District Court New South Wales Medium Neutral Citation: R v AC [2019] NSWDC 649 Hearing dates: 11 and 19 June 2019 Date of orders: 19 June 2019 Decision date: 19 June 2019 Jurisdiction: Criminal Before: Bright DCJ Decision: Convicted and sentenced to an aggregate total sentence of three years and four months to date from 19 June 2019 to expire on 18 October 2022 with a non-parole period of two years to date from 19 June 2019 and expire on 18 June 2021. Catchwords: CRIMINAL – sentencing-aggravated indecent assault – full time custodial sentence required Legislation Cited: Crimes Act, 1900 Crimes (Sentencing Procedure) Act, 1999 Cases Cited: Cahyadi v R [2007] NSWCCA 1 Newbigging [2004] NSWCCA 239 R v Dent unreported NSWCCA 14 R v Giddy [2003] NSWCCA 46 R v Jokhan (2019) NSW District Court 127 R v Nelson [2016] NSWCCA 130 Category: Sentence Parties: Regina (Crown) AC (Offender) Representation: Counsel: Mr D Murray of counsel for the offender Solicitors: Ms G Rowe for the Crown File Number(s): 2018/00166958 Publication restriction: Section 578A(2) Crimes Act applies to this matter – no publication of any matter which identifies the complainant or may lead to the identification of the complainant. sentence 1. AC, 51 years of age, appears for sentence in relation to two offences of indecent assault with person aged under ten years pursuant to s 61M(2) of the Crimes Act. The offending occurred between 2003 and 2005. The offender is the victim's stepfather. The maximum prescribed penalty in respect of each offence is ten years imprisonment. The prescribed standard non parole period as at the date of the offending was five years. 2. The offender pleaded guilty at the Wyong Local Court on 5 February 2019. Having regard to the timing of the plea, I propose to allow discount on sentence of 25%. The offender has spent no time in custody in relation to the offending. Agreed Facts 1. The victim TW was born in 1996 in New Zealand to ADC and TW. Her parents had separated when she was a baby and initially the victim lived with her father and stepmother and her two sisters Danielle and Toni. The victim's mother moved to Australia and subsequently married the offender AC. 2. When the victim was about five years old her mother came to visit her in New Zealand. It was at this time that the victim first met the offender. 3. In August 2003 the victim and her sisters moved to Australia to live with their mother and the offender on the NSW Central Coast. The victim's mother and the offender told the victim they had just bought that house. The three sisters shared a bedroom. The victim's mother was pregnant with the offender's child at the time. 4. The victim began school in Australia. She was in Year 2. Her sisters were attending high school, they were teenagers at this time and had boyfriends, as a result they were rarely at home. The victim's mother was often out, she was a heavy alcohol user and gambler. Sequence 6 Indecent assault with person aged under ten years 1. At a time shortly after the victim had moved to Australia she and the offender travelled to Queensland. About a month after the return from that trip the victim was cuddling the offender on the couch in the lounge room of the house at San Remo. She would often cuddle him. At the time she considered him as a father figure and loved him. The offender and the victim were watching The Simpsons. The victim had been allowed to stay up and watch this before bed as it was her favourite show. The victim recalls that her mother had red blankets that would always be on the lounge. 2. As the victim was lying on the lounge the offender touched and moved her hand, placing it on his erect penis. He told the victim it was a game called "tickles" and asked the victim to tickle his hard penis. The offender did not say anything while the victim was doing this. The offender then told the victim to grab his penis and pull it. The victim pulled and rubbed the offender's penis for a couple of minutes. The victim cannot remember if anything came out of the offender's penis whilst she was doing this. The victim then went to bed and did not tell anyone about the incident. Sequence 6 Indecent assault with person aged under ten years 1. When the victim was eight years old the offender took her to Lakes Beach. This was a regular occurrence throughout the summer months. The offender parked in the car park. The victim recalls that it was a hot afternoon, the canteen was closed. The offender parked his vehicle outside the surf club and both the offender and victim went for a swim. 2. About dinner time the victim and the offender got out of the water and walked back to the car. The victim sat in the front seat of the car and the offender sat in the driver's seat. The two sat in the car talking. The offender was wearing red board shorts with a red and black stripe down the side. 3. The offender grabbed the victim's hand and placed it on his penis, he did not say anything to the victim. The victim began tickling the offender's penis on the outside of his shorts. The offender then saw people coming and panicked, he pulled the victim's hand off and said "Stop now or I will tell your mother." The victim was shocked and asked the offender if she had done something wrong. He did not answer. At this point the victim became aware that what the offender was making her do was wrong. 