R v Wingate

[2022] NSWDC 184

District Court

New South Wales

Medium Neutral Citation:

R v Wingate [2022] NSWDC 184

Hearing dates:

25/10/21-10/11/21, 16/12/21, 25/2/22, 18/3/22

Date of orders:

18/3/22

Decision date:

18 March 2022

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to an aggregate term of imprisonment of 4 years 2 months with a NPP of 2 years 9 months (16/12/20-15/9/23).

The indicative sentences for each of the three counts are 3 years 2 months.

Catchwords:

Crime – Sentence – Commit act of indecency while outside Australia on a person under the age of 16 years

Legislation Cited:

Crimes Act 1914

Cases Cited:

Assheton [2002] WASCA 209

Lee v The Queen [2000] WASCA 73

Merrill v DPP [2018] VSCA 62

R v GP [2010] NSWDC 300

R v ONA [2009] VSCA 146

R v Vanderzyden [2012] QCA 89

Sage v The Queen [2007] NSWCCA 224

Salman v Commonwealth DPP [2011] NSWCCA 192

Weininger v R [2003] 212 CLR 629

Category:

Sentence

Parties:

Commonwealth DPP – Crown
Robert George Wingate - Offender

Representation:

Counsel:
Ms L Barnes for Crown
Mr A Norrie for Offender

File Number(s):

2020/297191

Publication restriction:

Non-publication order in relation to the identity of the complainant

sentence

1. The offender, Robert Wingate, is for sentence in relation to three offences under s 50BC(1)(a) of the Crimes Act 1914, being offences of committing an act of indecency while outside Australia on a person under the age of 16 years. The maximum penalty for each of those offences is 12 years’ imprisonment. The maximum penalty is an important guidepost in the sentencing exercise, to which I have had regard.

2. Each of the offences occurred between about 27 February 2006 and 2 June 2006 in Iloilo City in the Philippines. The offender was found guilty of the offences by a jury following his trial, which concluded on 10 November 2021. The offender’s sentence hearing was initially set for 16 December 2021. However, the offender was sick with COVID‑19 at that time, and the hearing was adjourned to 25 February 2022, when I heard submissions.

FACTS

3. As the jury’s verdicts do not specify the facts found by them, it is for me to determine the facts but to do so in a manner which is consistent with the jury’s verdicts. Matters in aggravation must be proved beyond reasonable doubt, while matters in mitigation need only be proved on the balance of probabilities. The Crown has provided a proposed facts on sentence document which was the subject of some submissions during the sentence hearing. Some of the proposed facts are agreed, while others are not. Having taken into account the submissions by both the Crown and the defence, I find the following facts.

4. During 2005, the offender, who was living in Australia, began communicating with the mother of the victim, who lived in the Philippines. During the communications, which were mostly via webcam, the offender met some of her children, including the victim. At the time that the offender met the victim via webcam, she was 12 years of age.

5. On 27 February 2006, the offender travelled to the Philippines, where he met the mother in person, after which they travelled to the family home in Iloilo City. Thereafter, they commenced an intimate relationship, and on 27 April 2006, the offender and the mother married. After his arrival in the Philippines, the offender lived with the mother and her children in the mother’s apartment in Iloilo City. The apartment consisted of two bedrooms, a kitchenette and a bathroom. There was also a verandah area at the front of the unit, adjoining the first bedroom, and a gate which led to the street.

6. The three offences occurred sometime after the offender’s arrival at the apartment on 2 June 2006, and each involve a similar type of sexual touching. The victim gave evidence that the three offences that are the subject of the indictment were not the only times that she was touched inappropriately by the offender. This evidence was admitted to provide context to the victim’s evidence, and I do not treat it as part of the offending behaviour or as an aggravating feature.

7. Count 1, which was the first occasion that the victim could recall, occurred when she was called into her mother’s bedroom, and the offender told the victim to remove her top, so that he could examine her. After the victim removed her top, the offender examined her neck, breast and stomach areas and also touched her back. The offender touched the victim’s chest and her breasts, using two hands to squeeze her breasts. This “examination” occurred in the presence of the victim’s mother.

