R v M

[2010] NSWDC 153

CITATION:	R v M [2010] NSWDC 153
HEARING DATE(S):	25 June 2010
JUDGMENT DATE:	25 June 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	The total sentence consists of a non parole period of three years and a period of eligibility for parole of one and a half years, making a total effective sentence of four and a half years.
CATCHWORDS:	CRIMINAL LAW - Sentence - Sexual intercourse in circumstances of aggravation - Under authority of offender - Breach of trust
LEGISLATION CITED:	Crimes Act 1900
PARTIES:	The Crown M
FILE NUMBER(S):	DC 2009/00002675
COUNSEL:	Mr P Johnson - Offender
SOLICITORS:	Director of Public Prosecutions T & A Legal - Offender

SENTENCE

1 HIS HONOUR: M pleaded guilty before me to two offences. They both alleged that he had sexual intercourse with his natural daughter, then either fourteen or fifteen, in circumstances of aggravation namely, that at the time she was under his authority.

2 M had seven children with his de facto wife. She left the relationship leaving him to care for them. He was living with them in Housing Department premises in Bathurst when in October or early November 2007, whilst the complainant was home from school sick with a cold, the offender called her into his bedroom to sleep with him. She got into bed with the offender and he began cuddling her and touching her breasts. He then put his finger inside her underpants and touched the outside of her vagina and then penetrated her vagina with his finger. He told his daughter, “you will enjoy it” but she shook her head and so the offender stopped. It seems that the complainant told an adult about this incident but nothing was done.

3 The next offence occurred almost a year later. The complainant was home from school when the offender started to touch her in a sexual way, eventually putting his hand inside her pants and once more penetrating her vagina with his finger. The offender again asked if the complainant was enjoying it and she said, “no”. The offender stopped when someone came to the front door of the house. Relatively soon afterwards, the complainant spoke to the same adult male she had spoken to before. He took her to the police where she was interviewed and that of course led to the offender’s arrest. That was on 5 October 2008 and he has remained in custody from then.

4 I mentioned before that the offender pleaded guilty, this was at a comparatively late stage of the proceedings, indeed his matter was listed for trial on the day that the pleas were entered. Notwithstanding the lateness of the pleas, there was still a utilitarian benefit, such that I will impose upon the offender a sentence of imprisonment which is six months shorter than would have been the case if he had not pleaded guilty.

5 The offender had a childhood which is unenviable. He was one of eleven children, this was a blended family because his father’s first wife, not the offender’s mother, was killed in an accident. He was subjected to violence at the hands of his mother as he was growing up. It appears that the family was very poor and he was teased at school. He was sexually abused by an adult male between when he was twelve and when he was thirteen. He has had some history of working but has spent most of his recent years caring for his children.

6 Not only was the offender’s childhood troubled, so was his relationship with his former de facto wife. Eventually they separated in 1998, leaving him as I mentioned, to care for the children. He told a psychiatrist that he has not had an intimate relationship for many years. The psychiatrist said, that the offender appeared to be somewhat isolative and avoidant. His isolation has only increased since the commission of these offences. He has received no visits from any family member since going into custody. His daughter is cared for by his mother, but even his mother does not visit him in gaol. No one appears to have stood by him.

7 He has a relatively minor criminal history in a very closed period, between 1981 and 1984, that can be effectively disregarded.

8 The offences themselves are of course serious by their very nature. To sexually abuse a child is bad enough, but there was a substantial breach of trust involved in this offence, the offender being the natural father of the complainant. She looked to him to guide and protect her, not to use her as an object of sexual gratification. In such matters the law proceeds on the assumption that the complainant will suffer harm in the future because what her father has done to her. Part of that harm will of course be that by his misconduct she has been denied contact with him.

9 The offences appear to have each been relatively brief. In the circumstances of this case, the digital penetration of the complainant’s vagina is one of the less serious forms of sexual intercourse, as that term is defined in the Crimes Act. There appears to have been no premeditation or planning and at least on the first occasion the offender stopped when his daughter told him that she was not enjoying it. These offences appeared to have been rather pathetic.

10 I am satisfied that the offender has good prospects of rehabilitation and that his risk of re-offending is low. The offender did not set out to manipulate his daughter. For example he did not threaten her in any way, either to allow him to commit the offence upon her or to stop her from reporting what he had done. In many respects the offender is a man who has much to be proud of as a single father. It cannot have been easy to keep the family together, but he did so, that is something that he can be proud of. What he cannot be proud of, of course, is that he has now by his criminal conduct, split the family up. The offender may, because of the nature of his offence, serve his sentence on protection. There is a risk that will occur and if it does, there is a risk that will involve harsher conditions of custody than would otherwise be the case, that also is as matter that I have taken into account.

11 I mentioned before that the offender is a victim of sexual assault himself. There are some suggestions in some of the authorities that that can be a matter which affects the moral culpability of an offender. I simply do not understand how that can be the case, at least in the present situation. A suggestion that those with a history of themselves being victims of sexual abuse, are morally less culpable when they themselves commit offences of sexual abuse suggests that such people are less able to make the decision as to whether or not they will commit the serious offending involved when they themselves abuse children. I simply do not understand that there is any empirical authority or work or understanding or evidence to justify that conclusion. There maybe a commonly held view that that is the case, that rather than making decisions concerning the moral culpability of an offender on the basis of what “everyone knows”, it would in my view be better to make such decisions based on empirical evidence.

12 That is not to say that the sad circumstances of the offender, who was himself the victim of sexual assault as a child is to be ignored. To the contrary, it is one of the many matters that I took into account when describing the offender’s upbringing in the way I have.

13 Of course, ultimately the most important matter to be taken into account when determining the appropriate sentence in this case is the need to protect other children, to deter others who might be tempted to act as the offender has done and to condemn in a public way the actions of a person who would sexually abuse for his own gratification a child in his care.

14 There are special circumstances in this case. The psychiatric report speaks of the benefits that the offender could obtain through counselling upon his release from custody. It is his first time in custody and the isolation he will experience upon his release suggests that he will benefit from supervision by the Probation and Parole Service for an extended period. I therefore enlarge the period of eligibility for parole at the expense of the non parole period. Mr Johnson concedes that it is appropriate that there be some level of accumulation to reflect the fact that there were two separate acts of criminality here.

15 On count 2 on the indictment the offender is sentenced to imprisonment, I set a fixed term of two years, to date from 5 October 2008. On count 4 on the indictment, the offender is sentenced to imprisonment, I set a non parole period of two years, to date from 5 October 2009 and a head sentence on that matter of three and a half years. The total sentence consists of a non parole period of three years and a period of eligibility for parole of one and a half years, making a total effective sentence of four and a half years. The sentence on count 2 is a fixed term because of the other sentence that I imposed on count 4.

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