R v Carleton [2019] NSWDC 862

District Court New South Wales

Medium Neutral Citation: R v Carleton [2019] NSWDC 862 Hearing dates: 23/9/19-1/10/19 Date of orders: 29 November 2019 Decision date: 29 November 2019 Jurisdiction: Criminal Before: Bourke SC DCJ Decision: Aggregate sentence of imprisonment of nine years with a non-parole period of five years five months Catchwords: Crime – Sentencing – Aggravated indecent assault under 16 – sexual intercourse 10-14 – sexual intercourse 14-16 Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Category: Sentence Parties: Director of Public Prosecutions (Crown) Daniel Warren Carleton (Offender) Representation: Counsel: Ms J Krippner for Crown Mr T Healey for Offender

Solicitors: File Number(s): 2016/353696 Publication restriction: Non-publication of complainant

sentence 1. Mr Daniel Carleton is today to be sentenced for the following offences: three counts of aggravated indecent assault of a person aged under 16 years, the maximum penalty for those offences being ten years with a standard non parole period of eight years, those being counts 1, 3 and 4 on the indictment. Also five counts of sexual intercourse with a person under the age of 14 years but above the age of ten, the maximum penalty for which is 16 years with a standard non parole period of seven years, those being counts 2, 5, 6, 7 and 9 of the indictment. Also one count of sexual intercourse with a person under the age of 16 years but above 14 years of age, that being count 12, in relation to which the maximum penalty is ten years. There is no standard non parole period with respect to that offence. 2. The offender was found guilty after a trial which proceeded over seven days in the Newcastle District Court between 23 September and 1 October 2019. In sentencing him I am required to make my own determination as to the facts of the offences which must be consistent with the verdicts given by the jury. It is also necessary for me to assess the objective seriousness of the offences and to identify any aggravating or mitigating circumstances. Matters in aggravation must of course be proved beyond reasonable doubt, whereas matters in mitigation need only be proved on the balance of probabilities. 3. I make the following factual findings: the victim was born in October 2002 and resided with her mother in a suburb of Newcastle. The offender was born in May 1995. In about 2013 he ran a business and it was through that business that he met the victim and her mother in late 2014. The offender commenced a relationship with the victim's mother and in early 2015 they jointly leased a home in Glendale where, along with the victim, they lived as a family. At that time the victim was in year 7 at high school and was turning 13 in October. The victim's natural parents had separated some years earlier and she had continued to live with her mother. The victim had not enjoyed a close relationship with her natural father for some years and as a result she was insecure and craving attention. 4. The victim formed a close relationship with the offender, who she looked up to and trusted as a father figure. During the period when they lived in the Glendale home the relationship between the victim's mother and the offender broke down and the offender moved out in about late September 2015 into leased premises at Shortland. He was aged 20 at that time. Some of the offences for which the offender is to be sentenced occurred during the period when the offender was residing with the victim and her mother at the Glendale home, while the later offences occurred after the offender had moved out and was living in Shortland. 5. Turning then to the facts in relation to each particular count. Count 1, being the first offence in time, occurred when the victim was aged 12 and was in Year 7 at High School. The victim's mother was asleep in the house and the victim and the offender were in the garage. The offender was about to go out to buy some food for dinner and the victim approached and hugged him. The offender then asked her, "Do you like me more than a friend?". He looked into her eyes and kissed her, inserting his tongue into her mouth. When the offender disengaged from the victim he told her that everything would go back to normal when he came home. The victim was understandably confused about these events and about the nature of her feelings towards the offender. 6. This offence involved an opportunistic exploitation of the innocent attentions of a 12 year old by a 19 year old man who took advantage of his position as her stepfather and introduced a sexual element. It was a breach of trust, a matter which the offender clearly knew at the time and acknowledged by his assertion to the victim that everything would return to normal later, which of course it never did. 7. The offence was committed upon a girl who was vulnerable because of her age, which was considerably less than 16 and because of her fractured relationship with her natural father. The offence is also aggravated by having been committed in the victim's home. Having regard to all of the circumstances, however I regard this offence as being in the low range of objective seriousness. 