R v NK [2019] NSWDC 549

District Court New South Wales

Medium Neutral Citation: R v NK [2019] NSWDC 549 Hearing dates: 5 August 2019 Date of orders: 05 August 2019 Decision date: 07 August 2019 Jurisdiction: Criminal Before: Judge W Hunt Decision: Sentenced to an aggregate term of imprisonment consisting of a head sentence of 4 years with a non-parole period of 30 months Catchwords: CRIMINAL LAW – Sentence – Indecent assault of a person under 16 years of age – Aggravated break, enter and steal – Opportunistic offending – Mild intellectual disability – Dysfunctional and disturbing family history - Totality Legislation Cited: Crimes (Sentencing Procedure) Act Cases Cited: Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 R v Engert (1995) 84 A Crim R 67 DPP (Cth) v De La Rosa [2010] NSWCCA 194 R v Hemsley [2004] NSWCCA 228 R v Hemsley [2004] NSWCCA 228 Category: Sentence Parties: The Crown NK Representation: Counsel: Mr A Evers – The Offender

Solicitors: Director of Public Prosecutions – The Crown Legal Aid Commission – The Offender File Number(s): 2016/223712 Publication restriction: There is to be no publication of the name of the complainants or any material which may tend to identify the complainants

Judgment 1. HIS HONOUR: NK is before the Court for sentence in relation to two offences. One is a breach of s 61M(2) of the Crimes Act, that is, indecent assault of a person under the age of 16 years. That matter has a maximum penalty of ten years' imprisonment and a standard non-parole period of eight years has application. The second offence is an offence of aggravated break, enter and steal and commit serious indictable offence, being an indecent assault in breach of s 112(2) of the Crimes Act which matter has a maximum penalty of 20 years' imprisonment and a standard non-parole period of five years'. 2. I will have regard to the maximum penalties and the standard non-parole periods as guideposts or benchmarks in the way that is contemplated by the authorities. 3. The position in relation to the s 61M(2) offence on KB is that Mr K was committed for trial on 20 June 2017 from Nowra Local Court. The first trial date was listed in April 2018 but that date was vacated. A plea of guilty was entered on the first day of the second trial listing, on 25 October 2018. Mr Evers contends that it is within the Court's discretion to impose a sentencing utilitarian discount for that matter in the order of 10% and the Crown did not want to be heard against that. In due course on the indicative sentence that I propose to announce will be calculated with a 10% utilitarian discount engaged. 4. The second offence, in which EB is the victim, the offender was committed for sentence on 18 June 2019 from Nowra Local Court in relation to that plea from the Local Court. Mr Evers contended that it was within the Court's sentencing discretion to impose a utilitarian discount of 25% and the Crown did not want to be heard against that. In due course in relation to the indicative sentence that I propose to announce that will have a 25% utilitarian discount applied. 5. The offender's custodial position is a little complex and I intend to return to that matter in due course. 6. The facts in relation to both matters are agreed and form part of the Crown sentencing bundle. I ought to observe that I heard evidence and submissions in this matter at 2 o'clock on 5 August 2019, being the first day of the Nowra sittings, and the Court simply ran out of time to give its reasons that day. Although there has been a two-day adjournment, I have been engaged in dealing with a range of other matters in the court list, and accordingly these remarks should be understood really to have the character of ex tempore remarks rather than a fully reserved decision. 7. The facts in relation to count 1, s 61M(2) offence are that at the time of the incident the victim was aged 15 years of age and the offender was then 20. The two people were known to each other as family friends and shared mutual friends. The offender was a regular guest at the victim's home and had spent the night in that house on a number of occasions, generally sleeping in the lounge room, but on occasions when the victim was absent he would sleep in her bed. 8. In around May to June of 2015 the victim complained to her mother about an incident involving the offender in March of 2015. Police were contacted and on 29 July 2015 the victim participated in a recorded interview. During the interview she disclosed details of an incident with the offender which took place in the night time sometime in March of 2015. The victim stated that on the evening of the incident she returned home from being at a friend's place. At that time her mother was in bed and the offender and another mutual friend, K, who was also 15 years of age, were in the victim's bedroom talking. The offender was lying on the victim's bed and K was sitting on the floor. 9. The victim got into bed next to the offender; at the time she was wearing long pants, a T-shirt, undies and a bra. The offender was wearing shorts and a shirt. The victim said to the offender, "When I go to sleep you have to get out". The victim, the offender and K continued talking until another friend, by the name of J, arrived 20 minutes later. At some stage the victim fell asleep with the offender still in bed beside her. K and J were still in the room when the victim fell asleep. 