R v Croft

[2022] NSWDC 367

District Court

New South Wales

Medium Neutral Citation:

R v Croft [2022] NSWDC 367

Hearing dates:

1/2/22-8/2/22, 1/4/22, 14/4/22

Date of orders:

14/4/22

Decision date:

14 April 2022

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to an aggregate term of imprisonment of 5 years 6 months with a NPP of 3 years 8 months (14/4/22-13/12/25). I find special circumstances.

The indicative sentences are:

Count 1 – 3 years

Count 2 – 2 years

Count 3 – 2 years

Count 4 – 2 years 9 months with NPP 1 year 10 months

Count 5 – 1 year with NPP 8 months

Count 6 – 6 months

Catchwords:

Crime – Sentence – Aggravated act of indecency – Under 16 years

Legislation Cited:

Crimes Act 1900

Cases Cited:

AB v R [2020] NSWCCA 170

DPP v IJL [2019] NSWLC 2

R v Doyle [2021] NSWDC 21

R v MJR [2002] 54 A Crim R 368

R v PGM [2008] 187 A Crim R 152

WG v R [2019] NSWCCA 263

Category:

Sentence

Parties:

NSW DPP – Crown
Paul Croft - Offender

Representation:

Mr R Munro for Crown
Mr A Metcalfe for Offender

File Number(s):

2020/204620

Publication restriction:

Statutory non-publication order re the identity of the complainant.

SENTENCE

1. The offender Paul Croft stood trial before a jury on an indictment containing six counts, and on 8 February 2022, the jury found him guilty of all counts. He is now to be sentenced in relation to the following offences.

2. Counts one, four and five, each involve an offence under s 61M(1) of the Crimes Act 1900, being offences of committing an act of indecency in circumstances of aggravation, namely that the victim was under the age of 16 years. The maximum penalty for each of those offences is seven years imprisonment and a standard non-parole period of five years is now specified. However, I note that the standard non-parole period for this offence was not introduced until 1 February 2003. As the date range for count one commences before that date, and as the evidence is not specific as to the date of the count one offence, I intend, as accepted by the Crown and the defence, to assume that the standard non-parole period does not apply in relation to the count one offence.

3. Mr Croft is also to be sentenced on the count two offence, which is one of committing an act of indecency towards the victim, being a person under 16 years of age, in circumstances of aggravation, namely that she was under his authority. That is an offence under s 61O of the Crimes Act 1900, and carries a maximum penalty of five years imprisonment, although no standard non-parole period.

4. Count three also is an offence under s 61O of inciting the victim, who was under the age of 16 years, to commit an act of indecency in circumstances of aggravation, namely that she was under his authority. Again, the maximum penalty is five years imprisonment, and there is no standard non-parole period.

5. Count six is an offence under s 61 of the Crimes Act 1900, that the offender assaulted the victim by punching her to the face. The maximum penalty is two years imprisonment.

6. Of course the maximum penalties and, where applicable, standard non-parole periods are important guideposts in the sentencing exercise to which I have had regard.

FACTS

7. Turning to factual matters. As the jury’s verdicts do not specify the facts found by them, it is for me to determine the facts, but to do so in a manner which is consistent with the jury’s verdicts. Matters in aggravation must be proved beyond a reasonable doubt, while matters in mitigation need only be proved on the balance of probabilities.

8. The Crown provided a proposed facts on sentence document which summarised the evidence of the victim, relating to the six offences. While the offender continues to maintain his innocence, no issue was taken in the sentence proceedings about the content of that document, which is derived, essentially, from the evidence given at the trial. The facts in summary are as follows.

9. The victim was born in 1992, and lived with her mother, and younger brother. The offender met the family in 1997 while visiting his sons who lived nearby. The victim’s mother became friendly with the offender and in around June 1998, the offender moved into the home at Bolton Point, after forming an intimate relationship with the victim’s mother. At a later time, when the victim was in either year four or five at school, the offender and the victim’s family moved to a different house at Bolton Point, which was on Threlkeld Drive.

10. Count one relates to an occasion somewhere between 23 May 2002 and 22 May 2004, when the victim was either ten or eleven years of age. The offender called the victim into his bedroom where he was alone, as the victim’s mother was in hospital at that time, and the victim's brother was in another room. The offender then asked the victim if he could “tickle” her, and that if she agreed, he would allow her to have some of her mother’s ice cream. The victim explained in evidence that her mother had a special type of gluten free ice cream, which was kept in the refrigerator and which the children were not permitted to eat without permission. The victim in this matter refused to be tickled, but the offender eventually convinced her and talked her into it, largely because she felt it was going to happen anyway, and that by refusing, she was just drawing the process out longer.

