R v Ashton (a pseudonym)
[2022] ACTSC 27
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Ashton (a pseudonym) |
Citation: | [2022] ACTSC 27 |
Hearing Date: | 3 February 2022 |
DecisionDate: | 4 February 2022 |
Before: | Norrish AJ |
Decision: | See [101] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual relationship with a child under special care – parent – extended offending – categorisation of objective seriousness – minor criminal history – contrition – early plea of guilty – utilitarian value |
Legislation Cited: | Crimes Act 1900 (ACT) s 56 Crimes (Sentencing) Act 2005 (ACT) Pt 4.3, ss 7, 33, 36, 47, 48, 49, 50, 51, 52, 53 |
Cases Cited: | Director of Public Prosecutions v DDJ [2009] VSCA 115; 22 VR 444 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Veen v The Queen (No 2) (1988) 164 CLR 465 |
Parties: | The Queen (Crown) Baker Ned Ashton (a pseudonym) (Offender) |
Representation: | Counsel K Marson (Crown) S McLaughlin (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 217 of 2021 |
NORRISH AJ:
The offender, whose name is not to be published because it would lead to the identification of the victim, appears today for sentence in relation to an offence of engaging in a sexual relationship with a child with whom he had a special relationship, particularised as occurring between 1 January 2013 and 12 February 2021.
The offender pleaded guilty at the Magistrates Court after a few mentions of the matter but, in the circumstances, bearing in mind he was committed for sentence, I am proposing to provide the offender with the discount which is accepted in this jurisdiction as appropriate in all of the circumstances of 25 per cent for the utilitarian benefit of the plea of guilty.
The offender was born in October 1983 and was the father of the victim. He engaged in sexual activity with the victim from the time that she was six years of age until she was 14 years of age. The short statement of summary of the facts asserts that he in fact had sexual contact with her a minimum of one to two sexual acts per month. One need only do the mathematics of the number of months between early 2013 and February 2021 to appreciate the large number of acts committed by the offender which constitute the offence.
An illustration of that, if I may just go somewhat ahead in the facts, is the statement in the Agreed Statement of Facts that, in the period of time that the offender lived at Kambah, which I am informed on the facts is from November 2017 to February 2021, a period I calculate conservatively as three years and two months - but which could be as long as three years and four months - he admitted to, and in fact volunteered to the police that he was committing acts of penile penetration with the complainant at least twice each time she stayed with him. She, having stayed with him every second or third weekend during that period.
Calculating that number by reference to one visit per month, which is an understatement based upon that estimate, I calculate that to be a minimum of 76 separate acts of penile penetration of the victim, which is clearly a significant extent of criminality on the part of the offender.
To come back to the detailed facts which I must outline for the record even though it may be distressing to go back into these matters particularly for the victim. The victim was born in September 2006, she was the child of a relationship between the offender and the victim's mother that commenced in 2002.
The relationship between the offender and the victim's mother ended in 2008, that is only a few years after it started and well before the commencement of the offending with which I am concerned. The mother and the offender entered into an agreement as to the custody arrangements which proceeded satisfactorily so far as was concerned by the mother, clearly on the basis that she had no understanding of the sexual abuse committed against her daughter. In fact, in the Victim Impact Statement from the mother, which in my view is a very understated document indeed as is the statement of the victim, the mother makes it very clear that she not only had no suspicion of what was occurring until a particular point in time as stated in the facts, but in fact that she was happy for her daughter to be in the care of the offender which of course provided him with the opportunity to commit the acts which constitute the offence with which I am concerned.
The statement of facts identifies acts of the offender occurring at a number of locations, the addresses which I need not place on the record, but they are particularly identified as being the suburbs of Chifley, Torrens, Bonython, and Kambah. I do note however that within those headings in the statement of facts there appears to be another suburb, at the premises of a third person, where sexual misconduct occurred. The importance of the identification of locations is for the purposes of identifying the facts of the matter linking acts of the offender with the location in which they occurred.
In 2013, when the offender lived in Chifley, the victim, then aged six or seven years of age, shared a double bed with the offender when she stayed. During the period of time between 2013 and 2014 she stayed about four times. On one occasion, when the offender sexually touched the complainant he groped her buttocks, ran his hand up her legs and touched her vagina over her underwear. He did this for about ten minutes and then walked out of the bedroom. About three or four weeks later, again in bed with the victim and only wearing boxer shorts, he reached down and groped the victim on the buttocks with his hands, moved his hands up and down her legs, touched her vagina over her underwear and then pressed his erect penis against her legs and buttocks, moving his hips back and forth, and then rolled over and went to sleep without ejaculating.
At some time between 2013 and 2014, the offender was at a residence at a suburb called Richardson and the victim went to have a shower in the master bedroom ensuite, when she was between six and eight years at the time as its identified in the facts. The offender followed her into the bathroom, proceeded to undress, and got into the shower with her. He touched her on the breasts and waist while they were in the shower and while she faced the rear corner of the shower, he inserted his penis in her vagina and began to move it in and out. I point out this is the first act of penile vaginal penetration described in the facts. I also point out that the victim was only either six, seven, or perhaps eight. Afterwards the offender told the victim it was “their secret”.
The offender, in September 2014, moved to Torrens and shared those premises with another man. He had his own room with a double bed described in the facts. Again there were no other sleeping arrangements for the daughter, and she shared the offender's bed. During this time the private custody arrangements regarding the victim were in place, the offender collected the victim from the mother's residence approximately every second weekend. Between September 2014 and March 2015 the offender, when he was in the company of the victim, who was then seven or eight years of age, performed various sexual acts upon her.