8. The second specific occasion which the victim could recall is the subject of count 2. It occurred within about a week of the first offence. On this occasion, the victim was again called into the bedroom, where the offender and the victim’s mother were located. The offender then “did the same thing” as he had done on the previous occasion, touching the victim on the neck and shoulders and then touching her upper chest, breasts and back. The victim’s mother was again present during this examination.

9. The third examination that the victim would recall happened about a week later. On this occasion, the offender again called the victim into the bedroom, where her mother was also present. The offender again said he wanted to check if the victim’s “tits” were getting bigger and told her to take off her top. The offender then examined the victim’s breast area by touching her on both of her breasts.

10. Each of the three examinations that are the subject of counts 1, 2 and 3 took place over a period of about five to ten minutes, and on each occasion, the examinations occurred after the offender told the victim and her mother that the victim’s “tits” were not growing normally. Each of the examinations were carried out without protest from the victim or her mother, due to the offender’s representations to them that he had some form of medical expertise and was checking the victim’s breasts for abnormalities.

11. Although the offender and the mother continued to cohabitate for a period of time, their relationship eventually deteriorated, and the couple separated. Subsequently, the offender returned to Australia. In 2018, the victim and her mother were contacted by Australian police, and officers subsequently travelled to the Philippines, where they interviewed the victim and her mother, who complained of the three incidents that make up the three offences in the indictment. Those are the facts upon which I proceed to sentence.

OBJECTIVE SERIOUSNESS

12. Turning then to the objective seriousness of the offences. the objective seriousness, firstly, is marked by the significant maximum periods of imprisonment that are specified by Parliament. Sexual offences committed against children have been treated very seriously by the Courts of this country for some decades, given the prevalence of such offences and the significant harm that usually results from them.

13. The particular offences before the Court were created to address concerns about sexual offences against children being committed overseas by Australians. As was stated when those offences were introduced into Parliament, they were intended to provide a real deterrent to what was perceived as a growing problem of Australian residents and citizens sexually exploiting children in vulnerable circumstances in overseas countries. Given these purposes and the prevalence of and harm caused by sexual offences against children, deterrence, both general and personal, are very important considerations in sentencing for such offences.

14. In relation to the non‑exhaustive list of matters set out in s 16A(2) of the Commonwealth Crimes Act 1914, I make the following observations and findings in relation to those paragraphs that are relevant.

15. As to the nature and circumstances of the offences, they involved a 13‑year‑old child. An unusual aspect of the offences is that they occurred in the presence of the child’s mother. It was submitted by the Crown that this occurred as a result of the offender representing himself to the mother and the victim as a doctor, an allegation which the offender continues to deny. However, evidence was given by both the victim and her mother to the effect that the offender did tell them that he was a doctor and that he wanted to conduct the examinations of the victim’s breasts to check if she was developing properly or whether there was an abnormality, such as a lump or mass.

16. Having regard to this evidence, I am satisfied beyond reasonable doubt that the offender did represent himself to the victim and her mother as having some form of medical qualifications or experience, and that this provides an explanation as to how the “examinations” of the victim’s breasts took place without protest at that time from the victim or her mother.

17. Each of the offences involved skin on skin contact with the victim’s exposed breasts over a reasonably significant period of five to ten minutes. It did not however involve any touching of her genital or anal area, nor did the offences involve any physical harm or physical cruelty beyond that inherent in the offences. The Crown submitted that the offences were both pre‑planned and opportunistic.

18. In my view, the offences are more appropriately treated as opportunistic rather than planned, although there was a degree of planning involved in the false representation that the offender had some type of medical knowledge and that the examinations of the victim’s breasts was being carried out for a legitimate purpose.

19. However, there is also the fact that, as I have found beyond reasonable doubt, the offender told the victim and her mother that she was not developing normally and MAY have some medical problem which does point to some small degree of planning.

20. Under s 16A(2)(c), the Crown argued that the offending involved a course of conduct and submitted that this went beyond the three discrete offences on the indictment and included the frequent occasions on which the victim said the offender would examine and touch her breasts. In my view, it would be an error for me to treat any additional examinations beyond the three on the indictment as being part of a course of conduct. That is because the evidence of these additional examinations was admitted to provide context to the evidence from the victim and not to aggravate the offending or to provide other instances of offending for which the offender is to be punished.

