R v Kevin Thomas Risby

[2008] NSWDC 300

CITATION:	R v Kevin Thomas Risby [2008] NSWDC 300
HEARING DATE(S):	7 October 2008
JUDGMENT DATE:	12 December 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Hulme SC DCJ
CATCHWORDS:	CRIMINAL LAW - Sentence - Incite female under the age of 16 to commit an act of indecency - Carnal knowledge of a step-daughter under the age of 17 - Indecent assault - Sexual intercourse without consent upon a person under the age of 16 - multiple offences over extended period against 2 victims - breach of trust - relevance of uncharged acts - ill health - delay - applying past sentence practices - relevance of harm to victims where being a child is an element of offence
LEGISLATION CITED:	Crimes Act 1900 Parole of Prisoners Act 1966 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Regina v MJR (2002) NSWLR 368 Bradbury v Regina [2008] NSWCCA 93 AJB v Regina [2007] NSWCCA 51, (2007) 169 A Crim R 32 Power v The Queen (1973) 131 CLR 623 R v Moon (2000) 117 A Crim R 497 Ibbs v The Queen (1987) 163 CLR 447
TEXTS CITED:	Ross W Carter, "Australian Sentencing Digest", (1985) The Law Book Company Limited
PARTIES:	R v Kevin Thomas Risby
FILE NUMBER(S):	07/61/0119
COUNSEL:	Mr D Wilson (Crown) Mr W Walsh (Offender)

SENTENCE

1 HIS HONOUR: On 4 August 2008 the offender, Kevin Thomas RISBY, was arraigned upon an indictment alleging he committed 15 child sexual assault offences. He pleaded not guilty to each allegation. Pre-trial legal issues were determined on that day and a jury was empanelled the following day. On 14 August 2008 the jury returned with verdicts of guilty on all counts.

2 There are two offences of inciting a female under the age of 16 to commit an act of indecency with him (s.76A Crimes Act 1900 – maximum penalty 2 years), seven offences of carnal knowledge of a step-daughter under the age of 17 (s.73 Crimes Act – 14 years), five offences of indecently assaulting a female under the age of 16 (s.76 Crimes Act – 6 years) and one offence of sexual intercourse without consent upon a person under the age of 16 (s.61D(1) Crimes Act – 10 years).

FACTS

3 The facts of the offences, of which I am satisfied beyond reasonable doubt, are as follows.

4 The offences were committed between the beginning of 1980 and the end of 1982. The offender was the step-father of the two complainants KG and SK.

5 KG was born in November 1967. SK was born in January 1970. They had an older brother, DR, who was adopted, and a younger brother, SR. Their mother, MW, was married to a man in 1964 but divorced him in 1973 when she found he was having an affair with her best friend. She met the offender later in 1973 and they were married in May 1974, whereupon he moved in to live with the family at their home in Lithgow. The children came to regard him as their father and they changed their names to adopt his surname. (It should be noted that they have long since ceased using his name). The marriage lasted until 1984 when MW found he was having an affair with a good friend of hers.

6 The offender had employment at times during the course of his marriage to MW. There was some dispute about the extent of it but that is not important for present purposes. MW also worked. She had a job at the Lithgow Workers Club which required her to work various shifts which meant she was often not home until 9.00 or 10.00 pm. The family routine of an evening was that they had dinner at around 5.30 – 6.00pm; the children then bathed and changed into their nightwear; and they retired to bed at around 8.00pm.

7 The offender used to lie on the lounge watching television in the lounge room. There was a kangaroo skin rug on the lounge. It was apparently regarded as something of a treat for the complainants to lie on the lounge with him under the rug.

8 KG spoke of how for the first 6 to 12 months in this situation it was “cuddle time”. The offender, however, progressed to engaging in sexual activity. She said initially he would touch her over her clothes but it progressed to touching underneath her clothing. She would be wearing a nightie and underpants. She said he touched her on the chest but more towards the bottom half of her body including her vagina. She said he also got her to touch his penis, initially over his clothing but it progressed to him undoing his fly and exposing his penis and having her touch it. She spoke of him saying that this was their “special time together” and gave her to understand it was not to be discussed. She said she loved the attention at first, like any little girl would. However she also felt it was wrong but she could not say or do anything about it. She said that the offender would give her 50c to come and give him a cuddle on the lounge.

