Director of Public Prosecutions v Mitchell
[2023] ACTSC 117
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | DPP v Mitchell |
| Citation: | [2023] ACTSC 117 |
| Hearing Date: | 19 May 2023 |
| Decision Date: | 22 May 2023 |
| Before: | Mossop J |
| Decision: | See [91] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – persistent sexual abuse of children and acts of indecency – early guilty plea – six victims – where offender abused position of authority as rock climbing coach to groom victims – offending in mid-range to upper-end of mid-range of objective seriousness – sentences of |
| imprisonment imposed | |
| Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), ss 7(1)(g), 53(1)(b) Crimes Act 1900 (ACT), ss 56, 61(2), 66B, 92K(2) Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 74 |
| Cases Cited: | DPP v Mitchell (No 2) [2023] ACTSC 118 R v Jones [2019] ACTSC 124 R v KC [2020] ACTSC 94 R v Kellan (a pseudonym) [2021] ACTSC 314 R v King [2013] ACTCA 29 R v KN (No 2) [2019] ACTSC 5 R v Michalopoulos [2020] ACTSC 27 R v Porter (No 3) [2022] ACTSC 236 R v Sirl (No 4) [2020] ACTSC 23 R v Whittaker [2021] ACTSC 189 The Queen v Ashton (a pseudonym) [2022] ACTCA 45 The Queen v Ware (a pseudonym) [2022] ACTCA 14; 17 ACTLR 273 |
| Parties: | Director of Public Prosecutions Stephen Leonard Mitchell (Offender) |
| Representation: | Counsel |
| M Howe (DPP) | |
| T O’Rourke (Offender) | |
| Solicitors | |
| Director of Public Prosecutions | |
| Aulich Criminal Law (Offender) | |
| File Number: | SCC 319 of 2022 |
| MOSSOP J: | |
| Introduction |
1. On 29 November 2022 the offender, Stephen Leonard Mitchell, pleaded guilty to various
child-sex offences committed against six victims between 1994 and 2008. The plea was
entered in the Magistrates Court on the fourth occasion the matter was before the court
but after a brief of evidence had been prepared.
2. Publication of the names of the victims of the offending is prohibited by s 74 of the
Evidence (Miscellaneous Provisions) Act 1991 (ACT) in circumstances in which it is not
clear that they have consented to that publication in these reasons. As a consequence,
the name of the child victims of the offending have been replaced with letters.
3. The charges are summarised in the following table which includes the maximum penalty
and the statutory cap in the sentence where that exists.
Maximum Cap on
Charge Victim Period
penalty sentence
Persistent sexual abuse of A 1 January 1994 to 25 years 14 years a child, contrary to s 56 of 31 December 1998 the Crimes Act 1900 (ACT) (CC2022/6781) Persistent sexual abuse of B 1 January 1997 to 25 years 14 years a child, contrary to s 56 of 1 January 2000 the Crimes Act 1900 (ACT) (CC2022/6782) Act of indecency upon a C 1 Jary 2000 to 1 10 years person under 16, contrary January 2002 to s 92K(2) of the Crimes Act 1900 (ACT) (CC2022/1778) Persistent sexual abuse of D 1 January 2001 to 25 years 14 years a child, contrary to s 56 of 1 June 2005 the Crimes Act 1900 (ACT) (CC2022/11743) Act of indecency upon a E 25 July 2002 to 10 years person under 16 on more 16 January 2004 than one occasion, contrary to s 61(2) by virtue of s 66B of the Crimes Act 1900 (ACT) (CC2022/11741) Acts of indecency upon a F 1 January 2004 to 10 years person under 16 on more 30 June 2008 than one occasion, contrary to 61(2) by virtue of s 66B of the Crimes Act 1900 (ACT) (CC 2022/11742) 4. The heading to s 56 of the Crimes Act 1900 (ACT) (Crimes Act) is now “Persistent sexual
abuse of a child or young person under special care”. However, in the balance of these
reasons the offending will often be referred to as maintaining a sexual relationship, as
that corresponds to the language of the offence provision itself.
5. In relation to the charges of maintaining a sexual relationship contrary to s 56 of the
Crimes Act 1900 (ACT) there is a maximum penalty against which sentences are to be
assessed and a cap on the sentence that can be imposed. I explained the operation of
these provisions in R v Kellan (a pseudonym) [2021] ACTSC 314 at [22]. As it turns out,
the statutory cap not reached in relation to any of the sentences.
