R v Peterson (a pseudonym)

[2020] NSWDC 122

District Court

New South Wales

Medium Neutral Citation:	R v Peterson (a pseudonym) [2020] NSWDC 122
Hearing dates:	27 February 2020
Decision date:	27 February 2020
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of six years imprisonment. Non-parole period of four years.
Catchwords:	SENTENCING- Sexual intercourse with a person under care - Intentionally sexually touch a child- Aggravated indecent assault SENTENCING- relevant factors on sentence - two child victims - offender child victims stepfather - early acceptance of responsibility - Form 1 matters - seriousness of sexual assaults against children- deterrent and retributive sentences required- victim impact – remorse
Legislation Cited:	Crimes Act 1900, Crimes (High Risk Offenders) Act 2006 Crimes (Sentencing Procedure) Act 1999 Criminal Legislation Amendment (Child Sexual Abuse) Act 2018
Cases Cited:	BT v R [2010] NSWCCA 267 LB v R [2019] NSWCCA 151, at [39] R v Herring (1956) 73 WN (NSW) 203 R v NJK [2011] NSWCCA 151 R v Windle [2012] NSWCCA 222 Ryan v The Queen (2001) 206 CLR 267 Thompson v R (2000) 49 NSWLR 383
Category:	Sentence
Parties:	George Peterson (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr S Fraser, Public Defender (for the offender) Solicitors: Legal Aid NSW (for the offender) Ms N Olender (for Director of Public Prosecutions)
File Number(s):	2019/00186375
Publication restriction:	The Offender’s name is subject to a suppression order. The name of the complainants are not to be published, nor is any other material that could lead to the identification of that complainants or any information that may reveal the relationship between the defendant and the child complainant; this includes the name of the mother of the complainants and her relationship with the accused: s.578A Crimes Act 1900 and s.15A Children (Criminal Proceedings) Act 1987

SEntence – ex tempore revised

1. There is to be no publication of either complainant’s name or anything that may lead to the identification of a child complainant: s 578A Crimes Act 1900 and s 15A Children (Criminal Proceedings) Act 1987. This includes the name of the offender, the children’s mother and the offender, given his relationship to the mother and the children. Identifying information has been removed from this judgment to comply with the statute. Pseudonyms have been used for the names of the offender and the child victims.

Introduction

2. On the evening of Saturday 15 June 2019, Mrs Peterson went into her son Chris’s bedroom. She saw her husband, George Peterson, kneeling beside her son’s bed. She saw that her son’s penis was exposed. She said, "What the fuck are you doing?" The offender responded, "Nothing" and walked out. Soon after Chris told his mother, "He touched me. He sucked my penis". The distress that that those revelations caused Mrs Peterson, her children and the whole family unit, needs no further elucidation.

3. The police were called and on 16 June 2019 the offender was arrested. He has been in custody since that date. Initially, he told police a story denying any crime. Further complaints were made by both “Chris” and his sister “Susan.” While still before the Local Court, the offender accepted responsibility for crimes committed against both his stepchildren.

4. The complaints were reduced to the four specific charges for which I must sentence him today. Sexual intercourse with a person under care - s 73(1) Crimes Act 1900, maximum penalty eight years; Intentionally sexually touch a child - s 66DB(a) Crimes Act - maximum penalty ten years; and Aggravated indecent assault - s 61M(2) Crimes Act, now repealed. At the time it carried a maximum penalty of ten years and a standard non-parole period of eight years. That standard non-parole period still applies: Crimes (Sentencing Procedure) Act 1999, schedule 2 pt 31 cl 91, see [27] below.

5. Three other matters will be dealt with on Forms 1 attached to three of those counts. While I do not sentence for the matters on the Form 1, they require greater weight be given, when dealing with for the offence for sentence, to sentencing principles involving deterrence and retribution. They also indicate that the offending against both children was part of a course of conduct.

Agreed facts

6. At the time, the family unit consisted of the offender; his wife; two stepchildren, the complainants; and a child born to the relationship between the offender and Mrs Peterson.

Offences involving Chris: First occasion – Aggravated indecent assault, s 61M(2) Crimes Act.

7. One evening in July 2018, the complainant Chris, then 15, was sitting on the lounge next to the offender watching a movie on television. The offender moved his hand to the top of the complainant’s pyjamas and touched his penis. His actions were concealed by a blanket. He rubbed and fondled Chris’s penis for about five minutes. Understandably, the complainant felt scared and did not know what to do or how to react. He did not say anything.

