R v Fuchsia (a pseudonym)

[2024] NSWDC 611

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Fuchsia (A pseudonym) [2024] NSWDC 611

Hearing dates:

25 November 2024

Date of orders:

10 December 2024

Decision date:

10 December 2024

Jurisdiction:

Criminal

Before:

Grant DCJ

Decision:

The offender is sentenced to a term of imprisonment of 9 years, commencing on 14 June 2023 and expiring on 13 June 2032, with a non-parole period of 6 years. The offender will be eligible for parole on 13 June 2029.

Catchwords:

CRIME — SENTENCING — Historical child sex offences — 3 counts of sexual offending against victim — Where victim was stepdaughter of offender — Where offender was a respected member within the Church — Where victim reported offences to Church elders years after offending — Offender admitted to offending and removed from position within Church —Mid-range of objective seriousness — Breach of trust — Offending committed for sexual gratification — Low risk of re-offending — Limited remorse and insight demonstrated by offender — Importance of deterrence when sentencing for sexual offending against children.

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 Of 2002 [2002] NSWCCA 518

EG v R [2015] NSW CCA 21

Hornhardt v R [2017] NSWCCA 187

R v Cattell [2019] NSWCCA 297

R v CMB [2014] NSWCCA 5

SW v R [2013] NSWCCA 255

Category:

Sentence

Parties:

Rex (Crown)
Fuchsia (A pseudonym) (Offender)

Representation:

Counsel:

Ms K MacKenzie (Crown)
Ms S Kluss (Offender)

File Number(s):

2023/00190424

Publication restriction:

Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (“the Act”), there shall be no publication of any information that would reveal or tend to reveal the identity of the complainant, including the names of family members of the complainant, the name of the offender, and the complainant’s address details.

JUDGMENT

INTRODUCTION

1. The offender appears for sentence on three charges:

1. Sequence 6, carnal knowledge of girl between the ages of 10 and 17 years, where he engaged in penile‑vaginal intercourse contrary to s 73 of the Crimes Act. The maximum penalty was 14 years imprisonment. There is no standard non‑parole period.

2. Sequence 9, sexual assault category 3, person under 16 years of age. The offending involved digital penetration contrary to s 61D(1) of the Crimes Act. The maximum penalty is 10 years imprisonment. There is no standard non-parole period.

1. There is one matter on a Form 1 referable to this sequence, which is sexual assault category 3, person under 16 years of age contrary to s 61D(1) where the maximum penalty is 10 years.

3. Sequence 10, sexual assault category 4, (assault female and commit act of indecency). The offender performed cunnilingus on the victim. The offence is contrary to s 61E(1) of the Crimes Act. The maximum penalty is 6 years imprisonment. There is no standard non-parole period.

1. There are two offences on a Form 1 which are referable to sequence 10. They are sequence 7, commit act of indecency on a female under 16 years, s 76A of the Crimes Act, maximum penalty of 10 years, and sequence 8, assault female and commit of indecency under 16 years contrary to s 76 of the Crimes Act, maximum penalty is 6 years.

2. The maximum penalties are an important guide in the assessment of sentence.

FORM 1

3. In considering the Form 1 matters, I apply the principles enunciated in Attorney‑General application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2022 [2002] NSWCCA 518. The Court is to impose a sentence for the totality of the criminality before it, reflected in both the offence for which the offender is to be sentenced and the offences taken into account. This may mean that the sentence passed is greater than that which would have been appropriate for the principal offence standing alone. The fact that matters on a Form 1 are to be taken into account means that greater weight should be given to personal deterrence and retribution.

4. As part of the instinctive synthesis approach to sentencing, the Court takes the Form 1 matters into account as required by the statute in determining the appropriate penalty for the offence for which the offender is convicted.

5. There will be an increase in the sentences for the offences to which the Form 1s are attached for personal deterrence and retribution.

VALUE OF THE PLEA

6. The offender was arrested on 14 June 2023.

7. On 18 July 2023, the offender entered pleas of guilty in the Local Court and was committed for sentence. He is entitled to a 25% discount of the indicative sentences.

8. The offences occurred between 1 July 1980 and 31 December 1983. The commencement date of sentence will be 14 June 2023.

