R v DER

Case •

[2018] NSWDC 98

•

06 April 2018

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v DER [2018] NSWDC 98
Hearing dates: 19 February 2018
Date of orders: 06 April 2018
Decision date: 06 April 2018
Jurisdiction:Criminal
Before: Hatzistergos DCJ
Decision:

1) The Offender is convicted on each Count.

 

2) Pursuant to s 53A, the Offender is sentenced to serve an aggregate term of imprisonment of four years to date from today and to expire on 5 April 2022. I find special circumstances for reasons previously given and vary the statutory ratio in s 44 of the 1999 Act.

 

3) The Offender is to serve a non-parole period of 2 years from 6 April 2018 to 5 April 2020 and an additional term of two years to commence on 6 April 2020 and to expire on 5 April 2022, during which he shall be eligible to be released on parole.

 4) The Offender’s earliest release date in 5 April 2020.
Catchwords:

CRIMINAL LAW – historical offences – indecent assault against female under the age of 16 – acts of indecency against female under the age of 16

  SENTENCING – victims vulnerable by reason of age – position of trust – opportunistic – no threats of violence – no aggravating factors made out – delay in prosecution not a factor of mitigation – plea of Guilty – no prior criminal history – limited remorse – limited insight to offending – low likelihood of reoffending – good prospects of rehabilitation – special circumstances established
Legislation Cited: Criminal Procedure Act 1986 ss 166, 168
Crimes (Sentencing Procedure) Act 1999 ss 3, 5, 9, 12, 21A, 30, 44, 53A
Crimes Act 1900 ss 61E, 61M, 76, 76A
Cases Cited: R v Pearson [2005] NSWCCA
Karl Suleman v R [2009] NSWCCA 70
Peiris v R [2014] NSWCCA 58
Alesbhi v R; Esbhi v R [2018] NSWCCA 30
R v PGM [2008] NSWCCA 44
R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225
R v Bednarz [2000] NSWCCA 553
Elsobky v R [2006] NSWCCA 168
Dipangkear v R [2010] NSWCCA 156
Mottram v R [1989] NSWCCA 210
AJB v R [2007] NSWCCA 51
PWB v R [2011] NSWCCA 84
Baines v R [2016] NSWCCA 132
R v Hall [2017] NSWCCA 313
R v Moon [2000] NSWCCA 534
MC v R [2017] NSWCCA 316
Category:Sentence
Parties: Regina (Crown)
DER (Offender)
Representation:

Counsel:
Mr S Burton (Solicitor) (Crown)
Mr G Jauncey (Offender)

  Solicitors:
Office of the Director of Public Prosecutions (Crown)
John Fisicaro & Co (Offender)
File Number(s): 2016/389834
Publication restriction: (1) Non-publication order with respect to the name of any of the complainants or anything tending to identify them; and (2) Non-publication order with respect to the name of the Offender’s wife or any of the children or anything which may identify her or them.

Judgment

  1. On 19 February 2018, following a plea of Guilty, I heard sentencing submissions in relation to the Offender, in respect of 8 offences, the details of which can be described as follows:-

  1. Sequence 1 – On a day between 1 January 1978 and 31 December 1979 at Dundas in the State of New South Wales, did commit an act of indecency towards BR, namely that he rubbed her buttocks against his erect penis, whilst BR was a girl under the age of 16, namely 5 or 6 years of age, contrary to s 76A of the Crimes Act 1900; an offence carrying a maximum penalty of 2 years imprisonment.

  2. Sequence 3 – On a day between 1 January 1983 and 31 December 1985 at Dundas in the State of New South Wales, did commit an act of indecency towards BR, namely masturbating himself in front of her while BR was a person under the age of 16, namely 10, 11 or 12 years of age, contrary to s 61E(2) of the Crimes Act 1900; an offence carrying a maximum penalty of 2 years imprisonment.

  3. Sequence 7 – On a day between 8 April 1968 and 7 April 1989 at Dundas in the State of New South Wales, did assault SDV and at the time of that assault, did commit an act of indecency on the said SDV, namely touched her breasts, while SDV was a female under the age of 16, namely 10 years, contrary to s 76 of the Crimes Act 1900; an offence carrying a maximum penalty of 5 years imprisonment.

  4. Sequence 8 – On a day between 8 April 1968 and 7 April 1969 at Dundas in the State of New South Wales, did assault SDV and at the time of that assault, did commit an act of indecency on the said SDV, namely touched her vagina, while SDV was a female under the age of 16, namely 10 years, contrary to s 76 of the Crimes Act 1900; an offence carrying a maximum penalty of 5 years imprisonment.

  5. Sequence 12 – On a day between 14 July 1981 and 31 December 1981 at Dundas in the State of New South Wales did assault BR and the time of the Assault, did commit an act of indecency on the said BR, namely touched her vagina, while BR was a person under the age of 16 years, namely 7 or 8 years, contrary to s 61E(1) of the Crimes Act 1900; an offence carrying a maximum penalty of 6 years imprisonment.

Offences to be dealt with on a Certificate pursuant to s 166 of the Criminal Procedure Act 1986

  1. Sequence 10 – On a day between 4 November 1968 and 11 July 1970, at Dundas in the State of New South Wales did assault NC, and at the time of that assault did commit an act of indecency on the said NC, namely touched her breast whilst NC was a female under the age of 16 years, namely 8 or 9 years, contrary to s 76 of the Crimes Act 1900; an offence carrying a maximum penalty of 6 years imprisonment on indictment, but pursuant to s 168(3) of the Criminal Procedure Act 1986, [1] the Court is confined to a maximum penalty of 2 years imprisonment.

  1. Sequence 13 – On a day between 1 January 1980 and 13 July 1981 at Dundas in the State of New South Wales did assault HDV, and at the time of the assault, did commit an act of indecency on the said HDV, namely rubbed the area above her vagina, while HDV was a person under the age of 16 years, namely 10 or 11 years, contrary to s 76 of the Crimes Act 1900; an offence carrying a maximum penalty of 5 years imprisonment on indictment, but pursuant to s 168(3) of the 1986 Act, the Court is confined to a maximum penalty of 2 years imprisonment.

