District Court New South Wales Medium Neutral Citation: R v AF [2016] NSWDC 439 Hearing dates: 4 February 2016 Date of orders: 04 February 2016 Decision date: 04 February 2016 Jurisdiction: Criminal Before: Berman SC DCJ Decision: The offender is sentenced to an aggregate term of imprisonment consisting of a non-parole period of 2½ years and a head sentence of 5 years. Catchwords: CRIMINAL LAW – Sentence – Form 1 – Sexual intercourse with a child under 10 – Aggravation – Complainant under the authority of offender – Offender a child at time of offending – Voluntary cessation of offending. Legislation Cited: Children (Criminal Proceedings) Act Cases Cited: RM [2015] NSWCCA 4 KBM [2004] NSWCCA 123. Category: Sentence Parties: The Crown AF Representation: Counsel: B Costello – The Crown P Krisenthal – the offender Solicitors: The Director of Public Prosecutions – The Crown File Number(s): 2014/320726 Publication restriction: There is to be no publication of the name of the complainant and of any material which may tend to identify the complainant and that is to include the name of the offender. Judgment 1. HIS HONOUR: The criminal justice system exists primarily to protect the community and its members. Among its members are people of varying vulnerability. Children are in a special category, as they are, by definition, vulnerable. They are vulnerable to exploitation, in particular by those who seek to use them for the purposes of sexual gratification. The consequences of such misconduct can be, and ordinarily are, devastating for the unfortunate victim. 2. For that reason, the sentences imposed on those who sexually abuse children, in particular children under the age of ten, are some of the heaviest sentences imposed in New South Wales courts. 3. In this case the consequences for the victim of a series of sexual assaults committed by her older cousin have been very eloquently expressed in her victim impact statement, prepared with the help of a counsellor. Quite accurately, she said that the offences have "affected me in every way",: her school work; her relationships with her family; and her friendships with boys. In every way the unfortunate victim of the offender's crime has been affected and will continue to be affected for years to come. 4. The offender, AF, is to be sentenced on four offences. Three are allegations of sexual intercourse with a child under ten and one is the aggravated form of that offence, aggravated by the circumstances that at the time of the offence the complainant was under his authority. In two cases there are matters on a Form 1 to be taken into account. They are two other offences of sexual intercourse with a child under ten. 5. Parliament has set very high maximum penalties for offences of this type, life imprisonment for the aggravated sexual intercourse with a person under the age of ten, and 25 years' imprisonment for the un-aggravated form of the offence. Parliament has also introduced standard non-parole periods. 6. I turn, however, to the offender himself. He was a juvenile at the time of his offending. That has a number of consequences as far as the sentence to impose upon him is concerned. For a start, the life imprisonment maximum for the aggravated form of the offence does not apply to him. Next, the standard non-parole periods do not apply either. And then the principles of sentencing him are different to the principles which apply when sentencing a person who was an adult at the time of offending. The result is that while ordinarily offending of the type I am about to describe would result in very lengthy periods of imprisonment, because the offender was a juvenile, a much shorter period of imprisonment will be imposed. 7. Sentencing those who were juveniles at the time of offending is a particularly difficult task. On the one hand, the conduct, as in this case, can be serious and have devastating consequences. On the other hand, the conduct is performed by a person who is far from a mature adult. Sentences for serious conduct carried out by are much less severe than were the offender an adult at the time of offending. 8. The offender and the complainant are cousins; their mothers are sisters. There was, understandably, contact between the families and that, of course, included the cousins, the complainant and the offender, as they all grew up. As the offender developed an interest in sexual matters, he began to commit a number of offences on his cousin, the first when she was merely six years of age. On that day she went fishing with a number of members of her family and the offender. At one stage when they were on the beach, the complainant and the offender were some distance away from the other members of her family. The offender said to the complainant "Would you like to sit on my lap?", the complainant said "Okay" and she did so. The offender then began the first of a series of sexual suggestions to her. He said "Would this sound weird if I dared you to pull your pants down and I lick your rude part?", the complainant said "Yeah, it sounds weird and no I won't do it". Of course the offender should not have asked in the first place but when he got that response, he should have immediately desisted. He did not. Instead he called her names and persisted until she agreed to do what he asked. And so with the assistance of the offender the complainant pulled her pants down, he told her to lie across him and he licked her vagina. 9. Someone else in the other party caught a fish and that caused the complainant's brother to run towards them. The offender stopped what he was doing and quickly pulled up the complainant's pants, saying to her "Keep it a secret". At this stage the complainant was in year 1, the offender was 16 or 17 years of age. This is the first time he had committed an offence against her. 10. We now move to sometime between 5 January 2012 and 5 January 2013. The complainant went to stay with an aunt of hers, not the mother of the complainant but another sister. A number of other children were staying there as well. On the second day the children were there the offender took the complainant into a room that he was sleeping in whilst his aunt was asleep. He took the complainant's pants off and licked her vagina and he then dared her to suck his rude part. Quite disgracefully, he said this to her, "If you don't do it, bad stuff is going to happen in your life, your mum will die or your dad will die". Not surprisingly, the complainant then performed fellatio on him. 11. It is bad enough for a person to obtain sexual gratification by getting his six year old cousin to suck his penis, but to bring that about by telling an impressionable young girl that if she does not do it her parents are going to die is quite awful. Again at the time of this offence the complainant was six years of age and the offender was 16 or 17 years of age. 12. The fellatio aspect of what I have just described is an offence under s 66A(1) for which the offender must be specifically sentenced; the cunnilingus aspect is on a Form 1 attached to that offence. 