Director of Public Prosecutions v Finn
[2019] VCC 1355
•21 August 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KIMBERLEY FINN (A PSEUDONYM) |
---
| JUDGE: | HIS HONOUR JUDGE SMALLWOOD |
| WHERE HELD: | Latrobe Valley |
| DATE OF HEARING: | 18 December 2018; 7 February 2019, 12 February 2019; 22 May 2019; 12 June 2019; 15 August 2019 |
| DATE OF SENTENCE: | 21 August 2019 |
| CASE MAY BE CITED AS: | DPP v Finn |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1355 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D Cordy | Office of Public Prosecutions |
| For the Accused | Mr C. Wareham | Victoria Legal Aid |
HIS HONOUR:
1Kimberley Anne Finn,[1] you have pleaded guilty to six charges of indecent act with a child under the age of 16 and two charges of sexual activity in the presence of a child under the age of 16. Each of those crimes carries 10 years' imprisonment. In these circumstances, I do not propose to differentiate between them. That can be done on other occasions I suspect.
[1] This is a pseudonym.
2The circumstances of all this are that you are now 25 years of age and you were 22 years of age at the time of the offending. You pleaded guilty at the earliest reasonable opportunity and must get the benefit of that plea. I accept that as time has gone by since you were charged with this offending, appropriate remorse has formed. You must also get the utilitarian benefit of that plea of guilty. It is clear from the way that your matter has been conducted that you have started to come to terms with the wrongness of what you did and it is to be hoped that you will be ultimately rehabilitated. You have no prior convictions and that is a matter of real significance. There are two subsequent matters but I understand the circumstances of them and they play no part in this sentencing process.
3As I indicated to counsel before I started these remarks, I am going to give you a combination sentence. The situation is that were I to imprison you on Charges 1 and 2, you would then be a serious sex offender on Charge 3. What I am going to do is imprison you on Charge 1 and then give you a community corrections order as part of the composition of this on all the charges.
4I make it clear that is done for practical purposes and not in way, shape or form to try and get around the provisions that relate to serious sex offenders. Because of the nature of the offending, you will be placed on the sex offenders register and I advise you the reporting conditions will be for life and I will just ask you to sign these documents.
5Next, pursuant to s.464 of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes. That order having been made, I must advise you that should you refuse to provide such a sample, reasonable force may be used to take it from you and that order is made and handed down.
6The circumstances of the offending are contained in a lengthy Crown opening. As with your co-accused, I simply propose to annex that opening to my sentencing remarks rather than try and go through the lurid details of a summary.
7Essentially, what has occurred is that between December 2016 and July 2017, you and your husband performed numerous sexual acts in front of your three children. Those acts were recorded and ultimately, as I understand it, Fisheries, when seizing the phone of your husband, found these matters and you were subsequently interviewed in relation to them.
8Each of the charges is essentially the same conduct and again I just simply refer to the Crown opening. I point out that I have seen, visual summaries at least, the videos that were taken and they certainly speak for themselves. The sexual acts included the use of objects. The children were clearly present, were in some respects spoken to and were - certainly by your husband - at some points in time, were yelled at and were clearly aware of what was going on.
9I sentence you realistically for a course of conduct. To try and distinguish between each of these individual charges would be, I think, artificial.
10Insofar as the children are concerned, this is the only situation I can find where charges of this nature were not directed at the child. Counsel very helpfully have looked. I have spoken to other judges and am unable to find a similar set of circumstances. The usual circumstances of the indecent act is in some way, shape or form directed at the child. It is my view that where the child is a victim by negligence, rather than by intent, that the culpability of the perpetrator - if that is the proper word - has to be regarded as lower.
11The charges are clearly made out as has been made clear in the decision Redlich J that directing the sexual activity at the child is not an element of the offence. It is simply the act of it taking place. But there is no virtually no assistance from any authorities as to how that should be viewed. That is the view I have taken after lengthy consideration.
12The circumstances of the offending have given rise to real difficulties with the children and I was provided not with victim impact statements obviously but with a report from the Department of Health and Human Services.