11. The offender then lifted up her shirt and played with her breasts for an amount of time. The victim felt scared and disgusted. Once he had finished playing with the victim’s breasts, the offender pulled her shirt back down and told her she could go and get the ice cream.

12. Counts two and three are related, in the sense that they occurred at about the same time. This was the next incident which the victim said “sticks out in her mind”. It occurred when she was about 12 or 13 years of age. The offender was in his bedroom and was in a dressing gown, or bathrobe, which was dark in colour. He called the victim into the bedroom, told her to sit on the bed and then opened the bathrobe, under which he was naked, and gestured towards his erect penis. He then asked the victim to touch it, however, she refused, saying something like, “No, that’s gross.” The offender, however, kept encouraging her, saying, “It’s not gross, touch it,” or words to that effect, and the victim eventually reached out with her hand and touched his penis.

13. After this, the offender said to her, “Kiss it.” However, the victim repeatedly refused to do this, and the offender eventually relented, and did up his bathrobe, after which the victim left.

14. The offender’s conduct in encouraging the victim to touch his penis is the subject of the count two, commit act of indecency towards the victim, and the offender’s conduct in encouraging the victim to kiss his penis is the subject of the count three offence of inciting the victim to commit an act of indecency with him. Each of the offences were committed in circumstances of aggravation, namely that at the time the victim was under the authority of the offender.

15. Count four occurred on a date in May 2006, which was the victim’s 14th birthday. On this occasion, the victim had received a new mobile phone as a birthday present, and the offender offered to help her set it up, to which she agreed. They then went into the dining room together, and the offender closed the door, telling the victim’s mother that they would need privacy and quiet to set up the phone. However, the offender then told the victim that he would not set up the phone unless she allowed him to touch her. When she refused, he said, “Fine, then you’re not going to get your phone”, or words to that effect, after which, the victim relented. The offender then touched her on the breasts and played with them for a while, and once he was finished doing so, he sat down at the table and set up the phone for her.

16. Count five occurred between about 25 January and 23 December 2006, when the victim was either 13 or 14 years old. It occurred against a background where there had been a conversation between the offender and the victim about the victim having a boyfriend. The offender approached her and told her that because she had a boyfriend, she had to learn how to kiss properly. He then grabbed hold of her arms, put his mouth on hers and tried to put his tongue in her mouth, although the victim kept her mouth closed in order to stop him. She said she felt scared at the time.

17. Count six also occurred between about 25 January and 23 December 2006, when the victim was 13 or 14 years old. The incident arose during an argument between the offender and the victim’s mother, in which the offender was saying that he did not want the victim’s boyfriend coming to the house. In the course of this argument, the offender said to the victim words to the effect of, “You’re nothing but a young skank,” to which the victim replied, “Better a young skank than an old paedophile.” In response to this, the offender punched the victim to the face with a closed fist. The punch was pretty much straight to the centre of her face, near to the top of her nose, and onto her forehead. The victim stumbled back and was in shock at the time.

18. The victim eventually, on 1 April 2020, attended Belmont Police Station where she provided a statement to police about the various allegations. On 11 July 2020, police arrested the offender and he was charged with various offences.

OBJECTIVE SERIOUSNESS

19. I turn then to consider the objective seriousness of the various offences. The objective seriousness of counts one to five is marked firstly by the significant maximum periods of imprisonment that are specified by Parliament, and the standard non-parole period that is specified in relation to counts four and five. Sexual offences upon children are treated very seriously by the Courts in this country, given the prevalence of such offences, and the significant harm that usually results from them. The effects on the victim are often lifelong, and in many cases, lead to significant psychological issues, such as anxiety, difficulty trusting others, a damaged self-worth, and often self-blame, even though, as any right thinking person would realise, the victim cannot be blamed at all.

20. Given the prevalence of, and harm caused by sexual offences against children, deterrence, both general and personal, are very important considerations in sentencing for such offences. In recognition of the harm that such offences usually involve, s 25AA of the Crimes (Sentencing Procedure) Act 1999 requires the Court to sentence the offender in accordance with current sentencing patterns, rather than those which applied at the time of the offences. In keeping with the acceptance of the prevalence and seriousness of child sexual abuse, the Courts have acknowledged a change in community attitudes for such offences, and have emphasised the need for serious punishment to be imposed. as was said by then President of the Court of Appeal Keith Mason in R v MJR [2002] 54 A Crim R 368, The pattern of increasing sentences for child sexual assault “has come about in response to greater understanding about the long term effects of sexual abuse, as well as by A considered judicial response to changing community attitudes.”