Second occasion – Intentionally sexually touch a child; s 66DB(a) Crimes Act, and intentionally incite to touch a child; s 66DB(b) Crimes Act (Form 1).

8. In late January 2019, Ms Peterson was driving with a friend, Chris and the offender, who was sitting next to Chris in the back seat. Chris was then 15. The offender put his hand underneath the front of Chris’s pants and underwear and fondled his penis for about five minutes.

9. The offender then undid his fly and took out his own penis. He said, "Shh, be quiet." He made Chris touch his penis for some time. Again, Chris was too scared, and I suspect, confused, to know what to say or do.

Offences involving Chris: Third occasion – Sexual intercourse with a person under care; s 73(1) and Sexual touching of a person under care; s 73A(1)(a), (Form 1).

10. This is the event that occurred on 15 June 2019. Chris was in his bed. The light was out. The offender entered. He was using the light on his mobile phone light. He questioned the complainant about the state of his room. This ostensibly normal act by a stepfather was then made abnormal by the offender kneeling down and fondling Chris’s penis for about two minutes. He then put his mouth over the child’s penis and performed oral sex on him until interrupted.

Offences involving Susan: Indecent assault person under 16 years; s61M(2) Crimes Act, and Intentionally sexually touch a child; s 66DB(a) Crimes Act, (Form 1)

11. After disclosure of the offences relating to her brother, Susan came forward and said that she too had been the subject of abuse. Those complaints are the subject of one charge and one matter to be dealt with on the Form 1.

12. The offence for sentence occurred in 2015 or 2016. Susan was then 9 and 11 ½. She was asleep in her bedroom. She was awoken by the offender rubbing his hand directly on her vagina. She ran away and hid in the bathroom.

13. Susan also complains that in April 2019 a similar incident occurred when she awoke to find the offender rubbing her vagina with his hand; again direct skin on skin contact was made. Again, as with the offence involving her brother, the offender attempted to normalise what had occurred by behaving as one would expect a stepfather to do immediately after the event.

Objective seriousness

14. It needs to be stated and restated that there is an absolute prohibition on any sexual activity with a child. The law is strictly enforced. It is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity. It follows that every act that involves the sexual interference with a child is serious and treated seriously by the Courts. The guidance offered by maximum penalties makes that clear. The actual character of the assault, including the degree of physical contact involved, is of considerable significance in assessing the objective seriousness of sexual assaults against children in all their forms.

15. In assessing the objective seriousness of individual matters, the Court takes into account the act or acts done, the character of the act, the degree of physical contact, and where sexual intercourse is concerned, the Court notes that no one form of sexual intercourse is necessarily worse than the other. The Court also takes into account the nature, in sexual intercourse matters, of the penetration.

16. The time at which the acts occurred and the age difference between the perpetrator and the child is important, the age of the child relative to the range encompassed by the offence is relevant, and here, importantly, so too is the relationship of the perpetrator to the child. In each offence, the offender was the children’s stepfather. He was in a position of authority and able to direct and command the child. He was entitled and to expect obedience of the child. Children, particularly in a situation such as this, look up to stepfathers for support and protection, not abuse.

17. A position of trust was abused. Most events occurred in the child’s bed or home or the family car. Each is a place where a child is entitled to and should feel safe; places where they should never be subject to abuse. In each case, the child was left with little option but to submit. No physical hurt or harm was caused to the child, but that is not at all unusual in such matters. Each event was relatively brief, but still took minutes.

18. It is expected, as is evidenced by the Victim Impact Statement before the Court, that there will be a degree of psychological harm occasioned, and that such harm can continue for a significant period, if not a lifetime.

19. At the time Chris was 15 or 16. The 61M(2) offence, involved direct skin‑on‑skin touching with the offender’s hand on the child’s penis for about five minutes. The s 66DB offence again involved direct skin‑on‑skin touching with the offender’s hand on the child’s penis for about five minutes. It was immediately followed by a reciprocal act. The final matter, the act that was interrupted, invoked oral sexual intercourse, in the child’s bed. It is an element of this offence that the child was under the care of the offender. While different terms are used to those in s 21A (2) of the Crimes Act, I need to be careful not to double-count matters aggravating the offence where they are an element or equivalent to an element of the offence.

20. Susan was about ten years old when the first offence occurred. She was in her own bed. Hands were placed on her vagina. Skin-on-skin touching occurred. She ran from her own bedroom. This was not an isolated event, as is shown by the Form 1 matter.

