R v Gladstone

[2021] NSWDC 312

District Court

New South Wales

Medium Neutral Citation:

R v Gladstone [2021] NSWDC 312

Hearing dates:

9 July 2021

Decision date:

09 July 2021

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence of 3 years 3 months with a non-parole period of 2 years.

Catchwords:

CRIME- Attempt sexual intercourse without consent - sexual touching.

SENTENCING - relevant factors on sentence – sentence after trial - offences against step daughter - first offender - hardship to family - time on remand - is a custodial sentence required.

Legislation Cited:

Crimes Act 1900

Crimes (Administration of Sentences) Act 1999

Cases Cited:

Brown v R [2020] VSC 60

Cahyadi v Regina [2007] NSWCCA 1

Dipangkear v R [2010] NSWCCA 156

Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1

Gore v R [22010] NSWCCA 330

Hoskins v R [2016] NSWCCA 157

Mill v The Queen (1988) 166 CLR 59

Nguyen v The Queen [2016] HCA 17

R v Edwards (1996) 90 A Crim R 510

R v Robertson [2017] NSWCCA 205

R v Simpson [2001] NSWCCA 534; 53 NSWLR 704

Silvano v R [2008] NSWCCA 18; (2008) 184 A Crim R 593

Category:

Sentence

Parties:

Mark Gladstone (the offender)
Director of Public Prosecutions

Representation:

Counsel:
Mr G Scragg (for the offender)

Solicitors:
Hansons (for the offender)
Mr D Coulton, Solicitor Advocate Director of Public Prosecutions.

File Number(s):

2020/00099864

Publication restriction:

A non-publication order pursuant to the Courts Suppression and Non publication Orders Act 2010 has been made in order to protect the identity of the complainant. Given her relationship with the offender that order also covers the offender.

Pseudonym have been used for the name of the offender, the complainant and others. There is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of them or their families. Identifying information has been removed from this version of the judgment to comply with that order.

SENTENCE

Introduction

1. On 12 May 2021 Gladstone was indicted and said he was not guilty of 6 serious offences - four counts of alleged sexual touching and two of attempt sexual intercourse: ss 61 KC and 61I/344A Crimes Act 1900. The complainant in each case was his stepdaughter, Anna.

2. On 20 April 2021 a jury of 12 acquitted him of one count of sexual touching but found him guilty of the remaining 5 counts. He is for sentence today.

3. Gladstone must have the full benefit of his acquittal but the verdicts indicate that the jury accepted what was said by Anna. The acquittal can be explained by the jury giving Gladstone the benefit of the doubt on an element of the offence that requires that the touching be sexual and or Gladstone’s knowledge that Anna was not consenting. Otherwise I can comfortably proceed to sentence on the basis that the jury accepted Anna’s account.

4. Gladstone is not to be punished for his exercising his right to trial but as the matter did go to trial. He cannot get the benefits of a reduction in sentence often given those who spare the complainant the ordeal of giving evidence and who accept responsibility and express remorse.

Facts for sentence

5. Gladstone and his second wife Lisa lived on the South Coast of NSW with their two children and Anna; Lisa’s daughter from her first marriage. In mid-2018 Anna moved to a town in South Western NSW. In October 2019 Gladstone’s wife Lisa was admitted to hospital in Sydney. The family arranged to stay in a motel near the hospital so that they could support her. Anna, then aged 18, joined the family at the motel.

6. As arranged, Gladstone, Anna and Gladstone’s son stayed in a room with a very large bed and small trundle bed. Anna’s older sister and her partner stayed in another room. An issue in the trial was who slept in the big bed. The jury by their verdicts must have accepted that it was Gladstone and Anna.

7. On the first night in the motel nothing untoward happened. On the second night Anna gave Gladstone a massage. He reciprocated. It was not unusual for Anna and Gladstone to give each other massages. However on this occasion Anna said something unusual happened. She said that while Gladstone was massaging her shoulder and back his hands touched her on her side near her breasts below her bra line. She felt uncomfortable and went to the bathroom - nothing was said: Count 1 – the Acquittal.

8. Later that evening the two went to sleep in the big bed. Gladstone’s son was asleep in the trundle bed. Although in one sense present, as he was not aware of what occurred this is not a matter that could aggravate the sentences.

9. Anna woke up on her back with her right leg was over Gladstone’s leg or legs. Gladstone's hand was down on her vagina. He touched it. There was a gentle but repeated touching of her leg, belly, breast and vagina.

