R v Mondinos [2019] NSWDC 677

District Court New South Wales

Medium Neutral Citation: R v Mondinos [2019] NSWDC 677 Hearing dates: 22 February 2019 Date of orders: 22 February 2019 Decision date: 22 February 2019 Jurisdiction: Criminal Before: Judge W Hunt Decision: The offender is sentenced to an aggregate term of imprisonment for a period of 14 years with a non-parole period of 10 years and 6 months. Catchwords: CRIMINAL LAW – Sentence following trial – Sexual assault – Aggravation - Indecent assault - Pre-text call – Adverse psychological consequence – Opportunistic offending Legislation Cited: Crimes (Sentencing Procedure) Act. Crimes Act. Cases Cited: R v Gavel [2014] NSWCCA 56 R v Johnson [2016] NSWCCA 286 R v MA [2001] NSWCCA 30 Category: Sentence Parties: The Crown James Mondinos File Number(s): 2017/207370; 2017/207406 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: James Keith Mondinos is before the Court for sentence in relation to nine offences. On 7 July 2017, he was charged with a number of varying offences of a sexual nature, against SK, who was his foster sister between the years 2000 and 2003, and MB, who was his stepdaughter at the relevant times between 2006 and 2007. The matters proceeded together by way of a jury trial over which I presided here at Nowra District Court on 6 August 2018. On 16 August 2018, the jury returned verdicts of guilty in relation to the nine counts; the three remaining counts on the indictment having been lesser alternatives to offences that the jury found proved. 2. Before I come to recite facts that are consistent with the jury's verdict on my finding, I will just make a number of observations as to matters that are common ground between the parties. It is common ground between the parties that there is no expression of remorse from Mr Mondinos. I ought to say that during the trial, the Crown relied on a pretext call between SK and the offender, which had some communications that were consistent at the time of that call with the accused expressing remorse for offending against her. The accused gave sworn evidence at trial, which the jury clearly rejected and including that he disavowed that those conversations expressing remorse were about any offending upon SK, and said that any expressions of remorse in them were only limited to some later offending by him against a different stepsister, TM. I will return to that issue in due course. 3. It is also common ground between the parties that given the matters were defended, that there is no scope for the Court to consider a utilitarian discount, and there is no other basis for identifying a sentencing discount. Given the date range averred on the indictment in relation to the matters for which SK was the victim, it is common ground between the parties that because the date range straddles a period first where no non-parole period was applicable, and later a standard non-parole had application, it is proper in the circumstances, given that the dates of the offending cannot be in any way defines on the jury's verdicts, to disregard the applicability of the standard non‑parole period in all of those matters, and to simply have regard to the maximum penalties provided. 4. Of course, a different position relates to the matters in which MB is the victim, and in each of those matters standard non‑parole periods have application, and I have had regard to both the maximum penalty and the standard non-parole period, in the way contemplated by the authorities as benchmarks and guideposts. In relation to the matters, I have had regard to all the purposes of sentencing as identified by s 3A of the Crimes (Sentencing Procedure) Act. Given the class of offending here, these are matters where both general deterrence and sentences that will specifically deter Mr Mondinos from further offending, while not having paramountcy, have significant application in the sentencing exercise. Of course, issues of rehabilitation, denunciation, punishment, and retribution also have their part to play. 5. In R v Gavel [2014] NSWCCA 56, the Court observed, in summary, that sentencing judges are entitled to proceed on the basis that serious sexual assaults can be expected to have adverse psychological consequences. There is a range of appellate authority in which the significant impact of child sexual assault on those who are offended against should be lost to sentencing tribunals. It is trite to say that the current legislation requires that I sentence Mr Mondinos based on current sentencing attitudes and patterns, but contained by the relevant legislative framework at the relevant times. 6. Additionally, before I come to the counts one by one, I observe that in relation to counts 1, 2, and 4, that the offender was a juvenile at the time of those offences and was somewhere in a range of 16 to 17 years of age, and that issue is not lost on me. In relation to counts 1, 2, 4, 6, and 7, those matters were all committed in SK's home, and in relation to count 10, that matter was committed in MB's home. In light of R v Johnson [2016] NSWCCA 286 in the Court of Criminal Appeal, the fact that on each of those occasions the home of the victim was also the home of the offender, does not militate against that being an aggravating circumstance. 