10. Sometime later she woke and could feel fingers rubbing the outside of her vagina, underneath her pants and underpants. The complainant pretended to remain asleep and rolled over from her back onto her side. She felt the fingers being removed from the outside of her vagina and she fell back to sleep. The following morning the victim woke up and saw that the offender was still in bed beside her. He woke up, got out of the victim's bed and left the room. 11. The victim told police that at the time her vagina was being touched she did not open her eyes and she did not look at the face of the person during the incident, but she knew it was the offender because of his rough, sandpapery hands which she had noticed in the past. The victim told the police that she had made a complaint to her friend K as soon as she woke up and had told her what the offender had done. 12. Although the person K told the police that the complainant approached her in the middle of the night, the history given by the victim to her is consistent with the facts that I have just described. 13. On 25 July 2016 the offender was taken from the general custodial part of Wellington Correctional Centre under a s 25 order into the police room. He was placed under arrest and cautioned. He was given the opportunity to participate in a record of interview, which he accepted. He stated that he had known the victim for just under a year after becoming friends with her mother. He indicated that he used to hang out with her and her family on a daily basis and was a trusted friend. He denied the allegation. 14. In relation to assessing the objective seriousness of that offence I take into account the following; that the circumstances of the offending included what one could describe as "skin on skin" contact in the area of the victim's vagina, underneath her underpants, that there was 5 years of age difference between them, the offender at 15 years was towards the top of the range of victims who are caught by this offence in terms of the prescribed age. 15. The circumstances that the offending included that the offence was committed in the victim's home and that the offender was a guest there. Given he was a trusted friend I consider that there was a breach of trust in terms of his involvement. It would seem, on the material before me, that the touching was very brief in time. There is no suggestion that the offence was planned, it was rather an impulsive and opportunistic act and happily for the victim, at the time that she moved away the offender desisted. There is no other aggravating conduct. 16. I would consider that the objective seriousness of this matter is in the middle range of objective seriousness, but towards the bottom of that range, but not reaching the low range of objective seriousness. 17. The facts in relation to the second offence, in which EB and, by extension, her family were the victims, what I mean by that is that the whole family was the subject of the break-in even though it was EB that was the subject of the indecent assault, are as follows. At the time of this offence the offender was 22 years old and EB was eight years of age. She lived at an identified address with her mother, her father and her sister. The offender was not previously known to the victim, however, he had visited her house previously as his younger sister was friends with EB's older sister. Whilst at the house he had briefly met EB's mother. 18. At around 2.20am on 18 March 2016 the offender entered the victim's residence by breaking through the flyscreen and manipulating the locked screen door. He was then able to open the closed but unlocked front door and enter the premises. At this time the victim was asleep on a mattress in the centre of the lounge room and her mother was sleeping on a couch next to that mattress. Her father and sister were asleep in their respective bedrooms. After breaking into the house the offender approached the victim while she was asleep on the mattress; she was only wearing underpants at the time. The offender leant down and touched the victim in the vicinity of her underwear. It is impossible to say exactly where. 19. EB's mother was asleep on the couch next to the mattress. She had been watching a movie with the victim but had fallen asleep. She awoke to see the offender standing at the foot of the victim's mattress. It was dark and the TV was off, but she could see that the person was of a large build. She initially thought the person at the foot of the mattress was her husband, but quickly realised it was not. She immediately called out her husband's name. The offender was wearing dark pants, a dark jacket with a hood and a cap backwards. The mother of EB got off the couch and armed herself with a knife from the kitchen. At the same time the offender ran out of the front door. 20. EB's mother contacted triple-0 and police attended shortly thereafter. 21. EB's father was woken by her mother and she told him what she had seen. The father armed himself with knives and went outside to look for the offender, without any success. 22. On 18 March 2016, EB attended the Wollongong Child Abuse Squad along with her mother. She participated in an electronically recorded interview, including disclosing she was asleep on a mattress in the lounge room when she was woken up by her mum yelling out her father's name. She recalled waking up and seeing a man dressed in all black standing at the end of her mattress. 