R v Lovett

[2024] NSWDC 551

District Court

New South Wales

Medium Neutral Citation:

R v Lovett [2024] NSWDC 551

Hearing dates:

15 November 2024

Date of orders:

18 November 2024

Decision date:

18 November 2024

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

The Offender is sentenced to an aggregated sentence of 9 years imprisonment with a non-parole period of 6 years.

Legislation Cited:

Crimes Act 1900 (NSW) ss 66A(1), 66DA(a), and 66EB(3)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Evidence Act1995 (NSW)

Category:

Sentence

Parties:

NSW Director of Public Prosecutions (Crown)
Peter George Lovett (Offender)

Representation:

Counsel:
Kylie Henry (Crown)
Jason Hale (Offender)

Solicitors:
Brittany Palmer (Crown)
Gosia Wasilewicz (Offender)

File Number(s):

2023/137646

Publication restriction:

Non-publication order in relation to the identity of the victim, the victim’s brother and the victim’s mother.

JUDGMENT

Introduction

1. The offender is to be sentenced having been found guilty by a jury after trial of the following offences: between 15 March 2017 and 31 December 2018 in Barnsley, he engaged in conduct exposing AS to indecent material with the intention of making it easier to procure her, a child under the age of 14 years, for unlawful sexual activity. That is an offence under s 66EB(3) of the Crimes Act 1900 (NSW). That offence has a maximum penalty of 12 years’ imprisonment and there is an applicable standard non-parole period of five years. The offence was count 1 on the indictment.

2. There is a further offence that between 1 January 2019 and 31 December 2020 at Barnsley, the offender had sexual intercourse with AS, a child then under the age of 10 years, namely 6, 7 or 8 years. That is an offence under s 66A(1) of the Crimes Act and there is a maximum penalty of life imprisonment and an applicable standard non-parole period of 15 years. The offence was count 2 on the indictment.

3. Count 3 on the indictment was an offence that between 1 January 2019 and 31 December 2020 at Barnsley, the offender intentionally sexually touched AS, being a child then under the age of 10 years, namely 6, 7 or 8 years. That is an offence under s 66DA(a) of the Crimes Act and has a maximum penalty of 16 years’ imprisonment and there is an applicable standard non-parole period of eight years.

4. The offence in count 4 was an offence that between 1 January 2019 and 31 December 2020 at Barnsley, the offender attempted to intentionally sexually touch AS, being a child under 10 years, namely 6, 7 or 8 years. That offence has the same maximum penalty as count 3.

5. One offence, the particulars of which are that between 4 September 2020 and 3 January 2021 at Bulahdelah, the offender intentionally sexually touched AS, being a child then under the age of 10 years, namely 8 years. That too is an offence under s 66DA(a) of the Crimes Act and has the same maximum penalty as the offences in counts 3 and 4. That offence was count 5 on the indictment.

The Facts

6. These being sentence proceedings after trial, I am required to find the facts consistent with the jury’s verdicts. To the extent that I find facts adverse to the offender, I must find those facts beyond reasonable doubt. The offender did not give evidence at trial. The jury’s verdicts represent a general acceptance of the evidence of the victim and of her mother, in relation to the terms of the complaint the victim made in relation to the offence contained in count 1.

The general context in which the offending occurred

7. The victim, AS, was born on 27 March 2012 and was aged between five and nine years at the time of the offending. The offender was born on 3 June 1959 and was aged between 59 and 62 at the time of the offences. The offender is the victim’s step-grandfather and the victim referred to him as “Grandad”.

8. At the time of the offending, the victim’s mother, SM was in a de-facto relationship with the offender’s son, Brendan Lovett. The victim also lived with her siblings: XL born 12 December 2011, who was her step brother; JL, born 13 May 2015, and GL, born 15 March 2017.

9. In March 2016, SM and Brendan Lovett purchased a house with the offender. The offender’s bedroom was first on the left entering the house and he used the downstairs basement as his own loungeroom.

