Regina v DWF19 (No 2)
[2019] NFSC 4
•8 October 2019
SUPREME COURT OF NORFOLK ISLAND
Regina v DWF19 (No 2) [2019] NFSC 4
File numbers: SCC 1 of 2019
SCC 2 of 2019Judge: RARES J Date of judgment: 8 October 2019 Catchwords: CRIMINAL LAW – where offender pleaded guilty to 1 count of committing an act of indecency on another person contrary to s 118(1) of the Criminal Code 2007 (NI) – where offender pleaded guilty to 13 counts of committing an act of indecency on, or in presence of, a person under 16 years of age contrary to s 119(2) of the Criminal Code 2007 (NI) – where offender pleaded guilty to 13 counts of engaging in sexual intercourse with a person under 16 years of age contrary to s 113(2) of the Criminal Code 2007 (NI) – where offender pleaded guilty to 3 counts of using a child under 12 years of age for the production of child pornography contrary to s 122(1)(a)(i) of the Criminal Code 2007 (NI) – where offender pleaded guilty to 1 count of using a child aged 12 years or older contrary to s 122(3) of the Criminal Code 2007 (NI)
CRIMINAL LAW – sentencing under s 5(2) of the Sentencing Act 2007 (NI) – consideration of extent to which offender’s good character can be taken into account after first offence – aggravating circumstances – offender’s position of trust and destruction of evidence – mitigating circumstances – where offender had no prior convictions – where offender pleaded guilty and relieved victims of having to give evidence
Legislation: Criminal Code 2007 (NI) ss 108, 113, 118, 119, 122
Sentencing Act 2007 (NI) ss 5, 142
Cases cited: Reg v DWF19 (No 1) [2019] NFSC 3
Veen v The Queen [No. 2] (1988) 164 CLR 465
Date of hearing: 7, 8 October 2019 Category: Catchwords Number of paragraphs: 65 Counsel for the Prosecution: Mr J Hunter QC with Ms S Cartledge Solicitor for the Prosecution: Commonwealth Director of Public Prosecutions Counsel for the Offender: Ms L Reece Solicitor for the Offender: McIntyres Lawyers ORDERS
SCC 1 of 2019 BETWEEN: REGINA
Prosecutor
AND: DWF19
Offender
JUDGE:
RARES J
DATE OF ORDER:
8 OCTOBER 2019
THE COURT ORDERS THAT:
1.Convictions be entered on each count in the indictment signed on 2 August 2019 and the offender be sentenced to the following terms of imprisonment:
(a)on count 30, commencing on 20 July 2018, 15 months imprisonment (6 months of which be served concurrently with the sentence imposed in proceeding No. SCC 2 of 2019);
(b)on count 1, commencing on 20 August 2018, 15 months imprisonment;
(c)on count 2, commencing on 20 September 2018, 15 months imprisonment;
(d)on count 3, commencing on 20 October 2018, 15 months imprisonment;
(e)on count 4, commencing on 20 July 2018, two years imprisonment;
(f)on count 5, commencing on 20 July 2018, three years and six months imprisonment;
(g)on count 6, commencing on 20 January 2019, three years and six months imprisonment;
(h)on count 7, commencing on 20 January 2019, four years and six months imprisonment;
(i)on count 8, commencing on 20 April 2019, three years and six months imprisonment;
(j)on each of counts 10, 11 and 12, commencing on 20 July 2018, three years imprisonment;
(k)on each of counts 17, 18, 19, 20, 21 and 22, commencing on 20 October 2018, seven years imprisonment;
(l)on each of counts 24, 25 and 26, commencing on 20 July 2018, seven years and six months imprisonment;
(m)on count 23, commencing on 20 July 2018, 10 years imprisonment;
(n)on count 13, commencing on 20 January 2026, three years imprisonment;
(o)on count 28, commencing on 20 July 2018, one years imprisonment;
(p)on count 9, commencing on 20 October 2025, four years imprisonment;
(q)on count 16, commencing on 20 April 2020, seven years imprisonment;
(r)on each of counts 14 and 15, commencing on 20 April 2020, ten years imprisonment;
(s)on count 27, commencing on 20 July 2026, four years imprisonment;
(t)on count 29, commencing on 20 October 2022, 8 years imprisonment;
2.The offender not be eligible for parole until 20 January 2026.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
SCC 2 of 2019 BETWEEN: REGINA
Prosecutor
AND: DWF19
Offender
JUDGE:
RARES J
DATE OF ORDER:
8 OCTOBER 2019
THE COURT ORDERS THAT:
1.A conviction be entered on count 1 in the indictment signed on 15 July 2019 and the offender be sentenced to six months imprisonment commencing on 20 July 2018.