23. In due course the victim underwent some sexual assault information kit and DNA testing, including what is called an early evidence kit. She was later taken to Wollongong Hospital after certain wipes were collected by police after EB had undertaken certain actions that are disclosed in the facts. She was later taken to the Wollongong Hospital and underwent a medical examination, which included the use of various swabs, to form part of the sexual assault investigation kit. 24. In relation to a vulval swipe the offender could not be excluded as a minor contributor to the DNA mixture that was located on the vulval swipe. The DNA lift was obtained from the front interior and exterior of the victim's underpants. Those tape-lifts were forwarded the laboratory for DNA analysis. From the front, exterior of the underpants a mixed DNA profile was recovered; the offender could not be excluded as being the major contributor to that mixture. An analysis of the tape-lift from the inside of the underpants also revealed a mixed DNA profile. Neither the victim or the offender could be excluded as a contributor to that mixture. 25. Notwithstanding that mixed set of scientific results, I intend to proceed to sentence on the basis of what has been agreed in the narrative above. 26. Ultimately the crime scene was also examined and police took a tape -lift from the exterior hole of the flyscreen caused by the offender. A mixed DNA profile was recovered. The offender could not be excluded as a contributor to that mixture. 27. On 25 July 2016 the offender was arrested and cautioned at Wellington Correctional Centre where he was transferred into the custody of police. He participated in an electronically recorded interview, denying the allegation. During the interview the offender stated that he knew the victim. He explained that his younger sister was friends with EB's sister. He stated that he had been inside the premises on two separate occasions, once was about a week prior to 18 March, where he was introduced to EB's mother through his younger sister. He was then charged with the offence. 28. In terms of assessing the objective seriousness of this matter I take into account first that there was a very big age difference between the victim, at eight years of age, and the offender at 22 years of age. The offence involved an intrusion into a family home and offending against a vulnerable, sleeping child. Against an age range, in terms of the specified offence of indecent assault on somebody under the age of 16 years, the victim's age, at eight years, was very tender. The nature of the offence, touching the victim in the vicinity of her underpants, is a serious invasion of EB's personal space and entitlement to innocence and safety in her family home. 29. The circumstances of the offending, the break-in itself was relatively limited compared to some circumstances in which break and entry is committed. For the purpose of s 112(2) offences the circumstances are that the breaking and entry into the premises took place after 2 o'clock in the morning at a time that the offender must have known that the residents of the premises were highly likely to be asleep and vulnerable because of that. 30. Mr Evers, responsibly in my view, conceded that because of a range of particular factors in this matter that the offence fell at least in the midrange of objective seriousness. The Crown submits that this matter is above the midrange and, viewing all those matters collectively, I consider that the matter is above the middle of the midrange of objective seriousness, but not approaching the high range of objective seriousness. 31. EB's father delivered a victim impact statement in which he eloquently expressed the effects of this offence both on EB and the balance of the family. His detail of the way that the sense of security for the female occupants of the house, and particularly EB, and a sense of an effect on his feeling of being properly unable to protect the female residents of the home, being his wife and his children, was stark in explaining the profound effects of offending of this kind. I will take that victim impact statement into account in the way that I am permitted to both by the legislation and by authority. 32. I want to move to some matters that are personal to the offender. In terms of his criminal history he first came to the attention of the Children's Court for a fairly innocuous offence of offensive behaviour at a time that he was 15 years of age. Thereafter, at the age of 22, he was before the Local Court for matters of stalk and intimidate and destroy property, although the objective seriousness of those matters must have been relatively low because the Court imposed a s 10 bond of 12 months in relation to those matters. He was ultimately called up for a breach of that bond and fined $500 in relation to each of those offences. Thereafter the offender was before Nowra Local Court in 2016 in relation to a destroy or damage property for which he was fined. 33. The final matter on his record before the Court comes to deal with these matters has greater relevance to the Court's consideration, both in terms of structuring the sentence and considering Mr K's prospects of rehabilitation. On 16 June 2016 the offender committed an offence of assault with an act of indecency. For that matter he was convicted and imprisoned for two years with a non-parole period of 15 months. That sentence commenced on 21 June 2016 and the date on which he was eligible to be considered for release to parole was 20 September 2017. I will return to that aspect in due course. 