21. However, and as the Crown ultimately accepted in oral submissions, it is open to me to use the additional examinations as demonstrating that the three offences on the indictment were not isolated lapses, in otherwise appropriate conduct: Weininger v R [2003] 212 CLR 629. It is on this basis therefore that I have had regard to the evidence of “other examinations”.

22. The fact however that there are three offences which all involve the same kind of criminal conduct does mean that there was a course of conduct in the offending to which I have had regard. In doing so, however, I have taken care to ensure that this aspect is not double‑counted, given that the offender is to be sentenced for the three individual offences for which he has been found guilty.

23. Paragraph (d) of s 16A(2) requires me to take into account the personal circumstances of the victim. Somewhat similarly, s 50FD(1) of the Crimes Act 1914 requires that I take into account the age and maturity of the victim which are obviously matters that must always be taken into account in any sentencing exercise.

24. As already noted, the victim was 13 years of age at the time of the offences and living with her mother and other family members in the Philippines. While the victim was young, her age, at 13 years, was approaching the upper age range for an offence under s 50BC(1)(a). As far as I can determine it, her maturity at the time seems to have been fairly normal for a girl of her age although the circumstances of the offences suggests a level of naivety in both the victim and her mother which the offender exploited.

25. Paragraph (e) refers to any injury, loss or damage resulting from the offences. In this regard, I have no hesitation in concluding that the offences have had an adverse impact psychologically on the victim and have created a sense of violation that is likely to remain with her for a long time. This conclusion is consistent with the harm that could ordinarily be expected to flow from the commission of a sexual offence upon a child.

26. Paragraph (ea) of s 16A(2) requires that if a victim has suffered harm from the offence, that I have regard to any victim impact statement for the victim. In this regard, a victim impact statement from the victim was tendered and read to the Court. The victim, who is now aged 29, in her statement describes how she has been impacted psychologically by persistent memories and feelings including sadness, depression and frustration. Also that she feels fear whenever she meets someone who is Australian. As the victim impact statement is not evidence that was tested on oath, I approach it with caution. However, there is an assumption of harm that arises from offences like these and it seems to me that the harmful impacts described by the victim in her statement are consistent with the sort of harm that Courts have regularly accepted to be associated with offences against children of this kind. I accept therefore that harm of the type described by the victim has occurred in this case. When I say “harm” as described by the victim, I am referring to the persistent memories, feelings of sadness, depression and frustration to which I have already made reference.

27. Although leave was given by me for a victim impact statement to be provided and read to the Court on behalf of the victim’s mother, the contents of that statement go well beyond, and do not add to my assessment of the effects on the victim herself, so I have not taken the contents of that victim impact statement into account in my assessment of the harm suffered by the victim herself or my assessment of the objective seriousness of the offences.

28. For the purposes of s 16A(2)(j) and (ja) which refer to personal and general deterrence, I have already observed that these are very important considerations to which I have had regard.

29. Also the offences were carried out in the family home where the victim should have been safe from predatory conduct of this nature. The fact that the offences were committed in the home is a matter that makes it more likely that the victim will be left with a lasting sense of violation.

30. The Crown in written submissions sought to rely also upon s 16A(2)(ma) and argued that the offender used his “standing in the community” to aid in the commission of the offences and pointed to the suggested representation by the offender to having been a former police officer and a doctor. In my view, that provision is not enlivened in this case. Section 16A(2)(ma) is aimed in my opinion at a situation where an offender uses their actual standing in the community rather than a situation as in this case where an offender is alleged to have made false claims to some such “standing”. In oral submissions, I understood the Crown ultimately to accept this position.

31. I am conscious of the fact that part 3A of the Crimes Act 1914 which includes s 50BC, were introduced to address the problem of Australian citizens and residents engaging in the disgusting practice known as “child sex tourism” involving the exploitation of children, frequently those living in impoverished circumstances in poorer countries.

32. There does arise suspicion in this case, given that the offender has a demonstrated sexual interest in children, that he may have intentionally set out to gain access to the victim by entering into the relationship with her mother. However, I am unable to reach this conclusion beyond reasonable doubt and so I discard that suggestion.