13. At one stage the offender came to the complainant's house to babysit her and her siblings. The complainant's parents went out for the evening. When the complainant was in the shower, the offender came into the bathroom and dared her to suck his penis. Again the complainant initially said no, but again the offender called her names until she agreed. Whilst the complainant was naked in the shower the offender exposed his penis and stood outside the shower, masturbating for a short time before the complainant performed fellatio on him. By this stage the complainant had turned seven and the offender was 17. 14. We now come to the last occasion on which an offence was committed by the offender. That came about when the complainant was on a fishing trip sometime in the first half of 2013. Other family members were again on that fishing trip. At one stage the offender and the complainant were alone in the sand dunes, out of sight of the others, the complainant was lying on the sand with her head resting on a dune, with the offender lying beside her. The offender moved the complainant's swimmers aside so that her genitals were exposed and he pulled his pants down and laid on top of the complainant. He moved his body up and down, rubbing his genitals against her and licked her cheek. He then said to her "How about I put my finger in your rude part?". 15. By now the complainant must have been so used to the offender's demands that she responded "Whatever, so long as it doesn't hurt". He then digitally penetrated her vagina. She said "Ow" a number of times, but the offender did not stop until she kicked his hand away from her. The offender then said "Well how about I do something different then?", the complainant said "No". He told her to suck his rude part and he pushed her head towards his penis. The complainant performed fellatio on him. He had his hand on the back of her neck, guiding her head up and down. Once again this stopped when another member of the family ran towards them. The offender pulled his pants up and ran towards the water. 16. It was after this offence that the offender said to the complainant "We should stop touching each other like this, don't tell anyone about it". 17. Mr Krisenthal, who appears for the offender, relies on the circumstance that the offender said those things and did not offend against the complainant thereafter. 18. The Crown says, well there is no evidence that there was a further opportunity to commit offending but, given the nature of the family relationship between the offender and complainant, I am satisfied that the offender did express, at that stage, an indication that there would be no further offending, and there was not. 19. Matters came to the attention of, firstly, family members and then the authorities when the complainant was discovered acting inappropriately with another young boy. Eventually the complainant told her mother what the offender had been doing to her. She then, in turn, contacted her sister, who then contacted another sister, the offender's mother, and informed her that the offender was accused of sexually assaulting the complainant. When confronted by this allegation he said "It's bullshit". However, when he was interviewed by police, after initially denying the offences in a lengthy interview, and in the break in that interview, he broke down and cried and said "I did it". He then participated in a further interview where he admitted committing the offences against the complainant. 20. He said, in fact, that there were ten to 15 occasions when he was aged 16 and 17 and the complainant was six and seven years of age. Of course he is only to be sentenced for those matters for which he was committed for sentence, taking into account, where appropriate, matters on a Form 1, but the circumstance that there was more offending means that those offences are not isolated ones. 21. The offender had a happy and loving childhood. His parents did much that was good in the community, fostering a number of children over the years. The household may have been busy but the offender wanted for nothing as regards affection and love from his parents. As a child, he told psychologists, that he rarely spoke to his parents about matters that were troubling him, preferring to keep problems to himself. When his parents did become aware of some problems in his childhood they were very supportive. He had few friends at school and was bullied. He finished school, went onto unemployment benefits, got a job, but was suspended when his offending behaviour was disclosed; he has not worked since. 22. As soon as the allegation was made his mother asked him to leave the home, otherwise the foster children would be taken away, and so he has lived with his grandfather since then. This is a particular concern to the complainant herself. She used to enjoy visiting her "pop" but cannot do so because the offender is there. To his credit, her pop, her grandfather has attempted to overcome problems by visiting the complainant, but the complainant does keenly feel the consequence of the fracture in the family that has come about. 23. As is often the case where family members are molesting other family members, the harm caused to the victim extends beyond what is usual. Not only does the complainant bear the consequences of the sexual offending itself, but as in this case the complainant feels keenly that many members of her family prefer to support the offender rather than her. I make no criticism of those who support the offender at all, but I do take into account as part of the harm that has been caused by his offending that the complainant is denied relationships with family members she previously enjoyed. 24. Another aspect of the harm which has been suffered by the complainant is apparent from the circumstance which led to the offending being discovered, she has been "corrupted", to use the term used by the Crown Prosecutor in submissions today, into acting sexually with another boy. 25. The offender has expressed his remorse to others, but, frankly, it is hard to tell how genuine such expressions of remorse are. He did not give evidence before me. The authorities tell me I should look with scepticism at such expressions of remorse. Frankly, it is easy to say or write down that one is sorry, but it is difficult to assess how genuine such sentiments are when a person is not prepared to say them in court. 