R v B J N

[2007] NSWDC 49

CITATION:	R v B J N [2007] NSWDC 49
JUDGMENT DATE:	8 February 2007
EX TEMPORE JUDGMENT DATE:	30 September 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Convicted indecent assault - Sentenced Non Parole Period 2years 3months from 8/2/07 to 7/5/09 - Special Circumstances found - Balance of Term 2years 8months 2weeks to expire 21/10/10. [paragraphs 93 - 96].
CATCHWORDS:	Criminal Law - Sentencing - Aggravated Indecent Assault - victim 6 year old daughter - vulnerable victim - medical - behavioural - mental health issues - complainant in institutional care at time of offence - ejuculating upon complainant - breach of trust - poor insight into offending conduct - limited contrition - victim impact statement - purpose of - offender aged 57 - early history of sexual abuse -
LEGISLATION CITED:	Crimes Act 1900
CASES CITED:	R v Galdue [1999] 1SCR 688 at [80] R v Cuthbert (1967) 86 N (NSW) Pt 1 272 R v Rushby [1977] 1 NSWLR 594 R v Hayes [1984] 1 NSWLR 740 R v Zappallo NSWCCA 5 November 1991 pp 2-3
PARTIES:	Regina B J N
FILE NUMBER(S):	04/21/1114
COUNSEL:	K. Alder - Crown Prosecutor T Evers - Accused
SOLICITORS:

JUDGMENT
1 HIS HONOUR: A child under the age of seven years is rightly regarded as being completely dependent upon her parents for almost everything. Such a young child looks to the parents for the necessities of life, including a healthy love, protection from harm and sound moral values.

2 R-- whose name is not to be published, was entitled to be regarded by her father as more dependent and needy than most. She was handicapped by ADHD, Rhett Syndrome, Autism, Schizophrenia and a mild developmental disability. She had been placed under the control of the Department of Community Services because of her challenging behaviours. In April 2003 she was in respite care at Rainbow House, a designated controlled premises run by the Department of Community Services.

3 B J N, father of R--, was to have a day out with his daughter on 18 September 2003. In the course of four hours outing, he took his daughter to his home, told her to follow him to the bedroom and, once there, to lie on the bed where he assaulted her and, in the course of that assault, committed an act of indecency upon her. Today he is to be held accountable for this serious breach of trust in conducting himself in a criminal way.

4 As a sentencing judge, it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentence for this offence, before this Court, committed by this offender harming this young victim in this community (see R v Gladue [1999] 1SCR 688 at [80].

5 My initial task requires an assessment of the objective criminality of the offence before the Court. I will also need to have regard to matters personal to the offender - known as subjective matters. The starting point for such assessments requires me to make findings of fact from the evidence before the Court relating to the offence and to the offender. An unusual feature of this case is the delay between offending and sentencing. That delay which causes an impact will need to be assessed and what, if any, its impact on the sentence.

6 The offender’s rehabilitation prospects will have to be assessed, even if looking though a glass darkly. The question of whether a standard non-parole period is attracted by this offence and, if so, whether it applies in this particular case also needs to be assessed.

7 There are other technical questions relating to deterrence, discounts, whether special circumstances are to be found and, finally, assuming parole is granted, the length of the parole period or the length of the non-parole period. What weight needs to be given to all of these matters against the imperative that all sentencing should have, as its primary focus, the protection of the community will also need to be determined (see Cuthbert (1967) 86 N (NSW) Pt 1 272, Rushby [1977] 1 NSWLR 594 & Hayes [1984] 1 NSWLR 740).

Facts:
8 At about 10.30am B J N collected his daughter from Rainbow Lodge. He was with his adult stepson for three or perhaps it may have been four hours. They attended various places. At some point the stepson was dropped off. Then B J N and his young child made their way to the home in Quenulla(?) Road, Toongabbie.

9 Shortly after arrival, the offender told his daughter to follow him to the bedroom. She was then told to lie on the bed, then to remove her clothing. She six year old took off her tracksuit pants and undies and, it would seem, also a singlet. The offender removed his own pants and underpants. The so-called agreed facts state:

“His penis was exposed. The offender then touched R--’s genital area with his erect penis. After a period of time the offender ejaculated onto R--’s groin”.