34. In relation to the offender's record his record denies him the leniency that might be afforded to somebody who committed these offences without any criminal record at all. That said, of course, it is accepted that in relation to offences of interfering sexually with juveniles, good character is to be given less weight in the sentencing exercise than might otherwise be the case. As I have indicated the record needs to be taken into account in a different way in terms of assessing Mr K's prospects for rehabilitation which I will come to in due course. 35. Within the Crown bundle I have also considered the facts in relation to the offence for which the offender was first imprisoned. I have read those facts which relate to the indecent assault on an adult woman staying over the night in a premises where the offender was also staying over. Although that offence does not have the feature of involving a juvenile victim the conduct disclosed in that indecent assault arguably represents an escalation of sexual misbehaviour. 36. Also in the Crown bundle is a pre-sentence report. This report was prepared in relation to events attaching to the charge concerning EB. Within the material the offender denied committing the index offence, although it must be said that at that stage he was before the Court for a more serious offence that is no longer the subject of prosecution. The Community Corrections officers at Silverwater Parole Unit assessed Mr K as being a medium risk of reoffending. The author of that report considered that the offender would benefit from a period of supervision by Community Corrections in the community. Case management strategies thought appropriate at that time included referral to and monitoring of psychological treatment to address Mr K's sexual offending, alcohol and other drug treatment. 37. Before the Court there are three reports assessing the offender at various times by Ms Emma Hubner who is a forensic psychologist working for Duffy Robilliard. After undertaking an initial assessment of Mr K in her detailed report of 27 November 2017 Ms Hubner determined if was appropriate that there be some testing undertaken to determine Mr K's current cognitive capacity and the results of that testing are to be found in her report of 7 February 2018. Thereafter, because there was a need to assess Mr K's adaptive functioning, which could not be properly tested on that second occasion, Ms Hubner prepared a final report on 26 February 2018 after there being material taken in relation to Mr K's adaptive functioning by way of a structured interview with his mother. 38. As a result of all the assessments Ms Hubner assesses Mr K's deficits as being consistent with a diagnosis of mild intellectual disability which is also known as intellectual development disorder. Among some of the sequelae in relation to that diagnosis includes poor reasoning and problem‑solving skilling, a lack of social inhibitors and problems linking actions with potential consequences. 39. One of the assessments made by Ms Hubner is that if Mr K admits responsibility for his sexual offending, which he has by his pleas and also by his evidence given on 5 August 2019 in this Court, he could benefit from being assessed for the Self-Regulation Program - Sexual Offenders which is known as SRP-SO. That is a prison-based residential therapy program for men who have sexually abused adults or children. It is targeted towards providing sex offender treatment to offenders with an intellectual disability of other cognitive impairment, and those who have limited adaptive skills in the gaol environment. It would be recommended by me, given the balance of the evidence in this case, that Corrective Services consider Mr K for early placement within the Self-Regulation Program: Sexual Offenders. 40. It is often the case that in terms of histories given to assessing professionals by Ms Hubner the Court is not able to place particular weight on a history given. In circumstances in which Mr K gave evidence and adopted as true the contents of Ms Hubner's report, I am largely prepared to place weight on it particularly when some aspects of it are either corroborated by the sentence assessment report or by the offender's antecedents as the case may be. 41. The offender had a difficult upbringing. He has two siblings who are older than him, each born to separate fathers, and he has two half-sisters born to the relationship between his mother and his stepfather. His parents separated at the time that he was an infant. His mother re-partnered with his stepfather who took a disciplinarian role and used harsh physical punishment to enforce household rules. The offender had minimal contact with his biological father after his parent's separation, had no contact with him between the ages of five and 20 years. He reunited with his father at the age of 20 and remained in contact with him for a few months, but the relationship finally broke down. He remains supported to some degree by his mother and his siblings. 