District Court New South Wales Medium Neutral Citation: R v Huckstadt [2019] NSWDC 62 Hearing dates: 07 December 2018, 11 December 2018 Decision date: 01 February 2019 Jurisdiction: Criminal Before: King SC DCJ Decision: Convicted. Form 1 matter to be taken into account in sentence imposed for SEQ 3. Indicative sentences: SEQ 1: Imprisonment for 3 years with a NPP of 18 months. SEQ 3 (+Form 1): Imprisonment for 3 years and 6 months with a NPP of 21 months. Aggregate sentence: Special circumstances found – relative young age, 1st time in custody, need for longer period on parole to assist in rehabilitation and return to a useful, non-offending life in the community, and to assist with ongoing treatment and/or counselling in respect of sexual offending. Sentenced to a total term of imprisonment for 4 years comprising of a NPP of 2 years, to commence on 18/8/18 and to expire on 17/8/20, and a balance of term of 2 years to commence on 18/8/20 and to expire on 17/8/22. Eligible for release to parole on 17/8/20. Catchwords: CRIMINAL – sentence – aggregate - 2 counts of sexual intercourse with a person over ten years of age and under 14 years of age, penile/vaginal intercourse – Form 1 matter - sexual intercourse with a person above ten but below 14 years of age, namely 13 years of age,fellatio – text messages may constitute some form of grooming – Victim Impact Statement - subjective matters Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Bugmy v The Queen [2013] HCA 279 Fernando v R (1992) A Crim R 58 Kentwell v R (No 2) [2015] NSWCCA 96 Category: Sentence Parties: Regina Christopher James Huckstadt Representation: Solicitors: Crown: Mr K Ng Defence: Ms C Nicol File Number(s): 2017/00286917 Publication restriction: Non-Publication Order re name of the complainant or any evidence which might identify the complainant Judgment 1. HIS HONOUR: In this matter, Christopher Huckstadt appears for sentence in respect of two offences, each offence being an offence of having sexual intercourse with a person over ten years of age and under 14 years of age. In each case, the act alleged was penile/vaginal intercourse and was contrary to s 66C(1) of the Crimes Act 1900. The maximum penalty provided is 16 years' imprisonment and there is a standard non-parole period of seven years. 2. When being dealt with for the second of those offences the Court is asked to take into account a further offence contained on a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999. That offence is a further offence of sexual intercourse with a person above ten but below 14 years of age, namely 13 years of age, and relates to the same complainant as do each of the previous charges referred to. The allegation is an act of fellatio performed on the offender by the complainant on the second occasion shortly prior to penile/vaginal intercourse. 3. The offender was committed for sentence on 7 December 2018 from the Young Local Court, and I accept that the plea was at the earliest opportunity, and that he is accordingly entitled to 25% discount for the utility of the plea as referred to in Thomson and Houlton (2000) 49 NSWLR 383. Such a discount will be applied. 4. The facts are agreed and they are as follows: 5. AA, the complainant was born in 2003 and resided with her mother BA in a unit in [redacted], Young. 6. Ms BA volunteered at the [redacted] in Young. The complainant sometimes also attended the [redacted] with her mother. 7. Around September 2016, the offender, born in 1994, met and became familiar with the complainant at the [redacted] as he also volunteered there. 8. The complainant and the offender commenced communicating via Facebook Messenger and text messages. On 12 December 2016, the offender asked the complainant how old she was, to which she responded "13, why?" 9. The messages between the offender and complainant soon adopted a sexual connotation and led to an exchange of sexually explicit messages between the two. Sequence 1, sexual intercourse with a child above ten years under 14 years s 66C(1) 1. Towards the end of 2016, in either November or December, the complainant attended the offender's address at a unit in Spring Street, Young, during the day. Whilst the offender resided with a number of other people at those premises, he was alone at the time. 2. The complainant and the offender went into the offender's bedroom, lay down on the offender's bed and removed their clothes. The offender engaged in penile/vaginal sexual intercourse with the complainant for a short time. The offender and complainant put their clothes back on and the complainant left the residence. 3. The offender was 22 years of age at the time and the complainant was 13 years of age. 4. Around 10 March 2017, the lease on the offender's residence was terminated. The offender stayed at a number of hotels and caravan parks before the complainant's mother offered the offender to board with them while he was making arrangements for more permanent accommodation. 5. The complainant's mother did not know that the offender and her daughter had previously engaged in sexual intercourse. 