R v Hanly

[2022] NSWDC 447

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Hanly [2022] NSWDC 447

Hearing dates:

18/5/22-27/5/22, 15/7/22, 19/8/22

Date of orders:

19/8/22

Decision date:

19 August 2022

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to a Community Corrections Order for 3 years. The following conditions are to apply:

1. Not to commit any offence.

2. Must appear before the Court if called upon to do so.

3. Accept the supervision of Community Corrections.

4. Undertake any counselling or treatment as directed by Community Corrections.

5. Undertake 350 hours community service.

Catchwords:

Crime – Sentence - Indecent assault of a child under the age of 16 years.

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

BB v R [2021] NSWCCA 283

Jonson v R [2016] NSWCCA 286

R v Edwards [1996] 90 A Crim R 510

R v KNL [2005] NSWCCA 260

R v PGM [2008] NSWCCA 172

RvShortland [2018] NSWCCA 34

Category:

Sentence

Parties:

NSW DPP – Crown
Philip Hanly - Offender

Representation:

Mr D Noll for Crown
Mr M Hobart SC and Mr D Cohen for Offender

File Number(s):

202/40690

Publication restriction:

STATUTORY NON-PUBLICATION ORDER RE IDENTITY OF COMPLAINANT. NAMES OF CHILDREN ANONYMISED.

Judgment

1. The offender Mr Philip Hanly stood trial before a jury earlier this year on a charge under s 61M(2) of the Crimes Act 1900 being an offence of indecent assault of a child under the age of 16 years. On 27 May 2022 the jury found him guilty of that offence and he is now to be sentenced.

2. The maximum penalty for the offence is ten years’ imprisonment and a standard non-parole period of eight years is specified. The maximum penalty and the standard non-parole period are, of course, important guideposts in the sentencing exercise to which I have had regard.

FACTS

3. It is for me to determine the facts on which the offender is to be sentenced. However, I must do so in a manner which is consistent with the jury’s verdict. Any aggravating matters must be proved beyond reasonable doubt while matters in mitigation need only be proved on the balance of probabilities. I find the following facts:

4. On 19 August 2018 the victim and her father attended a play day at the home of the offender’s parents-in-law at Malabar. The only persons present were the offender and his five-year-old daughter, and the victim and her father. Where necessary in these remarks to refer to the offender’s then 5 year old daughter, I will call her “Jane” (a pseudonym), which is not her real name. The children generally were playing downstairs while the two adults remained upstairs during which time they drank some beer.

5. At some stage the offender went downstairs. At that time he was alone with the victim while her father remained upstairs. The victim, who was looking out a window, was approached from behind by the offender who took hold of her hand and placed it against his exposed penis. The offender then rubbed his penis against the victim’s hand.

6. The victim said this went on for between about five seconds and up to a minute. There are obvious difficulties involved in assessing the accuracy of this time estimate given the very young age of the victim. However, in the circumstances I am satisfied beyond reasonable doubt that the touching lasted at least some period of seconds.

7. Neither the offender nor the victim said anything while this was going on. However, the offender giggled before walking away and returning to the upstairs area where the victim’s father was. The play day continued for some hours and at some stage the offender’s daughter “Jane” soiled her pants and the offender took her to a toilet to clean her.

8. At the end of the day the children and their fathers had dinner at a nearby golf club after which the victim and her father went home. Nothing was said by the victim at that stage. However, about two months later on 27 October 2018 while being taken to the toilet by her father the victim touched her father on his genital area through his jeans and when told not to do that she said words to the effect of, “Jane’s dad did it to me.” When asked further about this by her father, she said words to the effect, “Jane’s dad pulled out his private part and put it in my hand and rubbed it in my hand. I didn’t like it and I wanted to tell him no, but I couldn’t.”

9. The next day the victim told her mother a similar version, which led to the mother reporting the matter to the Child Protection Hotline. The victim was spoken to on 4 December 2018 by officers of the Department of Family and Community Services when she said that the daddy of her friend put his private part in her hand, that he was laughing when he did this and that she pulled her hand away and that the penis was soft.

OBJECTIVE SERIOUSNESS

10. It is important, of course, that I make some assessment of the objective seriousness of the offence the facts of which I have just described. The offence before the Court is a serious one which is clear from the maximum penalty which it attracts and also the standard non-parole period set by parliament.

