District Court New South Wales Medium Neutral Citation: R v JA [2019] NSWDC 641 Hearing dates: 31 October 2019 Decision date: 07 November 2019 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Full-time custodial sentence. For Orders see [51] Catchwords: Sexual assault of child under 16 years; 2 counts; aggregate sentence; special circumstances Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 Carroll v R [2019] NSWCCA 243 R v Van Ryn [2016] NSWCCA 1 Category: Sentence Parties: Director of Public Prosecutions (Crown) JA (Offender) Representation: Counsel: B Campbell (Crown) J Carty (Offender) File Number(s): 18/287662 Publication restriction: NB s 578A(2) of the Crimes Act 1900 applies to this matter – no publication of any matter which identifies the complainant or may lead to the identification of the complainant. REMARKS ON SENTENCE 1. The offender pleaded not guilty to four charges on an Indictment when arraigned at the Coffs Harbour District Court on 12 August 2019. On 16 August 2019 the jury returned verdicts of not guilty in respect of Counts 1 and 2 on that Indictment, and verdicts of guilty in respect of Counts 3 and 4. 2. Count 3 was an offence pursuant to s 61M(2) of the Crimes Act 1900, that between 1 June 2018 and 19 September 2018, at Wauchope, in the State of New South Wales, the offender did assault SS, a person then under the age of 16 years, namely, 8 years, and at the time of such assault did commit an act of indecency on the said SS. 3. Count 4 was also an offence pursuant to s 61M(2) of the Crimes Act 1900, namely, that between 1 June 2018 and 19 September 2018, at Wauchope in the State of New South Wales, the offender did assault SS, a person then under the age of 16 years, namely, 8 years, and at the time of such assault did commit an act of indecency on the said SS. 4. The offender had formed a relationship with the mother of the victim in July 2018, and shortly thereafter, moved in to live with her. At that time, the victim and her younger sister had been living with their grandmother the majority of the time. However, they moved home to live with their mother and the offender in early September 2018. 5. The Crown case at trial in respect of Counts 3 and 4 was that on Monday 17 September 2018, the victim, SS, was asleep in her bed. She was wearing a onesy, with a bra and underpants underneath. She awoke to the offender touching her leg. He was using his hand to touch her vagina over the top of her underpants. His hand was moving up and down and the victim pretended to be asleep. This was the conduct alleged in Count 3 on the Indictment. 6. The offender grabbed the victim's hand and placed it on his penis. The offender continued rubbing his hand up and down on the victim's underpants, whilst her hand was on his penis. This was the conduct comprised in Count 4 on the Indictment. 7. At trial, the offender's case, as put in his ERISP interview, was that he denied the allegations in Counts 3 and 4. He denied ever touching the victim on her vagina or going into her bedroom. By its verdict, the jury rejected the offender's denial of the allegations in Counts 3 and 4. 8. The maximum penalty for the offences pursuant to s 61M(2) of the Crimes Act 1900 is 10 years imprisonment. There is a Standard Non-Parole Period proscribed of 8 years imprisonment. The sentence hearing 1. The sentence hearing took place at Sydney District Court on 31 October 2019. The Crown Sentence Summary became Ex A. It included the criminal antecedents of the offender, which included a high-range PCA offence in 1998, and then in 2016, a common assault offence for which he was fined $600, and an assault occasioning actual bodily harm (Domestic Violence related), and a contravene prohibition/restriction in Apprehended Violence Order (Domestic), for which he was sentenced for each offence to imprisonment for 10 months, suspended upon him entering s 12 bonds for a period of 10 months. 2. Exhibit A also included a Sentencing Assessment Report under the hand of Ms T Foley, dated 22 October 2019. The author recorded that the offender's 15 year relationship ended in 2016, which apparently led to the domestic violence related offences referred to above. He had been in constant employment as a motor mechanic up until his arrest in September 2018 on the current offences. 3. Under the heading "Attitudes", the author noted that the offender disagreed with the Crown case and continued to deny the offences. The offender was referred to the Department of Corrective Services' psychologist for assessment, however, the psychologist was not qualified with the facts supporting the two offences. 4. It was noted that the offender expressed no victim empathy as he denied the offences, and it was further noted that he had complied with his previous two s 12 bonds. 5. The author noted that the offender had been assessed at a medium risk of re‑offending and set out a supervision plan to be implemented by Community Corrections if required. He was assessed as suitable to undertake Community Service work. 6. The Sentence Assessment Report annexed a case note report of the psychologist's assessment, which made it clear that it was not a comprehensive report, based on the lack of detail of the offending conduct. The risk assessment carried out was therefore somewhat flawed. The psychologist concluded that the offender was to be assessed within the average risk of sexual recidivism. To access special sex offender treatment in custody would require a minimum non-parole period of 3 years. 