R v Kellan (a pseudonym)
[2021] ACTSC 314
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Kellan (a pseudonym) |
Citation: | [2021] ACTSC 314 |
Hearing Date: | 4 November 2021 |
DecisionDate: | 5 November 2021 |
Before: | Mossop J |
Decision: | See [51] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – three counts of engaging in sexual relationship with child under special care – one count of act of indecency – where the offender was the father of the victims of the offending – general deterrence, denunciation and recognition of harm to the victims – guarded prospects of rehabilitation – significant sentences of imprisonment imposed |
Legislation Cited: | Crimes Act 1900 (ACT), ss 56, 61(2), 92EA Crimes (Sentencing) Act 2005 (ACT), s 35 |
Cases Cited: | R v BJW [2000] NSWCCA 60; 112 A Crim R 1 R v Degioannis [2019] ACTSC 47 R v KC [2020] ACTSC 94 |
Parties: | The Queen ( Crown) Ayden Kellan (a pseudonym) ( Offender) |
Representation: | Counsel T Lee ( Crown) K Archer ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender) | |
File Number: | SCC 156 of 2021 |
MOSSOP J:
Introduction
In order to protect the identity of the victims of the offending addressed in these reasons, the victims, the offender and other persons referred to will be identified by pseudonyms.
The offender, Ayden Kellan, has pleaded guilty to the following offences:
(a)CC2021/3709: engaging in a sexual relationship with Julianna, a child under his special care contrary to s 56(1) of the Crimes Act 1900 (ACT). The maximum penalty for this offence is 25 years’ imprisonment.
(b)CC2021/3455: engaging in a sexual relationship with Lillian, a child under his special care contrary to s 56(1) of the Crimes Act.
(c)CC2021/3710: engaging in a sexual relationship with Nicole, a child under his special care contrary to s 56(1) of the Crimes Act.
(d)CC2021/4152: committing an act of indecency on Mia, a person under the age of 16 years contrary to s 61(2) of the Crimes Act. The maximum penalty for this offence is 10 years’ imprisonment.
The offender is the biological father of Julianna, Lillian and Nicole. He is a stepfather to Mia.
Facts
The facts in relation to the offending are agreed and are set out in a statement of facts. The conduct engaged in by the offender in involves sexual interference with three of his daughters and one of his stepdaughters. The facts may be summarised as follows.
In January 2010, the offender married Lorraine. The offender, whose first wife had died in 2008, brought five biological children into the relationship, including Julianna, Lillian and Nicole. Lorraine brought three biological children into the relationship, including Mia.
Shortly after their marriage in 2010, the blended family moved into a house in Kambah (the first Kambah house). There was a blue six-person spa in the backyard.
In December 2010, the family moved to a larger house in Kambah (the second Kambah house). The blue spa was relocated to the backyard of second Kambah house.
After moving to the second Kambah house, the offender began routinely providing massages to the female members of the family as part of a bedtime “tuck-in” routine. The massages consisted of the offender gently rubbing over the skin with his hands, starting at the feet and moving up their legs.
Offending against Julianna: 2010-2011
The offending against Julianna occurred when she was between the ages of 10 and 11 years old in 2010 and 2011.
At the first Kambah house, when Julianna was 10 years old, the offender would towel dry her when she got out of the spa. He would pay particular attention to her groin area and use his hand and the towel to touch her vagina and look at her vagina to see if she had reached puberty or was growing pubic hair. The offender would touch the pubic hair and would ask Julianna to “show [him] how much is growing now”. This conduct occurred twice per week for six months (approximately 45 times). It is a course of conduct comprised of acts of indecency on a young person.
In the school year between January 2010 and December 2010, Julianna had a nightmare that caused her to go into her parent’s room and get into their bed. Julianna lay on the outside of the bed with the offender between her and Lorraine. Julianna awoke two or three times during the night to the offender’s fingers rubbing against her vagina above her vaginal opening. The offender’s fingers were touching her skin and were not moving very fast or touching hard. The incident stopped when an alarm went off in the bedroom. This conduct constitutes an act of indecency on a young person under the age of 16 years.
Between 2010 and 2011, after the family had moved to the second Kambah house the offender was giving Julianna a massage in her bed and asked her to take her pants off. He massaged her feet and then worked his way up to her groin. The offender then touched the outer labia of Julianna’s vagina and used his fingers to separate her inner labia (this constitutes an indecency on a young person). During the incident, the offender asked Julianna if she “touched” herself, a question to which Julianna did not respond. The incident lasted for approximately 15 to 20 seconds.
