R v Cattle (No 3)
[2020] ACTSC 135
•22 May 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Cattle (No 3) |
Citation: | [2020] ACTSC 135 |
Hearing Date: | 22 May 2020 |
DecisionDate: | 22 May 2020 |
Before: | Murrell CJ |
Decision: | Total sentence of two years’ imprisonment wholly suspended upon entering good behaviour orders. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Act of indecency – Course of conduct – Historical child sexual offences – Position of authority – Where offender is in serious ill health – Consideration of hardship of particular penalty |
Legislation Cited: | Crimes Act 1900 (ACT) ss 66B, 76 (as at 18 November 1983), 92K (as at 11 February 1987) Crimes (Sentencing) Act 2005 (ACT) ss 12, 13, 33(1), 34A |
Cases Cited: | GS v The Queen [2016] NSWCCA 266 R v EN [2019] ACTSC 354 R v Scheeren [2014] ACTSC 272 |
Parties: | The Queen (Crown) John Walter Cattle (Offender) |
Representation: | Counsel K Lee (Crown) S Howell (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) McKenna Taylor (Offender) | |
File Number: | SCC 162 of 2019 |
MURRELL CJ
Introduction
On 20 March 2020, a jury found the offender guilty of the following offences:
(a)Count 1: Between 1 January 1983 and 31 December 1984, he indecently assaulted SQ, a person under the age of 16 years, contrary to s 76 of the Crimes Act 1900 (ACT) (Crimes Act) (as in force at that time), charged as a course of conduct charge under s 66B of the Crimes Act.
The maximum penalty for an offence against s 76 is five years’ imprisonment.
(b)Count 2: On 4 April 1987, he committed an act of indecency on DG, a person aged between 10 and 16 years, contrary to s 92K(2) of the Crimes Act (as in force at that time).
The maximum penalty is 10 years’ imprisonment.
Facts
During the 1980s, the offender was a tennis coach at Forrest Tennis Club. His duties included teaching tennis to children both individually and in groups.
Count 1
In 1983 and/or 1984, when SQ was in Year 5 and/or Year 6 at Forrest Primary School and was between 10 and 12 years old, the offender was her tennis coach.
On at least three occasions, the offender indecently assaulted SQ in the tennis clubhouse. He beckoned her into the kitchen area of the clubhouse, held her close with his arms around her back and shoulders (although not forcefully), engaged in tongue kissing, and asked her to touch his genitals (which she did). SQ said that the offender had taken her hand in his and shown her “what to touch and how”.
The offender and the complainant remained largely or completely clothed, although the complainant did see the offender’s penis at some stage.
The offender encouraged the complainant to treat this behaviour as “our little secret”, as something that was fun but slightly risky and which should not be disclosed. The complainant said that, “as the offence progressed, [there was] a sense of increased … familiarity”.
It was not until 2009 that the complainant disclosed the abuse; she had thought that she would not be believed, and she had felt shame and responsibility for the conduct. In 2009, she disclosed the behaviour to her husband, and in 2018 she reported it to the police.
I am satisfied beyond reasonable doubt that the holding and tongue kissing occurred on three occasions, but I am not satisfied that the genital touching occurred on each occasion.
The evidence does not enable a conclusion about the overall period during which the conduct continued.
Count 2
In 1987, when DG was 12 years old, the offender was her tennis coach.
On 4 April 1987, the complainant was “warming up” on a tennis court when the offender asked her to come to the clubhouse to collect tennis balls.
At the clubhouse, the offender invited the complainant to look at the boys’ change rooms in the clubhouse, which had recently been renovated. In the change rooms, he held her up against a wall and “forcefully” kissed her using his tongue. She felt her head “forced against the wall”.
The complainant ran from the change rooms and bumped into another girl. She was upset and told the girl that the offender had just kissed her.
The complainant disclosed the incident to her parents. Soon after the incident, they confronted the offender, but he denied any wrongdoing.
Victim impact
As one would expect, the offences profoundly affected the complainants. Although decades have passed, the offences continue to affect them. Each complainant described the sorts of impacts that almost invariably flow from offences involving the sexual abuse of children.
SQ
At the time, SQ felt confused and conflicted. She felt that she could not run away.
