R v Carrington (a pseudonym) - [2020] NSWDC 748

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Carrington (a pseudonym) [2020] NSWDC 748
Hearing dates: 13 October and 29 October 2020
Decision date: 29 October 2020
Jurisdiction: Criminal
Before: Colefax SC DCJ
Decision:
Aggregate term of imprisonment of 16 years with a non parole period of 12 years.

Catchwords:
CRIME - SENTENCE - assault occasioning actual bodily harm - aggravated act of indecency - incest.

Legislation Cited:
Crimes Act 1900 (NSW): ss 59(1), 61O(1), 59(1).

Cases Cited:
WC v R [2016] NSWCCA 173

Category: Sentence
Parties:
Regina (Crown)
Mr Carrington (a pseudonym) (Offender)
Representation:
Ms Steedman (Crown Prosecutor)
Ms Hall (Counsel for the offender)

File Number(s): 2019/00293615
Publication restriction: Suppression order made of the name of the offender; non publication order of the name of the victim - or of anything that might, directly or indirectly, identify either of them.

JUDGMENT

Mr Carrington (a pseudonym), you appear for sentence today in relation to five principal offences.
First, one offence of assault occasioning actual bodily harm. This involves a contravention of s 59(1) of the Crimes Act. The maximum penalty for that offence is five years imprisonment.
Secondly, inciting an aggravated act of indecency on a victim under the age of 16 and under your authority. This involves a contravention of the repealed s 61O(1) of the Crimes Act. The maximum penalty for that offence at the time the offence was committed was five years imprisonment. There is no standard non-parole period.
The remaining three principal offences are incest with a person over the age of 16 years. Each offence involves the contravention of s 78A(1) of the Crimes Act. The maximum penalty for each offence is eight years imprisonment.
In addition to those principal offences, five matters on four Form 1's are to be taken into account. Two of those matters are assault occasioning actual bodily harm; one of those matters is aggravated indecent assault, where the victim was under your authority; and two of the matters are matters of incest. I shall indicate, when I recite the facts, which Form 1 matter attaches to which principal offence.
I should state at the outset that these reasons are being delivered ex tempore, immediately upon the conclusion of submissions. However, I have had the benefit of thinking about the matter between the time that you first appeared on 13 October 2020 and today. In that period I was able specifically to reflect upon the agreed facts and to read the subjective material tendered on your behalf.
Ideally, my remarks might be more polished and more carefully crafted if I reserved, but I have come to a firm view about the outcome and, more importantly than that, the victim of your offending is again present in court, supported by her aunt and uncle, and it is highly desirable, for their sake, that the matter be finalised sooner rather than later.
Your offending conduct is described in detail in exhibit B, which is an amended agreed statement of facts. I shall summarise that document in the following way.
As at 1993, you and your wife were living in the Philippines.
In 1993 your wife became pregnant with the victim of your offending. Your wife, in that pregnant state in that year, migrated to Australia where, it would seem, other members of the family were already living and she gave birth to a little girl on 15 December 1993. That little girl I shall refer to as "the victim" because that is what she ultimately became. I intend no disrespect to her by referring to her in that rather cold, impersonal way.
You did not migrate to Australia until 1997. After you did, three other children were born to you and your wife.
Although you were brought up as a Roman Catholic in the Philippines, at some point after you came to Australia you joined the Baptist Church and became heavily involved with that church.
Quite contrary to Christian principles, principles you apparently subscribe to, you inflicted strict discipline on the victim when she was a young girl and, if she disobeyed your rules, you would pinch, slap and spank her.
In 2007 the victim turned 13. She was beginning to become a woman. She was probably entering puberty and she was at high school. She had a friend, Joey.
Apparently the victim’s friendship with Joey developed quickly into a relationship; a relationship which she felt she had to hide from you, your wife and the teachers at the school.
One day, the victim was called into the principal’s office and she was questioned as to whether she "had had sex" with Joey and she said that she had.
The principal then rang you and you arrived shortly thereafter. You spoke with the principal and then you took the victim away. You drove home and there was silence in the car on the drive home and the victim, no doubt remembering the discipline that you had inflicted in earlier times, was afraid.
When you and she arrived home, you made this 13 year old girl remove her track pants and then you took a leather belt, you put it around your hand, and you repeatedly belted her around her legs and on her buttocks. At one point, whilst you were striking her in this vicious and cowardly way, she moved backwards and she fell. But you did not stop; you continued to hit her with the belt, including the belt buckle. The beating is said to have gone on for about five minutes, with each striking of the victim causing her pain.
It is this disgraceful attack on that vulnerable child which constitutes sequence 1, assault occasioning actual bodily harm; and for an offence of its kind, it is above the mid-range and into the upper range.
The next day, you took the victim to a medical clinic and you asked the doctor to conduct a virginity examination. It would seem that that doctor followed those directions, quite improperly.
But after this humiliating experience was over, you took the child home - and you were not happy, apparently, with what the doctor had told you. You took her into the lounge room; and you told her to remove her pants, as you wanted to perform your own virginity examination on this 13 year old girl. She removed the bottom half of her clothing. She did so because she feared you would beat her again if she did not. You then told her to lie on her back on a coffee table and she did so. You inspected her vagina. The victim cannot remember if you actually touched her vagina or not - but that is neither here nor there.
It is this activity that constitutes sequence 16 of inciting an aggravated act of indecency. For an offence of its kind, it is above the mid-range.