Offending against Mia: 2010
From about 2010, the offender would massage Mia’s back when she asked him to. This would sometimes take place when Mia was speaking to her mother
On a day in 2010, when Mia was 11 years old, the offender was massaging her while she was lying on the bed in his bedroom wearing her underwear but not pants. During the massage, the offender moved from Mia’s back to her groin area and began massaging her vagina over the outside of her underwear, with his hand moving under her underwear and making contact with her outer labia. Mia said she did not really like this and the offender stopped. The offender told Mia that she should put her hand over her vagina next time he was massaging her so that the offender’s hands would not stray too far. This conduct constitutes the act of indecency on a child under the age of 16 years.
Offending against Lillian: 2015-2020
From 2010 onwards, the offender would often massage Lillian’s back or her legs after sport when her muscles were sore. No offending conduct occurred during the initial massages. The offending conduct began in 2015 when Lillian was about 11 years old.
(a)Between 2010 and 2020, in addition to the massages, the offender and Lillian would often get in the spa alone together at night. In the spa they would often play games, such as maths games and the “tickle” game. During the “tickle” game, the offender would be seated and Lillian would float above him. The offender would use his hands to tickle all over Lillian’s body and would often stop at her vagina area and tickle either above or underneath her bathing suit. The offender would get an erection while playing the “tickle” game with Lillian in the spa. The majority of the time the offender would try to hide his erection in his bathers. However, occasionally the offender would ask Lillian to stroke his penis which she did. The offender would use his hands and fingers to touch Lillian underneath her swimming costume and around the outside of her vagina. Lillian stated that she felt scared and did not know what to do during these incidents. The offender stated that he played the “tickle” game with Lillian around 10 times between 2015 and December 2020. This conduct constituted a course of conduct involving acts of indecency on a young person.
(b)In 2015, the offender began to massage Lillian commencing at her feet while tucking her into bed. The offender noticed that Lillian was not wearing any underwear and that he able to see up the legs of her pyjama shorts and see her vagina. Over the next few months, the offender continued to massage Lillian as much as he could and tried to see her vagina each time he massaged her. The massages slowly increased in intensity and culminated with the offender stroking the outer labia of Lillian’s vagina on one occasion (an act of indecency on a young person).
(c)During 2015 the “tuck-in” routine continued and escalated to the offender inserting his fingers into Lillian’s vagina. The offender inserted his finger into Lillian’s vagina approximately 15 times over the course of the offending (a course of conduct involving acts of incest). There were some nights where this conduct would occur two or three nights in a row, but most of the conduct would be weeks apart and there were times when it occurred a year or two apart.
(d)In 2015, the offender was in Lillian’s bedroom and gave her a full body massage that included massaging her vagina, including the inner labia, and inserting his fingers into her inner labia. After this incident the offender told her, and made a “big deal” about, how much he loved her. This conduct constituted an act of incest. Conduct of this type continued through until 2017.
(e)In 2015 and 2016, the offender would routinely drive his B-Double truck to Sydney and return to Canberra on the same day. Sometimes, some or all of the children would accompany him. Lillian accompanied the offender on a trip to Sydney in January of one of these years. In the early hours of the morning on the return trip, the offender pulled over to the side of road to rest. The offender then climbed into the sleeper bunk in the truck with Lillian who had been sleeping in the bunk and cuddled up to her back. He began rubbing her stomach and then the outer labia of her vagina (an act of indecency on a young person under 16 years).
(f)On the trips to Sydney, Lillian began massaging the offender in return, usually massaging his upper legs and groin as encouraged by the offender. On a few occasions, the offender became aroused and achieved an erection when Lillian massaged under his underpants, touching his testis with the back of her hand resting on his erect penis. The offending conduct in the truck occurred between 10 and 20 times (a course of conduct – acts of indecency on a young person under 16 years). However, Lillian returning the massages only lasted a week or two.
(g)In 2018, Lillian asked the offender to enter her bedroom. When he entered the room, she asked him to “do the massage that puts me to sleep”. The offender understood this to be a request for the massage that involved him stroking her genitals as Lillian had previously indicated that a massage of that kind put her to sleep. The offender said Lillian’s legs were hanging over the bed and that she was naked from the waist down. The offender knelt between her legs and began rubbing her clitoris with one of his fingers touching her vaginal opening. He inserted the tip of his finger into her vagina and also touched her anus (an act of incest and an act of indecency on a young person under 16 years).