7. In each of the matters in which MB was the victim, that is counts 10, 11, and 12, the circumstance of aggravation averred is not that of the victim being under the authority of Mr Mondinos, and in each of those matters, I consider it is an aggravating circumstance that MB was under his authority, and there was disclosed a significant breach of trust. Although Ms James for the Crown availably asked the Court to consider whether, in circumstances in which Mr Mondinos was several years older than SK, was her older foster brother and was sometimes seemingly in control of her in a broad sense, I am ultimately not persuaded that SK was under Mr Mondinos' authority, and I do not consider that that is an aggravating circumstance, when one considers all of the evidence at trial. 8. Although Ms James asked me to consider that the offences were planned, because steps were taken by Mr Mondinos to make sure that he was alone with either victim before there was offending against each of them, I am not persuaded that constitutes any significant planning; it is something that is rather inherent to those who trespass against younger children, that they tend to do it when no-one can observe them. 9. I accept Ms McSpedden's characterisation that largely the offences were opportunistic, and even though he did not hear the evidence at trial, it is interesting that Dr Lennings, from a psychological point of view, sees the offending as opportunistic, rather than entrenched paedophilic conduct. There must remain a question mark about that, given that the totality of Mr Mondinos' offending has been against female persons of tender age. It is relevant to the Court's consideration that the offending took place against two victims, and across a period of years. In relation to SK, the offending took place over about three years, and in relation to MB, across about two years; those time periods have no overlap. 10. As was suggested by both legal representatives, I have ultimately determined, in due course, to impose an aggregate sentence. Necessarily notional considerations of totality emerge, and whilst each piece of offending was itself distinct, I accept the thrust of Ms McSpedden's submission that where there was a factual nexus between offending, as for example between counts 1 and 2, or counts 11 and 12, there would be a more modest amount of notional accumulation in relation to those matters. It is also clear, arising from authorities like R v MA [2001] NSWCCA 30, that the ultimate non-parole period imposed must be the least period that can properly, in terms of the non-parole period, do the work that is required by a proper consideration of the s 3A principles. 11. Having said those things, I intend to recite the facts that I find in relation to each matter, consistent with the jury's verdicts, and make some characterisations, having regard to the things that I have already said as to the objective seriousness of each offence. I ought to say that in relation to each of the matters, the age of the victim is averred as a particular of the indictment, and accordingly it is not appropriate to find the offences aggravated per se, because of the vulnerability of the two victims, because that is implicit within the way that the Crown pleaded the charges. That said, in relation to a majority of the matters, indeed all of the matters in which SK was the victim, her age was significantly more tender than the threshold which was under 16 years of age. 12. In relation to count 1, in relation to SK, the offender was at all times just under eight years older than her. At the time of count 1 and count 2, he was aged somewhere between 16 and 18, and as observed, I have formed the view that he was likely to have been a juvenile offender at the relevant time. For the purposes of count 1 and count 2, the victim was somewhere between ten and 11 years of age. The facts disclose that the two of them were home alone, the home being Mr Mondinos' parents' home and the foster home of the victim. The victim and the offender were in the bathroom and the offender closed the bathroom door. He pulled down his pants, grabbed her hands and forced them onto his penis, saying, "Touch it, touch it." They are the facts in relation to Count 1. The offending in relation to that matter falls, because of the relative brevity of the matter, somewhere between the midrange and the low range. 13. Thereafter, in the same event, the offender grabbed the back of the victim's head and forced it onto his penis. She tried to turn her head away but in the event was obliged to fellate the offender. The evidence does not disclose really how long that incident went on for; it was not for an extended period and it was not entirely brief. The offending in relation to that matter, given the force involved, means that it is just short of the midrange of objective seriousness. 14. In relation to count 4, this event happened not that long after the matters that I have described at count 1 and count 2. The victim and the offender were in the kitchen of the family home, no-one else was in at least close attendance. The age range of both the offender and the victim were similar to count 1 and count 2. This was a further example where the offender forced the victim's head onto his penis and required her to fellate him. The objective seriousness of that matter is at about the middle range, for all the reasons that I have identified. 15. Count 6 is an offence of aggravated assault with an act of indecency, a breach of s 61M(1), which provides for a maximum period of imprisonment of seven years. This offence was also committed at the family home, at a time when the victim was between 12 and 13 years of age, and the offender was between 20 and 22 years of age. The victim was lying on her bed; the offender laid down next to her and started to rub his hands over her breasts. The offending in relation to that matter is just below the midrange. 