R v Beauchamp (a pseudonym)

[2021] NSWDC 243

District Court

New South Wales

Medium Neutral Citation:	R v Beauchamp (a pseudonym) [2021] NSWDC 243
Hearing dates:	21 May 2021
Decision date:	25 June 2021
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Sentence of Imprisonment of 7 years 9 months with a non parole period of 5 years 9 months.
Catchwords:	CRIME - SENTENCE - sexual intercourse with a child under 10 years of age.
Legislation Cited:	Crimes Act 1900 (NSW), s66A, and Crimes (Sentence Procedure) Act 1999 (NSW) s23 (2)(c), (d), (e) and (3).
Category:	Sentence
Parties:	Regina (Crown) Mr Beauchamp (a pseudonym) (the offender)
Representation:	Mr Taylor (ODPP) Mr Funnell (Counsel for the offender)
File Number(s):	2020/00011788
Publication restriction:	Statutory Non publication Order/suppression order of the names of the offender, and the victim, and of anything else that might identify either of them, directly or indirectly.

Judgment

1. Mr Beauchamp (a pseudonym), you appear for sentence today in relation to one offence, namely sexual intercourse with a child under 10 years of age.

2. This offence involves a contravention of s66A of the Crimes Act. The maximum penalty for the offence is 25 years imprisonment. There is a standard non-parole period of 15 years imprisonment.

3. The facts surrounding your offending are contained in a statement of agreed facts, supplemented in a material respect by an admission made by you to Dr Siedler, a psychologist who provided a report dated 19 March 2021 and which was tendered in the sentence hearing on your behalf. For my purposes today, I can summarise the facts as follows.

4. You have a niece (Clare – a pseudonym) who is the daughter of your wife’s sister.

5. In 2008/2009, Clare was about 7 years old, and you were 39 or 40 years old.

6. On an occasion in the period February 2008 to February 2009, you and Clare were both at the home of one of her sets of grandparents in Queanbeyan.

7. You and Clare were in the laundry of those premises. You are said to have been intoxicated – a topic to which I shall return. You held Clare against the wall and placed your hand over her mouth. She cried and bit your hand.

8. Clare was wearing a dress and underwear. You undid the belt of your trousers and took off her underwear.

9. You inserted your penis partially into Clare’s vagina; and you thrust your penis in and out of her – on how many occasions is not made clear in the statement of agreed facts, nor how long this went on for.

10. However, as it was occurring, Clare was in extreme pain and she was crying.

11. Although the statement of agreed facts does not expressly state it, the only rational inference in the circumstances is that you must have been aware of the pain you were inflicting on this young child.

12. When you stopped and pulled your penis out of Clare’s vagina, you said words to her to the effect of “Don’t tell anyone or I will do the same to Rory (a pseudonym)” – Rory was Clare’s brother, and he was only 2 or 3 years old at this time.

13. Clare bled from her vagina as a result of your attack on her.

14. It was (properly) conceded by your counsel during the sentencing hearing that you were not wearing a condom during the sexual assault – amongst other things, thereby exposing the child to the risk of sexually transmitted disease.

15. In terms of its objective seriousness for an offence of its kind, it is above the mid-range.

16. The offence is additionally aggravated because it involved a breach of trust (“additionally” has been used by me to indicate this consideration was not taken into account in assessing the objective seriousness of the offence).

17. Although the statement of agreed facts does not expressly state it, the only rational inference in the circumstance is that Clare believed your wicked threat concerning her brother and that that was the reason she didn’t tell her mother about your attack on her; and, in fact, it would appear she didn’t tell anybody about that attack until April 2019 and in the circumstances I shall now refer to.

18. Because Clare appeared to be suffering from some (to everyone else) unknown trauma and was drinking heavily, she underwent Eye Movement Desensitization and Reprocessing Therapy in, or from, April 2019.

19. That therapy has some well-known issues concerning its reliability. Much depends on: the skill of therapist; the nature of the questions asked; and whether the process was recorded – and, if so, by what means.

20. In any event, as a result of the therapy, Clare “recalled” that you had sexually assaulted her.

21. After her therapy, Clare told her mother that, as a result of the therapy, she recalled being sexually assaulted as a child. However, Clare did not, at that stage, reveal to her mother that it was in fact you who was the offender.