Count 1

10. The victim was suffering from an earache and stayed home from school. The victim and her mother were together in the loungeroom and the mother told the victim to go and sleep with the offender. The victim waited at the offender’s bedroom door as he was in the basement at the time. The offender came upstairs and began watching TV with the victim on his bed.

11. The offender said to the victim, “I’m going to show you this special video”, and showed her a pornographic video on his iPad. The victim described the video as of “people playing with each other”. The victim went back to her room and went to sleep. She woke up some time later with the offender in her room staring at her. The offender said, “Can you please come back to my room?” The victim said, “No” and rolled over and went back to sleep.

12. The victim later told her brother, XL, about the pornographic video on the way home from swimming class. She told her brother because she was too embarrassed to tell her mother.

13. One day, when the victim’s mother was driving the children, she heard one of them say the word “porn”. She asked them what they were speaking about and they said nothing. The victim’s mother pulled the car over to speak to them further about it. The mother asked the victim what had happened, and she said she “saw a penis go into a girl”. The victim’s mother told the children that was not okay and spoke to them about safe internet usage.

14. Later that day, the victim’s mother told Brendan Lovett what had happened and left him to deal with the offender. They spoke with the children again about the incident and the victim’s mother asked the victim if the offender had touched her and she said no.

15. Brendan Lovett later spoke to the offender and said, “Can you make sure you don’t leave stuff in the DVD player or PlayStation that is inappropriate?”. The offender replied, “Okay”.

16. XL was interviewed by the police and essentially he would not answer any questions dealing with the offender and the victim’s interactions.

Count 2

17. The victim was in the offender’s room watching TV late one night. The victim was wearing Harry Potter pyjamas. The offender placed his hand underneath her pyjamas and touched the inside and outside of her vagina with his finger.

18. The offender then grabbed the victim’s hand and tried to put it down his pants. The victim pulled her hand away and ran to her room.

Count 3

19. On another occasion, the victim and the offender were in the basement in the family house in Barnsley. The victim was sitting on the offender’s lap who was sitting on a black chair. The offender touched the victim’s vagina under her clothes with his fingers. This stopped when the victim’s sister came down the stairs to the basement.

Count 4

20. The victim was laying down on the offender’s bed trying to go to sleep. The victim was wearing another set of Harry Potter pyjamas. The offender was only wearing a singlet and underpants. The offender pulled his underpants down and the victim could see his penis. The offender tried to touch the victim with his penis; this occurred for a number of minutes before the offender was interrupted by another child who had woken up with a nightmare and knocked on the offender’s door.

21. During her interview with police, the victim wrote down what had happened on a piece of paper which read,

“Place: his room.

He tried to touch me with his

Parts. Dick”.

Count 5

22. The victim and her family, including the offender, went on a camping trip to Bulahdelah. They stayed at the BIG4 caravan park at Bulahdelah. The victim was in the tent whilst the parents took two of the other children to the bathroom. The victim was laying on a camp stretcher trying to go to sleep around 10 or 11pm.

23. The offender tried to touch the victim through her clothes on an area she described as “the top part”, “near the shoulders”, and that the body part was “covered by the shoulders”.

24. The offender then touched the victim’s vagina through her clothes with his fingers. This stopped when someone walked back into the camp area.

25. There was some context evidence adduced from the victim. She told interviewing police that the offender had touched her in his bedroom on more than ten occasions.

26. The victim disclosed the sexual abuse to her friend, AB while she was staying at AB’s house whilst her mother was away with St John’s Ambulance at the Lismore Floods in March 2022. AB then told her mother. Her mother contacted the victim’s mother and told her what the victim had disclosed.

Objective Seriousness

27. I am required to make a determination as to the objective seriousness of each offence. While the offender is to be sentenced for the specific offences the jury has found him guilty of, given the evidence of the victim as to how often the offending took place, they are not isolated instances. In relation to all of the offences, the offender was performing the role of step‑grandfather, so he was in a position of trust in relation to the victim. All but count 5 occurred in the victim’s home, a place where she was entitled to feel safe.

