R v Middleton (No 2)
[2020] ACTSC 123
•15 May 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Middleton (No 2) |
Citation: | [2020] ACTSC 123 |
Hearing Dates: | 24 April 2020, 5 May 2020 |
DecisionDate: | 15 May 2020 |
Before: | Burns J |
Decision: | See [78]–[90] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Re-sentence – plea of guilty – two counts engaging in sexual intercourse with a young person under the age of 10 years – three counts engaging in sexual intercourse with a young person under the age of 16 years – four counts committing an act of indecency on a person under the age of 10 years – original judge misinformed about maximum penalty – fresh evidence – impact of mental impairment on offending – consideration of community protection |
Legislation Cited: | Crimes Act 1900 (ACT) ss 55(1), 55(2), 61(1) Crimes (Sentencing) Act 2005 (ACT) s 7 |
Cases Cited: | Middleton v The Queen [2020] ACTCA 6 R v Middleton [2018] ACTSC 198 |
Parties: | The Queen (Crown) Peter Middleton (Offender) |
Representation: | Counsel R Christensen (Crown) P Boulten SC (24 April 2020, 5 May 2020); T Taylor (14 April 2020, 5 May 2020, 15 May 2020) (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) McKenna Taylor (Offender) | |
File Number: | SCC 283 of 2017 |
BURNS J:
Peter Middleton, you appear before me today via video link to be sentenced for multiple sexual offences committed against two young girls who I will refer to as DE and FE respectively. DE and FE are sisters. Their grandparents were longstanding friends of yours. You were regarded as a member of the victims' family and were referred to by the children as “uncle”.
The offending occurred between 20 January 2017 and 19 June 2017 at which time FE was seven years old and DE was nine or 10 years old. The charges upon which you are to be sentenced may be summarised as:
·
two counts of engaging in sexual intercourse with a young person under the age of 10 years, being DE, contrary to s 55(1) of the Crimes Act 1900 (ACT)
(the Crimes Act) carrying a maximum penalty of 17 years' imprisonment;
· three counts of engaging in sexual intercourse with a young person under the age of 16 years, being DE, contrary to s 55(2) of the Crimes Act carrying a maximum penalty of 14 years' imprisonment;
·
two counts of committing an act of indecency on DE, being a person under
the age of 10 years, contrary to s 61(1) of the Crimes Act, carrying a maximum penalty of 12 years' imprisonment; and
·
two counts of committing an act of indecency on FE, being a person under
the age of 10 years, contrary to s 61(1) of the Crimes Act, which also carries a maximum penalty of 12 years' imprisonment.
You were arrested and charged with these offences on 18 June 2017. You first came before the ACT Magistrates Court the following day, 19 June 2017, at which time you were released on bail. On 17 July 2017, you entered pleas of not guilty in the
ACT Magistrates Court to all charges. On 13 October 2017, you were committed to this Court for trial.
Pre-trial evidence was due to be taken on 14 March 2018 and an application by the Crown to lead tendency evidence was listed for 28 February 2018. However, on
14 February 2018, you indicated to the Crown that you would plead guilty to the charges and the dates allocated for pre-trial evidence and the tendency application were vacated. The matter was ultimately listed before Elkaim J for sentence on 6 July 2018.
On 6 July 2018, you were sentenced by Elkaim J to an aggregate sentence of
seven years' imprisonment, commencing 6 July 2018 and expiring on
5 July 2025: R v Middleton [2018] ACTSC 198. His Honour set a non-parole period of five years. Unfortunately, the Crown misinformed his Honour that all of the charges of sexual intercourse with a young person, being DE, were charges under
s 55(1) of the Crimes Act and carried a maximum penalty of 17 years' imprisonment. When, in fact, three of those charges were under s 55(2) and carried maximum penalties of 14 years' imprisonment.
As a result, with regard to those three charges, you were sentenced by reference to the incorrect maximum penalty. You appealed against the sentences imposed by Elkaim J. That appeal was not commenced until May 2019 because new evidence, to which I will refer, had emerged.
As part of your appeal, you proposed leading fresh evidence regarding mental impairment at the time of the commission of these offences. The Court of Appeal did not receive the fresh evidence because it was apparent that a re-sentencing exercise would be required because of the error in the original sentencing process to which I have referred.
