Director of Public Prosecutions v van de Zandt (No 3)
[2023] ACTSC 359
•1 December 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v van de Zandt (No 3) |
Citation: | [2023] ACTSC 359 |
Hearing Date: | 9 November 2023 |
Decision Date: | 1 December 2023 |
Before: | McCallum CJ |
Decision: | (1) For the offence of sexual intercourse with a person over the age of 10 years but under 16 years (count 1), you are convicted and sentenced to a term of imprisonment for three years commencing on 1 December 2023 and ending on 30 November 2026. (2) For the offence of an act of indecency on a person over the age of 10 years but under 16 years (count 2), you are convicted and sentenced to a term of imprisonment for 18 months commencing on 1 December 2023 and ending on 31 May 2025. (3) Both sentences are suspended from 31 May 2024 on condition that the offender enter a good behaviour order for a period of two and a half years on the core conditions ending on 30 November 2026. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – sexual intercourse with a young person – act of indecency on a young person – historical allegations – where the offender was in a position of trust – absence of remorse – consideration of age and health of the offender – good character – suspended sentences of imprisonment imposed |
Legislation Cited: | Crimes Act 1900 (ACT) ss 92E(2), 92K(2) Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 11, 12 |
Cases Cited: | Director of Public Prosecutions v Myers (a pseudonym) [2023] ACTSC 142 R v Aitchison (No 3) [2018] ACTSC 214 R v Bek (No 2) [2019] ACTSC 324 R v Goboly [2016] ACTSC 322 R v Horton-Hegarty [2018] ACTCA 22 R v Nona [2015] ACTSC 136 R v Skinner (1994) 72 A Crim R 151 |
Parties: | Director of Public Prosecutions Antonius van de Zandt ( Offender) |
Representation: | Counsel L Etheredge ( DPP) E Chen ( Offender) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Offender) | |
File Number: | SCC 310 of 2022 |
McCALLUM CJ:
1․Antonius van de Zandt stands to be sentenced after being found guilty by a jury of two sexual offences committed against his niece in 1986. The first offence was a count of engaging in sexual intercourse with a person over the age of 10 years but under 16 years, contrary to s 92E(2) of the Crimes Act 1900 (ACT). That offence carried a maximum penalty of imprisonment for 14 years. The second was an act of indecency on a person over the age of 10 years but under 16 years, contrary to s 92K(2) of the Act. That offence carried a maximum penalty of imprisonment for 10 years. At the time the offences were committed, the victim was 15 years old. The offender was 34.
2․The offender did not deny committing the two sexual acts described by his niece. There was evidence in the trial suggesting that, before being charged with criminal offences, he had accepted full responsibility for those acts. However, once charged, the offender raised a positive defence at trial that he committed the acts in his sleep and had no recollection of them. The jury’s verdicts must be taken as a rejection of that case.
3․The victim has consented to being named. She is Aquinia van de Zandt, known as “Queenie”. To avoid confusion, I will refer to her and other members of the van de Zandt family by their first names.
Circumstances of the offences
4․At the time of the offences, Queenie’s parents had separated. Her relationship with her own father at that time was “tumultuous” and she was spending a lot of time with her uncle and aunt, whom she admired and adored. She thought they were glamourous. She described visiting them, singing, playing guitar, watching television and swimming in their pool. She regarded the offender as a father figure. She thought he was “cool” because he smoked and allowed her to smoke and drink.
5․The offender and his wife (Queenie’s aunt, Antoinette) both gave evidence at the trial in which they denied ever allowing Queenie to smoke or drink in their presence. While that kind of detail is peripheral to Queenie’s central allegations, it is appropriate to record that I had no difficulty accepting her evidence at the trial as entirely truthful and reliable. She was an articulate and extremely careful witness who went to some lengths to explain where she accepted that she could be mistaken and where her recollection was clear. By contrast, both the offender and Antoinette were impassive and dogmatic in their evidence, which I found implausible in a number of respects. I was left with the clear impression that each was giving an account of the facts which, wilfully or otherwise, had been distorted or sanitised to fit the offender’s newly-claimed innocence of any deliberate wrongdoing.