9 KG described the sexual touching on the lounge progressing to the point where the offender was digitally penetrating her vagina. When these things were happening on the lounge it was when she and the offender were alone, her mother was absent from the house, usually at work, and the other children had been sent to bed. It was a treat to be allowed to stay up and watch television with the offender in this situation.

10 A matter that applied to both KG and SK in terms of understanding why they did not complain of the offender’s sexual activities with them was that he was a stern disciplinarian. He used corporal violence on all of the children. He disputed this at the trial and suggested that the girls were disciplined by their mother but I accept the evidence which was to the effect that he struck all of the children with either a leather strap or belt, or with a piece of dowelling rod.

11 The first and second offences charged in the indictment concerned KG and they occurred during a family holiday at Sussex Inlet in late December 1979 to early January 1980. One day, KG got badly sunburnt and as a consequence had to stay indoors for the day while her mother and the other children went shopping. She was in their cabin reading a book and the offender came in, lay a towel across the bed and asked her to lay on it. He removed the bikini bottoms she was wearing and then performed oral sex upon her. She said he sucked her vagina for some 4 to 5 minutes and was using his fingers on her as well (Count 1 – Indecent assault upon a person under 16). She said he then obtained some Vaseline and rubbed it on the outside and inside of her vagina, got her to get on her hands and knees and inserted his penis into her vagina from behind. He ejaculated inside her (Count 2 – Carnal knowledge of step-daughter under 17).

12 The next specific incident occurred in the family home at Lithgow around the middle of 1980. KG said she was off school for a day, she was not sure why, and it was just herself and the offender at home. He told her to go into the main bedroom with him. He did not say why. He told her to undress and he helped her to do so. He then removed his own clothing. When he was naked she saw that he had an erection. He said that they were going to try something different today. He got her to perform oral sex upon him and he then did the same to her. He then rubbed Vaseline on the inside and outside of her vagina and had penile/vaginal intercourse with her. He persisted with this for about 5 to 10 minutes before he removed his penis and ejaculated on her stomach. He then said to her that this was their secret and she was not to tell anyone. KG said that she did not tell anyone about this because she was scared. She asked, rhetorically, “Who would believe me?”. (Count 3 – Carnal knowledge of step-daughter under 17).

13 Counts 4 and 5 were concerned with something that happened by the side of the Great Western Highway on an occasion when the offender and KG were returning to Lithgow after attending a physiotherapy session at the Blue Mountains Hospital at Katoomba in the latter part of 1980. The offender pulled over and stopped on the side of the road at Blackheath. He told her to take her underwear off. He removed a jar of Vaseline from the console and rubbed it on the inside and outside of her vagina. He also unzipped his pants and pulled his penis out. He used his fingers to penetrate her vagina (Count 4 – Indecent assault upon a person under 16). He then had her rub his penis up and down with her hand until he ejaculated (Count 5 – Incite female under 16 to commit an act of indecency). She said that the ejaculate went all over him, on his clothes, and a little on her hand as well and he used an old coat that was in the car to wipe up. KG said she was then told to put her underwear on and she was then driven back to school.

14 Counts 6, 7 and 8 were concerned with an incident that occurred after another trip to the physiotherapist in Katoomba. She had a later appointment that day so they returned to the home after it was over. No-one else was home. The offender told her to go and get undressed and come into the main bedroom. There he proceeded to take photographs of her with a Polaroid camera with her panties on and also with them off. He then got on the bed and told her to perform oral sex on him by sucking his penis. She did that for 4 to 5 minutes (Count 6 – Incite female under 16 to commit an act of indecency). The offender then had her lay back down on the bed and he performed oral sex on her by sucking her vagina. He also used his fingers (Count 7 – Indecent assault upon person under 16). The offender then proceeded to have penile/vaginal intercourse with her. She was on her back on the bed. He put a pillow under her pelvis and inserted his penis into her vagina. This went on for a few minutes, or 5 minutes. He then removed his penis and turned her around so she was on her hands and knees and he then inserted his penis from behind and had intercourse with her until he ejaculated inside her. (Count 8 – Carnal knowledge of a step-daughter under 17).

15 KG said that when this was happening she was scared, emotional and just did not want to be there. She said she was crying. She also said that the offender threatened her that she was not to tell anyone.

