R v Apr

[2007] NSWDC 249

CITATION:	R v APR [2007] NSWDC 249
HEARING DATE(S):	30 October 2007
JUDGMENT DATE:	30 October 2007
EX TEMPORE JUDGMENT DATE:	30 October 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	See paragraphs [34], [35], [36], [37], [38], [39] & [40]
CATCHWORDS:	Criminal Law - Senrtence - Aggravated Sexual Assault - Aggravated Indecent Assault - Confessing to serious criminal behviour. - Mentally unwell - Alcohol and substance abuse - Substantial delay
PARTIES:	The Crown APR
FILE NUMBER(S):	07/31/0148
SOLICITORS:	NSW DPP Parke Maher Solicitors

SENTENCE

1 HIS HONOUR: In 1997 and early 1998 the offender was living with his then wife and their two children. The offender’s wife was working shift work as a nurse in the local nursing home and so the offender had the care of his children at those times.

2 Following their divorce in mid-1998, the offender also had the care and custody of his children on access visits. The offender took advantage of that opportunity to repeatedly have sex with his natural daughter on many occasions.

3 During the 1997 school holidays the offender’s daughter, who was then ten years of age and about to start year 5 at the local public school was being looked after (but that expression anything but accurate), by the offender whilst her mother was at work.

4 The offender called her into her mother’s bedroom and closed the door behind him. He lay on the bed on his back and told her to lie down next to him. She was wearing a T-shirt and a pair of shorts and the offender began to rub her chest and then worked his hands down towards her vagina and rubbed her on the outside of the clothing for about five to ten minutes.

5 This was the first sexual assault that the complainant could remember. After it finished, she remembers walking out of the bedroom and crying. This was the commencement of a lengthy period of sexual abuse by the offender of his natural daughter. It is a period of abuse which has had lasting and completely foreseeable consequences for the complainant. The incident that I have just described forms the basis of count one on the indictment on which the offender is to be sentenced.

6 The next incident occurred in February 1997. Again, the complainant’s mother was working and she was home with her father and her brother. On this occasion, the brother left to go to a friend’s house leaving the complainant home alone with her father. She was in her bedroom watching television when the offender walked in and closed the door. He lay down on her bed and told her to also lie down so that her head was pointing towards his feet. He pulled down his pants and put his penis into her mouth. He held his penis with one hand and held the back of the complainant’s head with the other as he moved his penis in and out of her mouth. This disgraceful and most serious conduct forms the basis of count two on the indictment.

7 He then continued. He got the complainant to hold his penis while he pulled her pants down and rubbed her vagina before inserting at least one finger into her vagina. The complainant, who was still ten years of age at this time, said that this really hurt. He continued to move his finger inside her vagina for about ten minutes. She told him to stop. As she did so the offender ejaculated, at the same time withdrawing his penis from her mouth. Some of the offender’s semen went into her mouth and the rest landed on her doona. Before the complainant’s mother returned home, the offender told her not to say anything to her mother. Not surprisingly, the complainant was scared and did what she was told.

8 These were not isolated instances. Over the next six months similar occasions occurred, the complainant being unable to describe them any further because they seemed to blend in with each other.

9 Quite significantly, during times that the offender had a relationship with an adult woman, he ceased to abuse his daughter. Once that relationship failed however, the abuse recommenced.

10 In late 1997, the offender had custody of his children every second week. On one visit, this was the third visit, she was in the loungeroom of the offender’s new premises watching television with her brother. It was daylight hours when her father called her into his bedroom, shutting the door behind her. The complainant recalls having to lie down on the bed and her father pulling his pants down and placing his penis into her mouth. He put her hand on his penis and caused her to move it back and forwards along his penis until he removed his penis from the complainant’s mouth and ejaculated. What I have just described forms the basis of count 4 on the indictment.

