R v AB [2016] NSWDC 417

District Court New South Wales

Medium Neutral Citation: R v AB [2016] NSWDC 417 Hearing dates: 2 December 2016 Date of orders: 02 December 2016 Decision date: 02 December 2016 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Sentenced to an aggregate term of imprisonment consisting of a non-parole period of 6 years with a head sentence of 9 years Catchwords: CRIMINAL LAW – Sentence – Indecent assault of a child under the age of 10 years – Sexual intercourse without consent Category: Sentence Parties: The Crown AB Representation: Counsel: Mr S Corish – Crown Mr P O'Donnell – The offender

Solicitors: Director of Public Prosecutions Mills Oakely – The offender File Number(s): 2015/18209 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 harm that an offence causes the victim of that offence is a very important part in assessing the appropriate sentence to impose. In this case the offender, AB, has caused a great deal of harm to his stepdaughter. She - and I remind people here present there is to be no publication of any information which would identify or tend to identify her name - read a Victim Impact Statement in Court just a few moments ago. She spoke eloquently of the consequences for her of her stepfather's crimes. Those consequences are significant and they have persisted for many years. The consequences were, entirely foreseeable. The offender must have well known the harm he was likely to cause through his offending. 2. The complainant and her mother began living with the offender when the complainant was relatively young. The complainant's mother and the offender then had four children before they separated, at least, in the physical sense, with the complainant's mother and her five children moving first to Perth and then to Melbourne. 3. The offender had hopes of resuming co-habitation and so travelled to Melbourne. One day when the complainant and her mother were together they saw the offender. This caused some clear distress to the complainant, who immediately walked away, later complaining to her mother about what the offender had been doing to her. 4. Relatively shortly thereafter the complainant was interviewed by a police officer in Victoria. In that interview she gave details of three separate incidents and told him that there were others which she could not specifically remember. After a relatively short trial, in which that interview was played to the jury, the accused was found guilty of two counts of indecent assault of a child under the age of ten and one count of sexual intercourse without consent committed upon the complainant when she was under the age of 16. 5. The offences of aggravated indecent assault carry maximum penalties of ten years with standard non-parole periods of eight years. The offence of aggravated sexual assault carries a maximum penalty of 20 years with a standard non-parole period of ten years. I have taken into account both the maximum penalties and standard non-parole periods in formulating the appropriate sentence to impose upon the offender. My reasons for not imposing the standard non-parole period in any case appear in these remarks on sentence. 6. Count 1, the first offence of aggravated indecent assault, was the first time that the offender had behaved inappropriately towards the complainant. They were in the sunroom of the house where they lived. The complainant said that it was a hot day. The accused put his hand down her pants, over her underwear at first, but then inside her underwear, after which he was rubbing and pinching the sides of her genitalia. She was either seven or eight at the time. 7. Count 2 concerned an occasion when the complainant, the offender and some of her half siblings were on a bed watching a movie. The offender put his hands down her pants or her skirt, but not into her underwear on this occasion. He then began to rub her genitalia with his hand on the outside of her underwear. The complainant was either seven, eight or nine at the time this occurred. 8. Count 3 was the last time that anything inappropriate happened. It was not long before the complainant had her first period that she and the offender were watching a movie, perhaps while her mother was outside having a cigarette. She sat on the offender's lap and he put his hand down her pants, penetrating her genitals with his finger. He stopped when the complainant's mother came in. The actual description of the actions for this count were a trifle unclear, but upon analysis I am satisfied that what the complainant was describing was the offender penetrating her genitalia, but not penetrating her vagina, for about five minutes. She was either nine or ten at the time of this offence. 9. It goes without saying that these were serious offences committed by a person whom the complainant regarded as a father. She was entitled to expect that she would be looked after by the offender, not abused for his own sexual purposes. It was clearly a significant breach of trust in these offences. 10. The offender is now 40 years of age. These offences were committed some years ago between 2007 and 2009. He is at present a man of otherwise good character. He has some criminal involvement in the past. In 2000 he was convicted of driving whilst his licence was suspended. In 2007, around the time these offences started, he was dealt with in the Local Court for assaulting an officer in the execution of that officer's duty, and although there were no charges in relation to it, he was a drug user for many years. Indeed, this drug use was probably what precipitated an episode of mental illness. The offender suffered from bipolar disorder for some years, but has not experienced symptoms for some time now. He is a hard worker, an electrician, who is regarded by a friend as a person who was honest and frank, as well as being a caring and loving father. Of course, some parts of that are inconsistent with the jury's verdict, but I am prepared to accept that these offences were isolated, in the sense that there is no suggestion the offender has acted in any similar way towards any other child. 