42. Although in the course of Ms Hubner's first assessment the offender disclosed having been sexually assaulted by his paternal step-uncle a couple of times, when he gave sworn evidence before me he was not able to recall that incident. There are other details of sexual abuse outlined in Ms Hubner's report that were corroborated by Mr K's evidence. He indicated that he was abused by two of his paternal cousins. In relation to the abuse by his male cousin that included unwanted penetrative sex. It happened when he was of very tender years and happened repeatedly. Perhaps more troublingly in terms of his acting out and offending in these matters and in the other matter his female cousin only abused him on one occasion, when he was about seven years of age, which might well have been his very first exposure to sexual matters. She invited him to play with her vagina which was a form of sexual intrusion on him. 43. It is available to a lay person such as myself that there may well be a link between those trespasses on him as a young person and the way he has chosen to offend against others. None of that provides an excuse but it perhaps provides some explanation why somebody like this offender, particularly with a very diminished cognitive set of functions, repeatedly behaves in the ways for which he is before the Court. 44. I am prepared to accept, on the balance of probabilities, what the offender has to say about the offending against him. I watched him carefully while he was giving that evidence and even though it might not have been even apparent to people further away from him in the Court it was clear that he had emotional reactions consistent with distress when he was recalling those events. 45. The offender also reported to Ms Hubner being anally raped in custody during the early part of his current confinement. He gave sworn evidence about that, indicating that Ms Hubner had wrongly identified the colour of his assailant. When I asked him if he had medical treatment in relation to that incident he indicated that he had undertaken a swab, which I inferred to be a swab in relation to ascertaining whether he had contracted some sexually transmitted disease. I took the view that he was authentic in his report. I am prepared to be satisfied on the balance of probabilities that the offender, indeed, was raped at an early stage in his present custody. 46. Returning to his family history, his mother, who he loves and considers supportive, has been diagnosed with both bipolar disorder and post-traumatic stress disorder in relation to matters personal to her and connected with her childhood. Additionally, one of his older siblings has been diagnosed with manic depression. 47. The offender commenced drinking alcohol at the age of 18 years and his drinking escalated so that by the time he was 20 he was consuming about three cartons of beer every two days. He also claimed to Ms Hubner that he was heavily intoxicated the night of the offence that he committed against EB and he gave evidence about that in the witness box. 48. In terms of Ms Hubner's assessment of the offender's risk of sexual recidivism, on the Static-99R test he was assessed to be in the high risk category. Similarly, he was in the high range in terms of his answering of a questionnaire that is known as the Stable-2007. 49. As I have said, the balance of the reports by Ms Hubner go into the detail of various testing to arrive at her final diagnosis. 50. The offender has a background that is, in part, consistent with the kind of dysfunctional family histories that were considered by the High Court in Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 . People with dysfunctional and difficult family histories can properly be seen on occasion to have the moral culpability for their offending reduced because of their inability to assay what is right and wrong. That is more profoundly the case in circumstances of this case. 51. In cases like R v Engert (1995) 84 A Crim R 67 and DPP (Cth) v De La Rosa [2010] NSWCCA 194 and R v Hemsley [2004] NSWCCA 228, courts have repeatedly identified four factors that flow, potentially, from psychological or psychiatric deficits particularly if they are causally linked to the commission of the index offences. Here all four circumstances operate, on my finding. That is because Mr K's very limited cognitive function is lifelong and, accordingly, it is inevitable that there is some causal link between that and the offending. 52. The Crown accepts that the offender's appropriateness as a vehicle for general deterrence and specific deterrence is reduced because of his intellectual deficits. Although I was not addressed on the fact that intellectual deficits can make life in prison more onerous, I think that can be seen to be made out by my finding that the offender was raped while in custody and it is inevitable that in an environment surrounded by people who have committed a variety of offences those who are intellectually delayed are, by definition, going to be vulnerable to the behaviours of others. The Crown, correctly in my view, identifies the fourth and what is commonly known as the countervailing consideration applies. The way I would put it is that somebody with a pervasive intellectual deficit like Mr K potentially poses a continuing risk because of the likelihood of further offences being committed. 53. Having heard his evidence I accept that he is sincere in his remorse. He understands that there may be a link between past offences against him and his past offending against EB and the other victims. Whether he is able to make good his recovery really is an open question on statistical and psychological assessments before me. Mr K would have to be seen to have very guarded prospects of rehabilitation. I am unable to find that he is unlikely to reoffend. I do consider that he is remorseful and even though his evidence was patchy on this issue, which I took to be rather an artefact of his low intelligence rather than a desire to mislead the Court, he gave credible evidence that he had tried to regularly see a psychologist and had often regularly seen a psychologist particularly during the time that he is at the South Coast Correctional Centre. 