R v Phipps

[2007] NSWDC 120

CITATION:	R v Phipps [2007] NSWDC 120
HEARING DATE(S):	11 May 2007 14 May 2007
JUDGMENT DATE:	14 May 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Goldring DCJ
DECISION:	Sentenced to imprisonment; see Paragraphs [38] - [43]
CATCHWORDS:	Criminal law - sentence after trial - aggravated sexual assault on child - multiple counts - stepdaughter
LEGISLATION CITED:	Crimes Act 1900 (NSW)
CASES CITED:	R v Reynolds (CCA 7 December 1998 unreported) R v Moore (CCA 12 April 1994 unreported) R v Bamford (CCA 23 July 1991 unreported) R v SJF [2002] NSWCCA 294
PARTIES:	Crown Rodney Thomas Phipps
FILE NUMBER(S):	06/41/0189
COUNSEL:	Ms J. Cash (Crown) Mr P. Pearsall (Offender)
SOLICITORS:	NSW DPP NSW Legal Aid Commission

JUDGMENT

The name of the complainant and any particular whereby she may be identified, including the names of her siblings and her mother, must not be published. By consent, however, I authorise that the name of the offender may be published in respect of the judgment.

SENTENCE

1 On 23 February this year Rodney Thomas Phipps was found guilty by a jury of eleven counts of aggravated sexual intercourse with a child who was between the age of twelve and fifteen at the relevant times and on five counts of aggravated indecent assault. He was therefore convicted of those offences and remanded in custody.

2 In each case the aggravating circumstance was that the victim of the offences was the offender’s stepdaughter, B. At the time of the first offence about the Queen’s Birthday holiday weekend in June 1998 she was twelve years old. At the time of the last offence charged she was fifteen years old. The prisoner was between twenty-nine and thirty-three years old at the time of the offences.

3 These offences form part of a continuing pattern of what amounted to virtual sexual servitude. Over the period of these offences the offender became obsessed with the victim, although there was evidence that he had previously been convicted in respect of indecent assaults on three of the complainant’s sisters. He served a term of imprisonment for those matters. This record of previous similar offences must be regarded as a factor aggravating these offences.

4 After extensive argument I have admitted as “context” evidence, evidence of uncharged occasions upon which the accused and complainant had various forms of sexual intercourse and other sexual contact over the period of these offences. In her evidence the complainant said that she thought that over that period there was sexual contact by the offender with her on five days out of seven. I can only sentence the offender in respect of those offences of which he has been convicted. However, the evidence even in respect of the matters charged shows a continuing pattern of the most flagrant sexual exploitation by the offender of his stepdaughter. It is rare to see a case where a person in authority has abused that authority to the extent or for the length of time that happened in the case of this offender with his stepdaughter, B..

5 The offences charged include: penile-vaginal intercourse, oral intercourse, anal intercourse and repeated sexual touching. The victim also gave evidence, as part of the uncharged evidence, of sexual contact in the form of cunnilingus by the offender on her, on a number of occasions before he put his penis in her vagina.

6 The complainant was born on 20 November 1985, so that at all material times she was aged between twelve and fifteen. Also at all material times the offender was in a de facto relationship with the complainant’s mother, WB.. That relationship commenced late in 1993. WB had four other daughters from previous relationships, and a son, of whom the prisoner is the father. During the relationship some, at least, of the girls were known by the name, Phipps, although there was no formal change of name. B. was certainly known as B. Phipps and was enrolled at all material times at high school under that name.

7 Over the period during which these offences were committed the complainant’s mother, WB, was working at the Collingwood Service Station at Liverpool. She worked shifts on a three day rotation. Mostly she worked either morning or afternoon shifts. If she worked afternoon shifts she worked from 3pm to 11pm. The complainant said that all the offences that took place in the family home took place either when her mother was at work, or at night when her mother and the brother and sisters were asleep.

8 There was evidence that for part of the period three of the complainant’s sisters, M, E and S, lived in the family home. Another sister, R, had moved out before the first of the offences. There was evidence that M, who had a young son, lived in the house only for short times. At other relevant times she lived at Coolah. After charges were laid against the offender in respect of E and S, they also left the family home. However, they were present at some relevant times and both gave evidence, which corroborated the complainant’s evidence in important respects.