13As I indicated to your husband when I sentenced him, all of the children have been diagnosed with post-traumatic stress disorders. There has been fairly obvious sexualisation in some respects and each of them is going to take a fair bit of treatment before, if and when, they become good. They are all in the care of the Department or foster carers. I understand that they have no access to you and I think it is pretty clear that it is going to be very, very difficult task indeed if you wish to get those children back. In the absence of victim impact statements, that is the effect it has had.
14It should also be noted in this situation that the difficulties that those children have cannot be sheeted home just to this offending. It is quite clear that during the period of time what was going on and beforehand, that the family was dysfunctional. There was drug use and other matters going on which have also caused difficulties. To say that the problems that they have is, as I said, solely related to this would not be correct. However, the law is there to protect children from such conduct and that is what has to take place.
15A chronology of the matter was that it occurred between 2016 and July 2017. You were interviewed in August 2017. You pleaded guilty in July 2018. The plea was listed in December of 2018. Both you and your husband were arraigned on that date. I subsequently sentenced him to five years with a minimum term of three, and because of matters which have been raised on your behalf, I adjourned your sentencing off so reports could be obtained.
16We now have the benefit of a number of reports in relation to you and there has been an unfolding of information which has been of great assistance to me in this sentencing process. I have taken the view that there has to be a period of custody involved in all this. Matters of parity I will deal with in a moment. There are very different circumstances between you.
17It is clear from the material before me and from watching those videos that during the course of this you were not a well person. You were using drugs. In some of them you appeared dishevelled; in one of them you were bleeding. And it is clear that you were not really in a state to be making proper judgments. A lot of that is explained in the psychological material which I will go to in a minute.
18From the outset, insofar as parity is concerned, I simply say this, that the co-accused received five years with a three-year minimum. Whilst 46 years of age, he had significant prior convictions though not related to sexual matters. It is clear from the material before me and from all the circumstances that he had had a degree of power and control over you.
19I think that because of the matters personal to you your moral culpability is far less than his, and I will be outlining why that is in a moment. I think that you were subject to him in many ways. Clearly, you were much younger. In fact, you were living with him from the age of 13. It has been denied that there was any sexual contact between you or him until you were 16.
20I have got great doubts about whether that is true but it is quite clear that you have never had an appropriate family set of circumstances. You were using drugs at, I suspect, his instigation from a very early age and I have got no doubt that you were afraid of him. He in fact has done a prison sentence for assaulting you.
21You had your first child at 17, had virtually no parental experience and had mental health issues. You yourself were abused and I will be going to that again in a moment. It seems to me in all those circumstances with the age, the priors, the personal circumstances and the way in which the offending was instigated that you were in a very different situation to him. You seem to have been saying to people that you were not aware necessarily that it was being filmed. The fact that it is filmed does not really add or subtract to the seriousness of it. I suspect that you did or were aware that it was filmed though that may not have been of your desire.
22As I said previously and this might come down to semantics, it is the difference between objective and subjective but clearly in each, the actual physical role that each of you play are very similar. The children are present to each - obviously each of you were aware of the children and there is no suggestion that the acts were involuntary or performed under what might be called duress as a matter of law.
23When the matters had been adjourned, we then come down to the situation of getting proper material on you. I do have before me the DHS report that I have already referred to. That report indicates some of your background. The deep suspicion seems to be that the relationship between you and your co-accused occurred well before you were 16. It may simply be that you are protecting him in that respect.
24I have two reports from Dr Sidorov. I have the Forensicare report which was sought in June of this year when it became clear for various reasons we needed one. That report has been extremely helpful and I think for the first time, in that report, you must have got on well with the person who was interviewing you. It seems to me to be the first time that you have outlined the pressures and the nature of the relationship that went on. I also have a significant amount of medical material and I will refer to that again in a moment.
25After the matter was first listed in December of last year in Bairnsdale, your husband at that point in time was in custody and remains so. You were released while I had you assessed for a community corrections order. You were struck by a truck within 24 hours of that in a drug-affected state. It seems to me pretty clear that whilst now you have no memory of it, my understanding is the truck driver said you just walked straight in front of him. It is perfectly consistent with a suicide attempt and that was the way that all the parties treated it at the time. I have no doubt myself that it was.