Following this incident, the victim was not permitted to return to that high school for the remainder of that year. She returned the next year to begin Year 10, that being in 2008.
In 2009 a new boy attended a youth group which was associated with the church that you, the victim, and your extended family were attending.
The victim became friendly with this boy. She must have been about 15 years of age at that time and, as is commonly the case between young friends who may or may not be romantically involved with each other, they spoke to each other a lot on the phone. You received the phone bill and you interrogated the victim about her phone calls with this boy. Your interrogation was not limited to asking her questions. You resorted to what seems to be a regular mode of interrogation in that house and that is you got the belt out again and you wrapped it around your hand and you struck her multiple times over her legs and bottom. She cried out in pain, such was the force that you used. She backed away. You stopped hitting her with the strap and pushed her in the chest, causing her to fall backwards and into a set of drawers. Her right ear hit those drawers, causing her more pain and ringing in the ear. But you were not finished. As she closed her eyes in her pain, you struck her in the face. It was a punch with a closed fist, your own 15 year old daughter, and all over a phone bill.
This is sequence 3, assault occasioning actual bodily harm which is on a Form 1 attaching to sequence 16. Because of the nature of the matter on the Form 1, there will be a significant increase in the sentence for the relevant principal offence.
After this incident, the victim distanced herself from the boy with whom she had been making those phone calls and, a couple of months later, she developed a friendship for another boy. During the winter months of 2009 this relationship was discovered by the ever-helpful school principal who, yet again, contacted you. You came to the school, you took her home, you told her to remove her skirt and her bike shorts and then, with the ever-present belt, you struck her again on the legs and on her bottom. Each striking of the belt caused her significant pain and, at the conclusion of this beating (which went on for about five minutes), you then said to her, “If you do this again you’ll get a lead pipe.” She had red marks all over her legs and bottom and scratches to her arm as a result of what you did.
This is sequence 4, assault occasioning actual bodily harm which is attached to sequence 16. As with sequence 3, that will result in a meaningful increase in the sentence for the relevant principal offence.
After this latest beating, the victim contacted her maternal uncle and told him what you had done. She told him that she wanted to run away from home. And after making that call to her uncle, she went to a Christian campus building near the Christian School. She reported what you had done to her and staff contacted police and a domestic violence incident was recorded.
In the amended statement of facts it says that “following the interaction with police the relationship between the victim and the offender changed.” That was a rather benign way of describing what then developed.
You began to show a great deal of what is described as "affection" towards the victim.
At the end of 2009 and 2010 (when this girl was about 15 years of age) you thought it was appropriate to discuss with her personal issues involving yourself, including problems with your marriage.
But this was not where this rather unhealthy development ended. It certainly did not stop at discussing your marriage.
One night between April and June 2010, when the victim was 16, you went into her bedroom which she shared with one of her sisters. You went to the bottom of the bunk where she was sleeping and you slipped your hand under the blankets onto her left thigh. You pulled her left leg back towards you. You rubbed one of your hands around her crotch area (outside her pyjamas) for a short period before using both of your hands to pull down her pyjama pants and underpants. She was frozen in terror and pretended to sleep. You moved one hand back to the top of her left thigh and then you used two fingers to rub over the outside of the victim’s vagina, near the clitoris. You rubbed your fingers on the outside of her vagina for a short time before you stopped, pulled her pyjama pants and underpants up and left the room.
This is sequence 5, aggravated indecent assault, which is on a Form 1 attaching to sequence 17. By having regard to the nature of that matter, it will result in a meaningful increase in the sentence for the principal offence.
The amended agreed statement of facts then set out paragraphs 33 to 37, under the heading “Uncharged acts”. The Crown, in this document, provides an explanation as to why the acts were uncharged. I shall refer to them briefly. They are not being taken into account as a circumstance of aggravation. You are not to be punished for them. But they place into context the charges for which you will be sentenced and they show that the offences for which you will be sentenced were not isolated incidents but part of a continuing, ongoing program of sexual gratification of yourself at the expense of your own daughter.
Less than a month after the incident which is sequence 5, you went into the bedroom in the early hours of the morning, lifted the victim out of her bed and carried her to the master bedroom where she was placed across the foot of the bed and her clothing was removed. She pretended to wake up and sit on the bed. You told her to lie down in what is described as a "low and authoritative tone" and she complied. You rubbed your fingers over the outside of her vagina for a number of minutes. You told her to get up and get dressed, which she did.
During the early hours of the following morning the same thing occurred, and this occurred on a daily basis for about two weeks and it occurred after your wife had left the home for work.
On other occasions at around this time, you would approach her in the evenings when she was in the kitchen. You would place your hand into her underwear when her mother and her sister were not in the same room and this continued for a couple of weeks.
After about three weeks of this (i.e. rubbing her vagina in the early hours of the morning) you then started to penetrate her vagina with your fingers. She said nothing, fearing punishment if she did - and her fears, from the history I have described, were well-founded.