9 The complainant’s evidence was that on each occasion when penile-vaginal intercourse took place between the offender and her, except one which was not charged, the offender would withdraw his penis from her vagina before ejaculating on her stomach, on her back or on the floor. There is no evidence that he ever had protected sex, and that had some unfortunate sequences for the victim, which I will refer to later.

10 For the purposes of sentencing the prisoner, I will define the offences into those which were committed while the family was living at various addresses in the Liverpool/Campbelltown area. The specific matters in respect of which the offender was convicted are as follows;

11 The offences in counts 1 to 6 were committed while the family were living at Leumeah; in counts 7 to 10, while the family lived at Long Point; in counts 11 to 15 while they lived at B.... Drive, St Andrews and in count 16 while they lived at S..... Rd, St Andrews. The facts of each offence are as follows:

Count 1

In June 1998 the prisoner came into the complainant’s bedroom on the lower floor of the house where the family was living. He removed her underpants and placed his penis in her vagina. He threatened to kill her if she made a noise and at one stage placed a pillow over her face to stop her making a noise.

Count 2

When the complainant was having her thirteenth birthday party in the garage at Leumeah, the offender called her into the formal lounge room of the house, kissed her and put his tongue in her mouth.

Count 3

Between 30 July and 23 September 1998 while the movie, “Sliding Doors” was showing at the Greater Union Cinema, Macarthur Square, the victim asked the prisoner if she could go to see that movie with her boyfriend. He told her that she could go if she put her hand on his penis, and she did so.

Count 4

The complainant moved from the downstairs bedroom to a bedroom on the upper floor where she slept in the top bunk of a set of bunks. There was evidence that the bottom bunk was a double bed. The offender climbed into the top bunk, removed the complainant’s underpants and put his penis into her vagina.

Count 5

The offender took the victim into his bedroom and caused her to kneel on the bed facing out the window. He then took up a position behind her and placed his penis in her vagina from behind.

Count 6

On one occasion the victim was ‘jigging’ school and was at home when the prisoner came home. He undertook to “fix things at school” if the complainant agreed to let him have anal sex with her. He rubbed her anus with baby oil and put his penis inside it, but because of the pain this caused her to move forward, so that his penis came out of her anus. He then placed his penis in her vagina. Later she noticed that her anus was bleeding and felt sore.

Count 7

One evening the complainant and the offender were sitting together on a modular sofa in the lounge room. The offender put his hand on the outside of the complainant's vagina. The complainant’s sister, M came into the room at that stage and when the prisoner saw M he removed his hand and started tickling the victim’s knee.

Count 8

One afternoon the prisoner collected the children from their schools and took them home. He went into the victim’s bedroom and put his penis into her vagina from behind. The complainant’s sister, E tried to get into the room but could not do so, because the door was locked. She wanted to get some clothes. The offender then hid in the complainant’s wardrobe while E entered the room and then left it. The prisoner then left the room. On this occasion the victim said that the prisoner did not ejaculate.

Count 9

The house at Leumeah was badly damaged by fire and the family moved to Long Point. One day the offender took the victim in his car to the Leumeah property. There he took her into the lower bedroom, near the garage, removed her clothes and put his penis into her vagina from behind.

Count 10

The prisoner took the victim in his car to a place off a dirt road near the Glenfield Railway Station. There he placed the complainant’s head on his penis and made her suck it until he ejaculated in her mouth. She opened the door and spat the semen onto the ground.

Count 11

The victim and her sister, E asked the prisoner if he would buy them cigarettes. He agreed to do this if they agreed to let him feel their vaginas under their underpants. He bought them cigarettes. Some days later he came into the bedroom they shared at night and said, “It’s time, who wants to go first?” He then proceeded to touch both girls on the vagina. E saw him place his hand under the blanket in the area of the victim’s groin.

Count 12

About St Valentine’s Day the offender told the complainant that he had a surprise for her. He gave her a black bra and panties embroidered with red hearts. He then showed her a vibrator, which she described as being purple and which flashed when it was turned on. Later she came to his bedroom where he used the vibrator on her before putting his penis in her vagina.

