R v Shackfield (a pseudonym)

[2020] NSWDC 939

District Court

New South Wales

Medium Neutral Citation:

R v Shackfield (a pseudonym) [2020] NSWDC 939

Hearing dates:

11 March 2020

Date of orders:

13 March 2020

Decision date:

13 March 2020

Jurisdiction:

Criminal

Before:

P Taylor SC DCJ

Decision:

The offender is convicted of the offence of committing an act of indecency with a child under the age of 16 years. He is sentenced to a term of imprisonment of nine months with a non-parole period of six months. The term of imprisonment will commence today and end on 12 December 2020. The non-parole period will conclude on 12 September 2020.

Catchwords:

CRIME — Sexual offences — Act of indecency – Child under the age of 16 years – 5-year-old

SENTENCING — Aggravating factors — Abuse of position of trust or authority in relation to the victim - Vulnerable victim

SENTENCING — Mitigating factors - Good character - No record of previous convictions - Unlikely to re-offend – Rehabilitation - Remorse - Plea of guilty

Legislation Cited:

Crimes Act 1900, s 61E

Crimes (Sentencing Procedure) Act 1999, s 3A, s 5, s 9, s 21A, s 25D, s 67

Cases Cited:

AJB v R (2007) 169 A Crim R 32

Bonwick v R [2010] NSWCCA 177

Cameron v The Queen (2002) 209 CLR 339

Clarkson v R; EJA v R [2011] VSCA 157; (2011) 32 VR 361

Hili v The Queen (2010) 242 CLR 520

Kutchera v R [2007] NSWCCA 121

Mill v The Queen (1988) 166 CLR 59

MLP v R [2006] NSWCCA 271

PWB v R [2011] NSWCCA 84

R v (1998) 99 A Crim R 297

R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434

R v Baxter (Court of Criminal Appeal (NSW), 26 May 1994, unrep)

R v Donald [2013] NSWCCA 238

R v H (1980) 3 A Crim R 53

R v Hudson (Court of Criminal Appeal (NSW), 30 July 1998, unrep)

R v KNL (2005) 154 A Crim R 268

R v MJR (2002) 54 NSWLR 368

R v O’Sullivan (Court of Criminal Appeal (NSW), 20 October 1989, unrep)

R v Oliver (1980) 7 A Crim R 174

R v PGM (2008) 187 A Crim R 152

R v PLV (2001) 51 NSWLR 736

R v PWH2 (Court of Criminal Appeal (NSW), 20 February 1992, unrep)

R v Roberts [2003] NSWCCA 309

RH v R [2009] NSWCCA 161

Veen (No 2) (1988) 164 CLR 465

Wright v R [2008] NSWCCA 91

Category:

Sentence

Parties:

Regina
Roger Otis Shackfield (a pseudonym) (Offender)

Representation:

Counsel:
Mr Edwards (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)

File Number(s):

2018/00183337

Publication restriction:

Section 578A(2) of the Crimes Act 1900 applies to this matter - no publication of any matter which identifies the complainant or may lead to the identification of the complainant. Section 15A(1) Children (Criminal Proceedings) Act 1987 applies to this matter - the name of the victim must not be published or broadcast in a way that connects the victim with criminal proceedings.

Judgment

1. Section 578A(2) of the Crimes Act 1900 applies to this matter, that is, that there is to be no publication of any matter which identifies the complainant or may lead to the identification of the complainant. Section 15A(1) Children (Criminal Proceedings) Act 1987 applies to this matter, that is, the name of the victim must not be published or broadcast in a way that connects the victim with criminal proceedings as the proceedings relate to the victim who was a child when the offence to which the proceedings relate was committed.

2. Roger Otis Shackfield ^[1] pleaded guilty to committing in 1990 an act of indecency with a child under the age of 16 years contrary to the then s 61E(2) of the Crimes Act 1900. 