16 The incidents to which Counts 9 and 10 relate happened in February or March 1982. MW was in hospital at the time. KG said that every night while her mother was in hospital some form of sexual activity would occur in the lounge room but that the main incident she recalled occurred in the bedroom. They had just come back from the hospital and the offender sent everyone to bed. After an hour he came and got her out of bed and took her into his bed. He took her nightie and underwear off. He then took photos of her in various poses with his Polaroid camera. She said he was naked and his penis was erect. He then performed oral sex on her and had her perform oral sex on him. He then got the Vaseline and rubbed it on the inside and outside of her vagina and penetrated it with his penis from behind with her on her hands and knees, she being on the bed and him standing beside it. (Count 9 – Carnal knowledge of a step-daughter under 17). After a few minutes he then told her to lay on her back and he proceeded to enter her vagina again with his penis in that position until he withdrew and ejaculated over her stomach (Count 10 – Carnal knowledge of a step-daughter under 17). KG was then told to put her clothes back on and go back to bed.

17 KG recalled that the next morning she got up early. She had made a decision to tell her mother. She walked up to the hospital but by the time she got there she had talked herself out of it because she was scared of what the offender would do to her.

18 Counts 11 and 12 are concerned with something that happened at a time when her brother, DR, had run away from home. This was sometime in 1982. DR was known to have some friends who lived at the Vale of Clwyd. KG was told by the offender to get in the car as they were going to go looking for DR. They drove to an area near there but the offender stopped the car in a sheltered area off a dirt track.

19 The offender told KG to get into the back seat and to take her clothes off. She was then made to perform oral sex on him, with her seated on the back seat and he standing just outside the car. She told him that she did not want to but he said, “You’re going to do it”. She did not believe she had a choice so she did. When his penis was in her mouth he had his hands on her head to control her. This went on for about 5 minutes or a little less. She said she tasted pre-ejaculate and it made her feel sick (Count 11 – sexual intercourse without consent with person under 16).

20 The offender withdrew his penis and told KG to get out of the car and lean over the boot. She was naked. She leant over the boot and he proceeded to have penile/vaginal intercourse with her from behind. This lasted for about 5 minutes. He then withdrew, told her to put her clothes back on and get back into the car. She did, but she got into the back seat. They then drove home. Whilst the purpose of this trip was to look for DR, there was in fact no attempt to do so.

21 KG said that she did not tell anyone of being sexually abused by the offender until she told her husband in the early 1990’s. Soon after doing so she informed her mother. She said she did not go to the police at that time because she was too emotional and did not think she could cope going through the process. It was not until April 2006 that she felt able to cope with the process of coming forward to the police.

22 SK said she was sexually molested by the offender in the lounge room, on the lounge, always under the kangaroo skin rug. She said it started off with the offender just being friendly. They would be laying on the lounge, both on their sides, with him behind her. She said at the start it was just a friendly fun time. She was allowed to stay up late while all the other children were in bed. She was allowed to light his cigarette and also to open his beer and have a taste. Initially there was just cuddling but as time went on he started rubbing her chest outside her clothing and also touching her on the outside of her underpants. She said this happened many, many times. Then it became more sexual where he would feel under her nightie, on her skin and also down her underpants he would be feeling her and touching her vagina. It progressed to him rubbing her vagina and inserting his fingers. As they lay together with her back to him she said she could feel his erect penis pressing against her. She said she was terrified and always tense when this happened but she was not game to move or to say anything. She said he used to say things to her like, “Just relax, it’s okay, it won’t hurt, just lay still,” and other words to that effect. He also referred to these times under the rug on the lounge as their “special time” or something like “it’s our time together as father and daughter”.

23 SK said the progression from innocent cuddling to the touching having a sexual connotation was in 1978. The cuddling and the like had been going on for about a year at that stage. The frequency also increased from this point on.

24 She also mentioned kissing. She said on these occasions under the rug in the lounge room he would kiss her good night with an open mouth and with his tongue.

