R v Middleton
[2018] ACTSC 198
•6 July 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Middleton |
Citation: | [2018] ACTSC 198 |
Hearing Date: | 6 July 2018 |
DecisionDate: | 6 July 2018 |
Before: | Elkaim J |
Decision: | See [43] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse with a young person – act of indecency with a young person – pleas of guilty |
Legislation Cited: | Crimes Act 1900 (ACT) ss 55(1) and 61(1) Crimes (Sentencing) Act 2005 (ACT) ss 6, 7 and 10 |
Cases Cited: | Dousha v The Queen [2008] NSWCCA 263 |
Parties: | The Queen (Crown) Peter Middleton (Offender) |
Representation: | Counsel Mr P Dixon (Crown) Mr J Wickens (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson Solicitors (Offender) | |
File Number: | SCC 283 of 2017 |
ELKAIM J:
On 14 February 2018, the offender (through his representatives) indicated that he would be entering pleas of guilty to the offences. The pleas were formally entered today. The offender is entitled to a discount for the pleas of guilty which, with a good deal of reluctance, I assess at 25%.
The offender pleaded guilty to five counts of sexual intercourse with a young person, contrary to s 55(1) of the Crimes Act 1900 (ACT). The maximum penalty for this offence is 17 years’ imprisonment.
The offender also pleaded guilty to four counts of an act of indecency with a young person, contrary to s 61(1) of the Crimes Act 1900 (ACT). The maximum penalty for this offence is 12 years’ imprisonment.
The offender was born and grew up in Adelaide. He is currently 76 years of age. He had a stable upbringing. He married and has two children. His wife died in 1991.
The offender worked as a journalist and in television. He has been a press secretary and speech writer for South Australian politicians. He has also been a management consultant and ran his own consultancy business. He retired about ten years ago.
The above information was taken from a Neuropsychological Report dated 9 June 2018.
The offender does not have a criminal record. An offender’s prior good character would, normally, be a significant mitigating factor. However, its weight is less in cases of this type: see Dousha v The Queen [2008] NSWCCA 263 at [49]. I will take the absence of a criminal record into account but not to the same extent that I might otherwise have done.
The details of the offences are set out in the Statement of Facts. They involve offences against two children, DE and FE. DE was 9 or 10 when the offences took place. FE was 7 years’ old. The following is a brief summary of the offences.
There are five counts of sexual intercourse and two counts of an act of indecency involving DE. There are two counts of an act of indecency involving FE.
DE and FE are sisters. Their grandparents were longstanding friends of the offender. The offender was regarded as a member of the family and referred to by the children as “uncle”.
Counts 1 to 4 occurred in early 2017. The offender, who lived in South Australia, was visiting the grandparents in Canberra. He parked his mobile home outside their house in a Canberra suburb.
The offender enticed DE into his mobile home. He placed her on the bed. He inserted a finger into her anus and her vagina. This is Count 1. He then asked DE to sit up and kissed her on the mouth. He then inserted a finger into her anus and vagina. This is Count 2.
Count 3 occurred a short time later. The offender exposed his penis and moved DE’s hand up and down his penis. This is Count 3. The accused later kissed DE on the mouth, using his tongue on her lips. This is Count 4.
A few months later, in June 2017, the offender again visited the grandparents in Canberra. On this occasion, he stayed in their house.
The offender asked DE to give him a hug. She approached him. He put his hand inside her underwear and inserted a finger into her anus and vagina. This is Count 5.
Sometime later, during the same visit, the offender went into the room where the two sisters were sleeping. He woke DE up by touching her bottom. He requested a kiss. The request was denied. He then inserted his finger into her anus and vagina. This is Count 6.
Having satisfied his depravity with DE, the offender approached FE. He pulled her pyjama pants down and touched her vulva and bottom. He kissed her on her mouth. This is Count 7.
The next day, the offender called FE into his bedroom. He hugged her and kissed her with an open mouth. He removed her pyjama pants and, after touching her, he turned her over so that she was lying on her back. He placed his hand on her vulva. This is Count 8.