In her victim impact statement, SQ said that her shame and associated isolation was the main reason that it had taken decades for her to disclose the abuse. She feels that the abuse defined her development. Psychologically, she lived a double life; outwardly, she was confident and accomplished, but inwardly she was confused and lacking in self-confidence. Because she was drawn into deception in relation to the offence, deception came to pervade many aspects of her life and “boundaries never bothered [her]”.
She believes that the offence caused her to become a particularly angry and rebellious adolescent. She was more estranged from her parents than would otherwise have been the case. SQ said that the “nail in the coffin” of her estranged relationship with her parents was when she was in Year 9 and overheard them discussing an allegation that the offender had behaved inappropriately with another girl and doubting the allegation.
She was “so caught up in [her] own conflicted world” that she did not enjoy a proper relationship with her younger siblings. Nor did she enjoy close friendships because she “never let [her friends] get too close”.
The complainant’s experiences have made her excessively fearful for her children.
The complainant said that the premature exposure to repellent sexual activity had prevented her from developing her own sexuality in an appropriate way and has had lasting consequences for her relationships with men. Fortunately, with the assistance of a supportive husband and counselling, the complainant is coming to terms with these difficulties.
DG
At the time, DG found the kissing to be extremely distasteful and frightening. DG’s mother said that DG had been very upset after the incident and had sought to avoid all contact with the offender. Her father said that she had become withdrawn, frightened and too embarrassed and shocked to recount details of the offence to her parents.
DG said that, since the day of the offence, she has felt overwhelming shame and low self-esteem. She has felt objectified and worthless and has experienced difficulties with long-term relationships.
The criminal proceedings were very traumatic for her.
Fortunately, like SQ, DG has had the support of a loving family. Over the past 12 months, she has undertaken intensive psychological counselling at considerable expense.
The incident and its impact on DG have caused anguish to her parents, particularly as they had placed their daughter in the offender’s care. They were unable to achieve vindication when DG first disclosed the offence to them, and they have had to live with their daughter’s pain.
Objective seriousness
The offence against SQ is of substantial seriousness because it had two features of indecency (tongue kissing and touching of the genitals), it involved a course of conduct (there were three occasions when the indecency occurred), and there was a relationship of authority (tennis coach and student). The complainant’s parents had entrusted the complainant to the care of the offender and there was a very substantial age difference between the two.
The conduct of obliging the complainant to touch the offender’s penis was serious. The kissing was a somewhat less serious form of indecent assault.
In sentencing, I will have regard to the critical sentencing parameter that the maximum penalty for an offence against s 76 is five years’ imprisonment. It is difficult to characterise the objective seriousness of the particular offence because it has been charged as a course of conduct offence, and indecent assault can be proved either by proving one incident or through the proof of a course of conduct.
The Crown Prosecutor reminded the Court that, at the time (in 1983/1984), indecent assault comprised a wide range of activities, including at the most serious end some forms of what is now categorised as sexual intercourse (i.e., fellatio and cunnilingus).
The indecent assault of DG was a less serious example in terms of the nature of the indecency; it involved an impulsive fleeting act of indecency that was kissing rather than a more serious act. Nevertheless, it was somewhat serious because the offender’s conduct was “forceful”, there was a relationship of authority between the offender and the complainant, the complainant had been entrusted by her parents to the offender’s care and there was a very substantial age difference between the two.
In the case of both complainants, the offences had a very serious impact on them.
All offences were motivated by a desire for sexual gratification. There is no other explanation that could possibly be given.
Neither complainant was towards the upper or lower end of the relevant age range for the offence in question.
Subjective features
The offender is 84 years old. He was between about 47 and 51 years old at the time of the offences.
He has no prior criminal convictions and, apart from the offences for which I am to sentence him, presents as a person of prior good character.
The offender’s age and the absence of convictions in the decades following the offences indicate that there is little prospect of reoffending.
The offender has been married for 57 years and has two adult children. His family is supportive. The offender’s daughter attended Court on every day of the proceedings. The offender’s daughter described her parents as very supportive towards her and her brother.
Prior to 1977 (when the offender turned 41), he and his wife ran a farm in the central west of NSW. In 1977, the family moved to Canberra to provide better educational opportunities for the children. The offender worked as a public servant and then as a cleaner before retiring about five years ago.