25 Counts 13 to 15 were concerned with an incident that occurred in the lounge room of the family home on an occasion in late 1980. On this particular night MW was at work and the rest of the children had been sent to bed. SK said the offender made her stay up and she was lying with him on the lounge under the kangaroo skin rug. As opposed to other occasions when there was sexual activity with the offender, on this occasion SK said it seemed different in that the offender seemed rushed. There wasn’t the time of him being nice, by letting her change the channel on the TV, lighting his cigarette or the like and there wasn’t much fondling. She was wearing a nightie and underpants and he took the underpants off. He had pulled his own underpants down and he had an erection. He grabbed her hand and placed it on his penis and made her masturbate him (Count 14- indecent assault upon a person under 16). When the offender took his hand away she let go but he put it straight back on his penis, saying, “No, leave it there”.

26 When this was happening she was lying more on her back and the offender was on his side. He was using his other hand to touch and penetrate her vagina with his fingers going in and out (Count 13 – indecent assault upon a person under 16). This did not go on for very long, she said, because she was so tense. She said she was terrified and scared. She did not know what to do or to say. Then the offender proceeded to get up and climb over her. She thought he might be going to get off the lounge. However, he said, “Relax, this won’t hurt”, or words to that effect. He also said, “Keep your legs open”. She was lying on her back at this stage. She then described him being in a kind of kneeling position above her with one leg down on the floor and the other on the lounge. He told her to keep her legs apart and he attempted to penetrate her vagina with his penis. He couldn’t the first time and he tried again. She was saying, “Stop, it’s hurting, it’s hurting”. He replied, “It’ll be alright, just relax”. He then tried again and succeeded in penetrating her (Count 15 – carnal knowledge of a step-daughter under 17). She was yelling out, “Stop it, stop it, it hurts, stop it”. His penis was inside her for a short time, moving in and out, and then all of a sudden he stopped, withdrew from her and said in a frustrated tone, “Go to bed now”. She said her vagina was hurting and it was sore for at least all of the next day.

27 SK said that after that incident there were further occasions of sexual activity but the offender reverted to touching with his hands and digitally penetrating her. The frequency reduced because she tried to become more involved in activities away from the home with sport, mountain climbing, and spending time with friends so as to avoid situations in which she would be in the home alone with the offender. When she was home she started going to bed earlier, even if it was still daylight, to avoid being the one to be kept up. The sexual activity ceased when the offender and her mother separated.

28 SK did not complain about the offender’s sexual molestation of her at the time. She said that normal family life resumed after he moved out. Over the years she told people that she had been abused as a child but did not go into detail. She thought she was strong enough to deal with it. She said she kept busy and pushed it to the back of her mind. There was some discussion about it with her mother and her sister in the early 1990’s but not in any detail as to what had occurred. She eventually made a statement to the police in July 2006.

UNCHARGED ACTS

29 At the trial the Crown relied upon uncharged sexual acts committed by the offender in support of its case as tendency and coincidence evidence. As those acts are not the subject of charges for which the offender has been found guilty he is not to be punished for them. The relevance of those other acts at this stage is simply to deny to the offender any leniency that might have been extended to him if the charged offences for which he was found guilty by the jury were isolated incidents. However, because there are 15 offences, none of them could really be regarded as isolated aberrations in the offender’s conduct.

SUBJECTIVE FEATURES

30 The offender was born in Portland in April 1944 and so he was aged 35 to 38 at the time of the offences and he is 64 now.

31 He has a criminal history comprising two drink driving convictions in the early to mid 1970’s and a matter of possessing an unauthorised firearm in 2007. It is not a significant record in the context of the matters for which he today stands for sentence.

32 The offender gave evidence in the trial and again at the sentence hearing. He said he lived in Portland with his parents and left school when he was 16. He had a variety of employment in Portland and later in Lithgow and Sydney. He commenced working in coal mines at Camden and returned to Lithgow where he continued such work until he ceased full-time employment about 12 years ago.

33 The offender has been married 3 times. The first marriage lasted 10 years and there are two children with whom he has no contact. The second was to the mother of the complainants and that too lasted 10 years. The third marriage was to Ms Roslyn Nolte, who gave evidence in the trial and on sentence. They separated in 1995 but maintain a friendly relationship. Ms Nolte has remained supportive of him throughout these proceedings.

34 The offender was placed on a disability support pension when he ceased work because of a collapsed disc in his spine. In 1999 he had a coronary aretery bypass graft. In 2007 he was diagnosed with prostate cancer.