33. Rather, I approach the offences on the basis that they took place in what was then a familial relationship where the offender was in a position akin to that of a stepfather, who convinced the victim and her mother that the examinations of the victim’s breasts were required for a medical purpose. It seems to me therefore that the offences before the Court cannot be regarded as typical of the type of offending contemplated by the provisions of s 50BC and discussed in in cases like Merrill v DPP [2018] VSCA 62. There was no money or other inducement involved, and it was not an exploitation of the victim in the sense of her being preyed upon due to impoverished circumstances.

34. In making these observations I do not suggest that it is an element or other pre-condition for an offence under s 50BC for there to be any inducement such as monetary payment. Nonetheless, the offences did involve exploitation of a kind, namely an exploitation of the naivety of the victim and her mother and of the trust that the offender had at that time established with them.

35. The fact that this is not a “typical” child sex tourism case does not reduce its seriousness, however, but it does make it somewhat different from many of the sentencing decisions involving s 50BC offences to which I was taken by the parties and to which I have regard. ‘

36. It was argued by the Crown that the objective seriousness of each of the three offences was below but towards the mid-range of seriousness while counsel for the offender argued that they fall below the mid-range which is not markedly different to the position taken by the Crown. Having considered the various matters relevant to objective seriousness of the offences before Court, I assess each of them as being slightly below the middle of the range.

SUBJECTIVE MATTERS

37. Turning to subjective matters, the offender is now 71 years of age and was 55 years old at the time of the offences. He has a number of longstanding medical conditions, including diabetes, arthritis, hearing loss and problems with his vision including cataracts. He also has a history of cardiovascular problems which led to primary bypass surgery in December 2020, and in the work-up for that operation it was also discovered that he had a tumour on his lung, and a right-upper lobectomy was performed removing part of his right lung in January 2021. A chest CT examination performed in August 2021, however, showed no evidence of any re-occurrence in his lung disease.

38. He is on multiple medications including insulin for diabetes and suffers from some shortness of breath, and pain associated with arthritis and has significantly reduced mobility. In short, he is not a well man, and his condition is likely to slowly deteriorate. His medical conditions and his age, has and will continue to make his time in custody more difficult than for a younger and healthier man.

39. The offender at the time of these offences had a fairly, limited criminal history. The most relevant and serious matters now on his record are the 2014 offences of indecent assault and sexual intercourse involving his granddaughter which were of course not committed until after the offences now before the Court.

REMORSE AND REHABILITATION

40. Turning to questions of remorse and prospects of rehabilitation. There is of course no remorse in this case given that the offender maintains his innocence. In terms of his prospects of rehabilitation and future risk, I make the following findings - firstly, there is the fact that in 2014, about eight years after the Philippines offences, the offender committed more serious offences in relation to his granddaughter. As is accepted on his behalf in oral submissions, this represented an escalation in his offending. There is also the fact, as is noted in the offender’s custodial history, that he has refused to be referred for assessment for sex offender treatment.

41. In addition, there is the contents of Exhibit 5 at trial, which involves a series of communications in 2013 which were extracted by police from the offender’s phone in 2014, which demonstrates a sexual interest in young girls. These matters and the convictions for offences against children, committed in 2014 and 2006 support the conclusion - in my view - that the offender remains a risk of further sexual offences against children, if given the opportunity.

40. In the absence of treatment, the only matters that ameliorate that risk are the offender’s advancing age, his deteriorating health, and perhaps his limited access to children. Nonetheless, he remains a risk given his demonstrated sexual interest in children, and I am unable to conclude that he has favourable prospects of rehabilitation. Given the well‑known possibilities of any offender having access to children in impoverished circumstances outside Australia either in person or by electronic means, the offender’s risks of future offending remains a concern.

41. I have taken into account that there was some degree of cooperation by the offender in relation to the conduct of his trial by agreeing to certain facts, such as the victim’s age and the offences and facts on which he was sentenced by Judge Buscombe in 2016. While I have taken these matters into account, they do not loom large in the sentencing exercise given the relative ease with which the Crown could have proven these matters absent agreement.

DELAY

44. There has been significant delay between the offences and the offender being brought to trial. However, this is a case where in the intervening period the offender committed other sexual offences against a child. This is not an aggravating factor, but it demonstrates that this is not a case like some in which an offender during a period of delay has not re-offended or has achieved some rehabilitation. Delay, in my view, is therefore not a matter of any real significance.

