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District Court 18 February 2011

R v ROSENSTRAUSS

[2011] NSWDC 46

Sexual offences
CRIMINAL LAW SENTENCE INDECENT ASSAULT HISTORICAL OFFENCE

Citation: R v Rosenstrauss [2011] NSWDC 46
Court: District Court of New South Wales
Date: 18 February 2011
Judge(s): Berman J

Background

The offender pleaded guilty at an early stage to three counts of indecent assault upon a child under the age of sixteen, offences committed more than thirty years before sentencing. The charges were brought under the now-repealed section 76 of the Crimes Act, which carried a maximum penalty of six years imprisonment. The offences came to light only after the complainant approached police in 2009.

The offender had been a family friend who was occasionally trusted with the care of the complainant. He used those opportunities to commit a series of serious sexual offences against her, including oral penetration, genital rubbing to ejaculation, and repeated fondling in a spa and sauna. Berman J noted that some of this conduct, if committed today, would be charged as sexual intercourse with a child under sixteen and would attract a substantially longer sentence.

A central factual dispute at sentencing concerned the complainant's age at the time of the offences. The complainant believed she was as young as five or six when several incidents occurred; the offender maintained she was aged nine or ten. That dispute required resolution before sentence could be imposed.

  • What standard of proof applies when the parties dispute a sentencing fact, and in particular when both parties are asserting competing versions of events?
  • Was the complainant's age at the time of the offences proved to the required standard?
  • What sentence was appropriate for three historical offences of indecent assault, taking into account the offender's age, early plea, lack of prior record, and the gravity of the conduct?
  • Was full-time custody required, or could a partially suspended sentence be imposed?

Decision

Standard of proof for disputed sentencing facts. Berman J acknowledged the guidance in R v Olbrich that the party who asserts a fact bears the burden of proving it. However, this case presented an unusual difficulty: both the Crown and the offender were asserting competing factual versions of the complainant's age. Neither counsel was able to provide authority on how to resolve such a bilateral dispute. Berman J adopted the more cautious approach, requiring the Crown to prove beyond reasonable doubt that the complainant was as young as she recalled before sentencing on that basis.

Resolution of the age dispute. The court found it could not be satisfied beyond reasonable doubt that the complainant was as young as she believed. Evidence from the offender's son suggested his mother's recollection of when she worked at the squash courts was inaccurate, and the evidence about the "rent run" timing supported the offender's version that the complainant was older. Berman J accepted that all witnesses were doing their genuine best to remember events from thirty years earlier, and that no witness was lying. He noted the age finding made only a slight difference to the overall sentence.

Sentence. Berman J rejected a proposal to suspend some of the custodial terms. Having regard to comparable cases and the gravity of the conduct, the court held that full-time custody was required for each matter. The purposes of sentencing identified included marking the gravity of the offending, general deterrence, and demonstrating that courts recognise the harm caused by such conduct. The court made a finding of special circumstances, noting this was the offender's first time in custody at age 61, and that under the Probation and Parole Act as it then applied there was no statutory ratio between the non-parole period and head sentence.

Orders Made

  • Count 2 (indictment): fixed term of imprisonment of one year, commencing 18 February 2011
  • Count 3 (indictment): fixed term of imprisonment of one year, commencing 18 August 2011
  • Count 1 (indictment, including Form 1 matter): non-parole period of one year commencing 18 February 2012; head sentence of two years
  • Aggregate sentence: non-parole period of two years; head sentence of three years
  • Release to parole on 17 February 2013

Key Takeaways

  • Where both the Crown and the offender assert competing versions of a sentencing fact, the District Court held that the more cautious approach is to require the Crown to prove the aggravating version beyond reasonable doubt before sentencing on that basis.
  • R v Olbrich provides a starting point for allocating the burden of proof on disputed sentencing facts, but Berman J acknowledged the High Court's formulation does not neatly resolve disputes where both parties are simultaneously asserting facts.
  • Historical offences prosecuted decades after the conduct occurred do not escape full-time custodial sentences where the conduct is sufficiently serious; the passage of time did not preclude immediate imprisonment here.
  • A finding of special circumstances was available where the offender was a first-time prisoner at age 61 and where the relevant legislation imposed no statutory ratio between the non-parole period and the head sentence.
  • Conduct charged under repealed provisions of the Crimes Act is assessed for sentencing purposes by reference to the maximum penalty applicable at the time of the offending, even where the same conduct would now attract far more severe charges.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), s 76 (repealed): indecent assault upon a child under sixteen; maximum penalty six years imprisonment
- Probation and Parole Act (NSW) (as applicable at the relevant time)

Cases:
- R v Olbrich [1999] HCA 54; (1999) 197 CLR 270 (standard of proof for disputed sentencing facts)