On one occasion they were play wrestling and cuddling on the bed. He pulled her underwear down, telling her “It's okay. Daddy is just checking you”. He put his arm around her and touched her on the clitoris with his hand. He took his erect penis out of his underwear and told her, the victim, to touch his penis. She took hold of the offender’s penis with her hand and squeezed. She stopped doing that without him ejaculating. The offender told the victim at that point that she was not to tell anyone or “he would go to jail”.
Between September 2014 and September 2015, in the bedroom at these same premises when the victim was eight years of age, at least until September 2015 when she turned nine, he made the victim on one occasion sit on the edge of his bed, stood directly in front of her, removed his erect penis from his underwear and placed it in her mouth and told her to suck. In other words, he performed an act of fellatio upon her. She sucked his penis for a short time and he removed it, it is said in the facts, without ejaculating.
On another occasion, during the same period, the victim and the offender went to bed. She was wearing clothes. He was wearing boxer shorts. He was lying directly behind her. He pulled her underwear down, took his erect penis out of his underwear, placed his penis in between her legs, touching her genitals, and was using his hands to touch her on the chest and buttocks.
The offender moved to another location in the suburb of Bonython in January 2016. There the offender had his own room, sharing the premises with the gentleman that he had lived with at Torrens. There were no other sleeping arrangements for the victim, so she slept in the offender's bed. On one occasion in 2017, the offender was playing a computer game in his room. The victim was in the bedroom, jumping up and down on the bed. The offender became angry. He took hold of her, spun her around, placed her on her hands and knees on the bed, pulled down her pants and began rubbing his penis up and down on her vagina. The offender began to push his erect penis into her vagina and then slowly thrusted his penis back and forth on her vagina for about a minute and a half with the tip of his penis penetrating the vaginal opening. His hands were on her hips and buttocks. He placed his penis back inside of his boxer shorts and ejaculated. The victim, in the facts, is stated to be crying during this period of time and was 11 years of age.
Whilst the offender lived at this address, he rubbed his penis on her genitals on “numerous occasions”. This and other forms of sexual touching occurred at least once a month during this time.
It was then in November 2017 the offender moved to Kambah. There he resided on his own. Again, he had a double bed. There were no other sleeping arrangements for the victim. Ultimately, she slept in his bed, sharing his bed with him. The first weekend she stayed there, she went to bed first. She was 11 years of age. He got into bed with her, pressed her buttocks into his genital area, took hold of her breasts as they were starting to develop, and began to rub them, directed the victim to take her clothes off and inserted a finger into her vagina.
Between 2017 and 2018, the offender and the victim were housesitting at a residence in Richardson. The victim was between 10 and 12 years of age. They were in a guest room where the offender had his computer set up. The offender and the victim were naked. He told her to sit on his lap and he showed her images of a male and female performing sexual acts, particularly the female performing sexual acts on the male.
On one occasion between 2018 and 2019, when the victim was between 11 and 13 years of age, the victim was naked. The offender grabbed and rubbed her breasts, touched and rubbed her vagina and clitoris. He told her that he wanted to try something “new”, told her to get on her hands and knees and had her holding the metal bed frame. He knelt down beside her, inserted his penis in her vagina, before slowly inserting his penis inside her anus and began moving it in and out. The offender told her that she was not “ready” for anal intercourse and stopped, and the victim felt pain and was scared when the offender put his penis in her anus.
Between March and September 2019, when the victim was 13 years of age, he was watching movies with her at night at the address at Kambah, as I would understand it from the facts. He directed her to get undressed. He began touching her on the clitoris and digitally penetrated her vagina. He told her to sit on him and told her to put his penis in her vagina. She complied and she moved up and down while he had his hands on her buttocks. At the “point of ejaculation”, the offender removed his penis from her vagina and ejaculated into his hands. Shortly after, he began to rub her clitoris until she had an orgasm and they both went to sleep.
In relation to this matter, there are other pieces of evidence to show that by 2019 the mother became aware that the offender may have done, what is described in a message that she saw on an Instagram app on a mobile phone, “quite unforgiveable stuff” to the victim. There was a discussion between the mother and the offender in July 2019 when she asked the offender in the presence of the victim whether anything had happened, the offender said it had not. When the mother asked the victim if anything had been done to her, she said, “no”.
Of course, in the context of submissions put to me about the extent of the offender's contrition, putting aside other comments I will make about that at a later time, including matters relating to the insight the offender had as to the wrongfulness of his conduct at a very early stage, one might have thought, at the very least, this was a warning for the offender to stop his offending towards the victim. But in fact that did not occur. As the detail of the facts makes clear, the mother realises in her Victim Impact Statement to me how mistaken it was, I make no criticism of her to confront the victim in the presence of the perpetrator.
On an occasion between mid-January and early-February 2021, when the offending stopped - through no action on the part of the offender I hasten to say, the victim was at his address at Kambah. She got into bed with him. He rubbed her breasts, grabbed her breasts with his hands, touched her vagina and clitoris, used his fingers to digitally penetrate her, told her to remove her clothes, and inserted his penis into her vagina, moving back and forth. He was wearing a condom at the time and ejaculated into the condom, throwing the condom away.
It is pointed out to me that the particulars in paragraph 27, which I will read directly on to the record, given what I have said earlier about the calculation of the incidents at Kambah, come from the mouth of the offender himself. Although I have not examined this matter in detail because not all the evidence available to the parties was made available to me, it would seem a great deal of the detail that I have already recited up to this point comes from the victim in terms of what she could remember of what had been perpetrated against her.