11. There was some submissions this morning as to whether the three counts on the indictment were themselves isolated. As I mentioned, the complainant at her interview suggested that there may have been other times. It is not necessary really to resolve the question as to whether there were other uncharged occasions, certainly the offender cannot say that his offending as far as this complainant is concerned was isolated. The three counts on the indictment are enough to demonstrate that. 12. The pre-sentence report describes AB's upbringing as unremarkable. He retains the support of his mother and brother and upon his release from custody he intends to live with his mother. He was not exposed to domestic violence or alcohol or drug abuse as he was growing up and he was not badly behaved as a child. There is no real explanation for these offences, apart from the obvious, namely that the offender wanted to satisfy his sexual urges. 13. The offender gave evidence that he has been in custody in circumstances where he has limited association with other prisoners. It is no longer the case that it is automatically assumed that those convicted of offences of this type will do their time in custody harder than would otherwise be the case. I am prepared to proceed on the basis that there is a risk that AB will spend his time in custody in some form of protection and there is a risk that if he does so the conditions of custody will be more onerous than those of the general prison population. I have taken those risks into account in deciding the appropriate sentence. 14. It is important to note that the offender has not pleaded guilty to these offences. He is not to be punished for that, of course, but often when comparative sentences are compared the circumstance that a person who has pleaded guilty earlier received a discount is sometimes overlooked. Thus anyone who looks at the sentence that I am ultimately going to impose on AB must remember that no such discount was applied. 15. Further, the offender does not express any remorse, to do so would be inconsistent, of course, with his continued claims of innocence. That absence of remorse causes another issue. Can it be said that the offender has good prospects of rehabilitation and is unlikely to offend again? In circumstances where this offender does not express regret for his misconduct I am unable to make those findings. It may be that programs available to what are referred to as "deniers" will have some impact, but that is a matter for the future and I cannot make any predictions, let alone confident predictions, as to what will occur. I am certainly not saying that those who plead not guilty and maintain their innocence can never be found to have good prospects of rehabilitation. What I am saying that in this case that has not been demonstrated to me on the balance of probabilities. 16. A fundamental aspect of sentencing is that the sentence imposed needs to reflect the objective gravity of an offender's conduct. I have already described what the offender did and the age of the complainant at the time he did it. As far as each of the indecent assaults is concerned the complainant was closer to the top of the range of ages covered by the offence than the bottom. However, looking at the sexual intercourse matter, she was much younger than the 16 years which is the top of the age range for an aggravated offence of the kind for which the offender must be sentenced. The offending does appear to have been opportunistic. Count 1 is a very serious form of indecent assault, involving the offender touching the complainant's genitals under her underwear. Count 2 is slightly less serious, because the touching was above the complainant's underwear, but serious nevertheless, because of the offender's contact with a very private part of the complainant's body. 17. As far as the objective gravity of the offence of sexual intercourse is concerned, there is no hierarchy of seriousness as regards the various forms of sexual intercourse covered by that term. Each case has to be assessed on its own facts. Here I find, as I said earlier, that penetration of the complainant's genitals did not extend to her vagina, it was, as things go, a less serious form of digital penetration than many other offences. Many forms of sexual intercourse are also more intimate than the form of sexual intercourse committed by the offender. Assessments such as these are usually made by judges who may be quite wrong about how complainants perceive various forms of sexual intercourse, but I have to do the best I can with the information available to me. All forms of sexual intercourse are serious, but not all are of the same seriousness. 18. I do not want anyone to misunderstand what I am about to say, but in considering where in the hierarchy of seriousness the acts, the subject of count 3, fall I will sentence on the basis that they are a less serious form of sexual intercourse than many other offences of that kind. 19. But I must return to where I started. These were offences involving a breach of trust and a significant breach of trust. There is no question but that a custodial sentence is required. The offender has been in custody since I refused him bail on 14 September 2016 following the jury's guilty verdicts. 20. There are special circumstances in this case. Although it has never been the law that merely because an offender is going to spend his first time in custody amounts to a special circumstance, that is a factor that can be combined with other circumstances, such as the risk that the offender will spend his time in protective custody with more limited access to programs, counselling and the like than would otherwise be the case. However, the variation from the statutory ratio between head sentence and non‑parole period is relatively small in this case. There are two reasons for that. Firstly, the effective non-parole period I will shortly announce is the least which I consider properly reflects the objective gravity of the offender's conduct. Secondly, the period of eligibility for parole is sufficient to allow the offender to be assisted to resume life outside gaol. 21. I will impose an aggregate sentence of imprisonment. Were I not to have done that I would have imposed sentences as follows: 22. For count 1 on the indictment a non-parole period of three years with a head sentence of four years. 23. Four count 2 on the indictment a non-parole period of two years with a head sentence of three years. 24. Four count 3A on the indictment a non-parole period of four years with a head sentence of six years. 25. The aggregate sentence I instead impose consists of a non-parole period of six years with a head sentence of nine years, to date from 14 September 2016. Thus the non-parole period will expire on 13 September 2022 from which date the offender is eligible to be released to parole.