It was acknowledged that you would be entitled to lead the further evidence as part of that re-sentencing process. The Court of Appeal upheld your appeal, set aside the sentences imposed by Elkaim J and remitted the charges to this Court for re-sentencing before a single judge: Middleton v The Queen [2020] ACTCA 6. That is how the matter now comes before me.
Uncharged acts
At all relevant times, you were a resident of South Australia and the victims and their family resided in the ACT. In the period between 2 and 9 January 2016, the victims’ family had a holiday at Tuross Head on the South Coast of New South Wales. You drove your mobile home to that place and parked it in front of their holiday house.
You stayed for three or four days. During that time, the victims collected shells and long pine tree seeds. You offered to buy some of those items and took the girls to your mobile home to get money. While you had FE in the mobile home alone, you lifted her onto the kitchen bench and laid her down. You pulled down her pants and licked her vulva and then gave her a tongue kiss. You gave her five cents and told her not to tell anyone.
Both these events occurred in New South Wales and, as such, they could not be the subject of charges in the ACT. These events demonstrate, however, that the events which form the basis of the charges before me were not isolated events, and also reveal a willingness to sexually offend against children some 12 months prior to the events with which you have been charged.
The facts
I turn to the events underpinning the charges before me. In the period between
20 January to 1 March 2017, you parked your mobile home in front of the home of the victims’ grandparents in a Canberra suburb. You asked the victims to come to your mobile home to get a gift. FE went in first alone. After she left, DE went in alone.
You asked DE to lie on your bed. She was confused and thought that it might be a game. You assisted her to get onto the bed by holding her on the waist and lifting her. Once she was on the bed, you placed your hand inside her clothing. You moved your hand around under her underwear and all over her vulva and bottom. While you had your hand in her underwear, you inserted a finger into her anus and her vagina. This is the basis of Count 1, the charge of engaging in sexual intercourse with a young person under 10 years of age (CC 2017/6826).
You removed your finger from DE's underwear and asked her to sit up. You asked her for a kiss and placed your open mouth on her mouth. She could feel your tongue on her lips and her tongue. While hugging her, you placed your hand inside her underwear and touched her vulva and bottom again. You then inserted a finger into her anus and vagina. This is the basis of Count 2, a charge of engaging in sexual intercourse with a young person under 10 years of age (CC 2017/6829).
You then removed your hand from DE's underwear and said, “[w]hy don't you do it to me?”. You undid your fly zipper and took hold of DE's wrist and forced her hand to touch your penis. You moved her arm so that her hand moved up and down your penis. DE neither wanted to do those acts nor to look at what was happening. She closed her eyes for most of this incident. This is the basis of Count 3, a charge of committing an act of indecency with a young person under 10 years of age (CC 2017/6830).
You then told DE that you had something for her. You gave her two straw cowboy hats. You then asked her for a hug which she gave you. She attempted to pull away from you and said that she was going to take the hats to her sister. You released your grip on her wrist and asked for another kiss. You placed your open mouth on her mouth, and she could feel your tongue on her lips and tongue. This is the basis of Count 4, a charge of committing an act of indecency on a young person under 10 years of age (CC 2017/6831).
On 15 or 16 June 2017, you contacted the victims’ grandmother and indicated that you planned to visit. You arrived at their house at about midday on 17 June 2017. Coincidentally, FE and DE were staying at their grandparents’ house that night. By this time, DE had turned 10 years old. You were allocated a bedroom next to the room where FE and DE were to sleep. The victims’ grandparents slept in the master bedroom at the other end of the house.
On the evening of 17 June 2017, DE was in the family room doing a jigsaw puzzle and you were seated in a chair nearby watching television. While everyone else was absent, you asked DE to come over and give you a hug.
She did not want to hug you because of your previous behaviour, but went to you because she did not know how to refuse you. You put your hand inside her underwear and touched her vulva and bottom. You inserted a finger into her anus and vagina. She left the room when you took your finger out of her vagina. This is the basis of Count 5, a charge of sexual intercourse with a young person under 16 years of age
(CC 2017/6833).
