Ahjh v Tasmania

[2021] TASCCA 2

[2021] TASCCA 2

COURT:	SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION:	AHJH v Tasmania [2021] TASCCA 2
PARTIES:	H, AHJ
v
STATE OF TASMANIA
FILE NO:	CCA 2363/2020
DELIVERED ON:	4 March 2021
DELIVERED AT:	Hobart
HEARING DATE:	2 March 2021
JUDGMENT OF:	Blow CJ, Martin AJ, Marshall AJ
CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Persistent sexual abuse of a child – Non-penetrative indecent assaults by stepfather over five years on girl aged 7-12 – Sentence of four years' imprisonment with

non-parole period of two years not manifestly excessive.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:

Appellant:	G Stevens
Respondent:	Y Prenc and V Dawkins

Solicitors:

Respondent:  Director of Public Prosecutions

Judgment Number:	[2021] TASCCA 2
Number of paragraphs:	28

Serial No 2/2021

File No CCA 2363/2020

AHJH v STATE OF TASMANIA

REASONS FOR JUDGMENT	COURT OF CRIMINAL APPEAL BLOW CJ MARTIN AJ MARSHALL AJ 4 March 2021
Order of the Court (2 March 2021)
Appeal dismissed.

Serial No 2/2021

File No CCA 2363/2020

AHJH v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
4 March 2021

1             The appellant was found guilty by a jury of one count of persistent sexual abuse of a child. He was sentenced by Estcourt J to four years' imprisonment, with a parole ineligibility period of two years. He appealed, solely on the ground that the sentence was manifestly excessive. The appeal was heard on 2 March 2021. At the conclusion of the hearing the Court unanimously dismissed the appeal. My reasons for deciding that the appeal should be dismissed accord with those now published by Martin AJ. I also agree with the comments of Marshall AJ.

2             There is a little that I would like to add in relation to prior convictions. It is true that the appellant had no prior convictions for sexual offences. He had a bad criminal record, with convictions for offences involving drugs, dishonesty and dangerous driving, amongst other matters. He had been to prison a couple of times. But his convictions did not include any for sexual offences. In the circumstances that was not a significant mitigating factor. It was undisputed that the appellant had indecently assaulted the complainant on many occasions over a period of about five years. There is no suggestion that he stopped doing that of his own accord. There was evidence at the trial that the last indecent assault occurred not long before the complainant left the appellant's household and went to live with a relative in another place. Because of the appellant's conduct towards the complainant over the years in question, the fact that he had no convictions for sexual offences was not something that weighed in favour of a more lenient sentence.

2   No 2/2021

File No CCA 2363/2020

AHJH v STATE OF TASMANIA

REASONS FOR JUDGMENT	COURT OF CRIMINAL APPEAL MARTIN AJ 4 March 2021
Introduction

3             After a trial in September 2020, the appellant was found guilty by a jury of one count of persistent sexual abuse of a child. Estcourt J imposed a sentence of imprisonment for four years, and ordered that the appellant not be eligible for parole until he has served two years. Pursuant to the Community Protection (Offender Reporting) Act 2005, his Honour ordered that the appellant's name be placed on the register and that he comply with the obligations under that Act for a period of five years from his release.

4             The appellant appealed against the sentence on the sole ground that the sentence was manifestly excessive. At the conclusion of oral submissions, the appeal was dismissed. I now set out my reasons for agreeing with that order.