35 He has been on a variety of medications for these conditions. He told me that since being in custody he has remained on this medication although there are sometimes disruptions to him receiving it, such as when he was transferred from Bathurst to Silverwater for his court appearance on 7 October. He told me that in relation to the prostate cancer, his prostate was removed by surgery but he had been told that not all of the cancer was taken. To deal with this he has been receiving monthly Zoladex injections. After going into custody he was due for his next injection in September and I was told that he received it, albeit some days late. A letter from his urological surgeon, Dr David Sillar, indicates that he was planning on reviewing the offender in December this year. A letter from Justice Health dated 15 September 2008 in Exhibit 2 confirms that the offender has been provided with all of his medications and his monthly injections and that he is to be reviewed by a urologist in December 2008.

36 It was submitted by Mr Walsh that I should find that custody will be a greater burden for the offender than for most inmates because of his ill-health. He also submitted that I should find that being in custody would adversely affect the offender’s health and that I should take both of these matters into account in mitigation. There was some discussion about the basis upon which I could make such findings. In the end, the matter was stood over to 31 October 2008 and I asked for a report in relation to these matters from Justice Health.

37 The requested report was not to hand on 31 October and so the matter was further deferred, by consent, until today. This morning I have had tendered a report by Dr Stephen Hampton from Justice Health. It makes clear that Justice Health is aware of all of the problems that the offender has and it is able to provide appropriate management and treatment. It indicates that the conditions of his custody “may be affected only in that he may be transferred to Long Bay for treatment if required, as might any other inmate with medical conditions”.

38 It seems to me that the offender’s ill-health is a matter properly to be taken into account in a general sense but it is not a matter that will have any particular bearing on the circumstances of his custody and there is no evidence that being in custody will exacerbate any of his conditions.

39 The offender moved to Ballina about the time he ceased work. He lived there in a caravan park up until he went into custody.

40 In relation to the offences, he said in his evidence that he does not accept the jury’s verdicts and maintains his innocence.

41 There was evidence in the prosecution case at the trial that was to the effect that the offender was a very lazy man who did not go to work for significant periods of time and who did virtually nothing around the house. The children were made to do many of the chores, including preparing meals, and their mother found it necessary to find work to make ends meet. There was also evidence that the offender was a very heavy handed displinarian who would physically beat the children for the slightest of indiscretions. This evidence was disputed in the defence case. I do not regard this evidence as being of any real significance on sentence. I can indicate that the complainants, and their mother, were most credible witnesses and I accept their version of these events. The only relevance this has is in providing an explanation for why the complainants felt inhibited in complaining about the offender’s sexual misconduct. The Crown contended that the offender’s behaviour in these ways was designed to keep the complainants quiet. The Crown Prosecutor submitted that even the offender’s violent and denigrating behaviour towards the complainants’ mother was in order to establish himself as the dominant force in the household, thereby rendering the complainants fearful of him and thereby compliant to sexual activity with him. I do not accept these contentions. In my view the offender’s behaviour in these ways was just because that was the type of person he was, at least at that time and in that environment. I do not think that the evidence is such that I could find that he deliberately behaved in those ways for the reasons the Crown has suggested.

42 Mr Walsh submitted that I should find that the offender is a person of good character. Aside from his behaviour during his marriage to the complainant’s mother I accept that. Whilst I will take this into account in his favour, good character is a matter of reduced significance in cases such as these.

43 It was also submitted that I should find that he has good prospects of rehabilitation and is unlikely to re-offend. I do not accept the submission about his rehabilitation prospects. He continues to deny the offences and, therefore, is obviously not contrite and has no insight into the causes of his offending behaviour. It is a matter of concern that there is nothing before me that would provide an explanation for the offending conduct. Often in cases such as these it is said that the offences were committed as a result of alcohol abuse or because of some psychological problem such as depression. I must take into account in considering this topic that there is no suggestion that in the 25 years or more since the offences that he has further offended. That would tend to suggest he has gained some control over impulses that he previously could not, or would not, control. It also, however, may simply be because he has not had the opportunity because he has not, in so far as I am aware, lived in the same household as young girls since that time. To the extent that rehabilitation includes acknowledging one’s wrongdoing and having insight into its causes I am unable to make a finding that the offender’s prospects of rehabilitation are any higher than “fair” . I accept, however, that he is unlikely to re-offend in this way and that is because of his age, his ill-health and the fact that he is unlikely to be permitted to have access to children in circumstances that would permit him an opportunity to sexually abuse them.