Some time later, both DE and FE went to bed in the room next to your bedroom and fell asleep. During the night, DE was woken by you touching her bottom. You were standing next to her bed with one finger held to your lips as a sign to be quiet. You whispered to her that you had finished watching television and had come to visit her and her sister.
She could feel your other hand on her vulva and bottom. You asked her for a hug and she said “no”. You then asked for a kiss and she again said, “no”. DE noticed that she no longer had a doona covering her. You then inserted your finger into her anus and her vagina. This is the basis of Count 6, a charge of engaging in sexual intercourse with a young person under 16 years of age (CC 2017/6835).
After removing your finger from DE's vagina, you walked across to where FE was sleeping. You pulled off her bedsheet, pulled down her pyjama pants and touched her bottom and vulva with your hand. You asked if what you were doing hurt and FE said that it tickled. FE knew that it was you because you had previously indicated to her that you would come to her bedroom in the middle of the night.
FE told you that you should go back to your bedroom so her grandparents did not hear you. Before leaving, you kissed FE on the mouth with your mouth covering her mouth and nose which made it difficult for her to breathe. You then left the room. This is the basis of Count 7, a charge of committing an act of indecency on a young person under 10 years of age (CC 2017/6836).
On the morning of 18 June 2017, you called FE into your bedroom and she got into bed with you and lay on her stomach. You hugged her and kissed her with an open mouth touching her tongue with your tongue. As you were kissing her, you removed her pyjama pants and touched her bottom and vulva with your hand. You then asked FE to turn over so that she would be lying on her back. She did not do as you asked so you flipped her over and placed your hand on her vulva. This is the basis of Count 8, a charge of committing an act of indecency on a young person under 10 years of age (CC 2017/6840).
The victims ate pancakes for breakfast with their grandparents. Afterwards, they went to the bathroom and played with makeup. You made frequent visits to the bathroom. While DE was in the bathroom you came in and put your hand down the back of her jeans. You moved your hand around under her underwear until you were able to touch her bottom and vulva. She could feel your finger, hand and arm inside her underpants. You placed a finger in her anus and vagina. This is the basis of Count 9, a charge of engaging in sexual intercourse with a young person under 16 years of age
(CC 2017/6842).
Later that morning, the victims' parents collected them from their grandparents' house. During the drive home, they told their parents that you had woken them up the previous night. Later that day, they made a number of disclosures about your actions. At about 5.00 pm that day, the victims' parents reported the matter to the police and the victims were interviewed by police that evening. At about 11.20 pm that evening, you were arrested.
By any measure these are objectively serious offences which, in the absence of any circumstances significantly mitigating your moral culpability, would call for lengthy terms of imprisonment.
Evidence of mental impairment
At the sentence hearing conducted by Elkaim J on 6 July 2018, a report dated
9 June 2018 from a Clinical Neuropsychologist, Dr Emma Fitzgerald, was tendered on your behalf. Dr Fitzgerald stated that you demonstrated impaired executive functioning specifically with visual planning, fluency, cognitive flexibility and inhibition. You also reported experiencing quite significant symptoms of depression, anxiety and stress.
Dr Fitzgerald believed that these impairments could not be explained by the normal ageing process and thought that you may be suffering from a
Mild Neurocognitive Disorder.
Dr Fitzgerald believed that the origin of your deficits may be in the frontal lobes of your brain, but further investigation was required to confirm that diagnosis. Dr Fitzgerald stated that Mild Neurocognitive Disorder can be described as a mild decline in cognitive function and evidenced by modest impairment in cognitive performance on neuropsychological assessment.
These deficits do not interfere with the capacity for independence in everyday life, although some compensatory strategies might be employed to manage more complex tasks such as managing finances. Dr Fitzgerald stated that deficits in executive functioning might cause a person to be more impulsive and it was possible that the emergence of a Mild Neurocognitive Disorder may have resulted in you acting on impulses.
However, she added that it was fair to say that most people with executive dysfunction do not commit sex crimes against children. She concluded that a mild cognitive disorder was unlikely to have changed you so much as to cause the offending, but may have acted to relax your inhibitions so that you acted on impulses you had previously been able to inhibit.
In sentencing you, Elkaim J clearly did not consider the report supported the proposition that your moral culpability was reduced by reason of mental impairment. Between being sentenced by Elkaim J in July 2018 and the sentence hearing before me, the question of your mental impairment has been more thoroughly investigated.