7. Exhibit A also included a Victim Impact Statement, written by the mother of the complainant, who is nine years of age. The Victim Impact Statement is referred to below. The offender's evidence 1. The offender's parents, SA and MA, provided a letter on the offender's behalf, which became Ex 1. It spoke highly of their son as a spirited child who was always willing to care for his siblings. He had no problems at school and commenced a motor apprenticeship at the age of 16. He was well regarded in his working life by both colleagues and employers. He had three children by a previous relationship which ended in 2016, whereupon he moved to live with his sister at Wauchope and obtained employment with a local mechanical business. He has the support of his family and has lived with his parents, subject to strict bail conditions, following his release from remand custody in May 2019. He has complied with the onerous conditions of his bail, including reporting to Taree Police Station three days per week, which involved an 80 kilometres round trip. 2. The offender also tendered his Bail Acknowledgement (Ex 2). The bail conditions included a residential condition to live with his parents, a curfew between 9pm and 7am, a condition not to drink alcohol, or approach within 6 kilometres of Wauchope, and a further condition not to make or attempt to make any contact with any complainant or Crown witness. Others conditions related to abstaining from illegal drugs and not applying for a passport. The offender also was subject to an agreement to forfeit $20,000 if he failed to appear, which was secured by his parents forfeiting the deeds to their house. The Crown submissions 1. The Crown relied on a written outline of submissions. The Crown submitted that the jury verdicts in relation to Counts 3 and 4 meant that the jury was satisfied beyond reasonable doubt of the essential honesty of the victim in relation to the incident which occurred on 17 September 2018, and about which the victim complained to her mother the following night. The victim had, a short time prior to the offending, returned from living predominantly with her grandmother to reside with her mother. When interviewed on 19 September 2018, she described the circumstances of the two offences from Q 292 of her interview. She told police that the offender came into her bedroom when she was asleep and commenced to touch her on the genitals, inside her bed clothes, but outside her underwear (Count 3). He also took her hand and placed it on his exposed penis (Count 4). 2. The Crown submitted that the two offences involved serious offending. The victim was a vulnerable eight year old child who was asleep in her own bed, in her own house at the time of the offences. Further, the offender was trusted to be in the house with the victim and the offending represented a significant breach of that trust. 3. In his oral submissions, the Crown rehearsed its submission that the court would find, beyond reasonable doubt, that the offences occurred in the victim's bedroom, and not elsewhere in the house. Because of the seriousness of the offence, and the breach of trust involved, the Crown submitted that the s 5 threshold had been crossed, and no penalty other than a term of imprisonment should be imposed. In the event the court did impose such a penalty, the Crown conceded that special circumstances should be found, on the basis that this would be the first time the offender served a term of imprisonment and also he would require assistance to address his problems with alcohol. The Crown conceded that the offender had spent seven months and 22 days in custody on remand before being released to bail. 4. When asked about the objective seriousness of the offending, the Crown conceded that the offending in respect of each offence was not the most serious offending pursuant to s 61M(2), however, in respect of Count 4, the placing of the victim's hand on the offender's penis amounted to serious offending. Further, the victim was particularly vulnerable, as she had recently returned to her mother's home to live and the offender was in a position of trust to her. The Crown submitted that the offending did not lie at the top of the range. The offender's submissions 1. Counsel for the offender also relied on a thorough written outline of submissions on sentence. In summary, the offender submitted that: 1. The offences fall well below the mid-range of objective seriousness for s 61M(2) offences because they are isolated, impulsive offences of short duration committed with no planning or coercion. 2. The offender does not have a significant criminal history and has no prior convictions or allegations of child abuse or sexual misconduct. 3. The offender has good work prospects and has the ongoing support of his family. He is willing to engage with Community Corrections. 4. Given the pre-sentence custody, the s 5 threshold is "not now met". A Community Corrections Order with appropriate conditions for community work, strict supervision and engagement in rehabilitation programs would better protect society than returning the offender to full-time imprisonment. 5. If the court decides to sentence the offender to full-time imprisonment, it should find special circumstances. 