6. It was agreed that the offender would sleep on the lounge in the lounge room and pay board at $100 per week. The offender stayed with the complainant and her mother until 1 June 2017 when he took a lease on premises in Wombat Street, Young. 7. In May or June 2017, the offender and the complainant were at the complainant's residence. The complainant's mother was not at home at the time. Sequence 2, sexual intercourse with a child greater than ten years under 14 years, s 66C(1) - Form 1 1. The complainant and the offender entered the complainant's bedroom and got onto the bed. The offender put his penis into the complainant's mouth and she performed fellatio on him. Sequence 3, sexual intercourse with a child greater than ten years under 14 years, s 66C(1) 1. The offender then removed his penis from the complainant's mouth and inserted it into her vagina and engaged in penile/vaginal sexual intercourse with the complainant for a short time. 2. At the conclusion, the offender and the complainant went into the lounge room and watched television together before the complainant's mother returned home. 3. The offender was either 22 or 23 years of age at the time. The complainant was 13 years of age. 4. The offending came to light as a result of unrelated investigations which led police to examine the complainant's mobile telephone, wherein a number of sexually explicit messages between the offender and the complainant were identified. On 30 June 2017, the complainant participated in an electronically recorded interview and disclosed the offending as referred to, to the police. 5. On 21 September 2017, the offender was arrested and taken to Young Police Station, where he participated in an electronically recorded interview and denied that the above offending had taken place. 6. It has long been regarded that offences contrary to s 66C(1) must be regarded seriously. That the legislature has so regarded them can be seen from the fact that the maximum penalty provided is 16 years' imprisonment and that a standard non-parole period of seven years is also relevant. The community has long seen the need to particularly protect young persons who are immature and lack a real understanding of the significance of sexual conduct. 7. Indeed. as a result of the recent Royal Commission into the abuse of children, even though it has been evident for many years, it has become even more patently obvious that while young victims of such offences do not necessarily appreciate their seriousness at the time of the offending, with increasing age and greater maturity, they come to recognise the significance of the offences committed against them, and the offences generally have very serious consequences in terms of their further emotional development and ability to relate to other persons. It is for those reasons that such significant penalties have been provided by the legislation. 8. At the time of the offending, the offender was 22 years of age. He was well aware of the offender's age, being 13, and he was well aware that she was of an age at which she could not consent to sexual intercourse. On behalf of the offender, a report by Emma Hubner, psychologist, of Duffy Robilliard psychologists, was provided and became part of Exhibit H1. In that report the offender was recorded as giving his understanding at para 34, "Mr Huckstadt understood the age of consent to be 16 years old", he said, "It's for the safety of the underage person, their mindset isn't mature". When asked how this related to his offending, he said "I stopped halfway through both times because I had second thoughts and I felt shamed because I know what's right and wrong and I regretted it afterwards." 9. It is clear in the circumstances of that statement, that he clearly understood the purpose of the legislation, and claimed that it had an effect on him to the extent that he stopped halfway through both times because he had second thoughts and felt ashamed because he knew what was right and wrong. It is remarkable in those circumstances that having engaged on the first occasion in an act of sexual intercourse, being penile/vaginal intercourse, that some months later he repeated the process with two different forms of sexual intercourse, being fellatio and penile/vaginal intercourse, in circumstances where he claims to have stopped halfway through on the first occasion because he realised it was wrong. 10. There is no evidence in respect of this matter of any force or even significant persuasion of the complainant. Although the text messages between the complainant and the offender have not been presented on sentence, it would appear likely that there was in fact some form of grooming that went on between them, although that may be placing it too high. 11. On the second occasion, the facts are unclear as to whether the offender was in fact at that time residing in the same premises as the complainant, as a result of his need to find new accommodation. It is equally likely on the facts that the offending on the second occasion occurred after he had in fact moved out of those premises and was then residing in different premises; however the offending conduct on the second occasion in relation to both acts was in circumstances where it occurred in the complainant's home, an aggravating circumstance under s 21A subs (3). 