What the offender told the police, when he was interviewed in July 2021, was that during the period he lived in Kambah he had sexual intercourse with the victim every time she stayed with him, at least twice each time she stayed with him, and that she stayed with him every second or third weekend during that period of time.
In the context of some submissions that were made helpfully by the learned Crown Prosecutor, and some information provided to the court relating to the Statement to the Assembly here in the ACT of the purpose of the legislation, it is to be understood in the context of submissions made about the cooperation of the offender with the investigators, that his information to the investigators supplemented what could be remembered by the victim. But, of course, what the victim could remember is to be expected as not complete, having regard to the character of this type of offending. Hence the creation of this particular charge in recent years as a result of the Royal Commission into Institutional Child Abuse.
In identifying the need for such an offence, the Royal Commission noted that an offence making the actus reus of the offence the relationship, rather than the individual occasions of abuse, provides the best opportunity to charge repeated or ongoing sexual abuse in a manner that is more consistent with the sort of evidence that a victim is more likely to give. There are a number of reasons for this identified by the Royal Commission that are included within the ‘Explanatory Statement’ to the Legislative Assembly of the Australian Capital Territory.
They include the fact that children do not have a good understanding of dates, times, locations or an ability to describe how different events relate to each other on a temporal basis. One might have thought, as a matter of fact, that the younger the child, the more likely that that is to be so. In this case, we have a child being abused from the age of six. A delay in reporting may cause memories to fade or events to be wrongly attributed to a particular time or a location. Thirdly, the abuse may have occurred repeatedly and in similar circumstances so that the victim is unable to describe a specific or distinct occasion of abuse. As the Crown pointed out to me, by reference to this Statement to the Assembly, it was noted in a South Australian Full Court case of R v Johnson [2015] SASCFC 170, that a “perverse paradox [is] that the more extensive the sexual exploitation of a child, the more difficult it can be proving the offence”. That is, any individual offence that might previously have been required to be charged in relation to the matter.
The facts then go into great detail about the circumstances of complaint being made and an investigation being undertaken. There are some key matters that I should identify from that, without dwelling on that detail, which I have taken into account.
Firstly, as I said earlier, the abuse of the victim stopped not because the offender desisted from offending but because on 19 February 2021 the mother located text messages between the victim and another person, and they revealed to the mother that the victim had felt uncomfortable watching a television show where the father raped his children as it “brought back bad memories”. On reading that message, the mother contacted the offender, informed him of the messages, and later that day, when the mother confronted the victim, she disclosed to the mother that she had been “raped” by the offender.
The revelation meant that the victim, of course, no longer was able to go to the offender’s home, and that revelation needs to be understood again in the context of what I described earlier as the message read in July 2019, the confrontation with the offender and the child not revealing to her mother what, in fact, had occurred. After a series of interviews of various people, including people who were able to confirm some details relating to the access of the offender to the victim, the police spoke to a man with whom the offender had lived, and that the offender told him, via a messaging platform, that he was “scumbag trash” and that he had done things “as dark as child rape” to his daughter.
The police on that same day, 12 July, spoke to the offender and arrested him and conducted an interview. He provided considerable detail in relation to the offending. He made admissions to police that he had indecently assaulted the victim from the age of seven, she had performed oral sex on him in which she had complied on a number of occasions, and he also described her masturbating his penis, a matter I hasten to say she had not disclosed. Sometimes they kissed, a matter she had not disclosed. He told police that he had been performing oral sex on the victim since she was prepubescent up until recently.
He also explained that he had “on occasion used condoms”, but on occasions he had not, and he had ejaculated on her stomach or buttocks. I should hasten to say this detail from the offender puts in proper context, it seems to me, the claim that the absence of pregnancy and the absence of a sexually transmitted disease being acquired by the victim was a matter that might reduce the seriousness of the offending. It is clear from the facts and the admissions of the offender that the risks of these things occurring were real and great, even if they did not occur.
He stated in his interviews on average he would perform a minimum of one to two sexual acts a month since the victim was seven years of age. I have read through that interview. A great detail of the detail of it is reflected, I said, in the facts that I have outlined in some detail now. But there are two other aspects, or one general aspect, of the interview with the offender that needs to be noted for the purposes of these sentencing proceedings, particularly in the context of assessing the extent of the contrition of the offender.
In answer to question 441 of the interview, when asked about a particular act, as I would understand the course of the interview, of sexual assault, the offender was asked “Has she never said anything?”. The answer of the offender was “She’s never asked me to stop. She’s never told me to get off, never told me once, ‘Don’t.’”. As if that were significant.
He went to be asked at question 647 with this question, “Tell us about the first time that you remember penetration”, answering, “Well, just messing around on the bed, fingering and fondling each other. By then, sometimes, she was kind of a little into it.”
On the same page of the interview at question 653, his answer reads “Yeah, by the time we moved into Kambah, she was, you know, maturing, becoming a lady. She was a little more aware of what we do, and sometimes she’d press up against me, and I’d find her wet and ready to go. So I was kind of – my fingers started finding my way in there, yes.”
One needs to appreciate those observations as reflecting, with the greatest of respect to the offender, the complete lack of insight into the character of the relationship that he had with his child. There could be no suggestion whatsoever that a child so young could be encouraging him to permit sexual assaults to occur.