I was provided with two reports by Associate Professor Tuly Rosenfeld, a Consultant Geriatrician and Physician who also holds teaching positions at
the University of Notre Dame in Sydney and the University of New South Wales. He is the senior specialist geriatrician at the Prince of Wales Hospital and currently practices in private practice as a Consultant Physician and Geriatrician. His qualifications were not challenged by the Crown.
In his first report dated 14 April 2019, Assoc Prof Rosenfeld noted that you, at that time, were 77 years old and had a history of worsening memory and cognitive function, worsening balance and a history of falling. He noted that you had risk factors for vascular disease.
Assoc Prof Rosenfeld referred to an MRI of your brain performed on 14 June 2018 which, of course, was not available to Dr Fitzgerald at the time she prepared her report. He noted that the MRI images indicated the presence of moderately severe vascular brain disease with atrophy, enlarged ventricles, deep white matter disease and lacunar disease, or microinfarction stroke, and the presence of these changes in the frontal/parietal brain regions with associated frontal lobe atrophy.
Assoc Prof Rosenfeld reviewed the report of Dr Fitzgerald and noted the limitations in terms of medical history that was available to her and that she did not have access to the MRI images performed on 14 June 2018. He disagreed with Dr Fitzgerald's opinion that you suffer from a mild neurocognitive disorder. In his opinion, you suffered from a Major Neurocognitive Disorder, otherwise known as dementia, related to vascular brain disease. In his opinion, this was consistent with clinical observations and medical records.
In this initial report, Assoc Prof Rosenfeld expressed the opinion that you suffer from vascular brain disease of moderate severity with evidence of frontal lobe damage with signs, on examination and testing, of frontal lobe executive dysfunction. He stated that the effect of executive dysfunction and impairment includes disinhibition and a lack of insight into the nature, consequences and effects of one's behaviour.
Assoc Prof Rosenfeld went on to say that the impairments arising from your brain disease have been present and progressive for at least a number of years and would have been present to an extent that would, in his opinion, have affected your behaviour between 20 January 2017 and 19 June 2017. He stated that it was likely that the effects of your brain disease will continue to progress with time.
In response to a particular question posed by your lawyers, Assoc Prof Rosenfeld stated that in his opinion the vascular brain disease and the impairments arising from that condition, including altered executive functions, would more likely than not have affected your ability to inhibit and recognise the impact and consequences of your actions and behaviours at the time of these offences.
Assoc Prof Rosenfeld considered it likely that your life expectancy had been reduced, probably to about five years from the date of his examination. During that time, your disease and the symptoms of your disease are likely to worsen.
Assoc Prof Rosenfeld's second report is dated 3 February 2020. This supplementary report was provided following an MRI brain scan on 7 January 2020. This scan revealed the presence of widespread changes in your brain that indicate blood vessel disease of the brain. The scan revealed a high level of disease. Assoc Prof Rosenfeld noted that the observed shrinkage of your brain, along with white matter hyperintensities, are associated with the decline of a range of brain functions including cognition, frontal lobe or executive function, gait problems, mood and urinary incontinence.
The results represented chronic progressive damage to the structure and function of the brain. In Assoc Prof Rosenfeld's opinion, the brain scan of 7 January 2020 supported the accuracy of his earlier findings.
After reviewing a number of other records, Assoc Prof Rosenfeld reiterated his opinion that you suffer from moderately severe vascular brain disease with cognitive dysfunction and behavioural manifestations of dementia with prominent frontal lobe features. He stated that the progressive dementing illness from which you suffer with prominent frontal lobe manifestations is associated with, and most likely to have led to, the offences for which you are to be re-sentenced.
The progressive deterioration in your condition is likely to lead to increasing challenges in your behaviour and care. You are likely to suffer adverse complications associated with your underlying vascular disease as well as the likelihood of worsening gait, mobility and balance, further falls with injury or fracture, an increased likelihood of stroke, as well as the likely occurrence of worsening behaviours, self-neglect and the need for increasing levels of assistance with medication and personal care.