26. On the other hand, I do note the following aspects which tend to suggest at least some remorse on the part of the offender. He made admissions during the course of a lengthy interview with police, rather than tough things out and hope for a not guilty verdict from a jury. And then, of course, there is the voluntary cessation that I referred to earlier. Consistent with the offender's early admissions to police he pleaded guilty at the Local Court, thus the sentence I impose upon him will be 25% less than it would otherwise have been to reflect the utilitarian value of his plea. 27. In assessing the objective seriousness of the offender's conduct, there are a number of features that I should refer to. Firstly, the mode of sexual intercourse. These were varied, although there was no penile vaginal or penile anal intercourse. There were threats and name calling which the offender used to overcome the complainant's resistance to his suggestions. There was a breach of trust. The offender, although a cousin, was significantly older than the complainant and thus other family members were entitled to trust him to look after his younger cousin, not abuse her for his own sexual purposes. 28. I do have to say that, of course, in one of the matters, it is an element of the offence that the complainant was under the offender's authority, but that would include a babysitter who was a stranger. It is a further aspect, worthy of consideration even in that offence, that the offender was a relative who should have, and was trusted to, look after the complainant, when for example, they were on their fishing trips together. 29. I accept Mr Krisenthal's submission, when I consider the objective gravity of these offences, that there was no evidence of ejaculation, but I simply do not accept another aspect of his submission that this was just plain immature sexual exploitation; there was, in each case, an element of sexual gratification. 30. The age of the complainant is worthy of mention. She was six or seven, significantly younger than ten, but, of course, not close to babyhood. And, of course, in two cases there are Form 1 matters which must be taken into account when imposing sentence. 31. Despite the fact that the offender is now 20 and turns 21 in June this year, the principles in s 6 of the Children (Criminal Proceedings) Act have application. Some of those principles are not of direct application because of the current age of the offender, but one thing is clear, that the offender is not to be sentenced as though he was a fully mature adult. This offending occurred at the same time as the offender's sexual development was occurring and that, in itself, was detrimentally affected by the ready availability of some less than appropriate forms of pornography over the internet. It is apparent that the offender was developing a sexual interest of a particular type and was able to satisfy his particular desire for sexual gratification by abusing his young cousin. 32. The offender has no other criminal history and, in other respects, apart from this offending, appears to have been a young man of good character. His grandfather, indeed, describes him as a good young man. That assessment appears, apart from the commission of these offences, to be accurate. 33. It was conceded by Mr Krisenthal that nothing less than full-time imprisonment is appropriate and further conceded by him that there would be no application that any part of the sentence be served other than in an adult prison. The offender will be vulnerable while in custody both because of the nature of the offender and the nature of his offences. Of course, it is likely that he will serve at least some of his sentence in protection. It is no longer the rule that it is automatically assumed that those in protection serve their sentence under harsher conditions than those in the general prison population, but I will take into account the risk that that will occur. 34. In assessing the appropriate sentence I was assisted by submissions both from Mr Krisenthal and Mr Crown. Mr Crown referred to two cases, RM [2015] NSWCCA 4 and KBM [2004] NSWCCA 123. I found these cases helpful. Of course, no two cases are alike and sentencing judges are usually able to identify differences between other cases and the cases they are dealing with and take account of those differences in formulating the appropriate sentence. Consistency in sentencing is a very important goal of sentencing judges and I am greatly assisted by the consideration of sentences imposed in other matters. The Crown accurately points out some similarities and differences between the cases to which he referred and the present case. 35. In particular I accept that there were more offences in this case than in RM, that the family relationship and the breach of trust aspect that I have referred to makes this more serious, that the offender in this case was older, and it was clear from the very first time he offended, when he told the complainant to keep it a secret, that he was fully aware of the wrongfulness of his conduct. Again comparing this case to RM, the coercion used by the offender, name calling and telling her that her parents were going to die, was quite serious. And also in contrast to RM, where a great deal of rehabilitation had already been achieved, in the present case there is a considerable amount still to do, given the nature of the offender's sexual desires. 36. I have decided to impose an aggregate sentence in this case. Had I not imposed an aggregate sentence, I would have imposed a sentence of three years imprisonment on each of the matters. I accept that in one case there was an aggravated form of the offence, and in two cases there are Form 1s to be taken into account. I recognise that but, nevertheless, I would have imposed identical sentences on each matter. In the absence of separate sentences I will impose, as I have said, an aggregate sentence. 37. The offender is sentenced to imprisonment. 38. I set a non-parole period of two and a half years, to date from today, 4 February 2016, and a head sentence of five years. 39. The non-parole period will expire on 3 August 2018, on which day the offender is eligible 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: 09 April 2018