Count 13

During the Sydney Olympics there were extended school holidays. The victim, her brother and her sisters, E and S, all went to stay with their older sister, M, at Coolah. The day after they returned to Sydney the prisoner took the victim to a dirt road near a preschool in the Ingleburn/Denholm Court area in his car. There he put his penis into her mouth and ejaculated into it.

Count 14

The complainant went to the sixteenth birthday party of her friend, Rebecca. Another friend, Helen, was also at the party. The offender collected Helen and the victim from the party and drove Helen home. He then said to the victim, “You’ve had sex,” and unbuttoned her jeans. He put his fingers on her vagina and continued to say that he knew that she had had sex.

Count 15

By afternoon the offender took the victim into the bathroom and locked the door. They both removed their clothes. The prisoner then bent the victim over the bath, which was next to the shower, and put his penis into her vagina from behind.

Count 16

The prisoner telephoned the victim while she was at work at the St Andrews Take Away. He asked her to come to his place of work, which was at Liverpool, and she did so. He then drove her home, took her to the bedroom and put his penis into her vagina.

12 Because these offences were all committed against a child, consent is irrelevant. It is clear that although the first offence was accompanied by a threat of violence and although the complainant said she did not complain or mention the matters because she was in fear of the offender, the relationship developed so that she became quite, indeed almost totally, dependent upon him. She said that she continued to have sexual contact with him partly because of the fear that she felt for herself and particularly because of the fear that she felt for her mother, and because she had been brought by the prisoner to feel that he was the only person in the world who understood her. She gave evidence that on one occasion she consented to sexual contact when he promised not to hit her mother anymore.

13 Dependency of this type is not uncommon in cases where an offender has a long period to manipulate the victim, as the prisoner did in this case. There was ample evidence of violence by the prisoner towards WB. There was also evidence that from time to time he hit or slapped the children. It is understandable that the victim was in fear of him. There was also evidence that her natural father had left the household when she was very young and that the offender was the only father that she knew. It is not surprising that she felt a mixture of hatred and dependence towards him. This emotional situation was something that the prisoner exploited to the full.

14 While the prisoner was in gaol for the offences against the sisters, he wrote a number of letters to the victim, which described his sexual fantasies about her in lurid detail. The similarity between what he described in those letters and the matters about which the victim gave evidence is remarkable. He admitted to the police and he gave evidence at the trial that he had had sexual intercourse with the victim, but he said that this was after she turned sixteen and it had happened at her instigation. The jury clearly rejected this evidence.

15 Her letters to him at the time indicate that she had developed sexual feelings towards him and it is not disputed that the two had arranged that on his release from prison they intended to go away together. The fact that this could happen indicates the extent to which the offender had consciously manipulated his stepdaughter to become his sexual plaything.

16 The complainant read a victim impact statement to the Court. What she said does not, in general, come as a surprise. Nor does the report of Associate Professor Quadrio that forms part of that statement. That psychiatrist had diagnosed that the complainant is suffering from a chronic post-traumatic stress disorder. The victim says that as a result of her treatment at the hands of the prisoner she has low self-confidence and low self-esteem. She has difficulty with people in authority. She lacks decisiveness.

17 She has produced a medical certificate showing that she now suffers from genital herpes. This condition is incurable. Apart from its recurrent nature and the physical discomfort it causes, it also causes her embarrassment in her relationships. This is a complication which is a constant physical reminder of the abuse which she has suffered.

18 The fact that the relationship developed to the extent that it did indicates the extent to which the prisoner had consciously manipulated his stepdaughter to become his sexual toy. His conduct towards her, and to her stepsisters, which led to his earlier conviction, suggests that he does not understand or appreciate the appropriate boundaries for the behaviour of parents.

19 On each charge of aggravated indecent assault there will be a sentence of a fixed term of four years. That is less than the current standard non-parole period for this offence, but it is not, apparently, out of the range of sentences for such offences imposed at the time. The offences of indecent assault must be regarded as being at or, in the case of count 2 perhaps, possibly slightly below the middle range of seriousness for this offence. There is no need to fix a total term because there is no chance that the offender will be released at the expiry of the non-parole periods due to the length of his sentences on the more serious charges.