8. Turning to count 2, an offence of sexual intercourse with a person above ten but under 14 years of age. This offence also occurred in the home at Glendale. The victim was then 12 years of age while the offender was aged about 20. The offence occurred at night when the victim followed the offender into his bedroom. The offender leaned back against a cupboard and pulled his pants down. The offender then pushed the victim gently to her knees in front of him, put a hand on the back of her head and placed his erect penis in her mouth and began moving it back and forth. 9. The victim was clearly troubled and confused by this and became upset. The offender then took his penis from her mouth and asked, "What's wrong?". He then asked the victim, who was crying, whether she wanted to continue to which she said, "I don't know". The offender then hugged the victim and said, "It's all right", to which the victim replied, "Do you still like me?". The offender replied to this, "Of course. I will always love you. I'm not going to hate you over that". 10. This offence is clearly a serious one which again involved a breach of trust and a victim who was vulnerable due to her emotional fragility and her attachment to the offender. It is aggravated also by having been committed in the victim's home. The offence, however, was of short duration and the offender removed his penis from the victim's mouth when she became upset, and did not ejaculate. Having regard to these matters I assess this offence as being above the low range but below the midrange of objective seriousness. 11. Turning to count 3, which is an offence of aggravated indecent assault on a person under the age of 16 years. This offence occurred when the victim was alone at home in Glendale with the offender. She was 12 and the offender was 20. It was night time and the victim was in her bedroom fully clothed. The offender, who was also fully clothed, entered the bedroom, lay on top of the victim and rubbed his erect penis against her vagina while she straddled him with her legs. I assess this offence as being above the low range but below the midrange of objective seriousness. The offence did not involve skin on skin contact and I am unable to determine the duration of the offence. 12. However, it was another example of an offence which was committed in the victim's home and which involved a breach of the relationship of trust that existed by reason of the offender's quasi parental role. Again, the victim was vulnerable due to her fractured relationship with her own father, her attachment to the offender and due to her young age, which was four years less than the age of 16 years which is an element of this offence. 13. The offence in count 4 of the indictment, namely aggravated indecent assault of a person under 16 years, occurred after the relationship between the offender and the victim's mother had broken up and the offender had moved out to his own premises. It occurred around the Christmas holiday period in December 2015 or January 2016 when the victim was aged 13 and the offender was aged 20. On this occasion the offender collected the victim from her home in Glendale and they drove to Stockton where there are some old train tunnels. After parking the vehicle they walked towards the train tunnels until they could go no further because of a large puddle. 14. Around this time the victim's mother called the offender and asked him to bring some pizza with him when he was dropping the victim back home. The offender agreed to do this. However, after finishing the phone call the offender hugged and then tongue kissed the victim. They then walked back to the car together. Once inside the car the offender again kissed the victim, placed his hand on her thigh and rubbed her vagina over her pants. This is the offence referred to in count 4. While touching the victim he also took her hand and placed it on his penis, which she rubbed through his pants. After some time these activities stopped and they drove back to the Glendale home after picking up the pizza which the victim's mother had requested and where the victim was dropped off. 15. I regard this offence as being above the low range but below the midrange of objective seriousness for this type of offence. Again, it did not involve skin on skin contact and I am unable to determine the duration of the offence. However, it was another example of a breach of the relationship of trust that existed by reason of the offender's quasi parental role, which had only recently come to an end. The victim was vulnerable for reasons I have already mentioned and due to her young age, which was three years less than the age of 16 years which is an element of this offence. 16. Turning to counts 5 and 6, those being offences of sexual intercourse with a person above ten but under 14 years of age. These offences occurred in the early hours of Sunday, 7 August 2016. The victim, who was then 13 years of age, was sleeping over at a house in North Lambton where her cousin lived. In the late hours of the Saturday night, the victim contacted the offender by Snapchat and it was agreed that he would pick her up from a nearby bus stop. She showed her cousin the messages and told her that she liked the offender and was going to meet him, but only to hang out and watch a movie. The victim left her cousin's house through the back gate around midnight and walked to a bus stop near Jesmond Park. The offender caught an Uber taxi from Newcastle West where he had been drinking alcohol and picked her up at the bus stop and took her to his home in Shortland. 