10. She particularised five aspects of the touching:

1. Gladstone used his fingers to touch her clitoris and clitoral piercing: Count 2.

2. There was then an attempt to put his finger inside her vagina by pushing on the area “where the hole is’: Count 3.

3. He moved his hands over her body and breasts: Count 4.

4. There was a second touching of the clitoris and clitoral piercing: Count 5.

5. There was second and final attempt to put his finger into her vagina: Count 6.

11. Anna then moved so as to give Gladstone an indication she was waking up. He stopped touching her. She left the bed and went out of the motel room to have a cigarette. She spoke on the telephone to her then partner and told him "Gladstone molested me."

12. Anna then returned to the room. She dressed, packed and left. She made an excuse to Gladstone about her partner’s grandmother being ill. On the way South she exchanged texts with Gladstone; telling him “Maybe you could tell Mum why I left.”

13. To his reply “U told me it was [the boyfriend’s] nan was rushed to hospital in Canberra” she responded “You know the real reason.” There were further texts from Gladstone of a general nature but the following morning Anna wrote “ow could you do this to me, I have so many unanswered questions you were my dad I seen you as my dad you were meant to protect me and you did what you did to me…” She expressed similar sentiments via text over the next few days. Gladstone responded but his side of the text conversation ignored the allegations being made.

14. In evidence Gladstone denied each allegation, telling the jury that the two did not sleep together in the big bed. Given my directions to the jury it is self-evident that they rejected his account.

Objective Seriousness

15. The actual character of each touching incident, including the degree of physical contact involved, is of considerable significance in assessing the objective seriousness of attempt sexual intercourse and sexual touching offences.

16. Here, each act was relatively brief but the acts were repeated. Each involved skin on skin contact with the complainant’s body.

17. Gladstone touched her body in an intimate way with some particular focus on the vaginal area. The most that can be said is that for counts 3 and 6 while digital pressure was placed on the complainant’s vagina he did not use additional force to penetrate it. That the s 61 offences were attempts involving no penetration and quite brief means that by comparison with many other such offences, taking into account only what was done; they fall at the lower end of objective seriousness.

18. The acts involved in the sexual touching offences were however relatively serious examples of the type of offences within section 61KC(a).

19. There are, however, other objective factors beyond the physical. The offender was nearly 50 - his stepdaughter was just 18. He breached the trust Anna had in him. She regarded him as her father but he ignored their relationship and treated her as object to be abused. He was indifferent to her as a person. Although he had been drinking this could not and does not excuse what he did. His actions were persistent and repetitive. He exploited the fact the complainant came close to him while asleep and the fact she was apparently asleep. He exploited his step daughter for his own prurient purposes.

Structure

20. While I must indicate individual sentences for each matter the overall incident must also be considered as the various charges seek to encompass the whole of the offender’s criminal conduct that night. A sentencing judge is required to impose an appropriate sentence for each offence and to structure the sentences such that the overall sentence is just and appropriate to the totality of the offender’s crimes: Mill v The Queen (1988) 166 CLR 59 at 62-63; Nguyen v The Queen [2016] HCA 17.

21. Gladstone’s conduct meant that more than one offence was charged and punishment must be exacted for each. However, where the offences are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences can reflect the criminality of both: Cahyadi v Regina [2007] NSWCCA 1; Nguyen v The Queen at [36] – [40]. Each indicated sentence could not properly reflect all that was done by Gladstone to Anna nevertheless, there can be considerable concurrence when the aggregate sentence is formulated.

Victim impact

22. I have received and considered Anna’s Victim Impact Statement (VIS). Anna told me of the immediate impact of the offending on her and the consequent harm she still feels. She had lost her biological father to cancer and Gladstone had become her father figure and the person she “trusted most in the whole world. He in a moment turned into her abuser. She said Gladstone had “hurt and broke her.’ His acts caused her to question “every little detail of my whole existence, blaming myself and wondering how I missed it all.”

23. She still struggles with trusting and forming attachment to others. She has learnt to hate.

Maximum Penalty

24. While every offence and every offender requires individualised treatment courts must in the exercise of their undoubted discretion take guidance from a number of sources. They include; the maximum penalties prescribed; here for a s 61I attempt offence - 14 years imprisonment and for sexual touching 5 years. They include the decisions of other courts particularly those designed to give guidance; a number of which were summarised in the written submissions of Gladstone’s counsel; MFI 2 They also include of course, the purposes of sentencing, which here importantly include the deterrence of this offender and others from committing similar crimes and proper recognition of the harm done to the complainant and the community.