11 In early 1998 the offender, once again, commenced another relationship. That relationship ended in November 1998 and, once again, whilst the offender was in another relationship he did not abuse his daughter. However, once that relationship finished, the abuse started again. The offender was living in a one bedroom flat in Cessnock. The complainant and her brother went to stay with him on alternate weekends. That is, she and her brother would go every second weekend. They slept on fold-out beds in the lounge room but the complainant recalls that after she and her brother went to sleep, the offender would wake her, take her into his bedroom and put his penis in her mouth once more. The complainant says that this occurred on at least five occasions whilst the offender was living at the flat in Cessnock.

12 It seems that at the beginning of 1999, at a time that the complainant was starting high school, the complainant told her mother what had been happening. Somewhat remarkably, no complaint was made to police and the offender continued to have access to the complainant. In March 1999, just a short time after the complainant told her mother what was happening, the offender came to visit them. The complainant’s mother was in the bath and the complainant was lying in her bed reading a book. The offender quite brazenly walked into the complainant’s bedroom, turned off the light, got into bed with her and rubbed his erect penis against her side. The complainant pushed him away.

13 She told him she did not want to participate in what he was doing. He then tried to pull her pyjama pants down but she resisted. It was at this stage that the complainant heard her mother walk past the door. So she got out of bed and opened the door. Her mother asked the offender what he was doing in the complainant’s room with the light off. The complainant told her mother that they were talking and that the offender was about to leave. The complainant’s mother told the offender to leave the house, which he did. Again, the complainant told her mother what had been happening but, once more, there was no complaint to police. What I just described is count five on the indictment. After that, there was little contact between the complainant and her father and no more offences occurred.

14 All of those events happened in 1997, 1998 and 1999. The next event I am about to describe occurred a considerable time later on 4 May 2006. That morning, the offender walked into the Maitland Police Station and spoke to a detective there. He said “I want to tell you that I have been molesting my daughter for a number of years and I want to get it off my chest. I feel bad about it.” The offender was arrested but police were concerned about his mental state so they took him to a psychiatrist. After that, he was taken back to the police station where he participated in an electronically recorded interview.

15 He made general admissions about sexually assaulting his daughter saying that it started when she was about seven or eight and ending when she was thirteen. After this occurred, Detective Riley spoke to the complainant. He told her about what her father had said and she provided police with a statement. That was the first time the complainant had told police what had been going on.

16 On 6 November 2006, police conducted a further interview with the offender where what the complainant said was outlined to him. The offender said that he basically agreed with what the complainant described but he did not have a specific recollection of each incident.

17 It is worth emphasising just how young the complainant was at the time of these offences. For most of them, the more serious ones, she was in primary school. She was entitled to look upon her father as a person who would look after her, who would care for her and who would protect her. Instead, her father abused her for his own sexual gratification. That she would not complain to her mother was completely understandable and the offender took advantage of that fact.

18 It is also not at all surprising that the offender would fail to complain to the police where, having told her mother on two occasions what had occurred, her mother did nothing about it in so far as contacting the authorities is concerned.

19 These offences have seriously affected the complainant. I have read the Victim Impact Statement prepared by her in which the consequences for her are eloquently set out. The harm that these offences caused is very much a part of the seriousness of those offences, and the harm is properly to be reflected in the sentence that I will announce in due course.

20 The offender did not suffer any sexual abuse in his childhood. He is currently estranged from his family. He met the complainant’s mother in 1983. They married but, as I have indicated, they separated. These offences occurred at around the time of that separation.

21 One of the striking features of this case, because it is most unusual, is the circumstance that the offender voluntarily walked off the street into the police station to tell them what he had done many years before. Such a circumstance usually results in what the courts call an ‘Ellis discount’ but there is one complicating feature in the present case. Such conduct, that is, voluntarily confessing to serious criminal behaviour, is usually the product of remorse but, in this case, it may well be that there is another reason that the offender did what he did.

22 Tendered before me today was a report from a psychiatrist and that reveals that at the time the offender walked in to Maitland Police Station, he had been hearing a lot of voices telling him to confess to police what he had done to his daughter. The voices told him that if he did not confess, he was likely to get a bullet in the head. The psychiatrist suggests that the offender believed that this threat was real.