Count 9 involves DE. The offender joined her in the bathroom. He placed his hand inside her underwear and put his finger into her anus and vagina.
It was submitted on behalf of the offender that the crimes were opportunistic. There is, perhaps, a degree of validity to this submission but any benefit that it might generate is destroyed by the repetition of the offences.
The Statement of Facts also refers to two uncharged acts which occurred in Tuross Head in New South Wales. The offences were committed on FE. One offence involved committing an act of oral sex on FE. The other, an act of indecency, involved the offender kissing FE.
The Crown relied on these uncharged offences to demonstrate that the charged acts were not isolated. They cannot be taken into account in the sentencing of the charged acts, but they are another indication of the offender’s moral corruption.
There are a number of aggravating features to the offender’s conduct. They include:
(a)The tender age of the children;
(b)The promise of gifts as an enticement; and
(c)The breach of trust of his position as an honorary ‘uncle’.
The offences, including the aggravating features, comprise a disgraceful, disgusting and despicable series of events. Although the acts of indecency (other than Count 3), when looked at individually, might not be described as objectively serious, each of the acts of sexual intercourse are objectively serious.
In addition, it is important to recognise the effects that these acts have had, and will continue to have, on the two children. It is well known that offences of this type cause longstanding, if not lifelong, anguish and mental injury to victims. This is highlighted by the Victim Impact Statements.
The Crown tendered Victim Impact Statements prepared by DE and FE and their mother and father. A joint Victim Impact Statement prepared by DE and FE’s maternal grandparents was also tendered. The children’s mother read out her Victim Impact Statement in Court.
The Victim Impact Statement from DE describes the psychological effects upon her:
He made me feel unloved. He made me feel like Mum didn’t love me - that no one loves me.
He made me feel that it looked like there is no daylight left in my body. Like it is always raining and dark, and the sun has died. There is no happiness.
He said not to tell anyone, keep it a secret. I didn’t know why, like if he was planning a surprise or other stuff. I knew Mum trusted him, so I thought that this has also happen to her and she found it fine, so I kept it a secret.
The Victim Impact Statement from FE includes this:
When it first happened it felt like ‘humongous’ times infinity. He made me feel defenceless, scared, sorry, sad and mad…
I have a lot of triggers especially at school. Sometimes I use a stress ball, or take big deep breaths, or write in my worry box. Sometimes when I have a trigger I leave what the class is doing and write and draw in my diary until I feel better…
Now I have trouble getting to sleep at night in my bed, because I think someone is going to come in and touch me the way Peter did.
These statements are in stark contrast to the offender’s glib remark to the psychologist that: “he did not consider he would have caused them any psychological harm because they’re bright girls”. An apology to the girls and their family was made in Court today through counsel. I am not satisfied that there is any genuine remorse on the offender’s part.
The Victim Impact Statement from the victims’ mother describes the guilt that she has felt and the difficulties she faces on a daily basis such as, for example, letting the children be alone for hours each day at school. She says that she listened to and held the girls as they cried “night after night” and she refers to the extended effects on her family life that have resulted from the offending.
The Victim Impact Statement from the victims’ father expresses his fears for his daughters’ futures and describes how he worries about them when they are out of sight. He confirms that the whole family dynamic has changed.
There is a joint Victim Impact Statement from the grandparents. They express their concern about behavioural changes in their grandchildren, in particular DE. They describe the effects on the children’s parents. They also refer to the betrayal of the “more than 50 years of friendship and trust” that they had shown to the offender. They were obviously very close family friends. They conclude:
The shame we feel and our regret in allowing him to be part of our family will never go away; nor will it diminish over time because of these constant reminders.
Almost extraordinarily, the offender in his interview with the psychologist says in relation to the grandparents and the friendship: “I think I’ve lost them”. It is obvious to me that the offender has no real insight into the nature and extent of the harm he has perpetrated.
The Neuropsychological Report contains some other disturbing observations. It appears that the offender denied some of the fundamental ingredients of the offences. I specifically asked Counsel today if this denial was maintained. I was told that the offender maintains his pleas of guilty to the offences as detailed in the Agreed Statement of Facts. This was confirmed by his pleas when arraigned today.
