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District Court 3 March 2017

R v Mollel

[2017] NSWDC 36

Sexual offences
CRIMINAL LAW SENTENCE AGGRAVATED INDECENT ASSAULT VICTIM UNDER AGE OF 16 OFFENDER’S PRIOR GOOD CHARACTER SPECIAL CIRCUMSTANCES

Citation: R v Mollel [2017] NSWDC 36
Court: District Court of New South Wales
Date: 3 March 2017
Judge: Hatzistergos DCJ

Background

The offender, a man of Tanzanian background living on the Central Coast, was convicted by a jury of two counts of aggravated indecent assault on a 13-year-old girl, contrary to s 61M(2) of the Crimes Act 1900 (NSW). The offences occurred on the morning of 30 May 2015 at the victim's family home in Kensington, where the offender had stayed overnight as a guest of the victim's father.

The offender and the victim's family were social acquaintances within a shared Tanzanian community. They had met on several occasions, including family gatherings and visits to each other's homes. On the night in question, the offender and the victim's father had gone out socialising, leaving the 13-year-old victim and her younger sister alone in the unit.

The following morning, the offender entered the bedroom where the victim was watching a show on her laptop, sat beside her, and committed the two offences. The jury rejected the offender's account, given in a police interview, that the victim had initiated the contact. The jury acquitted the offender of a separate count of attempted sexual intercourse without consent.

  • Whether the offender breached the victim's trust within the meaning of s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 (NSW), so as to constitute an aggravating factor at sentence
  • Whether the offending was spontaneous and opportunistic, and how that bore on the assessment of objective seriousness
  • Where the offences fell on the range of objective seriousness for s 61M(2) offences
  • Whether the offender's prior good character constituted a mitigating factor
  • Whether special circumstances existed justifying a departure from the standard non-parole period ratio
  • Whether the conditions of the offender's custody were likely to be more onerous than usual, and what evidence was required to establish that

Decision

Breach of trust. The court found that a breach of trust was established as an aggravating factor. Although the social relationship between the offender and the family was not a close one, the offender had been welcomed into the family home, had interacted warmly with the children on prior occasions, and both girls were described as fond of him. The victim had offered him an earphone to share her show, consistent with a degree of comfort and trust. In those circumstances, Hatzistergos DCJ was satisfied the offender occupied a position of trust relative to the victim, and that the offending constituted a breach of that trust under s 21A(2)(k).

Spontaneity and objective seriousness. The court accepted that the offending was spontaneous and opportunistic rather than planned, which reduced its objective seriousness to some degree. However, that consideration was weighed against the nature of the conduct itself: the offender had exposed the victim's genitalia, digitally touched her, and then rubbed his exposed penis against her genitalia until he ejaculated. The offences were committed in the victim's own home (an additional statutory aggravating factor under s 21A(2)(eb)) and against a 13-year-old. The court placed the offending at the lower end of the middle range of objective seriousness.

Subjective factors. The offender had no prior criminal record and was assessed as having good prospects of rehabilitation. His prior good character was treated as a mitigating factor. The court noted that the offender's Tanzanian background and limited English proficiency would likely result in some social isolation during any period of custody, though it found the evidence insufficient to conclude that his custodial conditions would be more onerous than usual in a legally material sense. A finding of special circumstances was made, resulting in a longer than standard non-parole period ratio, primarily to allow for an adequate period of supervision on parole.

Sentence. The court imposed sentences on each count that were partially accumulated, resulting in an aggregate sentence with a non-parole period. The precise terms reflected the standard sentencing purposes under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), including general and specific deterrence, denunciation, and community protection.

Orders Made

• Count 1: Convicted and sentenced to 3 years imprisonment, to be served concurrently with Count 3, commencing 3 September 2016 and expiring 2 September 2019, with no non-parole period set
• Count 3: Convicted and sentenced to 4 years minimum term and 2 years additional term, commencing 3 September 2016 and expiring 2 September 2022, with non-parole period expiring 2 September 2020

Key Takeaways

  • A family friend can be found to have breached a victim's trust under s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 (NSW) even where the social relationship is not particularly close, provided the circumstances show the victim reposed some degree of comfort or trust in the offender.

  • Spontaneous and opportunistic offending carries less objective weight than planned offending, but that consideration does not override the gravity of the physical conduct itself, the age of the victim, or the presence of other statutory aggravating factors such as offending in the victim's home.

  • Where an offender contends that custody will be more onerous due to cultural isolation or language difficulties, the District Court confirmed that meaningful evidence is required to establish that the conditions will be materially harsher than for other prisoners, before that factor can operate in mitigation.

  • Prior good character remains a mitigating factor at sentencing for sexual offences, though its weight diminishes where the offence itself represents a fundamental breach of the standards the character evidence purports to reflect.

  • Under s 61M(2) of the Crimes Act 1900 (NSW), the victim's age within the statutory range of 0 to 16 years is a relevant consideration in assessing objective seriousness, with offending against older victims within that range carrying comparatively less weight than offending against very young children.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 61M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A(2)(eb), 21A(2)(k), 21A(3)(i), 21A(5A), 44(2), 45(1), 47(2)(a), 47(3), 54B(2)

Cases
- BT v R [2010] NSWCCA 267
- Clarkson v R (2007) 171 A Crim R 1; [2007] NSWCCA 70
- Corby v R [2010] NSWCCA 146
- CT v R [2017] NSWCCA 15
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- R v Dagwell [2006] NSWCCA 98
- R v Darrell Williams (Unreported, NSW Court of Criminal Appeal, 5 November 1991)
- R v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370
- R v Huang (2000) 113 A Crim R 386; [2000] NSWCCA 238
- R v McClymont (Unreported, NSW Court of Criminal Appeal, 17 December 1992)
- R v PGM [2008] NSWCCA 172
- R v Smith [2004] WASCA 44
- R v Stanbouli (2003) 141 A Crim R 531
- R v Wicks [2005] NSWCCA 409
- R v XX (2009) 195 A Crim R 38; [2009] NSWCCA 115
- R v LP [2010] NSWCCA 154
- RWB v R; R v RWB (2010) 202 A Crim R 209; [2010] NSWCCA 147