6. The temporal relationship between the offending conduct, the ages of the victims and
the age of the offender is illustrated in the following table. The age of the offender is his
age at the start of the relevant year. As the table is based upon units of one year, it
inevitably involves approximations of the dates of the offending and the ages of the
victims.
Offender
Year A B C D E F Age
1994 27 11 1995 28 12 1996 29 13 1997 30
14 12 1998 31
15 13 1999 32 14 2000 33 11 2001 34
12 11
2002 35 12 12 2003 36 13 13 2004 37 14 10 2005 38 15 11 2006 39 12 2007 40 13 2008 41 14
Facts
7. The facts are agreed and are set out in a 29-page document which formed part of the
prosecution tender bundle. Having regard to the length and detail of the agreed facts it is
not appropriate to recite them in these reasons. I find the facts in accordance with those
which are agreed. It is appropriate however to include a summary of the key features of
the facts so as to understand the sentences that I will impose.
8. Where the relevant charge is maintaining a sexual relationship with a child, “relationship”
is broadly defined. The offence requires that the relationship “involves more than 1 sexual
act”.
Offending against A (maintaining sexual relationship with a child)
9. In relation to the offending against A, the offender met A when she was 11 years old. The
offender was a friend of her mother. A participated in a youth bicycle ride, during which the
offender assisted her. A was allowed by her parents to sleepover at the offender’s
residence in one of the colder months of 1994. He lived in a shed at the back of his mother’s
house. After getting ready for bed, he offered her a massage, applied massage oil and
rubbed her legs. He touched her vulva multiple times. He then slept next to her on the
single mattress in a spooning position.
10. Subsequently, A slept over at the offender’s residence several times every week. He would
regularly massage her, touching her vulva, her buttocks and the side of her partially
developed breasts. They slept together on a single mattress and occasionally the offender
would press his erect penis against her.
11. There were occasions when the offender told A to hide when she was staying at the shed,
when other people were visiting. There came a point where she was sleeping every night
of the week at his residence. Her parents and the offender’s family became less accepting
of the arrangement and she would sneak to the shed using a side gate.
12. In 1995 the offender moved to a townhouse. He would pick her up and drop her off at
school every day. She spent the night at the residence once or twice a week, sleeping in
the same bed as the offender. The offender would masturbate while lying near her in bed,
occasionally pressing his erect penis against her. He would frequently massage her when
she was staying at his residence. A suspected that he would watch her when she was
showering at the residence. He presented her with a wedding ring and spoke about plans
for the future with her.
13. In 1995 he was employed at the Erindale Youth Centre by the Young Women’s Christian
Association. A participated in activities at the youth centre under the offender’s care. The
offender was warned about his inappropriate contact with A and ultimately terminated from
his employment in November 1997 because of that. It is notable that notwithstanding this
adverse consequence for him, the offender persisted in his relationship with A and
subsequently abused the other victims.
14. There was an occasion in 1997 or 1998 where the offender took A to visit the thermal pool
at Yarrangobilly in New South Wales with a number of other young girls. A did not have
any swimwear but wore an oversized shirt in the pool. While in the pool, the offender
bounced A and her exposed vagina against his penis which was erect under his shorts.
When they exited the pool, he carried her on his back up to the car park, pulling the cheeks
of her bottom apart.
15. In 1998, sometime after A’s 15th birthday, she and the offender stopped seeing each other.
Offending against B (maintaining sexual relationship with the child)
16. In 1997 when B was 12 years old she came into contact with the offender at the Belconnen
Youth Centre, which she attended after school. He spoke sympathetically to her about her
giving up gymnastics at the Australian Institute of Sport (AIS) and mentioned that he was
coaching other ex-AIS gymnasts. He invited her to a talent identification session at
Canberra Indoor Rock Climbing in Kingston. That turned out to be a one-on-one event.
They spoke for hours after the session. He took her home and had a conversation with her
parents which resulted in him becoming her rock climbing coach.
17. He would pick her up after school several times a week and take her rock climbing. He
provided her with money to call him on a payphone at school, something that he did not do
for other child rock climbers that he was coaching.
18. In late 1997 or early 1998 the offender arranged for B to attend two climbing competitions.
B’s parents agreed for the offender to arrange transport to and from these competitions.
During these competitions the offender touched B more than usual, hugging her and
massaging her after each climb. He hugged her from behind, pressing his crotch into her
buttocks and back. B felt that the offender’s penis was erect. During one of the
competitions, he pulled her onto his lap and she could feel that his penis was erect.
19. After these competitions he told her that he had secured a clothing sponsorship and chose
tight fitting clothing for her to put on. While she was trying on each outfit, he touched her
all over her body. He also hugged her and she could feel that his penis was erect.