THE COURT NOTES THAT:
2.The offender has been in custody on remand since 20 July 2018 and is taken to have served this sentence.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)RARES J:
DWF19 (the offender) stands charged on two indictments, the first, signed on 15 July 2019 (filed in proceeding 2 of 2019) (the first indictment), consisting of a single count that occurred in 2011, and the second, signed on 2 August 2019 (filed in proceeding 1 of 2019) (the second indictment), consisting of 30 counts that occurred in 2017 or 2018.
The indictments allege a total of 31 counts involving sexual and related offences committed against three young female complainants, whom I will call respectively “victim 1” who is named in the first indictment, and “victim 2” and “victim 3”, who are named in the second indictment. The offender indicated that he would plead guilty to all of the 31 counts as soon as the form of the indictments to be preferred against him by the Crown had been settled, which occurred on or about 26 July 2019. The offender entered pleas of guilty on all counts yesterday.
In Reg v DWF19 (No 1) [2019] NFSC 3, I explained why I considered that it was necessary in the interests of justice that:
(1)the offender was arraigned without the detailed particulars of the offending in each of counts 9 to 27 of the second indictment read out in open court;
(2)in these reasons for sentence, I should not refer to some of the detail of the offending against victim 3 but instead would refer here to the statement of facts, that is exhibit A, in which those details appeared; and
(3)the offender be identified by the pseudonym DWF19.
As I explained in my earlier reasons, the offender had a full copy of the second indictment with him when he was arraigned. My associate read each of counts 9 to 27 aloud to him but interpolated for the particulars in each of those counts the expression “the act particularised in the” numbered count of the indictment and the offender then pleaded guilty to that count.
I delivered those reasons that subsequently I have published separately in Reg v DWF19 (No 1) [2019] NFSC 3 as part of my reasons for sentence that I gave ex tempore. However, I consider that both those reasons and these for sentence should be published separately since the former may have some utility, as a precedent, as to the application of the principle of open justice in the Court and are not necessary to explain the sentences that I imposed. I have repeated below the introductory paragraphs from DWF19 (No 1) [2019] NFSC 3 at [3]-[9].
The indictments
The first occasion of offending occurred between 20 July 2011 and 20 October 2011 when the offender committed an act of indecency on victim 1, who was then 16 years of age, knowing that she did not consent, or being reckless as to whether she consented or not, contrary to s 118(1) of the Criminal Code 2007 (NI). That count is the subject of the first indictment and carries a maximum penalty of five years imprisonment.
The remaining 30 counts are in the second indictment. Count 30 involves conduct that occurred on a date between 1 September 2017 and 2 July 2018, when the offender used victim 2, who was then under 16 years of age, for the production of child pornography, contrary to s 122(3) of the Code. That count carried a maximum penalty of 10 years imprisonment and or 1,000 penalty units.
The remainder of the 29 counts involved victim 3, who, at the relevant times, was a child of 10 years of age and, therefore, under the age of 12. She was subjected to 13 acts of indecency, contrary to s 119(2) of the Code, that each carried a maximum penalty of 10 years imprisonment; 13 acts of sexual intercourse, contrary to s 113(2) of the Code, that each carried a maximum penalty of 14 years imprisonment; and, three uses of her for the production of child pornography contrary to s 122(1)(a)(i) of the Code, that each carried a maximum penalty of 15 years imprisonment and or 1,500 penalty units.