SECTION 25AA(3)

9. The Court is to have regard to the trauma of sexual abuse on children as understood at the time of sentencing.

10. The victim’s victim impact statement was read by her husband to the Court. The statement identifies a number of lies told by the offender which have impacted the victim; he lied to her mother and siblings, forcing her out of the house; he lied to his church. Those lies made her a helpless, sad, and a very angry young teenager who was not believed. She bravely persisted to bring about justice. She has experienced nightmares, flashbacks, and feelings of abandonment. The abuse resulted in her resort to drugs and alcohol as a form of self‑medication while the offender continued to live a comfortable family life.

11. She acknowledges his apology but says,

“...but you know sorry will never, ever repair the damage you did to a young girl and the trauma you caused me. You had everyone think I was a liar and a homewrecker. You disgust me. I don’t know how you lived with this. Actually, I do know; it’s your arrogance that got you through and your smugness.”

12. She says:

“I failed high school due to the abuse happening from year eight to ten. I simply couldn’t concentrate at school. Failed grades meant I couldn’t pursue my dreams at being in the medical field.”

13. She has had a psychological evaluation. She has complex post‑traumatic stress disorder with personality disorder due to the trauma inflicted by the offender. The Court is mindful that “child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives”: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52].

14. Courts recognise long‑term and serious harm, both physical and psychological, which premature sexual activity can do.

FACTS

15. At Tab 3 of Exhibit 1 is a statement of agreed facts. I summarise those facts as follows:

16. The offender is the step‑father of the victim. The offences took place in the period 1980 to 1983. During this period, the offender was aged between 28 and 31 years and the victim aged between 13 and 16 years. The offender had married the victim’s mother in 1976. The victim and her brother would visit their mother and the offender on long weekends and school holidays. For the balance of the time, they lived with their father.

17. In 1980, the victim moved to live with her mother and the offender. She started Year 8 at the local school and the family were practicing members of the Jehovah Witness Church.

18. On at least one occasion in the period 1980 to 1981, the offender walked into the victim’s bedroom whilst she was in bed with her eyes closed. She opened her eyes and saw him masturbating while watching her (Form 1 sequence 7 attached to sequence 10). He left the bedroom.

19. Between 1980 and 1981, the accused tried to force his penis into the victim’s mouth as she lay in her bed in her bedroom (Form 1 sequence 8 attached to sequence 10).

20. Between 1 January 1981 and 31 December 1982, the offender came into the victim’s bedroom, removed her underwear, and licked her vagina. The victim rolled over and faced the wall, and the offender left. The offender agreed this occurred multiple times (sequence 10).

21. Between 14 July 1981 and 13 December 1982, the offender came into the victim’s bedroom. He knelt to her bed, removed her pyjamas and underwear, and inserted his fingers into her vagina for a period of time and then left. The offender admitted that this occurred “dozens of times” (plea of guilty to sequence 9).

22. During the offending against her, the victim did not react or move. In an effort to keep the offender away she would announce when she had period as she believed he could not come near her.

23. On 29 July 1981, the victim woke to see the offender leaning at the end of her bed. He then started licking her vagina, and then ejaculated on the floor (Form 1 sequence 5 attached to sequence 9).

24. In December 1982, the family was on a camping holiday at Bateau Bay. The victim was sleeping in a tent with her step‑brothers. The victim woke to find the offender holding her down. The offender forced his penis into her vagina, and this caused her pain. He said, “Just be quiet, [victim’s name].” The following day, the victim’s mother told her she had to move out of home. The victim moved to a share house in Hornsby in January or February 1983.

25. Subsequent to the offending in 1989, the victim spoke to church elders about the offender’s abuse. On the first occasion, he denied it. On the second occasion in 2000, she was told by church elders that the offender had admitted to the offending.

OBJECTIVE SERIOUSNESS

26. Sequences 9 and 10 occurred in the home of the victim. The offender was in a position of authority and there was a gross breach of trust. The victim was vulnerable.

27. In assessing the objective seriousness, I take into account the following factors in relation to offence individually:

1. The form of conduct;

2. The degree of violence, if any;

3. The affliction of any physical hurt;

4. Any circumstances of humiliation;

5. The duration of the offence;

6. The age difference between the offender and the victim;

7. The inequality of the relationship between the offender and the victim.

28. The offender is the step‑father of the victim. The offending was predatory and involved ongoing abuse by the offender against a vulnerable child. It was a gross breach of trust.

29. The offending was between 1 July 1990 to 31 December 1983. They were not isolated acts. The agreed facts speak of multiple instances of abuse, for example, regarding sequence 10 (cunnilingus), the offender agreed it occurred multiple times; sequence 9 (digital penetration), the offender admitted that this occurred dozens of times. During the offending, the offender was aged between 28 and 31 years, and the victim was aged between 13 and 16 years; sequence 6 (penile‑vaginal intercourse), the victim woke to find the offender holding her down. He then forced his penis into her vagina causing pain and told her to be quiet. The sex was unprotected.