21. In assessing the objective seriousness of the offences before the Court, one of the important factors is the nature of the sexual act involved: R v PGM [2008] 187 A Crim R 152, at para 26. Each case, of course, must be considered in the light of its own facts, and while the nature of the sexual act is important, it is not the sole consideration. rather, I must take into account a range of factors including how the offences took place, their character, the age difference between the victim and the offender, the duration of the offence, and the effects on the victim. Generally speaking, the younger the child, the more vulnerable and defenceless he or she would be, and accordingly, the more serious the criminality.

22. There are some aspects that are common to each of the offences, and which I have taken into account in determining their objective seriousness. They were all committed in the home of the victim, where she was entitled to feel safe, but clearly was not safe. None of the offences, however, involve any real planning or sophistication, and I would describe them as opportunistic, and in the case of the assault, a loss of control.

23. Count one involved the offender touching the bare breasts of the 10 or 11 year old victim for a period of time, after telling her that he would allow her to have some ice cream if he could “tickle her”. The victim said the offender convinced or talked her into agreeing to her being touched. However, she also said she felt it was going to happen one way or another, and that by refusing, it was just drawing it out longer. While the victim could not be specific as to the period of time over which the offence took place, I am satisfied that it was not brief or fleeting, and that the offender carried on touching or playing with the victim’s breasts for a period of time which was not short. The offence occurred in the home of the victim, where she should have been, as I have said, able to feel safe. Her age at 10 to 11 years was significantly less than the threshold age of 16 years for this offence, and as already noted, the younger the victim, ordinarily, the more serious the offence.

24. There was also an obviously significant age differential between the offender and the victim. As the offender was, at the time, the step-father of the victim, the offence is more serious because it involved a position of trust or authority. There was also an element of grooming, or perhaps more correctly, bribery, given the offender’s use of the ice cream as an encouragement for the victim to agree to being touched. As I noted earlier, the evidence suggests that in large part, the victim allowed the offender to touch her breasts because of the somewhat defenceless position she was in. However, it seems to me that the bribery or grooming did contribute to the commission of the offence, to at least some extent. I assess the objective seriousness of this offence as being near the mid-range.

25. Counts two and three occurred effectively in a single episode, when the victim was 12 or 13 years of age. She was, therefore, still fairly substantially younger than the threshold age of 16 years for this type of offence, and there was a very substantial age differential between the victim and the offender. While the victim was, as the step-daughter of the offender, under his authority at the time, that is an element of these two offences and does not aggravate them beyond that inherent in the offence.

26. In the case of each offence, there was a degree of persistence in the offender’s requests that the victim touch or kiss his penis. The offences took place in the home of the victim. With respect to count two, the offender was successful, ultimately, in having the victim touch his penis, skin on skin. With respect to count three, the victim refused to and did not kiss the penis of the offender, despite his persistent attempts to have her do so. I assess the objective seriousness of each of these two offences as being slightly below the mid-range.

27. Count four is an offence of committing an act of indecency by playing with the victim’s breasts, when she was just 14 years of age, in other words, about one or two years under the threshold element of 16 years. As the Crown submitted, the offender manipulated the victim into agreeing to have her breasts touched, by threatening to withhold the birthday present. This offence also took place in the home of the victim, where she should have been able to feel safe. It was not a fleeting or brief offence. It went on for a period of time until the offender had satisfied his sexual desires. Also, the offender was in a position of trust or authority at the time of this offence, which is not an element of the offence. The objective seriousness, in my view, lies slightly below the mid-range.

28. Count five involved an act of indecency, when the offender kissed the victim on the mouth and attempted to place his tongue inside her mouth. The victim was 13 or 14 years old at the time, and as with all of the sexual offences, there was a considerable age differential. The offence is made worse by reason that the offender was in a position of trust or authority, as the step-father of the victim, which is not an element of the count five offence. The offence also occurred in the victim’s home, and in the context of the offender using the pretence of supposedly teaching the victim how to kiss properly. I agree with the Crown’s submission that this offence lies towards the lower end of objective seriousness, however it is not at the lowest level of that range.