17. At the house they watched television for about 15 minutes before going to his bedroom. They then both got into bed and began kissing and hugging before they both got undressed. The offence that is the subject of count 5 occurred when the offender placed his penis into the victim's mouth and she sucked on his penis for some time. In relation to count 6 this occurred shortly afterwards when the offender put on a condom and had penile vaginal intercourse with the victim in his bed for perhaps up to an hour. During this the offender slapped the victim hard on her right buttock leaving a bruise which lasted about a week. The intercourse concluded when the offender ejaculated. 18. After the victim showered, the offender took her on his motorbike and dropped her in Jesmond and she walked the remaining kilometre to her cousin's home. When she arrived at about 2.50am she told her cousin that she had had sex with the offender and that she was okay. Later that day the offender told the victim via Snapchat that she should not tell her mother what had happened because he would get in trouble. As a result she deleted all the Snapchat messages between her and the offender. 19. It was argued by the Crown that these two offences are aggravated by having been committed in the offender's home and because they involved a breach of trust or authority. I have considered these matters but I am unable to accept either of these arguments. The fact that the offences occurred in the offender's home is part of the factual background but it is not an aggravating feature. I also am not able to conclude on the facts known to me that at that stage the offender was in a position of trust or authority. 20. At the time that these offences occurred the offender had broken up with the victim's mother and he had moved out some time earlier. He was by then no longer in my opinion in a position akin to a stepfather. Rather the relationship at that time was accurately characterised as one where the victim was infatuated with the offender. That infatuation had, however, developed as a result of the contact which the offender had had with the victim when he was in the relationship with her mother and was himself at that time in a quasi-parental role. 21. In the circumstances this may well be a distinction without a difference when assessing the seriousness of these later offences because in my view the victim was vulnerable to the offender's exploitation and that vulnerability had developed in part by reason of the offender's previously trusted and exalted position as her stepfather and because of the victim's unmet need for a father figure. 22. Also, while these offences were somewhat opportunistic in the sense that it was the victim who made contact wishing to meet with the offender, they cannot be regarded as spontaneous or as a momentary lapse because the offender clearly engaged with the victim's approach, made arrangements to pick her up and then pursued her sexually. His treatment of the victim in dropping her off some distance from her cousin's home so late in the night, which no doubt was done to protect himself from suspicion, is another matter that I have taken into account in assessing his moral culpability. I regard each of these offences as being just short of the midrange of objective seriousness. 23. Turning to counts 7 and 9, these two offences occurred when the victim visited the offender at his shop in Stockton, which was arranged over Snapchat. The victim was in her high school uniform and was to attend dance classes in Stockton. She was 13 years old at the time and the offender was 21. After her arrival the victim and the offender were in a back room of the shop when the victim gave the offender a hug and they kissed passionately. In relation to count 7, this occurred when the offender pushed the victim gently to her knees and removed his pants. He then placed his erect penis into her mouth and moved it back and forth until she swallowed his ejaculate. 24. The offender then pulled up his pants and recommenced working. This upset the victim, who said, "Are you going to have sex with me now?". The offender then got up, moved to where the victim was standing and bent her forwards at the waist. The victim was confused and asked what he was doing, but allowed herself to be bent over so that her hands were against a shelf. The offender then removed his pants and hers, placed a condom on his penis and whilst standing behind the victim had sexual intercourse with her until he ejaculated again. This offence is count 9. Afterwards they both dressed and the offender again returned to his work while the victim played on her phone. 25. Soon after the offender suggested that the victim should leave via the back door. She asked him to drive her to dance class but he refused, saying that it would look too suss, that is suspicious. The victim then, after kissing the offender goodbye, left and walked to her dance class. She was hurt and upset by the offender's poor treatment of her. 26. While I do not consider these offences to have involved a breach of trust, I find that the victim was vulnerable due to her infatuation with and respect for the offender. The offender knew this and took advantage of it for his own sexual gratification. In doing so he showed a cavalier and uncaring attitude towards the victim, who clearly craved his affection. I assess these two offences as being just below the midrange of objective seriousness. 