   1. This is a pseudonym. As are all other names in this judgment.

3. The maximum penalty at the time, the relevant maximum penalty, was two years’ imprisonment. 

4. At the time of the offence, Mr Shackfield was about 19 years of age and the victim, his niece, Florence Hartas, was a child aged about 5.  The child was at her grandmother’s house where Mr Shackfield lived with his mother and one of his sisters, not the child’s mother. He was lying in his bed when his niece walked into the room.  The Agreed Statement of Facts (at paras 3 and 4) records that:

“He removed the sheets exposing his naked body, whilst the victim was standing beside the bed in full view.  At the time the offender’s penis was erect. 

The victim leaned over and placed her lips on the offender’s penis and kissed it.  After a few seconds, the victim stopped and left.”

5. The Agreed Statement of Facts also records certain admissions of Mr Shackfield.  In late 2017, Mr Shackfield admitted to the conduct to the sister with whom he formerly resided, including asking the child “to kiss it”.  Subsequently, the victim provided a police statement and confronted the offender.  On 13 June 2018 Mr Shackfield participated in an ERISP where he stated that he used to sleep naked at the time and was under the influence of drugs and alcohol.  He said he woke up and:

“[S]he come into my room and I don’t know why, but I got her to, um, perform oral sex on me.  It’s, I’ve never had feelings like that before, and never have since, but, yeah, it’s, it’s the very basic memory of what I have of it.”

6. Asked how that came about he said, “Ah. I think I said somethin’ like, it’s, it’s like a lollipop, or somethin’ like that, yeah.” He said his niece was in the room and that, “I told her to come over”.  She was standing on the floor, and he said:

“I just took my covers off and, yeah, said that, and she’s leaned over and, like---…kissed it and that, and that, that was it pretty much...Like, a little, just, yeah...On the tip of the penis, yeah. Just, um, a few seconds.”

7. Mr Shackfield denied that the tip of his penis went into her mouth and said it was like, “a prolonged kiss sort of thing”.  He said he did not know why he made her perform oral sex, that he “just had...like, an, an urge, but I don’t know why”.  He said:

“I woke up and I was aroused and I...I think I’d been out to a strip club or somethin’ the night before, and just, yeah. I don’t know why I felt that way.  I’ve never felt it before or, or since.”

8. He said he “woke up erect, yeah” and in answer to, “Did Florence open her mouth” he said, “Um, slightly”.

9. The Crown tendered a Sentencing Assessment Report recording that Mr Shackfield resides with his mother and has “a limited social circle of positive friends”, that he has worked at a local farm for the past 10 years and proposes for that to continue, that he has no criminal history, that he stated he was “binge drinking alcohol”, “drinking alcohol every couple of days” and using drugs, “cannabis nightly” and “speed every couple of weeks” at the time of the offence, and that he ceased alcohol and drug use after the offence.

10. The Report recorded Mr Shackfield’s expression of remorse and concern for the effect his offence had and continues to have on the victim.  He reported a history of depression following the offence and that he has seen a psychologist to address his mental health condition.  The Report recorded Mr Shackfield’s statements of his willingness to undertake intervention and community service.  The Report assessed Mr Shackfield as having a low risk of reoffending.

11. The Crown provided written submissions referring to aggravating factors of Mr Shackfield abusing a position of trust as the child’s uncle, under s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999, and the vulnerability of the child victim because she was five years of age, see s 21A(2)(l) of the Crimes (Sentencing Procedure) Act. 

12. The Crown submitted that the objective seriousness of the matter falls in the middle of the range referring to four matters. 

13. First, the request by Mr Shackfield that the child kiss his naked erect penis while he was laying naked in bed, and that there was “skin on skin connection, between the naked erect penis and the victim’s lips”.

14. Secondly, the Crown referred to the age disparity between Mr Shackfield, who was about 19 and the young child.  The Crown referred to the principle that “the entire class of children under the age of 10 years” is regarded as vulnerable,^[2] and that the younger the victim the greater the criminality. ^[3]

    2. MLP v R [2006] NSWCCA 271.

    3. R v PWH2 (Court of Criminal Appeal (NSW), 20 February 1992, unrep.

15. Thirdly, the breach of trust and that “children have a right to be protected from sexual molestation within the family”. ^[4]

    4. R v Hudson (Court of Criminal Appeal (NSW), 30 July 1998, unrep at 2.

16. Fourthly, the Crown referred to the circumstance that the offence was committed for the sole purpose of Mr Shackfield’s sexual gratification.