Assoc Prof Rosenfeld believed that it was unlikely that you would be able to receive the treatment, care and assistance that you require now, and in the future, in your current accommodation at the Alexander Maconochie Centre (AMC) as you are likely to now, or soon, require care and supervision in a residential aged care facility. In his opinion, in the next two or three years adverse complications with increased care needs, morbidity or worse are likely.
Assoc Prof Rosenfeld gave oral evidence consistent with the contents of his reports and was subject to cross-examination. Of significance, Assoc Prof Rosenfeld emphasised that the disease process revealed by the medical imaging had been ongoing over many years and gradually worsened.
He stated that changes in the frontal lobe are “relatively silent” by which, I understand him to mean, that they may not be apparent to a medical practitioner on an ordinary medical examination and they may affect executive functioning without affecting the ability to engage in day-to-day activities. He confirmed his view that your cognitive disorder would probably have affected your ability to inhibit your conduct and to recognise the impact and consequences of your actions. It would have resulted in a reduction in your ability to control your behaviour.
With regard to your prospects of re-offending, Assoc Prof Rosenfeld stated that it was hard to give an opinion but with the worsening of your dementia it is likely that your lack of insight and disinhibition will lead to similar actions or other actions on your behalf. In effect, Assoc Prof Rosenfeld expressed the opinion that with the worsening of your cognitive disorder, it is quite possible that you could re-offend sexually against young children.
Assoc Prof Rosenfeld was asked what the best location for you would be to allow you to be managed in order to minimise the risk of further offending. He stated that you need to be in a situation where nurses or doctors and other staff are aware of and able to deal with and manage your behaviours in appropriate ways. He considered the best place to do that would be in a residential care setting and possibly a dementia residential care setting, even to the point ultimately of a locked facility.
In cross-examination, it was suggested to Assoc Prof Rosenfeld that you may have simply had a sexual interest in young girls and acted on it unconnected to your progressive brain disease. Assoc Prof Rosenfeld stated that he had no idea whether you had a longstanding interest in young girls prior to the onset of brain disease, but what he could say was that the onset of significant frontal brain disease “unleashed” your propensity to act on those inclinations because of your lack of inhibition and social abilities.
Dr Fitzgerald provided a second report, dated 15 April 2020. She noted that after she had provided her report in June 2018, you were seen by Assoc Prof Rosenfeld who formed the opinion that you suffer from a moderately severe vascular brain disease which was most likely connected with the offences which you committed.
In this second report, Dr Fitzgerald stated that the relationship between the development of brain disorders and sexual offending against children has long been documented. She referred to a study which reported greater neuropsychological impairment in child sex offenders compared with adult sex offenders, and specifically that an impairment in executive functions has commonly been associated with this type of offending.
Based upon the additional material which was available to Assoc Prof Rosenfeld,
Dr Fitzgerald agreed with his opinion that your vascular brain disease was present at the time of offending and was advanced enough to have affected your behaviour.
Dr Fitzgerald was cross-examined by the Crown prosecutor. She agreed that when she interviewed you for the preparation of her report in 2018, she did not observe any unusual clinical behaviours. You advised Dr Fitzgerald that you were able to drive and you were managing your day-to-day affairs. You did have some difficulty thinking of names and did not feel as sharp as you used to.
Dr Fitzgerald stated that you told her that you had begun to access pornography
four or five years earlier and that your search terms included “young girls” or
“naked young girls”. She agreed that you had acknowledged that what you had done to the victims was wrong and that you had expressed some shame for what you did.
Dr Fitzgerald agreed with the proposition that it was unlikely that your underlying vascular disease had changed you so much as to have caused the offending but may have relaxed your inhibitions. She agreed that you meet the criteria for diagnosis of paedophilia.
Dr Fitzgerald was questioned about whether the sexual offending in New South Wales in January 2016 was consistent with her opinion that your underlying neurocognitive disease affected your behaviour at the time of the present offences. Dr Fitzgerald stated the neurocognitive disease has quite an insidious onset and she considered that it was likely that your disease had been developing over a number of years and had been gradually worsening. She stated that people have a level of cognitive reserve which depends on their pre-morbid intelligence and their education which provides protection against dementia until a certain level of injury has occurred at which time the symptoms become more evident. She stated that behavioural disinhibition can be a symptom of dementia so that people will act on impulses they never previously would have acted on.