6․The circumstances of the offences may be summarised as follows. On 15 March 1986, the victim attended the Canberra Food and Wine Frolic where the offender and his wife were running a food stall for Mario’s Theatre Restaurant, which was owned by a family member. Queenie helped at the stall. It was her recollection that there was an “after party” at Mario’s Theatre Restaurant that evening and that she drank alcohol. The offender denied that there was any party and Queenie accepted that she could have been mistaken about whether the gathering she recalled was the same night. In any event, it was common ground that she then stayed the night at her uncle and aunt’s house.
7․Queenie gave evidence that, after they returned to her uncle and aunt’s home, they drank tea together in her uncle and aunt’s waterbed and talked about the evening. She recalled the atmosphere as “really fun”. She said her aunt was quite drunk and was slurring her words before she passed out in the bed. Queenie said eventually they all fell asleep in the bed.
8․During the night Queenie was lying on her back when she awoke to see light spilling into the bedroom from the bathroom. She heard her aunt vomiting in the bathroom. The aunt, Antoinette, gave evidence in the trial. She denied being drunk that night and said it was not possible that she went to the bathroom to vomit or for any other reason. Given that the offender admits that the sexual acts occurred, nothing turns on whether the aunt left the bed as Queenie describes other than as one of many points taken during the trial about Queenie’s credibility. Again, it is appropriate to record that I found Queenie’s description of events on this issue careful and compelling. I accept her evidence without equivocation.
9․Queenie said that after she awoke, she could feel her uncle on her left side trying to push her knees open and her thighs apart with his hand. She said:
He was touching, um, my vulva and, um, I could hear my aunt was throwing up in the bathroom. And I was absolutely frozen in fear. And, um, he then proceeded to - um, touch my clitoris and try to stimulate my clitoris and to, um, finger me. Um, he inserted I don't know how many fingers - one or two, I can't remember. I remember, um, my reaction was just absolutely- I couldn't move. I was absolutely terrified. I didn't know what was happening. Um, I didn't know what to do.
10․While she felt “disgusting” that she did this, Queenie said her initial response was to open her legs more and try to enjoy it. I mention this because, in my assessment, that aspect of her account must have been difficult for her to acknowledge. For that reason, it provided a powerful demonstration of her honesty. She said the offender then put one or two fingers inside her vagina and was “vigorously, you know, pumping it, you know, in and out like that”. That is the conduct relied on to support count 1.
11․Queenie said her uncle then took her hand and put it down his pants onto his erect penis. At that point she said to him; “[y]ou’re my uncle. You’re my uncle.” The offender immediately said “[s]orry, sorry” and took his hand away. That is the conduct relied on to support count 2.
12․Queenie estimated that the whole incident lasted 10 minutes at most. Given the passage of time since the events in question and the difficulty generally of assessing time, I have treated that estimate with some caution. I accept that the incident was more than fleeting but I cannot be satisfied that it lasted as long as 10 minutes.
13․Queenie said her uncle then turned over and went to sleep while she went into her cousin’s room to sleep for the rest of the night. She awoke early the next morning, went into her aunt’s room and called her mother, Ria, to ask her to pick her up. When she got off the phone Antoinette was awake and asked her what had happened. She said “incest”. She begged Antoinette not to let the offender come into the room. Antoinette agreed. However, shortly afterwards, the offender walked into the room and said “I’m so sorry”. Queenie screamed and ran out of the room. She gave evidence that, either shortly after the incident or at some point later in the presence of a counsellor, the offender said to her, “I thought you wanted it. I thought you wanted it because you used to come and get undressed in front of me”, to which she replied “you’re my fucking uncle!”.
14․Queenie’s mother collected her and took her home. During that day, Queenie told her mother and her sister, Pia, what her uncle had done. She begged them not to tell her father (the offender’s brother).