28. In relation to count 1, the victim was either five or six years of age, so well below the top age limit for the offence. The evidence of precisely what was shown to the victim is unclear, although it appears to have been some type of pornographic video involving a sex act. It is unclear for how long the video was shown to the victim, although she later woke up in her room to the offender trying to have her return to his room. I assess the objective seriousness of that offence as a little below the midrange of objective seriousness.

29. In count 2, the victim was six, seven or eight years of age, again well below the maximum age provided for in the offence creating provision. The offence involved digital penetration. It appears to have been of short duration and the victim gave no evidence that it caused her pain. This offence, in my opinion, is below the midrange of objective seriousness for such offending.

30. In count 3, the child was again young, six, seven or eight years of age. The touching was of the child’s vagina, under her clothing, so it involved skin on skin touching. The offending stopped when another member of the household was walking nearby. I assess the objective seriousness of the offence as being just below the midrange of objective seriousness.

31. In relation to count 4, the victim was again quite young. It is unclear where the offender tried to touch her with his penis. The offence went on for some minutes and stopped when another child knocked on the offender’s door. I assess the objective seriousness of that offence as just below the middle of the range of objective seriousness for such offending.

32. In relation to count 5 the victim was eight years of age. The touching was of the vagina but on top of the clothes. The offending stopped when someone else walked by the tent. The objective seriousness of this offence is below the middle of the range.

33. In relation to all offences, there is the aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act that they involved a breach of trust by the offender. I have had regard to that factor in my assessment of the objective seriousness of the offences to avoid double counting. Similarly, in relation to counts 1 to 4, each of those offences occurred in the child’s home, which is an aggravating factor which I have had regard to when assessing the objective seriousness of those offences.

The Offender’s Subjective Case

34. The offender’s date of birth is 3 June 1959 so he is currently 65 years of age.

Criminal history

35. He has a minimal criminal history. Of some note is that he was convicted of one count of common assault against the victim in the current matter and fined in the Local Court on 23 August 2021, the offence occurring on 24 February that year, after the offences for which he is to be sentenced. I do not consider that his criminal record disentitles him completely to leniency here.

Documentary material

36. I have the following documentary material before me:

1. a Sentencing Assessment Report dated 13 November 2024, which has attached to it a case note report prepared by Tara Van Zeist, a specialist psychologist with Corrective Services. I note Ms Van Zeist had not interviewed the offender in terms of the preparation of her report.; and

2. a psychological report prepared by Ms Caroline Hare, forensic psychologist.

37. The offender gave no evidence on sentence.

Family background

38. In terms of the offender’s family background, he told the psychologist that he was raised by his parents in Newcastle and was the third of four children to his parents.

39. He told the psychologist that his parents were both teachers and strict disciplinarians and would engage in corporal punishment, which the offender experienced as excessive and physically abusive. The offender reported no other experiences of childhood maltreatment or exposure to trauma during his development. He reported that he was not exposed to parental substance misuse or other anti-social conduct.

40. The psychologist records that the offender met his wife in the early-1980s when he was in his early 20s. They wed and their marriage lasted 16 years. They had two sons who are now adults. When his sons were aged approximately 12 and ten, his marriage ended. Initially, his wife and he shared equal custody of their children. When his sons reached high school, his eldest son started living with him from the age of 15, whom the offender remains close with. My understanding is that son is Brendan Lovett. The offender said his younger son gradually withdrew over the years and they have not had any contact for an extended period of time.

41. The Sentencing Assessment Report records that the offender is divorced and currently single. Prior to his current imprisonment, the psychologist records the offender was residing alone in rented accommodation. At the time of the offences the offender was residing with his son, the victim’s mother and his biological grandchildren, as well as the victim. It is recorded that the offender’s son is his only support within the community, and he continues to have contact with his grandchildren and expresses how important they are to him.

42. He told the psychologist that he plans to reside with his eldest son and three grandchildren upon his eventual release in a property he part owns with his son.

Education and employment history

43. In terms of his education and employment history, the offender described to the psychologist his school experience as “terrible”, but still had “breezed through” and achieved top grades without ever having to apply any effort to his study. The offender attended school consistently and was never suspended. He reported having left school at the end of year 11 to enter the paid workforce, a decision that his parents did not support.

