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District Court 6 March 2020

R v Zelensky (a pseudonym)

[2020] NSWDC 133

Sexual offences
SENTENCING DAUGHTER SENTENCE AFTER TRIAL SENTENCING RELEVANT FACTORS ON SENTENCE MULTIPLE OFFENCES SIX YEAR PERIOD

Citation: R v Zelensky (a pseudonym) [2020] NSWDC 133
Court: District Court of New South Wales
Date: 6 March 2020
Judge: Haesler SC DCJ

Background

Following an eight-day jury trial, the offender (referred to by the pseudonym "Alex Zelensky") was convicted of 19 counts of sexual or indecent assault against his stepdaughter (referred to as "Miriam"). The offences occurred in the family home and garage in the Wollongong area between 2009 and 2015, when Miriam was between nine and fifteen years old. Both the offender and Miriam had arrived in Australia as refugees in 2001, and the offender was the only father figure Miriam had known throughout her childhood.

The offences were charged across three provisions of the Crimes Act 1900: seven counts of assault and acts of indecency on a child under 16 (s 61M(2)), three counts of sexual intercourse with a child under 14 (s 66C(2)), and nine counts of sexual intercourse with a child under 16 (s 66C(4)). For each s 66C offence, the circumstance of aggravation was that Miriam was under the offender's authority. The offender was acquitted of three other counts, and Haesler SC DCJ noted those acquittals reflected the jury's careful approach to the evidence.

The abuse was repetitive, escalated progressively in severity over the six-year period, and occurred in circumstances where Miriam was particularly vulnerable. The offender's mother-in-law had died by suicide while the matter was awaiting trial, having reported the abuse to police after Miriam disclosed it to her in 2017.

  • What individual sentences were appropriate for each of the 19 counts, having regard to the applicable maximum penalties and (where relevant) standard non-parole periods?
  • How should the sentences be structured in aggregate, applying the principles of accumulation, concurrency, and totality, to reflect the full criminality of a prolonged course of conduct?
  • Whether any personal circumstances of the offender, including post-traumatic stress disorder (PTSD), hardship in custody, and separation from family, warranted a finding of special circumstances justifying a departure from the standard ratio between the non-parole period and the total sentence?
  • Whether the standard non-parole periods under the Crimes (Sentencing Procedure) Act 1999 applied, given that some offences were committed before those periods were introduced for the relevant provisions?

Decision

Haesler SC DCJ proceeded on the basis that no standard non-parole period applied to the s 66C offences at the relevant time, consistent with R v Cattell [2019] NSWCCA 297. Although s 25AA of the Crimes (Sentencing Procedure) Act 1999 applied to the proceedings, the court noted that the maximum penalties, and the guidance they provide, had not changed. For count 20, which spanned the period before and after the introduction of standard non-parole periods for that provision, the parties agreed the court should proceed on the basis that no standard non-parole period applied.

The court treated the 19 offences as forming part of an extended and repetitive course of conduct with many common features, while recognising that each count involved a discrete act. No single sentence could comprehend the totality of the offending. The court held that sentences must be partially cumulative to avoid a total sentence that would understate the full criminality of the conduct, but applied the principle of totality to ensure the aggregate was just and proportionate.

The court made a modest finding of special circumstances, acknowledging the offender's PTSD (documented in a psychiatric report), the hardship he would experience in custody, and his separation from family. This finding resulted in a slightly longer parole period relative to the non-parole period than the statutory default, though the adjustment was modest given the seriousness and extent of the offending. The court also noted the potential future operation of the Crimes (High-Risk) Offenders Act 2006, but confirmed that the possibility of post-sentence supervision or detention under that Act was not a matter that could mitigate the sentence.

Orders Made

Indicated sentences for individual counts:

  • Count 1 (s 61M(2)): 3 years, non-parole period 2 years 3 months
  • Count 2 (s 61M(2)): 3 years, non-parole period 2 years 3 months
  • Count 3 (s 61M(2)): 3 years, non-parole period 2 years 3 months
  • Count 4 (s 61M(2)): 2 years 6 months, non-parole period 1 year 10 months
  • Count 5 (s 66C(2)): 7 years
  • Count 6 (s 66C(2)): 8 years
  • Count 7 (s 66C(2)): 7 years
  • Count 8 (s 66C(4)): 6 years
  • Count 9 (s 66C(4)): 5 years
  • Count 10 (s 66C(4)): 5 years
  • Count 11 (s 66C(4)): 5 years
  • Count 12 (s 66C(4)): 4 years 6 months
  • Count 13 (s 66C(4)): 4 years 6 months
  • Count 14 (s 61M(2)): 4 years, non-parole period 3 years
  • Count 17 (s 66C(4)): 6 years
  • Count 18 (s 66C(4)): 5 years
  • Count 19 (s 61M(2)): 2 years, non-parole period 1 year 6 months
  • Count 20 (s 66C(4)): 4 years 6 months
  • Count 21 (s 61M(2)): 3 years, non-parole period 2 years 3 months

Aggregate sentence:

  • Total imprisonment: 18 years
  • Non-parole period: 13 years, commencing 4 September 2019 and expiring 3 September 2032
  • Balance of sentence: 5 years, commencing on expiration of non-parole period and expiring 3 September 2037
  • Registrar directed to forward Dr Furst's psychiatric report to Justice Health with the warrant
  • Justice Health recommended to immediately review the offender upon his return to custody

Key Takeaways

  • Where multiple sexual offences against a child form part of a prolonged course of conduct, the District Court held that sentences must be made partially cumulative to avoid an aggregate that fails to reflect the full criminality of the offending, while the principle of totality still requires the aggregate to be just and proportionate overall.

  • Standard non-parole periods that did not apply at the time an offence was committed cannot be used to guide sentencing for that offence, even where the proceedings occur after those periods have been introduced, consistent with the Court of Criminal Appeal's approach in R v Cattell [2019] NSWCCA 297.

  • A finding of special circumstances, which permits a longer parole period relative to the non-parole period than the statutory default, may be supported by an offender's diagnosed PTSD, anticipated hardship in custody, and separation from family, though the weight given to those factors will be modest where the objective seriousness of the offending is high.

  • The potential future application of the Crimes (High-Risk) Offenders Act 2006, which may result in continued detention or supervision after a sentence is served, is not a factor that can reduce the length of the sentence imposed; the District Court confirmed it cannot be taken into account in mitigation.

  • Aggravating circumstances under s 66C, including that the victim was under the offender's authority as a stepchild, informed the individual sentences for those counts, alongside the victim's age, the escalating nature of the abuse, and the extended period over which it occurred.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66C(2), 66C(4), 61J
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25AA, 54B(4)
- Crimes (High-Risk) Offenders Act 2