Relevantly, s 108 of the Code defines the expression “sexual intercourse” as follows:
108 Meaning of sexual intercourse in Part 3.2
In this Part:
sexual intercourse means—
(a) the penetration, to any extent, of the vagina or anus of a person by any part of the body of another person, except if that penetration is carried out for a proper medical purpose or is otherwise authorised by law; or
(b) the penetration, to any extent, of the vagina or anus of a person by an object, being penetration carried out by another person, except if that penetration is carried out for a proper medical purpose or is otherwise authorised by law; or
(c) the introduction of any part of the penis of a person into the mouth of another person; or
(d) cunnilingus; or
(e) the continuation of sexual intercourse as defined in paragraph (a), (b), (c) or (d).
Because of the definition of “sexual intercourse”, the offending against victim 3 as described in indictment 2 could comprehend a broad range of sexual acts that fall within that definition. For the purposes of these reasons, as I will explain, it is not desirable to identify which particular variant of that definition was the sexual intercourse in any of the 13 counts to which the offender has pleaded guilty.
The law recognises that any form of sexual intercourse, as defined, by an adult of the offender’s age, of about 53 or 54 at the time of the offending against victims 2 and 3, with a child under the age of 12, is a repulsive and despicable act. Such conduct is calculated to cause significant psychological harm to that child that will last probably for his or her life, as well as to cause significant psychological and emotional harm to those who love and care for him or her, and is likely to affect them and their immediate families.
The circumstances of the offending
As I have explained above, the offender acknowledged his guilt by his pleas in respect of each of 31 individual counts in the first and second indictments. Each victim has made a victim impact statement, as have the parents of victim 3, that I have considered in accordance with s 142(4) of the Sentencing Act 2007 (NI) in arriving at the sentences that I will impose.
The offending falls into eight broad categories:
(1)one act of indecency involving victim 1 (being the only count in the first indictment);
(2)count 30 in the second indictment involving the use of victim 2 in the production of child pornography;
(3)counts 1 to 8 occurred over a period of time, involving eight separate acts of indecency involving victim 3;
(4)the three acts of indecency in counts 10, 11 and 12, together with the six acts of sexual intercourse in counts 17, 18, 19, 20, 21 and 22 that the offender captured on an undated video (“Pict0017”) lasting six minutes and 37 seconds, which video itself amounted to the use of victim 3, being a child, for the production of child pornography, that formed part of the offending in count 29;
(5)the four acts of sexual intercourse involving victim 3 in counts 23, 24, 25 and 26 captured on an undated video (“Pict0018”) lasting three minutes and 23 seconds, which video itself amounted to the use of victim 3 for the production of child pornography that also formed part of the offending in count 29;
(6)the act of indecency in count 13 captured on an undated video (“Pict0024”) lasting one minute and 13 seconds, which video itself amounted to the use of victim 3 for the production of child pornography forming the balance of the offending in count 29;
(7)count 28, being the use of victim 3 in six photographs of her taken on 29 June 2018 for the production of child pornography;
(8)the act of indecency in count 9 and the three acts of sexual intercourse in counts 14, 15 and 16 that all occurred between 19 and 20 July 2018, captured in four photographs being photographs that themselves amounted to the use of victim 3 in the production of child pornography being the subject of count 27.
The circumstances of the offending involving victim 1
Between 20 July 2011 and 20 October 2011, victim 1 was 16 years old. She was learning to drive when you were then aged 47. She was not related to you or your wife, but she shared, with her family, a very close relationship with your wife, yourself and your family. On this occasion, you were seated next to her in the passenger seat of the car. Victim 1 was driving the car on New Farm Road when she moved her left hand to her lap. You said to her, “If you’re going to put your hand on someone’s crotch, then put it on mine”. You then took her left hand and placed it on the inside of your upper thigh. Victim 1 pulled her hand away. Until that point of time, she had trusted you and looked on you, as you knew, as a close member of her family. Although you now acknowledge, by your guilty plea, that you did commit this crime of an act of indecency against victim 1, you denied that you had done so at the time in 2011 when she complained about it.