11. Any sexual offence committed against a child must be regarded with extreme seriousness especially given the prevalence of such offences and the harm that often, if not almost invariably, results from them. However, it is important that I make some assessment of the objective seriousness of the particular offence which this offender has been found to have committed and determine where on a theoretical scale of seriousness it lies.

12. The offence here, according to the evidence of the victim which was accepted by the jury, involved the offender walking up behind the victim and placing his exposed penis into her hand and rubbing it against her hand after which he laughed or giggled before walking away. Although the duration of the offending is difficult to determine on the basis of the evidence of the young victim, I conclude that it was very brief, involving a period of only some seconds.

13. When spoken to by officers of the Department of Family and Community Services, the victim said that the offender’s penis was soft and so I approach the offence on the basis that the offender’s penis was not erect. The offence did, of course, involve direct skin-on-skin contact. Also, it involved a very young child and a very large discrepancy in age between the child and the offender. Also, the victim, who was at the time aged four years 11 months, was very considerably younger than the age of 16 years which is an element of the offence. It is well accepted that the younger the child the more serious is the offence: See R v KNL [2005] NSWCCA 260.

14. It was also argued by the Crown that the offence is made more serious by reason of it being committed “in the home” of a person, namely, the home of the offender’s parents-in-law where the victim and the offender’s daughter were having a play date. I have considered this argument and I accept that s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 extends to aggravating an offence which is committed in the home of the victim “or of any other person”. In this case the offence was committed in “a home”, namely, the home of the parents of the offender’s wife.

15. Section 21A(2)(eb) is aimed at preserving the sanctity of the home where any person should feel safe, and can include any person’s home and not just the home of the victim. However, it is important that in accordance with ordinary sentencing principles I make a determination about whether in the circumstances of this case the commission of the offence within “a home” actually aggravates the offence. See Jonson v R [2016] NSWCCA 286.

16. In my view the fact that the offence occurred in a home is not a matter that aggravates this particular offence. The circumstances of this case did not, in my view, involve a violation of the victim’s expectation of safety and security by reason of being in a home. In my view the seriousness of the offence would have been similar even if it had not occurred within a home but, for example, at a playground.

17. While I accept that the victim had an expectation of safety and security on the occasion of this play date, that expectation arose from the fact that she was being supervised and cared for on that occasion by her father and, to some degree, the offender, which created a situation where he was alone, although only briefly, with victim. In this regard I do accept there was, to some limited extent, a breach of trust involved in this opportunistic offence.

18. It was argued also by the Crown that the offence was motivated by the desire for sexual gratification. This is a difficult thing to determine. The momentary nature of the offence together with the victim’s evidence that the offender giggled before walking away makes the offence an unusual, perhaps bizarre, one.

19. In the circumstances I am unable to determine with any precision the motivation for the offence. It follows that I am not satisfied beyond reasonable doubt that it was committed for the purpose of sexual gratification. However, and as was said by Wilson J in BB v R [2021] NSWCCA 283, “Because of the sexual connotation which must be present in cases of indecent assault, even a supposed absence of sexual motivation cannot greatly affect the objective gravity of the crime.”

20. That is, of course, because the nub of the offence is the likely or presumed harm to the child.

21. The full effects of offences like this against children are often difficult to predict while they are still young and the potential remains that this offence, like many or perhaps most, sexual offences involving children may have lasting and significant adverse impacts on the victim.

22. Having said that, and having observed the victim’s pre-recorded evidence at trial, and having reviewed it again for the purposes of this sentencing exercise, I am not satisfied that this is a case where the offence has led to “substantial harm”.

23. As the Crown submitted, an assessment of the objective seriousness of the offence requires consideration of all the circumstances including the character of the assault and the degree of physical contact involved: See R v PGM [2008] NSWCCA 172.

24. In this regard the offence did not involve the offender touching the breast, genital or buttock or anal area of the victim, but rather involved contact between the offender’s penis and the victim’s hand, although only for a very brief period.

25. It seems to me that this was an opportunistic offence which did not involve any planning or premeditation and can be regarded as a momentary aberration. Having regard to all of these matters, I assess the objective seriousness as being somewhat below the mid-range, but not within the low range.

SUBJECTIVE MATTERS

26. I turn then to subjective matters relating to the circumstances and background of the offender. He is currently 47 years of age and has no prior criminal history.