15․Pia gave evidence that, a few days later, she and their mother went to see the offender at his home to talk about what had happened. Like Queenie, Pia was an intelligent, articulate and careful witness. She said her mother asked the offender, “why would you have done this?”. She remembered the offender explaining in some detail about his strong sexual desire, which he said he was not able to control. He said it was often “animalistic”. Pia had a very clear recollection of that conversation because it was difficult for her to listen to and she found it repulsive. I accept Pia’s evidence and am satisfied beyond reasonable doubt that, at that time, the offender accepted that he had wilfully committed the offences.
16․In 2004, Queenie attended a personal development course in Melbourne called “Landmark Forum”. She said she had decided at that time to forgive the offender. At her request, the offender and Antoinette flew to Melbourne to attend the Forum with her. Queenie gave evidence that she and the offender stood up in front of approximately 100 or more people. She said:
I stood up with my uncle and said, “I’m Queenie van de Zandt. I did the Landmark Forum this weekend and the big thing that happened - the big amazing shift for me is that I was sexually abused by my uncle here when I was young, when I was 15, and through the Landmark Forum I was able to see that what actually happened was abuse, which he was very sorry for at the time and I have now been able to – what I made it mean was – as I was just describing it before, ‘I made it mean I can't trust people’, blah, blah, blah, and – ‘but through Landmark Forum I've been able to forgive him and to embrace him back into my life’ and, yes, that's what I said to them. Something of that kind of – yes, in that – something of that language basically, yes.
17․However, in 2021, after hearing about the Christian Porter allegations and the speech Grace Tame gave when she was awarded Australian of the Year, Queenie decided to report the matter to police. She sent a video to the family WhatsApp group informing them of her intention.
Impact on the victim
18․Queenie gave a powerful victim impact statement at the proceedings on sentence. It was written in the second person and she addressed it directly to the offender. She described the deep and ongoing impact of the sexual assault on her life and her efforts to overcome her trauma and heal. She said:
…the repercussions of this offence have been life-altering. The journey to healing has been an arduous and ongoing process, with no certainty of complete recovery. The impact has reached every corner of my existence, leaving an enduring scar that I must carry, despite my relentless efforts to mend the damage.
19․During Queenie’s evidence at the trial and when she read her victim impact statement, it was clear that the offences have had a devastating and lasting impact on her. As she explained, this has no doubt been exacerbated by the fact that she was initially told to keep the incident “a secret” from her father and the rest of the family. This meant that, instead of having her experience acknowledged, she had to pretend nothing had happened. Understandably, she found it extremely distressing to be around her uncle in those circumstances. When she tried to avoid him, she was berated for being difficult. She said:
Because you all decided not to tell my Dad what had happened, I was forced to be in so many family gatherings with you for years. I would experience huge anxiety, panic and trauma at these events. You would seem absolutely fine, your normal self, while I was surly, anxious, withdrawn, and angry. I remember at one family dinner at Dad's house which you were at, I was completely withdrawn and quiet and Dad got so angry with me for being in ‘such a bad mood all the time’. Over the next ten years until I finally told him what had happened, I became more and more withdrawn from my Dad.
20․As a result of the offences, Queenie developed a panic disorder, anxiety and depression. She has had many years of engagement with various forms of therapy. She said that she coped with her trauma by becoming addicted to food and hyper-vigilant of male attention. She came to loathe her own body. She said her romantic relationships have suffered because she views all men as threatening and therefore struggles to trust people. She also said that the criminal proceedings have had a divisive impact on her family relationships, which has resulted in her losing many of those relationships in Australia and in Holland. The schism in the family was palpable at the hearing and must be a source of great sadness.
Objective seriousness
21․It is necessary to make an assessment of the objective seriousness of the offences. While it is not necessary to express this as a point on a hypothetical range, that was the approach adopted by the prosecution. The prosecutor submitted that both offences fall in the mid-range of objective seriousness. Counsel for the offender submitted that the offences fall lower in the range. My assessment of the factors relied upon to support those respective submissions is as follows.