20. On the same occasion they stayed over at a house attached to a climbing gym in
New South Wales. They slept in separate rooms. During the night B awoke to find the
offender standing at the side of the bed. He pulled down his tracksuit pants and
masturbated. This went on for about 20 seconds and then, when the offender saw that B
was awake and was looking at him, he pulled his pants up and left the room.
21. Throughout 1998 and 1999 the offender took B to the AIS swimming pools for training
sessions. He would comment on her nipples when they were erect due to cold. He would
wrap her with a towel and press himself against her body with an erect penis.
22. In 1998 and 1999 he arranged to take B out of school from recess to lunch for rock climbing
training. She also did after school sessions either one-on-one or with a group of climbers.
The offender would place his hands on her buttocks while she was on the wall. While
training at the Australian National University climbing gym and doing chin-ups, the offender
would place his hands on her buttocks and breasts. He hugged her between climbs and chin-ups. She could feel his erect penis through his clothes during these hugs. He also
took her to an outdoor bouldering area at the University of Canberra. Once again, he
touched her on the buttocks and hugged her during which she felt that his penis was erect.
23. During a six-month period between 1998 and 1999 the offender took her to the Police
Community Youth Club (PCYC) for weights training during school hours. One of the
exercises involved an exercise known as “lat pull-downs”. The offender would sit behind
her on the bench with his legs around her back while she performed this exercise. She felt
the offender’s penis was erect as he sat behind her.
24. They also went climbing in a sunken courtyard at the National Library. During these
sessions the offender touched her on the buttocks and hugged her. She would feel that his
penis was erect.
25. During training sessions in the ACT, he pulled her onto his lap or hugged her and she could
feel his erect penis against her body.
26. In 1998 and 1999 there were numerous occasions when the offender took her to climbing
competitions in New South Wales and, while she was sleeping or appearing to sleep, he
would masturbate in her presence. There were four occasions that she could remember
and at least 12 other occasions when this occurred. The four occasions that she could
remember were as follows. Sleeping in the offender’s four-wheel-drive vehicle in the car
park in Penrith, she awoke to find the offender lying next to her facing her body and
masturbating. On another occasion she awoke to find her pants pulled down, her buttocks
exposed and ejaculate on her lower back. On an occasion in 1999 she and the offender
were sleeping in the offender’s four-wheel-drive vehicle. They were sleeping in separate
parts of the vehicle, but B woke when the offender was standing in a crouched position
over her masturbating. The fourth occasion was when returning to the ACT from a training
session in New South Wales, the offender, who was driving, said that he needed a power
nap and parked the vehicle at a car park near Lake George. The offender began to
masturbate. B pretended to be asleep.
27. The offender was closely involved in her life and B was otherwise socially isolated. He
would pick her up from school, talk on the phone daily and undertake almost daily training
in rock climbing. He encouraged her to have deep and meaningful conversations with him.
B felt that the offender was the closest person she had in her life and depended upon him
for emotional support. She feared that the relationship would end if she told anyone about
the sexual acts that were occurring.
28. In 1999 the offender arranged to travel with B to a climbing competition in the United States.
They stayed at another climber’s residence in separate rooms. The night before the competition the offender said he wanted to talk about the next day’s competition and took
her to the living room. The offender sat on the couch and she laid on the couch with her
feet on his lap. She could feel that his penis had become erect. She knew from past
occasions that he was about to masturbate and pretended to fall asleep. The offender took
his erect penis and masturbated himself by grasping her feet and moving them up and
down on his penis. He ejaculated. He then escorted her back to bed.
29. On the return flight to Australia there was a further incident during which he came and laid
down under a blanket with B, put his hand on her upper thigh and began to masturbate
himself under the blanket.
30. Shortly after arriving back in Australia there was another occasion when B awoke to find
that she was lying on her stomach with her pants pulled down and buttocks exposed. He
was positioned above her. He periodically touched her vagina and masturbated until he
ejaculated onto her buttocks and lower back.
31. In late 1999 or 2000 B travelled to Disneyland with her family. She was stressed, thinking
about the incidents with the offender. She could not leave the hotel room for days. She
made a decision to return to Australia by herself and let her family continue the vacation
without her. On returning to Australia, she went to live with some friends from the climbing
community in New South Wales in order to get away from the offender’s abuse.