With regard to his background, I note that he committed these offences between the age of approximately 29/30 up to the age of approximately 38. The significant difference in age between he and the victim is part of the objective facts that needs to be considered. And, of course, it is an element of the offence that the victim was a person in the special care of the offender. One must be careful in not double-dipping when one deals with issues of aggravation, but the character of the special care was that he was a father of the child, which is part of the definition of that expression in the Act, and as a father of the child, he had responsibilities to protect her, not to abuse her. Thus, implicit and significant in this matter is the extent of the breach of trust by reason of the relationship of special care.
So far as his criminal history is concerned, before he commenced offending against the victim, the offender had a driving matter of negligent driving occasioning grievous bodily harm in 2005, and a driving offence of reckless or dangerous driving in August 2010 dealt with by modest means in the Magistrates Court. I am prepared to accept at commencement of the offending, and during the course of the offending, the offender did not have a relevant criminal history or not such a significant criminal history as to disentitle him to some leniency in that regard. During the course of the offending, he was found guilty in the Magistrates Court in June 2015 for an offence committed in May 2015 of driving with alcohol in his blood or on his breath, again dealt with modestly by the Magistrate with a conviction and a disqualification.
Part of the factual background of this, is that the offender has a problem with the abuse of alcohol and cannabis, and whilst there is some suggestion in one of the Victim Impact Statements that it may have played a role to some extent, there certainly is no mitigation whatsoever in being affected by alcohol or cannabis when committing acts of sexual assault of this character. It is not suggested in any event that he was so effected on the many occasions, or all the occasions, that sexual assaults occurred.
The interesting thing about character in this is that whilst he does not have any prior convictions for assaults against other persons, or sexual assaults, there is no suggestion of a criminal history of or predilection for sexual violence in this particular matter, the truth of the matter is that from the commencement of his conduct leading up to the end of his conduct comprising the offence, such good character as he had in once sense has diminished. Because every time he committed an offence, or an act that constitutes part of the offence with which I am concerned, he was, at that particular point of time, an undetected, unconvicted sexual offender as the facts made clear.
The offender did not give evidence before me, and I have no medical evidence from him or his counsel. There is no psychiatric or psychological evidence provided to the court, however there is some detail of his life in the Pre-Sentence Report for the purposes of this sentencing exercise. Notwithstanding the fact that he has not been subject to the test of cross-examination, I am prepared to act upon the detail within the Pre-Sentence Report in so far as it is uncontroversial.
The offender’s background is that he was born in Albury, had positive relationships with his family, and has worked in the motor industry in a range of ways, as I would understand it, with an expertise in multivehicle spare parts, over a number of years. He has been gainfully employed most of that time. Whilst in custody, I hazard to say, he has obtained some employment as a unit sweeper in the accommodation area whilst in the ACT correctional facility, and he would appear to not be a difficulty for the correctional authorities. He denied in his interview any sexual predilections apart from what was reflected in the facts of this particular matter.
So far as his financial situation is concerned, he has largely lived in rented premises. He had a small debt at the time of coming into custody which has been resolved by his family. He spoke of drug and alcohol use over a number of years, he seems to have been a fairly heavy drinker of alcohol claiming to be consuming between eight to ten standard drinks each day prior to coming into custody, and had used cannabis since he was 18 years of age. He had been assessed by Custodial Mental Health Services on induction into custody on 13 July 2021, there was no evidence of major mental illness. He denied any history of mental health issues, no thoughts of self-harm or suicidal ideation.
He said that he had been diagnosed with Attention Deficit Hyperactivity Disorder as a child and had been medicated between the ages of 12 and 17. He is a type 1 diabetic and has engaged with a primary health team for ongoing management. I note his health issues but there is nothing before me to indicate that there are any difficulties with those being managed whilst in custody. So far as the facts of the matter are he described his own conduct as disgraceful and described himself as being, “very disappointed” in himself. He claimed to be intoxicated when first engaging in his offending conduct, but he was not always under the influence of alcohol or illicit substances. He claimed that he'd mostly acted on “impulsivity” and on occasions he said he would attempt to “talk himself out” of such offending behaviour but that he had “no self-control”.
He acknowledged the serious nature of the offending and the impact it would have had upon the victim. I just pause for the moment. There is other material available for me through the submissions of his counsel of acts of the offender in response to his misconduct at an early stage, for example, hitting his head against a pole as some type of redress to himself or the misconduct that he appreciated that he had been involved in sexually mishandling his child. This seems to me to reflect adversely upon the claim that his contrition is a significant matter in this exercise. Whilst I accept, he has expressed contrition by pleading guilty and disclosure of his misconduct, as I said earlier, this contrition has to considered in the context of the fact that for many years, as can fairly be described, he was able to realise the wrongness of his conduct but continued with it.
It cannot be said, with respect, that his conduct was “impulsive”. If this had happened on one occasion or perhaps two or three occasions it may be seen - depending upon the explanation he gave - as “impulsive” conduct. But it is quite clear, in the circumstances of providing only one bed for the child, by reference to the offender’s own detail of what happened at Kambah, that, even if it could not be said the offences were planned offences, there must have been a degree of pre-meditation because he had an expectation that every time the child would come to his residence - particularly at Kambah - he would sexually assault her without interference.
I find it a bit difficult to understand why he should be assessed by the reporter for Community Corrections as being at a “medium to low risk of general reoffending”. If that is an expression that he is at medium to low risk of offending in other circumstances against other people that may be a fair assessment. However, it must be fairly said in the history of this matter that he is a person in whose company the victim was at risk. But it is very unlikely that she will be again in is company for many years to come, even after he completes his sentence.