27. The last offence for which the offender is to be sentenced which is the subject of count 12 is an offence of sexual intercourse with a person aged above 14 years but below the age of 16 years. This offence occurred sometime after the two offences at the computer shop that I have just referred to, but before the victim was interviewed by police on 25 November 2016. At this time the victim had turned 14 and the offender was about 21. The victim was again having a sleepover at her cousin's house. On this occasion the victim and the offender arranged over Snapchat that he would pick her up from a street near her cousin's house and take her to his home. The victim told her cousin she was going to see the offender. Late at night she left via the back gate and walked to a nearby bus stop. 28. The offender was waiting for her there and he drove the victim to his house in Shortland. On arrival at the house the victim first played with the offender's dog, after which the victim and the offender went to the bedroom. The offender then said to her, "Are you going to get undressed?" and the victim removed her clothes and the offender did likewise. She then lay on his bed and the offender placed a condom on his penis and had vaginal sexual intercourse with her for a short period before ejaculating. After discarding the condom he said to the victim, "Are you going to get dressed and go home now?". 29. The victim did not want to leave at that time and tried to hug the offender and prevent him from dressing. However, the offender became irritated, got dressed, walked out to his car and waited for the victim to follow him outside. He then drove her to a street near her cousin's house and dropped her off. When they parted, the victim was feeling upset and rejected the offender's attempt to hug her goodbye. The offender said he would message her later. 30. She got out of his car and walked to her cousin's home. She did not hear from the offender again. 31. Again, while I do not consider this offence to have involved a breach of trust, I find that the victim was vulnerable due to her infatuation with and respect for the offender. As I noted in connection with the offences committed at the computer shop, the offender knew this and took advantage of it. In doing so he showed an uncaring attitude towards the victim, who clearly craved his affection. Instead he humiliated her for his own sexual gratification. I assess this offence as being just below the midrange of objective seriousness. 32. In assessing the objective seriousness of all of the offences, I note that other than the slap to the buttock, which I have referred to in relation to count 6, none of the offences involve violence or threats of violence. Indeed, as can be gathered from the facts that I have found, this is a case where the victim was a willing participant in much of the sexual activity that took place. As I say, I have taken this into account in my assessment of the moral culpability of the offender and the objective seriousness of each offence. However, while the absence of violence or threats of violence is a relevant factor in characterising the seriousness of the offending, it is not a matter in my opinion that mitigates the offending in this case. The offender was a grown man, while the victim was a child aged between 12 and 14. 33. The victim and the community are entitled to expect that adults, especially an adult in a position that this offender was in, will always act so as to protect children and act in their best interests. Young children, including those on the verge of emerging adulthood, are entitled to expect that adults that they look up to will never take advantage of them and will resist temptations and opportunities such as those that this offender gave into and actively pursued. 34. A Victim Impact Statement was admitted on sentence which was read out by the victim and in which she spoke of the disturbing and significant effects which she believes the offender's actions have caused in her life. It is necessary in accordance with the law that I exercise caution with respect to the weight that I attach to the Victim Impact Statement in this sentencing exercise given that it was not subject to being tested in cross examination. However, while I have exercised that care, I am satisfied independent of the Victim Impact Statement that the offences in this case would doubtless have had significant emotional impacts on the victim given her age and given the fact that the person who committed these acts was someone she looked up to and someone she was entitled to trust to act in her best interests, rather than to give in to his own sexual appetite. 35. Turning then to subjective matters in relation to this particular offender. The offender's subjective circumstances have been placed before the Court by means of a psychological report, a number of testimonials and the sentencing assessment report. The offender was raised by his parents in the Newcastle area and reports a happy childhood in a loving and caring family. He left school in 2011 at the end of year 10 when he was aged 15. Shortly after leaving school he commenced a motor mechanic apprenticeship in a business run by his sister and her partner and then attended TAFE where he completed a two year certificate course in information technology and computer network administration. 