Offending against C (act of indecency upon a person under 16, course of conduct)
32. In 1998, when C was nine years old, she trained in gymnastics at the Southern Gymnastics
Club and PCYC in Canberra. In that year the offender approached her sister and convinced
her to start rock climbing. Soon, C started rock climbing and began to be coached by the
offender. Soon after he became her coach he started attending her house and taking her
for drives in his car. He would pick her up for training. He gave her various gifts. These
included tight-fitting crop tops to climb in even though the clothing convention at the time
was to wear baggy, loose-fitting clothes.
33. One day in 2000 or 2001 the offender invited C and her sister to stay the night at his
residence. He set up C to sleep on the floor next to his bed. About 10 minutes after the
offender and C had gone to bed, the offender got up, unzipped C’s sleeping bag halfway
down, straddled her by placing his knees on either side of her legs, pulled down her boxer
shorts to expose her buttocks and masturbated to the point of ejaculation on her legs,
buttocks and sleeping bag. C pretended to be asleep. In the following weeks, the offender
suddenly stopped coaching C and her parents took her to the climbing gym to continue her
training independently of the offender.
34. In July 2002 the offender commenced in a position as an unsworn member of the Australian
Federal Police as a Youth Activities Coordinator at the PCYC. In 2003 C reported the
offender’s conduct to police. A brief of evidence was subsequently submitted to the Director
of Public Prosecutions but no charges were ultimately laid. The offender resigned from the
Australian Federal Police in September 2005.
Offending against D (maintaining sexual relationship with a child)
35. In 1999 D was nine years old. She had previously been a gymnast at the AIS but had left
the sport that year. She attended a talent identification day for rock climbing at a Kingston
climbing gym where she met the offender. She agreed to be coached by the offender. The
offender arranged with D’s mother to collect D and he collected her twice a week. He would
often buy her treats using his own money. Between 1999 and 2001 the offender coached
D and transported her to various climbing competitions. She attended several sleepovers
with other junior climbers at his house.
36. The offender bought her a mobile phone and between 1999 and 2004 paid for a phone
plan to allow her to contact him regularly. He did not ask for reimbursement from D’s
mother.
37. In 2001 the offender transported D to a New South Wales climbing gym for a competition
where they stayed overnight. While D was asleep the offender approached her, pulled the
blanket off her and masturbated for several minutes before going back to bed. D pretended
to be asleep.
38. Between 2001 and 2004 the offender travelled with D to various locations in New South
Wales for climbing competitions. D was woken on multiple occasions when the offender
masturbated over her. On these occasions the offender pulled up D’s top, exposing her
undeveloped breasts while he did so. He masturbated over her on at least five separate
occasions.
39. During the time that she was being coached by the offender she regularly stayed at his
residence either by herself or with other members of the rock climbing team. She recalls at
least five times being woken by the offender pulling down her blankets and gently lifting
her shirt. She believed the offender was masturbating.
40. In late 2004 or early 2005 she was at his residence browsing through climbing videos on a
computer. He sat behind her on another chair and began masturbating until he ejaculated
on the back of her chair and on her clothing. After this, she distanced herself from the
offender and began climbing independently.
Offending against E (act of indecency upon a person under 16, course of conduct)
41. In 2001 E was 11 years old. She did youth gymnastics at the PCYC in Canberra. When
the offender was employed there he took over the gymnastics coaching. E was then 12
years old. He asked her to start wearing tight-fitting leotards while training. He did not ask
any other young persons to do so. He trained her from July 2002 until January 2004.
Shortly after she started to wear leotards, the offender followed E into the change room
and watched her as she got changed. He regularly stretched her by placing his hands on
her thighs and pressing down. During that, his hands would touch E’s vagina and buttocks
through the leotard. He would also get her to perform handstands and place his hands on
her breasts while she did so. This occurred for longer than necessary even as she got
better at the handstand.
42. On multiple occasions the offender sought her out and stood behind her while she was
waiting in line to use a piece of equipment. He pressed his erect penis into her back as
they waited in line. Similarly, he called her to sit on his lap. She could feel that his penis
was hard and erect.
43. E also participated in rock climbing sessions following the gymnastics sessions. On
multiple occasions, when she was on the climbing wall, he reached between her legs and
placed one hand on her crotch with his fingers placed on her vagina. This was unnecessary
as she was secured to a rope and there was no need for any spotting or assistance from
the coach. During the rock climbing sessions he would also call her to sit on his lap and
she could feel his penis was hard and erect.
Offending against F (act of indecency upon a person under 16, course of conduct)
44. In 2004 F was 10 years old and living in Wagga Wagga. The offender approached F’s
mother at a climbing competition in Wagga Wagga and suggested that F should travel to
Canberra to train with the offender. F travelled with her mother to Canberra on two or three
weekends to train in rock climbing with the offender.