12. I am not able to say on the facts that there was any breach of trust, although there was clearly some failure to act within what might be referred to as the ordinary bounds of friendship with the complainant's mother. 13. The acts themselves were, on each occasion, of relatively short compass in time. There is no evidence of injury resulting in any way to the complainant, at least physically, and she was towards the upper end of the range between ten and 14, being 13 years of age at the time. In the circumstances, I am of the view that the objective seriousness in respect of the first in time offence, falls towards the lower end of the range, although not at the lowest end of the range, and in respect of the second occasion of offending, that it falls, in each case, towards the middle of the range, although not at the middle of the range. As I have said, all such offences in relation to children between the age ten and 14 must be regarded seriously by the courts. SUBJECTIVE MATTERS 1. The offender was 22 years of age at the time. He is now 24 years of age. I note that he has no previous criminal history, nor indeed is there any evidence of any offending post the date of these offences. 2. He is the third youngest of eight children born of his parents' union, his mother being Aboriginal and his father Caucasian. He has some vague recollection of his mother moving the family from Penrith to Cootamundra in a van when he was three years of age. His father was absent at the time, apparently being in custody. 3. While in Cootamundra, he and his younger siblings, being a brother and sister, were placed in foster care because of their mother's chronic substance use and her past violent relationship with their father when he was at home. His mother was referred to as having been physically abusive towards him. However, having been with a foster family for approximately six months, the children were removed due to suspected physical abuse of them, apparently being directed predominantly towards his younger sister. They were then re-homed with another family in Cootamundra. They had a positive relationship with the new foster parents and the foster parents' older teenage children. However, when the offender was approximately 11 years of age, his foster father received a heart transplant and unfortunately died approximately two months later. That changed the dynamics of the family, and particularly the foster mother's attitude towards him and his biological sister. 4. He later reconnected with his fourth eldest biological brother when he was 12 years of age; a bond developed and he began to live together with a paternal uncle. However the paternal uncle was often absent due to work commitments, and they were left unsupervised, as he explained to the psychologist, "We had an awesome time doing our own thing." 5. At 15 years of age, Family and Community Services became aware of the situation and placed him with a single female in Wee Jasper. He resided there with his youngest biological sister and two other foster children and his carer's biological son, being much younger, and the foster carer's teenage niece. Although he spoke positively of his foster carer, she was apparently addicted to prescription medications. 6. He left foster care at the age of 17 and returned to Cootamundra, reportedly living with a female friend before being granted accommodation by the NSW Department of Housing. 7. At the age of 20, he relocated from Cootamundra to Young, where he lived in a household of seven people. This included one older friend and a family with four small children. 8. At the age of 23, he moved into his own one bedroom unit in Young. However, he invited his pregnant partner and a female friend to reside with him and within a matter of months his girlfriend's mother, brother and cousin joined them, as did a friend of his girlfriend's family. He was apparently responsible for all of the household expenses, and it became, clearly, in the circumstances, stressful. His relationship with his partner was strained because she frequently left him to live with her ex-partner, and there was an issue between then as to whether her pregnancy was a result of the relationship with the offender or the ex-partner. The lease was terminated in early 2017. He lived in a number of motels and at the local caravan park until he was offered accommodation by the complainant's mother. 