  2. Sequence 14 – On a day between 14 July 1978 and 9 September 1978 at Dundas in the State of New South Wales did assault DDV and at the time of the assault, did commit an act of indecency on the said DDV namely rubbed her breast, while DDV was a person under the age of 16 years, namely 6 years, contrary to s 76 of the Crimes Act 1900; an offence carrying a maximum penalty of 5 years imprisonment on indictment, but pursuant to s 168(3) of the 1986 Act the Court is confined to a maximum penalty of 2 years imprisonment.

1. Hereinafter referred to as “1986 Act”.

Facts

  1. The facts pertaining to each victim are as follows:-

Offences relating to SDV – Sequences 7 and 8

  1. SDV is the Offender’s sister-in-law. The victim was 10 years old at the time of these offences. The Offender was about 30 years old. The victim used to stay at the Offender’s house overnight with the Offender’s wife, while the Offender worked night shifts. The victim would sleep in the Offender’s bed. The Offender would often rest prior to commencing his shift. He would sometimes cuddle the victim in bed during this time. The Offender would tell the victim that she was gorgeous.

  2. On a day between 8 April 1968 and 7 April 1969, the Offender was cuddling the victim in bed. The Offender slipped a hand under the victim’s pyjamas and touched her breast area. The Offender said “you’re cuddlier than [the Offender’s wife], but you mustn’t tell her that because it will hurt her feelings.” The victim was 10 years of age. This is Sequence 7.

  3. On another occasion between 8 April 1968 and 7 April 1969, the Offender was again cuddling the victim in bed. The Offender placed his hand underneath the victim’s pyjamas and underpants and cupped it over her vagina. The victim was 10 years of age. This is Sequence 8.

  4. The agreed facts note that these were not isolated incidents.

Offence relating to NC– s 166 Certificate – Sequence 10

  1. The victim is the Offender’s niece. The victim was between 8 and 9 years old at the relevant time. The Offender was between 29 and 30 years old.

  2. On a day between 4 November 1968 and 11 July 1970, the victim was staying over at the Offender’s house. The Offender was in bed. The Offender’s wife said to the victim, “why don’t you go give Uncle [the Offender] a cuddle?” The Offender laid behind the victim in a spoon position while they cuddled in bed. The Offender rubbed his hand up and down over the victim’s nipple. The victim said “is this what you do to Auntie [the Offender’s wife]?” The Offender did not respond.

Offence relating to DDV– s 166 Certificate – Sequence 14

  1. The victim is the Offender’s niece. The victim was 6 years old at the relevant time. The Offender was 39 years old.

  2. Between 13 July 1978 and 9 September 1978, the victim lived at the Offender’s house while her parents were overseas. On an occasion during this period, the Offender used both of his hands to touch the victim’s breast. He said “you’re pretty” and winked at the victim. The victim froze. The victim felt as though she could not tell anybody.

  3. This sort of incident occurred several times while the victim was staying with the Offender. They continued for a period afterwards, but they were less frequent.

Offences relating to BR – Sequences 1, 3 and 12

  1. The victim was friends with the Offender’s children and would spend time at the Offender’s house. The Offender would occasionally have the victim sit on his lap. He would stroke her hair and tell her she was beautiful.

  2. On a day between 1 January 1978 and 31 December 1979, the victim was watching television in the Offender’s lounge room. The Offender was sitting on a chair. The Offender placed the victim on his lap. The Offender obtained an erection. He then commenced to rock back and forth so that the victim’s buttocks were rubbing against his erect penis. The victim could feel his erect penis. The victim was between 5 and 6 years old. The Offender was between 39 and 40 years old. This is Sequence 1.

  3. On a day between 14 July 1981 and 31 December 1981, the Offender took the victim to a park to teach her how to ride a bike. The Offender’s children were also present. The Offender lifted the victim onto her bike, placing one hand under her buttocks. He placed his finger underneath her pants and touched her vaginal area. The victim screamed “ouch” and the Offender stopped. The victim was 8 years old. The Offender was 42 years. This is Sequence 12.

  4. On a day between 1 January 1983 and 31 December 1985, the Offender was lying on the lounge in his lounge room stroking his penis. The victim walked in to the room and saw the Offender stroking his penis. The Offender’s penis was inside his trousers. The Offender saw the victim and continued to stroke his penis. The Offender did not say anything to the victim. The victim was between 10 and 12 years old. The Offender was between 44 and 46 years old This is Sequence 3.

  5. These were not isolated incidents.

Offence relating to HDV – s 166 Certificate – Sequence 13

  1. The victim is the Offender’s niece. The victim was between 10 or 11 years old at the relevant time. The Offender was 41 or 42 years old.

  2. On a day between 1 January 1980 and 13 July 1981, the victim was seated at a table outside the Offender’s house. The Offender’s son was seated opposite the victim. The Offender sat down next to the victim. Under the table, the Offender stuck his hand down the front of the victim’s underpants. He rubbed the skin above the vagina where her pubic hair was. The victim froze.

  3. The victims went to the Police in early 2016. The Offender was arrested on 29 December 2016 and was conveyed to Gosford Police Station. He participated in an ERISP in which he made some admissions and was subsequently charged.

Victim Impact Statements

  1. The Court received Victim Impact Statements from 2 of the victims pursuant to s 30 of the Crimes (Sentencing Procedure) Act 1999. [2]

    2. Hereinafter referred to as “the 1999 Act.”

  2. BR described that during the period of abuse and coinciding with adolescence; she became withdrawn and depressed and refused to attend school for significant amounts of time. She states that physical manifestations of symptoms were severe and she was subject to medical testing. She stated that she suffered extreme insomnia and intense stomach pain and had thoughts of suicide. At times, she felt alone in her pain and that she could not tell her parents. Fear, shame and guilt were emotions that extended from her adolescence to adulthood. At the beginning she stated that she felt ashamed of not being a good girl and then it extended to other forms of shame such as shame that she took so long to tell her parents and police, the impact upon the safety of other children and shame in her skills as a mother had been affected, shame that she could never do enough for others, and shame that her disclosure hurt her friendships and relationships with the most important people in her life. She stated that she felt that the shame affected her personal strength and character. Since her disclosure, she stated that this had led to an increase in her physical symptoms including long periods of insomnia, nightmares, flashbacks, intrusive memories and feelings of overwhelming and constant anxiety, hiving to her chest, neck and scalp that were present for months on end, which were attributed to stress and a pervasive feeling that she had done something wrong and that something else would go wrong. She stated that she had period of sick leave which impacted on her confidence and the quality of her teaching. She stated that she consequently sought psychological support for the first time.