44. He reported to the psychologist that he had achieved occupational qualifications during his career, but he has not completed further formal educational qualifications since leaving school. The offender reported having maintained full‑time employment for the past 40 years in significant positions within the mining industry, until he was remanded into custody. Prior to his incarceration, he had been working full‑time as a project manager in the mining industry for about a decade.

45. According to the psychologist’s report, whilst in custody he works in the textiles workshop.

Substance use

46. He reported having experimented with cannabis in his teenage years, but did not enjoy the effects and did not develop a habit.

47. The offender told the psychologist that he maintained an unhealthy pattern of alcohol use but denied that alcohol has caused him psychosocial problems. He reported that he first began drinking alcohol a couple of times a week at the age of 14 or 15, and by the age of 19, he was drinking daily. The Sentencing Assessment Report records that he would drink five alcoholic beverages every afternoon at the local hotel and on weekends would consume higher amounts.

48. The psychologist records that the offender’s social life consisted of regularly drinking at the local hotel and club, where he knows people well enough to chat. He denied maintaining anti-social friends and he provided examples of having distanced himself from past acquaintances involved in criminal activities.

49. The offender reported that he was under the influence of alcohol in the lead up to his offences. He told the psychologist he did not experience alcohol withdrawal upon his incarceration, and he plans to limit his alcohol use upon his release.

Psychological/psychiatric history

50. The psychologist opined that, based on the offender’s self‑report and clinical presentation, he appeared relatively emotionally resilient at the time of the assessment and did not meet the criteria for any mental illnesses. The psychologist opined that, whilst mental wellbeing fluctuates in response to internal and external stressors, it seems unlikely that the offender has ever met the criteria for a mental illness.

51. I note that Ms Hare records that the offender declined to engage in psychometric testing during her assessment, which limits the usefulness of the assessment.

52. The offender reported to the psychologist that he suffered from some health conditions at the time of the assessment, including hypertension, hay fever and back pain. I have no medical evidence before me concerning any of those conditions.

Attitude to the offence

53. In terms of his attitude to the offending, the Sentencing Assessment Report records that the offender presented with a dismissive attitude and absolves himself of all responsibility for his offending behaviour.

54. It is recorded that he shifted blame onto the victim’s mother for coercing the victim to make false accusations following her and the offender’s son’s relationship breakdown as a form of punishment. He told the psychologist that his son’s relationship ended prior to the victim reporting the offence, and suggested that the victim’s mother had “put her up to it” to “get back at [his son]”.

55. The author of the Sentencing Assessment Report expressed the opinion that the offender lacks any insight or remorse from his offending behaviour.

56. The Sentencing Assessment Report records that the offender refuses to undertake any intervention for sexual offending behaviour.

The future and risk of re-offending

57. Ms Hare records that, based on the Static-99R risk assessment the offender scored a total of -2, placing him in the very low risk category for being charged with or convicted of a further sexual offence. The psychologist assessed the offender as scoring five on what is referred to as the STABLE-2007 dynamic risk assessment, placing him in the Moderate risk/treatment need category.

58. The Sentencing Assessment Report assessed the offender to be at a Below Average Risk Category of sexual reoffending, using the Static-99 sexual recidivism risk assessment and at a Medium-Low level of offending according to the Level of Service Inventory – Revised (LSI-R) scale.

59. Ms Hare records that the offender described engaging in mainstream sexual interests and behaviours and opined that no concerns for the offender’s sexual self-regulation were identified.

Other relevant sentencing principles

60. The offender maintains his innocence, so there is no remorse and he has no insight into his offending or its impact upon the young victim.

61. His lack of a criminal record, his age, his good history of employment and his relatively low risk of reoffending results in him having reasonable prospects for rehabilitation, despite having no remorse for the offending.

60. This is his first time in custody and he has reasonable prospects for rehabilitation. Noting his age, I consider it is appropriate to make a finding of special circumstances when fixing the non-parole period.

61. The offender has been in custody since 30 April 2023 and I will backdate the sentence to that date to take account of all presentence custody.