27. In the sentence hearing evidence was given by the offender’s wife Catherine who has a responsible job as Associate Director of Library Services at a University, and is responsible indirectly for approximately 70 staff. She gave evidence about the following matters and was cross-examined by Mr Noll for the Crown in a sensible and sensitive manner. The effect of her evidence, which I fully accept, was as follows.

28. Ms Hanly and the offender have three children, Jane, who is now aged nine, and two twin daughters, who are four. All of the children have medical problems. Jane has a condition known as encopresis which results at times in faecal soiling due to problems with her bowel. She therefore must be maintained on a high-fibre diet and osmotic laxatives. When her problem flares up she tends to soil herself perhaps twice a day for about a week until this settles down and then it might happen every three days or so.

29. The medical issues affecting the twins, who I will refer to as “Lilly” and “Stella”, arose before they were born and required in-utero surgery. Lilly has a heart condition which arose, like the problems affecting her twin Stella, before she was born. However, it is Stella whose medical issues are the most complicated and demanding.

30. Her condition is similar to a form of cerebral palsy and has the following consequences. She is non-verbal. She can sit only with assistance. She is unable to stand or walk although she has some limited ability to roll from her back to her side. She is unable to feed, wash herself or attend to personal hygiene. She is, in other words, totally dependent on her parents and will likely remain so for her entire life.

31. Stella generally wakes around five to 5.30am at which time her parents must prepare her medications and feeding. Stella must be fed five times a day through a percutaneous endoscopic gastronomy device known as a “PEG” which is, in effect, a tube providing access to her stomach through which she is fed a prescription formula. However, as a result of recommendations made by Stella’s feeding therapist, her speech therapist and her dietician her parents each morning also engage in therapy aimed at teaching Stella to swallow although her real nourishment is received via the PEG feeding device. Each of the five daily feeds takes about one hour.

32. Each morning after Stella has been fed, she must be fitted into a special piece of clothing called a dynamic movement orthotic which is a very tightly-woven material designed to correct the scoliosis which can otherwise occur with her condition due to poor muscle tone. It is generally the offender who takes on the difficult task of fitting Stella with this orthotic clothing which takes some time.

33. While Stella and her twin sister Lilly generally attend day care during the day where Stella must be fed via the PEG, invariably or at least regularly something goes wrong with the pump which feeds her, which requires the offender to stop work and attend day care to fix the problem. For these reasons and the obligations arising from the other children, the offender, who works as a floor and wall tiler, generally tries to arrange work that is close to home.

34. At night Stella must be given more medications to reduce the risk of vomiting and to stop epileptic seizures or spasms. After this she is commenced via the PEG on a continuous water feed throughout the night to prevent her from becoming dehydrated. To lessen the risk of her choking during the night, she sleeps in a propped-up position and, as she is unable to turn herself, her parents must get up in the night to turn her at certain times or in response to her calling out, which she is likely to do every few hours. Ms Hanly explained that her husband generally attends to Stella up to around 1.30am and that after this time Ms Hanly takes over.

35. Ms Hanly explained in evidence that the regime I’ve just set out represents a “good day”, but that if there was a “bad day”, then “everything goes out the window”. Ms Hanly also explained that the offender does all of the washing and cooking and most of the housework and also gets the children ready for school and day care each day by preparing breakfast for Jane and Lilly and preparing lunches for them.

36. Ms Hanly’s work hours take her out of the home generally from around 8am till about 6pm to 6.30pm and most of her work is on the various, each of which she attends on a regular basis, and which are located quite distant from each other.

37. It is Ms Hanly who generally walks Jane to school, after which she drives to work where her hours generally are nine to five, although if urgent issues arise, then she is required to work beyond these hours. It is the offender who drops the twins to day care and he also picks up Jane from school at 3pm and usually is the one who picks up the twins from day care in the afternoon. In the evening, apart from attending to the other children, Stella again requires feeding and one or other of her parents will engage in some feeding therapy as recommended by the various therapists.

38. Stella also has several appointments each week to which one of her parents must take her. In this regard she sees an occupational therapist, a physiotherapist and three different speech therapists, one specialising in teaching her to swallow, one in trying to get her to walk and one in how to use other devices to communicate. She sees each of these therapists fortnightly and also has music therapy weekly. As Ms Hanly explained, Stella thus has many appointments to attend each week.