29. Count six is of course a different type of offence to the other five. It occurred when in the course of an argument, the offender punched the then 13 or 14 year old victim with a closed fist to her face. Again, it occurred in the victim’s home. While the victim said that she stumbled back, and was in shock, she did not describe any particular injuries. Having said that, I accept, of course, that there is no requirement for the Crown to prove any injuries as this would amount to a more serious offence. Nonetheless, a punch from the fist of a grown man to the face of a 13 or 14 year old girl must be regarded as a reasonably serious example of a common assault offence. In my view, the objective seriousness is around the mid-range.

VICTIM IMPACT STATEMENT

30. A victim impact statement from the victim was provided to the Court. The victim in that statement speaks very articulately of the substantial and ongoing consequences of the offences in her life. The contents of that impact statement confirm what I have earlier noted, namely, that the effects on victims are often lifelong, often or usually lead to serious psychological issues, such as anxiety, lack of trust, damaged self-worth, self-blame and fear of being touched. In accordance with the position taken by the Crown, however, I do not treat the contents of that statement as aggravating the offences, but they do confirm the various common or usual consequences that I have described.

31. In determining the overall sentence in this matter, I have had regard also to the fact that the offending spanned a period of about three to four years, from when the victim was 10 or 11, until she was 13 or 14.

SUBJECTIVE MATTERS

32. Turning then to subjective matters relating to Mr Croft. The Court has limited information by way of background of the offender. He is now 63 years of age. According to the Sentencing Assessment Report, he lives alone in the Lake Macquarie area, and is in receipt of a disability support pension since 1987 due to injuries suffered to his legs and back in that year. He also suffers, according to his GP, Dr Beckhouse, osteo-arthritis of the left knee, a tremor, and bipolar II disorder, although he is apparently on no medication for the bipolar condition. He continues, like many sex offenders, to deny the offences, and understandably, the author of the Sentencing Assessment Report concluded that he did not display any insight into his offending.

33. Leaving aside matters committed as a child, his criminal history is fairly limited, except for three very serious offences of sexual intercourse with a child under the age of ten years, which he committed in 1987. For those offences, he was sentenced in the Supreme Court of New South Wales to a total period of six years, six months imprisonment, with a non-parole period of four years. He was, however, under the parole system that applied in New South Wales at that time, released to parole on 21 November 1990, after serving approximately two years, seven months of that sentence. Since then, his offending, leaving aside the offences before the Court today, has been limited to a mid-range PCA offence, and an assault.

34. According to the Sentencing Assessment Report, the offender attributed his offending “over the years” to the loss of his mother when he was 13 years of age, and to having been on his own after that.

32. This accords with the notes of the Corrective Services psychologist, who had no contact with the offender directly, but made the following observations based on historical file information.

33. Firstly, that the offender said the most significant event during his upbringing was his mother passing away when he was a teenager; that he was married for about four years in his early twenties, and suffered further grief during his marriage due to the loss of two newborn babies within minutes of their birth. The file information referenced by the psychologist notes that the offender has a total of five biological children from different relationships, and seven grandchildren, and that he reported having some contact with some of his children.

34. The information also records that the offender had previously reported a diagnosis of Bipolar I and II, about 42 years ago, for which he did receive some treatment, but for which he is not currently on medication. The information referred to by the psychologist noted that the offender did not report any problems with alcohol or drugs.

35. According to the Sentencing Assessment Report, the offender was assessed as a medium risk of re-offending on the “Level of Service Inventory-Revised” test, however, the Corrective Services psychologist noted based on the STATIC-99 Test that he is an average risk when compared to other male sexual offenders, and that on the LSI-R test, he is a low-medium risk. This means, as the Corrective Services psychologist notes, that he will not be eligible for sex offender programs in custody, but may be eligible for the “deniers program”, which is offered to those who have been convicted of sexual offences, but who maintain they were wrongly convicted.

36. I am conscious of the fact that the historical information referred to in the Corrective Services psychological report is not based on any recent interviews with the offender, or any direct contact with him in recent times. Accordingly, I approach the information with caution, and with the intention only of gleaning any relevant background of the offender which might assist me in identifying any mitigating factors arising from his background, and any matters that might throw light on his prospects of rehabilitation, and whether his moral culpability should be regarded as reduced.

37. In terms of moral culpability, it seems to me that this must be regarded as fairly high in relation to counts one through to five, which were all very deliberate offences. There is no evidence before me upon which the offender’s moral culpability can be regarded as reduced. Count six is slightly different, in that the assault occurred in the course of an argument where the offender lost control of his temper, and while this does not provide any excuse for punching a child in the face, the offence was unlike the five sexual offences, as it did not involve any deliberation. I regard his moral culpability for the count six assault, therefore, as slightly less than the other offences.