26You then were in a situation of being disabled for a significant period of time, in a wheelchair for months and you were very seriously injured. Subsequent to that, you had admissions to hospital because of drinking and at one stage, there was another admission which was reported to me as being a further suicide attempt or certainly done with suicidal ideation. That is, in a sense, why the matter has been going on now for some lengthy period of time but as I say, that lengthy period of time has given me information which otherwise would not have been available. In a moment, I will turn to what that information is.
27The offending itself, whilst it is unique in a sense has to be regarded as serious otherwise there would not be a gaol component at all. It certainly calls for the application of general deterrence. Specific deterrence in your situation is more problematic. I doubt that you are going to be in a situation where ever this is going to occur or this sort of set of circumstances might occur.
28Denunciation has to play a part. As I have said a number of times during the course of this fairly drawn out process, it is very easy to react to this offending, especially one has seen the videos, in an emotive way. There has to be a clinical examination of it and again, I will referring to that in a moment. Obviously, there has to be an appropriate punishment. Community protection in your particular set of circumstances in my view is of little significance.
29That then takes me to the psychological, psychiatric material that has been tendered on your behalf. Back at the plea hearing in Bairnsdale, a report from Dr Sidoroff, a psychiatrist, was tendered. He saw you on 5 September 2018 and he made a number of observations about you.
30At that point in time, you were very down and depressed about losing your children to foster care. You said to him that you were 23, that you had ruined your life, that you had lost your kids. You told him that the co-accused was your first ever sexual relationship and you said that he was the only person around who treated you well.
31You did say to him that there had been violence, that he knocked you out a number of times and at some stage, apparently a fishing rod was involved. You told Dr Sidoroff at that point that despite the violence you cared about your partner and that you said you 'always were going to love him'.
32You then went to live with your mother for a period of time and there were difficulties involved in that, which we do not need to go in to, at that point in time. You told him - this is in September - that you had five short psychiatric admissions during the course of the year in Latrobe Hospital in Victoria and Port Macquarie Hospital in New South Wales. You reported that you had been hearing voices and admitted into hospital in that context. He opined that it appeared that all of your submissions had been in the context of substance abuse and that you were experiencing probably drug-induced psychotic phenomena during those periods of time. You were hearing voices and you were having persecutory delusions.
33Up until the start of last year, you told him you had never previously seen a psychiatrist or been admitted to a psychiatric facility. You reported to him that there had been schizophrenia in the family and bipolar effective disorder. Two of your uncles had been diagnosed with psychotic disorders and there was a great deal of alcoholism throughout the whole of the family.
34You told him that you had been born in Brisbane, and explained your siblings relationships and said that your parents were not together and that you never really had a lot to do with your father after the age of about six. He died as a result of excessive alcohol use and there may be a question of you having suffered a certain degree of foetal alcohol syndrome. That has never been fully examined but may well be true.
35You told him that you had been placed in care twice as a child, firstly with a family friend when you were six or seven and then with a cousin where you were eight or nine. Your grandfather committed suicide when you were three years old and you were a witness to that. He apparently doused himself with petrol and set fire to himself. Dreadful experience for a child to witness. I have no doubt the post-traumatic stress that would result from that would never go away.
36You reported to him that two of your mother's boyfriends had sexually abused you when you were aged seven to nine years of age and again, when you were around about 13. It was at the age of 13 that you left home. It was the age of 13 that you came into contact with Mr Freedman,[2] your partner.
[2] A pseudonym.
37As is so often the situation with people who have had such chaotic lifestyles, you went to nine different schools, mostly around Brisbane. You eventually dropped out of school in Year 9. You at times just wanted Community Services to come and take you. You went through the nature of the relationship with Mr Freedman. And again, I do not think I need to do that.
38In that report, he said, 'Ms Finn has a long term history of substance abuse including cannabis and more recently methamphetamine (ice). She has also had multiple insults to her brain including exposure to alcohol in utero and multiple head traumas as well as history of abuse and neglect as a child. All of these factors put her in a high risk group to develop a psychotic illness. Schizophrenia is a chronic severe mental illness characterised by multiple symptoms including delusions, hallucinations, disorder of thought form as well as negative and cognitive symptoms including amotivation, avolition and difficulties with memory and concentration.'
