R v F
[1998] TASSC 74
•24 June 1998
74/1998
PARTIES: R
v
F
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 128/1998
DELIVERED: 24 June 1998
HEARING DATE/S: 11 June 1998
JUDGMENT OF: Slicer J
CATCHWORDS:
Criminal Law - Particular offences - Other offences against the person - Sexual offences - Sentencing - Indecent assault on daughters committed twenty years ago - Conduct of offender more extensive than particularised - Ability of Court to take into account surrounding circumstances - Effect of sanction on well-being of victims.
Abel v R A94/1994, applied.
S v R (1989) 168 CLR 266; R v Bayley A77/1972; Inkson v R A5/1996, referred to.
Duncan v R (1982 - 1983) 47 ALR 746, followed.
Aust Dig Criminal Law [175]
REPRESENTATION:
Counsel:
Accused: G A Hay
Crown: M P Bugg
Solicitors:
Accused Glenn Hay & Associates
Crown Director of Public Prosecutions
Judgment category classification:
Court Computer Code:
Judgment ID Number: 74/1998
Number of pages: 8
Serial No 74/1998
File No 128/1998
THE QUEEN v F
REASONS FOR JUDGMENT SLICER J
24 June 1998
F has pleaded guilty to five counts of indecent assault on his two daughters on occasions occurring between January 1976 and February 1981. The issues raised during the course of the sentencing hearing warrant some analysis of the approach required to give effect to competing principles and the interests of the victims, offender and the community.
Those issues are concisely defined by Professors Bowman and Mertz in an article entitled A Dangerous Direction: Legal Intervention in Sexual Abuse Survivor Therapy (1996) 109 3 Harv L Rev 551, which although concerned with third party proceedings, deals with the inter-relationship of the legal process with the primary aim of assisting in the recovery of the victim. They state at 593 - 596:
"Last, but certainly not least, the community at large has substantial interests in this area of law, including (1) the deterrence of child abuse, (2) the rehabilitation of adult survivors who without treatment may live less productive lives, become abusers themselves, or possibly engage in violent crime, (3) the appropriate use of the courts, and (4) the maintenance of families.
First, the community has an interest in deterring child abuse by calling abusers to account and by encouraging mental health professionals to investigate and to intervene in situations of suspected abuse. Mandatory child abuse reporting laws in every state illustrate the strength of this public policy interest.
Second, the community has an interest in the rehabilitation and treatment of adult victims of childhood abuse, given the apparent correlation between past child abuse and crime. Additionally, many abusers have themselves been sexually abused in childhood. To stop this cycle of violence requires at least two types of intervention: first, calling abusers publicly to account in order to stop them from abusing, to deter others, and to make it clear that society will not condone such behavior; and second, treating children wounded by abuse before the pattern is repeated in the next generation.
…
Third, society has an interest in the appropriate and efficient use of its court system; this consideration underlies traditional policy arguments based upon administrative convenience.
…
Fourth, and finally, society also has an interest in protecting families from disruption. On the one hand, therapy leading to 'recovered' memories of abuse and to intrafamilial law suits for civil damages or criminal remedies for that abuse can be very disruptive of family unity and tranquillity. If the state's interest is seen, as it historically has been, as the maintenance of the family as a private unit, shielded from public intervention even if it is internally dysfunctional, one might say that maintenance of family unity for its own sake is in the interests of the state. On the other hand, the state could embrace another vision of family, one that allows change and challenges to traditional authority. Therapy that exposes the harmful weaknesses of old patterns may ultimately strengthen all families. It permits individuals injured by family abuse to recover and allow reconciliation and reunion and new and healthier patterns within the family of origin. If the family of origin does not survive the disruption, such therapy causes deep pain to the individuals involved; but when the family has been dysfunctional, the root to the development of healthier families, including those of abuse survivor's own children, lies through such disruption."