(h)A short time later, the offender placed his mouth on Lillian’s genitals and began kissing and licking her vagina. This lasted for about two to three minutes (an act of incest). The incident as a whole lasted for approximately 15 to 20 minutes.
(i)The offender engaged in oral sex with Lillian approximately nine times between 2018 and 2020. The offender would feel aroused and kiss her all over the genital area using his lips and tongue (nine acts of incest).
(j)In 2019, when Lillian was about 14 years old, the offender went into her room to tuck her in and closed the door behind him on entering. The offender saw that Lillian was wearing pyjama pants and told her, “I’m going to rub everywhere that I can see skin” in an attempt to get her to take her pyjama pants off. Lillian took her pyjama pants off. She was not wearing underwear. The offender commenced massaging her feet and moved up to her groin area, then massaged her outer labia for around 30 seconds (an act of indecency on a young person under 16 years).
(k)In 2020, Lillian decided it would not be appropriate to continue sexual activities with the offender. During a conversation at the family home, the offender reached under Lillian’s shirts and grabbed her breast, saying words to the effect of “so this is the last time you ever want me to do this then?” Lillian replied “yep, I want you to stop doing it now”. Lillian then twisted away and attempted to move the offender’s hand away from her breast. This is an act of indecency on a young person under 16 years.
Offending against Nicole: 2020-2021
In early to mid-2020, the offender was in the bedroom where Nicole slept. During the “tuck-in” routine, the offender began massaging Nicole. He did not usually massage Nicole as she would wriggle and did not like being touched softly. The offender started doing this to Nicole following his rejection by Lillian.
(a)In an incident that took place in about July or August 2020, Nicole was lying on her back on the top bunk of her bed. Only the offender and Nicole were in the room. The offender was standing by the bed and then reached over, put his arms under the covers and began massaging Nicole’s feet and lower legs. The offender then moved both his hands up Nicole’s legs before he massaged with both hands over the outside of her clothing, including feeling around with one hand in her groin area and inside of her leg. Nicole was 12 years old at this time. The conduct constitutes an act of indecency on a young person under 16 years of age.
(b)In December 2020, the offender and Nicole were in the spa at the rear of the second Kambah house and were engaging in a tickling game. The offender tickled Nicole’s upper thighs and continued to tickle upward and feel around her vagina. He then used his fingers to rub her clitoris and underneath her swimmers and inserted his finger inside her inner labia (an act of indecency without consent). He engaged in this conduct for approximately 15 minutes.
(c)When the offender would enter Nicole’s room for the “tuck-in” routine, he would often ask her if she wanted a hug, a kiss or a massage. In about January 2021, the offender was doing the “tuck-in” routine with Nicole with her lying on her top bunk and the offender was standing beside her. The offender asked if Nicole wanted a massage when he entered the room and she responded that she did. He asked her to remove her pants so that he could massage her whole legs. After the offender completed the massage, he asked Nicole if she wanted another. She said that she did. The offender asked her where she wanted him to go now and she said, “all over”. The offender commenced the massage at her feet and said “I’m going to stay on the feet until you ask me to move forward”. Nicole counted to 10 and then asked the offender to move on. This process was repeated until the offender reached her vagina. Nicole continued to count as the offender used his fingers to rub against her clitoris and her inner labia. The offender inserted one of his fingers inside Nicole’s vagina. This made her feel uncomfortable and like she “could not do anything”. It lasted for approximately one minute (an act of incest), before Nicole ask the offender to move on and he continued massaging the rest of her body.
Separate to the specific acts of indecency and incest, the offender would often massage Nicole in ways that made her feel uncomfortable. When someone else walked into the room on these occasions, the offender would quickly move his hands to other parts of Nicole’s body.
Disclosure
Nicole disclosed to her mother on 21 January 2021 that her father had been touching her inappropriately. This led her mother to speak with Lillian and to Julianna. They both made disclosures to her, although Lillian’s was made reluctantly because of her love of her family. Their mother and seven of the children had a meeting and made a plan about what to do. When the offender was confronted by Lorraine, he admitted to touching the girls and went with Lorraine to Tuggeranong Police Station. He participated in an extensive digitally recorded interview with police in which he admitted the conduct. This extensive interview with the offender and interviews with the victims formed the basis of the statement of facts.