39In those circumstances, I took the view as, very wisely, did your counsel that a further report should be obtained to endeavour to find out what the real circumstances were - or something like real circumstances - what the actual circumstances were with the aspects of schizophrenia. Accordingly, you were released on bail and went through the process and the difficulties that I just outlined previously.
40He filed a further report in April of this year, having seen you on 10 April. At this point in time, you were able to report to him about being hit by the truck. You had been an inpatient at The Alfred Hospital for a period of time after that. You self-discharged because you did not want to stay in hospital and you had been seen by a mental health clinician for whom - you told, Mr Sidoroff - you would 'put on a brave face'. You were in a wheelchair for months and again, we have been through that.
41You reported that you feel stuck, that you were depressed and that you were still having nightmares including that of the accident. You were not travelling well at that point in time. He goes through the admissions in February 2019 when you were admitted into the Port Macquarie Hospital for mental health issues. You told him that - this is in April of this year - that there were - recently had thoughts of self-harm and did not really want to kill yourself because you wanted to stay alive for the children. You, at that point in time, admitted to him that you thought that the truck incident in December was indeed a suicide attempt.
42Insofar as the ultimate assessment was concerned for the schizophrenia, the opinion of Mr Sidoroff was that you attracted the diagnosis of substance use disorder of alcohol, cannabis, methamphetamine, drug-induced psychosis and personality vulnerabilities. He said that you appeared to experience other psychotic symptoms during drug use specifically ice and at times, you have general low grade anxiety, paranoia and pseudo hallucinations. That would be in his view more consistent with personality vulnerability and the history of complex trauma rather than a primary psychotic illness.
43He pointed out that if you continued to use methylamphetamine that it is impossible almost to diagnose, that it would take a period of time to do that, with you being totally substance free. He said, 'A clear diagnosis of schizophrenia cannot be made. Ms Finn continues to present with symptoms of a drug-induced psychosis and personality vulnerabilities as well as a substance use disorder.' And it is at that point that he says further time would be needed.
44With all that material to hand and a very different set of circumstances in which you found yourself, the matter was then adjourned to obtain a Forensicare report. That report was prepared in the earlier part of this month. As I think I have just indicated a little while ago, it has been of great assistance in respect to a lot of matters relating to you.
45You have spoken to, on 3 July 2019 for over two hours - again, as with the psychiatric reports, I will direct that they remain on file. I am just taking bits and pieces out of each. I have taken into account obviously all the material that is contained within them. But I think this report sets out your history and sets out the dreadful problems that you had to cope with in life.
46The report says that you are unable to provide a rationale and motivation for the offending. It says as such you appear to have demonstrated limited insight into what may have led to the offending apart from the fact that both of you has been consuming large amount of amphetamine.
47I accept that leading up to and throughout the period of the offending. The report said that you reported that since Mr Freedman's incarceration in 2018 and particularly since your own incarceration, me having revoked bail back in June, you had been able to reflect on your role in the offending. It said that you now considered the fact that he was regularly physically violent towards you and you may have acquiesced to him when he wished to engage in sexual activity on numerous occasions to avoid disagreements and arguments which would otherwise result in you being the victim of physical assaults. As I said, I have got no doubt that he assaulted you regularly. In fact, he has been at various times in prison for having done so.
48I take into account that in this situation you have been transferred into the protection section of Dame Phyllis and therefore it is more difficult for you. You feel uncomfortable in prison, but clearly you are not using. And you do appear certainly, physically, to have had a bit of a health recovery from the last couple of times that I have seen you sitting in the dock. The psychiatrist also spoke to your mother, and again, I do not need to go through the details of that.
49You then expressed an intention to the psychiatrist as to how you were going to try and get access to the children after release. It has got nothing to do with me. It may well in the end turn out to be impossible. One would hope not but again, there is nothing about I can do about that. I sentence on the basis of your position is that the probabilities are that you have lost those children. That is a dreadful punishment for any mother to have to suffer in any event.
50Insofar as he was concerned, you said you were unsure as to whether resume a relationship with him and you did not really want to talk about the reasons for that. You mentioned how he has been diagnosed with cancer. I went through those matter when I sentenced him.