23 This case is unusual in that it was not remorse or, at least, not only remorse which prompted the disclosure in 2006. As is clear from what led to the offender’s confession, he is mentally unwell. There is some doubt expressed at times as to the nature of the offender’s psychosis, that is, whether it resulted from substance abuse or was something more inherent. Dr McDonald is inclined towards a diagnosis of chronic paranoid schizophrenia exacerbated and perpetuated by sustained poly-substance abuse. The offender has for many years been abusing drugs and alcohol, in particular, marihuana and amphetamines.

24 He has become mentally unwell at various times since the commission of these offences, this illness responding to treatment. However, despite Dr McDonald’s suggestion that there is perhaps a link between his mental illness, developing as it was in 1997, and the offences, no such suggestion was put to me by Mr Smyth who appeared for the offender. I would have rejected Dr McDonald’s opinion in any case.

25 Dr McDonald seems to proceed on the basis that what the offender said about the reason he committed these offences showed impaired judgment and that impaired judgment must have come about on the basis of his long standing alcohol and substance abuse. Yet it is the experience of these courts that many people who abuse young children have impaired judgment and many of them fail to completely understand the harm that they are causing. That is the case whether or not they are abusers of alcohol and drugs.

26 I am not satisfied on the balance of probabilities that there is any link at all between the offender’s developing mental illness and his offences in this case.

27 The explanation which the offender offered to the psychiatrist, that explanation being offered quite recently, was that it was not his intention to cause any harm to his daughter and that he believed that what he was doing was beneficial, both for him and his daughter. The suggestion that the offender believed that what he was doing was beneficial for his daughter is remarkable. It demonstrates that the offender is not prepared to accept full responsibility for what he did. That the offender could suggest that there was, in any way, a possibility that he believed that what he was doing was beneficial for his daughter, is a very significant matter.

28 The offender did not give evidence in this matter and, through Mr Smyth, the question of what he could have said to his daughter was addressed. Mr Smyth said “what could the offender have said to make his daughter feel better?” Well he could have said he was sorry. The most that can be said on this question of remorse is that the offender told police on the day of his first confession “I feel bad about it”.

29 I am not prepared to find on the balance of probabilities that the offender is genuinely remorseful for what he did. I have to sentence the offender on the basis that there has been a substantial delay between what occurred in those years and now. This does appear to be a case where the offender believed he got away with it, he has never been afraid that the police would become involved, and he has tried to get on with his life, putting this behind him, until the voices told him he should confess to police.

30 I also will sentence the offender on the basis that the five matters on the indictment were not isolated matters. He is not to be separately punished for things that are not specifically charged against him but the offender is not entitled to take advantage of a submission that could otherwise be made that these were isolated incidents.

31 The offender’s mental illness is continuing. I will take into account that his time in custody will be harder because of that. The facilities in the various prisons for the care and treatment of the mentally ill are, the authorities would acknowledge, less than ideal.

32 I was not asked to find special circumstances in this case so I will not do so. Although there will be a variation from the statutory ratio as far as individual sentences are concerned, the overall sentence reflects the statutory ratio.

33 The offender pleaded guilty in the Local Court and so these sentences will be twenty-five per cent less than they would have otherwise been.

34 On count one, the offender is sentenced to a fixed term of imprisonment of three years to commence on 30 October 2007.

35 On count five, the offender is sentenced to a fixed term of imprisonment of three years to commence on 30 October 2007. Those sentences are fixed terms because of the sentences I will announce on counts two, three and four.

36 On count two, the offender is sentenced to imprisonment consisting of a non-parole period of four years with a head sentence of six years to date from 30 October 2007.

37 On count three, he is sentenced to imprisonment with a non-parole period of four years with a head sentence of six years to date from 30 October 2008.

38 On count four, he is sentenced to imprisonment with a non-parole period of four years with a head sentence of six years to date from 30 October 2009.

39 Thus the non-parole period on count four will expire on 20 October 2013 on which day the offender is eligible to be released to parole.

40 The overall sentence I have intended to impose consists of a non-parole period, effectively, of six years with a head sentence of eight years.

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