39. Evidence given by Ms Hanly, supported by a letter from paediatric neurologist, Dr Michelle Farrar, indicates that it is vital to Stella’s future development that both her parents remain fully involved in her various therapies.

40. When asked how she would manage this regime without her husband in the house, Ms Hanly, in her matter-of-fact and understated way, said, “I’m not sure that I could. Essentially, I would need to be doing everything and it’s just not feasible.”

41. She explained that she would likely be up until midnight and would also be required to get up to attend to Stella and at times also the other children, especially Lilly.

42. She said that if her husband was not in the house then she would need to change her work to part time and that this would make it very difficult or perhaps impossible to meet the family’s mortgage repayments.

43. Ms Hanly explained that while the family receives some assistance from the National Disability Insurance Scheme, that assistance is, in practical terms, limited currently to five hours per week. While it would be open to the family to seek more assistance if the offender was imprisoned, Ms Hanly explained that the review process takes typically six months and any appeal usually about 18 months, and also that in her experience it was unlikely that the family would receive more assistance.

44. Ms Hanly also explained that all of the children absolutely adore their father. She said, “While Stella is non-verbal she will, whenever she sees her father, start kicking her legs and squealing in a happy way, and that Lilly runs to the door when her father comes home shouting, “It’s Daddy”.

45. Ms Hanly noted, in particular, that when Stella is separated from her father, for example, when she is regularly admitted to hospital, there is a noticeable difference in her wellbeing, once she is reunited with her father.

46. The offender and his wife and three children currently manage this punishing regime, which I have described, while living in a two bedroom unit, on which they are paying off a mortgage. If the offender was not in the house and not able to work, then Ms Hanly would have to work part-time so as to continue the various therapy appointments that Stella must attend. In these circumstances, and without the offender’s income, it is unlikely that the family could continue to afford the mortgage repayments and other bills and would need to find a rental property or move in with Ms Hanly’s parents, who are now in their 70s.

47. I accept Ms Hanly’s evidence, however, that this would be viable for a short time only. Ms Hanly also explained that they have no savings left, as these have been spent on legal fees associated with these proceedings and that her parents have also contributed to those costs by accessing part of their superannuation.

48. Evidence was also given by the offender’s mother-in-law, Ms Cass. She described the offender, consistently with Ms Hanly’s description, as a devoted and loving father to his children. She also described him as kind, generous and patient and as a person who lends assistance wherever it is needed and gave several examples of this. She also confirmed the extremely close and dependant relationship that each of the offender’s children have with him. She confirmed that if the offender was imprisoned, she and her husband could provide some support to the family, although in terms of caring for Stella, she is herself unable to carry her upstairs, but thought that her husband was probably currently capable of doing so, subject to his arthritis.

26. I will return to the significance of this evidence about family circumstances later in these reasons.

REMORSE AND REHABILITATION

50. I turn to consider questions of remorse and the offender’s prospects of rehabilitation. The offender maintains his innocence and so there is no remorse. I have not been supplied with any psychological or other material assessing his risk of reoffending or prospects of rehabilitation. The objective evidence does establish however, the following; the offender, who is now aged 47, has never been charged or convicted of any offence. He has a very good work history and current stable employment. He is married and has the continuing support of his wife, who herself holds down an important and demanding job. He also has the support of his wife’s parents, who speak of him in glowing terms and who are of the view that the offence is entirely inconsistent with the offender’s general character. There is also the fact that the offender has joint responsibility for the care of his three children and has been a devoted and loving father to those children, notwithstanding the huge demands and stresses that this has involved and will continue to involve.

51. Aside from the momentary and apparently out of character offence before the court, there is no evidence that he has displayed any deviant sexual interests such as an interest in children, generally.

CONSIDERATION

52. Having regard to all of these matters, I assess the offender’s risk of reoffending as being low and his prospects of rehabilitation as fairly good.

53. This is a difficult sentencing exercise. An offence like this involving a young child, must without doubt, be treated very seriously. Such an offence ordinarily would be expected to result in the imposition of imprisonment. That is, in large part, due to the importance of general and specific deterrence, the need to denounce the offending conduct, make the offender accountable and to acknowledge the harm that sexual offences against children often, if not usually, involve. However, I am of course, also required to have regard to the importance of rehabilitation and all of the other circumstances of the case.