16. Count 7 happened in the same episode. Count 7 is an offence in breach of s 61M(1) of the Crimes Act. The maximum penalty for this matter is also seven years imprisonment. The offender touched the complainant in the vaginal area, first over her clothes and then under her clothes, and in circumstances in which the victim was in her own bed. That matter is at about the midrange of objective seriousness, having regard to all the other matters that I have identified. 17. For the purposes of count 8, the victim was between 12 to 13 years of age and the offender was aged between 20 to 22. The victim pretended to be asleep while the offender lay behind her, and ultimately entered her vagina with his penis and continued to penetrate her for a period of some minutes. The objective seriousness of this matter, having regard to all of the matters and the time involved, sits about the midrange of objective seriousness. 18. At the time of the initial offending against MB, for the purposes of count 10, as I have already observed she was the stepdaughter of the offender, and at this time he was resident at the home with MB's mother and her and her younger sister. The offence was committed at a time when MB was between seven and eight years of age, and the offender was aged between 25 and 26 years old. The offending took place in the context of the offender's then wife, and the mother of the victim, working at a local hospital during nightshift. The victim came into the offender's bedroom to say goodnight and he digitally penetrated her vagina for about ten minutes. The event terminated at the time that the victim's mother telephoned and the father answered the phone. During the currency of that offence, the offender made a threat that he would hurt the victim's mother if she reported what had taken place. The threat and the length of time that the victim, at her tender age, was digitally penetrated mean that the matter is just above the midrange of objective seriousness, having regard to all of those matters. The event that I have just described at count 10 was an offence in breach of s 66A, for which a maximum penalty of imprisonment of 25 years and a standard non-parole period of 15 years has application. 19. Counts 11 and 12 took place at a time that the marriage between the offender and MB's mother had broken down, and at a time when MB and her younger sister were enjoying, if that is the right word, contact both with Mr Mondinos' family and with him, at the M family home. Count 11 is an offence of assaulting a child under the age of ten and committing an act of indecency upon her, in breach of s 61M(2), which carries a maximum penalty of 10 years imprisonment and a standard non-parole period of eight years has application. 20. In the context of this matter, consistent with the jury's finding, I find that the victim, who was between eight and nine years of age, has gone to bed in the circumstances of being scared about a DVD that she was viewing, and retreated to bed to feel safe. The offender used the victim's hands to masturbate his bare penis for ten minutes. Taking into account all the matters that I have identified and the length of time involved, this matter falls just below the midrange of objective seriousness. Count 12 continues on from the event described at count 11; it is an offence in breach of s 66A of the Crimes Act, and again, a maximum penalty of 25 years imprisonment has application, and the standard non-parole period is 15 years. 21. After requiring the victim masturbate him for purposes of count 11, the offender removed the victim's underpants and inserted his fingers into her vagina for a period of ten minutes. Having regard to all the types of conduct that are caught by this particular offence and the circumstances that I have already outlined, that matter falls about the midrange of objective seriousness of offending. 22. In relation to the matters generally, I had regard to the victim impact statements of both the victims in the way contemplated by the authorities. I do not use those victim impact statements to assess a level of harm over and above that which I have identified. Having said that, it must be said that the statements are eloquent of the kind of issues that intermediate courts of appeal have identified in relation to the mischief that is conducted by sexual trespass against children. Obviously, both those young women have been significantly affected by what happened to them at the hands of this offender. 23. The only subjective material before me is the report of Dr Lennings, Before I come to that I want to say something about the offender's record. At the time of these matters being committed, he was a person with no criminal matters registered against him; I take that into account in assessing the matters. He has one matter on his record where, at the Downing Centre District Court on 7 October 2016, he was sentenced to a period of imprisonment of two years and 20 months, with a non-parole period of two years, for an offence of having sexual intercourse with a person older than ten and less than 14 years of age. It ought be observed that evidence of that conviction was led as tendency evidence in the jury trial in relation to these matters. 