Facts
5	The female complainant was born in 1996. At the time she gave evidence she was aged 24 (and the appellant was 51). The offending occurred over a five year period between 2003 and 2008 when the complainant was aged between 7 and 11 or 12 years. The learned trial judge found that the individual assaults "formed part of a sustained course of sexual abuse which occurred over about five years".
6	The complainant gave evidence that her parents were not together when she was growing up. From a very young age the family unit comprised the complainant's mother, the appellant and the complainant. The siblings of the complainant were born in 1998 and 2003.
7	The family moved to Tasmania in about May 2003. The complainant gave evidence that shortly after arriving in Tasmania, there were two celebrations within the family. Her younger sister was born in mid-2003, and the complainant's mother and the appellant were married. Notwithstanding those celebrations, the complainant agreed that it is "very fair to say" that shortly after moving to Tasmania, the family relationship was not a "good one".
8	The Crown relied upon four unlawful sexual acts to establish the crime of persistent sexual abuse. When interviewed by police, the appellant denied engaging in any inappropriate behaviour. Like the jury, the trial judge was satisfied that the appellant committed the four unlawful sexual acts between 2003 and 2008. Each was an indecent assault and his Honour summarised the acts as follows:

"On the first occasion, in 2003 – touching the complainant on both breasts over her

pink and white pyjamas with both hands, grabbing them and slightly squeezing them.

The second occasion in 2003 – after an athletics carnival, touching the complainant on
the breasts on the outside and inside of her top while tucking her in after she had been

reading and watching Barbie movies.

A third occasion, following the second occasion – touching the complainant on the
genital area under her boxer shorts but over her underpants, after she had gone to bed

on an occasion when she had been drawing an elephant.

The fourth occasion, in or around 2008 – touching the complainant on the breasts on
the way home from a friend's house, when she was in the front passenger seat and he
reached across the car from the driver's seat."

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9             In addition to being satisfied that each of the four indecent assaults occurred, the trial judge was also satisfied that the assaults occurred "in the context of many more similar assaults over a five year period when the complainant was between 7 and 11 or 12 years old". His Honour added:

"For the crime of persistent sexual abuse of a child, it is not necessary that the Crown prove the dates on which any of the unlawful sexual acts were committed, or the exact circumstances in which any of the unlawful sexual acts were committed.

Children who are victims of such offences are frequently unable to give particulars of each and every sexual act during a period of prolonged offending. The State has listed the specific sexual acts it is able to identify, but the defendant may be sentenced on the basis that each specific act is part of a course of conduct involving other, sometimes many other, unspecified acts."

10           There were no mitigating factors accompanying the commission of the four acts of indecent assault or the similar assaults committed over a period of five years. As the trial judge observed, the offending was not accompanied by aggravating factors such as penetration, violence or intimidation and exposure or contact with the appellant's penis. However, his Honour correctly added that the absence of these aggravating features was not to be taken into account as a matter of mitigation. If those features, or any of them, had been present, the offending would have been in a more serious category and warranted a longer sentence. As his Honour found, there were "no truly mitigating features".

11           The trial judge took into account matters personal to the appellant. His Honour noted the appellant had no relevant prior convictions and was suffering from health issues. There were delays in the matter coming to trial which had caused stress and anxiety. However, his Honour also took into account that the appellant had shown no remorse and had been prepared to put the complainant through the ordeal of giving evidence. His Honour added that the appellant was not to be punished for maintaining his plea of not guilty.

12           The appellant does not challenge any of the findings made by the trial judge. However, counsel for the appellant submitted that the individual offences "were examples of indecent assault at the lower end of serious [sic], albeit in the context of wider, unspecified offending". The written submissions continued:

"[18]	The apportionment of in excess of one (1) year imprisonment, and then the application of the totality principle, reducing the sentence to four (4) years' imprisonment is plainly unjust.
[19]	It is submitted that his Honour fell into error, despite considering the relevant matters. The sentence imposed was at the highest end of the range for single counts. The crime lacked many of the aggravating features."

Discussion

13           All crimes of sexual abuse against children are serious crimes. As with all crimes, however, there is a scale of seriousness to which regard must be had in order to arrive at an appropriate sentence. The appellant seeks to categorise the four individual acts of indecent assault, and the other similar assaults, as offending at the lower end of the scale of seriousness. Reliance was placed by the appellant on the individual acts, considered in isolation, together with the absence of the aggravating features to which I have referred. This is not, however, the appropriate approach to assessing the seriousness of the appellant's crime.