1. On the facts to be derived from the jury verdict, the offender submitted that the court should find beyond reasonable doubt that on Monday 17 September 2018 the offender and the victim's mother were sharing a bed on the floor of the lounge room in the home, and in the middle of the night the victim came into their bed. Counts 3 and 4 happened therefore not in the victim's bedroom, but in the lounge room, and it constituted spontaneous and opportunistic offending of very short duration. Both offences were committed "at the exact same time". Further, there was no evidence that the offender ejaculated or even had an erection, the offences involved no psychological or physical coercion, and they were committed with no planning. 2. The offender submitted that the offences constituted isolated offending. 3. In support of his submission that the offending occurred in the lounge room and not the victim's bedroom, the offender submitted that the victim said the offences occurred on Monday 17 September 2018, and she was confused about where an alleged offence in Count 1 had occurred (i.e. whether it was in her mother's bed or on the lounge room floor). Further, the victim had given evidence that she came to the bed on the lounge room floor on Sunday night, 16 September 2018 and gave further evidence that she was touched by the offender in the bed on the lounge room floor "once or twice". 4. Further, the offender relied on evidence given by the victim's mother, that it was "very possible" that she and the offender slept on the lounge room floor on Monday 17 September 2018. She could not remember whether the victim came into their bed on that particular night. Finally, the offender told police in his ERISP interview that he denied going into the victim's room in the middle of the night. He did, however, concede that he may have mistakenly or accidentally touched the victim on the bed on the lounge room floor on the previous Sunday and Monday night. 5. The offender's subjective case was that he was 38 years at the time of the offending and was now 39 years of age. He was raised in country NSW and had worked full time as a qualified motor mechanic. His previous long-term relationship ended in domestic violence in 2016 and other than the three offences in 2016, his only other prior conviction was for a high range drink driving offence in 1998, when he was aged 17 years. 6. Further, the offender had complied with onerous bail conditions since his release on bail on 10 May 2019. The offender had the ongoing support of his family. He had been suffering anxiety and depression and had acknowledged that he had a drinking problem. 7. It was submitted that the following mitigating factors applied to the offending pursuant to s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 ("CSPA"): "(b) The offence was not planned but occurred impulsively. (e) The offender has a limited criminal history with no prior serious or similar matters. He had never before been sentenced to imprisonment. (f) The offender was a man of good character in regard to sexual misconduct. (g) and (h) The offender was unlikely to re-offend and has good prospects of rehabilitation, particularly with some supervision by Community Corrections and involvement in appropriate rehabilitation programs." 1. It was submitted that the s 5 threshold "is not crossed given the seven months and 22 days pre-sentence custody, the level of objective seriousness and the offender's subjective case." 2. The offender therefore submitted that a Community Corrections Order was appropriate and that the protection of the community was better served by the court releasing the offender on a strict CCO with conditions requiring him to accept strict supervision, perform unpaid community work and engage in rehabilitation programs. In the event that the court imposed a term of full‑time imprisonment, it was submitted that a finding of special circumstances should be made on the basis that the offender had already served seven months and 22 days pre-sentence custody, it would be his first full-time custodial sentence, and that he would benefit from an extended period of supervision to enhance his prospects of rehabilitation. 3. In his oral submissions, Counsel for the offender rehearsed his submissions that the court would be satisfied beyond reasonable doubt that the offences occurred in the lounge room, not the victim's bedroom. This would give rise to a clear inference that there was no planning and the offending was an opportunistic and impulsive act. It was submitted that the victim was an unreliable witness in respect of other aspects of her evidence, for example, she had been confused where various offences allegedly took place. As the offender had categorically denied going into her bedroom, it was submitted that the court could not be satisfied beyond reasonable doubt that Counts 3 and 4 occurred in the victim's bedroom. 4. Counsel also rehearsed the subjective matters outlined above. It was submitted that the assessment made by the Department of Corrective Services' psychologist as to the risk of the offender re-offending was flawed, given that the psychologist did not have available the details or facts upon which the jury came to its verdicts. The offender was a 39 year old man with nil prior sexual offences and no significant criminal history. It was submitted that the objective seriousness of the offending in Count 3 was well below the mid-range of objective seriousness, and the objective seriousness of the offending in Count 4 was also below the mid-range. For the reasons outlined in the written submissions, Counsel submitted that the s 5 threshold was "not now crossed", given the period of time already spent by the offender in custody. Determination 1. Section 3A of the C(SP)A sets out the purposes of sentencing as follows: "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community." 