This digital penetration of this teenage girl continued each morning for about a week.
One morning, about a week after you first digitally penetrated her, you entered her bedroom and shook her awake and you took her into the master bedroom. Without descending too much into the details, on this occasion you had penile/vaginal intercourse with this child. Having done so, you pulled your penis out of her vagina and you ejaculated on her. The only rational inference in the circumstances is that you were not wearing a condom. The only rational inference in the circumstances is the child was not on any form of contraception and, therefore, this act of sexual intercourse (as with all of the ones to which I shall soon refer) carried with it a very real risk of this child contracting a sexually transmitted disease and/or pregnancy.
That act of sexual intercourse is sequence 17. In terms of its objective seriousness for an offence of its kind, it is above the mid-range.
The next morning you again went into the victim's bedroom, took her into your bedroom, undressed her, rubbed your penis on the outside of her vagina and clitoris before again engaging in penile/vaginal intercourse which resulted in ejaculation over her pubic area, again not wearing a condom. Again the risk of pregnancy and sexually transmitted disease was real.
This is sequence 18, which is a Form 1 matter to be taken into account with sequence 19. Having regard to the nature of sequence 18 it will result in a meaningful increase in the sentence for the principal offence.
The agreed statement of facts then deals with some more uncharged acts in paragraphs 48 to 59. In those paragraphs it is recorded that you began to have sex with the victim in that fashion (that is, unprotected penile/vaginal intercourse) first thing every morning for a couple of weeks.
At one point, you became very concerned as to whether or not this victim was having her period, so it must have crossed your mind that she may have become pregnant as a result of your activities.
And then the situation became even more perverse because in this period, after you had been having penile/vaginal intercourse with this 16 year old child for some weeks, you began to express romantic feelings to her. For example, when she bought some makeup, you commented that she would be wearing it because of you. You started training in the garage and asked her, your daughter, if you were looking better because of your training. You took her to events and said that you were going on "dates" with her. You frequently touched her in the vagina area whilst in the car.
The Crown has explained in the amended agreed statement of facts why these acts are uncharged and, as with the earlier matters, you are not to be punished for them but they set in context your period of sexual abuse of this child.
In about June 2010 you and your family went to Southern NSW to visit relatives - who are here in court today. Even whilst on that trip, you could not keep your hands off that girl, literally. On one occasion, you asked her to go for a drive with you to the nearest township to get some grocery items. You parked the motor vehicle in a street, stopped the motor vehicle with just the two of you in the car, you lowered the back rest of the driver’s seat, and you told her to take her pants off. She did not question you because she was fearful she would be hurt if she did not do what she was told. She removed her clothes and you told her to sit on your lap and, whilst in that position, you again had penile/vaginal intercourse with her until you, on this occasion, ejaculated over yourself whilst she was on your lap. Again, the risk of pregnancy and sexually transmitted disease was real.
This is sequence 19. For an offence of its kind, in terms of its objective seriousness, it is above the mid-range.
The agreed statement of facts then deal with even more uncharged acts in paragraph 65 to 67. Again, you are not to be punished for those acts but they are again placed before me as part of context.
When this visit finished and the family drove home to Sydney, the very next morning the familiar pattern of you taking the victim into the master bedroom, undressing her and having penile/vaginal intercourse, resumed.
That is sequence 20. For an offence of its kind, in terms of its objective seriousness, it is above the mid-range.
Paragraphs 70 and 71 of the agreed statement of facts deal with yet even more uncharged acts - more acts of penile/vaginal intercourse - but so many of these acts occurred that the victim could not particularise on what date they happened.
One morning during this period, there was again another act of penile/vaginal intercourse which the victim could be more specific about as to date. It involved, as with all the other acts of penile/vaginal intercourse which are the subject of a principal charge, ejaculation.
This is sequence 21. In terms of its objective seriousness, it is above mid-range.
For quite some time the victim was subjected to penile/vaginal intercourse by you each morning. She did not know how to stop it; she was powerless; she was a child; and she was trapped in your house.
In her desperation, sometimes she would get a kitchen knife and run it along her forearm to her wrist, causing light bleeding. Taking her own life, because of what you had been doing to her, crossed her mind.
Not long after this, as if this could not get any worse, you started to speak to your daughter as if you were having a love affair with her. You asked her, for example, whether she loved you more than the young man she was seeing socially. You spoke about running away together. You spoke about leaving your wife.
Not only did you speak about it, it was contained in emails. It got to the point where the victim and her sister returned to the relatives in Southern NSW. She received more of these emails from you; and whilst there, thank goodness, her aunt discovered them and that led to the unravelling of your criminal enterprise with this victim.
The victim's aunty and uncle told your wife what they had discovered - and the long and the short of it, without going through the detail, was that your family (i.e. your wife and your other children) all turned against this girl. Great pressure was brought on her not to go to the police. But eventually you were arrested and now you are to be sentenced.
It is notable that around the time that your activities were discovered by other members of the family, you sought to attribute blame not to yourself but to this child. You tried to suggest that she had been provocative, that she had "come on to you", to use the vernacular.