45. Between 2004 and 2008 F caught a bus by herself from Wagga Wagga to Canberra
departing on Friday or Saturday and returning on Sunday every week. She trained on the
weekend with the offender. She resided at D’s house two weekends a month and with the
offender for the other two weekends in a month.
46. F drove with the offender in his car on multiple occasions each weekend. On every
occasion up until late 2007, while she was in the car with him, the offender would reach
over to F and place his hand on her right inner thigh close to her vagina and squeeze her
inner thigh for about three seconds while giving her a compliment. On several occasions F
looked over and saw that the offender’s penis was erect as he did so. In late 2007 F began
to go through puberty, and he no longer did it on every occasion they were in the car
together.
47. The offender took F and other girls in his rock climbing team to the pools at the AIS. As F
went between the sauna and the pool he dried her with a towel and hugged her. She felt
his penis was erect. Similarly, between 2004 and 2008 at almost all of the training sessions
at climbing gyms, he hugged her and pressed his body against her. The majority of the
time she could feel his penis was erect. About every second training session he would get
her to stretch one of her legs by bending it outstretched towards her head while he would
lie on top of her. She could feel that his penis was erect. This lasted for two or three minutes
on each occasion.
48. Touching of her inner thigh while his penis was erect while driving and hugging her with an
erect penis also occurred at various climbing competitions in New South Wales.
49. In early 2008 F became very ill and did not return to the ACT for coaching with the offender
when she got better.
Victim impact statements
50. Eight victim impact statements were read at the sentencing hearing.
51. There were some portions of the statements which the prosecution did not seek to have
admitted. There were also some portions which were objected to. The course adopted in
relation to objections to admissibility of parts of the victim impact statements was that there
was no objection to them being read but that the objections could be determined
subsequently. My rulings on the passages that required a ruling is published separately:
DPP v Mitchell (No 2) [2023] ACTSC 118. In that ruling I admitted each of the passages
that were objected to. I record, however, that given the nature of the passages that were
objected to and the content of the balance of those statements, the admission or exclusion
of the passages which are the subject of those rulings would make no difference to the
sentences that I impose.
52. Victim impact statements of the following people were read at the sentencing hearing: A, B,
C, C’s husband and her mother; D and her mother; and E. The fact that no victim impact
statement was given by F does not allow any inference about the harm suffered by F: s
53(1)(b) of the Crimes (Sentencing) Act 2005 (ACT) (CS Act).
53. As is not uncommon in cases like this, the victim impact statements made for difficult
listening. However, importantly, they demonstrated the depth and breadth of the long-term
consequences that flow from abuse of this nature. It is unnecessary to describe the
contents of each. The statements indicated that, as might be expected, the psychological impact of the abuse has had long lasting and fundamental effects upon the victims. These
long term and continuing psychological impacts included: anxiety, lack of trust in people,
perceived lack of self-worth, intrusive recall of the events and in some cases, attempts at
suicide. They also included insecurity about their ability to protect their own children,
leading to overprotective behaviours or a decision not to have children.
54. The statements made it clear that in addition to the consequences for the immediate
victims, the adverse consequences extended to their partners and children of the victims.
The victims were left with a pervasive sense of wondering how their lives would have been
different had the abuse not occurred and an inability to celebrate their achievements during
the period or reflect positively on their childhood because of its association with the
offender’s abuse.
55. The victim impact statements from the two mothers who provided them disclosed their guilt
at having allowed themselves to be cultivated by the offender and not detected the abuse
at the time.
56. The victim impact statements serve to emphasise the extent of the consequences of
offending such as that in the present case. First, the deep psychological impacts that abuse
of young children has. Second, the temporal extent of the impacts which persist decades
after the offending and often have lifelong consequences for the immediate victims. Third,
the broader range of people beyond the immediate victims whose lives are significantly
affected by the offending, in particular, parents, siblings, partners and children of the
immediate victims. Notwithstanding that imprisonment is a blunt instrument, it is necessary
that a sentence of imprisonment gives appropriate recognition of the extent of the harm
done by the offending, both in relation to who is affected and how long those effects last.
Section 7(1)(g) of the CS Act reflects this in that it identifies as a sentencing purpose to
“recognise the harm done to the victim of the crime and the community”.