62. There are a number of incidents in which offences were committed against a very young child. There should be a reasonable level of accumulation of the sentences in order to properly reflect the principles of totality.

63. I have regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). All right-thinking members of our community condemn sexual offending against young children; such offending is particularly abhorrent. Young children should be free to enjoy their childhood without being preyed upon by sexual offenders like this offender. The seriousness of the offending is reflected in the significant penalties provided by the Parliament for such offences.

64. The sentence to be imposed must be of sufficient severity to deter not just this offender but others from engaging in such serious criminal conduct against young, vulnerable members of our community.

65. Sentencing has been said by the higher courts to involve a process of instinctive synthesis of a number of relevant factors, some of which pull in different directions. The maximum penalties and standard non-parole periods have been taken into account as legislative guideposts in relation to the sentences to be imposed.

66. It will be seen I have departed from the standard non-parole periods due to my assessment of the objective seriousness of the offences and the length of the sentence I consider appropriate. If I did not record formal convictions when the jury returned verdicts, I convict the offender of the offences for which the jury returned guilty verdicts.

67. I will utilise the aggregate sentencing provisions. I will firstly record the indicative sentences and indicative non-parole periods. In determining the indicative sentences and fixing the aggregate sentence, I have had regard to all of the objective and subjective factors I referred to earlier.

68. The sentences Mr Lovett will hear me first announce are what are called indicative sentences. He will then hear me announce an aggregate sentence which is the sentence and non-parole period that he will serve. It is not arrived at by simply adding up all of the indicative sentences. When announcing the aggregate sentence I will tell him the date it starts from, the date it ends and the date when he is first eligible for parole.

69. The indicative sentence on count 1 is three years imprisonment with an indicative non-parole period of two years.

70. The indicative sentence on count 2 is five years imprisonment with an indicative non-parole period of three years and three months imprisonment.

71. The indicative sentence on count 3 is four years imprisonment with an indicative non-parole period of two years and eight months imprisonment.

72. The indicative sentence on count 4 is three and a half years imprisonment with an indicative non-parole period of two years and three months imprisonment.

73. The indicative sentence on count 5 is 12 months imprisonment with an indicative non-parole period of eight months.

74. I impose an aggregate sentence of nine years imprisonment with an aggregate non-parole period of six years.

75. The sentence commences on 30 April 2023 and expires on 19 April 2032. The aggregate non-parole period expires on 19 April 2029.

76. The earliest date Mr Lovett is eligible to be released to parole is the date of the expiry of the non-parole period which is 19 April 2029. Whether he is in fact released to parole that day is a matter for the State Parole Authority which will no doubt take account of his behaviour in prison in determining whether he is released then or on another date.

Concerns about the Conduct of the Trial

79. In saying what I am about to say, I am not in any way commenting upon the veracity of the victim’s evidence in the trial. I am not. I do wish to record though, as I noted during the running of the trial; see transcript page 17, my concern with how the interviewing police officer in this case led the victim during her police interview, which in effect became her evidence-in-chief.

80. While I understand why special procedures are in place to assist children to give evidence in these difficult cases, in my opinion, what occurred during the interview with the victim was not appropriate. When the child was unable or unwilling to tell the officer what she alleged against the offender, the officer read out a diary entry of the child during the course of the interview and then proceeded to lead the child’s evidence from that diary entry. The child herself said in her interview that she thought she had written the dairy entry two weeks prior to the police interview, which was some considerable time after the alleged offences. I know of no provision in the Evidence Act1995 (NSW) or any other statute that permits a witness’s evidence to be adduced in that manner. Clearly the procedure contemplated by s 32 of the Evidence Act was not utilised given there was no Court supervision of the interview.

81. Similarly, the child XL was effectively cross-examined by the interviewing officer, to the point where the child became teary, when he would not provide the officer with information the officer believed the child knew. I also commented upon this during the running of the trial; see transcript page 29.

82. If these are police interviewing practices that have developed in recent times, I for one, think they are practices that should cease.

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Decision last updated: 22 November 2024