  3. BR describes the impact that the offending had on her capacity to care for others and the effect of her disclosure at the age of 21 on others. This, she stated angered her further and also impacted on her sense of safety and the risk for her own children, resulting in her being hyper-vigilant in matters concerning their safety. She stated that her capacity for intimacy is being affected and she finds it difficult to discuss the matter with her husband. In summary, BR stated that the matter has affected her physically, vocationally, emotionally, relationally and continues to do so. She is constantly afraid that new memories will surface and the impact that this will have on her.

  4. SDV was the sister in law of the Offender. In her statement she describes the anger that she had endured at the times that she was subjected to the behaviour, the subject to the offending. She stated that she was petrified of the dark and the burden of carrying what occurred in silence. She states that silence related to the systemic abuse of others in her family and neighbours of the Offender. She stated the sense of sadness she felt and the regret of her silence, even though she was only a child and not to blame. She stated that her family gatherings contained an element of stress and tension and that she has no closure as no one can undo the past and that she is attempting to focus on what is good in her life. She expressed deep sadness for the hurt caused to the victims both those directly affected and to those who loved them. She felt so sad for her lost innocence and her fractured relationships.

  5. The two statements are powerful reminder to this Court of the impact that the Offender’s actions had upon the victims, which the Court takes into account in the way the law provides. [3]

    3. Div 2, Pt 3 of the 1999 Act

  6. No submission was advanced by the Crown that the harm occasioned was other than what could reasonably be expected to arise from the offences for which the Offender is to be sentenced.

Assessment of offending

  1. Each of the 8 offences occurred between 1968 and 1986 when the Offender was aged between 30 and 46. The offending spanned 18 years and involved 5 different victims. The victims were aged between 5 and 13 years at the relevant times. All but one of whom were relatives of the Offender.

  2. The Crown submitted that the victims were vulnerable by reason of their age and especially so in relation to the victims who were under 10 years of age. The Crown did not advance vulnerability under s 21A(2)(l) of the 1999 Act. I accept the age of the victim is a factor to be taken into account in assessing the seriousness of the offending. [4]

    4. R v Pearson [2005] NSWCCA at [33]-[35] per James J (with whom Hislop J agreed)

  3. Initially the Crown submitted that in each instance, the Offender took advantage of the position of trust in relation to the victims which arose by reason of them staying with him or being under his supervision. [5] In Karl Suleman v R,[6] Howie J said of s 21A(2)(k) of the 1999 Act that:-

"This aggravating factor is not made out simply because the victim trusted the Offender for some reason or other ... The relevant factor is that there was at the time of the offending a particular relationship between the Offender and the victim that amounted to 'a position of trust'. It is a special relationship existing between them and transcends the usual duty of care arising between persons in the community in their everyday contact or their business and social dealings."

5. s 21A(2)(k) of the 1999 Act

6. [2009] NSWCCA 70 at [22] (McClellan CJ at CL and Hislop J agreeing)

  1. The Crown submission was subsequently cast more narrowly in light of the decision in in Peiris v R. [7]

    7. [2014] NSWCCA 58 at [45]-[54]

  2. In the case of Sequence 14, the victim was residing with the Offender and his wife at the time of the offending whilst her parents were overseas.

  3. In the case of Sequences 7 and 8 the agreed facts assert in a general way that the victim stayed overnight with the Offender’s wife.

  4. Sequence 10 refers to the victim staying over the Offender’s house.

  5. Sequences 1 and 3 involved occasions of the victim visiting the Offender’s house. Sequence 3 involved an act occurring in her presence. Sequence 12 occurred when the victim was taken to the park.

  6. Sequence 13 occurred when the victim was at the Offender’s house.

  7. Except Sequence 3, I accept in each instance that the Offender was trusted by the victims and he enjoyed access to them by reason of being a relative and in one instance a friend of his children. These are matters I take into account in my assessment of the criminality of the offending although I am not satisfied that that the agreed facts establish beyond reasonable doubt the aggravating factor in s 21A(2)(k) of the 1999 Act.

  8. I further accept that the offending was largely opportunistic in the circumstances in which it occurred and no threats or violence were involved.

Sequences 7 and 8

  1. In relation to the offences against SDV, there was age difference of 20 years at the time.

  2. The Crown accepted that Sequence 7 was in the lower of the range, but not at the bottom, whilst Sequence 8 was submitted to fall between the lower and middle range.

  3. The Defence conceded in respect of both charges, that the seriousness of the behaviour was increased due to the age of the victim and the nature of the act of indecency. It was submitted that the second offence, involving the touching of the vaginal area was more serious than the first, which involved touching of the breast. It was further submitted that although not isolated, the acts were were opportunistic, of relatively short duration and no violence or threats of violence were used.

  4. The Defence submitted that no aggravating features under s 21A(2) were raised and furthermore the charged offence under s 76 was much broader than the current offence under s 61M(2) and included acts of fellatio, cunnilingus and digital penetration.

  5. The Defence submitted that it was necessary for the Court to assess the behaviour, not as against the concept of indecent assault under the law today but rather as to the range of behaviour that was encompassed by the relevant section at the time of the offending.

  6. I accept that Sequence 7 was relatively less serious that Sequence 8 in that it involved a touching of the breast area as opposed to cupping over the vagina. Sequence 7 however was preceded with some grooming type behaviour telling the victim she was cuddlier than his wife. I also accept that referable to the kind of conduct covered by s 76, both these offences were relatively less serious breaches. However they were not isolated events and whilst this is not aggravating no argument as to mitigation on the basis of isolation can be made. Both offences involved circumstances where the victim was in bed and at the time, 10 years of age. Both involved a circumstance where the victim was staying overnight with the Offender’s s wife in circumstances where the victim was entitled to trust the Offender.

Sequence 10

  1. The Crown noted that there was a 20 year age gap between NC and the Offender and the offence fell within the lower end of the range.

  2. The Defence submitted that the age of the victim and the nature of the offending (involving the touching of the nipples) increased the seriousness of the offending, however it was opportunistic, not planned or part of an organised activity. It was submitted that the same considerations in assessing the criminality under s 76, referred to in relation to BR applies in relation to the matter.