22․The first relevant factor is the age of the victim. She was 15 years and 5 months old at the time of the offences. Counsel for the offender noted that this was towards the highest end of the age spectrum for the offence. He submitted “the younger the victim, the more serious the offending”, citing the decision of this Court in R v Goboly [2016] ACTSC 322 at [59]-[62]. As made clear in those remarks, that is not to say that the fact of the victim being towards the higher end of the age spectrum reduces the seriousness of an offence; only that the younger age or vulnerability of the victim may aggravate an offence. The more significant factor here is that there was, to the offender’s knowledge, a significant age disparity between him and the victim.
23․I accept that the offence was not premediated. Queenie’s evidence was that she and her aunt and uncle were all lying on the bed together and that they all fell asleep. There is no suggestion that the offence was other than opportunistic. On the other hand, the fact that the victim was asleep in the offender’s bed immediately before the offending began made her more vulnerable.
24․The nature of the sexual intercourse was digital-vaginal penetration. Neither party made any submission as to the comparative seriousness of that kind of penetration. I have already indicated my finding that the offences were more than fleeting but probably less than the 10 minutes estimated by the victim. The offences did not involve any form of violence or threats. That is not a mitigating factor; it simply represents the absence of an aggravating factor. Offences of this kind involve an insidious form of manipulation which means that it is often unnecessary for the offender to use violence or threats. The offences here involved a very serious breach of trust, which is a significant factor.
25․The nature of the offending in count 2 was objectively more serious within the range of offences of that kind than for count 1. As submitted by the prosecution, there is a broad range of kinds of act that can amount to an act of indecency, among which the offender’s act of placing his niece’s hand on his erect penis is relatively serious. On the other hand, I accept that the act was briefer and that it stopped as soon as the victim protested.
26․I accept that the offending was isolated and reflects an uncharacteristic aberration for the offender. There was some evidence suggestive of what is sometimes termed “grooming behaviour” but I cannot be satisfied of that beyond reasonable doubt and so must put that impression to one side.
27․Finally, it is relevant to have regard to the harm to the victim. Harm is presumed to occur in relation to sexual offending against children: R v Horton-Hegarty [2018] ACTCA 22 at [46]. However, in the present case, it is not necessary to resort to that principle because, as I have indicated, there was a powerful account from the victim of the significant pain and psychological harm the offender’s conduct has caused her.
28․Based on my consideration of all of those factors, I accept the prosecutor’s submission that both offences fall in the mid-range of objective seriousness.
Circumstances of the offender
29․The offender is now 72 years old. A pre-sentence report provided for the purpose of the proceedings on sentence states that he grew up in the Netherlands before migrating to Australia in 1970 through a paid migration scheme. He had an unremarkable upbringing with his parents, five brothers and one sister in the Netherlands. He has maintained relationships with all of his siblings apart from Queenie’s father.
30․The offender has a supportive wife and stable relationships with his adopted son and daughter. Prior to retirement he had a lengthy history of employment in construction, hospitality and real-estate. He has no prior convictions apart from minor traffic matters which are irrelevant for present purposes.
31․As to his attitude to the offences, the offender told the author of the report that he was “fast asleep” at the time and was unsure whether he agreed or disagreed with the charges. The report records that the offender made “some negative verbalisations regarding the alleged victim and claimed that ‘nothing has happened since’”. Those remarks indicate that, notwithstanding the jury’s verdicts, the offender still does not take responsibility for the offences or acknowledge their seriousness.
Good character
32․The offender tendered numerous character references from family members and friends. That material indicates that, apart from these offences, he has generally been a person of good character.
33․Section 34A(b) of the Crimes (Sentencing) Act 2005 (ACT) provides:
34A Sentencing—sexual offences against children
For a sexual offence against a child, a court—
(a)must sentence the offender in accordance with sentencing practice, including sentencing patterns, at the time of sentencing; and
(b)must not reduce the severity of a sentence it would otherwise have imposed on an offender because the offender has good character, to the extent that the offender’s good character enabled the offender to commit the offence.
34․The prosecution relied on that prohibition, submitting that the offender’s good character enabled him to commit the offences against his niece because Queenie’s mother would not otherwise have allowed her to stay the night at the offender’s home and it would not otherwise have been considered acceptable for her to sleep in the offender’s bed.
