R v NT
[2017] ACTSC 69
•22 March 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v NT |
Citation: | [2017] ACTSC 69 |
Hearing Date: | 21 February 2017 |
DecisionDate: | 22 March 2017 |
Before: | Penfold J |
Decision: | See [51]-[55] below |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – acts of indecency involving a person under 10 years of age – relationship of trust involving grandfather and granddaughter –childhood sexual abuse and mental illness may explain but does not justify offender’s actions – disclosure of otherwise unknown offences – whether disclosed offences would otherwise have come to light – effect of such a finding on size of sentencing discount. |
Legislation Cited: | Crimes Act 1900 (ACT), s 61 |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 R v Ellis (1986) 6 NSWLR 603 R v Verdins [2007] VSCA 102; 16 VR 269 |
Parties: | The Queen (Crown) NT (Offender) |
Representation: | Counsel Ms S Gul (Crown) Mr R Davies (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 250 of 2016 |
The offences
NT has pleaded guilty to 10 offences of acts of indecency involving a person under 10 years of age, arising under s 61 of the Crimes Act 1900 (ACT) and carrying a maximum penalty including imprisonment for 12 years. Nine of those offences are acts of indecency on the person, and one is an act of indecency in the presence of the person.
The incidents
The sexual abuse to which these charges relate took place between September 2014 and July 2016. The victim was NT's granddaughter, who at the time the offences came to light in July 2016 was nine years old. The accused was then 64.
The victim, whose father is NT's son, lives with her family in southern New South Wales. NT and his wife, EH, lived in the ACT in a one-bedroom unit. On occasions, the victim stayed with NT and his wife in the ACT.
On 23 July 2016 the victim stayed at her grandparents' home. Following her normal routine, she initially lay down on her grandparents' bed, from which she would later be moved onto the couch where she would sleep the rest of the night. NT joined her on the bed, fondled her breasts, and stroked her buttocks. This was observed by his wife, the victim's step-grandmother, who went into the room, reported what she had seen, and told the victim that this was not something her grandfather should have been doing. NT left the house and the next morning his wife discovered that he had been admitted to the emergency department at Canberra Hospital after being found wandering near the Cotter Dam. He was admitted to the mental health unit at the hospital and at some point told his wife that he and the victim had fallen in love.
Over the next few weeks, further details emerged of the sexual activity in which NT had involved his granddaughter. On 28 July last year, EH's observations were reported to the authorities. On 10 September 2016 NT sent an email to the victim's parents, to which I shall return, and on 12 September 2016 the victim took part in a police interview.
On the day before that, NT had been admitted to Goulburn Hospital from Batemans Bay Hospital. On 14 September NT was transferred to the Alexander Maconochie Centre, and on 17 September 2016 he took part in a recorded interview with police during which he disclosed a total of seven offences that had not been mentioned by the victim. On 26 September 2016 the victim spoke again to police and disclosed one other act of indecency.
The charges that are now before me relate to five separate incidents, one of which involved a weekend during which the victim stayed with NT while his wife was in New Zealand: NT committed acts of indecency (six in total) during the first day of the victim's visit, overnight, and during the next morning.
The act of indecency in the presence of the victim involved NT and the victim sleeping together naked in the same bed during the weekend when NT's wife was away. Three of the other offences involved NT touching only the victim's breasts or her buttocks, but the other six involved him touching the victim's clitoris and the outer parts of her vagina.
On 10 September, as mentioned, NT sent an email to the victim's parents describing several incidents of sexual abuse of the victim, and attempting to explain these events. The email refers to sexual abuse he suffered in his own childhood; his failure, until shortly before writing the email, to recognise the wrong in his actions; his betrayal of all of his family members; and his realisation that he is a sick man. He recognised that he has lost everybody important in his life, as well as his home and his job, and says that he is sickened, remorseful and devastated at the thought of what he has done. He closes the email with "To everybody, I am so sorry".
The email is also notable for the chilling references, in his description of some of the incidents of sexual abuse, to the victim as if she was an equal participant in the activity: for instance, he says that after a particular conversation with his granddaughter, "the abuse stopped for a while, but then on one visit, we both wanted to proceed again, after which we again agreed that it had to stop".