10 This account, however, does not appear to be agreed although the defence is content that the offender should be sentenced on these facts. However, those facts are sketchy and do not entirely fit with other evidence.

11 On 16 January 2006, the offender’s account to Indera Devi who was preparing a presentence report for the Court was:

“[B J N] maintains his innocence to the offence. However he stated that on advice he pleaded guilty to a lesser charge. He also stated that his daughter, who is the victim, must have witnessed him in an intimate relationship with his ex-partner when they lived together or with a ‘sex worker’ whom he often calls upon. The offender stated ‘I think she must imagined’”.

12 On 9 April 2006 he told Gabriel Massoud, who was preparing an updated presentence report for a court appearance on 10 April:

“...that he left out bits and pieces and explained that he felt embarrassed talking to a female staff member about his offence.

He stated that prior to the commission of the offence, he engaged in phone sex with an eighteen year old woman. This conversation he said had sent his emotions to an ‘uncontrollable state’ and as such he failed to acknowledge the kinship with his daughter. The offender stated that it was during this period that he masturbated in the presence of his daughter while she lay on the bed with her pants and underwear taken off and left on the floor. [B J N] claimed to have proceeded close to his daughter’s direction (sic) and at the point of feeling a ‘sexual explosion’ he touched his daughter’s vagina ‘but only on the top of the vagina’.

Furthermore, [B J N] conceded that in the light of his high sexual arousal he could not confirm or deny that he actually ‘did more than just touch the surface’. However, he added, ‘It could be possible’”.

13 In June 2006 the account given to John Machlin preparing a psychological assessment for the defence, was

“In the first interview [B J N] admitted only to having asked his daughter to remove her underpants because she had complained of soreness in the genital area. He said the semen that was later identified on her underpants must have come into contact with his inseminated clothes on the floor. Therefore, in the earlier assessment he was denying any sexual contact with the victim.

In the second interview [B J N] admitted that he did, indeed, have sexual contact with the victim. He acknowledged that, after the victim’s underpants were removed, he touched her genitals by means of rubbing them (without penetration). He acknowledged that this contact was sexual in nature.

[B J N] was intent on pointing out that he did not ejaculate directly into the victim’s groin as was described in the facts. He did, however, report that he masturbated and ejaculated in the victim’s presence. The distinction was important to him because ejaculating into the victim’s groin sounded to him as if it meant sexual intercourse. He related also that he had initially been aroused by a sexually explicit phone conversation with a woman he knew. He described the touching of his daughter as having compounded that arousal”.

14 In November of 2006 an account was given to Catherine Sahn, a forensic psychologist working with the forensic psychology service within the Department of Corrective Services.

”As described in the agreed facts on September 10 2003, [B J N], B A [stepson,] with his friend had picked up [B J N's] daughter, R - -, from a respite care facility for a day visit. Later in the day [B J N] took her into his bedroom where she was asked to lay on the bed and her clothing was removed. He then exposed his penis and masturbated over the child touching her vagina with his penis then ejaculating into her groin. The incident was brought to light when the respite carer inquired about the child’s day and noticed that her underwear was inside out. The child then disclosed the incident...

[B J N] has denied the sexual offence charges and has provided an explanation for the incident. He described that earlier in the day he had taken his daughter to her grandmother’s where the child complained ‘of a sore bum’ and it was discussed that ‘she was wet due to not wiping herself’. [B J N] went on to describe that later in the day after dropping B A and his friend off, that he took the child back to his home. He then took the child into the bedroom and described that he had removed her clothing and lie on the bed in order for the ‘sun to dry her off’. He described that he then received a phone call from his girlfriend Tracey who engaged in phone sex with him and he proceeded to masturbate and ‘I forgot she was there’. Approximately fifteen minutes later [B J N] described walking around the bed to find something to ejaculate into, then walked to the child while still on the phone and masturbating to touch his daughter on the vagina ‘to see if she was still wet’. He then ejaculated into a singlet ‘then I used that to wipe her off because she was still wet’”.