9. I accept that the offender's father was absent throughout his childhood, apparently most likely because he was in custody for much of his early years, and of course also the offender was, for significant periods, in foster care. I accept that his mother suffered from chronic substance abuse and he was exposed to violence in the home both from his mother and father, when the father was at home. 10. Foster care placements resulted in his separation from some of his siblings and he was subjected to violence during his first placement. He was subsequently identified as having a learning disorder and a speech impediment, being a stutter, which I note during the course of his evidence today is still evident, although it is not a dramatic stutter. Subsequently his schooling was limited; he left school in Year 7 but returned in Year 9, finishing Year 10 at TAFE. 11. He has previously been diagnosed with moderate depression and anxiety, and when he was nine years of age there was a diagnosis of ADHD. His intellectual functioning has been described, and I accept, as being within the below average range. I accept that he struggled socially from a young age and prematurely left high school due to symptoms of anxiety. I accept that he has experienced low self-esteem and fears of social rejection. I accept that what are sometimes referred to as the "principles" evident from the cases of Fernando (1992) A Crim R 58 and Bugmy [2013] HCA 279, are applicable to this offender and reduce his moral culpability in relation to the offending, and that factor will be taken into account in determining the sentence. 12. Ms Hubner, psychologist, opined that there was a link between the offender's personality pathology and his offending, Those pathologies including avoidant, dependant, self-depressive and schizoid factors, which combined with his suffering from depression and anxiety at the time of the offences were said to provide a link to the offending conduct as a way of alleviating his acute psychological distress and elevating his low self-esteem and minimising his feelings of social isolation. 13. I do not accept that his personality and pathologies were causative in relation to the offending, although they may certainly have had some relevance in the circumstances in which he committed the offences. They remain relevant to his moral culpability and relevant to the issue in relation to what effect issues of general deterrence or denunciation should have in the sentencing process for this offender, Kentwell v R (No 2) [2015] NSWCCA 96 per Rothman J at (41). 14. Tendered also on behalf of the offender, apart from the report of Ms Hubner, were a number of references, being part of Exhibit H1. I do not intend to itemise them herein. I have had regard to each of them. It is apparent that those who have provided references on his behalf regard him well, and although none of the references are signed, I have no reason to dispute that the referees have referred to their genuine assessment of the offender. 15. I note the reference from Jessica De La Torre, referring to, "I believe, that this is only a one‑off offence his (sic) committed." She otherwise refers to being aware that it relates to two counts. This was not a one‑off offence. The offences were separated by a significant period of time, although I accept in relation to each of the occasions that while not entirely spontaneous, there is some degree of spontaneity in relation to each. 16. Also available to the Court is a Victim Impact Statement from the victim. I had intended to refer to it earlier in these remarks, but I will do so now. It is very short. It refers to the offending having affected her mentally, socially and physically, and making her very depressed, to the extent that she pulled out of school due to not being able to cope with everyday school life. However, in relation to that school life, I note that she goes on to refer to having been threatened due to this matter and consistently bullied. There is no evidence before me that the offender is in any way responsible for any threats or bullying at school. I interpret the Victim Impact Statement as simply being indicative of the unfortunate response of other school children to knowledge that the 13 year old victim had engaged in sexual intercourse with an adult. It is unfortunate that other school children have taken upon it themselves to make her life miserable, but that cannot be sheeted home to the offender. 17. There is otherwise nothing in the Victim Impact Statement that indicates that the effects on the victim are anything outside of the ordinary expectation of the results of offences of this nature. Although, as I have previously referred to, she is still a young person: it may well be that the significant effects do not impact on her until a later period of her life, but at the moment, I am unable to find that there is any impact other than within the range of the expected impacts such offending can have on a young person. 18. The Sentencing Assessment Report of Joshua Begg, dated 5 December 2018, indicates, in addition to what I have already said, that the offender has in fact had no contact with his biological family since the age of 17, that he has previously maintained a period of employment for approximately a period of three years, prior to the index offence, although I note that at the time of the index offence he was actually unemployed. He has given evidence today on sentence and has indicated that he has now been in employment, having achieved that position, while awaiting sentence. A reference from a supervisor of the New South Wales branch of IPS Property Management, for whom he has been working, has been tendered. It refers to him as showing, "a great work ethic, pride in his work, and is very reliable". The author of the undated "To Whom It May Concern" is Mr Jake Yeo. There is no indication that he was aware that it was being provided for the purpose of sentencing in respect of these criminal offences, although I accept that Ms Nicol has indicated this morning from the bar table, without objection, that she has in fact, recently spoken to Mr Yeo in relation to that reference, and I accept that he is at least aware of the offences. 