Consideration
I have spent a considerable amount of time reviewing the evidence of
Assoc Prof Rosenfeld and Dr Fitzgerald because it is important evidence in assessing your moral culpability for these offences.
By moral culpability, I mean the extent to which you should be held responsible for what you did. Our legal system does not simply punish people based upon their actions or the consequences of their actions. The extent to which our legal system imposes punishment on offenders depends upon the extent to which they should be held responsible for what they did.
In the vast majority of cases, this presents no great difficulty. In some cases, the mental impairment of an offender may be so profound that they should not be held responsible for their actions and the consequences of their actions at all. Our community has, nevertheless, protected itself from such people through legislation by requiring them to be detained until such time, if ever, that they may be released safely into the community. This is not such a case.
The question of moral culpability, however, is not binary, by which I mean that a person is not to be held either not responsible or fully responsible for their actions for the purposes of sentencing. There is a spectrum of responsibility between the two extremes of full responsibility and no responsibility.
In sentencing for serious criminal offences, the court endeavours to determine the extent to which punishment should be visited upon an offender by reference, in part, to the degree of moral responsibility of the offender. I acknowledge that this may be of little consolation to the victims. After all, the damage has been done to the victims and their family no matter how great the effect of mental impairment may have been on the offender: there can be no doubt that great harm has been done to the victims and their wider family in this matter as was amply demonstrated via the
Victim Impact Statements.
I have no hesitation in accepting the evidence given by Assoc Prof Rosenfeld and
Dr Fitzgerald that you suffer from vascular brain disease of moderate severity and that you have frontal lobe damage with frontal lobe executive dysfunction. The objective evidence provided by the medical imaging puts that beyond doubt. I accept that it is likely, based upon the extent of the disease revealed by the medical imaging and the known progression of the disease, that you have suffered from this disease for some years and that it has been steadily worsening.
It is probable that you were able to function at reasonable level on a day-to-day basis despite your worsening vascular brain disease as suggested by both
Assoc Prof Rosenfeld and Dr Fitzgerald. However over time it reduced your inhibitions to the extent that you acted in ways that you would not have but for the presence of the disease.
The material also supports a finding that your accessing child pornography from
2013 or 2014 onwards and offending against FE in 2016 was similarly connected to your vascular brain disease. This would help to explain why a man in his 70's with no prior criminal convictions or suggestion of sexual offending against children would start engaging in sexual behaviour involving children.
There was some suggestion in the evidence given by Dr Katerina Lagios, who gave evidence about COVID-19 arrangements in the AMC, that the resident geriatrician at The Canberra Hospital did not find significant neurological abnormalities on his assessment of you. I do not give this suggestion significant weight because that medical practitioner did not give evidence and it is unlikely that his or her assessment of you was directed towards the same issues that Assoc Prof Rosenfeld and
Dr Fitzgerald were asked to address, being the extent to which your vascular brain disease may have contributed to your offending behaviour.
I have no doubt you knew that what you were doing when you committed these offences was wrong and was viewed so by others. You said to Dr Fitzgerald when she initially interviewed you that you knew that your conduct was wrong. Your action in 2016 of telling FE not to tell anyone what you had done, indicates that you knew that what you were doing was wrong and that others would view it as such.
You only committed the charged offences in circumstances where you were alone with the victim or victims. You did not engage in sexual behaviour towards the victims, or indeed any other child, in the presence of other persons. This suggests that you had a continuing ability to control your behaviour, to understand that your behaviour was wrong and that others would consider it to be wrong.
I will accept that your capacity to control your behaviour was, to a degree, diminished, as was your capacity to fully understand the gravity of your acts and their likely effects on the victims. The extent to which your mental impairment reduces your moral responsibility for these offences is not susceptible to precise measurement.
It must remain, largely, a matter of impression. In my opinion, the evidence supports a finding that your moral culpability for these offences is reduced by a moderate degree by reason of your vascular brain disease. For that reason, the importance of both general and specific deterrence as sentencing considerations must also be moderated.
I also accept that your mental impairment will make imprisonment more onerous for you than for someone without such a condition. There is also a real risk that your condition will worsen to the extent that you may die within the next five years. The finding that your vascular brain disease warrants a moderate reduction in your moral culpability favours the imposition of a more lenient sentence than would otherwise have been the case.