COVID

45. I have taken into account also that the offender’s period in custody to date has been and will continue for some time to be impacted by the COVID pandemic which has involved significant impact on inmates in terms of restricted access to medical and other services, reduced contact with the outside world, increased lockdowns and increased anxiety associated with the risk of contracting the disease which this offender in fact recently did.

DETERMINATION   

46. I am satisfied that no penalty other than imprisonment is appropriate for the offences before the Court.

47. In determining the appropriate sentence and its duration I have had regard to a number of cases to which I was taken by counsel, as well as statistics tendered on behalf of the offender. I am conscious, of course, of the limitation of statistics and especially those which have been provided in this case which involved only five cases. And while I have had regard to the various cases to which I was taken by the parties, I have done so having regard to the differences between those cases and the current one and accepting that those cases do not create a “range” within which such sentences must fall.

48. Of the cases to which I was taken by the Crown, there were significant differences between many of them and this case. In particular, in my view the decisions in Lee v The Queen [2000] WASCA 73, Sage v The Queen [2007] NSWCCA 224, and Assheton [2002] WASCA 209 all involve significantly more serious conduct and multiple offences. Similarly, the case of R v Vanderzyden [2012] QCA 89 - in which a Crown inadequacy appeal was dismissed in relation to a sentence that, in my respect or view, was very lenient - was a matter where there were multiple offences that were significantly more serious than the ones that I am dealing with.

49. Ultimately, and while acknowledging differences, I consider that the decision in Salman v Commonwealth DPP [2011] NSWCCA 192 to be of the greatest assistance. That was a case in which one of the offences was under s 50BC and involved the offender sucking on the breast of a 15-year-old girl while video recording the offence, which is somewhat more serious than the facts of the individual offences in this case. In that case, the majority - President Allsop and Button J - concluded that the four-year sentence imposed by the sentencing judge for that offence was manifestly excessive, and reduced it to three years, three months. That was, however, after allowing for a significant discount due to a plea of guilty, an advantage which Mr Wingate does not have.

50. I have also had regard to the decision in R v ONA [2009] VSCA 146 and also to the decision of Nicholson SC DCJ in R v GP [2010] NSWDC 300, although again, taking into account the differences in the facts and charges in those cases.

51. I intend to impose an aggregate sentence. As I have said, I am satisfied, having considered all available alternatives, that this the only appropriate outcome. Given that I am imposing an aggregate sentence, it is necessary for me to nominate the indicative sentences that I would have imposed had I not imposed an aggregate sentence.

52. Mr Wingate, these are what are called indicative sentences; they are not the ultimate sentence. The indicative sentences in relation to each case is a sentence of imprisonment of three years, two months.

TOTALITY

53. In determining the overall sentence and its commencement date, I have had regard to totality principles and also the question of the extent to which the sentences should be served concurrently or cumulatively. In my view there does need to be some accumulation given that three discrete offences were committed, each separated by some period of time. I therefore have applied some level of accumulation in determining the overall aggregate sentence. I impose an aggregate sentence of four years, two months.

54. I impose a non‑parole period of two years, nine months.

55. There is no need for me to find special circumstances in relation to the ratio between head sentence and non-parole period for a Commonwealth sentence such as this. However, I have set the non-parole period of about 66% of the head sentence given the offender's medical problems and age, which will render his custody more difficult, and also so as to allow a reasonable period of supervision once he is released on parole. As previously noted, the offender is currently subject to a ten-year head sentence with a seven-year non-parole period. Although the non-parole period expired on 21 April 2021, the head sentence does not expire until 21 April 2024.

56. As far as I am informed, his parole has not been revoked on that sentence. It was during that sentence and on 9 September 2020 that the offender was served with Court attendance notices charging him with the offences before the Court today. On 16 December 2020 a detention application was granted in relation to those offences. He has therefore since that date been in custody for the offences before the Court, while at the same time serving part of the non-parole period and head sentence of the term of imprisonment imposed by Judge Buscombe.

57. It was submitted for the offender that the sentence should be backdated fully to 16 December 2020, and I intend to adopt that course. The sentence therefore will date from 16 December 2020. The head sentence will expire on 15 February 2025, and the non-parole period will expire on 15 September 2023.

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Decision last updated: 30 May 2022