15 Exhibited in the crown case is a certificate of analysis from the Analytical Laboratories. Among material for the Analytical Laboratories to analyse, were a singlet and underpants belonging, as I understand it, to the complainant.

16 The singlet was not examined, from which I infer that there was nothing on the singlet attracting the attention of the analytical laboratory experts. However, the underpants were. Semen with a DNA profile consistent with the offender’s DNA profile was found on the underpants. A diagram of the location of the semen on the underpants forms part of the tender. The pattern and distribution of the discarded semen is of significance notwithstanding a caveat expressed in the report that there may be transfer as a result of the folding of garments.

17 One of the respite workers at Rainbow House had noticed the complainant’s underpants were on inside out. The child had complained of sexual abuse to one of the respite workers at Rainbow Lodge. She noticed the complainant’s underpants were inside out. The underpants were seized and thereafter made their way to the Division of Analytical Laboratories.

18 There are four discrete areas of seminal staining. Significantly, all four areas are on the one surface, namely the front of the underpants. There does not appear to be any seminal staining on the rear. Two areas in particular come to the anterior edges of the underpants - that is, up to the elastic in the legs; one on the left-hand side and the other on the right-hand side. There are four stains, only two can be positively said to be located on areas of the underpants coming in contact with the genital region. An elongated stain on the right-hand side appears to run from the inner aspect of the leg in the vaginal region out and upwards. There is also a fourth stain close to the top of the elastic underpants.

19 The situation of the stains satisfies me that they came onto the garment by means of transfer from the body of the complainant. I am satisfied there is some correlation between the location of the stains on the garment and the source of semen that some of them came into on the body of the complainant.

20 I am satisfied beyond reasonable doubt that the offender did not ejaculat into or wipe himself with a singlet as he told Catherine Sahn. I am satisfied the offender ejaculated onto the body of the complainant in the area of her front, roughly in the region covered by the underpants. I cannot be satisfied he ejaculated into the groin area.

21 I do not accept that the offender lay his daughter on the bed for “the sun to dry her off” and that he subsequently forgot about her. Firstly, the proposition is inherently improbable. Children who soil themselves - or in this case were simply wet as a result of not wiping themselves properly - is not a new phenomenon for parents. In daytime the soiled clothes are removed, the child is cleaned and then, if not put into new clothes, is allowed to run about. That did not happen in this case. If there is a cleanup that is needed to be done, a towel or cloth or something is usually placed between the soiled child and the bed clothes. There is no evidence of that happening.

22 Further, the claim that the underpants were put on her again, they having been soiled or wet, seems highly unlikely because the underpants would also have been soiled or wet. In such a case it is unlikely to the point of unbelievability they would have been re-used without washing or drying. There is no evidence that the underpants were in any way soiled or wet coming out of Rainbow House. For the child to dry herself in the sun suggests she had access to the sun where she lay on the bed. Unlikely as that is in any event, assuming it to be true, curtains would need to be open. In such circumstances, it is unbelievable the offender would wander around his bedroom naked - at least from the waist down - masturbating with a naked child on the bed visible to anyone outside who may be between the bedroom and the sun.

23 Whether the window faced the back, side or front of the house, the dictates of personal privacy are likely to have demanded that he be screened from outside view.

24 Moreover, I am satisfied he did not forget the complainant. He told Gabriel Mascot he touched his daughter but only on the top of the vagina. The point at which he touched the daughter is also difficult to discern from the various accounts. One account appears to have him touching the daughter twice; at the beginning and at the end. Other accounts appear to have him touching only at the time of ejaculation. In such circumstances, it is highly unlikely he would have forgotten his daughter.

25 Further, he said that he became aroused. He could not confirm or deny that he did not touch more than the surface. I reject the offender’s claim that he touched her to see if she was still wet. What follows is that I am satisfied beyond reasonable doubt that the six-year old complainant was incorporated into the offender’s sexual pleasure. I am satisfied there was no soiling or wetting of the complainant prior to her being put on the bed. There is no evidence from anyone at Rainbow House supporting the accused’s account of the complainant complaining of a “sore bum so that she needed to be dried off”. Had the complainant’s bottom been sore, I am satisfied there would have been evidence led of it, particularly in a case where allegations of sexual misconduct were being made.