Deterrent and retributive sentences

21. Submissions were made, as they always are, directed to the question of general deterrence. It should, in 2020, be clear to everyone in our community what penalties are imposed for offences such as this and how wrong it is to sexually interfere with children by people such as the offender, by anyone. In matters such as this, the heavy penalties imposed or fixed by Parliament did not deter this offender.

22. In matters such as this, deterrence is often used interchangeably with the term "retribution". Retribution is particularly important in matters such as this. Retribution is the notion that reflects the community’s expectation that an offender will suffer punishment and the particular offences of a sexual nature against children will merit severe punishment: Ryan v The Queen (2001) 206 CLR 267; R v Windle [2012] NSWCCA 222.

23. A proper sentence marks the Court’s view of the seriousness of the crime and should let others know the retribution which will fall on them if they commit similar crimes: R v Herring (1956) 73 WN (NSW) 203, at 205. Each child victim of a sexual crime is in need of or deserving of such protection and vindication as the law can provide. There is an obligation and need in sentencing to vindicate the dignity of each child victim of sexual offences, and to express through the imposition of an appropriate penalty the community’s disapproval of the offending.

Victim Impact

24. I read the Victim Impact Statement in Court. It is tragically not unusual for the consequences set out here to be felt by children and families.

25. The effects of child sexual abuse depend on many factors. The relationship between the child and the perpetrator is important, as are the nature, number and frequency and duration of each abuse experience. But the experience of the Court has been supported by material that was provided for judges and the Royal Commission that the impact of such offences is as diverse as the abuse experiences themselves. Experience of the Court has been that once a matter is finalised, an appropriate assistance and family support is given to child complainants. Once the volume is turned down, the focus can be on their recovery rather than the extraction of punishment and retribution.

26. A child should never measure the harm that they suffer against the punishment actually inflicted. Judges must attempt to synthesise all that is wrong and good in the human condition to units of punishment. It must take into account all material that is put before the Court. There is nothing in the background of the offender that could have given this child, this stepchild, or his wife any indication that an offence such as this would have been committed. There is nothing in the material before me that explains why such a serious offence was committed against children in his care.

Guidance

27. I have had regard to the sentencing practices of this court. I have had regard to the guidance offered by the Court of Criminal Appeal. Here, in the course of proceedings, it was made clear that for the s 61M(2) offences, standard non‑parole periods apply. Despite continued criticism and the measures taken to fix the problem by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018, Parliament, in its wisdom, determined that the standard non‑parole period still applied to offences against s 61M of the Crimes Act.

28. Section 61M(2) carries a maximum penalty of ten years. The standard non-parole period is eight years. That ratio has been the subject of criticism. It was described by RS Hulme J as "absurd:" BT v R [2010] NSWCCA 267. In Another Court, more circumspectly, described it as a "curious relationship" noting that it is an "uncontroversial fact that is not mathematically feasible to set a head sentence for a s 61M(2) offence that is close to the mid-range while also giving weight to the standard non-parole period:" LB v R [2019] NSWCCA 151, at [39].The Court has also said in that the eight‑year standard non-parole period been prescribed by the legislature it has to be given effect to: R v NJK [2011] NSWCCA 151.

29. Some problems associated with the ratio are illustrated here. It is accepted by all that objectively the worst offence here, carries a maximum penalty of eight years, whereas the other offences carry maximum penalties of ten years, and for the s 61M(2) matters the standard non-parole period is eight years. Proper relatively must be maintained between offences.

30. There are reasons here for variation and substantial variation from the standard non-parole period where it applies. I need to focus primarily on the objective seriousness of what was done by this offender, but I must also give proper weight to his subjective case, his early pleas of guilty, his acceptance of responsibility, and what I find to be, so far as it is possible for a judge to determine, genuine remorse and contrition.

The case for offender

31. I have to consider the case made for the offender. It has a number of unusual features, not the least being that his early acceptance of guilt. Admittedly this was precipitated by him, as Madam Crown properly submits, being caught in the act for the most serious of the offences.

32. The offender gave evidence. He apologised for the hurt, emotional and mental. He was also rational enough to understand that saying sorry could not take back what he had done. He accepted responsibility for the short and long‑term consequences of his crime. But when asked, he was unable to explain why he did what he did.

33. I am indebted, as always, to Ms Jelen, psychologist, for her careful report: exhibit 1. It sets out Petersons’ family background; which he affirmed in evidence. He had a good childhood, primarily due to his relationship with his father. He struggled socially and academically at school and left as soon as practicable to take up an apprenticeship. He has worked all his life. He has had two substantial relationships in his life and, until the commission of these offences and the revelation of what he was doing, appeared to have a close relationship with her and a cohesive and happy family.