  3. The offence took place at around the time period involved in Sequences 7 and 8 although there is no suggestion of other offending involving this victim who was the Offender’s sister-in-law. It occurred when the victim was in a vulnerable position in bed and the offending act was preceded by cuddling. The duration of the touching of the nipples was not described but it involved one hand up and down the nipples.

  4. I accept that referable to the kind of conduct covered by s 76, the conduct falls in the relatively less serious range although the victim was aged between 8 and 9 and there was a 20 year age difference. The offence involved circumstances where the victim was staying over at the Offender’s house and was entitled to trust the Offender.

Sequence 14

  1. This offence occurred at a time when DDV was aged 6, which the Crown submitted was well below the threshold age of 16 years. There was a 33 year age gap between the victim and the Offender. The victim was the Offender’s niece.

  2. The Crown submitted that this offence nevertheless fell towards the lower end of the range.

  3. The Defence submitted that the age of the victim and the nature of the offending, involving touching of the nipples increased the seriousness of the offending however, it was opportunistic and not planned or part of an organised activity. It was submitted that similar considerations in assessing the criminality of the offence under s 76 earlier referred to apply. [8] There was no violence or threat of violence and no aggravating features under s 21A(2). [9]

    8. The 1900 Act

    9. The 1999 Act

  4. Referable to the kind of conduct covered by s 76 [10] the physical act involving touching of the nipples falls within the less serious end of the spectrum. The duration was not described but both hands were used and accompanied by words telling the victim “you’re pretty and winking.” The seriousness of the offence however is accentuated by the victim being aged 6; there being a 33 year age difference. The victim was told not to tell anyone and the incident which occurred several other times when the victim stayed with the Offender. This does not aggravate the offending but denies it leniency on the basis of it being isolated. The offence involved circumstances where the victim was entitled to trust the Offender as she was living with him and his wife while her parents were overseas.

    10. The 1900 Act

Offences relating to BR – Sequences 1, 3 and 12

  1. The Crown submitted that the victim was aged between 5 years and 12 years at the time of these offences, and the age gap between the victim and the Offender was about 33 years. It noted that the victim was friends of the Offender’s children. It was acknowledged that these were not isolated incidents.

  2. In relation to Sequence 1, the victim was 5 or 6 years old, being well below the 16 year age threshold for the offence. It noted that it involved the Offender obtaining an erection whilst the victim was sitting on his lap and commencing to rock back and forth such that the victim could feel his erect penis. This offence, it was argued, fell within the middle range, but not at the bottom of the range.

  3. In relation to Sequence 12, it was noted that the victim was 8 years old, again well below the 16 year age threshold and that the Offender placed his finger insider the victim’s underpants and touched her vaginal area until the victim yelled out and the Offender stopped. The nature of the act of indecency was said to increase the gravity of the offending.

  4. Taking account that other children were present when this offence occurred, it was initially argued it approached the middle of the range. [11]

    11. Crown Submissions at [25]

  5. In relation to Sequence 3, it was noted that the victim was between the age of 10 and 12 years. The victim walked in whilst the Offender was masturbating and the Offender looked at her and continued. This offence, the Crown submitted, fell at the lower end of the range. [12]

    12. Crown Submissions at [26]

  6. The Defence contended that in relation to Sequence 1, this lasted only a short time as there is no evidence of ejaculation and the Offender was clothed as was the victim and there was no skin on skin contact. It was accepted that the age of the victim, being 5 to 6 years old, elevated the seriousness of the matter. Nevertheless, there was no violence or threat of violence used and the offence would appear to be opportunistic rather than planned. The Offender was not in a position of authority and there were otherwise, no aggravating factors under s 21A(2). [13]

    13. The 1999 Act

  7. In relation to Sequence 12 the Defence submitted that the victim was little bit older than in respect of the first matter, however the act of indecency was more serious; there being skin-on-skin contact in touching the victim’s vaginal area. No violence or threat of violence was involved. There was no evidence to suggest that the other children whose ages are not identified saw or perceived what had occurred that the offences had taken place. [14]

    14. Alesbhi v R; Esbhi v R [2018] NSWCCA 30 at [46]-[57]

  8. It was submitted that the Offender was not in a position of authority in respect of Sequence 12 offence.

  9. In respect of Sequence 3, the Defence submitted that this was at the very lowest point of criminal behaviour, there being no physical touching of the victim, no evidence the Offender ejaculated, and the offence was opportunistic. It was noted that the Offender was already engaged in the act, and continued in that act after the victim entered into the room. It was noted that there was no violence or threat of violence and that the Offender was not in a position of authority.

  10. The agreed facts do refer to some grooming behaviour involving stroking the victim’s hair and telling her how beautiful she was on occasions although the timing of that behaviour is not identified.

  11. In respect of Sequence 1, I cannot determine the duration involved although the agreed facts do record that it involved rocking back and forth and the Offender obtaining an erection. The agreed facts do not evidence skin-on-skin contact however the age of the victim is of significance to the seriousness of the offending. The offending conduct encompassed by s 76A of the 1990 Act embraced “commits any act of indecency” or “incites a girl to any act of indecency with him or another.” In having the victim sit on his lap, the victim was entitled to trust the Offender. Overall I would accept that it involves a mid-level of seriousness.

  12. In respect of Sequence 12, the victim was older, at age 8, but this offence involved skin on skin contact around the vaginal area such that the victim yelled out. I accept that there is no evidence that other children perceived what had occurred and the event was of a relatively short duration. It occurred in circumstances where the victim was taken to the park to learn how to ride a bike and was entitled to trust the Offender.

  13. In respect of Sequence 3, it is not apparent what the duration of the offending behaviour was, however it continued after the Offender saw the victim. I accept that it commenced before the victim entered the lounge room and nothing was said to the victim and there was no exposure involved. The victim was older at between 10 and 12 years of age. I accept that this offence falls in the lower end of seriousness.

Sequence 13

  1. HDD was 10 or 11 years old and at the time, there was a 31 year gap between the victim and the Offender. HDD was the Offender’s niece. The Offender placed his hand inside the victim’s underpants and rubbed the area above her vagina.

  2. The Crown submitted that the nature of the act of indecency increased the gravity of the offence, added to by the fact that there were other children present[15] and that the offence fell between the lower end and middle of the range.