26 That being so, I am satisfied the complainant was asked to strip as a factor in the sexual and anticipated sexual pleasure of the offender.

27 The offender claimed he ejaculated into a singlet and then used that to wipe the complainant because she was still wet. On his account, he had her take her clothes off because she was complaining of a sore bottom. I have dealt with that. But if her bottom was sore with irritation it makes no sense for him to be touching the vagina to see if she is still wet, particularly after fifteen minutes on the bed. Had she been wet, he surely would have dried her before placing her on the bed clothes. In which case, after fifteen minute, it is unlikely she would still need to be checked as to her wetness.

28 Again, I remark I am satisfied that the offender ejaculated onto the complainant, did not use a singlet to ejaculate into and the complainant was placed on the bed for no purpose other than a sexual purpose.

29 The offender’s account is that he was sexually aroused as a consequence of a conversation with a female named Terry. He reported that he had been “very sexually active with Terry that night”. What is meant by that is unclear. The episode with which I am dealing occurred between 11am and 2pm. It may be he meant the prior night. I am not confident, however, that that is what he did mean. He described the nature of some of the calls to him from Terry as being highly sexual and “She would tell me what she would do to me”.

30 I am not satisfied on the balance of probabilities that there was any phone call to the offender from the person Terry, (in fairness, I should say I am undecided) in which he incorporated the complainant into any sexual fantasy involving Terry, whether with or without her (Terry's) knowledge. If such were the case it would seem to me a seriously aggravating feature. I speculate that the phone conversation has been made up by Bryan New to create a sexual fantasy between himself and an adult in the belief that such a fantasy would be more understandable and more publicly acceptable. As I say, it is only speculation. I cannot say one way or the other that the sexual fantasy phone call occurred. I note that the first mention by the offender of the phone call from the eighteen-year old woman was made on 9 April 2006 - that is three years after the offence. I note also that he “failed to acknowledge the kinship with his daughter”. I am left wondering to whom he failed to acknowledge that kinship.

31 On the account the offender now gives, there is a strong inference his daughter is on the bed naked before he is involved in the phone call. I have held that she was naked for his sexual pleasure. Again if there was a phone call, other issues touching his criminality would arise. While the Court cannot act on these matters about which I am undecided, I ventilate them because they do raise issues as to the offender’s insight into his offending conduct and his capacity to be frank with the therapist to advance his rehabilitation.

32 It would be obvious from what I have just said that I have not taken the claimed phone presence of Terry as an aggravating or as a mitigating factor.

Objective criminality:

33 From the facts as he finds them to be, the sentencing judge is required to assess the objective criminality of the offence as an essential step in assessing the seriousness of the criminal behaviour of the offender. That is done by comparing, objectively, the cirminality exhibited in this case with criminality of offences of a similar kind. It is in that way that the seriousness of the criminality of this offence can be evaluated. The objective criminality has an important impact upon the overall sentening outcome.

34 The sections of the Crimes Act 1900, such as s 61M(2) which creates the offence I am dealing with, are about the protection of young children from a range of experiences while their physical, emotional and psychosexual development is patently immature and the power imbalance between the child and adult grossly favours the adult.

35 The fact that consent of the victim is no defence to an offence under this section highlights the purpose of the section in protecting the young. Lee J, in describing the jurisprudential philosophy behind sections such as 61M, said the following:

“One begins with the proposition that our community views with great concern the sexual molestation of children by adults. And that has been acknowledged by the legislature in providing for greater penalties when the victim is under [10]. That acknowledgement has been in our legislation over a long period. Little children are entitled to grow up free from defilement by sexual predators and free from risk of psychological upset, confusion and difficulties in later life caused by such conduct”.

36 His Honour also made this observation highlighting the law’s focus upon the power imbalance between adult males and young children:

“The law has always sought to protect young children against sexual predators particularly adult men. The law recognises, of course, as young girls grow up there is an inevitability of contact with sexual overtones and more with members of the opposite sex of the same age or a little older. And that is simply one of the facts of life. But when it comes to a case of an adult male, past middle-age, tampering with girls of twelve and thirteen years of age, the crimes become crimes of enormity.” ( R v Zappallo NSWCCA 5 November 1991 pp2-3.