44 The offender gave evidence that up until now he has been in a form of protective custody which he referred to as “non-association”. I doubt that is the correct description of it. From what he said it is more likely to be limited association. I do not know what is likely to happen after the offender is sentenced. He will be classified and placed somewhere that is regarded as appropriate for that classification. It is well known that often offenders serving sentences for sex crimes, including child sexual assaults, are held together and away from other inmates in facilities that do not deny to them any access to programs or facilities. Without evidence that the conditions of the offender’s imprisonment will be more onerous I am unable to take this into account in mitigation of the sentences I impose.

DELAY

45 The period of time that has elapsed between the commission of the offences and now is relevant to my sentencing task in a number of ways.

46 It is relevant to the manner in which I assess the objective gravity of the offences of indecent assault and committing acts of indecency. In July 1981 the law relating to heterosexual sex offences was substantially amended. Prior to then, an act of penile/vaginal intercourse amounted to rape and all other forms of penetrative intercourse could only be prosecuted as an indecent assault. That means that the range of conduct that could amount to an indecent assault was wider, and included more serious conduct, than it did after the 1981 reforms. An act which might now be seen to fall in the middle of the range of objective seriousness, for example, would previously have been lower in the range. Alternatively, an act that might now be prosecuted as a more serious offence would previously have been something that tended to be in the upper echelons of seriousness as an offence of indecent assault, or an act of indecency.

47 This consideration is relevant to Count 5 which involves an act of digital penetration, Count 6 of inciting an act of fellatio, Count 7 which involves an act of cunnilingus, and Count 13, an act of digital penetration.

48 The next way the delay is relevant is that if sentencing practices have changed in the intervening period in a way that is adverse to the offender I am required to replicate the sentencing practices of the time when the offences were committed: Regina v MJR (2002) 54 NSWLR 368.

49 Identification of the sentencing practice that prevailed in 1980 to 1982 is not without difficulty. It has been the subject of discussion in a number of recent cases including Bradbury v Regina [2008] NSWCCA 93 and AJB v Regina [2007] NSWCCA 51, (2007) 169 A Crim R 32.

50 The regime of sentencing in that period of time was governed by the Parole of Prisoners Act 1966. Remissions of either 1/3 or 1/4 were applied to the head sentence but not the non-parole period. This necessitated setting non-parole periods that were short enough to allow a sufficient period for parole with the head sentence being substantially reduced by executive action. It was not until the Sentencing Act 1989 that there was any across the board statutory stipulation of the proportion of a sentence that was ordinarily to be represented by the non-parole period. No allowance was made for the remission system when sentences were imposed. It has recently been held that when a court now sentences for offences committed when the earlier regime applied, no regard should be had for the fact that sentences in those days were reduced by operation of the remissions system: see Bradbury v Regina at [24] and AJB v Regina at [31] – [33].

51 In AJB it was noted that in 1982, non-parole periods were in the order of one-third to one-half of the total term of the sentence. I have reviewed a large number of NSW sentencing cases for a period from the early 1970’s to mid 1985 that are collected in Ross W Carter, “Australian Sentencing Digest”, (1985) The Law Book Company Limited, and in the 1985 Supplement to that work, and it confirms that this was usual for the period of 1980 to 1982 that I am concerned with in this case. Some cases involved non-parole periods greater than a half of the head sentence and, indeed, there are some where no no-parole period was fixed at all. What I make of this is that I should have regard to the usual one-third to one-half proportion but I should not feel constrained to impose non-parole periods in the present case of that proportion if there is good reason to do otherwise.

52 Having regard to the regime of sentencing that prevailed at the time of the offences has been accepted as a special circumstance under the present legislation justifying a departure from the now mandated usual expectation that non-parole periods will be three quarters of the total sentence. Other matters that Mr Walsh has submitted that I should consider in this context of “special circumstances” are that this is the first experience of custody for the offender and that he would benefit by a longer period of parole in order to re-establish himself in the community after what Mr Walsh conceded would be a “significant time in custody”. The parole period I am going to allow for in the sentences I impose will be more than sufficient to meet these needs. The accumulation of sentences, which it has been conceded I must order at least partially, is another matter that I will take into account. I must also, however, take into account what the majority in the High Court said in Power v The Queen (1973) 131 CLR 623 at 627 that the non-parole period should represent the “minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention”. In the same case, at 628, it was held that general deterrence is amongst the objectives in relation to setting the non-parole period. I record here that I have set the non-parole component of the total effective sentence I am going to impose with what was said in Power v The Queen firmly in mind.