54. I am obliged to have regard to all the purposes of sentencing as provided for by s 3A of the Crimes (Sentencing Procedure) Act. As I have said, the weight to be given to general deterrence, which is generally a predominant consideration in matters that involved sexual trespass against children, becomes a bit more diluted in this sentencing exercise. Having said that, the kinds of things that were addressed in Mr Martin's victim impact statement underline why it is that the community has an understandable abhorrence for offending against children. Children should be entitled to grow up without being confronted either with sexual trespass or being introduced to sexual contact or sexual ideas in advance of the time that they should naturally occur in a child's lifespan. The offence for EB must have been particularly scary, the notion of an intruder in dark clothing having found his way into the family home and evoking, understandably, very agitated responses from her parents. 55. It must be said that this is a very difficult sentencing exercise because of things pulling different directions. In relation to the sentence that the offender was serving at the time that he was interviewed and charged in relation to both these matters the Crown Prosecutor correctly identifies that the offender would have been dealt with as somebody with no prior sexual offending on his record at the time that the Local Court dealt with that matter. Indeed, had these matters already come to light it may be that the Director of Public Prosecutions may have elected to take that matter away from the Local Court jurisdiction. That said, the offender attracted, after the provision of a 25% utilitarian discount, the maximum penalty available in the Local Court for that offence. The Crown Prosecutor conceded that had all the matters been before the Court at the same time that issues of partial accumulation and partial concurrency would have been available to the relevant judicial officer. Mr Evers contends that the latest possible commencement date for any sentence imposed in relation to these matters ought to be the expiry of the non-parole period for the sentence that the offender was first serving. The Crown Prosecutor contended that it would be within the Court's sentencing discretion to commence the sentence from the end of the total term for that first sentence. 56. While that may be available in the Court's discretion if there is some proper basis made out, I would prefer to approach the matter from the view that it is important for the Court to have regard to principles of totality, partial accumulation and partial concurrence, both in relation to that sentence and these sentences. I have determined to find special circumstances because Mr K needs a longer period in the community, albeit not extended vastly beyond the 25% period on parole that relates to the entire "compound sentence." I have determined to deal with the matters by way of an aggregate sentence. 57. Mr K is convicted in relation to both of the offences. 58. The reasons that I have determined not to impose the standard non‑parole periods available and, indeed, to move significantly away from them, will be divined as being the offender's parlous intellectual state and where I found the objective seriousness of the offending, particularly in relation to the first count together with the other things that I identify s lowering of his moral culpability in relation to these matters. The indicative sentences are after the application of utilitarian discounts and because both of the matters carry non-parole periods I need to identify both a total term and a non-parole period in the indicative sentences. 59. In relation to the 61M matter the starting point for sentence would have been a sentence of three years, and after discount becomes 32 months with a non-parole period of 21 months. The starting point sentence for the s 112(2) matter would have been four years and after the application of a 25% utilitarian discount becomes three years with a non-parole period two years. 60. In relation to the pre-existing sentence, the offender was sentence to a period of imprisonment of two years with a non-parole period of 15 months. I have determined that it is appropriate to commence the aggregate sentence that I am going to impose 12 months from the commencement of that sentence so that it is partially concurrent with the non-parole period by three months and partially accumulative by 12 months. 61. Pursuant to s 53A of the Crimes (Sentencing Procedure) Act I impose an aggregate sentence of four years to date from 21 June 2017 and to expire on 20 June 2021. There is a non-parole period of 30 months which means that the earliest date of Mr K's consideration for release to parole is 20 December 2019. What that means in terms of the compound sentence, that is the whole sentence having regard to the pre-existing sentence and the sentence imposed today, is that the total period is that the offender will serve is five years with a non-parole period of three years and six months.