37 In this case, of course, the child was half that age.

38 I am dealing with a one-off offence of an assault accompanied by an act of indecency by a father upon his own daughter. The assault and the act of indecency is aggravated by virtue of the child’s age, she was six years old. That feature of aggravation is part of the charge against him, therefore it is encompassed in the maximum penalty.

39 There is, however, within that element of aggravation, an increase seriousness of the criminality as the age of the child moves downwards from ten years. In this case the child was but six. The breach of trust by the offender is an aggravating feature, not only because he has offended against his natural daughter, but also because of her health and mental health deficits. In that sense, he has taken ruthless advantage of her vulnerability for his own sexual gratification.

40 That sexual gratification was manifest by seeing her naked on his bed and by touching her vagina, at least for the climax of his masturbation. I am satisfied his ejaculation upon her was deliberate. There is no evidence the sexual exploitation was planned. However, once he took her to his bedroom, he well knew what criminal conduct he was contemplating and thereafter pursued it callously without regard to his own daughter’s welfare.

41 The Crown has sought to argue this offence is at the higher level of offences within s 61M(2). The defence placed the level of offending at a mid-point or a mid-range of seriousness.

42 There is no evidence of any pain inflicted or any threats being made. There is no evidence of any actual physical harm coming to the child. There is no evidence that suggests she was aware of the enormity of what was happening and was expressing refusal or fear.

43 There is, however, evidence of a monumental abuse of power that he had over his daughter and the breach of trust earlier referred to.

44 The consequences of the offence to his daughter are more difficult to determine. She was already plagued by health issues and behavioural issues. She was already separated from her mother, father and siblings. However, the separation, it seems, has now become more formalised. What impact that separation is having, what progression and regression of her behavioural issues would have occurred without this criminal conduct, is moot.

45 The victim impact statement says there has been a deterioration in her conduct. That was likely, even if only as a result of the contagion flowing from the abhorrence of her carers at the way her father has treated her. That is, there is a reactive impact to the offender’s conduct gleaned, in part, from what I suspect the carers feel no matter how they try to hide it. It is the degree of harm that is difficult for me to determine.

46 There is no suggestion this offender became disinhibited or lacked judgment as a consequence of ingesting drugs or alcohol. In that sense, his conduct, while no doubt driven by strong desire, was still, nonetheless, calculated.

47 The crown points out offences such as inappropriate touching outside the clothing would qualify towards the lower range of criminality. On the other hand, says the defence, this is not a representative count (although I doubt whether a representative count is one that was contemplated by the section), nor is it an offence at the end of a long period of similar offending or a day of multiple offences to the complainant within the specific occurrence.

48 The mid-range is not a point but is, in fact, a range of seriousness. So understood, I am satisfied this offence falls within a mid range on its objective features.

Victim Impact Statement:

49 I turn now to the victim impact statement: I have received a victim impact statement from Bernadette Keegan, a psychologist. The victim impact statement is not sworn evidence and has not been subject to cross-examination. The victim impact statement may, if I accept it as reliable, provide hearsay unsworn evidence as to facts of the offence and as to the effect of those offences upon the victim.

50 The function of statements such as this one, is firstly to give the victims an opportunity of being heard in the sentence proceedings by publicly identifying the impact of the trauma visited on them by the actions of an offender.

51 Secondly, it enables the sentencing proceedings to assist victims as they move towards some closure of grief, resentment and brooding arising from the criminal conduct of an offender, although in this case I must say it is less likely to do so because of the limitations of the victim, including her age and intellectual issues.

52 Thirdly, the victim impact statement contributes to an offender, at least, hearing at first hand and perhaps gaining an insight into, the impact his offending conduct had upon his victim.

53 Finally, the victim impact statement ensures that a Court has a continuing consciousness of the impact violent crime has on those ordinary men and women who are its victims. Let there be no doubt that sexual assaults such as this are considered by the Court as violent offences. As such, victim impact statements play a very important part in the administration of criminal justice.