Objective seriousness
57. The physical acts involved in the offending did not involve what is often understood to be
the more serious sexual interactions. There was no conduct which involved sexual
intercourse of any sort (within the broad definition of that expression in the Crimes Act. The
offender restrained himself, persuading himself that what he was doing was less damaging.
58. While the nature of the sexual acts are significant, in assessing the objective seriousness
of offences against s 56, care must be taken not to place too much emphasis upon the
various gradations of those sexual acts. The offence provision penalises the relationship
(in the statutorily defined sense) of which the sexual acts form a part. The nature and
duration of that abusive relationship (apart from the gravity of individual sexual acts that it involved) is very significant in assessing the gravity of the offending. In the present case,
each of the offences against s 56 involved lengthy relationships during which the sexual
acts occurred, the exploitation of the victims’ youth, the cultivation of the victims and their
families so as to allow a relationship in which abuse could occur and the abuse of the
resulting position of authority and trust that the offender had in relation to victims. All
offences involved a gross disparity of age and power.
59. It is within this uncontroversial context which the assessment of the objective seriousness
of the offending must occur.
Offending against A
60. In relation to A the relationship was for a period of three years. The victim was only 11 at
its commencement. The offender obtained access to her by being friends with her parents.
The offending involved the abuse of a position of trust which he had been placed in by her
parents as a result of this friendship. The sexual acts occurred frequently. The victim was
encouraged to behave in a manner so as to avoid detection of the relationship. The
prosecution submitted that the offending was in the upper end of the mid-range of objective
seriousness and the offender submitted that it was at the lower end of the mid-range. Given
the variety of considerations in the range of conduct covered by this offence I would
categorise it, in light of the above factors as being a mid-range offence. Any greater degree
of specificity would involve illusory precision.
Offending against B
61. The offending against B involved a sexual relationship of approximately three years. Once
again, the offending occurred after the offender had procured a relationship of trust as a
result of discussions with her parents. There was grooming conduct prior to the
commencement of the sexual activity. The sexual activity involved inappropriate touching,
including pressing his erect penis against her and masturbation in her presence including
to ejaculation. It also involved masturbation to ejaculation using her feet. It is distinct from
the offending against A in that it involved the role of rock climbing coach. However, it also
involved a long and close relationship. It is also in the mid-range of objective seriousness.
Offending against C
62. The offending in relation to C occurred in the context of a relationship of coach and student.
It involved a breach of trust. The acts involved were serious ones involving close
masturbation to the point of ejaculation on the skin of the victim. The nature of the acts and
the context in which they occur mean that this is at the upper end of the mid-range of
objective seriousness for an act of indecency.
Offending against D
63. The relationship occurred over four years. It obviously involved a breach of trust. The
offending was preceded by grooming. It involved masturbation in her presence and lifting
of her clothes so as to view her. On one occasion it involved masturbation until ejaculation
in her immediate presence when she was clearly awake. Having regard to the length of the
relationship, the sexual acts were not as frequent as they might have been. This offending
is, once again, in the mid-range of objective seriousness for this offence. The facts disclose
somewhat less emotional closeness between offender and victim than in relation to A and
B.
Offending against E
64. Rather than a single incident, the act of indecency in relation to E involved a course of
conduct as referred to in s 66B of the Crimes Act. It involved inappropriate touching during
the course of gym training, pressing his erect penis into her back and inappropriate
touching during the course of rock climbing training. The conduct took place over an 18-
month period. It obviously involved a breach of trust arising from the coach-student
relationship. The individual acts are less serious than the act of indecency in relation to C,
but, given the course of conduct it is still in the mid-range of objective seriousness.
Offending against F
65. This involves a course of conduct over a period of four years. The victim was particularly
vulnerable, being a young child away from home staying at the offender’s residence or
otherwise in his custody. The acts involved inappropriate touching while in the car, hugging
and pressing his penis against her and pressing his erect penis against her when she was
stretching. The duration of the conduct and the breach of trust involved means that it is in
the mid-range of objective seriousness for this offence.
Subjective circumstances
66. The subjective circumstances of the offender are outlined in a report of Patrick Sheehan,
a forensic psychologist, dated 13 March 2023 and two reference letters.
67. The offender is 56 years old. He was born in the USA to New Zealand parents. He is one
of three children. His parents separated when he was 10. He was raised by his mother
after that. There was some financial hardship but not poverty. He went to boarding school
in Goulburn. He completed a Bachelor of Applied Sciences in Natural Resources.