    15. The Crown subsequently did not pursue this argument under s 21A(2). See letter dated 23 March 2018.

  3. The Defence submitted that the objective seriousness of the offence was more than the matters involving NC and DDV, in that it involved acts of indecency which involved skin-on-skin contact above the vaginal area where the public hair was. It was argued that the offence was opportunistic, the Offender was not in a position of authority and the same considerations in relation the s 76 charge outlined in relation other matters apply in this instance.

  4. There was no suggestion of other offending involving this victim. Although it occurred where the victim was seated opposite the Offender’s son there is no evidence that he saw or perceived what had occurred. [16] Although the duration of the incident was not described, the circumstances suggest it was short.

    16. Alesbhi v R; Esbhi v R [2018] NSWCCA 30 at [46]-[57]

  5. I accept that referable to the conduct embraced by s 76, this falls in the lower level of seriousness.

Subjective Factors

Background

  1. The Crown noted that the Offender was now 78 years of age, and was aged between 30 and 46 at the time of the offending.

  2. In a psychologist‘s report prepared by Ms Megan Godbee, [17] the Offender recounted that he grew up in South Hampton as the middle of three children. Despite the absence of his father for the first five years of life, he had a positive relationship with his parents although more so with his mother who he described as protective. He informed Ms Godbee that his own childhood was lonely, stating that he spent most of the time alone or with his mother. His older brother left home at 18 years of age and they have led separate lives and he has no contact with him. He had a closer relationship with his younger brother, however he died at age 57.

    17. Exhbit 1 (17 January 2018)

  3. The Offender was schooled in England until age 16 years. He stated that he worked as an apprentice engineer on ships after leaving school. The Offender left home at age 21 and migrated to Australia in 1963. He found employment at the Shell Oil Refinery shortly after his arrival and worked in a variety of roles over his 28 year working history which included tradesman, supervisor and safety advisor.

  4. Since retiring, he continues to do odd jobs such as lawn mowing and scrap metal collecting to supplement his income.

  5. The Offender married his, now, wife in 1965. In the presentence report the Offender describes himself as devoted to her. He had two biological children from the relationship who were unwell and died at around 14 and 18 months. [18] The circumstances of their illness and death were described by the Offender’s wife in a statement tendered before me. [19] The Offender’s wife referred to the effect on the Offender as resulting in him falling to pieces and being devastated.

    18. Presentence report at p2 although the in Exhibit 1 it is described as 20 months and 14 months. In Exhibit 2 the deaths are reported to have occurred in 1970 and 1972.

    19. Exhibit 3

  6. Thereafter, the Offender and his wife adopted two children in 1972 and 1974. He has two grandchildren from his adopted daughter under the age of 2. He informed Dr Roberts consultant psychiatrist, that his daughter had no concerns in regard to his interaction with those grandchildren.

Plea of Guilty

  1. The Crown acknowledged that a plea of Guilty, in respect of all matters was entered on the day of Committal at Burwood Local Court, following negotiations, a 25% discount was appropriate, having regard to the timing and utilitarian value of the plea. The Defence accepted this position and I proceed on that basis.

Prior Record/Prior Good Character

  1. The Offender had no prior criminal history, a matter I take into account. [20] .

    20. s 21A(3)(e) of the 1999 Act

  2. The Defence submitted that the Offender was a person of prior good character pursuant to s 21A(3)(f) of the 1999 Act.

  3. The Crown however submitted that, notwithstanding the fact that the offences are not included in those referred to in s 21A(5A), the Offender’s prior good character would be given little weight, given the lengthy time over which the offending took place, being that the good character which he had prior to the commission of the present offences was substantially eroded.

  4. I bear in mind the time period over which the offending occurred. I accept the Offender’s prior good character is to be afforded relatively less weight over the time the offending occurred. [21]

    21. R v PGM [2008] NSWCCA 44 at [43]-[44]

Remorse

  1. In relation to remorse, the Crown contended that whilst there was some evidence of remorse and victim empathy, it was limited. The Defence accepted this position.

  2. In the pre-sentence report, it was noted that the Offender:-

“… highlighted that he was not sure of what impact his actions had on the victims but is apologetic for any impact he may have had. The Offender reported that the offences occurred in a period of significant stress but advised that he was not attempting to justify his actions.”

  1. Further, the psychological report prepared by Ms Godbee, Psychologist, [22] stated that:-

“[The Offender] indicated that he has pleaded guilty to the facts as outlined, adding that he disagrees with some the contextual details but accepts that he engaged in the sexually abusive behaviour. He stated that he entered a guilty plea to spare his wife the distress of her family members having to go testify in Court against him, and because he feels remorseful. [The Offender] added that he feels “guilty but not 100% because of some of the inaccuracies. He said that “if I go to prison, so be it, but I don’t deserve it,” although I note that he expressed anxiety about a prison sentence on multiple occasions throughout the interview.

By way of explaining his behaviour, [The Offender] indicated that his offending occurred around the period of his sons’ illness and deaths. His account continued to focus on the stress this period caused for his wife, but he did not report any changes to their relationship including their sex life. [The Offender] suggested that, as his sons were generally non-responsive (e.g. they did not smile or make eye-contact and could not be hugged), he was “reaching out” for a relationship with a child who would response to him. While this may have been a contributing factor, it is hypothesised that [The Offender’s] offending was also precipitated by his emotional distress and a disrupted relationship with his wife at the time, although he did not report this when asked. In my opinion, it seems unlikely that a couple would maintain daily sex while coping with practical and emotional sequelae of tow terminally ill children, unless this is reflective of sex as a coping strategy or over-prioritising their sexual relationship.” [23]

22. Exhibit 1 (17 January 2018)

23. Exhibit 1 at [37]-[38] (17 January 2018)

  1. The offending continued for a period of up to 10 years after the death of the Offender’s second child in August of 1972. It is difficult to accept the Offender’s claim that he was reaching out for a relationship with a child who would respond, against the background that his conduct being overtly sexual. Whilst the Offender is reported to have stated that he “does not have a sexual preference for children” [24] the agreed facts suggested that he had a sexual interest in children at the time of the offences. Dr Roberts describes the offences and falling within the DSM5 psychiatric diagnosis of paedophilic disorder. [25]

    24. Exhibit 1 at [26] (17 January 2018)

    25. Exhibit 2, p 2 (15 January 2018)

  2. Beyond this the Offender made reference to other factors including stress with his employment. Dr Roberts concluded that on reasonable psychiatric grounds these would not be causative of the Offender’s behaviour. [26]

    26. Exhibit 2, p 2 (15 January 2018)

  3. The Offender’s explanations seek to minimise his responsibility for what occurred.

  4. In all the circumstances, I accept that remorse is limited. It does not meet the requirement in s 21A(3)(i) of the 1999 Act.