4. The offender did not make the victim touch his penis again after this incident. The victim did not say anything to her mother as she was scared of her. The victim believes her mother did know about the incidents with the offender. 5. In 2005 when she was nine years old the victim woke up and went to the toilet and noticed she was bleeding from her vagina. She told her mother who told the victim it was probably her period. Her mother took her to a doctor at Wyong Medical Centre which the victim found strange because she usually went to Lake Munmorah to see the doctor. 6. The victim was examined. She was scared as she did not know what was going on. Not long after the doctor visit the victim returned to New Zealand to live with her father and stepmother again. She did not hear from her mother or the offender for years following her return. 7. When the victim was in Year 9 she wrote a letter to her mother at the offender's house. She missed her little sisters and asked for photographs of them (the victim's mother had three children with the offender by this time). 8. When the victim was 17 years old her mother bought her a holiday to Australia. The victim went on the trip as she wanted to see her younger sisters. 9. The offender would send the victim money during the time she lived in New Zealand which she found strange. The victim no longer has contact with the offender or her mother. The victim told her aunty KC about what the offender had done to her. She reported the matter to The Entrance Police Station. 10. Between 27 April 2018 and 23 May 2018 ten phone calls were made from the victim to the offender. These calls were recorded pursuant to a warrant obtained by New South Wales Police. During the phone calls the offender apologised to the victim and told her that he was ashamed. The offender made partial admissions to the offences telling the victim that he could remember two occasions on the couch. The offender told the victim he could not remember the incident at the beach. 11. On 28 May 2018 the offender was arrested. He participated in a record of interview with police. During the course of that interview the offender told police that he remembered two occasions when the victim put her hand on his penis and rubbed it. The offender said the first time was a time when he was laying down on the couch and then the next day he thought something had happened. The offender told police he does not remember details of this occasion and that he was a heavy drinker at the time. 12. The second time the offender recalled was when the victim had her hand down his pants whilst he was asleep on the couch when she was seven or eight years old. 13. The offender told police that he also smoked marijuana heavily at the time and he would have 30 or 40 bongs before or after work each day. The offender said that this would have affected his memory. The offender denied in his interview that the occasions specified by the victim had happened. 14. I note at the outset that it has been agreed between the parties that in relation to sequence 6 the offender is to be sentenced on the basis there was skin to skin contact (see supplementary Crown submissions exhibit C). 15. Those facts clearly disclose very serious objective criminality. Sentences imposed for offending in relation to children must not only have a very significant element of general deterrence but must also punish the offender and denounce the conduct (see s 3A, Crimes (Sentencing Procedure) Act). 16. The Court notes the remarks of Lee J in R v Dent unreported NSWCCA 14 March 1991 as follows: "One begins with the proposition that our community views with great concern the sexual molestation of children by adults and that has been acknowledged by the legislature, little children are entitled to grow up free from defilement by sexual predators and free from the risk of psychological upset, confusion and difficulties later in life caused by such conduct." 