30. The sexual activity involved penile‑vaginal intercourse, digital penetration, and cunnilingus. The offending was for the offender’s sexual gratification.

31. The family home is a place where a child has a right to feel safe. The offending against the victim in this place undermined a child’s right to safety and security. She should have also felt safe in a tent on a family holiday. All of the offences are serious. However, sequence 9 is the most serious offence involving penile vaginal intercourse.

32. I accept the Crown’s submission that the offending is mid-range for all offences.

SUBJECTIVE CIRCUMSTANCES

33. The offender has no criminal record. This has some weight. However, prior good character or lack of prior convictions often goes hand in hand with the commission of child sexual offences which span over a number of years.

34. There is a sentence assessment report dated 20 November 2024 which informs me of the following. The offender has been married to his current wife for 18 years. He operated his own building maintenance company for 25 years. He was also receiving a part pension when he entered custody. Since entering custody, he has shut down his business and has retired. Since the offending, he appears to have led a pro-social existence.

35. He described a selfish attitude when he committed the index offences. He admitted his desire for sexual gratification overrode any considerations as to the consequences of his actions, inclusive of the harm he was causing the victim.

36. A CSNSW psychologist has assessed the offender as posing a very low risk of sexual reoffending. The offender expressed regret for his actions. He acknowledged the harm his actions caused the victim. He further acknowledged that the victim has been denied closure up until this point, furthering her trauma and expressed hope that this sentencing may provide her with some sort of closure. He has been assessed as a low risk of re‑offending according to the Level of Service Inventory Revised.

37. The following materials were tendered on behalf of the offender:

1. A report of Dr Timothy Chow dated 29 July 2024.

2. Two letters from the offender. One typed dated 25 November 2024, one handwritten dated November 2024.

3. A letter from his current wife, dated 15 November 2024.

4. Reference from a friend, dated 7 November 2024.

5. Report of Dr Paul Pusey, Clinical and Forensic Psychologist dated 2 November 2024.

38. The report of Dr Pusey informs me of the following. The offender left school after completing year 10. He received his school certificate. He was employed at the time of his arrest. He indicated that he was the owner and operator of a specialised cleaning business that he ran for 26 years. He closed the business following his arrest. He had to; it was a one-man business.

39. He remains married to his second wife. They were married in 2006. His first marriage had a duration of 24 years. The sexual abuse of her daughter led to the breakdown of the relationship. He has had a problematic relationship with alcohol. He was diagnosed with prostate cancer in 2015 to 2016.

40. The Barr 2002 test was administered which showed the offender was at a very low risk of general and violent criminal recidivism. The Static-2002R test was administered which showed that the offender is in the low-risk category.

41. He denies having a history of previous criminal offending which precedes the charges for which he is before the Court for sentence. Over the course of his assessment process, he displayed a fluctuating level of insight into the causal mechanism behind his offending. It is, however, a positive diagnostic indicator that he is able to recognise the impact of his behaviour on his victim and that he appears to display genuine guilt and remorse in relation to his offending and its consequences, says Dr Pusey.

CONTRITION/REMORSE

42. The Crown submit that his varied responses to the psychologist such as “selfish of my sexual needs” and “she never said, ‘stop, lock the door or complain so I wrongly assumed it was something reciprocal ... I shouldn’t have overstepped the way I did” point to a lack of insight. There was some merit to this submission.

43. The offender denied the offences for some 18 years. He did express shame and remorse in the pretext call. He voluntarily attended Hornsby Police Station and made full admissions. I accept that there is some degree of contrition and remorse on the part of the offender.

PROSPECTS OF REHABILITATION

44. The offender has good prospects of rehabilitation. The offences occurred in the early 1980s. He has not committed any offence since the offending ceased. He has been assessed as a low risk of offending. I am satisfied that he will not be before a court again.

DELAY

45. Ms Kluss submits that delay in this matter is a significant mitigating factor.

46. The victim made disclosures to the church. Lamentably the church failed to report it to authorities. When first confronted by elders, the offender denied the allegations.

47. In 1989, the victim reported the allegations to a new body of elders. Nothing was done. It was not until 2000 that the elders contacted the victim to tell her that the offender had confessed everything to them.