REMORSE

41. Clearly, there is no remorse as the offender continues to deny the offences. The offender’s denial of the offences is one matter which makes it difficult to form a positive view about his prospects of rehabilitation. There is also the fact, as recorded in exhibit four from the trial, that in 1988, he pleaded guilty to and was convicted of three separate sexual offences upon another child who, at that stage, was his step-daughter, and was only seven years old. Two of those offences involved the offender placing his penis into the child’s mouth, and the third offence involved him performing cunnilingus upon her, and penetrating her vagina with his finger. Those offences, especially taken together with the offences now before the Court, establish clearly, in my view, that the offender has a sexual interest in underage females, and a sexual interest that he is prepared to act upon. In the absence of any treatment or acknowledgement of his offences, and of his sexual interest in children, he must be regarded as presenting a significant risk of similar offences in the future. At this stage, the only significant matters which, to my mind, might mitigate that risk, are his advancing age, and hopefully limited access to potential child victims. I am unable to reach a positive view about his prospects of rehabilitation, and as I have said, he remains a real risk if given the opportunity.

42. The offender is, as I have said, 63 years of age, and although that is not a matter of any great significance, I accept that imprisonment will be harder than it might have been if he were younger. He does have some health issues, including osteo-arthritis of the knee, a tremor and Bipolar II disorder, although he is apparently on no medication for the bipolar condition. I have taken these matters into account as aspects that will make his time in custody more onerous.

DETERMINATION

43. I have had regard to the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999. I am satisfied that the s 5 threshold in that same act is crossed in relation to all offences, including the count six common assault. Taken on its own, that assault offence might not require the imposition of a term of imprisonment, but having regard to the totality of the offending, I am satisfied that a term of imprisonment is also required for that offence.

44. In determining the sentence, I have had regard to Judicial Commission statistics, but conscious of the limited value of them, and also the very small sample sizes for the particular offences before the Court, especially the sexual offences. I have also had regard to the cases cited by counsel for the offender, which were DPP v IJL [2019] NSWLC 2 and R v Doyle [2021] NSWDC 21. I have also been provided by defence counsel with a table containing basic information relating to 13 other cases, derived from the Judicial Commission database. I have had regard to all of this material, and the submissions made by counsel about it.

45. Also, I have considered a number of decisions of the Court of Criminal Appeal, including AB v R [2020] NSWCCA 170, and WG v R [2019] NSWCCA 263. I do not suggest that any of the cases I have referred to are directly comparable to this case, but nonetheless, I have found them of some general assistance.

46. Given that there are six offences, I intend to impose an aggregate sentence. I have made a finding of special circumstances, based on the need for the offender to be monitored for a significant period of time on release, given that he will effectively be starting over, and will need monitoring as to his reintroduction to the community, I therefore intend to adjust the ordinary ratio between head sentence and non-parole period.

47. Given that I intend to impose an aggregate sentence, it is necessary for me to nominate the indicative sentences that would have been imposed for each of the six offences, and I will do that now, however, these are not the sentences that I will impose. That will be made clear when I have completed announcing the indicative sentences.

48. The indicative sentences are as follows. For count one, three years imprisonment. For count two, two years imprisonment. Count three, two years imprisonment. Count four, two years, nine months with a non-parole period of one year, ten months. Count five, one year imprisonment, with a non-parole period of eight months, and for count six, six months imprisonment.

TOTALITY AND CONCURRENCY

49. I have had regard also to totality principles given that I am sentencing for multiple offences. In my view, there does need to be a degree of accumulation, particularly with the five sexual offences, given that they involve four separate incidents over a period of some years. The sentences for counts two and three, however, should be largely concurrent given that they were committed during what was really a single incident.

50. Mr Croft, if you stand please, I’ll just explain to you what the actual sentence is. I impose an aggregate head sentence of five years, six months. I impose a non-parole period of three years, eight months. They will date from today, 14 April 2022. The head sentence, therefore, will expire on 13 October 2027, and the non-parole period will expire on 13 December 2025. You can have a seat, Mr Croft.

51. Mr Crown, Mr Metcalfe, anything to raise at this stage?

52. SINGH: Nothing from the Crown, your Honour.

53. CONNOLLY: Nothing arising, your Honour. I just received a text.

54. HIS HONOUR: Thank you. Mr Croft will have to be taken into custody. Court will adjourn.

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Decision last updated: 23 August 2022