36. With his TAFE qualifications he found employment at the computer shop which he ultimately purchased and renamed. He told the psychologist that he earned a net income of between about $1,000 and $1,500 per week in this business and was saving money for a house. That business is currently for sale arising from the offender's acceptance that he is facing time in gaol. The offender told the psychologist that he plans to seek an apprenticeship as an electrician and hopes that he can commence electrical studies while in gaol. 37. He told the psychologist that he met the victim's mother in late 2014 when she attended his shop as a customer and that they soon formed a sexual relationship, which progressed to a live in relationship from January to September 2015. He reported, however, that the relationship was subsequently peppered with arguments and fights. According to psychological testing, the offender is of average intellectual capacity and the testing indicated that his current mood involved mild to moderately high indications for depression, anxiety and stress, but that these were not at levels of clinical concern. 38. The offender was optimistic about his future and looked forward to planning a new direction in his career and business upon release from gaol. He said he intended to get as many positive experiences as he could whilst in gaol such as further study and reading. The psychologist concluded that the offender drinks alcohol at harmful and hazardous levels. This is consistent also with comments made by the offender to a psychologist at Newcastle Community Corrections to whom he also recorded sporadic use of cocaine, MDMA and cannabis. The psychologist engaged by the offender has expressed the opinion that the offender likely suffered from alcohol use disorder at the time of the offences and that at the time of committing the offences he may have been experiencing severe levels of inebriation. 39. I do accept the offender had or has a problem with the overuse of alcohol, which is a matter I have taken into account as part of the general background. However, I am unable to make a finding that alcohol was a significant contributing factor in his committing the offences. The evidence at trial does not support such a finding and in any event self-induced intoxication is not under the law a mitigating factor. 40. The psychologist also suggested that the offender may have been too immature to resist the insistent attention given to him by the complainant and his immaturity may have led to the offences. Psychological testing identified that the offender had a high level of sexual appetite and that this had caused problems for him. While these may well be reasonable explanations for at least some of the offences, again they do not amount to mitigation of their seriousness. 41. As the offender still denies the offences there is no remorse to be taken into account in his favour. 42. A number of character references were tendered by the offender on sentence. However, several of those involve assertions of the offender's innocence of the offences for which the jury has now found him guilty. This reduces somewhat the weight that I will give to some of those because the positive comments they contain are made on the now incorrect assumption that the offences were not committed. Nonetheless, all of the testimonials are consistent in stating that the offender is ordinarily a person who is generous and loyal to friends, and who has made substantial contributions to his local community. These are matters that I will and have taken into account in his favour as part of his general background and in relation to his prospects of rehabilitation and likelihood of reoffending. 43. In this regard I think his prospects of rehabilitation are reasonably good and his likelihood of reoffending reasonably low. I come to these views based on a number of matters, but in particular the following: 1. His lack of prior convictions. 2. The psychologist's finding that he is of low risk of reoffending and that he is of low to medium risk on the Level of Services Inventory test referred to in the sentencing assessment report and is of average risk on the Static 99 test. 3. His generally pro social background and supports and his good history of employment and self motivation. 4. His positive outlook and plan to better himself while in prison. 5. His stated intention to address his problematic drinking. 6. The fact that he is in an apparently stable relationship with his partner of two and a half years who is expecting a child to whom the offender wishes to be a good role model. 1. I accept, as counsel for the offender submitted, that it is a tragedy that the offender will be in prison when and beyond the time when his child is born. The impact of this on the offender, his partner and child is a matter I have taken into account. However, there is no evidence and it was not submitted, that the circumstances fall into the exceptional category of cases where the penalty to be imposed ought to be materially reduced by reason of this impact. 