51It then goes into a more detailed description of your childhood. And again, while this is repetitive, I think it is important that it be repeated here because it ties in with the overall view of the people at Forensicare.
52You still have a recollection at the age of three of witnessing your grandfather committing suicide by pouring petrol on himself, sitting in the car and setting himself alight. At the age of six, your father passed away and after that, your mother's alcohol intake increased and she became physically abusive towards you.
53At the age of seven, bruising was seen on you and you were then - and again, I do not have to go through the details of this - removed from the family home and lived with other people. On a couple of occasions, you outlined several incidences of sexual abuse perpetrated on you by two of your mother's intimate partners, sexual abuse at the age of nine which was just touching, and then later on by another partner between the ages of 11 and 13 which you described as 'no sex but everything else'. You elaborated by saying that that in fact involved oral sex and digital penetration but not penile penetration and that the perpetrator had told you that it was 'their secret' to try and get you to stop disclosing it to anybody.
54You kept that abuse secret for a while but eventually threatened to report it after which it stopped. It was around about that time at the age of 13 you left home and began to try and reside by yourself. You then fell in with Mr Freedman and here we are.
55You recall that shortly after your 17th birthday which must have been close to when your first child was born, you were informed that your mother had endeavoured to commit suicide by pouring petrol on herself in the same manner that your grandfather had. You attended the hospital but she was in a coma.
56You have lived with Mr Freedman until his incarceration in respect of these matters. You have sufficient, now, insight to describe the relationship as one of 'co-dependency'. You have had struggled to live alone after this incarceration. It seems to me to have brought home to you the difficulties that were involved in that. You have since that continued with methamphetamine and cannabis up until the hospital admission arising from the motor vehicle accident and it is quite clear that cannabis use has kept going until your bail was revoked.
57You had difficulties at school you have described and you only went to school two or three days a week. You have never worked and you have been dependent on him. After his incarceration, you worked as a roustabout around Ararat for a few months and you found that was enjoyable but lost your accommodation.
58Again, he goes through the relationship. You explained that he was your first and only significant intimate relationship. You said that you had never told Mr Freedman about the sexual abuse that was perpetrated on you as a child. You said that the relationship with him was physical and when you were asked to elaborate, you said that he 'used to hit me quite a bit'. And whilst the physical abuse was rarer in the first few years of the relationship, his behaviour escalated and became more frequent after the birth of the first son at 17 and particularly during arguments.
59The children obviously were removed by DHHS in 2017. You said that after the children were taken he physically abused you constantly. You tried to hit back a few times but it was purely in self-defence.
60The amphetamine use between the two of you started about the week after the birth of the first child when you were 17. You said that he initiated the drug use and whenever he was drug-affected he constantly wanted to have sex for hours at a time. You said that you 'wasn't that into it' - that is drugs with sex, but you admitted that you were a willing participant because otherwise he would get violent if you refused. That was the set of circumstances that was continuing on throughout this offending.
61You then went on to explain how a few years ago you began hearing voices that would threaten to murder you or send you overseas. And again, we have been through that. There were a number of admissions to hospital. As a result of the hallucinations and various medications were used to try and control them but you stopped taking those medications as you felt they were ineffective. Again, you repeated that you would often experience flashes of past memories particularly around the trauma that you had experienced. That is your being told that your father had passed away, being multiple times from the family home and there was prolific trauma of being associated with being the victim of both physical and sexual abuse.
62You stated that when those memories surfaced, you 'feel disgusted, anxious and upset' and you tried to avoid the memories and think about something else. Whilst I am obviously not a psychologist, all these are typical reactions of a sexually abused young girl.
63You explained that you had never attempted alcohol or drug treatment. You said that you tried to engage in treatment for a little while before the children were removed. But being heavily substance affected at that time and moving around a lot, you did not consistently attend or engage. You did not find it useful in terms of psychological therapy and you said you had only ever attended one appointment. You said that you found it to be confronting to be asked about your background history as you were then forced to relive the trauma.