1. In this matter the victim was betrayed by the stepparent with whom she was living. The evidence in my view demonstrates a reprehensible and grave breach of trust. As Lee J said in Dent: "When a male parent takes advantage of the helplessness of the child he not only commits a breach of trust but it is a cowardly breach of trust. The protector of the child's body, the guide and the mentor of the child in those circumstances has abandoned his proper role in order to gratify his lust on the child." Assessment of objective seriousness 1. In assessing the objective seriousness of each offence, I have taken into account the following factors: 1. The age of the victim at the time - namely seven or eight years in relation to sequence 6 and eight or nine years in relation to sequence 7 recognising that the offence at the time related to children under the age of ten years; 2. The age disparity - the offender at the time being 36 to 37 years of age; 3. The nature of the indecent assault, in relation to sequence 6 the indecent assault was the skin to skin contact between the complainant's hand and the offender's penis, in relation to sequence 7 the conduct was the same however, it was outside clothing; 4. The duration of the offending - in relation to sequence 6 the offending was described as lasting a couple of minutes. In relation to sequence 7 whilst the duration of the offending was not specified, I am satisfied it was of short duration in circumstances where it was interrupted because the offender saw people coming towards the vehicle. 1. Having regard to those factors, I assess the objective seriousness in relation to sequence 6 as being in the middle of the range. In relation to sequence 7, I assess the objective seriousness as being just below the middle of the range. Aggravating features 1. The Crown relied upon the following aggravating features: 1. That the conduct constituted a breach of trust. I am satisfied that aggravating feature is established; and 2. In relation to sequence 6, the Crown relied upon the fact that the offending occurred in the home of the victim. I accept that aggravating feature is established. Victim impact statement 1. A victim impact statement has been prepared by the victim. She outlines the devastating consequences for her of the offending. She states as follows: "The biggest thing is that it took my whole childhood away, I don't have childhood memories." 2. She continues, "I feel I was forced to grow up at such a young age when I should have felt loved and protected. I often wonder why this happened to me as I thought he loved me as his own child." The victim also described in significant detail the effects upon her adult life. 3. Courts now well understand the very significant effects upon victims of child sexual offending. In R v Nelson [2016] NSWCCA 130 Basten J stated as follows at 23: "Early sexual relationships with adults will often exploit and exacerbate a precarious sense of self worth and self respect in the victim which may have lifelong consequences including an inability to form stable partnerships in adulthood and possible self destructive behaviour." 1. I am satisfied this is precisely the situation the victim describes in her victim impact statement. 2. The victim has shown a significant amount of resilience so far in circumstances where she was able to report the offending to police. One would be hopeful that with love and support the victim can now look forward to a more positive future. 3. One of the purposes of sentencing is to recognise the harm done to the victim (see s 3A(g) of the Crimes (Sentencing Procedure) Act). Subjective circumstances 1. The offender is now 51 years of age. 2. He has a criminal history commencing in 1989 as an adult, he was dealt with two offences of culpable driving and fined. 3. In 1990 he was dealt with for offences of drive whilst disqualified and larceny as a servant. In respect of each of those matters he was fined. 4. Having regard to the very limited nature of his criminal history and in circumstances where the last offending on his criminal history occurred 29 years ago, I am satisfied he is entitled to leniency on sentence. 5. The following material was tendered on behalf of the offender during the sentence proceedings: * Exhibit 1 a report of George Dieter psychologist 26 April 2019; * Exhibit 2 a letter under the hand of LC 29 May 2019; * Exhibit 3 a letter under the hand of DS 29 May 2019; * Exhibit 4 a letter under the hand of KM 5 March 2019; * Exhibit 5 a letter under the hand of WK undated; * Exhibit 6 a letter under the hand of KAL 28 April 2019; and * Exhibit 7 Defence written submissions. 1. The offender's background is outlined in the report of George Dieter (Exhibit 1). The offender was born in Manly and has one younger sister. He grew up on the Northern Beaches. He moved out of home to the Central Coast with his then partner. His father was a carpenter and later worked for Telstra. He suffered a work accident when the offender was 12 years old. He reported his father was a heavy drinker with whom he did not have a close relationship. His father passed away in 2000. His mother was also a heavy drinker and gambler, he reported a distant relationship with her. He described his childhood in the following terms; "Growing up was good, I have no complaints, we were always playing outside." 