The report says that, according to the criteria in the Diagnostic and Statistical Manual of Mental Disorders (5th Edition), the offender meets the criteria for paedophilia. However, the author says there is a very low risk of reoffending, primarily due to the offender’s age. The report suggests referral to a geriatrician or a neurologist to investigate an apparent Mild Neurocognitive Disorder. This has not been undertaken, nor was an application made for an adjournment.
In respect of my general approach to sentencing, it is important to have regard to the objects of the Crimes (Sentencing) Act 2005 (ACT), expressed in s 6, and the overall purposes of sentencing, as stated in s 7. Although s 10 states that an offender should not be sentenced to a term of imprisonment unless no other penalty is appropriate, I consider this to be a case where imprisonment is inevitable. No suggestion was made to the contrary.
The punishment must be significant, both to deter this offender and any other person considering or having a tendency to commit such offences. In addition, the community’s revulsion at such offences must be reflected in the sentences.
The offender was arrested on 18 June 2017. He was, perhaps surprisingly, granted bail on 19 June 2017 and has only spent one day in custody in relation to these offences.
The Crown provided a list of comparable cases. They are, of course, not precisely comparable because each case has its own facts. However, I have taken them into account and will mark the list as MFI 1.
I think each offence of sexual intercourse should be punished by imprisonment for six years. After the 25% reduction, the term is four years and six months’ imprisonment. With one exception, each act of indecency should carry a prison term of six months, which will be reduced to four months and 15 days’ imprisonment.
The one exception is Count 3 which I think is more serious than the others and demands a greater punishment. The description of the offence highlights the sexual gratification involved, contrary to what was said to the psychologist. I think the appropriate sentence is 12 months’ imprisonment, reduced to nine months after the discount.
I recognise that some of the offences form part of the same course of conduct and there needs to be a degree of concurrency between the sentences. I also appreciate that the head sentence must not be so long as to offend the principles of totality.
I make the following orders:
(a)In respect of Count 1, sexual intercourse with a young person (CC 2017/6826), the offender is sentenced to four years and six months’ imprisonment commencing on 6 July 2018 and ending on 5 January 2023.
(b)In respect of Count 2, sexual intercourse with a young person (CC 2017/6829), the offender is sentenced to four years and six months’ imprisonment commencing on 6 July 2018 and ending on 5 January 2023.
(c)In respect of Count 3, act of indecency with a young person (CC 2017/6830), the offender is sentenced to nine months’ imprisonment commencing on 6 July 2018 and ending on 5 April 2019.
(d)In respect of Count 4, act of indecency with a young person (CC 2017/6831), the offender is sentenced to four months and 15 days’ imprisonment commencing on 6 July 2018 and ending on 20 November 2018.
(e)In respect of Count 5, sexual intercourse with a young person (CC 2017/6833), the offender is sentenced to four years and six months’ imprisonment commencing on 6 January 2020 and ending on 5 July 2024.
(f)In respect of Count 6, sexual intercourse with a young person (CC 2017/6835), the offender is sentenced to four years and six months’ imprisonment commencing on 6 January 2020 and ending on 5 July 2024.
(g)In respect of Count 7, act of indecency with a young person (CC 2017/6836), the offender is sentenced to four months and 15 days’ imprisonment commencing on 6 January 2020 and ending on 20 May 2020.
(h)In respect of Count 8, act of indecency with a young person (CC 2017/6840), the offender is sentenced to four months and 15 days’ imprisonment commencing on 6 January 2020 and ending on 20 May 2020.
(i)In respect of Count 9, sexual intercourse with a young person (CC 2017/6842), the offender is sentenced to four years and six months’ imprisonment commencing on 6 January 2021 and ending on 5 July 2025.
(j)The overall sentence is seven years’ imprisonment commencing on 6 July 2018 and ending on 5 July 2025.
(k)I set a non-parole period of five years commencing on 6 July 2018 and ending on 5 July 2023.
| I certify that the preceding forty-three [43] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: 6 July 2018 |