Another aspect of the report that I found either troubling, or alternatively mystifying, is that the Service that assessed his primary risk factors to be his alcohol and drug use, the violent nature of his offending behaviours, which I understand, but also “mental health concerns” and his “anti-social friends and associates”. As I said, mental health concerns do not arise for consideration. Nor have I been told in submission that I should take into account any mental health matter. This aspect of “anti-social friends and associates” does not arise from the evidence. Obviously there is something that has been provided by way of information to the authorities, something within their possession, that reflects upon that matter for it to be included in the report.
That having been said, I cannot draw any adverse inference against the offender because of that reference. I am prepared to accept that, so far as it goes in the absence of independent evidence, the report is a reasonably favourable one to the extent that it can be in light of the objective seriousness of this offending. I have already referred to the Victim Impact Statements, and I am required to have regard to them in the way in which that matter is discussed in Part 4.3 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act), the relevant provisions are to be found at ss 47 to 53.
The victim's statement is a short one and very restrained – with respect – and I am not criticising of that. The mother’s Victim Impact Statement is more detailed as one might expect because she has a great deal of knowledge of contextual matters. But, again, in my view, it is a very restrained document and she speaks very favourably of the offender, at least, from the perspective she had at the time up until the revelations that led ultimately to the daughter being restrained from seeing the offender again. The effect upon the victim, which does not quite emerge from the victim’s own statement, is as significant as the mother makes clear. She has comments to make about the extent of the offender’s contrition which indicates, at least, that as far as she is concerned the offender is not as contrite as he would have people believe.
As I said, I am prepared to accept his expressions of contrition after the event as genuine, but their weight in this matter is not significant. There are degrees of contrition, as we all know, and I discussed this with learned counsel. The man, or woman, who kills a child in a motor vehicle accident and immediately runs to get aid and expresses guilt and responsibility on the spot can be easily distinguished, for example, from this offender whose opportunity to express contrition, for example, by restraining himself, never arose when he had full realisation of the wrongfulness of his conduct over a long period of time.
Before I turn to the submissions of the parties, which have been most helpful, there are just some particular authorities I should refer to which enable me to assess the material that is being put. Naturally, as I have said earlier, the maximum penalties are to be regarded as a yardstick for the measurement of the appropriate punishment – this was discussed by the High Court in the decision of Markarian v The Queen [2005] HCA 25; 228 CLR 357. In that particular judgment, at [30]-[31], the majority of the Court pointed out that legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may, in some cases, be a matter of great relevance. And that is clearly the case here, as the Crown has properly pointed out to me. This is a crime of great seriousness and is amongst the most serious offences within the Crimes Act 1900 (ACT) here in the ACT and where it arises in other jurisdictions.
The Court went on to say at [31]:
It follows that careful attention to maximum penalties will almost always be required. First, because the legislature has legislated for them. Secondly, because they invite comparison between the worst possible case and the case before the court at the time and, thirdly, because in that regard they do provide taken on balance with all other relevant factors a yardstick.
In this particular matter, I have been given a large number of supposedly comparative cases and there has been a great deal of discussion as to how the offence should be categorised for its objective seriousness. And, again, I am very appreciative of the careful submissions of learned counsel for the offender and the Crown in this regard.
Before I come to their submissions, and I analyse them, it is important that I refer to another case that was cited by counsel for the offender of Mills v R [2017] NSWCCA 87 (Mills). This was an appeal in relation to the sentence for an offence under New South Wales legislation of similar type to the one with which I am now concerned. I would point out in relation to that matter that the sentence of the learned sentencing Judge at first instance, in the context of a 25-year maximum penalty, providing a starting point of 22 years before any discounts was regarded as excessive. Be that as it may, in the determination of the matter, RA Hulme J pointed out a number of matters that are pertinent to this sentencing exercise. At [50] he said this:
The starting point in the determination of this ground is to recognise that the classification of the objective seriousness of an offence is one for the discretionary evaluation of the primary Judge [citing authority]. It is a matter that requires assessment of a range of factors which may be susceptible to differing views [citing authority]. The assessment of the primary Judge is amenable to review only upon the principles stated in House v The King [1936] HCA 40; 55 CLR 499.
He went on to say in relation to the ground concerning the assessment of the objective seriousness of the offending by the learned Judge at first instance, at [51]:
One of the problems is understanding what a Judge means by a description of where an offence falls within the range of objective seriousness. This is not at all intended to be critical of any Judge, let alone the particular Judge in this case, because it is impossible to identify a precise point. It is not as if there is a numerical scale that can be used.
He also said at [52]-[54]:
The term “worst case category” is more readily understood. If a case said to come within that description it is one that warrants the imposition of the maximum penalty for the offence: The Queen v Kilic [2016] HCA, 48 at [18].
On the other hand, if a case is described as falling within the mid-range, how wide does the particular judicial officer making that assessment regard that part of the range? The same question may arise when the assessment is “above” or “below” mid-range.
Similarly, a description of “high range” is somewhat imprecise. It must be distinguished from “worst case category” as that term is understood. It obviously means above mid-range. The only thing that seems certain is that it is somewhere between mid-range and the worst case.
Now, I pause for a moment to point out as is self-evident to counsel, at least, and myself, coming from NSW, that the “middle range of objective seriousness” is a term that arises specifically in the context of legislation particular to this particular case of Mills. In NSW, there are standard non-parole periods, where the assessment of the middle range of objective seriousness of particular types of offending are very relevant in assessing the appropriate non-parole period. That does not arise in this jurisdiction.