As you heard yesterday, when victim 1 bravely read her victim impact statement out in Court, your offending and subsequent denial that it had occurred, have affected her deeply. Indeed, at the time of your offending, she was a vulnerable and trusting adolescent and you, for your own perverse gratification, violated her trust in you as a close family friend, by the act of indecency that belatedly you have admitted, after over six years of denial.
When you were interviewed for a pre‑sentence report last month, you told the interviewing officer that your three victims “haven’t spoken to my daughter so that tells me all I need to know”. That response appeared to be callous and showed a complete lack of insight and remorse about your criminal behaviour.
Your counsel explained today that you seek now to express remorse based on what you saw and heard in Court yesterday, and I will return to that in due course.
I have taken into account, in considering the appropriate sentence for the count involving victim 1, that at the time of that offending, you had no criminal history and that remained the case, despite you denying this had occurred, until you indicated, earlier this year, that you would be pleading guilty to all counts.
However, as your guilty plea acknowledged, your criminal history began with your offending in 2011. I can and do take this into account in sentencing you on the remaining 30 counts that occurred about six or more years later: Veen v The Queen [No. 2] (1988) 164 CLR 465 at 477‑478, per Mason CJ, Brennan, Dawson and Toohey JJ. Your criminal conduct towards victim 1 illuminated your moral culpability and your dangerous propensity to commit the later 30 offences. It also showed, as their Honours explained (164 CLR at 477):
... a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.
Your offending conduct against victim 1 on this occasion did not appear to have been premeditated and was relatively brief. Nonetheless, the betrayal of trust and disregard of the vulnerability of victim 1, as a sensitive youth, could be expected by a person in your position and of your then age to have had an emotional and psychological impact on her of a kind that she came to reveal so graphically yesterday, in giving her victim impact statement.
The circumstances of the offending involving victim 2
The offence involving victim 2 occurred when you were aged between 53 and 54 on an unknown day between 1 September 2017 and 2 July 2018 when she was then 15 years of age. You secreted your USB camera in the bathroom in your home knowing that children, such as victim 3, and other young adolescents, such as victim 2, regularly stayed with you and your wife overnight in your home, effectively as members of your family, on the basis that your and their families all believed that, mistakenly, you, as a responsible adult, would look after these young people appropriately.
The evidence did not reveal that you set the camera up knowing that it would capture victim 2 specifically as the object of this aspect of your perverse sexual interest in young females. What is clear is that you kept the footage on the secreted USB camera’s SD card. That card recorded victim 2 in your home’s bathroom gradually undressing until she was naked, showering and then drying herself and dressing again. This violated victim 2’s privacy and used her for your own sexual gratification in producing child pornography.
Your secrecy in hiding the camera, knowing that victim 2 or another child or young person who visited your home to stay there would shower in the bathroom, showed that, first, what you did was premeditated and, secondly, to your knowledge, wrong because it violated the trust and privacy of the victim. That is why you had to hide the camera. Again, you have shown, until today, no indication of insight into, or remorse for, that criminal conduct. The offending reflected your moral culpability which your earlier offence against victim 1 exhibited.
And, your offending has had a profound emotional and psychological impact on victim 2 and her family, the effect of which has been to undermine her trust in others, particularly persons such as yourself in a position of a member of her family in close relationship with her and her parents. She was so devastated when she learned of your betrayal of her youthful innocence that her physical and mental health suffered considerably. She lost a significant amount of weight, and she and her family have had to leave Norfolk Island, as she explained in her victim impact statement.
The circumstances of the offending involving victim 3
At the time of your offending, victim 3 was a 10 year old child when you were a 53 or 54 year old man. You were in a position of trust in relation to her and her family and she was in a close familial living relationship with you and your wife, which placed her frequently in your home where she would often sleep overnight. She ought to have had every reason to trust and look up to you. She spent considerable time alone with you in your shed at your home where you followed hobbies and activities associated with your trade qualifications as a mechanic.