64I understand from the report that they have tried to explain to you that the only way through all this is to face up to that and deal with it through the appropriate people. Your cannabis use only ceased when you were incarcerated. Again, I do not think I have to go through the grave history. It is pretty much self-explanatory.
65Insofar as the actual offending was concerned, the report said this, 'Ms Finn acknowledged her role in the offending behaviour that she found it difficult to explain how or why it occurred. She stated that substances played a part, that she and Mr Freedman were engaged in heavy methamphetamine and cannabis use over the period of the offending and that she didn't consider the effect it' - that is watching you and Mr Freedman having sex - 'would have on the kids.
66'Additionally, Ms Finn also stated that she didn't think consciously about not doing it [that is having sex] in front of the kids, demonstrating an obliviousness to the effect of her and Mr Freedman’s actions on the children. She stated that they would engage in drug use and when they were coming down from the effects of drugs they were being neglecting towards the children and that whilst she is sure they were always fed, they were not being supervised and were often sworn at.' And I have seen examples of him doing that in the videos.
67The report went on to say, 'From Ms Finn’s description of her relationship with Mr Freedman, he appeared to be a more dominant, coercive and directive party in the dyad given that Ms Finn was socially isolated and lacked general assertiveness skills. It's likely that she would acquiesce to him sexually, fuelled by a desire and wish to maintain intimacy with him.
68'She did not report or exhibit signs of deviant arousal or achieving sexual gratification by engaging in sexual behaviour in front of her children, have any goals of revenge or humiliation directed at children or demonstrate attitudes favourable towards engaging in sexual activity in front of the children. She stated that despite almost every sexual interaction being recorded by Mr Freedman, she had never re-watched the recordings' - and I accept that - 'and the thought about sexually abusing the children was disgusting.'
69I think the risk of you reoffending in this way is low and I do not need to go through those details.
70I think the ultimate part of that report needs to be read out in full because in the end it is what, in my view, saves you from the same sort of sentence that Mr Freedman had. It starts at paragraph 49 of that document.
71'Ms Finn’s developmental history is characterised by neglect and lack of safety through consistent experiences of early trauma (through witnessing her grandfather's suicide at the age of three years and the death of her father at the age of six years), instability (through moving homes, school frequently including Child Protective Services' involvement). Being the victim of physical and sexual abuse as well as normalisation of alcohol and substances use as a mean of coping, drug use, trauma, physical sexual abuse have been central themes in the familial and intimate relationships.
72'Ms Finn did not complete Year 9 at school and has generally been unemployed throughout her life. Therefore, had limited opportunities for pro-social achievement, educational attainment or interactions with pro-social peers. She is dependent solely on Mr Freedman for companionship, financial stability and for her emotional needs.
73'Given that she had very little opportunity to observe positive role models with regards to how to effectively express her needs and regulate her emotions, it is likely that her emotional and psychological development were negatively impacted by these early experiences which subsequently resulted in her acquiescing to the request of Mr Freedman and turning to substance use as a maladaptive coping mechanism. It is also likely that Ms Finn experiences social anxiety as a result of lack of exposure to same age peers and having limited opportunities for social interactions throughout her childhood and adolescence.
74'In considering her developmental history, Ms Finn appeared to demonstrate low self-esteem, low level of independence and autonomy and seemed easily impressionable and led by external influences. More recently, Ms Finn reported experiencing auditory hallucinations in the form of threats that made her fearful. Whilst she is certain that the hallucinations were present when she was not substance-affected, the possibility of drug-induced psychosis cannot be discounted at this stage, particularly given that she has only ceased heavy alcohol and cannabis use three weeks prior to the interview. It is also possible that her life history of complex trauma together with the prolific substance use could be contributing to the presence of the hallucinations and that that warranted further exploration.
75'Ms Finn’s offending appears to have occurred in the context of long term significant methamphetamine and cannabis use together with Mr Freedman with whom she cohabited. That cohabitation started at the age of 13 when he was 36.'
76He says that within the context of that intimate relationship, 'she appeared to struggle to demonstrate her assertiveness and often acquiesced to his wishes, particularly under the threat of physical violence. As a result of experiencing the physical and sexual abuse at the hands of trusted caregivers throughout childhood and adolescence, Ms Finn did not have the opportunity to learn about building healthy relationships and sexual development nor about the role of sex in an intimate relationship.