Prospects of Rehabilitation/Likelihood of Reoffending

  1. In assessment of the Offender’s prospects of rehabilitation, the Crown drew attention to the “mixed evidence of expressions of remorse and insight.” Despite this the Crown accepts that the Offender is unlikely to reoffend, having regard to his age and lack of opportunity of further offending as well as the absence of further offending since 1986.

  2. The Defence submitted that the fact that there had been no offending for over 30 years, would indicate that there are prospects of rehabilitation. Further it was evidenced that the offending occurred within the confines of the extended family and in the case of BR, the neighbour’s child. The Court could therefore conclude it was said that the Offender was not at risk to the children in the general community and there has been isolation from his family, such as to encourage rehabilitation.

  3. In R v Pogson; R v Lapham; R v Martin, McClellan CJ at CL and Johnson J stated:-[27]

[124] By contrast to deterrence, rehabilitation has as its purpose the remodelling of a person’s thinking and behaviour so that they will, notwithstanding their past offending, re-establish themselves in the community with a conscious determination to renounce their wrongdoing and establish or re-establish themselves as an honourable law abiding citizen: Vartzokas v Zanker at 279 (King CJ).

27. [2012] NSWCCA 225

  1. Dr Roberts in his report opines that by virtue of the efflux of time and the Offender’s general health status, he does not have a sexual drive that requires controlling and would consider the Offender to be at the lowest end of risk. [28] Ms Godbee is of a similar view. [29]

    28. Exhibit 2, p 2 (15 January 2018)

    29. Exhibit 1 at [46] (17 January 2018)

  2. Despite the Offender’s limited insight as to his offending behaviour and minimisation of it, I accept that by reason of a lack of opportunity and age the Offender is unlikely to reoffend. I am fortified in this view by the length of time that has elapsed without further offending such that I am satisfied he has good prospects of rehabilitation.

Effect on Third Party

  1. The Offender drew attention to the effect of the Offender’s concern for his wife should he be incarcerated.

  2. I accept that by reason of the offending involving family members the Offender’s wife who has stood by her husband and is somewhat isolated in social relationships. The presentence report observes that the Offender and his wife have withdrawn from all groups since the charges snice the charges and that he spends all his time with her and they undertake their activities together.

  3. The report of Ms Godbee also refers to the Offender stating that his wife had a double knee replacement and she struggles to walk unsupported. Before commencing my sentencing remarks I was informed that the Offender’s wife had since the sentence hearing been hospitalised and would remain for 6 weeks following which she would be subject to 6 months rehabilitation.

  4. The Defence did not submit that any of these circumstances constituted exceptional circumstances. Nevertheless it was submitted that the fact that the Offender provides his wife with considerable assistance meant that incarceration would have an adverse effect on her and accordingly was a factor to be taken into consideration.

  5. There is authority for the proposition that even if such an effect on a third party does not rise to the level of "exceptional" it can be taken into account as part of the general factual matrix in selecting an appropriate sentence and in relation to the length of the non-parole period. [30]

    30. see R v Bednarz [2000] NSWCCA 553 at [51] - [52]; Elsobky v R [2006] NSWCCA 168 at [17] - [21]; Dipangkear v R [2010] NSWCCA 156 at [29] and [40].

  1. There is evidence of a relationship between the Offender and his adopted daughter and grandchildren. [31] As at 14 November 2017, the Offender’s adopted son was not speaking to him according to the account recorded by Dr Roberts. It is not apparent as to what is the relationship between the Offender’s wife and her adopted children.

    31. Exhibit 2, p 4 (15 January 2018)

  2. Overall, the evidence on the matter was quite sparse and untested. That aside, the impacts described are not uncommon in situations of this kind involving elderly Offenders and family members.

Special Circumstances

  1. The Crown accepts that if the Court were to impose a sentence of full time imprisonment, a finding of special circumstances would be appropriate, having regard to the sentencing practices at the time of the offences and the onerousness of custody, given the Offender’s age and health. At the time of the offending, the Parole and Prisoners Act 1966 was in force prior to 27 February 1984 and the Probation and Parole Act 1983 (NSW) came into effect from 28 February 1984 until 24 September 1989. Neither of these Acts prescribed a statutory ratio, but the cases at the time suggests that it should be a third to a half. [32]

    32. Mottram v R [1989] NSWCCA 210 at [41]-[42]; AJB v R [2007] NSWCCA 51 at [39]; PWB v R [2011] NSWCCA 84 at [64].

  2. Beyond the practice at the time, the Crown also submitted that it was appropriate to have regard to the Offender’s health and age.

  3. In the pre-sentence report, the Offender reported that he experienced a number of medical issues including back pain that could be exacerbated from the participation in community service work. The medical assessment completed by the general practitioner outlined limitations of activities due to ongoing medical issues such that it was unable to be accommodated for community service work due to his unresolved medical issues and associated restrictions.

  4. A number of reports of Dr John Roberts, Consultant Psychiatrist were tendered. In his first report of 9 October 2017, Dr Roberts noted that the Offender currently regarded himself as depressed equating it with the severity he had when he lost his parents. He referred to caring for his wife as a concern for him that he was not communicating well with his son. He admitted the presence of suicidal thoughts and contemplated going to the roof and jumping but was restrained by thoughts of his family.

  5. Dr Roberts records that the Offender had undergone an appendectomy, a tonsillectomy and adenoidectomy, a ruptured ulcer; that he sustained episodes of gassing and acid burn which were work related but that he had never claimed compensation. He noted that he had a history of abdominal aortic aneurysm which had been treated and a brain aneurysm which is monitored. Other physical complaints related to the presence of a blood disorder, namely monoclonal B cell lymphocytosis which he understood to be subject to correction, not requiring any intervention.

  6. On one occasion, he informed Dr Roberts, that he had sought counselling in the context of having escaped injury when a machine blew up at work but he was absent and he had commented that he had been in the context of his employment, part of the emergency team which was required to deal with problem arising during the operation of the Clyde Refinery. Though he had seen a psychologist in relation to the current matters, he stated that he did not listen to him and produced distress.