An issue arising from competing interests and principles is in what manner and to what extent should a sentencing tribunal assess and give effect to the impact of sanction on the future well-being of the victim. The long term effects of sexual abuse on children have been extensively documented, as have the effects of the legal process. Both areas have been outlined by Professor Oates in his article The Effects of Child Sexual Abuse (1992) 66 ALJ 186, and in relation to the effects of the legal process, he states at 190 - 191:
"Another area which seems to cause problems for sexually abused children is the investigation and court hearings. Several authors have written that multiple interviews and legal interventions can affect the child adversely. In one study involving 173 cases, more than 1,000 court appearances were required. These factors can cause extra stress, resentment and tension for the children as well as their parents. It is particularly difficult for a child to testify against an abuser who may have been a trusted friend or teacher. The harmful effects on young children of repeated questioning by multiple authorities in the adversarial proceedings involved in criminal court have been well documented.
A 1983 English study carried out the only systematic research on the effects of the court upon sexually molested children. These researchers found that when they compared child sexual assault victims whose cases went to court with a sample of sexually abused children whose cases did not go to court, 82 per cent of the group which went to court showed overt signs of disturbance compared with 44 per cent of the group which did not go to court. However, their results may have been biased as the cases which went to trial were more serious cases.
One study, which surveyed judges rather than children and their families found that 84 per cent of the judges surveyed felt that children who testified in court were emotionally traumatised by this. This opinion is widely held by therapists and other mental health professionals who work in the field of child sexual abuse in the United States, with some feeling that the effects of the social and legal systems may be as damaging or even more damaging in some cases than the abuse itself, with a considerable amount of psychological damage stemming from the way the situation is handled by parents, medical personnel, law-enforcement officers, courts and social workers. However, it would be wrong to blame the system for the adverse effects of child sexual abuse. Adverse psychological sequelae are common following child sexual abuse although there is evidence that in some cases the investigations and court appearances which follow may exacerbate these symptoms if they are not done with due consideration to avoiding further emotional stress to the child."
The resolution by court process can either assist or inhibit well-being. Sanction which is inadequate in the eyes of the victim can produce a heightened sense of betrayal by the "system". Retribution which exceeds the victim's expectation can exacerbate guilt in that the act of reporting and involving the criminal justice system has harmed a family member for whom some affection or emotion remains, despite the criminal conduct. In the circumstances of this case, the adult children have complex and mixed emotional responses to their offending parent.
Course of Conduct
The complainants are the daughters of the offender. T, the elder, was aged between 10 and 13 when the acts of sexual abuse were committed, whilst the two crimes involving S occurred when she was 12 years old. Three incidents are particularised in relation to T, each based on particular events recollected by her. But it is apparent they are representative of a continuing course of sexual conduct. No crime of maintaining an unlawful sexual relationship had been prescribed by Parliament at the relevant time, and it is contrary to experience and common sense to expect a child to remember and be able to particularise specific acts many years subsequent. Conversely, it is unfair to require any person to defend general allegations relating to conduct some twenty years previous. As Dawson J observed in S v R (1989) 168 CLR 266 at 274 - 275:
"There was, I think, obvious embarrassment to the applicant in having to defend himself in relation to an indeterminate number of occasions, unspecified in all but two instances, any one of which might, if it occurred in one of the relevant years, constitute one of the offences charged. There was the additional embarrassment that the years in the second and third counts overlapped so that if an occasion fell within the overlapping period it was not possible to determine whether it was an offence charged by count two or by count three.
The occasions upon which the offences alleged took place were unidentified and the applicant was, in effect, reduced to a general denial in pleading his defence. He was precluded from raising more specific and, therefore, more effective defences, such as the defence of alibi. Because the occasions on which he was alleged to have committed the offences charged were unspecified, he was unable to know how he might have answered them had they been specified. It is not to the point that the prosecution may have found it difficult or even impossible to make an election because of the generally unsatisfactory evidence of the complainant. An accused is not to be prejudiced in his defence by the inability of the prosecution to observe the rules of procedural fairness."
The contradictions of logic and principle impose on the criminal justice system, in the area of sexual abuse, a tension for which its history is ill designed. Yet, absent acceptable alternatives, it is appropriate that the community and individual victims require redress for past wrongs whilst demanding procedural fairness. The observations of Dawson J in S v R (supra) relate directly to the need for procedural fairness in the defence of a prosecution. Where there has been a plea of guilty or conviction, a sentencing court is permitted to take into account the context and surrounding circumstances of the proven crimes. In Abel v R A94/1994, the findings of the trial judge following a verdict of guilty that:
"'The evidence of the complainant was that the crimes charged by the indictment were the particular episodes of sexual abuse which she was able to recall with particularity but that they were but a few of the occasions on which the accused had sexually assaulted her, he having done so with great frequency whenever he had the opportunity to do so. It is trite law that I am to sentence the accused only for the crimes of which he stands convicted but at the same time the setting in which they were committed is a relevant matter.