48. It is appropriate for the Court to consider the steps taken towards rehabilitation following the period of offending and prior to sentence. It is relevant to the considerations of whether the Court can make a finding on balance that the offender is unlikely to reoffend and whether there are good prospects of rehabilitation.   

49. Delay, as a consideration cannot overwhelm the sentence proceedings, nor can it be allowed to take precedence over matters such as general deterrence, denunciation and recognition of harm; see R v Cattell [2019] NSWCCA 297. In Cattell, Price J at [135] referred to Hornhardt v R [2017] NSWCCA 187 for the proposition that:

“In historical sexual assault cases, a child sex offender does not necessarily benefit from an extensive delay and the revelation of offences.”

50. In Cattell at [140], Price J said:

“It is well settled that the Todd principle does not apply to a state of uncertainty experienced by an offender who remains silent and hopes that his offending remains undetected.”

51. The passage is apposite to the circumstances of this case. Delay is but one of many factors I take into account in arriving at an appropriate sentence. It does not form a dominant role in the sentencing matrix.

SECTION 21B

52. The offender was charged on 14 June 2023. s 21B applies to proceedings that commenced on or after 18 October 2022. s 21B(1), (2) and (4) replaced s 25AA (1), (2) and (4), but expanded the requirement to sentence in accordance with current sentencing practices and patterns to all offences rather than to child sexual offences only.

53. I asked the parties to identify the sentencing pattern existing at the time of sentence. The parties were unable to identify any discernible sentencing pattern.

54. Given the relatively recent enactment of s 21B and s 25AA, I am not surprised that the parties have been unable to provide sufficient Judicial Commission statistical material to assist the Court in determining current sentencing patterns.

55. In sentencing the offender, I have taken into account:

1. The sentencing pattern existing at the time of sentence where such a pattern is able to be discerned.

2. The facts as now available to the Court.

3. The maximum penalty and standard non-parole period, if any, applicable at the time of the offence.

4. Where the offence falls in the range of objective gravity.

5. Any relevant aggravating and mitigating factors in s 21A(2) and (3).

6. A non-parole period in accordance with s 44 as operative at the time of sentence.

7. Fixing of the balance of term.

SPECIAL CIRCUMSTANCES

56. I find special circumstances due to the age of the offender and this being his first time in custody. There will be an alteration of the statutory ratio.

SENTENCE

57. Totality has a role to play. Each offence is separate and distinctive. There should be some accumulation between offences within the totality principle.

58. The maximum penalties are a measure of how serious the offences are viewed by parliament and the community. They carry with them implicit instructions to courts that harsh or retributive sentences with a focus on both specific and general deterrence are required. Courts act with the ultimate aim of protecting children from exploitation. A proper sentence marks the court’s view of the seriousness of a crime and should let other wrongdoers know that retribution will fall upon them if they commit similar crimes. A sentence must reflect the community’s abhorrence of, and concern about adult sexual abuse of children. Parliaments do not enact maximum penalties as mere formalities. Chief weight is to be given to general deterrence and denunciation of the offender’s conduct.

59. I accept that specific deterrence has little, if any role to play due to the offender’s demonstrated rehabilitation and his contribution towards his community (see references and letters from his wife).

57. The concern of the courts is to send a message to those who would sexually abuse children intentionally and repeatedly, that their reactions will not be tolerated and that they will receive significant punishment: EG v R [2015] NSW CCA 21, Hoeben CJ at CL at [42].

58. I take into account that the time spent in custody has been affected by a COVID lockdown despite that the worst of the pandemic has resolved in the community.

ORDERS

62. The offender is convicted.

63. The indicative sentences are as follows.

1. Sequence 6, carnal knowledge, penile vaginal intercourse, 6 years. But for the 25% discount, the sentence would have been 8 years.

2. Sequence 9, s 61D(1), digital penetration with a Form 1 offence attached, 3 years and 3 months. But for the 25% discount, the sentence would have been 4 years and 4 months.

3. Sequence 10, s 61E(1), cunnilingus with two offences on a Form 1 referable to that sequence, 2 years and 3 months. But for the 25% discount, the sentence would have been 3 years.

64. I impose an aggregate sentence of 9 years commencing on 14 June 2023 which will expire on 13 June 2032. I impose a non-parole period of 6 years whereby the offender will be eligible for parole on 13 June 2029.

**********

Amendments

24 December 2024 - 24/12/24 - Surname of counsel spelling corrected.

Decision last updated: 24 December 2024