I have described these references as chilling, but they can also be seen as an indication of just how dramatically NT had lost touch with reality, and in particular how grossly he had lost touch with the reality of his responsibility, as an adult and a family member, to protect rather than take advantage of a child who was placed in his care.
Charges and pleas
NT was charged with two of the offences on 14 September 2016 and was remanded in custody, where he has remained ever since. The other eight charges were laid on 4 October 2016, and NT pleaded guilty to all the charges in the Magistrates Court on 28 October last year.
Evidence
As well as the statement of facts (to which is attached the email I have already mentioned), the following material is in evidence before me:
(a)three victim impact statements, from the victim, her father and her step-grandmother;
(b)a criminal history for NT that is, in fact, in another name but is conceded to relate to NT;
(c)a pre-sentence report;
(d)a Forensic Mental Health report and discharge papers from three hospitals (Canberra Hospital, Goulburn Base Hospital and Batemans Bay Hospital);
all of which were tendered by the prosecution.
The victim's victim impact statement was read in court by the prosecutor. EH and NT's son read their victim impact statements onto the record, and EH was briefly cross-examined about alleged “threats” to kill members of NT's family, which I shall mention later.
Objective seriousness
In considering the objective seriousness of the offences, I have had regard to the following matters.
NT's offences are serious examples of acts of indecency, especially noting that some of them involve conduct that came close to, although did not reach, the current definition of sexual intercourse.
I note defence counsel's submission that none of the offences involved the victim having any contact with NT's genitalia, and accept that, to the extent that this reflects the limited scope of the acts of indecency, it may be a minor mitigating factor. Apart from that, another very minor mitigating factor may be found in the recording in the statement of facts that on several occasions NT asked the victim's permission before committing the acts concerned. This has a minor mitigating impact in that the victim was not physically forced to participate. On the other hand, I stress that this comment should not be taken to imply that the victim's agreement in any way excused the behaviour, and should certainly not be taken to suggest that the victim was responsible for NT's actions in any way at all.
The various acts charged all formed part of a course of conduct, and one which, by NT's own admission, on some occasions involved planned and anticipated conduct rather than simply spontaneous acts. The youth of the victim (between seven and nine years at the time of the offences) is an element of the particular offence and is recognised in the high penalty for offences of this kind against children under the age of 10. I do not consider, however, that the victim being towards the upper age limit for these offences reduces the impact of the offences; such offences may in fact be more damaging to a child who is aware of the enormity of the offences, and at risk of regarding herself as also culpable, than it would be to a much younger child.
NT, as the victim's grandfather, was trusted by his son and his son's wife to care for the victim, a trust which he repeatedly abused.
I accept that, as well as expressing remorse, NT has shown remorse through his early guilty pleas and his email to his son. His several presentations to hospital, a matter which will be mentioned again, suggest that he has been quite disturbed since his offences came to light.
The pre-sentence report describes NT's attitude to the offences:
Although [NT] accepted responsibility for his offending behaviour and did not attempt to minimise his actions, he indicated that past incidents with his mother influenced his behaviour.
[NT] expressed appropriate empathy for his victim and appeared able to recognise the effect his behaviour had not only on his granddaughter but also his wife and son. [NT] stated that he was willing to accept any sentence imposed by the Court and stated he is prepared to undertake any interventions required to prevent further offending.
The victim's victim impact statement is short and simple but very powerful. The victim wrote:
The first thing that was sad was keeping the secret from Mum, Dad and DJ.
Poppy scared me, and made me feel unsafe around him.
I wasn't having as much fun.
How much it hurt my Dad.
When I think about it, I feel sad.
I want Poppy to know how it affected me.
(I would like someone to read it in court to Poppy).
As I said, the statement was read out during the hearing.
The victim impact statements prepared by NT's wife and his son are also powerful, both of them revealing the shocking hurt that has been inflicted on people who have loved and trusted NT and, especially, trusted him to take good care of a young girl they also loved.
NT's offences are in my view of at least mid-range seriousness.