17. The Crown also referred to other relevant matters: the harm to a young child from sexual abuse, and the protection from this harm by the absolute prohibition of sexual activity with a child; ^[5] the importance of general deterrence in such a case; the utilitarian value of a plea of guilty of only 10% because the plea was entered at the callover; and the sentencing purposes in s 3A of the Crimes (Sentencing Procedure) Act.

    5. Clarkson v R; EJA v R [2011] VSCA 157; (2011) 32 VR 361 at 364 [3], 368-372 [26]-[39].

18. The Crown provided details of two decisions involving older offences under s 61E(2), one of which appeared to involve acts of indecency and assaults involving 14 counts and 6 children, aged from 8 to 15, where the offender was sentenced to a term of imprisonment. This was conceded to not be comparable to the present case.

19. The other involved, according to agreed facts provided to the Court by the Crown, an uncle aged about 27, who masturbated his exposed penis to ejaculation whilst his 4-year-old niece was sitting on his lap. When the matter was raised some 25 years later, that offender answered the victim’s inquiry and recounted the event, but after being charged, initially denied any wrongdoing. The offender pleaded guilty and in July 2012 was convicted in this Court and given a two-year bond under s 9 of the Crimes (Sentencing Procedure) Act by this Court.  I will refer to that decision as the “2012 District Court decision”.

20. Returning to the case before me, the Crown noted that the victim, now a 35-year-old woman, had indicated that she “did not want anything to do with the matter anymore” and submitted with some diffidence that the s 5 threshold under the Crimes (Sentencing Procedure) Act was reached and that no penalty other than imprisonment was appropriate.

21. Counsel for Mr Shackfield tendered a psychologist report and a letter from the sister to whom he recounted the event. 

22. The psychologist report recorded that Mr Shackfield is the youngest of three siblings, having two older sisters.  He has lived with his mother his whole life and has worked for more than a decade on a free-range egg farm.  He reported an injury as a toddler of being trampled by a horse which left him with a severely fractured skull and said that throughout his life, he “gets confused about things”.

23. The psychologist reported a history of anxiety symptoms from about 2016, difficulty expressing thoughts and feelings and unhealthy sleep patterns.  In the report, Mr Shackfield gave a history of being on illicit drugs at the time of the incident, though he did not regard that as an excuse.  He said that such an incident has never happened before or since with anyone and that he has “cleaned up my act” with regard to the drugs.  The psychologist recorded that he has shown remorse, he could not live with the feeling of what this has done to his niece. For the past two years, Mr Shackfield has had various psychological treatments, and this is recommended to continue.  The psychologist suggested that Mr Shackfield should seek assessment from a psychiatrist to assist with his depression and anxiety.

24. Ms Aria Crabb, Mr Shackfield’s sister, has three daughters and a son, now adults, three of whom live with her.  She has worked with Mr Shackfield at the egg farm for the past eight years.  She observed Mr Shackfield to always act appropriately with her children.  She spoke of his kindness and helpfulness and absence of any violence, that he was a placid person who avoided confrontation, and when assaulted by his brother-in-law over the offence accepted “I deserve what I got I had it coming”. She confirmed the horse injury and its adverse impact on his schooling and that he had not used alcohol or drugs since the year of the offence.  She said Mr Shackfield had been “very remorseful” and had expressed genuine sorrow to her about his actions in the matter.  She recounted that Mr Shackfield cares for his 79-year-old mother with such matters as shopping and medical appointments, and she hoped that could continue.