But it is the case, and it is not critical on my part of counsel, that the words mid-range of objective seriousness were used in the course of submissions. I take it by reference to authority, such as this cited for comparison purposes and the like. Of course, I am prepared to use the expression “mid-range” in the context of the way in which it was used by counsel for the offender, particularly, because his particular submissions need to be properly addressed.
I do bear in mind, of course, although R v Way [2004] NSWCCA 131; 60 NSWLR 168 was subsequently set aside in its essential decision by the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120, the observations of Spiegelman CJ, that the middle range of objective seriousness was not a line and was not necessarily a “narrow band”, may still be said to apply where that expression is used.
In the matter of Mills, further, I point out that the observation of Hulme J, at [57] about consideration of matters of aggravation applies in this matter. He said at that paragraph:
However, because a matter of aggravation is not established beyond reasonable doubt it does not follow that a matter of mitigation is established [citing authority]. The fact that it is possible to identify factors which are absent which if at present would have made the offence more objectively serious does not make the offence less serious than it is.
As Grove J put it succinctly in Saddler v The Queen [2009] NSWCCA 83; 194 A Crim R 452 at [3]:
In plain language, it does not make what was done by the offender less serious because it could have been worse.
That is precisely the situation here. The matter, as I pointed out in the course of submission, by reference even to higher authority than Grove J, a very wise and considered judge, was put into perspective by the High Court of Australia in the decision of Veen v The Queen (No 2) (1988) 164 CLR 465 (Veen) by the majority. The majority, referring to a submission made by learned Senior Counsel for the appellant, pointed out that when one talks about a “worst case”, one can always point to some feature, absent in the case at bar, that might seek to distinguish the case at bar from what might be described as “the worst case”.
That having been said, the Crown does not submit that this is a worst case, but says that it is very close to it. Learned counsel for the offender has submitted that it is above the “middle range of objective seriousness”, but “well below” the worst case.
Coming back to the submissions thus in relation to this matter, and dealing with the matter by reference to the detailed written submissions of counsel for the offender, for example, he tries to categorise the objective seriousness in the manner that I have described, but seeks to make the point that there is an absence of factors which might aggravate the offending with which I am concerned.
He acknowledges the duration of the offending; the age of the victim at various times; the offending starting when the child was a very young age; the difference in age; the nature of the relationship between the victim and the offender; and he accepts that the inherent or implicit or even explicit abuse of trust by a parent or a particular person in a special care relationship with a victim, will vary in intensity, and I have said that is so. But one might have thought that the responsibility of a parent to a child was more significant than the responsibility of a part-time carer or a relative other than a person of direct relationship such as this offender to the victim.
He does submit to me that the wide range of circumstances that create a “special care” relationship represents, where it occurs, a breach of trust. He spoke about the nature of the offending. He sought to categorise from the Statement of Facts twelve individual occasions as they are described in the facts, but it should be understood from the facts, as I have outlined them, that the individual occasions arising from the memory of the victim have to be seen in the context of an admitted course of conduct, and confession made by the offender of multiple acts of, for a start, penile penetration far in excess of twelve individual occasions of sexual misconduct of various types identified in the facts.
The submission is made that there was an absence of features in this matter of physical violence or direct physical violence; an absence of pregnancy; an absence of sexually transmitted infection. Pausing just for a moment in relation to those matters, the absence of violence is, to my mind, of no real significance. Yes, it could be said that a violent act towards the child could aggravate the character of the offending. But the truth of the matter is violence was largely not required. The implicit threat that arose out of the character of the relationship was always there. There was one such occasion I have identified from the facts themselves of the offender becoming angry with the victim and attempting anal penetration. Whether he did that out of anger or not is another issue. But the truth of the matter is that violence was not something that was required for the offender to obtain his will and, in any event, the character of the relationship reflected an imbalance of power between the two which was very significant indeed.
There was a risk of pregnancy, in my view, in the character of some of the penile penetration occurring without a condom, as the facts reveal. Sexually transmitted infection was possible from unprotected sex through fellatio and penile penetration.
Counsel made submissions to me by reference to authority about the absence of any “devious subterfuge” to lure the victim into sexual offending. But the problem with that submission is, this is a case where the conduct towards the victim began so early in the piece, and the victim clearly became so desensitised to the character of the offending, that there was no need for the offender, either by violence or subterfuge, to lure the child into committing sexual acts upon him, or allowing him to perform sexual acts upon the victim. The cases cited by learned counsel in this regard do not provide me with much assistance in this respect. It is of little comfort to the victim that the offender did not play a game with her before he sexually violated her in the manner that he did.
In relation to the issue identified by counsel for the offender of dissuasion from reporting, again, whilst there were not any specific threats made, bearing in mind the early age at which this conduct started, bearing in mind at all times when it occurred the offender and the victim were alone, and it would seem to me, with respect, the victim had little opportunity to make immediate complaint to anybody, if anybody was present in the premises at the relevant time. The offender had at a very early stage, as the facts reveal, told the child when she was six or seven that it was their “secret”, and at a very early stage of the offending told the victim that if she told anybody he would “go to jail”.
Whilst it is said that these types of comments are commonplace in sexual offences against children, it comes back to the point that I made that the absence of some aggravating factor, as identified by counsel for the offender as was discussed in Mills, such as a specific threat not to tell anybody, is of little moment in assessing the objective gravity of the offending.
Of course, we have the situation here, in the context of discussing this general topic, that the victim in 2019 was confronted by the mother about suspicions of the offender’s conduct, but in the offender's presence, denied that such conduct had occurred. As I said earlier, this would be expected in those circumstances. Having been put on notice that the mother had been brought to consider the issue, the offender still continued to sexually assault the child for another 18 months after that event.