…
The verdicts of the jury do not require me to act in accordance with the assertion of the accused that he indecently assaulted the complainant only on isolated occasions.'" (Cox J at 8.)
were not the subject of criticism by the Court of Criminal Appeal. That approach will be followed.
The Court will pass sentence on the basis of the acts particularised, but will regard their commission as forming part of, and in the context of, a course of conduct not committed out of character. In relation to S, an incident on one occasion is alleged, based as it is on her recollection of a particular occurrence, although her description clearly placed the event in the context of a course of conduct. Society punishes its members for conduct clearly alleged and found to have occurred. Sexual misconduct against children within a family does not easily admit precise recounting of history. Yet experience shows that such conduct should not be considered in isolation.
In this case, the offender, to his credit and with an acknowledged desire to avoid further harm to his daughters, does not contend that the events should be considered as isolated occurrences, nor ones committed out of character. The sentence reflects significant regard to his concession.
The conduct involving T consisted of acts of touching the breasts and vagina, digital penetration and oral contact with the vagina. The crime involving S comprised acts of touching the vagina. The persistency of conduct is offset by the fact that the father did not attempt penile penetration, nor persist with sexual abuse beyond the puberty of each daughter.
Passivity
There was some suggestion made by the offender in his interview with police officers that some of the conduct continued because of lack of opposition by the victim, and his counsel tentatively advanced such material as a mitigating factor. In fairness to both counsel and the offender, the proposition was quickly abandoned. It could not be said that the offender possesses a sophisticated understanding of the complexities of adult, let alone juvenile, sexuality. Yet to any adult it ought be apparent that a child faced with sexual depredation is ill equipped to make response. Confusion, fear, love, respect for position, absence of understanding and sheer inability to make response makes passivity inevitable. No allowance is afforded this tentative proposition.
Background of Offender
F was raised in an ethos different from that currently observed. His familial relationships differed from those more commonly observed at the time of his sentencing. It would appear that his wife and the mother of his two daughters had been similarly abused within her own family. It is said that her sexual abuse had made her less than emotionally and sexually relaxed with the offender. It is said that such in turn made him more physically and emotionally isolated, which in turn led him to seek the solace of love from his daughters. The repetition of abuse from generation to generation (both sexual and physical) has long been documented. But the perpetuation of forms of physical sexual abuse can never be condoned, and any claim of emotional need ought not permit justification of physical gratification. The sentence will reflect a recognition of the offender’s greater susceptibility to sexual impulse, but not of historic inevitability.
The psychiatric report of Professor Jones shows that the offender has strong feelings of guilt and accepts that his conduct "was totally wrong, immoral with immense social implications". He understands "that he should pay a penalty and that the other's can't be healed unless he does so." He is isolated from his family and has become socially withdrawn. He has a long history of productive employment and has served his country in Vietnam as a member of the Royal Australian Navy. Regard is had to the plea of guilty, proven remorse and the unlikelihood of further repetition of criminal conduct.