Over a period beginning in about early February 2018 you began grooming victim 3. The explicit detail of the acts of indecency contained in counts 1 to 8, which you have admitted, are set out in exhibit A. You began by playing to victim 3, or in front of her, pornographic recordings on your phone, a computer and a disc, the subject of counts 1, 2 and 3. You used those acts of indecency to introduce this child to recordings of vision of explicit adult sexual activity of the kind you intended over time to perpetrate yourself on her. You used the acts of indecency in counts 1 to 3 to condition victim 3 to become more vulnerable and amenable to your purpose, and exploit her childlike trust and faith in you later for your own selfish and perverted gratification.
On another occasion you committed the act of indecency in count 4 in front of her. That act was a further preparation of your victim for your later behaviour towards her.
Your next steps were the acts of indecency in counts 5 to 8. During the period between February 2018 and your arrest on 20 July 2018, you drugged victim 3 on several occasions with the powerful sedative, zopiclone. That was a prescription medicine that had been prescribed for your wife. You began to use zopiclone on victim 3 to render her effectively in a deep sleep so that she would be unconscious when your offending sexual behaviours became progressively more and more extreme, as reflected in the approximate chronology of the categories of your offending in relation to her outlined in [13](3) to (8) above.
I infer beyond reasonable doubt that the act of indecency in count 7 reflected your first experiment with the use of zopiclone on victim 3. The statement of facts in exhibit A showed that you set out, on that occasion, to test the drug’s effect and whether you had given her the necessary dosage to render her senseless to the sexual activity that, by then, you had determined to pursue, with her in a helpless state.
In respect of counts 10 to 12 and 17 to 22, your offending progressed beyond engaging simply in acts of indecency toward victim 3 and involved you engaging in various acts of sexual intercourse with her after you had drugged her with zopiclone intending her to be senseless of what you were doing. This is evidenced in the pornographic video of offending in these 9 counts that you made, which lasts for over six and a half minutes (that is known as “Pict0017”).
Your conduct on this occasion involved you subjecting the unconscious child to the disgusting and invasive three acts of indecency, and to six different acts of sexual intercourse, all of which are described in detail in exhibit A. You filmed all of that conduct intending, no doubt, that you could receive further perverted gratification by viewing how you had violated the innocence of victim 3 and treated her as a mere object, and not a human being, with whom you should have been in a loving and trusting relationship.
You also betrayed the trust that both victim 3 and her family, of which you were a member, had placed in you to care for her. I have approached sentencing you for this episode of offending as one that constitutes a single course of conduct.
Next, I come to counts 23 to 26, which are probably the most shocking of all your offending. Having established, when you committed your earlier offences, that you had succeeded in administering a sufficient dose of zopiclone to enable you to use victim 3 as a defenceless and unconscious child in whatever perversion you wished, you next filmed for nearly three and a half minutes, the evidence of your offending the subject of counts 23 to 26 (in the video “Pict0018”). This offending is more fully described in exhibit A.
Once again, the offending included the filming of it. I have considered this episode of offending as being part of a single course of conduct. It is also a further gross violation of victim 3, and her and her family’s trust in you.
Next, on a later occasion, as asserted in count 13, you also filmed, in “Pict0024” the most extreme of your acts of indecency the subject of the charges you have admitted. That act is described in exhibit A. It occurred after you again had drugged victim 3 so as to enable you to carry out this further violation of her.
Count 28 occurred on 29 June 2018 when you took six photographs of victim 3 that were later found on your mobile phone. This was a use of her for the production of child pornography. From the description of those photographs in exhibit A and the appearance of victim 3 in them, I infer you took those as well after you had drugged her.