22. Towards the end of September 2019, Clare found out that her mother had told Clare’s father and siblings that she had been sexually assaulted as a child. This caused Clare to be angry and distraught – she was scared of what might happen as a result (but of what – or why - she was scared is not revealed in the statement of agreed facts). Clare’s parents raised the issue of her sexual abuse with members of their church, including Elder Cooper (a pseudonym) (who, by coincidence, was your employer at the time; he ran a metal fabrication business).

23. Clare and her mother also raised the issue with a solicitor whom the church used from time to time for her professional services. I have assumed, although it is not clear in the statement of agreed facts, that it was around this time that Clare’s mother became aware that it was you that was the relevant offender.

24. As a result of advice given to her by that solicitor, Clare’s mother contacted police in November 2019.

25. On 2 December 2019, Clare gave the police a statement concerning the sexual abuse you had inflicted on her all those years before.

26. On 5 December 2019, Clare’s mother told Mr Cooper that she had been advised by police that the matter “had poor prospects of proceeding” because Clare had made her statement after the EMDR Therapy.

27. Again, although it is not clear from the statement of agreed facts, I have assumed that, at this stage, you were unaware that Clare had made any complaint about being sexually assaulted, or that it was you that had sexually assaulted her.

28. On 8 December 2019, Mr Cooper and one of Clare’s uncles drove to your home to confront you with Clare’s allegations. Although it is again not clear from the statement of agreed facts, I assume that they did so. I have assumed that this was the first time you knew that Clare was making these allegations against you.

29. On 29 December 2019, a number of text messages were exchanged between you and Mr Cooper. In one of them, you stated that “I fully accept that I did this thing”.

30. On 6 January 2020, Mr Cooper, Clare’s uncle and another man met you at your home. You provided them with a letter in which you admitted that Clare “was raped by [you] then choked as well”. You described your actions as “horrifying, violent, corrupt and degrading”.

31. You had also written a letter of apology in the following terms:

“To Clare, [and Clare’s parents],

I am sorry for what happened to Clare at such a young age.

I admire her moral courage to bring this matter up.

I am ashamed, smashed and thoroughly disgusted with the damage I have done both initially, with violent threatening corruption and overtime, including my very insensitive presence causing anxious harm, mistrust and insecurity.

She never deserved to bear the hatred and violence that came out from inside myself.

I never intended to hurt one of the Lord’s own but it shows how far Satan took me because I let him in.

I ought to have a millstone hung about my neck.

I ask for forgiveness all the time and pray that I walk humbly and softly for the rest of my days.”

32. On 13 January 2020, Mr Cooper accompanied you when you presented yourself to the Queanbeyan Police Station.

33. During the course of the interview which was then conducted with you, you told the police that you remembered “molesting [Clare] in the tub”; but you only admitted to digital penetration.

34. However, at a later time, you contacted police and told them you wanted to be interviewed a second time. This second interview took place on 23 March 2020, at which time you admitted that the incident in the laundry actually involved penile-vaginal intercourse and not digital penetration.

35. During the course of the second interview you told police, “hopefully this will give some closure to the victim and all those concerned”. You told the police you were heavily intoxicated at the time of the assault, and that Clare was having a bath at the time in the laundry.

36. And you admitted to seeing blood after the incident and knowing that it was not yours.

37. I pause to observe that, whatever the state of your intoxication on the occasion you sexually assaulted Clare, it wasn’t to such an extent that you couldn’t recall the incident when being interviewed by the police.

38. Although Clare’s mother and Mr Cooper seemed to have known of problems in a general way of a police investigation proceeding because Clare had made her statement after receiving EMDR Therapy, there is no evidence that you were aware of those problems when you made your various admissions to police in the two interviews you had with them.

39. During the sentence hearing on 21 May 2021, Clare read a victim impact statement. The document is brief, but it is a powerful one. It is clear that she has been very substantially psychologically damaged by your criminal behaviour towards her. Although, consistent with her strongly held Christian beliefs, Clare expressed forgiveness towards you “for this crime and for its affects”, the manner in which it was delivered was highly emotional and it is clear that the psychological damage is ongoing.

40. You did not give evidence during the sentencing proceedings. Rather, your subjective circumstances were advanced principally through the report of Dr Siedler (supplemented by certificates you have obtained whilst on remand). From Dr Siedler’s report, it would seem that you were raised in a loving, but stern, family environment. You left school having completed the School Certificate and, since that time, you have worked in various capacities in the building industry and hope to be able to return to such work once you are released.

41. When you were 15 years of age you commenced drinking and you now identify as an alcoholic. The consumption of alcohol on occasions has led to you becoming violent, reckless, and sexually and emotionally dysregulated, irrational and impulsive. To your credit, you have not consumed alcohol since 2015.