  7. Dr Roberts noted significant findings from a psychiatric viewpoint relating to MRI brain findings associated with mild to moderate generalised prominence of the ventricles and certain CSFs basis, slightly more affecting the right temporal lobe of there being mild to moderate presumed microangiopathic changes. Dr Roberts noted that was an abnormal cerebral perfusion study and these studies demonstrate physical evidence of organic cerebral deterioration. He noted that the Offender on a Mini-Mental State Examination by Folstein obtained a score of 22 out of 30 which was indicative of mild dementia.

  8. In a subsequent report of 15 January 2018, Dr Roberts noted that the mild dementia was not to the extent that the Offender was incapable of instructing his solicitors in making decisions in relation to his pleas. Nevertheless it would reduce his capacity to cope with the complexities of prison life should a custodial sentence be imposed. Insofar as his other medical history involving a repair of an abdominal aortic aneurysm, he was aware of problems arising in such repairs as a result of physical trauma and would consider that the Offender would be at increased risk of assault due to the nature of his crimes. Mr Roberts further noted having received correspondence from Dr Mauro Vicaretti, Vascular and Endovascular Surgeon, commenting on the maintenance of appropriate blood pressure levels.

  9. A medical history obtained by Ms Godbee, [33] indicated that information contained in reports from Dr Roberts and Mr Cipriano were accurate. It was recorded that the Offender had a history of high blood pressure and presented with multiple risk factors for heart disease which is being monitored by Cardiologists. An aortic aneurysm was detected and stented appropriately 8 years ago and he suffered from 3 collapses since that time which he believes were related to stenting procedures. He currently has a cerebral aneurysm that was being monitored by his treating doctor.

    33. Exhibit 1 (17 January 2018)

  10. During work, the Offender is reported to have been exposed to dangerous gas and acids, resulting in him losing consciousness on one occasion, requiring hospitalisation. the Offender reportedly lost his sense of smell whilst at the refinery, but this improved slightly when he changed jobs. He also has chronic tinnitus. The Offender reported multiple health concerns, although his day-to-day functioning is not currently being impacted on. He indicated that he had been prescribed Zan-Extra for high blood pressure, Zimstat for high cholesterol and Somac for reflux, and all these medications are working as intended without causing significant side effects. The Offender reported that a recent blood test had indicated that he has low blood platelets, which his doctor attributed to a thyroid issue that a is a precursor to leukaemia. He indicated that he is not experiencing a noticeable symptoms but his doctor had estimated that he had 2 to 3 years until he develops cancer. The Offender described this as distressing news to hear, but stated that he will “carry on until [that] happens”.

  11. The Defence did not submit that the health condition of the Offender was such that imprisonment would have a severely adverse effect. However it noted that the pre-sentence report stated that his condition was such that he is unsuitable for community service work and that both his age and health are matters which the Court can take into account, although they do not themselves amount to exceptional circumstances. It drew attention to his good prospects of rehabilitation.

  12. I accept that the Offender’s circumstances are such as to make any time in custody more difficult.

  13. Overall I accept that by reason of the Offender’s age, health and the sentencing practices of the time, that any time in custody will be the Offender’s first and the fact the Offender is unlikely to reoffend it is appropriate to make a finding of finding of special circumstances.

SENTENCE

  1. The Crown submitted that the threshold in s 5 of the 1999 Act had been met such that having given consideration to all possible alternatives no penalty other than a penalty of imprisonment was appropriate.

  2. The Defence submitted that whilst the s 5 threshold had been met, particularly in Sequences 8 and 12, the overall length of any term would likely be less than 2 years such that alternatives to full-time imprisonment should be considered. More specifically it was argued that the sentence would be suspended under s 12 of the 1999 Act.

  3. It was specifically submitted that offences that did not meet the s 5 threshold should be the subject of a bond under s 9 of the 1999 Act.

  4. So far as the offences against SDV, DDV and BR were concerned, they were not isolated. Whilst I accept that the Offender is to be sentenced on the basis only of the offences before the Court, I take into account the surrounding circumstances of the offending consistent with what was said in Baines v R. [34]

    34. [2016] NSWCCA 132 at [5]-[7] Basten JA (with whom Rothman J and Fargan J agreed)

  5. In considering the question of general deterrence, I bear in mind the comments of Hamill J In MC v R:-[35]

[57]... There are some circumstances in which it has been held that a particular kind of Offender may be an “inappropriate vehicle” for sentences containing a large component of general deterrence. That includes children and young Offenders and Offenders who suffer from an intellectual disability or mental illness of some kind. Such a principle might also be invoked, albeit rarely these days, when offences are committed “on the spur of the moment, either in hot blood or in drink or both”. However the fact that an Offender is elderly and infirm, along with the other subjective and mitigating circumstances that were established on the applicant’s behalf, are not matters that generally lead to a diminution of the role of general deterrence.

35. [2017] NSWCCA 316 (with whom Simpson JA and Rothman J agreed)

  1. As to the question of the impact of delay in sentencing on the question of general deterrence, the comments of R A Hulme J in R v Hall [36]  must be borne in mind. His Honour referred to the comments of Howie J in R v Moon [37]  where it was later stated that:-

[81]... In a case such as this where there has been such a lengthy delay between offence and sentence and where the Offender is rehabilitated, it is the fact of imprisonment rather than the length of the sentence which will be of greatest significance to punish the Offender and denounce his conduct. Although general deterrence is important it can never be allowed to dictate a sentence which is not proportionate to the offence committed or appropriate to punish the particular Offender before the court.

36. [2017] NSWCCA 313 at [71]-[74] (with whom Simpson JA and Wilson J agreed)

37. [2000] NSWCCA 534

  1. Referring to these observations, R A HulmeJstated:-

[71]... It has not been generally applied to the sentencing of Offenders of otherwise good character for historical sexual offences; at least insofar as this Court is aware. The comment has been referred to in only a few subsequent cases. There are references in the judgments of Adams J in Versi v R [2013] NSWCCA 206 at [185] and of R S Hulme AJ in Henderson v R [2016] NSWCCA 8;256 A Crim R 519 at [86] but they were each in dissent. The others were AJB v R [2007] NSWCCA 51; 169 A Crim R 32, GRD v R [2009] NSWCCA 149, PWB v R [2011] NSWCCA 84; 216 A Crim R 305 and RL v R [2015] NSWCCA 106.