Subjective circumstances
I have also had regard in this sentencing to NT's subjective circumstances.
NT is 65 years old. He has no criminal history in his own name, but the criminal history in another name that is in evidence before me shows a series of dishonesty offences, being 10 charges of theft and 6 charges of false accounting, committed in 1988. The criminal history contains a reference to nine months imprisonment with four months to be served before release on recognisance, but there is a further notation suggesting a reduction in sentence on appeal.
NT's early life was dysfunctional in many respects and, as an adult, he has also had some troubled relationships. His personal history is described in the pre-sentence report as follows:
[NT] reported he was born in Sydney and was forcibly removed from his biological mother at birth as she was unmarried. [NT] stated his adoptive parents were abusive, his father physically and his mother verbally and sexually, and he recalled multiple instances of abuse in his childhood, specifically sexual abuse by his adoptive mother, brother and godfather and satanic ritual abuse when he was approximately eight years old when he and his adopted sister stayed with a family friend. [NT] reported his sister has suffered with mental health issues as a result and his brother is now deceased. Both of his adoptive parents are now deceased. [NT] reported he met his biological mother when he was 38 years and enjoyed a positive relationship with her until she died approximately 15 years ago.
[NT] reported he has been involved in three significant relationships. The first marriage ended after five years and produced two sons. [NT] said he had previously enjoyed a good relationship with the elder of these sons. However, the victim of the current offences is this son's daughter and [NT] stated he does not believe the relationship with his son will recover. [NT]'s relationship with his younger son has been poor for some time.
[NT] described his second marriage as tumultuous and stated it ended after five years. He entered into his current relationship approximately 18 years ago and, although this relationship was previously stable, [NT] is unsure if the relationship will continue due to the current offences. [He] said his partner is upset and angry about the offences. [NT]'s wife was unavailable at the time of writing. Service records indicated [NT]'s wife has not visited him in custody and has at times appeared reluctant to accept telephone calls from [him].
Similar information about NT's early life, with slightly different details in some cases, is recorded in the CADAS assessment and in various medical records and reports that are in evidence.
NT completed Year 10 and has several work-related qualifications. He has an extensive employment history in various different industries. He was most recently employed as a disability support worker.
Substance abuse does not appear to be an issue in this offending, or for NT more generally.
NT has various physical health problems, involving high blood pressure and kidney, prostate and joint troubles. His mental health, however, may be of more concern. He has been treated for depression, roughly 11 years ago, during a stressful period in his life. Since the offences came to light he has had a low mood, and thoughts of self-harm and of homicide, which he attributed to an anxiety disorder.
A forensic mental health report was provided by Dr Bree Wyeth, after seeing NT several months ago and reviewing his clinical files. Dr Wyeth's opinion and recommendations were as follows:
[NT] has a limited psychiatric history prior to his personal crisis after being discovered and now charged with the offences for which he is currently before the Court. By his own report and my observations in our assessment interview and previously when reviewing him on his entry into custody I do not find evidence of a serious mental illness, specifically a major mood disorder or a psychotic illness.
[NT] gives a history of lifelong issues with his sense of self, relationships with others, irresponsible behaviour, chronic suicidal thoughts and vague anxiety symptoms. This fits with the diagnosis of a Personality Disorder, Borderline type. I am sceptical of the diagnosis of a “fugue state”, true dissociation being a controversial diagnosis and fraught with bias especially in a setting such as this with a person before the Court. I think it is more likely that [NT] was overwhelmed and distressed and his actions were impulsive with ambivalent suicidal ideas. He reports quite a lot of memory for his actions during this “the big one” or so-called “fugue”. I also note that he has not reported not being conscious of his actions during the repeated sexual abuse of his grand-daughter. It is common in sexual offender populations to hear offenders proffer rationalisations of their behaviour, this is referred to as cognitive distortions, in [NT]'s case this would include his beliefs that his victim enjoyed this and he was doing this to please her. This should be addressed in sex offender treatment programs. When assessed for this program I would expect that the Corrections Psychologists would examine his personality structure, relationship problems and cognitive bias and expand on the assessment of paedophilic disorder.
