R v B [2016] NSWDC 415

District Court New South Wales

Medium Neutral Citation: R v B [2016] NSWDC 415 Hearing dates: 12 December 2016 Date of orders: 12 December 2016 Decision date: 12 December 2016 Jurisdiction: Criminal Before: Berman SC DCJ Decision: The offender is sentenced to imprisonment consisting of a non-parole period of 3½ years with a head sentence of 5½ years. Catchwords: CRIMINAL LAW – Sentence - Indecent assault Category: Sentence Parties: The Crown B Representation: Counsel: Mr L Shaw – The Crown Ms C Mendez – The offender

Solicitors Director of Public Prosecutions: 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: Almost invariably when sentencing for offences of child sexual assault, the need for the sentence to reflect general deterrence is of prime importance. Children are very vulnerable to the sexual predations of adults. Offences such as the one I am about to describe often occur in secret, often enough go undetected, and often enough cause enormous harm. When offences are detected it is important that the criminal law responds by imposing sentences of such severity that they act as a deterrent to others who may be tempted to satisfy their sexual desires by committing offences of sexual assault upon young children. 2. This is a tragically common case too. The offender, B, indecently assaulted his stepdaughter. The offence came about when the complainant, who I will not name in order to protect her privacy, came home from school. Without any warning it would seem, when she was in the lounge room with the offender, he pushed her onto the couch and told her to take her pants off. She did this, removing her pants and underwear, after which the offender pushed her against a wall in the lounge room and started to touch her vagina with his fingers. The complainant was crying and told the offender to stop. After he did this, he told her to have a shower and to wash her body and her hair. 3. Not surprisingly, the complainant was distressed by what had just occurred. She was crying in the shower and was told to stop crying because a friend of the offender's was coming over. This occurred sometime between 3 October 2012 and 3 October 2013. 4. In December 2013, there was a complaint to police. The offender was arrested early the following year but he declined to participate in an interview with police. Shortly before his trial was due to commence, he pleaded guilty to an offence of assaulting the complainant and at the time of the assault, committing an act of indecency upon her, she being under age of 16 years, namely, nine years. That is an offence which carries a maximum penalty of ten years and a standard non‑parole period of eight years. I have taken into both the maximum penalty and the standard non‑parole period in formulating the appropriate sentence to impose. My reasons for not imposing the standard non‑parole appear in these remarks on sentence. 5. It is agreed that the offender's plea was somewhat belated but it had a utilitarian a discount nevertheless. I will therefore impose a sentence which is approximately 15% less than it would otherwise have been. It is also important to note that by pleading guilty, the offender has spared the complainant the need to give her evidence and be cross‑examined. That is perhaps the only evidence of remorse in the present case. 6. This was a very serious example of an indecent assault upon a child under the age of 16. Force was used. There was a significant breach of trust. The complainant was well under the age of 16 years and the form of the indecent assault whereby the offender touched the complainant's genitals is of course one of the most serious forms of indecent assault with which the Courts deal. 7. I have no hesitation in finding that this was an offence well above the middle of the range of objective seriousness. I make that finding even given the circumstance that there is no suggestion that the assault went on for a significant period of time. There was no evidence of any planning, nor any threat in an effort to prevent her revealing his wrongdoing to others. 8. The offender's background is somewhat troubled. His parents separated when he was in Primary School. He had a difficult relationship with his mother, mainly, it would seem, over his need to take ADHD medication. His relationship with his stepfather suffered from the latter's desire to be a father to him, something which the offender had difficulty accepting. On the other hand, he has a good relationship with his father. He was a positive role model and who indeed supports him even today, travelling up from Wagga to be present at his son's sentencing. 9. A psychological report was tendered. It speaks of the offender's social isolation or what is described as a long history of interpersonal difficulties with others, not only with his mother and stepfather but noting that he was unable to secure peer relationships during his education. He has not established them in his adulthood. Despite that, he has been able to form some relationships, including with the mother of the complainant. He has had a spasmodic work history but is presently employed as a truck driver. 10. His prospects of rehabilitation were the subject of submissions. The psychologist applied the Static‑99 test. I note the results of that test but I also note, as the psychologist herself says, Static‑99 is an actuarial test which says something about a number of offences in the population who are likely to re‑offend. It says much less about the prospects that an individual will do so. Certainly, the offender has prospects of rehabilitation but a lot will depend on the effects of the treatment he has indicated his is willing to undergo. 11. One issue concerning the offender's prospects for rehabilitation is this. The offender has never actually explained why he did what he did. The question which thus arises, is how one knows that given a similar situation in the future, the offender would not act in exactly the same way. The psychologist addresses this in her report, noting that denial or minimisations of offending do not necessarily suggest poorer treatment outcomes. As I have said, the offender is willing to undergo treatment. There are prospects for his rehabilitation but a lot will depend on the effect of treatment. I will take into account his willingness to be treated in assessing the appropriate sentence to impose upon him. 12. It is conceded by Ms Mendez, who appears for the offender today, that nothing less than fulltime custody is appropriate. That is a concession with which I agree. This was, I repeat, objectively a most serious form of this offence and in the cases of almost all such offences, general deterrence is of prime importance. This case is no exception. 13. I accept that there are special circumstances in this case. This is the offender's first time in custody, a factor which of course is not by itself enough to demonstrate special circumstances, but the need for the offender to be treated, the benefits which could well flow to him and thus the community if he is treated, and the fact that he has struggled with interpersonal relationships in the past, so will benefit from assistance upon release from custody, all demonstrate in my view, that this is an appropriate case to make a variation from the statutory ratio between head sentence and non‑parole period. It is a fundamental rule in sentencing that a sentence must reflect the objective gravity of an offender's conduct, and that is enough to justify a significant sentence of imprisonment. 14. The offender is sentenced to imprisonment. I set a non‑parole period of three and a half years, and a head sentence to date from 8 December 2016. The head sentence is one of five and a half years. The non‑parole period will expire on 7 June 2020, on which date, the offender is eligible to be released to parole.