The counsel for the offender speaks of the absence of belittling or humiliation. With the greatest of respect to that submission, the mere fact of committing sexual acts upon a child as young as 6 is an act of imposition of humiliation and belittling, even if the victim herself does not appreciate that is occurring. The enormity of what was happening to her over a period of time is reflected to the extent that she was desensitised, as the facts revealed by the time the offender was living in Kambah.
In relation to this aspect of the matter, if I might just turn to the Crown’s submissions. The Crown points to various features of the matter that go to the assessment of the objective facts and the seriousness of the conduct and she supplemented her written submissions. As did counsel for the offender with oral submissions which dwelt upon the same topics.
She spoke of the duration of the relationship, the character of the acts committed upon the victim as I have described them and the extent of the grooming. The location of the offending – usually in secret out of the way of the mother. This is not a case where the offender was living with the mother at the relevant time but the mother was watching television in the lounge room and the offender sneaked off to a room where the victim was. There was, in those circumstances, some opportunity for interruption or some opportunity perhaps for the victim to make a contemporaneous complaint. All the offending occurred behind closed doors in circumstances where the mother was cut off from any suspicion of what was occurring.
The disparity of ages is referred to by the Crown, which is a correct matter to identify. The various ages of the victim and the very young age which I have pointed out. The risk of pregnancy and transmitted disease. The power dynamic between the parties. At the end of the day, however, when one analyses all the facts in relation to this, the frequency of assaults or sexual acts, the period of time – the extensive period of time over which they occurred – the very young age at which it started, the escalation of the conduct of the offender. The realisation by the offender of wrongdoing and yet continued escalation all reflect upon the objective seriousness of the conduct of the offender.
In relation to the assessment of the objective seriousness of the offending I note, as I may have mentioned earlier, that the Crown’s concession is that the offending is not in the worst category. But it is, in the Crown’s submission, not far below that categorisation and with that assessment I agree.
As I said earlier, counsel for the offender, submitted that it was above the “mid-range” but “well below” “the worst category” of offending. I pointed out in the course of submission and this judgement by reference to Mills that the absence of factors such as described by the offender’s counsel, and I have already identified them, did not operate as mitigating factors and in fact did not necessarily prevent a matter being categorised as the most serious offence of its time for the reasons discussed in Mills and also discussed in Veen.
In any event, in the facts of this matter allowing for consideration of all the features that I have identified, there is little comfort to be drawn in respect of some of the matters identified by counsel for the offender, such as the risk of sexually transmitted disease, the risk of pregnancy and the like.
Even if one has to give full allowance to these aspects of the matter as identified by counsel for the offender, when one has regard, to the very young age of the victim at which the conduct commenced and notes the first penile penetration of the victim’s vagina occurred when she was eight years of age - approximately two years after sexual misconduct towards her had started - and one has regard to the bare minimum number of acts of a sexual character committed against the victim, and the special character of the relationship between the offender and the victim thus placing her in his “special care”, one can see that this is a very serious case indeed.
It was sustained and to a considerable extent, in my view, premeditated. That is, to the extent that he clearly took every opportunity to sexually assault the victim that was presented to him, such as occurred at Kambah. His conduct towards the victim was entirely self-gratifying.
I would categorise the seriousness of the offending as below the worst category of offending of this type but just below that category and not well below that category of offending as identified by counsel for the offender.
As Hulme J correctly pointed out, the assessment of these matters is not capable of mathematical precision. But it is incumbent upon the court to endeavour to categorise the offending in the context of using the maximum penalty as a yardstick so that the commencement of the appropriate sentence, before any particular discount can be provided, can be understood. Of course the commencement point of the sentence includes not only consideration, as I have pointed out of the objective seriousness of the offending, but a consideration of the relevant mitigating factors other than those requiring an objective calculated discount.
In this regard I have been assisted to some extent by quite a large number of comparative cases, both in the ACT and in other jurisdictions, some jurisdictions where a commensurate offence carries a maximum penalty of life imprisonment.
I do not propose to read on to the record the particular cases in other jurisdictions but some of the decisions from this jurisdiction that have been referred to, although some of them are still subject to appeal, including a decision of R v Ware (a pseudonym) [2021] ACTSC 180 which is yet to be resolved; a decision of R v Kellan (a pseudonym) [2021] ACTSC 314; the decision of R v Page [2021] ACTSC 207; the decision of R v Whittaker [2021] ACTSC 189 – a judgment of the learned Chief Justice; the decision of R v KC [2020] ACTSC 94; a decision of R v Michalopoulos [2020] ACTSC 27; and, a decision I referred to in another context earlier this week, R v Sirl (No 4) [2020] ACTSC 23.
Those authorities provide some guidance as to an appropriate penalty. But every case has to be decided on its own facts and it might be thought, in reality, that the objective facts of the matter I am dealing with now are more serious than any of the identifiable supposedly comparative cases in this jurisdiction at least. But I have taken those other cases into account.
The comparison with other cases needs to bear in mind factors which vary of course from case to case – the respective ages of the victims, the period of time over which the offending occurred, the character of the conduct of the offender and the frequency of it. When one analyses the facts of this matter by reference to the facts of the other matters, one can see both as to the character of the conduct, the frequency of it and the period of time over which it occurred, this matter is more serious.