54 In this statement the relevant portions of it, so far as the Court is concerned, are these:

“The impact of the sexual assault on R-- has been all-encompassing. It has affected her behaviour. She has lost her mother, father and siblings, a stable home et cetera.

She has recently gone into foster care as a result of the loss of her family.

R--’s past, present and future have been affected as a result of the sexual assault. When R-- was sexually assaulted and removed from the home, it was hoped that she would later return to her mother and siblings. However, this did not eventuate”.

55 I have earlier referred to the difficulties in accurately assessing the impact of this particular offence upon the complainant in her complex case of medical, behavioural and psychological issues. It is for that reason I have edited substantially the victim impact statement tendered by the crown. I still retain some reservation as to whether the loss of the mother and siblings is directly attributable to the sexual assault, but have included it as a claimed impact upon the basis that I understand the argument no doubt advanced by the psychologist that it is a direct impact.

Subjective Matters:

56 I turn now to the subjective factors; I am both entitled and required to do that. Not only am I sentencing for the criminal offence, but I am also sentencing this offender for it.

57 Each offender coming before the Court varies from other offenders who stand, or who have stood for sentence. Circumstances personal to the offender may offer to the Court some explanation and insight into the commission of this offence by this offender or some reason why a more, or less, sentencing outcome is appropriate.

Family Dynamics and Background

58 B J N is a fifty-seven year old single man. His father died of a heart attack in the offender’s mid-teenage years. He was the second of four boys. The father appears to have been a strict disciplinarian. At fifteen B J N was place with a foster family. He claims to have been regularly sexually abused by the foster father. At the time he lost contact with other members of his family. He left the foster home aged eighteen, lived an itinerant lifestyle. At somewhere between nineteen to twenty he was incarcerated, as I understand it, in Queensland. Whilst in custody he was again sexually assaulted.

59 His first relationship occurred shortly after release from prison. There were five children from this relationship, one of whom had cerebral palsy. His wife died of cancer, the oldest son had drug problems and involvement in the criminal justice system. These children were ultimately taken into the care of DOCS. B J N has lost contact with these children, although in June of last year he was saying that he was in contact with one son from this family by phone.

60 In the 1980s B J N found a second long-term relationship. This partner was already pregnant when the relationship formed. The child born carried the offender’s name. They are still in contact. Indeed, B A was with the offender on the day of the offence. In February of 2006, B J N was living with his stepson.

61 Subsequently, three other children, including the complainant, were born into this union. His partner and the remaining two children have apparently returned to Melbourne and the offender claims to have lost contact with them.

62 The offender’s mother is aged seventy-nine or eighty. It would seem that he has renewed, since the time of his foster caring, contact with her. In February of 2006, she is described as living in a nursing home. In June of 2006, she is described as living with the offender’s two brothers in Kurrajong. I have assumed that the elderly woman in the back of the Court on the last two occasions is his mother.

Education skills and employment:

63 B J N lasted at school until the age of fourteen and a half. He was an average student. His early working career was as an unskilled labourer. He worked in the timber industry for ten years, then became a courier driver for four years. At the time of the offence he was working as a security guard. His licence was revoked. He claims it was because of this charge. There is reason to think it may also have been related to his deteriorating health. There were periods of unemployment, including the period post-charging. His current income stream is provided by Centrelink.

Health issues:

64 There is a back problem dating back to his time in the timber industry. He has Type-2 diabetes controlled by diet and exercise. He experiences hypertension at a level requiring continual medication. There are cholesterol issues, ulcers and other health problems.

65 In submissions it was put that his prognosis has him destined for the wheelchair within two years. I have sought among the material before me an evidential basis for this submission without success, but I accept that it may well be so. His GP provides a history of his hypertension low back pain, hyper cholesterol aemia, nocturnal leg cramps, GORD glaucoma and COPD. He had prostate and other associated urinary problems last year. There was a fear of prostate cancer. That caused some delay in the hearing, but ultimately no cancer was detected.

Mental health issues:

66 His GP diagnoses anxiety and depression. This appears to be managed by Efexor-XR 75 milligrams. The psychological report acknowledges the history given of depression, but the testing conducted by the psychologist was geared to issues other than depression. I am satisfied the depression is reactive depression related to the offender’s present circumstances. There do not appear to be any other mental health issues relating to general health, causation or rehabilitation issues.