68. In his earlier employment he lacked ambition or direction. He worked with youth in paid
and voluntary roles and as a sport and recreation worker and coach. It was during this
period that he offended. After 2005 he entered the public service as a business analyst
and worked in that role for seven years. He worked briefly in the Attorney-General’s
Department and then in the Department of Home Affairs until his arrest in February 2022.
He was a member of the Army Reserves between 2012 and 2021.
69. He has never married and has no children. He has a limited history of long-term intimate
partner relationships and has never cohabited with a partner. He has no significant history
of substance use or medical or psychiatric problems. His sexual interest in young girls was
sufficient to warrant a diagnosis by Mr Sheehan of Paedophilic Disorder (interest in
females). Mr Sheehan considered that the offender’s sexual interest was sufficiently
restricted to have impaired his capacity for satisfying adult sexual relationships.
70. During the course of the offending, the offender focused upon his benign motivations
underpinning his involvement with coaching children and overlooked the deviant sexual
motivations underpinning his behaviour. He convinced himself that by limiting himself to
masturbating on the complainants while they slept his actions were not as bad. His
offending ceased when he shifted his life away from child-related employment and
coaching roles.
71. He demonstrated insight into his own offending conduct telling, Mr Sheehan:
I took advantage of trust that I had developed, it was an abuse of trust. When I look at all of
it together, it was obviously a grooming process. It’s confronting to see it that way. It would
have been traumatic for them. They might have had trouble trusting adults after that. It’s
ongoing trauma, they might be worried about risks to their own kids.
72. Mr Sheehan formed the view that the offender was genuine in his expressions of remorse,
and I accept that to be the case even though it is likely to be combined with regret as to
the consequences for him of his past conduct.
73. The offender scores in the average range on the Static-99R test. He is assessed by
Mr Sheehan as having a risk of reoffending in the mid or average range relative to other
men who have committed sex offences.
74. Mr Sheehan did not assess the offender as being a particularly vulnerable inmate in
custody because he has the requisite interpersonal skills to learn to navigate a correctional
environment.
75. The two references, one from his sister and one from a long-term adult friend, both attested
to his good character outside the context of his offending. They included that the offender
had expressed remorse for his offending to each of the authors.
Criminal history
76. The offender has no relevant criminal history.
Plea of guilty
77. As indicated earlier, the offender pleaded guilty at the fourth appearance before the
Magistrates Court. Having regard to the offences that he was facing, that is an early guilty
plea. It had very clear utilitarian value in avoiding the need for the victims of the offending
to give evidence. Although there was, until recently, an outstanding factual issue that might
have required one of the victims to have given evidence, that issue was resolved by
agreement without the need for the victim to give evidence and in a way which was
favourable to the offender. The pleas of guilty warrant a discount of 25 percent on the
sentences that would otherwise have been imposed.
Time in custody
78. The offender had spent three days in custody referable to the present offending prior to the
sentencing hearing. Bail was revoked at the conclusion of the sentencing hearing and he
has spent three more days in custody as a result. The first sentence imposed will be
backdated so as to take account of the time spent in custody.
Comparable cases
79. The written submissions provided on behalf of the offender included a table of cases
involving sentences for breaches of s 56 of the Crimes Act. That disclosed a range of
starting points prior to any reduction on account of pleas of guilty of between 20 years and
four years and six months. Although some of these cases involved multiple victims in
relation to which there were different starting points, the cases in approximate ascending
order of starting point for the sentence were: R v Jones [2019] ACTSC 124; R v KN (No 2)
[2019] ACTSC 5; R v Michalopoulos [2020] ACTSC 27; R v Sirl (No 4) [2020] ACTSC 23;
The Queen v Ware (a pseudonym) [2022] ACTCA 14; 17 ACTLR 273; R v Whittaker [2021]
ACTSC 189; R v KC [2020] ACTSC 94; R v Kellan (a pseudonym) [2021] ACTSC 314; The
Queen v King [2013] ACTCA 29; R v Porter (No 3) [2022] ACTSC 236 and R v Ashton (a
pseudonym) [2022] ACTCA 45. Many of those sentences involved individual acts which
were more serious than those which occurred in the present case. However, many also
involved relationships between offender and victim which were of lesser duration and
victims who were not as young as those in the present case at the commencement of the
abuse.
Consideration
80. It is obviously significant for the sentencing exercise that the legislature has set a very high
maximum penalty of 25 years’ imprisonment for an offence against s 56. It has also directed
that the offender must be sentenced in accordance with sentencing practice and patterns at the time of sentencing rather than as at the date when the offences were committed: s
34A of the CS Act.