19. Under the heading, "Attitude", the report contains the following: "Throughout the assessment phase, Mr Huckstadt was minimising of his level of accountability for the offences, making statements to shift responsibility onto the victim, and to defame her by claiming she was also involved with numerous other persons at that time. Mr Huckstadt nevertheless acknowledged that he is responsible for his own actions and advised that in hindsight he should not have engaged in his actions. Mr Huckstadt had advised that he was aware of the victim's age but gave it little consideration." 1. As to his insight into the impact of offending, the report contains the following: "Mr Huckstadt demonstrated an apparent lack of insight into the impact his actions have had upon the victim, her family and the greater community. When directly asked, he stated he "supposed it would impact her schooling" and he "can't think of anyone else being impacted", demonstrating minimal victim empathy." 1. He was assessed as being a medium/high risk of reoffending, according to the Level of Service Inventory - Revised. 2. Also provided, together with the Sentence Assessment Report, was a New South Wales Department of Corrective Services Pre-Sentence Consultation Report by Dr Rachel Bailey, being a clinical psychologist with the Sydney West Cluster of Corrective Services, New South Wales. In that report she stated: "In regard to the index sexual offending, Mr Huckstadt reportedly blamed the victim. He was also observed to defame the victim (i.e. stating that six other people had been similarly charged for having a sexual relationship with the victim). Mr Huckstadt stated he does not feel that he needs to change, although he would be willing to engage in interventions and services as required...based on available information it would appear that Mr Huckstadt has provided varied information to different service providers and over the course of interviews with Community Corrections. The function of this behaviour is currently unclear, however this may indicate that Mr Huckstadt may experience difficulties co‑operating with supervision, lack insight into the understanding of consent and may demonstrate attitudes that are supportive of sexual offending." 1. Ms Hubner, in her report, assessed him as being in the moderate range of risk of reoffending and using the structured risk assessment instruments, she found him to be within a combined risk range of low to moderate. I would accept that he is at least in the moderate range of risk of reoffending on the basis of the material before me. 2. The offender gave evidence on sentence today, and during the course of that evidence said he now felt remorseful and ashamed. He was asked how did he think that his offending would affect the complainant? He stated words to the effect, "It would impact her, her family and people around her". He was asked how he felt it would affect the community and he said words to the effect of, "for other people's safety and her family" - I was unable to decipher all his words in that passage. However, that evidence came in the circumstances of the content of the Sentence Assessment Report and the psychological report prepared by Dr Bailey from Corrective Services. 3. A plea of guilty does not of itself necessarily reflect remorse and contrition, although it may frequently be an indicator of such. I accept that there is some evidence of remorse or contrition, but I would not classify it as being of a high quality in the circumstances of the earlier reports, (Sentence Assessment Report, Corrective Services Psychological Assessment) and the contents of those reports as to the offender's wish to deflect the blame from himself by denigrating the complainant in the manner that he has done. No doubt, with the knowledge of the content of those reports, he was at least today prepared to be somewhat more expressive of remorse or contrition, although it was hardly fulsome. I will accept that there is at least some evidence of remorse and contrition. 4. As to the risk of reoffending, I am uncertain that the offender has really taken on board the significance of his offending conduct and the consequences that it may have for the victim, nor what effect such offending might have on any other person in the future, if such offences were repeated by him. In the circumstances, I am not prepared to accept that he is at low risk of reoffending, but I will at least accept that he approaches that level. 