Alcohol, drugs, gambling addictions:

67 There is nothing in the evidence before me to suggest any problem relating to alcohol, drugs or gambling.

68 Bill Walker, a company director, own/managing his own transport company, writes the following:

“...I have known [B J N] for the past twelve years....
I have come to know [B J N] as a man of excellent family values and a person who projected faultless social image.

To quote an old clique (sic) ‘That man would give you the shirt off his back’, epitomises the very person who I have always called my best mate.

Over the years I have been witness to many of his kind deeds. I have also fallen victim to some of his over-commitments in a help him out capacity.

I have witnessed [B J N] care for his children on numerous occasions and never once felt compelled to question his methods of so doing.
Also as father of five, I would have to state he was perhaps more competent than myself and a few of our friends in this area of child raising.

In the earlier stages of knowing each other, I had hired [B J N] to work for me in one of three companies that I had then owned. He had worked his way up to a supervisory position through determination and hard work, and not favouritism, until his moving to Victoria approximately five to six years later.

I’ve been informed by [B J N] of the charge he faces. I can assure you that my feelings for my best friend have not changed in any a way shape or form”.

69 The offender does have prior criminal history dating back to 1969. His last prior offending was in 1980. All five of his court appearances have been before the summary jurisdiction courts. There is also a conviction in Queensland that I have already mentioned. None of his prior history relates to sexual offending or any crimes of violence. For the purposes of this sentence, I have put very little weight on his past history. I regard the last twenty-five years as demonstrating a man of prior good character.

Attitude to offence:

70 This offender has demonstrated little insight into his offending conduct. His initial account does not sit with others he has given. Later accounts still present with inconsistencies. It is difficult to accept he has yet told the whole truth of the criminal conduct that brings him to the Court.

71 In January of 2006, some three years after the offence, he was proclaiming his innocence, explaining to both Probation and Parole, and to John Machlin, that he was pleading on advice. Subsequent accounts have sought to place him in the best light possible.

72 In May 2006 upon a re-referral to John Machlin, the account he gave changed. He acknowledged “rubbing her genitals” and “touching his daughter”, which he said compounded his arousal. Machlin opines:

“He has a simplistic view of sexual offending. He knows his actions were wrong but lacks the perspective to place them on a scale of severity. There is an emotional immaturity or dependency that prevents him from fully appreciating the victim’s perspective”.

73 Machlin further opines that the offender is now taking responsibility for his actions. I doubt, though, that he does it with any understanding of his criminality or empathy for the victim. One can take responsibility for offending for a multitude of reasons.

Plea of guilty:

74 The offender pleaded guilty to this matter on the day it was set down for trial. In matters such as this, there is a particular utilitarian value. Sexual assault trials are notoriously difficult for the crown. In more than 60 percent of sexual assault trials, juries acquit. A plea of guilty, therefore, should be seen as advancing the administration of criminal justice; first and foremost because the interests of the administration of criminal justice are served through the public acknowledgement by an offender of his guilt. That, as I say, is particularly so in sexual assault trials.

75 Pleas of guilt by offenders sustain the community’s confidence in the administration of criminal justice by maintaining the confidence of the community in the investigation of crime and the community’s expectation that those guilty of crime will be held accountable for it.

76 The administration of criminal justice is also served because court time, witnesses’ time, legal expenses and the like are freed so that they can be devoted to other cases. A plea reduces considerably the likelihood of contest in an appeal on the issue of guilt. All of these are important utilitarian factors insofar as the administration of criminal justice in this case is concerned.

77 To all of this should be added that the complainant was saved the trauma of giving evidence and being tested upon it in cross-examination. The offender is entitled to a seventeen and a half percent discount in the circumstances for his plea even though it was late entered.

Rehabilitation prospects:

78 Reports from the psychologists place the offender’s prospects of re-offending as in the low/moderate range. One psychologist referred to an eleven percent chance of re-offending within ten years. I regard these reports as unduly optimistic. My findings of fact are more negative than the assumptions upon which both assessments were made.