25. Counsel for Mr Shackfield accepted that the plea of guilty only entitled Mr Shackfield to a discount of 10% under s 25D(2)(b) of the Crimes (Sentencing Procedure) Act but referred to the circumstances that a plea on the charge of an act of indecency was not accepted as an answer to the charges until after the committal. ^[6]   Counsel also noted the maximum penalty indicating the objective gravity of the offence. ^[7]  

    6. Cf Exhibit B.

    7. See Veen (No 2) (1988) 164 CLR 465 at 472, R v Oliver (1980) 7 A Crim R 174, R v H (1980) 3 A Crim R 53 at 65.

26. Counsel also submitted that a custodial sentence is not always appropriate in the case of an act of indecency, ^[8] and submitted that relevant matters in assessing objective seriousness of the act were the degree of genital connection,^[9] the duration off the indecent act,^[10] the absence of threats, force or coercion,^[11] the absence of physical injury, the age of the victim, the breach of trust, the lack of premeditation or planning, and the absence of grooming behaviour.

    8. R v O’Sullivan (Court of Criminal Appeal (NSW), 20 October 1989, unrep) at 4-5, R v Baxter (Court of Criminal Appeal (NSW), 26 May 1994, unrep) at 11.

    9. R v PGM (2008) 187 A Crim R 152 at [31].

    10. R v KNL (2005) 154 A Crim R 268 at [42]-[43].

    11. R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 at [25].

27. With subjective factors, counsel referred to the psychologist’s report, again to the lack of planning, the unlikelihood of Mr Shackfield reoffending, his good prospects of rehabilitation, his remorse, his accepting responsibility for his actions and acknowledging the injury to the victim, his desire to help her, and the plea of guilty. All were said to indicate a level of insight about the offence.

28. Mr Shackfield’s plea and admissions indicate a willingness to facilitate the course of justice. ^[12]   Counsel referred to the admissions of Mr Shackfield made to his sister, to the police, to the victim’s father, to the complainant herself when confronted, to the extent of providing additional details of the offence and of telling his mother to “stop defending me I’ve done what I’ve done”, and the victim’s expressed relief at having confronted Mr Shackfield.  Although some of these matters were not the subject of evidence, when asked about them, none were disputed by the Crown.

    12. Cameron v The Queen (2002) 209 CLR 339.

29. Counsel disputed the Crown’s submission that the s 5 threshold, that imprisonment was the only appropriate penalty, was met. Counsel also referred to the substantial delay between the offence and prosecution, and to Mr Shackfield’s rehabilitation and absence of reoffending. ^[13]   Counsel recognised that delay of itself is not a mitigating factor^[14] but may be coupled with circumstances of rehabilitation, or the stress of uncertain suspense, that may result in a flexible approach and leniency. ^[15]   He submitted that rehabilitation may lessen the impact of general deterrence. ^[16]   Counsel reminded the Court of the requirement to have regard to the maximum sentence and level of sentences imposed at the date of the offence. ^[17]

    13. AJB v R (2007) 169 A Crim R 32 at [29]-[30], Kutchera v R [2007] NSWCCA 121 at [27]-[28], Wright v R [2008] NSWCCA 91 at [14].

    14. R v Donald [2013] NSWCCA 238 at [49].

    15. R v (1998) 99 A Crim R 297, Mill v The Queen (1988) 166 CLR 59 at [66].

    16. RH v R [2009] NSWCCA 161 at [32].

    17. R v PLV (2001) 51 NSWLR 736 at [94].

30. Finally, counsel asked the Court to find special circumstances in the event that a penalty of full-time custody is involved because of it being Mr Shackfield’s first custodial sentence, the need for supervision “to reintegrate back into the community” and the psychologist’s recommendations regarding treatment.

31. In sentencing for sexual offences against children, the Court recognises the abhorrence with which the community regards the sexual molestation of young children.  General deterrence is of great importance, especially when the offender is in a position of trust.  The protection of young children from sexual attack requires severe punishment, both for the offender and to deter others from such conduct.  There has been an increased recognition about the long‑term adverse effects of child sexual abuse, which has brought about increased penalties for these offences.