81. The present offending involves individual sexual acts which were less grave than seen in
other cases. However, the other aggravating features of the offending including the length
of the abusive relationship, the age of the victims and the relationship of trust and authority
that the offender held in relation to the victims must clearly be taken into account.
82. The limitations upon the sexual acts engaged in by the offender were explained by him as
being one of the ways in which he justified the conduct to himself as being less serious. It
may also have been influenced by his perception that if he engaged in acts within the scope
of the broad definition of sexual intercourse, that conduct was more likely to be exposed to
parents or police.
83. It is significant that the offending was against a number of unrelated victims over very many
years. In so far as the offender was of good character otherwise, that is not a matter which
leads to a reduction in his sentence because it was that good character which permitted
him to obtain positions of trust through his employment or contact with the parents of the
victims which enabled the offending to occur.
84. It is, however, relevant to take into account the fact that the offender ceased offending in
2008 when he moved into jobs that did not involve direct contact with children. The
cessation of his offending reflects positively on his capacity to avoid offending conduct
upon release from prison.
85. So far as the purposes of sentencing are concerned, although the offender has been
diagnosed as a paedophile, the lack of offending since 2008 reduces the significance of
specific deterrence and protection of the community as a sentencing factor. Rehabilitation,
to the extent that it is possible, must remain a consideration. However, general deterrence,
making the offender accountable, denouncing his conduct and recognition of the harm
done to the victims and to the community are more important sentencing considerations in
this case.
86. In that context, the effect upon the victims of the offending must be recognised. Although
the offender, post-2008, moved on with his life, the victims have been left with
decades-long impacts. Those impacts, in turn, affect their partners, parents and children.
It is that long-term and widespread impact which has been recognised by the legislature
and requires appropriate recognition in the sentences imposed.
87. A degree of concurrency must be introduced so as to achieve an appropriate aggregate
sentence. However, the degree of concurrency which is appropriate is limited by the fact that each charge relates to a separate victim who was unrelated other than through their
contact with the offender.
88. The starting point for the sentences to be imposed, the sentences to be imposed and the
degree of cumulation are summarised in the following table.
Victim Starting point Sentence Cumulation A Six years and six Four years and 10 months months B Six years and six Four years and 10 Two years and months months seven months D Six years Four years and six Two years and six months months C Two years and Two years One year and six nine months months E Two years 18 months One year F Two years 18 months One year Total Aggregate 13 years and five Sentence months
89. The non-parole period is the minimum period which justice requires the offender to serve
in custody. It will be a period of nine years. This is approximately 67 percent of the
head sentence. That gives appropriate recognition to the nature of the offending but also
provides the offender with an incentive for good behaviour, participation in rehabilitation
programs and the potential for a significant period of supervision upon release.
Orders
90. The orders of the Court are as follows:
1. On the charge of persistent sexual abuse of a child contrary to s 56 of the
Crimes Act 1900 (ACT) (CC2022/6781) the offender is convicted and sentenced
to imprisonment for four years and 10 months commencing on 16 May 2023
and ending on 15 March 2028.
2. On the charge of persistent sexual abuse of a child, contrary to s 56 of the
Crimes Act 1900 (ACT) (CC2022/6782) the offender is convicted and sentenced
to imprisonment for four years and 10 months commencing on 16 December
2025 and ending on 15 October 2030.
3. On the charge of persistent sexual abuse of a child, contrary to s 56 of the
Crimes Act 1900 (ACT) (CC2022/11743) the offender is convicted and
sentenced to imprisonment for four years and six months commencing on
16 October 2028 and ending on 15 April 2033.
4. On the charge of committing an act of indecency upon a person under 16,
contrary to s 92K(2) of the Crimes Act 1900 (ACT) (CC2022/1778) the offender
is convicted and sentenced to imprisonment for two years commencing on
16 October 2032 and ending on 15 October 2034.
5. On the charge of committing an act of indecency upon a person under 16,
contrary to s 61(2) by virtue of s 66B of the Crimes Act 1900 (ACT)
(CC2022/11741) the offender is convicted and sentenced to imprisonment for
18 months commencing on 16 April 2034 and ending on 15 October 2035.
6. On the charge of committing an act of indecency upon a person under 16,
contrary to 61(2) by virtue of s 66B of the Crimes Act 1900 (ACT)
(CC2022/11742) the offender is convicted and sentenced to imprisonment for
18 months commencing on 16 April 2035 and ending on 15 October 2036.
7. The non-parole period commences on 16 May 2023 and ends on 15 May 2032.
I certify that the preceding ninety [90] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop
Associate:
Date: 1 June 2023
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