Effect on Victims
Both daughters have suffered significant trauma as a consequence of the conduct of their father. Both had either repressed or avoided the memory of conduct for many years. In 1990, there occurred a family discussion concerning an act of sexual depredation by another family member. The discussion resurrected long-standing memories. This is not a case of the so-called "recovered memory" syndrome, but one involving the natural recollection by persons who have attempted to "get on with life". The resurrection has had significant consequence. At the time of reinstatement of memory, both victims were affected by the conduct of another family member. Given that there might be legal proceedings commenced against that person, it is not appropriate that detailed consideration be given to the effect of such conduct. It is sufficient to state that the claimed conduct of that alleged offender and the stated reaction of both complainants make it quite clear that the psychological harm suffered by both should not be regarded as being wholly derived from their father. Much of the long term harm derives from another, although the sense of betrayal by a father is a highly significant factor. S has suffered psychological trauma which has impacted on her everyday life and affected her marital relationship. Psychological testing indicates the existence of post-traumatic stress disorder and an anxiety scale in the severe range. In the opinion of the reporting psychologist, "functioning in all areas of her life is impaired". She will suffer ongoing harm and will require ongoing treatment. Her perceived need to protect her children from the possibility of abuse has meant that "normal extended family relationships and gatherings are not possible for S and her husband and children". The harm suffered by S cannot be solely attributed to the offender. She had been sexually molested by another family member, and it would appear from her present response, in that she holds the other in far greater contempt and is more hostile to that person than to her father, that she has suffered greater harm from the other. The penalty reflects that difference. T has been likewise affected, and again much of her trauma is a consequence of the conduct of another family member who apparently displays no remorse and accepts no responsibility for his conduct or the harm caused. She also will suffer ongoing harm and require long-term treatment. Again, the penalty will reflect the fact that a significant cause of trauma was the conduct of another.
Time Between Occurrence and Sentence
Some twenty years have elapsed between the occurrence of some of the crimes committed and the date of sentence. No statute of limitations ought exist to prevent conviction and sanction, yet the conduct of an individual between commission and detection is a matter relevant to sentence. In cases where there is considerable lapse of time between the commission of a crime and the imposition of sentence, not caused by the offender, the courts are entitled to take into account a range of mitigating factors including the type of life led by the offender subsequent to the offence as being evidence of rehabilitation (Smith v R (1981 - 1983) 7 A Crim R 437) and the effect of a sentence of imprisonment so long after the event (Crawley v R 1981 36 ALR 241). In this case, a further relevant factor is the disintegration of the personal life of the offender since he was confronted in 1990 with his past conduct (R v Todd [1982] 2 NSWLR 517). In Duncan v R (1982 - 1983) 47 ALR 746, the Court of Criminal Appeal (WA), in discussing the general proposition stated by the Queensland Court of Appeal in Bell v R (1981) 5 A Crim R 347, stated at 749:
"'When it has been demonstrated by evidence that society does not need to be protected from the applicant, should the punitive and deterrent aspects of the sentencing process be allowed to prevail, and possibly destroy rehabilitation which has been shown to have taken place': see Dunn J (Wanstall CJ concurring) in Bell v R (1981) 5 A Crim R 347 at 351. In Bell's case the court decided that the learned sentencing judge unduly fettered his sentencing discretion by believing that only custodial punishment could be imposed. The case is authority for the proposition that where, prior to sentence, there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation."
In his comments in passing sentence in Brown (3 September 1986), a case involving unlawful sexual intercourse, Green CJ regarded the lapse of time as significant, stating:
"In this particular case I am also strongly influenced by the fact that the crimes were committed some twenty years ago. That is a fact which must be given considerable weight, particularly when, as in this case, the delay in prosecuting the matter has not been caused by any action on the part of the accused, such as fleeing the jurisdiction."
A similar approach was taken by Zeeman J in Rimmer (9 July 1997), and Underwood J in Hoskinson (19 June 1989) and the principle accepted by the Court of Criminal Appeal in Abel v R (supra). In the circumstances of this case, significant regard is afforded to the lapse of time between crime and sentence. However, regard is also had to the countervailing factor that the lapse of time has significantly affected the psychological health of both complainants.
In this case, there is an additional complexity. The misconduct of the offender was disclosed, in general terms, in 1990. Had there been legal process and early resolution, there might well have been less psychological harm. It is impossible to determine the course of human conduct and response, but the for the purpose of sentence it is accepted that the greater trauma quite understandably suffered by both daughters in 1998 might have been lessened had the matter been resolved in the period 1990 - 1991.