Victim impact statements
Victim impact statements of Nicole, Lillian, Julianna, Alexandra and Lorraine were tendered. The statement by Lorraine was very detailed and addressed the effects that the offending and its revelation have had on each of the eight children in the family as well as upon herself. It was one of the most useful victim impact statements that I have read. That statement and the statements of the children who gave statements illustrate the profound and likely long-lasting effect that the abuse has had on the individual victims but also upon the other children in the family and on Lorraine.
As one would expect, the psychological impact of the offending on the victims is likely to be profound and long-lasting. The impact on the other members of the family will be long‑lasting, particularly the impact of the disclosures and the transformation of the offender from father to molester. The circumstances of the members of the family are usefully summarised when Lorraine wrote: “This has had an unspeakable and horrific impact on our family and while the abuse occurred across the past decade we are aware it has changed us for life.”
Objective seriousness
21. Section 56(1) of the Crimes Act is of some complexity. It provides:
56Sexual relationship with child or young person under special care
(1)A person commits an offence if the person—
(a) is an adult; and
(b) engages in a relationship with a child, or a young person under the special care of the adult, that involves more than 1 sexual act.
Maximum penalty: imprisonment for 25 years.
(2)For subsection (1) (b)—
(a) a relationship includes repeated contact, interaction, engagement or association, of a sexual nature or otherwise; and the relationship may have started, or started and ended, before the amendment day; and
(b) 1 or more of the sexual acts may have occurred before the amendment day; and
(c) a sexual offence that could be charged and proved under section 66B (Course of conduct charge—child sexual offences) can be 1 of the sexual acts.
(3)For a person to be convicted of an offence against subsection (1), the trier of fact must unanimously be satisfied beyond reasonable doubt that the relationship existed.
(4)However, in a proceeding for an offence against subsection (1), there is no requirement for—
(a)the prosecution to allege the particulars of a sexual act that would be necessary if the act were charged as a separate offence; or
(b)the trier of fact to be satisfied of the particulars of a sexual act that it would need to be satisfied of if the act were charged as a separate offence; or
(c)if the trier of fact is a jury—all the members of the jury to agree on the same sexual acts involved in the relationship.
(5)In a proceeding for an offence against subsection (1)—
(a)the prosecution is required to allege the particulars of the period of the relationship; and
(b)without limiting the Criminal Code, section 64 (2) (Extension of offences if required geographical nexus exists), a geographical nexus exists for this offence if—
(i)any part of the relationship was engaged in inside the ACT; or
(ii)at least 1 of the sexual acts occurred inside the ACT.
(6)For an offence against this section that occurred partly or wholly before 2 March 2018, the maximum penalty is the current maximum penalty, however, for a relationship engaged in over the period mentioned in table 56, column 2, the sentence imposed must not be more than the penalty mentioned in column 3 for that period.
Table 56
column 1
item
column 2
period of relationship
column 3
penalty
1 wholly before 24 December 1991 the lesser of—
(a) the current maximum penalty; and
(b) either—
(i) if 2 or more sexual acts alleged to be involved in the relationship are found to have occurred—the total of the maximum penalties for each offence constituted by the sexual acts; or
(ii) in any other case—the highest maximum penalty for the offences constituted by the sexual acts alleged to be involved in the relationship
2 started before, on or after 24 December 1991 and ended before 2 March 2018 the lesser of—
(a) the current maximum penalty; and
(b) the 1991 maximum penalty
3 started on or after 24 December 1991 and ended on or after 2 March 2018 the current maximum penalty 4 started on or after 2 March 2018 the current maximum penalty Example—item 1, column 3, par (b) (i)
An offender is convicted of an offence against this section for a relationship that occurred wholly before 24 December 1991. The jury agrees that 3 acts of indecency occurred. The maximum penalty for committing an act of indecency at the time the acts occurred is 5 years imprisonment. A court may impose a sentence for an offence against this section of up to the total of the maximum penalty for the 3 acts of indecency, ie 15 years imprisonment.
Example—item 1, column 3, par (b) (ii)
An offender is convicted of an offence against this section for a relationship that occurred wholly before 24 December 1991. The sexual acts that were alleged to be involved in the relationship included conduct that, if sufficiently particularised, would have constituted an act of indecency in the third degree and 3 acts of indecency without consent. The jury agrees that 2 sexual acts occurred but were not unanimous about which ones. The maximum penalty for the sexual acts at the time the acts occurred are 10 years and 5 years imprisonment respectively. A court may impose a sentence for an offence against this section of up to the highest maximum penalty for the alleged sexual acts, ie 10 years imprisonment.