A factor pulling in the other direction, however, is the need to protect the public which s 7 of the Crimes (Sentencing) Act 2005 (ACT) obliges me to consider when sentencing you. Your vascular brain disease and frontal lobe executive dysfunction is not curable. Indeed, it will only worsen. I am satisfied that there is a real risk of you re-offending if you were to be released into the community without strict supervision. It is probable that you need to be held in a residential aged care facility with the capacity to ensure that you do not have contact with young children. There was no evidence that admission to such a facility is presently available to you.
I am not entitled by reason of the continuing danger you present to the public to increase any sentences which I may impose for these offences, beyond that which is appropriate bearing in mind the objective seriousness of the offences. However, the continuing need to protect the public and the uncertainty about the availability of appropriate housing and treatment facilities militates against leniency.
I am not persuaded that your prospects of contracting COVID-19 are any greater in the AMC than they would be if you were housed in an appropriate aged or dementia care facility. There is, therefore, no reason to reduce the appropriate sentences to allow for the possibility of contracting that virus in the AMC.
In sentencing you, Elkaim J reduced the otherwise appropriate sentences by
25 per cent because of your pleas of guilty. In my opinion, this was overly generous based on the timing of the pleas. I will allow a reduction of 20 per cent because of your pleas of guilty.
Each of the offences involved a grave breach of trust. I take into account the ages of the victims. The younger the victim, of course, the more objectively serious the offence. I also note the great harm that your actions inflicted on the victims and their families, which is continuing. There was a relatively minor degree of premeditation and planning involved in these offences.
I note that there is no evidence that you were aware that the victims would be staying at their grandparents' house with regard to Counts 5, 6, 7, 8 and 9 before you arrived at the premises. Thus, no inference arises that you sought them out on that occasion. I have considered all available sentencing options but in my opinion no sentences other than terms of imprisonment are appropriate.
Sentence
I will confirm the convictions which were imposed by Elkaim J with respect to each of the offences and I will now impose the following sentences.
On Count 1 (CC 2017/6826), a term of four years' imprisonment, reduced from
five years for your plea of guilty, commencing on 5 July 2018 and expiring on
4 July 2022.
On Count 2 (CC 2017/6829), a term of four years' imprisonment, reduced from
five years because of your plea of guilty, commencing 5 October 2018 and expiring on
4 October 2022.
On Count 5 (CC 2017/6833), a term of three years and four months' imprisonment, reduced from four years and two months for your plea of guilty, commencing
5 September 2019 and expiring 4 January 2023.
On Count 6 (CC 2017/6835, a term of three years and four months' imprisonment, reduced from four years and two months for your plea of guilty, commencing
5 December 2019 and expiring 4 April 2023.
On Count 9 (CC 2017/6842), a term of three years and four months' imprisonment, reduced from four years and two months for your plea of guilty, commencing
5 March 2020 and expiring 4 July 2023.
On Count 3 (CC 2017/6830), a term of eight months’ imprisonment, reduced from
10 months for your plea of guilty, commencing 5 January 2023 and expiring
4 September 2023.
On Count 4 (CC 2017/6831), a term of three months' imprisonment, reduced from
four months for your plea of guilty, commencing 5 July 2023 and expiring
4 October 2023.
On Count 7 (CC 2017/6836), a term of three months' imprisonment, reduced from
four months for your plea of guilty, commencing 5 August 2023 and expiring
4 November 2023.
On Count 8 (CC 2017/6840), a term of three months' imprisonment, reduced from
four months for your plea of guilty, commencing 5 September 2023 and expiring
4 December 2023.
The aggregate sentence which I have imposed is one of five years and five months' imprisonment, commencing 5 July 2018 and expiring 4 December 2023.
I will set a non-parole period of three years and four months' imprisonment, commencing on 5 July 2018 and expiring on 4 November 2021.
I recommend that the Sentence Administration Board have you assessed by a geriatrician prior to any proposed release on parole and that you only be released directly into a facility appropriate for treating your dementia as it is at that time and which is able to provide appropriate supervision and security to minimise the risk of you re-offending.
| I certify that the preceding ninety [90] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: |
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