society upon his release from custody. 32. I will impose an aggregate sentence of imprisonment. Were I not to have done so I would have imposed a sentence of two and a half years imprisonment on each count on the indictment. Instead I will impose an aggregate sentence consisting of a non-parole period of two and a half years with a head sentence of four years. 33. The sentence will date from today, 10 February 2017 and so the non‑parole period will expire on 9 August 2019, on which day the offender is eligible to be released to parole.