Subjective case

Evidence

25. Exhibit 1 has annexures A to N including a report of Dr Nielssen, a forensic psychiatrist, and addendum, medical reports relating to Gladstone’s wife and references.

26. His referees speak of an honest and trustworthy man, dedicated to his family; a decent employer whose family is his first priority. They vouch for his good character. A friend who knows of his ADHD said she had observed how well he managed that condition without it negatively affecting others.

27. Dr Neilssen set out Gladstone’s personal and medical history. In his opinion despite ADHD being “a condition often over diagnosed” Gladstone suffers from it. ADHD is a form of inherited neurological abnormality. Dr Nielssen reasons that given Gladstone’s past good behaviour and absence of convictions there is a low probability of further offending. Counselling can further reduce any risk. He will however need to continue his medication as ADHD can lead to loss of concentration and a tendency to act on impulse.

28. The offender is now 52 he has only one matter on his record; a driving offence for which was fined. He can be treated as a first offender. Until his arrest he worked with his father in a successful engineering business that had operated for over 30 years.

29. As a child he had learning difficulties and problems with concertation. As an adult he sought treatment and was diagnosed with ADHD. In recent years he saw a psychiatrist and was prescribed anti-depressant ADHD medication. He reports periods of depression and anxiety. He was, however, able to complete a motor mechanic’s apprenticeship relying on his practical skills rather than reading ability. He has together with his father run a successful business that employs about 13 staff.

30. He has been in custody since 1 April 2020. Bail applications were refused by Justice Ierace and me. This sentence must accordingly start from that date.

Family hardship

31. Before Gladstone’s arrest he was the main career for his wife and young son (then 7). His wife has a debilitating illness, neurosarcoidosis – a disease of the central nervous system. She has a number of other chronic conditions and needs a lot of help and support at home. She is in progressive decline and is subject to chronic fatigue and other disabilities. She requires a large range of medications. More operations are scheduled.

32. His son has an intellectual disability and ADHD; manifested in delayed speech and other psychological and physical difficulties. He requires occupational therapy, learning support and speech therapy. He is much better when supported by familiar adults, as despite a lot of energy, he is easily frustrated and prone to withdrawal. He needs routine and structure in his life. His wife’s debilitating conditions means she alone cannot care for their son. He needs both his parents.

33. There is a considerable body of evidence before the court noting the hardship occasioned to his wife and child by Gladstone’s time in custody. To date family members have helped fill the breach but the longer Gladstone is kept from his family the greater their individual hardship which, as Mr Scragg submits, has a compounding impact.

34. There is a general principle that hardship to  dependants is an unavoidable consequence of a custodial sentence and is not a mitigating consideration, unless such hardship is “wholly”, “highly” or “truly” exceptional: R v Edwards (1996) 90 A Crim R 510, Gleeson CJ, at 515: Hoskins v R [2016] NSWCCA 157 at [63]. If circumstances are “highly exceptional” — and where it would be inhumane to refuse to do so — hardship to others in sentencing can be taken into account: R v Edwards. Each case will depend on the seriousness of the crime, whether there is a need for deterrence and the nature and degree of the impact of the sentence upon the third person: Dipangkear v R [2010] NSWCCA 156 at [34].

35. In recent years the High Court and Court of Criminal Appeal have reassessed how apparently inflexible and prescriptive judgments are to be approached; recognising that while consistency of approach is a hall mark of justice a sentencing court has considerable flexibility in structuring an individual sentence. Sentencing judges must give full and proper consideration to the guidance given by past sentencing decisions but they should not be constrained by the language of mandate to disregard available sentencing options if they are called for: R v Robertson [2017] NSWCCA 205 at [105].

36. Here, the evidence about family hardship is well supported and out of the ordinary. It must be taken into account as the offender will be separated from his family for whom he provides considerable support; well beyond what would ordinarily be expected were his son not disabled and his wife well and mobile. It warrants sympathetic consideration and justifies a shorter sentence but it could not here prevent a custodial sentence being imposed.

Experience of custody

37. Gladstone has been on remand during the COVID pandemic. He has ADHD. Mr Scragg submits this constitutes extra curial punishment. It is not a “loss or detriment” imposed on an offender by persons other than the sentencing court, for the purpose of punishing the offender for his offence or at least by reason of the offender having committed the offence: Silvano v R [2008] NSWCCA 18; (2008) 184 A Crim R 593. All relevant maters will be taken into account but there no particular diminution in sentence should be accorded for consequences of imprisonment which will, in a general sense, be common to all offenders subject to custodial sentences: Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1 at [85]-[100]. That said, judges do not ignore the lived experience of gaol. Nor do they ignore the fact that a prisoner with the family responsibilities and medical conditions such as Gladstone’s serves the sentence harder than a notional prisoner without such conditions.