35․I am not persuaded that s 34A applies to the circumstances of this case. It was the familial connection, rather than the offender’s good character, that enabled the offender to commit the offences: cf R v Naing [2023] ACTSC 210; DPP v Myers (a pseudonym) [2023] ACTSC 142 at [64] (Mossop J).
36․The character references speak of the offender’s good character and his caring, generous and trustworthy spirit. His children describe a positive upbringing in which the offender was an active and involved parent and is now an involved grandparent to their children.
37․The character references also describe the impact of the offender’s poor health on the family and the likely devastating impact incarceration would have on him and the family unit. His previous colleagues describe him as loyal, honest and hardworking. He is described as a family man who cares for those around him. I accept that the offences may be regarded as uncharacteristic behaviour for the offender.
The offender’s health
38․Counsel for the offender placed significant reliance on the offender’s poor health and his need for constant medical attention, including relatively frequent admissions to hospital. There was no expert evidence on that issue. Instead, the offender tendered a bundle of undigested medical records obtained on subpoena, leaving it to the Court to draw whatever inferences may be drawn from that material. Counsel for the offender identified authorities which he submitted support that approach: R v Bek (No 2) [2019] ACTSC 324; R v Aitchison (No 3) [2018] ACTSC 214 and DPP v KC [2023] ATCSC 213 at [13], [16]. However, this is not a question of precedent; the question always remains what is established on the evidence. The difficulty here is that the evidence was unhelpful.
39․The medical records certainly identify a constellation of medical issues and numerous presentations at hospital. Absent expert evidence, it is difficult to assess the nature and seriousness of the conditions that have prompted the offender to present at hospital at various times. He was hospitalised for four days during the course of the victim’s pre-trial evidence. It is said in the pre-sentence report that he has little pro-social involvement with friends or other groups due to his poor health and that he spends most of his time at home or in hospital. On the other hand, the character references suggest an active engagement with family life.
40․On balance, I accept that the offender probably needs a relatively high level of medical care for his physical health. His medical records also include references to a history of panic attacks, depression, and self-harm ideation. It is not possible from the evidence before me to make any more specific findings as to his likely future medical needs. However, I accept that the experience of prison will impose significant hardship on him on account of his age and his poor physical and mental health.
Remorse
41․The offender denies any culpable wrongdoing. His counsel nonetheless submitted that I could find the offender to be remorseful “to a degree” for the following reasons. First, when Queenie asked him to stop contacting her in 2003, he ceased all contact. Secondly, he attended the Landmark conference to acknowledge his wrongdoing. Thirdly, while he pleaded not guilty, he did not deny the physical acts described by the complainant, sparing her the ordeal of being challenged as to the truthfulness of that aspect of her evidence. Counsel submitted that those acts were done to assist the victim to heal.
42․The difficulty is that the offender’s earlier responses were in the context that, while the fact of the offending was known within the family, no one had reported the matter to police. I accept that the offender’s dealings with Queenie before she went to police at least showed some recognition of the harm he had caused to her. Even so, much of that benefit is undermined by the offender’s recent refusal to take responsibility for the offences. In a letter provided to the Court for the purpose of the proceedings on sentence, the offender wrote:
I sincerely apologise to the complainant (My Niece Queenie) for her suffering. I understand this traumatised her to the degree of her finally lodging a complaint to the relevant authorities. I am sorry and have always been sorry, apparently directly after the event, and several times after, even though not being able to remember the event due to being asleep, I am reminded by my counsel that I was convicted on the premise that I was awake, not asleep. I still maintain I was asleep.
43․The last sentence reveals that the letter was a cynical exercise in self-ingratiation. The offender currently has no remorse. He has not taken responsibility for his offending. He is not to be punished for pleading not guilty but he should not be given the benefit of his professed remorse. The victim was not spared the ordeal of a trial.
The purposes of sentencing
44․The purposes of sentencing are to ensure that the offender is adequately punished for the offence in a way that is just and appropriate (punishment); to prevent crime by deterring the offender and other people from committing the same or similar offences (deterrence); to protect the community from the offender (protection); to promote the rehabilitation of the offender (rehabilitation); to make the offender accountable for his or her actions (accountability); to denounce the conduct of the offender and to recognise the harm done to the victim of the crime and the community (denunciation): s 7 of the Crimes (Sentencing) Act 2005 (ACT).