32. Sentencing patterns for the offence have become more severe since the time of the offence.  The Court must take into account the sentencing practices as at the date of the commission of the offence where sentencing practice has moved adversely to the offender. ^[18]   Because of the absence of statistics of sentencing as at that time, it is important to determine sentence principally on the objective seriousness of the offence by reference principally to the nature of the offending conduct viewed against the maximum penalty prescribed, even after taking into account features such as individual and general deterrence.  This involves sentencing the offender “in accordance with the policy of the legislature current at the time of offending and consistently with the approach adopted by sentencing courts at that time”. ^[19]

    18. R v MJR (2002) 54 NSWLR 368, PWB v R [2011] NSWCCA 84 at [15].

    19. R v Roberts [2003] NSWCCA 309 at [20].

33. I have referred to the age of the victim and the position of trust Mr Shackfield occupied as an adult uncle.  Both of these matters are aggravating factors. 

34. When assessing objective seriousness, important factors are how the offences took place, over what period, with what degree of coercion, threats or pressure, and any immediate effect on the victim.  Relevantly, the offence lasted only a few seconds.  The event was opportunistic and not planned, although it may be that acts of indecency might commonly be of relatively short duration, even if not so short as this.  There were no threats or pressure, but Mr Shackfield did invite his niece to engage in the act, and his position of authority as her uncle added weight to that request.

35. The matters identified by the Crown indicate the gravity of the offence - involving a 5-year-old child kissing her uncle’s erect penis at his request. 

36. The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act:

“(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and the community.”

37. The evidence persuades me that the offender has established, by the long period of good behaviour since the offence, that he is at low risk of reoffending and in that respect is rehabilitated.  In my view, he needs no deterrence to not engage in the offence.  It follows that I accept that the community does not need protection from him.  I accept that he has recognised the wrongfulness of his conduct, the harm it has caused, and he desires to repair the harm.  His willingness to share further details of the offence and his plea was not only of assistance to the prosecution, but assisted others, in particular the victim, to understand what had happened and why. In these respects, the conduct of Mr Shackfield since the offence is exceptional, so it follows that I do not regard the punishment for this offence as needful to deter the offender, to protect the community from the offender, to promote the rehabilitation of the offender, or to make the offender accountable for his actions. 

37. However, there remains the considerations of adequate punishment for the offence, the need to deter others from such a crime, and to recognise the harm done to the victim and the community.

38. As to the harm to the victim, there was no victim impact statement, and the victim indicated an unwillingness to be at all involved in the matter.  However, it would be wrong to conclude from that that there was no substantial harm to the victim, and Mr Shackfield made no submissions to that effect.  To the contrary, he accepted the existence of harm and wanted to help.

39. I accept the Crown’s submission that the nature of the offence I have described, together with the age disparity between Mr Shackfield and his niece, places the offence in the middle of a wide range of acts of indecency.  It might have been higher but for the shortness of its duration and mitigating factors that I have mentioned, including the relatively young age of the offender and the opportunistic and unplanned nature of the offence.

40. I take into account the offender’s good character, both before and after the offence, and the other mitigating factors to which I have referred: his absence of any record of convictions; that he is unlikely to reoffend; that he has good prospects of rehabilitation; that his remorse is indicated by evidence of an acceptance of responsibility for his actions, an acknowledgement of the injury he has caused and his guilty plea; and that his full and detailed acknowledgment of his offence has assisted law enforcement authorities in circumstances where the victim no longer is involved in the matter. I do not regard s 21A(5A) of the Crimes (Sentencing Procedure) Act as having effect to extinguish good character as relevant in this case as Mr Shackfield’s good character was not of assistance with the commission of the offence. In accordance with s 21A(5AA), I do not take into account any level of self-induced intoxication of the offender.

41. One matter that arose in submissions was the impact of s 67 of the Crimes (Sentencing Procedure) Act, and, in particular, whether the offence is a “prescribed sexual offence” so that were imprisonment to be the only appropriate penalty under s 5, an intensive correction under s 67 would be unavailable.

42. Section 67 precludes the making of an intensive correction order for a prescribed sexual offence. Relevantly, a prescribed sexual offence includes:

“(a) an offence under Division 10 or 10A of Part 3 of the Crimes Act 1900, being -

(i) an offence the victim of which is a person under the age of 16 years”,

and “(g) an offence that, at the time it was committed, was a prescribed sexual offence within the meaning of this definition.”