24. The circumstances of that offending was that a young woman with the first name of T was living in the family home as a foster sister to the offender. TM became pregnant. Conception must have occurred when she was 13 years of age. DNA testing revealed that Mr Mondinos was the father of that child and consequently he pleaded guilty to the charge. The only work that matter has to do in this sentencing exercise, given that that offending postdates the offending for which I am punishing Mr Mondinos today, is to assist the Court to assay his prospects of rehabilitation. 25. Dr Lennings sets out in his report some biographical detail in relation to Mr Mondinos that is consistent with material that was led in the jury trial. That is, he lived with his younger brother, with his mother and his stepfather. His natural parents separated when he was very young and both of them have re‑partnered. The material before the trial suggested that the offender's mother and stepfather, enjoyed a warm relationship with each other and had a habit, as will be clear, of fostering children from time to time. Mr Mondinos reported to Dr Lennings that he has a warm and close relationship with his mother and his stepfather. 26. There is some suggestion in Dr Lennings' report that Mr Mondinos was sexually abused in about 1994. It is set out in Dr Lennings report that the offender was charged and convicted. I do not have any material before me in relation to that; without having heard from Mr Mondinos I am not in a position to make a finding on the balance of probabilities about that abuse. Although, if indeed that abuse happened, that may help explain why the offender has seemingly an interest in having sexual relations with people who are not of an age to consent to same. In the event, Dr Lennings' significant expertise as a person who assesses those with psychological difficulties and particularly offenders who have offended in a sexual nature, was put to limited use in this exercise because the offender denied his offending. 27. What that meant is that Dr Lennings described himself in this way, "I remain at some loss to explain the situation." The situation that he is referring to there is Mr Mondinos' offending against these two victims. On an actuarial risk, the offender was assessed as having a statistically low risk, although Dr Lennings makes clear that the offending with TM was excluded for actuarial purposes. Overall, Dr Lennings assessed him as having a moderate risk of reoffending and expected that that risk would decline as Mr Mondinos became older. He is 37 years of age at the moment. 28. Having regard to a lack of insight in relation to his offending, a lack of acknowledgment that he has offended and an absence of remorse, whilst being guided by Dr Lennings' opinion as to moderate prospects, it falls to me to form the view that I would be very guarded about Mr Mondinos' prospects of rehabilitation while ever he has any access to underage females. 29. I am now going to proceed to announce indicative sentences and then announce an aggregate sentence. In relation to each of the nine matters, Mr Mondinos is convicted. I have had regard to statistics kept by the Judicial Commission in the JIRS system and considered a wide range of offences. There is no case that is identical to this matter, although I have considered a range of cases, both as to statements of principle by the appellate courts, to endeavour to determine an appropriate range. 30. In relation to count 1, there is an indicative sentence of two years imprisonment. In relation to count 2, there is an indicative sentence of five years imprisonment. In relation to count 4, there is an indicative sentence of five years and six months. In relation to count 6, there is an indicative sentence of three years. In relation to count 7, there is an indicative sentence of three years. In relation to count 8, which is the penile-vaginal sexual intercourse against SK, there is an indicative sentence of eight years and six months. For counts 10, 11, and 12, because the standard non-parole periods apply, I am obliged to announce with a head sentence and a non‑parole period for each of the indicative sentences. 31. Accordingly, for count 10, there is a sentence of nine years with a non‑parole period of six years and nine months. For count 11, there is a indicative sentence of four years with a non-parole period of three years. For count 12, there is an indicative sentence of ten years with a non-parole period of seven years and six months. It will be noted that those indicative sentences adhere to the statutory formula as provided for by s 44(1) of the Crimes (Sentencing Procedure) Act. There is no circumstance in relation to this matter that persuades me to find special circumstances. I do have regard, given the structure of the aggregate sentence, that there will be a significant period of time on parole in any event, if Mr Mondinos determines to apply himself to rehabilitation. 32. Pursuant to s 53A of the Crimes (Sentencing Procedure) Act, the offender is sentenced to an aggregate term of imprisonment, consisting of a head sentence of 14 years, which commenced on 7 July 2017 and will expire on 6 July 2031. I set a non-parole period of ten years and six months, which will expire on 6 January 2028, which is the first day on which the offender is eligible to be released to parole. I make a recommendation to the Department of Corrective Services that notwithstanding Mr Mondinos' resistance to acknowledging his guilt, that consideration be given to enrol him in a denier's program, and I recommend that a copy of Dr Lennings' report go to the governor of the gaol at which he is currently imprisoned. 33. I am inclined to lift the suppression order that's been in place from time to time in relation to the offender's identity.