Law and Family Relationships
There is little problem in the criminal justice system punishing conduct occurring within a family. Community interest demands the imposition of sanction where there is violence against those who are unable to defend themselves. Acts of physical violence whereby the victim is unable or unwilling to call for retribution require community, rather than personal, response (R v Bayley A77/1972). But acts of non-violent sexual depredation defy simplistic response. A child betrayed by a parent does not necessarily lose love or affection for that parent.. A child criminally touched does not necessarily seek custodial sanction. A member of a family might desire the continuation of the family unit, rather than irretrievable fracture. In some jurisdictions, the victim is afforded the opportunity to decide whether the disposition of a particular case should be by means of criminal or diversionary process. The application of sanction which does not take into account the needs of a family relationship does not accord with the principles of utility. This approach differs from that applicable to a desired response by the general community (Inkson v R A5/1996). In the circumstances of this case, the issue is real. Following disclosure of the offender's conduct, the family unit disintegrated. Yet the daughters retain an attitude to their father different to that which they quite understandably display to their grandfather. The ambivalence of their response is a significant factor in the determination of sentence. In the case of S that ambivalence was expressed by the reporting psychologist in the following terms:
"S experiences an ongoing sense of upheaval and conflict because of her relationship with her father. She expresses anger and hurt and emotional pain because of his abuse of her, whilst at the same time, she has a sadness and concern for him."
Whilst for T:
"… there has been a great deal of emotional anguish in relation to her father. Despite his abuse of her, she has loved him and is concerned for his well being. At the same time, she needs to address the fact of his treatment of her and its effects, so that she often experiences conflicting emotions and thoughts about him."
There is fracture to the family unit, but the aim of the Court is to prevent irredeemable further harm.
During the course of the sentencing hearing, the complainants articulated, through Crown counsel, their response to this tension. Their commendable response was that they required not vengeance but justice. Regrettably the concept "justice" is one which law, with all its imperfections, is unable to provide. The courts ought pay regard to community response, while not giving way to unreasoned cries for vengeance (Inkson (supra)), but ought not ignore the possibility that the sanction might cause further unnecessary harm to the victim. For a child to feel greater harm by the imprisonment of a parent for sexual crimes long committed would be an inappropriate use of the criminal justice system. Yet to give total effect to the dilemma of a child of the offender would be equally a betrayal of the community and that child. The Court would be abrogating its responsibility and passing such to the child, and this ought not be permitted. In the case of T and S, the Court accepts that both require retribution, and at the same time, hope that their father will not suffer because of their complaint. The Court understands and respects their wishes. The responsibility for the sanction is that of this Court alone. Their dilemma is heard and taken into account, but the determination of the Court is not solely based on their response, but on the wider needs of the community.
Suspension
The offender accepted responsibility for his abuse of parental power in 1990. The family discussed the trauma of family betrayal and continued with its collective response for some time. Had the matter been fully confronted at that time, the collective harm might have been lessened, although no blame whatsoever can be attributed to any person or group for the understandable desire to keep the matter from "formal process". Nevertheless, the subsequent effects of the family break up, the attempted suicide by the offender and his attempts to show remorse and make recompense are matters which affect the question of suspension. The offender has commenced a new life, but is not unmindful of his obligation to make recompense to his family.
The ambivalence of the complainants is also relevant to the extent of the suspension. The sentence will evidence their regard for his conduct, whilst the suspension of part will reflect their compassion for a father once loved and respected before betrayal.
Conclusion
The conduct of the offender, although many years previous, requires the sanction of imprisonment. Greater regard is had to the circumstances of the complainants than to those of the offender. In this case, their complex and ambiguous response to their father operates to his benefit. Their compassion and understanding permit some amelioration, as does the desire by this Court not to make the fracture within the family irredeemable or to add to the emotional burdens of both complainants. The suspension of a portion of the sentence is intended to reflect their interests. In reality, the same sentence ought be imposed in relation to the crimes committed against each complainant, but the principles of sentencing, based as they are on the crimes alleged in the indictment, require, despite the approach permitted by Abel v R (supra), differing sanctions. Neither complainant ought believe that the penalty reflects any difference in the harm suffered by each. The effective sentence is one of imprisonment for a period of sixteen months.
Orders
That in relation to counts 1 - 3 of the indictment, F be sentenced to a term of imprisonment for a period of ten months.
That in relation to counts 4 and 5 of the indictment, F be sentenced to a term of imprisonment for a period of six months, such sentence to be cumulative to that already imposed.
That the operation of the last twelve months of the cumulative sentence of sixteen months be suspended upon condition that F commit no crime or offence involving sexual misconduct for a period of four years.
I direct that the victim of crime compensation levy of $250 be paid to the Clerk of Petty Sessions, Hobart within six months of the date of release from prison.