[72] Each of these cases had some unusual features over and above a lack of further offending in the period between the offences and the sentencing and negligible prospects of re-offending. It can also be noted that those cases concerned historical sexual assaults upon children in a domestic context in contrast to the present case which involved, bluntly, a violent rape of a woman at knife point.

[73] In the present case, the primary judge was wrong to refer to Howie J’s comment in R v Moon at [81] as one that was “authoritative” in application to any case in which there was “delay in a matter’s disposition and there has been demonstrated rehabilitation in the meantime”.

[74] A more apt reference to R v Moon would have been paragraphs [70]-[71] which appear in the context of Howie J dealing with the general question of sentencing for historical offences. This passage was approved in R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368 at 384 [107]; [2002] NSWCCA 129 (Sully J, Spigelman CJ, Grove J and Newman AJ agreeing). This case involved a five-judge bench of this Court convened to consider the question of sentencing for historical offences when sentencing practices in the intervening period have moved adversely to an Offender. Sully J agreed with the judgment of Spigelman CJ on the question of principle. His judgment otherwise dealt with the facts of the case at hand. He agreed with the following passage from the judgment of Howie J in R v Moon:-[38]

“The nature of the criminal conduct proscribed by an offence and the maximum penalty applicable to the offence are crucially important factors in the synthesis which leads to the determination of the sentence to be imposed upon the particular Offender for the particular crime committed. Even after taking into account the subjective features of the Offender and all the other matters relevant to sentencing, such as individual and general deterrence, the sentence imposed should reflect the objective seriousness of the offence: Dodd (1991) 57 A Crim R 549, and be proportional to the criminality involved in the offence committed: Veen v The Queen(1979) [1979] HCA 7; 143 CLR 458. Whether the sentence to be imposed meets these criteria will be determined principally by a consideration of the nature of the criminal conduct as viewed against the maximum penalty prescribed for the offence.

When sentencing an Offender for offences committed many years earlier and where no sentencing range current at the time of offending can be established, the court will by approaching the sentencing task in this way effectively sentence the Offender in accordance with the policy of the legislature current at the time of offending and consistently with the approach adopted by sentencing courts at that time.”

38. [2000] NSWCCA 534

  1. In sentencing, it is necessary to denounce the offending, punish the Offender, make him accountable and recognise the harm to victims.

  2. I acknowledge that greater awareness by judges of the effects of such offending on the victims of such crimes has led to a significant increase in sentences for that type of offence over the past few years. Yet the law is that I must effectively ignore this increased awareness. I must sentence the Offender according to sentencing principles and ranges which we now know to be wrong.

  3. Further, I must have regard to the maximum penalties earlier referred and follow the approach enunciated by Howie J in R v Moon. [39] In doing so, I acknowledge that many of the offences are historical and those offences and applicable maximum penalties are a feature of earlier times.

    39. [2000] NSWCCA 534 at [70] (Fitzgerald JA concurring)

  4. I should emphasise the sentence that I will impose upon the Offender is much more lenient than I would impose upon him if I applied present day sentencing principles and a proper understanding of the harm that sexual offending causes.

  5. Having said that, the sentence needs to provide for general deterrence. I accept that the Offender is unlikely to reoffend and specific deterrence and need for rehabilitation carry less weight .Nevertheless in my view, no sentence other than imprisonment would meet the purposes of sentencing set out in s 3 of the 1999 Act.

  6. I intend to proceed by way of aggregate sentence under s 53A of the 1999 Act. The indicative sentences I would impose are as follows:

  1. Sequence 7 but for the plea of guilty I would have sentenced the Offender to 8 months imprisonment. In light of the plea I would have sentence the Offender to 6 months imprisonment. (Max: 5 years)

  2. Sequence 8 (SDV) but for the plea of guilty I would have sentenced the Offender to 16 months imprisonment. In light of the plea I would have sentenced the Offender to 12 months imprisonment. (Max: 5 years)

  3. Sequence but for the plea of guilty I would have sentenced the Offender to 12 months imprisonment. In light of the plea of guilty I would have sentenced the Offender to 9 months imprisonment. Max 6 years – s166 2 years

  4. Sequence 14 but for the plea of guilty. I would have sentenced the Offender to 16 months imprisonment. However in light of the plea I would have sentenced the Offender to 12 months imprisonment (Max: 5 years – s166 2 years)

  5. Sequence 1 but for the plea of guilty I would have sentenced the Offender to 12 months imprisonment however in light of the plea I would have sentenced the Offender to 9 months imprisonment. (Max: 2 years)

  6. Sequence 12 but for the plea of guilty I would have sentenced the Offender to 18 months imprisonment. In light of the plea I would have sentenced the Offender to 13 months imprisonment. (Max: 6 years)

  7. Sequence 3 but for the plea of guilty, I would have sentenced the Offender to 6 months imprisonment. In light of the plea I would have sentenced the Offender to 4 months imprisonment. (Max: 2 years)

  8. Sequence 13 but for the plea of guilty I would have sentenced the Offender to 16 months imprisonment. However in light of the plea I would have sentenced the Offender to 12 months imprisonment. (Max: 5 years – s 166 2 years)

  1. In sentencing the Offender, I bear in mind the principles of totality, accumulation and concurrency. There is of course some overlapping criminality although 5 victims were involved. Beyond that I have regard to the sentencing practices at the time of the offending which provided for a greater level of concurrency. [40]

    40. MC v R [2017] NSWCCA 316 at [44]

Orders

  1. The Offender is convicted on each Count.

  2. Pursuant to s 53A of the 1999 Act, [41] the Offender is sentenced to serve an aggregate term of imprisonment of four years to date from today and to expire on 5 April 2022. I find special circumstances for reasons previously given and vary the statutory ratio in s 44 of the 1999 Act.

    41. 1999 Act

  3. The Offender is to serve a non-parole period of 2 years from 6 April 2018 to 5 April 2020 and an additional term of two years to commence on 6 April 2020 and to expire on 5 April 2022, during which he shall be eligible to be released on parole.

  4. The Offender’s earliest release date in 5 April 2020.

Endnotes

Decision last updated: 19 April 2018

Cases Citing This Decision

0

Cases Cited

21

Statutory Material Cited

3

Suleman v R [2009] NSWCCA 70
Peiris v R [2014] NSWCCA 58
Alesbhi v R; Esbhi v R [2018] NSWCCA 30