34. While a drinker, there is nothing about Peterson’s alcohol use that indicates it was unduly excessive. Although he had been drinking when these offences occurred, he does not attempt to rely upon it as any form of excuse, not that it is. He did not appear to me to be attempting in any way to deny or minimise or in any way justify his behaviour; conclusions also reached by Ms Jelen. He accepts the disgust, anger and confusion this offending must have caused his wife, his child and his stepchildren.

35. Peterson has done what he can while in custody to engage in programs; which, for remand prisoners, are limited. He accepts he will need to engage in a sex offender program. I am aware of the CUBIT program its stringent nature. It is sometimes the case that a person has to spend beyond their non-parole period in custody to complete that program. In his evidence to me, the offender indicated that that he would forgo application for parole if he was still engaged in the program.

36. I am aware from evidence which has been presented to me by Community Corrections’ psychologists this year and last year that there are still delays in engaging in that program. Sometimes a number of years are required to complete it.

37. In a letter to the Court Peterson expresses his remorse, and the puzzlement and confusion he feels about his offending: exhibit 2. Remorse here is important, but as with all mitigating factors, it can only go so far.

38. The plea of guilty came early. By law, I must reduce the otherwise appropriate penalty for each offence by 25%: s25D Crimes (Sentencing procedure) Act 1999. I will take care when I come to synthesise all relevant matters and fix a total sentence that the benefit of that plea not be eroded by the process of accumulation.

39. The guilty pleas had other benefits. For sexual crimes involving children, considerable additional harm can be occasioned to a child who has to go over and over their evidence while awaiting a trial: Thompson v R (2000) 49 NSWLR 383, at [3].

Special circumstances

40. A finding of special circumstances is required. The offender will be released without any supports in the community. He is unlikely to have any financial support. He has no family support. He will need continuing supervision. He will need continuing assistance if he is to relearn how to live a normal community life. His prior good character is relevant, but for reasons that were discussed in submissions, I can only give such good character limited weight given the nature of the offences. But it gives me some confidence, that with assistance and appropriate treatment in custody, he may not reoffend.

Synthesis

41. I have to synthesising all of those matters and balance all the purposes of sentencing. There is no one sentence that can or should be imposed. I have regard to the guidance offered by the maximum penalties and, where appropriate, the standard non-parole period. I have fix sentences for each matter, taking into account, where applicable, the Form 1. I have to structure an aggregate sentence that gives proper weight to the purpose of the sentencing and the case made for the offender.

42. I then have to consider questions of totality and accumulation. There were separate offences. There were two separate victims. There are some common features to each of the offending behaviour and the purposes of sentencing apply equally to each of the offences. This is not a matter where one would simply accumulate one penalty on the other. Ultimately, I have to impose a just and appropriate aggregate sentence individual sentences and then adjust an appropriate total sentence.

Orders

43. I have to indicate each individual sentence.

44. In relation to Indecent assault person under 16 years of age, sequence 4, a s 61M(2) matter involving Chris, I indicate a sentence of two years and three months, non-parole period of one year and five months.

45. In relation to the sexual touching offence involving Chris, a s 66DB(a) matter, sequence 2, taking into account the matter on the Form 1, I indicate a sentence of 2 years 7 months.

46. For the oral sex allegation, s 73(1), sequence 1, taking into account the matter on the Form 1, sequence 9, I indicate a sentence of three years and nine months.

47. For the Indecent assault person under 16 years of age offence, a s 61M(2) matter involving Susan, sequence 6, taking into account the matter on the Form 1, sequence 7, there will be a sentence of three years and six months with a non‑parole period of two years and one month.

48. Taking into account the plea, totality and the finding of special circumstances the aggregate sentence in this matter will be one of six years’ imprisonment. There will be a non-parole period of four years. The sentence will date from 16 June 2019. You will be eligible for consideration for parole on 15 June 2023. There will be a parole period of two years. The total sentence will expire in 2025.

49. I have to advise you, Mr Peterson, that the nature of your offending means that you will be subject to the Crimes (High Risk Offenders) Act 2006 and that if you do not cooperate with the Corrections authorities and you do not engage in any treatment that is offered to you, there is a risk, one, that you may not get parole, but importantly, that you may be subject to further detention or restrictions on your liberty after your sentence has expired. That is not a matter I was allowed to take into account when I came to formulate the sentence.

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Decision last updated: 21 April 2020