[NT] would benefit from longer term therapy to address his personal issues including his own experience of sexual abuse as a child.
(emphasis in original)
There is nothing in Dr Wyeth's conclusions that suggests that NT's mental health has particular significance in this sentencing in any of the ways identified in R v Verdins [2007] VSCA 102; 16 VR 269.
Homicidal thoughts and threats
This is a convenient point at which to deal with the significance of NT's homicidal thoughts, as already mentioned in connection with EH’s evidence.
On 24 July 2016, the morning after EH had observed him committing an act of indecency on the victim, NT was found wandering near the Cotter Dam in a distressed state. He was taken to the police station and then to Canberra Hospital, where, over the course of a couple of weeks, he expressed thoughts of suicide, and also reported "thoughts of murdering and cutting up loved ones”.
On 11 September 2016 he was taken to Batemans Bay Hospital after reporting a panic attack. He again expressed thoughts of suicide, and is recorded as having said:
that he also started to have violent thoughts about mutilating his wife and his grand-daughter. When asked, he denied having any sexual gratification about it and stated that the thoughts made him feel very uncomfortable.
From Batemans Bay Hospital he was transferred to the mental health facility at Goulburn Base Hospital, where he also reported suicidal thoughts, although I did not see any record in the material from Goulburn of violent thoughts towards others.
EH gave evidence that when she spoke to NT in hospital he described having thoughts of killing others, but did not express them in the form of threats. However, EH, both in her victim impact statement and in evidence, indicated that she had been told that NT had threatened to kill her and her family, and it appears that she was told this by a police officer, but without any indication of the source of that information.
There is thus clear evidence before me that NT had identified, not only to his wife but also to medical staff, having homicidal thoughts. The only “evidence” that these thoughts had been adopted by him as threats is the hearsay evidence of what the police officer told EH, and there is no evidence at all of where the police officer's information came from. Given the absence of any record of threats in the medical records, or in NT's direct communications to EH, and the obvious possibility that the report of “homicidal thoughts” as mentioned by NT was interpreted by the police officer as involving “homicidal threats”, I do not accept the proposition that NT has so far threatened to kill any family member.
It is of course a matter of concern that NT is subject to such thoughts, and that fact must be taken into account in assessing the extent to which community protection must play a role in this sentencing, but given that this sentencing will involve the imposition of a reasonably significant term of imprisonment anyway, I consider that whether NT's mental health problems make him a danger to the community will be best assessed towards the end of his non-parole period rather than on the basis of the extremely unsatisfactory evidence currently available to me.
General deterrence
As is often said, general deterrence is highly important for offences like these, given the risk that they can cause terrible damage to the victims without ever coming to light. On the other hand, it seems unlikely, given NT's age and the other circumstances of this matter, that personal deterrence is a particularly important sentencing purpose.
Pleas of guilty
As already noted, NT pleaded guilty to all of these offences at a very early stage, and I accept that, among other things, those pleas reflect genuine remorse and a wish to minimise the impact of the legal processes on his victim. I have no doubt that avoiding any need for the victim to give evidence of these offences is important to her well-being.
These early pleas will be recognised with an appropriate sentencing discount.
Defence counsel also pointed to the fact that, while one of the offences was observed by NT's wife and two other offences were reported by the victim, NT through his email and in his police interview disclosed seven offences not particularised by the victim. In accordance with the decision of R v Ellis (1986) 6 NSWLR 603 at 604 (Ellis), counsel says NT is entitled to a more substantial sentencing discount than for normal pleas of guilty, on the basis that the offences disclosed by him would otherwise never have come to light. In Ellis, Street CJ said:
The leniency that follows a confession of guilt in the form of a plea of guilty is a well recognised part of the body of principles that cover sentencing. Although less well recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned.
In the circumstances of this case, it seems to me quite likely that the offences disclosed by NT, or at least some of them, would eventually have come to light through further disclosures by the victim, but this in my view only moderates rather than eliminates the extra discount that is available for such disclosure.