(7)A person—
(a)may be charged on a single indictment with, and convicted of and punished for, both—
(i)an offence against subsection (1); and
(ii)1 or more sexual offences committed by the person against the same child or young person under the special care of the person during the alleged period of the relationship; but
(b)must not be required to serve the sentences for the offence against subsection (1) and the sexual offences consecutively.
(8) Except as provided by subsection (7), a person cannot be convicted of an offence—
(a)against subsection (1) if the person has already been convicted or acquitted of an offence constituted by 1 or more of the sexual acts alleged to be involved in the relationship; or
(b)constituted by a sexual act against a child or young person under the special care of the person if the sexual act is alleged to have been committed during the period for which the person has already been convicted or acquitted of an offence against subsection (1) in relation to the child or young person.
(9) For subsection (8), a person is taken not to have been convicted of an offence if the conviction is quashed or set aside.
(10) A proceeding for a charge for an offence under this section must not be started without the consent of the director of public prosecutions.
(11) The Criminal Code, chapter 2 (other than the applied provisions) does not apply to an offence against this section.
(12) In this section:
1991 maximum penalty means the maximum penalty for this offence applying on 24 December 1991.
NoteThis section was previously s 92EA which was inserted into this Act by the Crimes (Amendment) Act (No 3) 1991 (A1991-90). See that Act for the maximum penalty for this offence applying on 24 December 1991.
amendment day means the day the Royal Commission Criminal Justice Legislation Amendment Act 2020, section 3 commenced.
child means a person who is under the age of 16 years.
current maximum penalty means the maximum penalty mentioned in subsection (1).
sexual act—
(a)means—
(i)an act that constitutes an offence against this part; or
(ii)an act that constituted an offence against a sexual offence provision of this Act previously in force (a historical offence); or
(iii)an attempt to commit an act that constitutes or constituted an offence against this part or a historical offence; or
(iv)an act that, if particulars of the time when or place where the act took place were sufficiently particularised, would constitute or have constituted an offence against this part or a historical offence at the time the act occurred; but
(b)does not include an act referred to in—
(i)section 55 (2) (Sexual intercourse with young person) if the person who committed the act establishes the matters referred to in section 55 (3) that would be a defence if the person had been charged with an offence against section 55 (2); or
(ii)section 61 (2) (Act of indecency with young people) if the person who committed the act establishes the matters referred to in section 61 (3) that would be a defence if the person had been charged with an offence against section 61 (2).
special care—see section 55A (2).
young person means a person who is at least 16 years old, but not yet an adult.
The parties agreed that in relation to the offending against Julianna, by reason of the operation of s 56(6) of the Crimes Act, the maximum penalty that may be imposed was imprisonment for seven years. That is because having regard to the agreed facts the “1991 maximum penalty” in relation to that offending was seven years pursuant to s 92EA of the Crimes Act as in force on 24 December 1991. That course requires some further explanation. The terms of s 56(6) identify that for an offence that occurred partly or wholly before 2 March 2018, the maximum penalty of 25 years remains but that there is a limit on the sentence that may be imposed. Therefore, while the appropriate sentence is assessed by reference to the maximum penalty there is a cap on the actual sentence that may be imposed. That mechanism is therefore different from a situation where the maximum penalty was reduced and hence would give rise to a proportionate reduction in the appropriate sentence, rather than merely a cap on the sentence that could be imposed.
So far as the offending against Lillian and Nicole is concerned, the maximum penalty is 25 years but, within that maximum, there is no cap on the sentence that may be imposed.
In relation to the act of indecency committed on Mia, the maximum penalty under s 61(2) of the Crimes Act is imprisonment for 10 years.
The following matters are relevant to an assessment of the objective seriousness of the charges of maintaining a sexual relationship in this case.
(a)The age of the victims during which the sexual offending occurred: in this case children were aged between nine and 12 years when the offending commenced and up to the age of 16. The offender was aged between 38 and 49 years old. The age of the children and the age of the offender was reflective of the obvious power differential between them.
(b)The relationship between the offender and the victims: the offender was the victims’ father. The offending obviously involved a gross breach of trust in the context of the parental relationship. The offender was able to exploit his parental position and bonds of affection arising from his relationship with his children in order to commit the offences.