20 The maximum penalty for each aggravated sexual intercourse offence at the time was ten years imprisonment. The prisoner is fortunate in that the penalties for this offence, if committed now, are twice as severe as they were at the time of these offences. His sentences will therefore be lighter than they would be if the offences had been committed now.

21 Because of the manipulative behaviour on his part these offences must be regarded as being amongst the most serious of their kind. Each of these offences, as I say, falls in the upper range of seriousness. I am aware that although there is no standard non-parole period for this offence even now, there is now a standard non-parole period for the offence of aggravated indecent assault on a child between ten and sixteen, which is five years, and a standard non-parole period of fifteen years for a count of aggravated sexual intercourse with a child under ten, and those may be useful reference points.

22 Each act which led to a charge was not only an abuse of the offender’s authority as a stepfather, which is an element of this crime, but the initial assault and some later ones were also accompanied by threats of violence towards the complainant and perceived actual violence in the home towards her and her mother. The fact that there was little if any actual violence is important, but what is even more important was the constant threat of violence which the victim felt.

23 The principle of totality, however, means that it would not be correct to impose a sentence comprising a non-parole period in the term during which the offender is eligible for parole so that all are totally cumulative.

24 The offences are part of a continuing course of conduct, which is an aggravating feature of each offence, but they cannot in any sense be said to be a single episode of criminality. Although it is to some extent artificial, for the purposes of applying the principle of totality, I propose to consider the offences in four groups corresponding to the four residences that the family occupied during the period during which the offences occurred. The sentences imposed for the offences in each group will be concurrent, but because of the principle of totality, and only because of that principle, those sentences will be partly cumulative on those for the group of offences that is immediately prior in time.

25 The prisoner gave evidence, as did his mother and his current partner. This is supported by a report from a psychiatrist, Dr Stephen Allnutt, and also by reports which were produced from two other psychiatrists, Associate Professor Quadrio and Dr Clarke, which were evidence in these proceedings and which were also introduced in earlier proceedings. I did have some concerns that Professor Quadrio had prepared reports on both the prisoner and the victim, but those concerns have proved to be unfounded. Dr Allnutt and the two other psychiatrists who examined the prisoner earlier this year are satisfied that he is suffering from anxiety and depression. To some extent this was due to the death of his grandmother in August last year. It is certainly not assisted by his childhood experience.

26 Dr Allnutt has diagnosed post-traumatic stress disorder. I accept that this is a serious mental affliction, which will have some bearing on the prisoner while he is in custody and supports a finding of special circumstances. It is not, however, the type of mental illness which makes the importance of general deterrence any less important. The offender’s post-traumatic stress disorder did not affect his understanding of the nature and quality of what he was doing. General deterrence is an important factor in sentencing offenders who have committed crimes such as this, and it is important that the court send a message to all stepfathers and people in authority that if they commit sexual offences against their children that they will be punished severely.

27 There is no doubt that the prisoner had a very disturbed childhood. According to his mother his natural father was extremely violent towards her, and the prisoner as a young child witnessed this. He also witnessed this person attempting suicide. The mother’s evidence was that he ultimately shot himself. When the prisoner was about eight, his mother, who at the time had an alcohol problem, formed a relationship with a man called Robbie Pearce. They lived together on a farm about forty kilometres from Holbrook and Tarcutta at a very isolated place. Both the prisoner and his mother said that Pearce was constantly violent towards them both. The violence towards the prisoner was at times extreme. He was, for example, locked in the meat room without food or drink for twenty-four hours at a time. He was chained and left outside with the dogs in a padlocked collar. He was stripped naked, tied to a tree and whipped with a hose.

28 Pearce frequently threatened to use a shotgun and on one occasion fired several shots at the prisoner. The mother tried to leave on several occasions with her children, but was physically prevented from doing so.

29 If that were not enough, the prisoner says that Pearce regularly abused him sexually, forcing him to have oral intercourse and to masturbate him. He says that this happened on fifty or more occasions. The prisoner said that he developed an extreme hatred of Pearce, which is quite understandable. He says that he joined the army later to learn to fight so that he could fight Pearce and he learnt to drive a truck so that he could run over Pearce, although he never did so.

30 Ultimately the mother was able to get her children away from Pearce. She then formed a relationship with another man who also physically abused the prisoner and caused him to be admitted to hospital on one occasion.