79 In the absence of a sexual partner, and in circumstances where he has an ability to access children, this offender’s lack of insight and empathy for his victim, suggests his prospects of re-offending are greater than that ascribed to him by the professionals. It is to be remembered it took three years for him to acknowledge any role in the offence. I have little doubt in the circumstances of this litigation with the crown there were immense pressure on him to make an acknowledgement.

Setting the sentence - Deterrence:

80 In modern Australian society there is a very extensive raft of criminal laws passed by both federal and state parliaments. The chief purpose of the criminal law put in place by parliaments is to deter those who are tempted to breach the provisions of the criminal law. Parliament does that be prescribing maximum penalties for those who engage in conduct prohibited by the criminal law.

81 Consequently, when a person is sentenced for a breach of the criminal law, he is exposed to the possible maximum penalty provided by the statute breached. In this case, there is also the provision of a standard non-parole period.

82 Sentencing for breaches of the criminal law requires the sentencing judge to keep in mind those general deterrence aims of the criminal law for the community at large, by keeping in mind the maximum penalties available and the standard non-parole period and their deterrent purpose.

83 There is also a specific deterrence aimed at individuals likeminded to an offender who, but for such deterrence, would be willing to commit crimes similar to those for which this offender is being sentenced.

84 Finally, there is a component of deterrence to be considered personal to an offender with a view to deterring him or her from re-offending. Such deterrence is particularly important in cases where prospects for rehabilitation are not strong or high.

85 The maximum penalty for this offence is one of ten years. It also carries a standard non-parole period of five years. To that topic I shall return shortly.

Delay:

86 This offence occurred in September of 2003. The District Court seeks to resolve all matters within twelve months of committal. There was immediate complaint in this matter. My understanding is that there was no undue delay by the prosecution. It appears there may have been two sources of delay; both appear to me to relate to the defence; one a change of counsel and, secondly, awaiting the outcome of medical tests arising from cancer concerns. In those circumstances, I do not view the delay as requiring any mitigation of penalty.

Standard non-parole period:

87 A review of the subjective features establishes that the offender pleaded guilty. The standard non-parole period applies usually only in circumstances where there has been a trial. It normally does not apply in circumstances where a plea has been entered. Nonetheless, the standard non-parole period does provide a guideline and an indication that the legislature requires a general increase in tariffs be imposed when court is sentencing.

Balancing objective and subjective circumstances:

88 When the objective and subjective circumstances are evaluated one thing is clear, a sentence of fulltime custody of some severity is called for. There is nothing in the subjective circumstances that puts this offence below one of mid-range of seriousness. I say that giving full account for what I have called the offender’s general good character.

Custodial history:

89 My understanding is that this offender has spent no time in custody.

90 Both parties agree that this is a case in which special circumstances can be found so that a greater parole period than the so-called ‘statutory norm’ can be set. Factors qualifying this offender for special circumstances include

• First time in custody.
• Age. He will be about thirty years or more older than the bulk of the prison population. That puts him at greater risk and greater potential for social isolation.

91 Health issues indicate the offender’s custodial time will be more arduous for him. They also indicate that he will be more frail than the general inmate population.

Sentence:

92 But for the plea of guilty, I would have set an overall sentence of six years. I have discounted that by seventeen and a half percent making, on my calculations, a sentence of four years, eleven months and two weeks overall.

93 B J N, I convict you of the offence that you on 18 September 2003 at Toongabbie assaulted R-- and at the time of the assault committed an act of indecency upon her, she then being a child under ten years, namely six years.

94 I set a non-parole period for that offence of two years and three months to date from 8 February 2007 and to expire on 7 May 2009.

95 I find special circumstances.

96 I set a balance of term of two years, eight months and two weeks to expire on 21 October 2011.

97 I should indicate to you that because the sentence that I have set exceeds three years, parole for you will not be automatic on 7 May 2009. You will have to earn it and convince the Serious Offender’s Review Council - which is a Board that sits to determine whether you are eligible for parole - that you are worthy of it. I would think in your case that would require of you - but it is a matter for you - serious consideration about doing the Sexual Offender’s Program within the prison system.

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