COVID-19 (CV-19) Lockdowns

38. The present crisis has increased apprehension by prisoners about infections in gaols as it does in the community in general. As a community we are being asked, urged and compelled to self-isolate. This cannot happen in a gaol. Social visits were suspended for over a year reducing any capacity to remain in contact with pro-social friends and family. They were resumed only to be cancelled again during the June 2021 lockdown. Access to telephone calls and AVL links has increased. Evidence before me in other matters indicates that prisoners were commonly locked in their cells for extended period in many cases all day.

39. CV-19 has not entered our gaols. The offender does not fall into a category that might be considered for early parole: s276 Crimes (Administration of Sentences) Act 1999

40. The offender has endured over a year of CV-19 restrictions. They apply today. He may face them again. The lack of visits and any heightened anxiety and concerns are relevant factors that must be synthesised along with all other matters. No other particular facts relevant to this individual case was put before me: Brown v R [2020] VSC 60 at [48].

Prospects

41. Gladstone is now 52. He has no relevant prior convictions. He has overcome a number of adversities in his life. He runs a successful business. He has significant responsibilities to his wife and son, both of whom have significant disabilities and need him at home. A respected psychiatrist assesses him as having a low probability of further offending based on clinical and actuarial grounds. He has strong pro-social support in the community. He has considerable incentives not to offend again. But apart from the impact of gaol on him I cannot help but note that all of these factors were present when he did offend against someone who loved him as a father.

Submissions

42. Mr Coulton for the Director of Public Prosecutions submitted two s 21A (2) circumstances of aggravation had to be taken into account - that the offences occurred in the presence of a child and breach of trust or position of authority. He put particular emphasis on the breach of trust inherent in each offence. While recognising the hardship endured by the offender’s wife he noted that the “exceptional circumstances” bench mark had not been meet.

43. Mr Scragg, in response, took issue with the asserted aggravating circumstances.

44. Section 21A creates problems for all sentencing judges as it seeks to add stages or increments to what is an intuitive process. Here, Gladstone breached the trust his stepdaughter had in him, trust that he would act as a father toward her, as he had done previously when they had shared a bed. He breached her trust in him, with consequent detrimental impacts on her. He did not however abuse a position of trust as s21A(2) envisages.

45. While in one sense the offences occurred in the presence of a child that the child was asleep and had no idea what occurred could not add aggravate this offence: Gore v R [22010] NSWCCA 330 at [104].

46. Mr Scragg’s ultimate submission is that taking into account time served, the offender’s strong subjective case and the exceptional hardship his wife is suffering both from her own multiple medical conditions and the need to care without him for their disabled son, a Community Corrections Order could met all the purposes of sentencing

Special circumstances

47. Parole supervision on release from custody can help an offender readjust to normal community life and prevent re-offending. The offences occurred over a very short period. The opportunity to offend again will be limited. Gladstone has made a contribution to the community in the past. He may do so again. He has a strong incentive given his wife and son’s need for him to not re-offend.

47. All of the material before me provides a basis for a finding of special circumstances. In so finding I am mindful of a requirement that the minimum period for which he should be imprisoned must also properly reflect the seriousness of his crimes and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].

Synthesis

49. Mitigating circumstances must be given full weight but can go only so far. A court must impose a proportionate sentence, which adequately punishes the offender. The community expect that crimes such as this will be punished severely. A court must express the community's disapproval of the type of offending. And in matters such as this there is a particular need to attempt to vindicate of the dignity of the complainant. Here, this means only a custodial sentence could be imposed.

Orders

50. You are convicted of counts 2, 3, 4, 5, and 6.

Indicated sentences

51. On Count 2 - I indicate a sentence of 2 years.

52. On Count 3 - I indicate a sentence of 2 years 6 months.

53. Count 4 - I indicate a sentence of 1 year 6 months

54. Count 5 - I indicate a sentence of 2 years

55. Count 6 - I indicate a sentence of 2 years 6 months

Aggregate sentence

56. The total aggregate sentence is 3 years 3 months.

57. There will be a non-parole period of 2 years months commencing 1 April 2020 and expiring 31/03/2022. The balance of the sentence of 1 year 3 months is to commence upon the expiration of the non-parole period on 01/04/2022 and expiring on 30/06/2023.

58. You will be eligible for consideration for release to parole at the expiration of the non-parole period on 31/03/2022.

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Decision last updated: 13 July 2021