2. Evidence was given by the offender on sentence in relation to some media exposure that occurred subsequent to the findings of guilt by the jury and there was tendered on sentence an article published apparently in the Newcastle Herald entitled "Daniel Warren Carleton to be sentenced after convicted of child sex abuse in Hunter Region". The offender's counsel made submissions about this evidence and the offender gave evidence that as a result of that article there was a number of posts made on social media and that it was a "hot topic", as he put it, for 12 to 24 hours in the online community and that there were multiple posts made about him which were unfriendly, to put it mildly, and which made adverse comments about him, such as calling him a grub. I was taken to evidence of other posts which referred to him as "a piece of shit" and a "fucking putrid cunt", and other comments such as, "It would be a shame if someone disclosed his address", and similar aggressive and unpleasant comments. 3. He said also that his parents have told him that people have been making comments. He said in his evidence that nothing had been said to him directly on the street but he thought he had got some adverse looks from people, although there had been no direct threats made to him. As I say, his evidence was to the effect that it was a hot topic online, as far as he knew, for about 24 hours. The offender relies upon this evidence as being a form of extra curial punishment, that is punishment that he has already suffered to some degree. I have taken this evidence into account, but it seems to me that while it is relevant background material, it does not fall into that category of exceptional adverse publicity such that it can be used by me to cause any significant reduction or adjustment in the penalties that would otherwise be available and appropriate. 4. In determining the sentences in this case, deterrence both of this offender and of others is a matter to which I attach great importance. This has been emphasised in a great many decisions of appeal Courts, particularly in more recent years, as the Courts have come to better appreciate the prevalence of this type of offence and the effects, which are often lifelong on victims. 5. In determining the appropriate sentences I have taken into account the maximum penalties and the standard non parole periods, where they apply, which I treat as guide posts in the sentencing exercise. My reasons for not imposing the standard non parole periods are those that are set out in these remarks. 6. I have also given careful attention to the general purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act, which of course include the importance of ensuring that the offender is adequately punished, that weight be given to deterrence, as I have mentioned already, the need to protect the community from the offender, to make him accountable for his actions and denounce his conduct, to recognise the harm done to both the victim and the community, but also to promote the rehabilitation of the offender. 7. I am satisfied, having considered all the alternatives, that the only appropriate penalty in this case is one of fulltime imprisonment. I find special circumstances based on this being the offender's first time in custody and also the desirability that he be subject to a significant period on parole given the need for him to address alcohol abuse and some other issues. I note that the Crown did not oppose a finding of special circumstances in this case. 8. I intend to impose an aggregate sentence. Had I not done so then the 9. sentences that I would have imposed in relation to the individual offences are those that I will now indicate. 10. Mr Carleton, the sentences that I am about to announce are not those that you will ultimately serve. They are those that I indicate that I would have imposed if I was not going to impose an aggregate sentence. I will announce the aggregate sentence after I have gone through those indicative sentences. 11. The indicative sentences in relation to the various counts are these: 12. On count 1 imprisonment for a period of ten months with a non-parole period of six months. 13. On count 2 imprisonment for three years with a non-parole period of one year nine months. 14. On count 3, two years imprisonment with a non-parole period of one year two months. 15. On count 4, two years six months imprisonment with a non-parole period of one year six months. 16. On count 5, four years imprisonment with a non-parole period of two years five months. 17. On count 6, imprisonment for four years with a non-parole period of two years five months. 18. I pause there to note that in relation to counts 5 and 6, which involved sexual intercourse offences committed as part of a single episode, I would have made those sentences largely concurrent if I was imposing separate sentences. 19. On count 7, four years imprisonment with a non-parole period of two years five months. 20. On count 9, four years imprisonment with a non-parole period of two years five months. 21. Again, in relation to those two offences I would have ordinarily exercised my discretion so as to have made those two terms largely concurrent because they were part of a single episode. 22. On count 12, the indicative sentence is three years and six months. 23. Instead of those I impose an aggregate sentence, namely a head sentence of nine years imprisonment with a non-parole period of five years five months. Those will each date from today. The head sentence will expire on 28 November 2028 and the non-parole period on 28 April 2025.