14           The appellant was to be sentenced for the crime of persistent sexual abuse of a child. While individually, and considered in isolation from the total circumstances, the individual acts were at the lower end of the scale of seriousness, the crime of persistent sexual abuse was comprised of the four individual acts, considered in their totality in the context of "a sustained course of sexual abuse which

4   No 2/2021

occurred over about five years".[1] The sexual abuse for which the appellant was to be sentenced was committed in the context of domestic circumstances at a time when the appellant was in the position of a father within the complainant's family unit. The appellant was in the ultimate position of trust within the family unit, and he repeatedly abused his position of trust over a period of approximately five years. The victim of the appellant's abuse was a young child who, by reason of her age and the appellant's position within the family unit, was particularly vulnerable to the abuse of trust and power by the appellant.

[1]   JWM v Tasmania [2017] TASCCA 22, 27 Tas R 365 at [127]-[128].

15           Viewed in its entirety, and having regard to the totality of the circumstances in which the appellant sexually abused the child over a five year period, it is apparent that the appellant's crime was not at the lower end of the scale of seriousness. Further, it is the type of crime that is far too prevalent across the Tasmania community, and the wider Australian community, and it is a crime frequently committed behind closed doors in the context of family circumstances. Such crime is difficult to detect and causes great harm to victims and families.

16           The community and criminal courts now recognise the gravity and longevity of the damage this type of offending causes to victims, particularly to young children. As the trial judge observed, sexual offences against children "have enormous potential to cause physical and psychological harm". His Honour added that conduct of this nature "has profound and deleterious physical and psychological effects upon victims for many years, if not for the whole of their lives".

17          As to the impact upon the victim, from the victim impact statement the trial judge summarised the effects of the offending:

"Her mental health, her physical health, and her personal relationships have suffered dramatically because of the defendant's offending, and the preparation for and the court case itself has had an impact upon her."

1. The brief summary by the trial judge of the impact of the crimes upon the victim was appropriate, but should not detract from a full appreciation of the severity of the impact. The victim's childhood was damaged irreparably. Added to shame, self-disgust and depression was damage to her relationships with her mother, siblings and friends. The victim's mother did not believe her, and the victim now harbours such strong feelings against her mother that the relationship may never be repaired.

19           The shame experienced by the victim is not an uncommon feature of the damage caused by this type of offending. It is important that the victim understands her feelings are commonly experienced by innocent victims of sexual assault. This Court, and the wider community, know that the victim is not to blame for the sexual assaults upon her. I emphasise there is no reason for the victim to feel ashamed.

20           As I have said, there were no mitigating circumstances accompanying the commission of the crime, or any of the individual sexual assaults committed by the appellant over the five year period. The appellant has not shown any remorse for his criminal conduct. Nor is there any sign that the appellant regrets abusing his position of trust and causing extensive harm to the young victim. Although the appellant had not previously offended in a similar way, nevertheless his lengthy record of prior offending amply demonstrates he is not a person of good character. Personal deterrence was a significant factor in the exercise of the sentencing discretion.

21           General deterrence loomed large, together with the need for a sentence which reflected the community's denunciation of the appellant's conduct. The sentence was also required to vindicate the victim. The importance of these factors is well recognised and was explained by Brett J, with whose judgment Porter AJ agreed, in JWM v Tasmania. In the context of an appeal against a sentence imposed

5   No 2/2021

upon a father for maintaining a sexual relationship with his son, and in response to a complaint that the learned sentencing judge had given "too much prominence to general deterrence", Brett J said at [103]- [105]:

"[103] In any event, her Honour was correct to emphasise the need for general deterrence. There is overwhelming authority to support the relevance of that factor in sentencing for a crime such as this: Director of Public Prosecutions v STU [2012] TASCCA 7, 21 Tas R 322; Harington; CJP. Further the appellant's criminality involved a significant breach of trust. That, by itself, is a matter which called for significant weight to be placed upon general deterrence: Harington per Pearce J at [90].