77'And importantly, in my view, her only early experiences relating to inappropriate sexual behaviour may have contributed to her lack of awareness about the implications of exposing children to sexual activity and the consequences of the harm that can result in those experiences.'
78He goes on to say, 'Ms Finn is unable to provide an explanation or motivation for the offending' and repeats what had already been said before. It then says, 'All those factors likely contributed to poor decision making and a lack of appreciation for the consequences of the actions rather than overt intention to engage in the offending behaviour in the presence of the children.'
79That is, in summary for, the life that you have had to lead, Ms Finn. This offending has caused you to lose a partner which ultimately may turn out to be a - it is all a matter for you but it may turn out for the best - I think this is proof. Almost a certainty. And it has cost you your children. You have no relationship. You are now in the situation where you are relying upon others. You are going to be on the sex offenders register which may cause difficulties in terms of accommodation and all those sorts of things.
80The Crown position was that a prison sentence with a non-parole period was the only sentencing option. The defence position was that a CCO entirely was open but that certainly a combination sentence was open. As I have indicated earlier, it is a difficult task to try and work out what the criminality of all this is where there is nothing previous. I have never had to sentence anybody for sexual conduct before that was not directed at a victim. It is almost sexual offending by negligence in a way. It is a situation where when you look at Boulton, decisions like that, a CCO clearly has a significant punitive aspect to it and can be for an extended period of time.
81I am not going to quote from Boulton. It refers to certain sex offences and the like. What I will do is refer to the decision of DPP v Toumngeun. In that matter, and it is a matter that I refer to often in these sort of circumstances. Neave JA as she then was said,
'As this court recognised in DPP v Leach, it is particularly important that this court should not devalue or deny the right of a sentencing judge to act mercifully in a case where it seems to the judge to be an instance where an opportunity for reformation of an offender ought be grasped. That, after all, may be a decision which redounds very much to the benefit of the community.
'Further, as Maxwell P said in DPP v Tokava, "A sentencing judge should be astute to investigate whether a non-custodial disposition is to be preferred, even in a case of a serious offence, if in the long term the community's interest will be best served by that course. This court should seek to promote public understanding of the fact that — apart from the interest of the individual whom it is sought to rehabilitate, an important interest in itself — there is a vital community interest in maximising the prospects of rehabilitation of an individual who has been convicted of a serious crime."'
82You have never had much of a chance in anything in your life. I think that, perhaps as described there in that decision, is a set of circumstances whereby whilst you still have to be punished and punished significant for what you did do here, it should not be a sentence which is in any way, shape or form crushing and should give you hope. It is a set of circumstances where - and this might be personal because of the nature of my practice as a barrister and because of the nature of the work I have done as judge - but your set of circumstances are so common with girls who have been sexually abused as children. And that is the sort of background that entitles, I think, an element of mercy. I do not think it is necessary in this case but if it was necessary, I would certainly be exercising it.
83The prospects of your rehabilitation are up to you. There has never been a really serious attempt to yet and if you can be assisted in that respect by Corrections, that is all well and good.
84I had you assessed for a community corrections order and you were found to be acceptable for it. The risk of you reoffending in this way, as I have said, I think is very low indeed. The risk of general reoffending, I think, is much more likely to occur if it does occur and the real risk I think is one of self-harm. You have got no prior convictions for hurting other people other than one incident that has occurred since and I cannot say much more about it than that I suppose.
85However, as I have said, I have given it real anxious - really anxious consideration. I think that the nature of the offending is such that other people have to be deterred from it. The consequences for your children are going to be - I deeply suspect - lifelong and whilst every endeavour has been made to assist and help them, it is a situation where other children should be safe from this form of conduct and accordingly, there has to be a custodial sentence but not anywhere near of the length of that which I imposed upon your co-accused.
86I pointed out when I sentenced him that I would sentence him independently of you, that I have regarded your position subjectively - and I do not want to get into the semantics about what that means - as very different. The material that has been provided has been provided and which has come to light since February of last year totally supports that preliminary view that I had and accordingly I sentence in that respect.