Your last offending, that is the subject of counts 9, 14, 15, 16 and 27, occurred on the night of 19 to 20 July 2018. You recorded that offending in the four photographs, the subject of count 27, that you took of your activity. On that night you again drugged victim 3, who was staying overnight in your care in your home with her two siblings. The offending is described in exhibit A and comprised one act of indecency (in count 9), two very serious acts of you engaging in sexual intercourse (in counts 14 and 15) and a further act of sexual intercourse in (count 16). You photographed each of those acts using victim 3 for the production of child pornography. Once again, I have treated these offences as constituting a single course of conduct.
The circumstances of the offender’s arrest
On 20 July 2018, you went to work but realised you had left your mobile phone at home. You called your home on the landline and victim 3 answered the call. You asked her if your wife was home and she replied that your wife was not, but she would take a message. You asked victim 3 to get your wife to bring your mobile phone to work.
Victim 3 found the phone, which she knew you ordinarily carried with you all the time, and, with what I infer was ordinary childlike curiosity, she swiped it open. It opened because it did not have a passcode. Victim 3 opened the camera or photograph application and came upon the three photographs of herself asleep that recorded your offending the night before, the subject of counts 14, 15 and 16. This would have been an horrific experience for the child.
She showed the photos to your wife on her return, who immediately recognised, first, victim 3’s face, which was visible in the photographs and, secondly, a distinct physical mark on your body that identified you as the perpetrator of the acts of sexual intercourse recorded in the two photographs evidencing counts 14 and 15.
Your wife then sent victim 3 with the child’s mother, so that she could be left at a school holiday care facility, and called you. She asked you to come home because she said there were some things on your phone that she needed to talk to you about.
On your arrival your wife said that, you needed to talk to victim 3’s mother who was on her way to your home. However, while she called the police, your wife left your phone in your presence. When she did so, you took the opportunity to delete the incriminating photographs before victim 3’s mother returned to your home. In the meantime, while the mother conveyed victim 3 to the care program, her daughter told her mother about what she had seen on your phone.
Victim 3’s mother later drove you to the police station. During the drive, you told her that you knew that what you did was wrong and that was why you had deleted the photos. You promised that you would leave the island if she did not take you to the police.
After your arrest, victim 3’s mother also handed the police your backpack in which they subsequently found a USB‑style camera. That was 7cm long and 2cm wide, with a small lens at one end and a mini USB cable at the other. The camera contained an SD card that had the four videos and six photographs the subject of counts 28 to 30. The police forensics officers also recovered the deleted photographs from the phone the subject of count 27.
The offender’s submissions
Today, your counsel said that you had not understood that, objectively, the behaviour that comprised your offending was something you had done in the sense that you could not recognise that you actually had behaved in that way. She submitted this was also the sense in which you had expressed your understanding of, or perhaps more correctly your inability to understand, the gravity of what you had done when you discussed matters with the pre‑sentence report author. Your counsel told me that, after seeing and hearing the three victim impact statements that each of victim 1 and victim 3’s parents gave orally in Court yesterday, you also felt disgusted with yourself, but you felt you could not take back what you had done. You told your counsel there was nothing you could do to make things right and repeated in disbelief that you were really the person whose acts of offending had been described in Court yesterday.
Your counsel also relied on the facts that, throughout the committal process, you had never sought to have any of the victims or other potential witnesses cross‑examined, and you had admitted your guilt of the sole count in respect of victim 1 and counts 1 to 8 in respect of victim 3, when the proof of each of those counts at a contested trial would have depended on each of those victims giving evidence of what had occurred, since there was no other person present beside yourself.
Your counsel said that you revealed to her, but had earlier been unable to reveal to the author of the pre‑sentence report, a recurring dream that you have that related to you having been abused as a child by a stranger at your home. She said that this was an event that you had difficulty even describing to her.
Consideration
In accordance with s 5(2) of the Sentencing Act, I have had regard to the maximum penalty for each offence, the nature of each offence, its seriousness and the psychological and emotional impact you caused each of victims 1, 2 and 3 by committing your respective offences relating to each of them. I have also had regard to the purposes for sentencing in s 5(1), the requirements of s 119(1) of that Act (see DWF19 (No 1) [2019] NFSC 3 at [38]-[39]) and the maximum penalties for each offence (see [5]-[8] above: s 5(2)(a)).