With regard to the subjective case of the offender I have noted the evidence available to me such as it is. I am prepared to give the offender some benefit in relation to the expression of contrition and his cooperation with the authorities as a “generally mitigating” matter. It has been urged upon me that I should give him a discrete discount, if that be the correct expression, pursuant to s 36 of the Sentencing Act. I have considered that matter very closely, and I do not believe in the circumstances it is appropriate to do that.
Amongst other reasons because notwithstanding the fact that the confession of the offender involved some disclosure in detail of the conduct that he is to be sentenced for, the general character of the offending is clearly known from the material that was available to the authorities before the offender was interviewed. Even though he has confessed to a frequency of conduct that may not have been fully understood by the authorities before he was interviewed, that cooperation is one that goes to the assessment of the facts rather than the success of any prosecution of the offender.
I note in relation to s 36 of the Sentencing Act that whilst a person who provides assistance in the investigation of an offence or a particular proceeding may receive a lesser penalty, one is required to have regard of the effect of the offence on the victim and the victim's family, the significance and usefulness of the assistance to law enforcement agencies, of course its truthfulness, and a number of other matter set out in s 36(3). This is not a case where there is a risk to the offender of retribution from anybody by reason of his assistance. It needs to be borne in mind, as s 36(4) provides, “a lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence”.
In that context it was submitted by learned counsel of the offender that even if the discount, if it might be called that, could be applied it would not be applied to the head sentence, it could be applied to the non-parole period as the provision specifically makes clear. As I said, I am prepared to take into account that the matter is one of mitigation, but I do not believe that there is a need to give a discreet discount to the non-parole period. The non-parole period I have fixed provides sufficient time for the offender to adjust to community living on his release, and reflects a recognition of the subjective circumstances of the offender favourable to him, such as the absence of other convictions of a similar character, such as recognition of his industry and his private life, recognition of the difficulties he has had in his life in relation to his health, the fact that the offender - as I have said - has expressed contrition in the manner that has been discussed.
I ultimately accept the submissions put by the Crown as to the value to be placed for sentencing purposes upon the cooperation of the offender with the authorities. With regard to the assessment or the appropriate penalty in relation to this matter by reference to the yardstick provided by the maximum penalty I bear in mind of course what was said about the character of this type of offending in the decision of Director of Public Prosecutions v DDJ [2009] VSCA 115; 22 VR 444 where the court observed at [32]:
It is the persistence of the sexual relationship over time which is at the heart of the offence. The repetition of the sexual abuse is likely to heighten the victim’s fear that the abuse will occur again, and to increase the damage which he or she suffers. Equally, the repetition is likely to make the offender progressively more aware of the effect the abuse is having on the victim. In each of these respects, culpability is heightened.
Of course their Honours pointed out that the extend of culpability may not necessarily vary in direct proportion to the length of the relationship. But as I said this is a matter where the relationship of a sexual character was of a very long period indeed.
I have had regard to s 7 of the Sentencing Act, clearly the purposes of sentencing as described in that section are all relevant here. In my view, there is a need to ensure that the offender is adequately punished, there is a need to ensure that the offender and others be prevented from committing the same or similar offences, there is a strong need for both general and personal deterrence in this sentencing exercise, there is a need to protect the community from the offender to the extent that his conduct reveals him a danger - particularly to the victim. There is a need to promote his rehabilitation and that is reflected in the nature of the non-parole period that I have concluded. I have to make him accountable for his actions, denounce his conduct and recognise the harm done to the victim, the primary victim, and his former partner and those that hold them in deep affection. I am required, amongst other matters as the Crown has pointed out, to reflect upon the nature and character of the conduct, the fact that it was part of a course of conduct which is the very essence of the charge, the degree of responsibility of the offender. The breach of trust which I have discussed, is clearly part of the element of special care. The personal circumstances of the victim as known to the court, the effect on the victim.
I am required to have regard to the cultural background, character antecedence, age, physical and mental condition of the offender and I am also required to - as I pointed out - have regard to the sentencing practices that exist at the present time. As with other legislation in other jurisdictions, it is now the case when sentencing in relation to conduct over a period of time that might be of some age, that the court is to have regard to current sentencing practice, I have endeavoured to do that. I am required also to have regard to the issue of the purposes and reasons for the offending. I note in that regard the understanding the offender had of the wrongfulness of his conduct at an early stage, as his own counsel identified in his helpful submissions to me, and is reflected well in the comments the offender made to his friend before he was arrested, and to the investigating police.
On reflection of s 33(1)(w) of the Sentencing Act, by reference to the comments the offender made that I quoted from the record of interview, he had a deluded belief that the victim in some way either invited him to sexually assault her or enjoyed the prospect of that occurring. This is relevant to the assessment of his remorse.
These sentencing exercises of course are difficult ones. But it is clear as the Crown has correctly pointed out this is a most serious case, and a very substantial penalty must be imposed upon the offender to reflect the weight to be given to adequate punishment, general deterrence, and personal deterrence. I have had regard to s 10 of the Sentencing Act. Of course no other penalty other than imprisonment can be imposed in this particular matter.
Orders
I make the following orders:
(a)I record a conviction for the offence (CAN9536/2021).
(b)In respect of the offence, the offender is sentenced to 12 years imprisonment, reduced from 16 years imprisonment, commencing on 12 July 2021 and ending on 11 July 2033.
(c)The non-parole period of 7 years and 6 months imprisonment commences on 12 July 2021 and expires on 11 January 2029.
| I certify that the preceding one hundred and one [101] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Norrish Associate: Rhiannon McGlinn Date: 23 February 2022 |
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