The 2018 institution of the prosecution had a significant impact on the offender’s family. His daughter has been diagnosed with an adjustment disorder and anxiety. His wife’s health has also been adversely affected. Understandably, she was deeply shocked by the allegations and has become very anxious.
The offender has been diagnosed with cancer of the oesophagus, which has migrated to his lymph nodes and bones as a secondary cancer. The condition is incurable. The offender is scheduled to undergo palliative radiation treatment over a period of several months, commencing 26 May, with the aim of reducing the size of the primary cancer.
According to Dr Deery, the offender’s general practitioner, if the offender responds to radiotherapy his life expectancy is 6 to 12 months. He will require frequent medical review.
Associate Professor Rosenfeld, a consultant geriatrician and physician, opined that the offender’s life expectancy was considerably less than average for his condition (five per cent survival at five years), and was “likely months rather than years with or without radiotherapy interventions”. Associate Professor Rosenfeld reported:
The recent findings of oesophageal cancer with or without metastatic spread, and the recent deterioration in his symptoms (vomiting and weight loss), attributable directly to this condition, indicates that Mr Cattle suffers from a very serious terminal condition that will invariably progress relatively quickly (months).
[His] treatment and care are likely to be very complex and his physical and personal care needs will increase greatly. Mr Cattle will need services and support that I believe, in my knowledge and experience of seeing patients in custodial settings in the past, are unlikely to be adequately provided in a custodial setting.
…
As indicated above Mr Cattle’s prognosis is likely very poor and likely months rather than years with or without radiotherapy interventions. A range of complications are likely with radiotherapy or other interventions.
Mr Cattle will require specialist oncological and gastroenterological interventions, treatment and support that, in my view, are likely to be extremely challenging or not feasible, in a correctional facility.
Associate Professor Rosenfeld said that the oncological and gastroenterological interventions, comprehensive aged care services, and palliative care services that the offender will require are unlikely to be available in the custodial setting. He considered that the offender was highly vulnerable to contracting COVID-19 and other infections, and more likely to die if he does become infected.
In addition to terminal cancer, the offender suffers from vascular brain disease which is the likely cause of mild to moderate cognitive impairment and dementia which will progress and lead to increasing dependency over the next one to two years (assuming that the offender survives that long). The progression of cancer is likely to aggravate the worsening of dementia.
Under s 33(1)(r) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), the Court is to consider whether “the imposition of a particular penalty would be likely to cause particular hardship to the offender”.
I accept that full-time imprisonment would cause particular hardship to the offender. It would have a gravely adverse impact on his health because it is unlikely that his immediate and very substantial treatment needs could be accommodated by the correctional authorities.
Further, full-time imprisonment would have a severe impact on the offender’s family, likely condemning them to watch their father die in prison. They wish to care for him at home for as long as they are able to do so. Under s 33(1)(o) of the Sentencing Act, the Court is to consider “the probable effect that any sentence or order under consideration would have on any of the offender’s family …”.
Other sentencing considerations
The Crown drew the Court’s attention to three decisions.
In R v EN [2019] ACTSC 354, the offender was sentenced for two offences of indecent assault (both “rolled up” counts with a maximum penalty of five years’ imprisonment), two offences of maintaining a sexual relationship with a young person (to be sentenced having regard to a maximum penalty of five years’ imprisonment), and one offence of maintaining a sexual relationship with a person under special care (to be sentenced on the same basis). In 1981 to 1985, when the offender was a tutor at a boarding school, he engaged in many sexual acts with the five complainants (boarders aged between 14 and 18 years). The acts included oral sex and simulated anal sex. The offender himself had been a victim of sexual abuse and suffered from psychological conditions including depression. On each charge of indecent assault, the starting point for the sentence was 18 months’ imprisonment. On the counts of maintaining a sexual relationship, the starting points for sentence were two years’ or two and a half years’ imprisonment.