53 Another matter relevant to the principle that I must sentence in accordance with the sentencing regime that applied at the time of the offences is to determine whether any particular range of sentencing is identifiable. That poses a difficulty. There is, to my knowledge, no statistical material available to indicate what range of penalties were imposed for these kinds of offences in the early 1980’s. Absent that, and there being no other available means of identifying any sentencing range, for the correct approach I draw from the following in the judgment of Howie J in R v Moon (2000) 117 A Crim R 497 at 511 [70] – [71], case citations omitted, which was referred to and applied by Sully J in MJR:

[70] The nature of the criminal conduct proscribed by an offence and the maximum penalty applicable to the offence are crucially important factors in the synthesis which leads to the determination of the sentence to be imposed upon the particular offender for the particular crime committed. Even after taking into account the subjective features of the offender and all the other matters relevant to sentencing, such as individual and general deterrence, the sentence imposed should reflect the objective seriousness of the offence, and be proportional to the criminality involved in the offence committed. Whether the sentence to be imposed meets these criteria will be determined principally by a consideration of the nature of the criminal conduct as viewed against the maximum penalty prescribed for the offence.

[71] When sentencing an offender for offences committed many years earlier and where no sentencing range current at the time of offending can be established, the court will by approaching the sentencing task in this way effectively sentence the offender in accordance with the policy of the legislature current at the time of offending and consistently with the approach adopted by sentencing courts at that time.

OBJECTIVE SERIOUSNESS OF THE OFFENCES

54 There are a number of features to be considered in assessing the objective seriousness of the offences. One is the nature of the activity that comprised the assaults. Where the offences involve penetration, some forms of penetration can be regarded as more serious than others: see Ibbs v The Queen (1987) 163 CLR 447.

55 Another matter is that to which I referred earlier concerning the change in the law relating to sexual assaults in 1981.

56 Another matter to take into account is that each of the offender’s crimes were committed in a gross breach of the trust that reposed in him as step-father to the complainants. However, some care is necessary in relation to this topic because a breach of trust is inherent in most offences of having carnal knowledge of a step-daughter. I propose to take it into account as an aggravating feature in relation to all of the other offences.

57 The harm that the offender occasioned to the complainants is another matter to take into account. Once again, however, some care is required in relation to this issue. It is a statutory aggravating feature to find that “the injury, emotional harm, loss or damage caused by the offence was substantial”: s.21A(2)(g) Crimes (Sentencing Procedure) Act 1999. However, it is reasonable to assume that where an offence is specifically concerned with sexual assaults upon children the maximum penalty has been set by Parliament at least in part in recognition of the harm that such an offence occasions to such a victim. In saying this I should not be taken to mean that I do not accept that substantial harm was caused. Clearly it was as the victim impact statements that have been made by each complainant makes abundantly clear. What I am saying here is that it would be double counting for me to have regard to the maximum penalties for the offences which has inbuilt recognition of the harm such offences cause to children and then to also find the severity of the offences is aggravated because substantial harm was caused. This consideration applies to each of the offences in that they all include as an essential element, in effect, that the complainant was a child.

58 The age of the complainant is a relevant matter to take into account. The degree by which the age of the complainant is under the threshold age element of the offence can render an offence more serious. For example, the offences of having carnal knowledge of a step-daughter of or above the age of 10 and under the age of 17, can be seen as more serious where the complainant’s age was at the lower end of that range than if at the higher end of that range. The same applies to the indecent assault and acts of indecency offences where the age of the complainant is significantly less than 16.

59 Another matter to take into account is that the offences were not isolated incidents, or an aberration in the offender’s conduct. I am not saying that this is an aggravating feature because that would be to punish the offender for more than the individual offence itself. I am merely pointing out the absence of what would be a mitigating feature.