1. I am satisfied beyond reasonable doubt that consistent with the jury verdict of guilty on Counts 3 and 4, the victim was found to be a reliable witness and the jury accepted her evidence that the two offences occurred in her bedroom on the evening of 17 September 2018. This was consistent with the complaint by the victim to her mother the following day, and also to her grandmother. 2. I am also satisfied of the following facts concerning the offending: 1. That the touching by the offender of the victim was outside of her underwear, but on her vagina. 2. The offender also took her hand and placed it on his exposed penis. 3. The offending occurred over a short duration of less than a minute and when the victim yawned, the offender stopped. 4. The offending involved a breach of trust, given that the offender was living in the same household as a partner of the victim's mother. 1. In assessing the objective seriousness of the offending, I am satisfied that the two offences, which involved the one course of criminal conduct, may be characterised as isolated and impulsive offences of short duration, with little planning and no coercion. The offending in Count 3, which involved touching of the vagina above the victim's underwear, was objectively in the low range of offending pursuant to s 61M(2) which involves a wide range of aggravated sexual assaults concerning children under the age of 16 years. It fell in the middle of the low range for such an offence. 2. The objective seriousness of the offending in Count 4 was also below the mid‑range for an offence pursuant to s 61M(2), however, it was in the upper end of the low range as it involved skin-on-skin contact with the victim's hand on the offender's penis. However, it was again of short duration and was an isolated incident with little planning or coercion. 3. The following aggravating factors should be taken into account pursuant to s 21A(2): (eb) The offence was committed in the home of the victim. (k) The offender abused a position of trust or authority in relation to the victim. 1. I accept the offender's submissions that the following mitigating factors apply pursuant to s 21A(3): "(b) The offence was not of a planned or organised criminal activity. (e) The offender does not have any record of previous convictions for sexual assault. (f) The offender was a person of otherwise good character with limited criminal history; and (h) the offender has good prospects of rehabilitation by reason of his age and absence of prior offending." I note that good character has little weight in the sentencing process for sexual offending by adults upon children and cannot be taken into account as a mitigating factor pursuant to s 21A(5A) of the CSPA if the court is satisfied that that factor was of assistance to the offender in the commission of the offence. On the evidence before me I am unable to make a finding that would enliven s 21A(5A). I am also unable to make any finding as to the offender's prospects of rehabilitation, given his continuing denial of the offences. 1. I have had regard to the Victim Impact Statement here and note that it was written by the victim's mother and constitutes her perception of the effect of the offender's criminal conduct on the victim. It is clear that the offending had a significant impact on the victim and her family. They moved towns and the victim had to change schools. She has had the benefit of two counsellors, one of whom specialised in sexual assault victims, to help her through the last 12 months. The victim's mother referred to the victim resorting to self‑harming shortly after the assault and was on one occasion hospitalised. The victim was described as suffering from "extreme anger", had difficulty sleeping and was often "anxious and paranoid". The victim's mother opined that her childhood had been ruined and that the offences had the potential to affect her future relationships. She concluded: 'She is a different child now, her innocence has been destroyed." 1. The courts have long recognised the profound and deleterious effects that child sexual offending has on victims, both physically and psychologically, which may endure for many years, if not for the whole of the victim's life – see Carroll v R [2019] NSWCCA 243. Pursuant to s 25AA(3) the court must have regard to the trauma of sexual abuse on children as understood at the time of sentencing. I have therefore taken the Victim Impact Statement into account, however, as it is the victim's mother's perception, and is not supported by expert medical opinion, I have not taken it into account so as to aggravate the offender's culpability. 