31 He left home, he joined the army, but was discharged because he struck an officer. Since then he was continuously employed. As I say, he went into custody, and when he was released in 2002, he met Melica Reid in October of that year. She was seventeen at the time. Since then they have been in a relationship and they have raised a daughter who is now three and a half years old. They plan to marry when the prisoner is released from custody. Both Ms Reid and the prisoner’s mother say that he is a good father, but I have some scepticism about his relationship with his daughter.

32 This was a matter that was raised by the defence and I feel I must allude to it. Protection of the community is an important objective of the sentencing process. Because of his record, the prisoner’s daughter, like any child who is part of his household, must be considered at risk until she becomes an adult. Dr Allnutt says in his report that he must, on the basis of statistics from Canada and the United States, consider that there is a significant chance of re-offending. It is true that the prisoner has indicated a willingness to undertake programs for sexual offenders. He says that his previous time in prison, completion of an anger management course and working with a counsellor, Ms Erica Day, whose report is in evidence, have helped him a great deal. He says that if he undertakes a sexual offenders program it will not only assist him in avoiding re-offending but also he considers it will help him to come to terms with himself, and I think that shows some insight.

33 He has mentioned that since he has been in custody he has had no contact with his daughter because the authorities consider that, given the nature of his offence, that should not be permitted. That attitude on the part of the authorities may well be justified, but it will make his time in custody more onerous. I would have considered that completion of a rigorous sexual offenders program would be a necessary condition of parole, and even then, while his daughter is still a child there may be conditions of his parole regarding unsupervised contact with her, but that will be a matter for the parole authorities when the time comes.

34 Because of the nature of the offences of which he has been convicted the prisoner is being held in protection. This means that, he says, he is abused by some other prisoners and some correctional officers. He has fewer privileges including less access to courses and recreational facilities than mainstream prisoners and it is almost inevitable that he will serve the remainder of his sentence in protection.

35 It is unfortunate, but unfortunately common. that those who are victims of abuse often themselves become abusers. In an unreported decision, Reynolds, 7 December 1998, Hulme J, with whom Barr and Ireland JJ agreed, said that such matters must be taken into account by a sentencing court.

36 The history of childhood abuse is certainly a factor to be taken into account. The fact that this prisoner will be held in protection is itself a special circumstance. Because of his anxiety and depression and that fact of the protective custody, there are special circumstances.

37 The Crown referred me to some cases which it said might be helpful to the court in determining the length of the sentence that must be imposed here. Those cases were for offences under a different section of the Crimes Act and there was a different maximum penalty. They were the cases of Moore (CCA 12 April 1994 unreported), that applied an earlier decision of the Court of Criminal Appeal on 23 July 1991, the case of Bamford. Finally I was referred to the case of SJF [2002] NSWCCA 294. Those cases may in some ways assist the court in giving some guidance as to what is an appropriate sentence. I must say that in none of those cases were there as many offences as are charged here and in my view the offences in this case on their facts are at least as serious, if not more serious, than the facts in those cases.

38 Rodney Thomas Phipps is sentenced as follows. On each charge of aggravated indecent assault there will be a fixed term of four years and on each charge of aggravated sexual intercourse with a child there will be a non-parole period of six years and a total term of nine years. The dates of the sentences are as follows:

39 On counts 1 to 6 the commencing date will be 23 February 2007, the four year sentences will expire on 22 February 2011, the non-parole periods for the more serious offences will expire on 22 February 2013 and the total terms will expire on 22 February 2016.

40 On counts 7 to 11 inclusive the commencing date will be 23 February 2009. The four year sentences will expire on 22 February 2013. The non-parole periods for the more serious offences will expire on 22 February 2015 and the total terms will expire on 22 February 2018.

41 On counts 12 to 15 inclusive the commencing date will be 23 February 2011. The four year sentences will expire on 22 February 2015. The non-parole periods for the more serious offences will expire on 22 February 2017 and the total terms will expire on 22 February 2020.

42 On count 16 the commencing date will be 23 February 2012. The non-parole period will expire on 22 February 2018 and the total term will expire on 22 February 2021.

43 The prisoner will first be eligible for release on parole on 22 February 2018.

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