60 Have regard to all of the circumstances of the offences, including the matters I have just mentioned, I am of the view that each of the carnal knowledge of a step-daughter offences and the sexual intercourse without consent offence is in the middle of the range of seriousness for offences of their type. They are not of precisely the same seriousness – for example, the offence in count 15 is a little more serious than that in count 12 because of the difference in the age of the complainants. Nevertheless, they are all within the mid-range. Apart from count 14, all of the other offences I assess as being above the middle of the range of seriousness for offences of their types. They are not, however, in the worst case category. The offence in count 14, given the wide range of conduct that could be found in an offence of indecent assault, must be categorised as below the middle of the range.

OTHER SENTENCE CONSIDERATIONS

61 General deterrence is a matter I must take into account in determining the sentences, including the non-parole periods. Personal deterrence is a factor but not of great significance because of my finding of the unlikelihood of further offending. Acknowledging the harm occasioned to the complainants, denouncing the offender’s conduct and making him accountable for his actions are further matters that must be taken into account.

62 The offender has been in custody since the date of the jury’s verdicts and so I will back-date the sentences until then.

63 There must be a degree of accumulation of the sentences to recognise the multiple criminal acts and also that there are two victims. The extent of accumulation is limited, however, by consideration of the principle of totality.

64 I will impose fixed terms of imprisonment where there is no utility in setting a non-parole period.

SENTENCE

65 On each: Convicted.

Count 1 – Indecent assault upon female under 16: Sentenced to a fixed term of imprisonment for 3 years from 14 August 2009 until 13 August 2012.

Count 2 – Carnal knowledge of step-daughter under 17: Sentenced to a fixed term of imprisonment for 5 years from 14 August 2009 until 13 August 2014.

Count 3 – Carnal knowledge of step-daughter under 17: Sentenced to a fixed term of imprisonment for 5 years from 14 August 2010 until 13 August 2015.

Count 4 – Incite female under 16 to commit act of indecency: Sentenced to a fixed term of imprisonment for 1 year from 14 August 2008 until 13 August 2009.

Count 5 – Indecent assault upon female under 16: Sentenced to a fixed term of imprisonment for 3 years from 14 August 2008 until 13 August 2011.

Count 6 – Incite female under 16 to commit act of indecency: Sentenced to a fixed term of imprisonment for 1 year from 14 August 2011 until 13 August 2012.

Count 7 – Indecent assault upon female under 16: Sentenced to a fixed term of imprisonment for 3 years from 14 August 2011 until 13 August 2014

Count 8 – Carnal knowledge of step-daughter under 17: Sentenced to imprisonment for 5 years with a non-parole period of 3 years 9 months. The sentence is to commence 14 August 2011 and the non-parole period expires on 13 May 2015. The total sentence expires on 13 August 2016.

Counts 9 & 10 – Carnal knowledge of step-daughter under 17: Sentenced to imprisonment for 5 years with non-parole periods of 3 years. These sentences are to commence 14 August 2012 and the non-parole periods expire on 13 August 2015. The total sentences expire on 13 August 2017.

Count 11 – Sexual intercourse without consent upon person under 16: Sentenced to imprisonment for 3 years 6 months with a non-parole period of 2 years. The sentence is to commence 14 August 2013 and the non-parole period expires on 13 August 2015. The total sentence expires on 13 February 2017.

Count 12 – Carnal knowledge of step-daughter under 17: Sentenced to imprisonment for 5 years with a non-parole period of 2 years. The sentence is to commence 14 August 2013 and the non-parole period expires on 13 August 2015. The total sentence expires on 13 August 2018.

Count 13 – Indecent assault upon female under 16: Sentenced to imprisonment for 3 years with a non-parole period of 6 months. The sentence is to commence 14 February 2015 and the non-parole period expires on 13 August 2015. The total sentence expires on 13 February 2018.

Count 14 – Indecent assault upon female under 16: Sentenced to imprisonment for 2 years with a non-parole period of 6 months. The sentence is to commence 14 February 2015 and the non-parole period expires on 13 August 2015. The total sentence expires on 13 February 2017.

Count 15 – Carnal knowledge of step-daughter under 17: Sentenced to imprisonment for 5 years with a non-parole period of 6 months. The sentence is to commence 14 February 2015 and the non-parole period expires on 13 August 2015. The total sentence expires on 13 February 2020.

66 The offender will be eligible for release on parole on the expiration of the non-parole periods on 13 August 2015.

67 The total effective sentence is one of 11 years 6 months and the non-parole component is 7 years.

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