(c)The duration and nature of the sexual offending in the period covered by the charge: This varied as between children. It ranged from acts of indecency of various kinds to digital penetration to cunnilingus. The offending was most serious and most protracted in relation to Lillian. The next most serious appears to be Nicole followed closely by Julianna. The offending in relation to Lillian is above the mid-range of objective seriousness for the offence. The offending in relation to Nicole and Julianna is in the mid-range of objective seriousness.
(d)The acquiescence of the victims was not achieved by violence or threat of violence but rather as a consequence of the exploitation of the trust associated with the parental relationship with the child.
In relation to the act of indecency committed against Mia, she was only 11 years old. The act was directed to her genital area, the offender was in a parental relationship with her and hence the offending involved the exploitation of that relationship and a gross breach of trust. It is in the mid-range of objective seriousness for this offence.
Subjective circumstances
The offender’s subjective circumstances are set out in a pre-sentence report dated 26 August 2021.
The offender is 49 years old. At the time of the offending conduct against each victim, he was between the ages of 38 and 49 years old.
He was born in Bunbury in Western Australia and is one of four children from his parents’ relationship. When the offender was 10 years old, he moved to Victoria where he remained until he moved to Sydney to attend university.
The offender indicated that he had a positive childhood without the presence of parental alcohol and drug use, mental health issues or family and domestic violence. He was raised as a Seventh Day Adventist. His parents remained together until his mother’s death approximately six years ago.
The offender was previously married for 15 years before his first wife died from a brain tumour in 2008, when their youngest daughter was seven months old. He met Lorraine in 2009. The offender has been married to Lorraine for 11 years. He described the marriage in positive terms and indicated that he still considers himself to be married. He said he has regular contact with Lorraine by phone and that he would like the relationship to continue.
The offender has not had any contact with his children since he entered the Alexander Maconochie Centre. The offender’s children remain in the care of Lorraine, who has been assessed by Child and Youth Protection Services (CYPS) as willing and able to protect them.
The offender completed his Year 12 Certificate at high school. After finishing school, he commenced a nursing degree but did not complete this. He has primarily worked as a furniture removalist either as a business owner, contractor or employee. Before entering custody, he owned a furniture removalist company with his wife which they started together in 2018. After the offender entered custody, the business ceased trading and all the assets are being sold off.
Prior to entering custody, the offender had no savings. Lorraine indicated that once all the assets of the business are sold, she expects to have a debt of approximately $50,000 to the Australian Taxation Office.
The offender denied having any historical or current issues with drugs or alcohol.
The offender indicated that prior to his arrest, he had a supportive peer group comprised of family friends and work colleagues who were pro-social influences. It is unclear whether these peer groups remain supportive of him despite his arrest. Prior to COVID‑19 restrictions commencing in March 2020, he was actively involved in the Pentecostal Church.
He is in good physical health and has no difficulties with mental health.
The offender attributed his offending behaviour to the trauma associated with his first’s wife death, saying he believed he was reaching out for the physical touch of his first wife through their daughters. If accurately recorded, this is an explanation that is difficult to accept.
When describing the offences, he said it was a series of events that progressively led him down a path where he pushed the boundaries a little further each time. While he said he understood his conduct was morally wrong, he said he did not understand the legal consequences of his behaviour. The author of the pre-sentence report expressed the view that, although he was able to identify that the offending would have life-long impacts for his daughters, he often focussed on the impact on his own life and on what he had lost. He emphasised through his counsel his complete acceptance of the wrongfulness of his conduct, its seriousness and the acceptance of the long-term and significant impact that it will have upon the victims and other members of his family.
According to the standard measurement tools used by ACT Corrective Services, the offender was assessed as a being at a low risk of general reoffending and as at a below average risk of sexual reoffending. The author of the pre-sentence report identified that while he had numerous protective factors in his life prior to the offending including stable accommodation, employment and the support of his pro-social wife and friends, these protective factors may no longer be available to him upon his release.
Criminal history
The offender does not have a criminal history.
Plea of guilty
The offender pleaded guilty to the offences on 22 June 2021 at the matter’s fourth mention at the Magistrates Court. This is an early plea. It followed the making of admissions to police on 22 January 2021. The making of admissions and plea of guilty have very significant utilitarian value in a case such as the present, noting particularly the minimisation of the trauma imposed upon victims and other witnesses by the criminal justice process. The acceptance of responsibility is also of significance in terms of assessing his amenability to rehabilitation. In my view, it is appropriate to apply a discount of 25 per cent on account of the pleas of guilty pursuant to s 35 of the Crimes (Sentencing) Act 2005 (ACT).