The prosecutor relied on the recent case of Bugmy v The Queen [2013] HCA 37; 249 CLR 571 to submit that NT's claims of a disturbed childhood in general, and sexual abuse by his mother in particular, should be approached with caution. She noted in that context that there had been what she described as “escalating disclosure” of the alleged abuse, with a high level of inconsistency among the various disclosures, and that in the absence of better evidence, these claims provided no basis for any additional leniency to NT.
This submission raises difficult issues. First, much of the evidence of NT's claims comes from records made by treating health professionals, and it does not seem reasonable to assume, first, that each such person would ask an identical set of questions and, secondly, that each such person would have the opportunity to record exactly and completely everything that was said or, indeed, would have the time to listen to everything that NT might have wished to say. Apart from NT's sister, who appears to be seriously mentally disturbed, all the adults involved in NT's claims have long since died, and it seems highly unlikely that there would be any corroborating information recorded in official documents anywhere. In other words, NT has as a practical matter no way of proving his claims. This, of course, is a difficulty also often faced by survivors of sexual abuse who are complainants in criminal proceedings.
In this case, however, I do not think that the difficulty for NT in establishing his claims is a matter of major significance. Even accepting NT's claims of childhood sexual abuse in their entirety, I am not persuaded that a man of his age, who seems to have addressed that childhood abuse sufficiently to be able to build an apparently satisfying life, including good relationships with both his wife and son, as well as his son's family, did not realise how unacceptable his conduct was, and was not capable of restraining himself. That is, while I have considerable sympathy for NT in relation to his early experiences, I do not accept that any childhood sexual abuse he suffered could go beyond providing some kind of explanation for what he has done to his granddaughter; it provides no justification, and it provides little reason in this case for leniency.
Extra-curial punishment
Defence counsel also said that NT has suffered what might be regarded as extra-curial punishment in that he appears to have lost his relationships with all the important people in his life. I am not convinced that this fits within any recognised category of extra-curial punishment. Apart from anything else, distressing as it no doubt is to NT, his family's cutting of ties does not seem to involve a punishment as such. His family is not, in my view, punishing NT by excluding him from their lives, so much as simply not wishing to have any further contact, perhaps not feeling able to have any further contact, with a person whose actions have made him unacceptable in the family group.
Sentence
NT, please stand. I record convictions on nine charges of acts of indecency on a person under 10 years of age and on one charge of an act of indecency in the presence of a person under 10.
I now sentence you to imprisonment as follows:
(a)for the offences first disclosed by the victim, to three years and nine months imprisonment each, reduced from five years for your pleas of guilty; and
(b)for the offences disclosed by you, to three years and four months imprisonment, reduced from five years in recognition of your pleas of guilty and your disclosures.
The second and subsequent sentences will be accumulated on the preceding sentence as follows:
(a)for the offences disclosed by the victim, so as to add five months each to the total sentence;
(b)for the last five of the six offences committed over a single weekend and disclosed by you, so as to add three months each to the total sentence, and for the first of those offences and the other offence disclosed by you, so as to add four months to the total sentence.
Most of those accumulation periods have been reduced, from a starting point of five months, to four months in recognition of your disclosure and, in the case of the offences committed on the same weekend, to three months each in recognition that to an extent they form part of a single incident (although not, in my view, sufficiently closely that the sentences should all run concurrently).
That gives a total sentence of six years and six months imprisonment which will be backdated to 14 September 2016 when you were taken into custody, and so it will run until 13 March 2023. I set a non-parole period of four years, also backdated to 14 September last year.
The effect of that backdating and the non-parole period is that you will be eligible for parole, at the earliest, in just under three and a half years, namely 13 September 2020.
I recommend that you be assessed, and if found suitable, that you undertake the Adult Sex Offenders Program, and I direct that this recommendation be brought to the attention of the Corrections authorities. I also recommend, also to be brought to the attention of the Corrections authorities, that some counselling or perhaps other treatment be provided to you in relation to your early childhood sexual abuse.
If you have any particular questions about the orders I have just made, NT, please ask the court officials or Mr Jorgensen, who I am sure will talk to you when I am finished.
You may sit down.
| I certify that the preceding fifty-nine [59] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: Nishadee Perera Date: 19 May 2017 |
4
3
1