54. A prominent feature of the evidence and submissions in the sentencing hearing was the question of what significance ought to be attached to the hardship to the offender’s family if he was sentenced to full-time custody. As was said by Gleeson CJ, in R v Edwards [1996] 90 A Crim R 510, sending a person to prison will more often than not cause hardship, sometimes serious or extreme hardship, to other persons. There is nothing unusual about this and judges and magistrates are regularly required to make the difficult, but often necessary decision, to impose a prison term, even though it will impact very severely on an offender’s family or other dependants. It is for these reasons that it is only where any hardship is “highly exceptional” and where it would be inhumane to refuse to do so that such hardship can be taken into account, so as to significantly ameliorate an otherwise appropriate sentence.

55. In considering whether the evidence in this case amounts to highly exceptional hardship, such that would be inhumane not to take it into account in a significant way, I have had regard to a number of authorities, including R v Shortland [2018] NSWCCA 34 in which Hidden AJ, set out a number of cases in which it was held that exceptional circumstances had not been made out.

56. Of course however, every case must depend on its particular facts. Having given close consideration to the facts of this particular case, and in particular the compelling evidence of the offender’s wife, I am satisfied that the circumstances of this case are indeed highly exceptional, such that it would be an affront to community standards and in effect, inhumane not to take the undoubted extreme hardship to the offender’s family into account.

DETERMINATION

57. I have had regard to the purpose of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999, which importantly involves the need for the offender to be adequately punished, for the penalty to operate as a deterrent to the offender and others, to protect the community, to make the offender accountable, to denounce his conduct, to recognise the harm done to the victim and the community, but also to promote the rehabilitation of the offender.

58. I have given careful consideration over some period of time to whether, in terms of s 5 of the Crimes (Sentencing Procedure) Act 1999, this is a case where no penalty other than imprisonment is appropriate. I have considered all of the objective and subjective features of this case. I have also given full consideration to the harm that sexual offences involving children frequently or perhaps usually involve and the very important considerations of personal and general deterrence, as well as the maximum penalty and the significant standard non-parole period that is specified.

59. However, having regard to the fleeting or momentary nature of the offence, which I have assessed as being somewhat below mid-range, the offender’s prior excellent character, his low risk of reoffending and the exceptional hardship that a period of imprisonment would impose on the offender’s wife and children and perhaps others, I have reached the conclusion that the s 5 threshold is not crossed in this case.

60. I am satisfied that the purposes of sentencing can, in this case, appropriately be met by the imposition of a Community Correction Order.

61. I convict the offender. Stand up please Mr Hanly and I will explain the sentence as I announce it.

62. Pursuant to s 8 of the Crimes (Sentencing Procedure) Act 1999, I impose a Community Correction Order for a period of three years.

63. It was submitted on behalf of the offender, that I should consider imposing a home detention component as a condition of any Community Correction Order, however I note that home detention is not available as a condition of such an order. The conditions I impose therefore are as follows. The first two are standard conditions.

64. The first condition being that you not commit any offence. The second condition is that you must appear before the court, if called upon during the term of the order.

65. I impose three additional conditions. Firstly, that you accept supervision from Community Corrections. Secondly, that you undertake any counselling or treatment as directed by Community Corrections. Thirdly, that you undertake 350 hours community service.

66. In setting the number of hours of community service, I have had regard to the considerable difficulties that performing community service will involve, given the offender’s existing family and work commitments and I have tempered the number of hours, in recognition of those difficulties. Nonetheless, I am satisfied that the offender will be able to carry out those 350 hours, if spread over a three year period.

67. I direct that the offender report, by 5pm on Monday 22 August 2022, to the Community Correction office at Waverley.

68. Mr Hanly, you must understand that that is an order which applies for three years and if you breach any of those conditions then you will be brought back before the court and are likely to be sentenced to a term of imprisonment.

69. Mr Crown, Mr Cohen, anything else?

70. NOLL: Nothing from the Crown your Honour.

71. COHEN: Nothing from me your Honour.

72. HIS HONOUR: Thank you, we will terminate the link.

**********

Amendments

05 October 2022 - Catchwords added

05 October 2022 - Appearance added.

Decision last updated: 05 October 2022