5. For the purposes of sentencing, the Court must have regard to s 3A of the Crimes (Sentencing Procedure) Act 1999 and take into account any aggravating or mitigating factors as referred to in ss 21A(2) and (3) of that Act. The only aggravating factor, in my view, is in relation to the second count in the Form 1 offence occurring in the home of the victim. The significant mitigating factor is the fact that he has no previous history of criminal offending at the age of 24, that is, previous to this offending or since this offending. 6. Any sentence imposed by the Court must reflect the objective seriousness of each of the offences as well as, in my view, reflecting the need for both general and specific deterrence. I regard specific deterrence as being important in relation to this offender because of the reoffending within a period of months in relation to the same 13-year-old child victim. General deterrence is of course always important in respect of matters such as this, having become even more particularly important because of the knowledge gained as a result of the recent Commission into Child Abuse and its consequences. 7. Of course, any sentence must reflect the fundamental purpose of punishment, that is, the protection of society. I am satisfied pursuant to s 5 of the Crimes (Sentencing Procedure) Act, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. I intend to proceed by way of an aggregate sentence and, accordingly, I am required to provide an indicative sentence in relation to each of the two offences, also taking into account the Form 1 offence in relation to the second of those. As the offences have both a maximum term and a standard non-parole period, I am required to indicate not only a head sentence, but an indicative non-parole period before imposing the aggregate sentence. 8. In relation to the first offence of sexual intercourse with a person between the ages of ten and 14, being 13 years of age, occurring in November or December 2016, the indicative sentence is a term of imprisonment of three years with a non‑parole period of 18 months. In relation to the second offence of sexual intercourse with a child over ten and under 14, that is, 13 years of age, occurring in May or June 2017, that is, approximately five or six months after the last offence, and taking into account the Form 1 offence of fellatio, the indicative sentence is a term of imprisonment of three and a half years with a non-parole period of 21 months. The aggregate sentence is a sentence of four years' imprisonment with a non-parole period of two years. 9. The offender has already spent 167 days in custody as a result of his arrest on 21 September 2017, and his not being released to bail until 6 March 2018. Accordingly, I have backdated the sentence from today by 167 days. That means that the sentence commenced on 18 August 2018, and having found, as will be evident from the indicative sentences, special circumstances in relation to the indicative sentences, the non-parole period was reduced to 50% of the full term, that was a reduction from the statutory relationship of 75% in each case. 10. I intend to apply the same discount to the aggregate sentence. Accordingly, that is why, while the sentence is four years, I have provided a non-parole period of two years, the special circumstances being: 11. 1. The offender's relatively young age, 12. 2. The fact that it is his first time in custody, and 13. 3. As I see it, a need to have a more extended period on parole to assist him in rehabilitating into the community and becoming a useful and productive member of it, and, in addition, any continuing assistance in relation to sex offending. 14. I should note that the non-parole period expires on 17 August 2020 with a balance of term of two years, meaning that the full term of the sentence expires on 17 August 2022. Having already spent time some in custody I am sure the offender is aware that if when released on parole he is in breach of the conditions of his parole, he will inevitably find himself returned to custody serving the balance of any parole period. 15. Mr Huckstadt, you will hopefully have the opportunity while in custody to take part in programs specifically designed to assist persons who commit sexual offences. You should embrace those heartily and make a real effort to get on top of any potential problem before you are released into the community, and if there is ongoing treatment suggested for you, you should again partake in that wholeheartedly. Any further offence of this nature will see you serving a much more significant sentence. I don't think there's anything I've omitted. Is there anything I've failed to address? NICOL: No. NG: Not from our perspective, your Honour. HIS HONOUR: Ms Nicol, you're no doubt aware under the new legislation there's no need for me to actually make an order for release on parole, because it's now a statutory provision and the conditions of the parole are entirely for the authorities rather than for the Court. NICOL: Yes. ********** Amendments 21 March 2019 - paragraph [5]-[7]: anonymisation of personal identifiers 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: 21 March 2019