You have no prior criminal history - but for offences of this kind, an absence of a previous criminal history is of reduced significance.
You have been examined by a psychologist for the purpose of the sentencing hearing who has provided a report. She assessed you on 10 September 2020 and even then, although you purported to express remorse and responsibility, you still said to that psychologist that your daughter had made advances towards you.
The best that the psychologist could do to explain your behaviour was to say that you had "relationship issues" within your marriage and that you had lacked an early emotional bond with your daughter. That provides absolutely no explanation for what you did.
What you did was, while unhappy in your marriage, you relieved your depraved sexual urges on a child in a context where you had beaten her viciously in the years leading up to that activity. That is what you did.
There is no proper explanation apart from that and, given your persistence in asserting that this child in some way contributed to it, I do not accept your expressions of remorse. I am unable to make a positive finding about your prospects for rehabilitation - the more so because the wife with whom you intend to live after you are released from prison continues to deny her own child’s sufferings and your role in it.
Clearly, both general and specific deterrence are fully engaged.
I have already set out my findings about the objective seriousness of each of the offences.
The Crown, in her written submissions, has identified additional aggravating factors, each of which I accept and incorporate by reference.
In WC v R [2016] NSWCCA 173, Campbell J (with whom Hoeben CJ at CL and N. Adams J agreed) implicitly approved (at [29]) of the following observation by the relevant primary judge:

“The offender has exploited the youth of this child in the worst possible way. He has groomed his own daughter, turning her into his sexual plaything. His behaviour no doubt that the effect of engendering a feeling of both helplessness and hopelessness in the claimant. She was entitled to feel safe and protected within the confines of the family home. Instead, he made her a slave for his own lust and sexual gratification. In this country, for the overwhelming majority of fathers, the love they have for their daughters is such that they would give their own life to protect and keep them from harm. When fathers like the offender are finally exposed for their horrific crimes, the community expects the Court will impose severe punishment.”

I gratefully adopt what his Honour has said.
I intend imposing an aggregate sentence. Accordingly, it is necessary for me to state the indicative sentences underpinning that aggregate sentence. In stating the indicative sentences, I shall apply the discount of 25% to each of the indicative sentences to reflect the early plea of guilty which you made, which had utilitarian value but which I am not satisfied contained any element of remorse.
In relation to sequence 1, except for the discount the indicative sentence would be four years imprisonment. After the discount it is three years imprisonment.
In relation to sequence 16, and taking into account sequences 3 and 4, the indicative sentence before the discount is five years. After the discount it is three years nine months.
In relation to sequence 17, taking into account sequence 5, the indicative sentence before the discount is seven years. After the discount it is five years three months.
In relation to sequence 19, and taking into account sequence 18 on the Form 1, before the discount the indicative sentence was seven years. After the discount it is five years three months.
In relation to sequence 21, and taking into account sequence 20, the indicative sentence before the discount is seven years. After the discount it is five years and three months.
Taking into account the period of time that you have been refused bail, the sentence will be backdated by nine months to date from 29 January 2020.
Mr Carrington, for the offences for which you appear for sentence today, I impose an aggregate term of imprisonment of sixteen years.
I fix a non‑parole period of twelve years to date from 29 January 2020 and which will expire on 28 January 2032. I impose a balance of four years to date from 29 January 2032 and which will expire on 28 January 2036.
I decline to make a finding of special circumstances. That submission was made on your behalf on the basis that you would require some assistance when reintegrating into society. The period on parole that I have provided for will be more than enough to assist you in that regard.
You will now go with the officers.

Amendments

15 December 2020 - Publication restriction -the word "offence" replaced with "offender".

17 May 2021 - Cover sheet - Cases Cited: Amendment to correct citation.

Para [72]: entire paragraph replaced to correct citation.

Decision last updated: 17 May 2021

Medium Neutral Citation:	R v Carrington (a pseudonym) [2020] NSWDC 748
Hearing dates:	13 October and 29 October 2020
Decision date:	29 October 2020
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment of 16 years with a non parole period of 12 years.
Catchwords:	CRIME - SENTENCE - assault occasioning actual bodily harm - aggravated act of indecency - incest.
Legislation Cited:	Crimes Act 1900 (NSW): ss 59(1), 61O(1), 59(1).
Cases Cited:	WC v R [2016] NSWCCA 173
Category:	Sentence
Parties:	Regina (Crown) Mr Carrington (a pseudonym) (Offender)
Representation:	Ms Steedman (Crown Prosecutor) Ms Hall (Counsel for the offender)
File Number(s):	2019/00293615
Publication restriction:	Suppression order made of the name of the offender; non publication order of the name of the victim - or of anything that might, directly or indirectly, identify either of them.