Time in custody
The offender was arrested on 22 January 2021. He has spent 288 days in custody in relation to the offences. It is appropriate to backdate the first sentence of imprisonment to 22 January 2021 to take account of this period in custody.
Comparable cases
The submissions for the Crown identified other cases involving breach of s 56(1) of the Crimes Act. Those which were identified as being most comparable were R v KC [2020] ACTSC 94 and R v Degioannis [2019] ACTSC 47. I have taken each of the sentences referred to in the Crown submissions into account in considering the pattern of sentencing for this offence.
Consideration
Significant periods of imprisonment are required for offending such as this. Obviously, the maximum penalty of 25 years is a significant indicator of the legislative assessment of the gravity of this kind of offending. It reflects what Sheller JA in R v BJW [2000] NSWCCA 60; 112 A Crim R 1 at [20] describes as “community abhorrence of and concern about adult sexual abuse of children”. His Honour also emphasised that general deterrence was of great importance in sentencing such offenders, especially when the offender is in a position of trust in relation to the child.
General deterrence, denunciation and recognition of harm done to the victims and holding the offender accountable are all important sentencing considerations. The evidence does not definitively establish the offender’s prospects of rehabilitation. Although the acceptance of responsibility and recognition of harm done to the victims provides some positive indications in relation to the possibility of rehabilitation, because of the nature of the offending and the present absence of clear information about the underlying causes of the offending, the prospects for rehabilitation must remain guarded. The possibility of rehabilitation must be a sentencing consideration. Because of the uncertainty about his prospects of rehabilitation, specific deterrence must also remain a sentencing consideration.
I accept the submission put on behalf the offender that upon completion of his sentence he is likely to have lost his wife and family and have no assets. He will be burdened with the obligations of being a registered sex offender.
Plainly, this course of offending has been an absolute tragedy for the victims and the offender’s family more generally. He has left such a trail of misery in his wake. The consequences of his offending for his victims are likely to be lifelong. He had the opportunity with his second wife of successfully raising children as part of a large, blended family. Nothing about this would have been easy but, without the offending, he could have been proud of his achievement. All that is now gone. He had an opportunity to be a hero to his children and instead he has committed gross betrayals of their trust and isolated himself from the family.
Having regard to the gravity and number of offences, a degree of concurrency between sentences is necessary having regard to considerations of totality.
The sentence that I will impose involves a head sentence of 13 years and three months. In my view, a non-parole period eight years and six months is appropriate. This corresponds to 64 per cent of the head sentence. Whether or not the offender is suitable for release at that date will be a matter for the Sentence Administration Board, having regard to his conduct and the progress of his rehabilitation in prison.
Orders
The orders of the Court are:
1. On charge CC2021/3455: engaging in a sexual relationship with a child under his special care, Lillian, contrary to s 56(1) of the Crimes Act the offender is convicted and sentenced to eight years and three months (reduced from 11 years on account of the plea of guilty) commencing on 22 January 2021 and ending on 21 April 2029.
2. On charge CC2021/3710: engaging in a sexual relationship with a child under his special care, Nicole, contrary to s 56(1) of the Crimes Act the offender is convicted and sentenced to imprisonment for four years and six months (reduced from six years on account of the plea of guilty) commencing on 22 April 2027 and ending on 21 October 2031.
3. On charge CC2021/3709: engaging in a sexual relationship with a child under his special care, Julianna, contrary to s 56(1) of the Crimes Act 1900 (ACT) the offender is convicted and sentenced to imprisonment for a period of three years and nine months (reduced from five years on account of the plea of guilty) commencing on 22 January 2030 and ending on 21 October 2033.
4. On charge CC2021/4152: committing an act of indecency on a person under the age of 16 years, Mia, contrary to s 61(2) of the Crimes Act the offender is convicted and sentenced to 9 months imprisonment (reduced from 12 months on account of the plea of guilty) commencing on 22 July 2033 and ending on 21 April 2034.
5. The non-parole period is a period of eight years and six months commencing on 22 January 2021 and ends on 21 July 2029.
| I certify that the preceding fifty-one [51] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 10 December 2021 |
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