42. You have no prior convictions. However, that consideration, which ordinarily benefits an offender, is of considerably less significance for offences against children.

43. The statement of agreed facts itself provides no explanation for why you did this terrible crime to your niece.

44. But the report of Dr Siedler does provide an explanation – and it is quite a reprehensible one.

45. According to Dr Siedler, you do not have a sexual interest in prepubescent or underage female children. That was not your motivation.

46. You told Dr Siedler that you were “motivated by the desire to seek retaliation against [your] wife’s family following an argument that left [you] angry and resentful” (see paragraph 54 of Dr Siedler’s report). No further details of this argument are provided in that report.

47. Further in her report, Dr Siedler wrote:

“[77] Mr Beauchamp did not endorse a sexual attraction to underage children per se and therefore, it does not appear that the present offence is an expression of paedophilic tendencies. However, there is a pattern of Mr Beauchamp using sex inappropriately, including as an act of revenge, in addition to using sex for emotional coping, which has led to his transgressing boundaries and engaging in other inappropriate, abusive, and at times, illegal acts, with his behaviour being regularly disinhibited by alcohol abuse and intoxication…”

48. Later in her report, Dr Siedler wrote:

“[96] Summary: Taking into account the aforementioned risk and protective factors, it is my assessment that Mr Beauchamp poses an overall Low to Moderate risk of sexual recidivism. He presents with a number of risks, most of which are chronic and limited protective influences. It is my opinion that whilst Mr Beauchamp’s risk of future sexual offending is likely to be low generally, given the absence of entrenched sexual deviancy, his risk would increase to the moderate range in the context of personal stressors, especially with respect to his close personal relationships, in addition to sexualised forms of coping and the disinhibiting effects of alcohol abuse it is likely that any future victim would be a female but possibly either an adult or a child either known to Mr Beauchamp or a stranger. Further to this, any future offending may involve contact or non-contact offences either online or in “real life”. As such, there are range of risks evident in this case with the most salient factors related to this being poor coping skills, sexualised self-regulation difficulties and problems with respect to attachment and intimacy, superimposed on a long history of alcoholism.”

49. You have little support in the community and, it would seem that, in fact, the only person to whom you now have any continuing connection is your former employer.

50. You did not make a direct expression of remorse. However, I do accept that your expressions of remorse to the psychologist, although somewhat qualified, are genuine, especially now that you have spent at least 6 years without alcohol consumption and are able to fully appreciate what you have, in fact, done.

51. On balance, I regard your prospects for rehabilitation as being guarded.

52. General and specific deterrence (that is, fixing a sentence that will deter others and you from doing what you have done) are fully engaged, as is the need to encourage your rehabilitation.

53. You entered an early plea and you are entitled to the statutory 25 per cent discount.

54. In addition to that discount, I need to consider whether you are entitled to a further discount because of the application of s23 of the Crimes (Sentencing Procedure) Act1999 (NSW). In this context, your counsel has submitted you should receive an additional discount of between 15 and 20 per cent because your confession to the police assumed “paramount importance” in the subsequent prosecution because of the problems associated with EMDR Therapy. The Crown has conceded it would have faced “an uphill battle” in seeking to tender before any jury the contents of Clare’s evidence given the problems surrounding the EMDR Therapy. In making this concession, however, the Crown also draws attention to s23(3).

55. As was requested by both you (through your counsel) and the Crown, I have in this context had particular regard to s23 (2)(c), (d) and (e). In the circumstances, I propose allowing an additional 10 per cent discount because of your assistance to the police.

56. No sentence other than one of full-time imprisonment is appropriate and the contrary was not submitted on your behalf.

57. I decline to make a finding of special circumstances to vary the ratio of the head sentence to the non-parole period. Your prospects of rehabilitation will be adequately addressed by the period on parole that I shall otherwise fix. And the seriousness of your offending does not justify any further adjustments.

58. Mr Beauchamp, for the offence of sexual intercourse with a child under 10 years, except for your plea of guilty and your assistance to authorities, I would have sentenced you to a term of imprisonment of 12 years. After the combined discount of 35 per cent, the term of imprisonment is 7 years 9 months.

59. I fix a non-parole period of 5 years 9 months to date from 13 January 2020 and which will expire on 12 October 2025.

60. I fix a balance of 2 years to date from 13 October 2025 and which will expire on 12 October 2027.

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Decision last updated: 25 June 2021