[104] The rationale for the emphasis on general deterrence in cases involving maintaining a sexual relationship with a young person, particularly where the criminal conduct involves a significant breach of trust, arises not only because of the evil and highly damaging nature of such conduct, but also because of the insidious and secretive circumstances in which such abuse typically takes place. In this case, the abuse was perpetrated over a period of years by a father on his son. The appellant was, in actual fact, the person in whom was reposed the responsibility of protecting and nurturing his son. Those circumstances provided the appellant with the opportunity to commit this crime, with virtual impunity and over a lengthy period of time. Because such crimes occur in circumstances where the victim is particularly vulnerable, the crime is difficult to detect and it occurs in a premeditated way over a lengthy period and on a repeated basis, the crime is particularly amenable to general deterrence. A person with the opportunity and inclination to make a conscious and premeditated decision to abuse his child within the family home must appreciate that the consequences of such conduct will involve severe punishment.

[105] In sentencing for a crime such as this, there are other factors properly taken into account, which are related to but distinguishable from general deterrence. For example, conduct such as that committed by the appellant requires a sentence that will give effect to the community's denunciation and rejection of such conduct. The sentence should also provide a means of vindicating the victim. DPP v NOP [2011] TASCCA 15; Harington per Pearce J."

22           The principles governing appeals against sentence on the sole ground of manifest excess are well settled and need no discussion.[2] In essence, absent apparent error by the sentencing judge, the appellant must demonstrate that the sentence is unreasonable or plainly unjust.

[2] Braslin and Cowen v Tasmania [2010] TASCCA 1 at [31]-[34]; Director of Public Prosecutions (Acting) v Pearce

23           Having regard to the gravity of the appellant's criminal conduct, coupled with the harm caused to the victim and the absence of mitigating features, in my view the sentence was far from unreasonable or plainly unjust. It was well within the range of the sentencing discretion.

24   For these reasons I agreed that the appeal should be dismissed.

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File No CCA 2363/2020

AHJH v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
MARSHALL AJ
4 March 2021

25           I have had the advantage of reading in draft form the reasons for judgment of Martin AJ. I agree, with respect, with the reasons of his Honour in rejecting the appeal. I wish only to add some brief observations of my own.

26           The crime of persistent sexual abuse of a child is one of the most serious crimes in the Criminal Code. Persistent sexual abuse of children has the capacity to destroy young lives, to make young people suffer well into adulthood for the evil perpetrated on them, and in many cases may lead to suicide or severe mental health issues, or both. In this case, as the sentencing judge observed, the criminality occurred over a five year period and "formed part of a sustained course of sexual abuse".

27           In all the circumstances of the matter before the sentencing judge, the period of imprisonment of four years with a non-parole period of two years, was not manifestly excessive but, rather, an entirely appropriate sentence for a crime involving such a significant breach of trust and which led to the complainant suffering severe psychological harm. It also involved the complainant in destroyed relationships with those close to her who were also close to the appellant. The criminal behaviour of the appellant has also deleteriously affected the physical well being of the complainant and interfered with her capacity to complete her education and maintain personal relationships. It is an ongoing nightmare for her and will be so beyond the service of the appellant's term of imprisonment.

28           The sentencing range for matters of this type will always depend on the type of conduct involved, the relative ages of offender and complainant, issues of trust and matters of harm. The terms of imprisonment generally given for matters of this type should reflect the horrific ongoing consequences of crimes which encompass the ingredients of an offence under s 125A of the Criminal

Code.

[2015] TASCCA 1; 28 Tas R 1 at [3]; Farhat v Tasmania [2017] TASCCA 3, 29 Tas R 28 at [20]-[22].