45․Under s 10 of the Crimes (Sentencing) Act, the Court may sentence the offender to imprisonment only if satisfied, having considered possible alternatives, that no other penalty is appropriate. This is clearly a case in which that threshold is met. I accept that there is no need to protect the community from the offender. At his age and in his state of health, he poses very little risk of reoffending.
46․However, I am satisfied that the objects of punishment, deterrence, accountability and denunciation cannot be met by any lesser penalty than imprisonment in this case. Counsel for the offender did not contend otherwise. General deterrence is a strong consideration in sentencing for offences of this kind, particularly where the offender is in a position of trust towards the victim: R v Skinner (1994) 72 A Crim R 151 at 154 (Kirby ACJ).
47․Having determined that offender is to be sentenced to imprisonment, the Court has a discretion to order that the sentence be served by intensive correction in the community (s 11) or to suspend all or part of the sentence (s 12). In determining whether to make an intensive correction order, the Court must consider the offender’s suitability for such an order as addressed in the pre-sentence report. The offender in the present case has been assessed “not suitable” for an intensive correction order on the grounds of his extensive history of medical concerns and poor mental health. It was not submitted that I should make an intensive correction order notwithstanding that assessment.
48․Counsel for the offender instead submitted that the sentence could appropriately be fully suspended. The principal factors relied upon to support that submission were the delay in bringing the matter to trial and the offender’s current age and poor state of health.
49․As to delay, counsel for the offender relied on the decision of this Court in R v Nona [2015] ACTSC 136 where Murrell CJ held that delay can inform the Court as to the rehabilitation of the offender. I accept that this factor has worked to the advantage of the offender because he has demonstrated good behaviour for many years since the commission of the offences.
50․Counsel for the offender also relied on [47] of the judgment where Murrell CJ said:
A factor that generally arises with the delay in prosecuting stale offences is that the Court is minded to afford some degree of understanding and flexibility in its approach to sentencing.
51․In my respectful opinion, that approach is problematic. Leaving aside considerations of rehabilitation and poor health, which have obvious relevance and are significant in this case, the bare fact of delay should not as a matter of course prompt the sentencing court to afford “understanding and flexibility”. The effect of the delay is that the offender has had the benefit of a rich and full life without having to face the consequences of his criminal conduct as a younger man. In the meantime, the victim has continued to suffer.
52․In my assessment, the delay in bringing the matter to trial and the offender’s age and poor health today are significant factors in assessing the minimum period that should be spent in custody. However, those factors do not warrant declining to impose the sentence that is otherwise appropriate for these serious offences.
53․The parties provided comparable cases which I have considered, noting the proper limitations to the use of such material.
Orders
54․I am not persuaded that a wholly suspended sentence is appropriate. In my view, the seriousness of the offences is such that the offender must spend a period of time in full-time custody. That period will be significantly shorter than it otherwise would have been to reflect the additional hardship of imprisonment having regard to the offender’s age and his poor physical and mental health. For that reason, I propose to suspend the sentences after the offender has served six months imprisonment. For the same reason, and reflecting the fact that they were part of the same relatively short course of conduct, I propose to make the two terms of imprisonment wholly concurrent.
55․Antonius van de Zandt please stand:
(1)For the offence of sexual intercourse with a person over the age of 10 years but under 16 years (count 1), you are convicted and sentenced to a term of imprisonment for three years commencing on 1 December 2023 and ending on 30 November 2026.
(2)For the offence of an act of indecency on a person over the age of 10 years but under 16 years (count 2), you are convicted and sentenced to a term of imprisonment for 18 months commencing on 1 December 2023 and ending on 31 May 2025.
(3)Both sentences are suspended from 31 May 2024 on condition that the offender enter a good behaviour order for a period of two and a half years on the core conditions ending on 30 November 2026.
| I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice McCallum Associate: Date: 1 December 2023 |
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