44. It is plain that an offence under s 61E is not an offence under Div 10 of the Crimes Act 1900 because s 61E is repealed. But para (g) extends the meaning of the defined terms. It looks at whether at the time of the offence the meaning is satisfied. However, s 61E was never an offence under Div 10 of Pt 3. At the time of the offence, it was under Div 9. As being under Div 10 is relevantly part of the definition of a prescribed sexual offence, it follows that an offence under s 61E is not and was not at the time of the offence “a prescribed sexual offence within the meaning of this definition”. Notably, the reference in the definition to a person under 16 years of age is a necessary but not sufficient matter. Indeed, only Div 10 in the context of s 67(2)(a)(1) could give the offence a sexual character. Whether the presumption against retrospectivity has any application may be debatable, but the definition requires the additional requirement of an offence under Div 10.

45. In the result, I do not think that an intensive correction order is precluded by s 67 as a sentencing alternative. However, the policy reflected in s 67 of excluding sexual offences from intensive correction orders lessens the appropriateness of such an order in the present case.

46. Until the ambit of s 67 was raised, the submissions proceeded on the basis that an intensive correction order was unavailable. In that event, if imprisonment was the only appropriate penalty under s 5 of the Crimes (Sentencing Procedure) Act, then a sentence of imprisonment must be imposed. And in the event that the threshold in s 5 was not reached, then a sentence of imprisonment is not appropriate, and a community correction order would be considered.

47. Counsel for Mr Shackfield submitted that short prison sentences are recognised as not having favourable rehabilitation benefits.  That may be so, but rehabilitation is, for the reasons I have given, not the primary purpose of penalty in this case. Rather, the penalty in this case is for adequate punishment, denunciation of the offence, recognition of the harm to the child and the community, and general deterrence.

48. I also take into account that the plea ultimately accepted was one that could have been dealt with summarily, which may have impacted on the sentence imposed favourably to the offender. ^[20]  

    20. Bonwick v R [2010] NSWCCA 177 at [43]-[45].

49. It is imperative for a court to have regard to previous cases, not just to what was done but why it was done.  Like cases should be decided alike and different cases differently. ^[21]   The Court must be careful with comparative cases because of differences, but consideration in a broad way might provide some measure or guide.

    21. Hili v The Queen (2010) 242 CLR 520 at 9.

50. Most s 61E historical cases appear to involve offences against s 61E(1) or (1A), which is for indecent assaults, and most involve multiple offences. For a person under the age of 16 years, the maximum penalty for that offence was four or six years’ imprisonment, whereas offences under s 61E(2) had a lesser maximum penalty of two years’ imprisonment so are not really comparable.

51. In comparing the matter with the 2012 District Court decision referred to earlier, I note that it was not the subject of any decision by the Court of Criminal Appeal.  While in some respects the circumstances seem similar, the knowledge of and involvement of the child in this case, which would increase the child’s memory of the event, and the harm to the child, I think makes this offence more serious.  Further, one must be cautious in referring to one case only and whilst I consider it, I do not use it as other than a broad guide.

52. Having considered all possible alternatives, I am of the view that the nature of this sexual offence with a young child means that no penalty other than imprisonment is appropriate.  The maximum term of two years is a statutory guidepost for the penalty to be imposed.  Although the offence is in the mid-range level of objective seriousness, there are substantial subjective factors in favour of Mr Shackfield that indicate that the sentence should be substantially below the maximum.

53. I find special circumstances because this is the first occasion of a custodial sentence, and Mr Shackfield’s psychological condition and need for treatment may make prison more burdensome.

54. Mr Shackfield, would you please stand.

55. Mr Shackfield, you are convicted of the offence of committing an act of indecency with a child under the age of 16 years.  I  impose a term of imprisonment of nine months with a non‑parole period of six months.  The term of imprisonment will commence today and end on 12 December 2020.  The non-parole period will conclude on 12 September 2020.

**********

Endnotes

Decision last updated: 28 September 2022