2. The offender met the victim's mother when he was 33 years old. She has four daughters from a previous marriage and they have three daughters together aged 12, 14 and 16 years. Education and employment 1. The offender left school in year 10 to start an apprenticeship as a mechanic. He worked in a car dealership for ten years before returning to work in the snow maintaining and operating lifts. He has recently worked in a variety of jobs including as a driver, courier, storeman and installing air conditioning. He is currently working as a council garbage collector and driver, a position he has held for five years. Medical history 1. The offender contracted meningitis as a baby and is deaf in his left ear. He subsequently underwent many admissions to hospital to save his hearing in his right ear. He has suffered two head injuries, one when he was 25 years old as a result of being hit by a car whilst riding a pushbike and the second as a result of a surfing accident. He is a type 2 diabetic and in 2017 he had two stents inserted in his heart arteries. Mental health issues 1. The offender reported to Mr Dieter that he had poor sleep habits and admitted to suicidal ideation. He denied having been treated for any mood disorder. Substance use 1. The offender reported that he began smoking cannabis daily at 15 years of age. He ceased use in 2018. He began drinking alcohol at 16 years of age. He was drinking to excess "knocking" himself out when he lived with the victim's mother. He stopped drinking alcohol five years ago (2014). Circumstances surrounding offending 1. In relation to the current offending Mr Dieter noted as follows: "He seemed at a loss to explain what has occurred and acknowledged that he had no detailed recollection of the events. He expressed his remorse and when I asked him how this could be if he did not remember what occurred or the details, he said 'The fact that I would have done this I don't remember but I'm shattered, I feel terrible, I let everyone down.' He also acknowledged that he was very close to the victim and that they did a lot of things together and feels 'shattered' about the loss of that relationship. When I asked AC what he would say to TW (victim) if he could talk to her he said that 'I love her very much and I am sorry that all this happened.' To ensure that AC's lack of recollection was not a withdrawal of his guilty plea and an attempt to absolve himself from responsibility I asked him outright and he denied this. He expressed his remorse and accepted responsibility for his conduct which he could only explain with his sustained and excessive use of cannabis and alcohol." Psychological assessment 1. Mr Dieter was of the opinion that the offender was suffering from an alcohol use disorder (severe, in sustained remission) and also cannabis use disorder (moderate, in early remission). He was also of the opinion the offender reported symptoms of depression. 2. Mr Dieter was further of the opinion that the offender was unlikely to reoffend in circumstances there was no other sexual offences. The current offences were described as "situational and opportunistic at worst" an absence of psychopathology and deviancy and he is still willing to commit to treatment. Recommendations in relation to treatment 1. Mr Dieter recommended treatment with a psychologist experienced in sexual offending, specifically, the Sexual Behaviour Clinic which is a five month program provided by the Department of Corrective Services. Other material tendered on behalf of the offender 1. I have also considered the following material. 2. Exhibit 2 a letter from LC (the offender's sister). She described a close relationship with the offender growing up and indicated he has continued to be responsible and involved in his children's lives. 3. Exhibit 3 a letter from DS (brother in law). He describes the offender as "thoughtful, caring and a kind person" who shows responsibility to his family. 4. Exhibit 4 a letter from KM (a long-time friend of the offender). She describes the offender as kind, caring and devoted to his daughters. 5. Exhibit 5 a letter from WK (work associate of the offender). He describes the offender as a reliable worker and a valued employee. 6. Exhibit 6 a letter from KAL (a long-time friend of the offender). She describes the extent of support provided to her by the offender when she was growing up and also into adulthood. She describes the offender as a caring and trustworthy man. Prospects of rehabilitation 1. Having regard to the evidence, I am satisfied the offender has excellent prospects of rehabilitation in circumstances where he has a limited criminal history, he has previously been in long term employment, he has insight into his offending, he is remorseful and he is willing to engage in recommended treatment. For those reasons, I am also satisfied he is unlikely to reoffend. Remorse 1. I am satisfied the offender is genuinely remorseful having regard to his apology to the victim in the pretext call, the admissions he made to police during his record of interview and his expressions of remorse to Mr Dieter. Submissions on sentence 1. It was submitted on behalf of the offender that the offending was at the bottom of the range and that a full time custodial sentence was not required. Specifically, it was submitted that there was no grooming, the offending was opportunistic and occurred at a time when the offender had significant drug and alcohol issues. It was further submitted that the offender has a strong subjective case, he is unlikely to reoffend and has good prospects of rehabilitation. I note that self induced intoxication from drugs and/or alcohol is not a mitigating factor on sentence (see s 21A(5AA) of the Crimes (Sentencing Procedure) Act). 