In R v Scheeren [2014] ACTSC 272, the offender was sentenced for 11 offences of indecent assault and one of buggery, all of which were committed around 1980 against one victim, who was then aged between 11 and 12 years old. Through the Cubs Association, the offender had befriended the complainant’s family and they had trusted him to care for the complainant. The offences of indecent assault included simulated anal sex, masturbation, and fellatio. The Court was provided with research as to sentencing patterns in 1980/1981 for offences of buggery and rape, which revealed that sentences were relatively lenient, both in relation to head sentence and nonparole period. In relation to the offences of indecent assault, I imposed sentences that were discounted from starting points of between eight months’ and two and a half years’ imprisonment. The shorter sentences related to the offender pushing his erect penis against the complainant’s back and fondling the complainant’s penis.
R v King [2013] ACTCA 29 was a Crown appeal alleging that the sentences imposed by the primary judge were manifestly inadequate. In 1989 to 1997, when the offender had been responsible for the private coaching of junior players at a cricket club, he had committed 25 sexual offences involving a number of boys aged between about 13 and 15 years. The Court of Appeal resentenced the offender. For acts of indecency involving touching the boys’ genitals with varying degrees of seriousness, the Court imposed sentences of between nine months’ and 30 months’ imprisonment. It would seem that the sentences involved a small discount for pleas of guilty, although the extent of the discount is not clear.
The offender submitted that, to the extent that any sentencing practice could be discerned in relation to offences of the same general type, fully suspended sentences of imprisonment were not unprecedented: see R v Lam (No 3) [2014] ACTSC 362 at [84]–[88].
It is important to note that the above cases were decided before the introduction of s 34A to the Sentencing Act:
34A Sentencing—sexual offences against children
For a sexual offence against a child, a court—
(a) must sentence the offender in accordance with sentencing practice, including sentencing patterns, at the time of sentencing; and
(b) must not reduce the severity of a sentence it would otherwise have imposed on an offender because the offender has good character, to the extent that the offender’s good character enabled the offender to commit the offence.
There appear to be few, if any, comparable cases which have taken s 34A into consideration. There remains, of course, the critical guiding parameter to sentencing, being the maximum penalty. In the case of each of the charges before the Court, the offences carry relatively low maximum penalties.
Children are vulnerable to abuse, particularly by persons in a position of authority. Offences of the type in question are difficult to detect and prosecute. Frequently they are committed by persons of otherwise apparently good character who, because of their apparent good character, have a position of authority or trust vis-à-vis children. Their privileged position enables them to sexually abuse children in their charge. Consequently, in such cases, importance is given to sentencing purposes of general deterrence, accountability, denunciation, protection of the community, and recognition of harm to victims.
In GS v The Queen [2016] NSWCCA 266, at [99]–[100], Fagan J observed:
It is a common feature of historical sexual offences committed by older men against very young children that, by the time the victim has reached maturity and is able to summon the courage to make complaint to authorities, the offender will be advanced in years. By the time he is brought to justice he may be quite elderly, or ill-health of later years may have caught up with him.
The necessity for the courts to impose penalties which reflect the community abhorrence of these crimes … restricts the degree to which sentences can be mitigated on account of the age and/or frailty of the offender. …
I agree with those observations. However, in this case, the extent of the offender’s ill health and treatment needs, and his very short life expectancy, differentiates his situation from that of many older men who, later in life, are convicted of historical sexual offences against children.
In this case, the offender accepted that, in relation to both offences, it would be open to the Court to be satisfied that no penalty was appropriate other than imprisonment. However, the offender submitted that the sentence should be served other than by way of full-time imprisonment.
The Crown submitted that a sentence of imprisonment was the only appropriate penalty. I agree.
However, the Crown said that, given the offender’s particular subjective circumstances, it did not wish to be heard against the defence submission that a sentence of imprisonment should be served otherwise than by way of full-time detention.
That concession was appropriately made. This is a relatively rare case in which the offender’s pressing subjective circumstances mean that sentencing purposes do not dictate that he must serve a period of full-time imprisonment.
Sentence
I impose the following sentences.
(a)Count 1—18 months’ imprisonment, from 22 November 2020 to 21 May 2022.
(b)Count 2—12 months’ imprisonment, from 22 May 2020 to 21 May 2021.
That is a total period of two years’ imprisonment.
Pursuant to s 12 of the Sentencing Act, I make an order suspending the whole of each sentence and an associated good behaviour order under s 13, requiring the offender to sign undertakings to comply with his good behaviour obligations for a period of two years.
| I certify that the preceding sixty-five [65] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: |
0
5
2