87You have now been in custody for 70 days. Unfortunately for you, I think general deterrence demands that there be a further period added to that. And accordingly, I sentence as follows.
88On Charge 1, sentence to be imprisoned for a period of six months. I reckon the 70 days be reckoned as having been served under this sentence.
89On the completion of that six months on Charges 1 to 8, you are to be placed on a community corrections order with the conditions that you undergo testing and treatment for drug abuse and dependency, mental health assessment and treatment and programs or courses that relate to the offending as directed. You must also of course be under the supervision of a community corrections officer for that period.
90Four years is a long time and it gives you the chance to rehabilitate yourself. It acts as a punishment because a lot of your time will be consumed by it. As I understand it, Corrections are well aware of your set of circumstances. You want to return to New South Wales after you your sentence has completed and they will endeavour to have it transferred across insofar as the sex offenders register is concerned. I understand that is not a difficulty. It is a national thing at the moment, so that will not stand in the way.
91So taking all those matters into account, that is if you agree to go on that community corrections order, as I have said, I have given the matter very anxious consideration, and having had great assistance from your counsel as well as the Crown, that is the sentence that is imposed. And so if you want to sign that. Do you want to go down with her, Mr Wareham? Yes, all right.
92MR WAREHAM: There is only one matter arising out of what Your Honour has said.
93HIS HONOUR: Yes.
94MR WAREHAM: Your Honour, has indicated that you will annexure the summary to Your Honour's reasons. I have spoken with my learned friend, if you can provide us with a pseudonym for that name, we will anonymise it. An electronic version that can be annexed to the reasons.
95HIS HONOUR: Yes, you can.
96MR WAREHAM: If you can - if Your Honour's associate advises with the appropriate pseudonyms for Ms Finn and then for the children's names, we can just refer to them by their ‑ ‑ ‑
97HIS HONOUR: Well I deliberately - yes, because of the summary. I deliberately did not use the children's names as I spoke but ‑ ‑ ‑
98MR WAREHAM: No, but they will be in the summary so we will ‑ ‑ ‑
99HIS HONOUR: No, all right. We can do that.
100MR WAREHAM: What we can do is we can just refer to them as - by the initial of their first name.
101HIS HONOUR: Yes, all right. I always find that a bit clinical ‑ ‑ ‑
102MR WAREHAM: That might be just easier.
103HIS HONOUR: ‑ ‑ ‑ but yes, I know there is no other way around it. Apparently, you did not actually tender the reports of Sidoroff so they will be ‑ ‑ ‑
104MR WAREHAM: Sorry, Your Honour.
EXHIBIT P2 - Reports of Dr Sidorov.
105HIS HONOUR: I do not think I need to tender the Forensicare report but just for completeness I will tender that as well.
106MR WAREHAM: Yes, Your Honour. We have no objection to that.
EXHIBIT P3 - Forensicare report.
107Does Your Honour need a copy of those reports filed?
108HIS HONOUR: No, no, we have got all that. Also, one of the reasons I do that is that the sentencing remarks - if you start to go into the detail, people can work out who you are talking about.
109MR WAREHAM: Yes.
110HIS HONOUR: So it is easier to do it that way with the annexure. Yes, that is the cleanest way of doing it.
111MR WAREHAM: I think that was the only matter that I wanted to raise.
112HIS HONOUR: There is nothing ‑ ‑ ‑
113MR WAREHAM: We will arrange for that to be forwarded to Your Honour's associate so that they can be annexured.
114HIS HONOUR: Yes, all right. Yes, all right, thanks for that. Thanks for that. Yes, you can go now. Be taken downstairs. You can see her over at the cells. I have got another matter over here.
115MR WAREHAM: Yes. Thank you, Your Honour. Might I be excused?
116HIS HONOUR: Yes, thank you, Mr Wareham. Sorry, Mr Wareham. 6AAA. I had not even thought of that. I do not know. Two and a half with a one and a half. How does that sound?
117MR WAREHAM: Wonderful.
118HIS HONOUR: I point out for the transcript that is totally unthought out. If it had been run as a trial, it would have been a whole different ballgame I think.
119MR WAREHAM: Yes.
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