2. General deterrence, denunciation and protection of the community are important principles in sentencing for child sexual offences. A clear message must be sent to the community, and in particular, like-minded members of the community, that the most vulnerable members of our society must be given the full protection of the law, and that Parliament has proscribed lengthy terms of imprisonment as maximum penalties for sexual offences against children, and that the courts will, in appropriate cases, impose condign punishment for such offences. Specific deterrence is also important in the sentencing process here. The offender has continued to deny his offending conduct and has, in accordance with the Sentencing Assessment Report, showed no empathy towards the victim. 3. I have taken into account the maximum penalty of 10 years imprisonment and the Standard Non-Parole Period of 8 years imprisonment proscribed for each of the two offences as guideposts in the sentencing process here. I have also taken into account the subjective matters put on behalf of the offender, and that he has complied with his onerous bail conditions since May 2019. 4. The two offences constituted one course of criminal conduct which was isolated and of very short duration. This is an appropriate case for an aggregate sentence pursuant to s 53A of the CSPA, however, to ensure transparency in the sentencing process, I am required to outline the indicative sentences in respect of each offence. I do not accept the offender's submission that the s 5 threshold is "not now crossed". 5. I am not persuaded that it is appropriate to sentence the offender by way of a Community Correction Order. The offending constituted serious criminal conduct and in respect of each offence I am satisfied, pursuant to s 5 of the CSPA, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. The indicative sentences I would otherwise have imposed are as follows: 1. Count 3 – 6 months imprisonment 2. Count 4 – 12 months imprisonment 1. It is clear that in aggregating the sentence, the principle of totality applies, and there must be some accumulation of sentences. Any aggregate sentence must be "just and appropriate" to the totality of the offending behaviour. In R v Van Ryn [2016] NSWCCA 1, the Court of Criminal Appeal had regard to the following summary of the correct approach to the assessment of sentence for multiple offences, with proper regard to the totality of the criminality involved: "[228] Street CJ described the principle of totality in sentencing in R v Holder; R v Johnstone (1983) 3 NSWLR 245 at 260 as follows: The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently, a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation, a sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences." 1. The Court went on to emphasise the need to maintain public confidence in the administration of justice when sentencing for multiple offences, and also referred to the judgment of Howie J in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27]: "There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both." 1. Here, in applying the above principles, the appropriate term of imprisonment is 15 months. There is no issue that a finding of special circumstances should be made so as to alter the statutory ratio between head sentence and any non-parole period to be imposed, pursuant to s 44(2) of the CSPA. As the offender has already served 7 months and 22 days in custody on remand, that represents an appropriate non-parole period. The sentence I intend to impose therefore is an aggregate sentence of 15 months imprisonment, with a non-parole period of 7 months and 22 days, to commence on 17 March 2019 and terminate on 6 November 2019. The balance of term would be from 7 November 2019 until 16 June 2020. 2. It will be a condition of the offender's release on parole that he be supervised by Community Corrections, and that he accept any direction as to drug and alcohol rehabilitation during that time. Orders 1. I make the following orders: 1. You are convicted of Count 3 on the Indictment, namely, an offence pursuant to s 61M(2) of the Crimes Act 1900, in that between 1 June 2018 and 19 September 2018 at Wauchope in the State of NSW you did assault SS, a person then under the age of 16 years, namely, 8 years, and at the time of such assault did commit an act of indecency on the said SS. 2. You are convicted of Count 4 on the Indictment, namely, an offence pursuant to s 61M(2) of the Crimes Act 1900, in that between 1 June 2018 and 19 September 2018 at Wauchope in the State of NSW you did assault SS, a person then under the age of 16 years, namely, 8 years, and at the time of such assault did commit an act of indecency on the said SS. 3. I sentence you to an aggregate sentence pursuant to s 53A of the CSPA for a term of imprisonment of 15 months, with a non-parole period of 7 months and 22 days, commencing on 17 March 2019 and terminating on 6 November 2019. The balance of term will be from 7 November 2019 to 16 June 2020. 4. Your parole is subject to supervision by the Parole and Probation Service and you are to report to Community Corrections at Taree within 7 days. 5. Further, you are to accept all directions given to you by Community Corrections, including any direction as to drug and alcohol rehabilitation. 6. You should understand that if you breach your parole, or commit any further offence, your parole may be revoked and you will have to serve the balance of your sentence. Indicative Sentences 1. Count 3 – 6 months imprisonment 2. Count 4 – 12 months imprisonment ********** 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: 07 November 2019