2. The following authorities were relied upon on behalf of the offender; Newbigging [2004] NSWCCA 239 and R v Giddy [2003] NSWCCA 46. I have had regard to each of those authorities. I note that in respect of each of those authorities the offending occurred before 2003 and the introduction of standard non parole periods. The Court was also referred to R v Jokhan (2019) NSW District Court 127. I have also had regard to that authority. 3. It was submitted on behalf of the Crown that the only appropriate sentence was a full time custodial sentence in circumstances where the Crown submitted that the offending for each offence falls at the middle of the range. Determination 1. In determining the appropriate sentence, I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act. 2. In this matter, I am satisfied that in order to ensure the offender is adequately punished, to denounce the conduct and to make the offender accountable and to reflect particularly the need for general deterrence have considered all possible alternatives that only a custodial sentence is appropriate (see s 5(1) of the Crimes (Sentencing Procedure) Act). Totality 1. I propose to impose an aggregate sentence pursuant to s 53A(1) of the Crimes (Sentencing Procedure) Act. In circumstances where I am dealing with the offender for more than one offence, I am required to determine each sentence and thereafter consider the principle of totality and concurrent, partly concurrent or cumulative sentences. 2. The relevant sentencing principle to consider is whether the sentence for one offence can comprehend and reflect the criminality of the other, if so the sentences should be concurrent but if not there should be some accumulation: see generally Cahyadi v R [2007] NSWCCA 1. 3. In my view, given the separate episodes of criminality some notional accumulation is appropriate in this matter in circumstances where each offence is objectively very serious. Aggregate sentence 1. In determining the appropriate aggregate sentence, I have had regard to the maximum prescribed penalty of ten years and the prescribed standard non parole period of five years. I have had regard to the objective gravity of the offending and the offender's subjective circumstances. Indicative sentences 1. Pursuant to s 53A(2)(b) the sentences that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence are as follows: 2. Sequence 6 - a starting term of three years discounted by 25% for the plea of guilty leaving a total term of two years and three months with a non parole period of one year and four months. 3. Sequence 7 - a starting term of two years discounted by 25% for the plea of guilty leaving a total term of 18 months with a non parole period of 11 months. 4. In determining those sentences I have also had regard to s 25A of the Crimes (Sentencing Procedure) Act which states as follows: "(1) A court must sentence an offender for a child sexual offence in accordance with the sentencing patterns and practices at the time of sentencing, not at the time of the offence. (2) However the standard non parole period for a child sexual offence is the standard non parole period (if any) that applied at the time of the offence, not at the time of sentencing. (3) When sentencing an offender for a child sexual offence a court must have regard to the trauma of sexual abuse on children as understood at the time of sentencing (which may include recent psychological research or the common experience of courts)." 1. Stand up please AC. 2. In relation to each offence of indecent assault with person aged under ten years you are convicted. 3. I sentence you to an aggregate total sentence of three years and four months to date from 19 June 2019 to expire on 18 October 2022. 4. I fix a non parole period of two years to date from 19 June 2019 and expire on 18 June 2021. 5. The earliest date upon which you will be eligible for parole is 18 June 2021. Special circumstances 1. In circumstances where this will be the offender's first time in custody, I have found special circumstances and varied the statutory ratio between the non parole period and the parole period pursuant to s 44(2B) of the Crimes (Sentencing Procedure) Act. Just take a seat for a moment please AC. 2. I will just note that s 578 of the Crimes Act prohibits the publication of any information that would identify the complainant in relation to the matter. Counsel can just confirm the dates please. 3. So the statutory prohibition would apply to the name of the offender so he should be known as AC. 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: 11 November 2019