You are entirely to blame for each offence. The victims had no responsibility whatsoever for what you did to them. Nobody in this community should have any thought that your victims or their family members have the slightest responsibility for what you did to these young girls (s 5(2)(d)).
Your offending has scarred each of those young persons emotionally and psychologically. You have destroyed, for life, their innocence and their trust in others. Persons who commit acts of paedophilia harm their victims forever. That is because their victims have to live with the consequences of those acts. The rest of their lives is profoundly and badly affected by the acts, to a degree to which you were entirely senseless, when you offended (s 5(2)(e)).
You committed your first offence against victim 1 in the second half of 2011 soon after your return to Norfolk Island. You were a person of good character before your first offending against victim 1 when you were 47. You have no apparent or other disclosed intellectual disability to understand the nature of what you did. You appear to have had full intellectual capacity at all times. Moreover, you told victim 3’s mother on the way to the police station that you knew that what you did was wrong. I have given some weight to your good character in imposing a sentence in respect of the offence of victim 1 (s 5(2)(f)).
As I have explained, in describing each offence or category of offending above, there are aggravating factors to that offending. That is because of your breaches of your position of trust in relation to each victim and your use of the occasions on which you were trusted to look after them or be with them to your perverse advantage. You took advantage of their trust in a ruthless and cynical way. That was the more so, of course, with victim 3. She trusted that the food she received in your home would be wholesome and good for her but you drugged her to commit many of your offences. Moreover, you sought to destroy evidence of your wrongdoing on your phone (s 5(2)(b), (h)).
Regrettably, the commission of offences by older men, such as yourself, comprising acts of indecency and engaging in sexual intercourse with young persons is a fact of life that is prevalent in the community. Such offences are all too frequent. They have profound societal and personal impacts on those who are their direct victims as well as on their families and friends who are indirect victims (s 5(2)(j)).
Other than by indicating on 26 July 2019 and subsequently entering your pleas of guilty (that relieved victims 1 and 3 from having to give evidence in the Court about, respectively, the count in the first indictment and counts 1 to 8 in the second indictment), you did not give any assistance to police when they were investigating your offending behaviour (s 5(2)(k), (l)).
As your counsel explained, you arrived in Norfolk Island in 1999 with your first wife and two children. Your relationship broke down and she took your two daughters away with her to New Zealand. However, in 2005, because of her health, you returned to New Zealand to care for those children and you returned here in 2010 when you formed your relationship with your second wife. You propose to live with your younger daughter who is now 21 in Queensland when you are paroled or are eligible to do so (s 5(2)(s)).
I have taken into account that, after 20 July 2018, when you were arrested and imprisoned on remand, your second marriage has broken down, and you have made over to your second wife your interests in all of the matrimonial property, including your belongings, and your tools of trade as a mechanic (s 5(2)(m)).
The pre‑sentence report expressed the view that you had a low to medium risk of re-offending. However, that assessment was a desktop one that did not involve the psychologist interviewing you personally or having available all of the material now before me, including what your counsel revealed for the first time today, as I have set out above. The pre‑sentence report stated that that risk of re-offending would be ameliorated and could lead, if successful, to your rehabilitation if you spend a minimum of three years after this sentencing in therapeutic programs addressed to your offending behaviours. If the programs were successful in addressing those behaviours, it could then be reasonable to think that you would have a prospect of having a lower risk profile. Certainly the pattern of your offending with each of the three victims on the material before me suggests that at the moment you pose a real risk, if untreated, of re-offending (s 5(2)(r)).
You told your counsel that the experience of seeing and hearing the three persons who read their victim impact statements out in Court yesterday, namely victim 1 and the parents of victim 3, had devastated you. You also told her that when you committed the 30 offences during 2017 and 2018 you felt that you were under a great deal of pressure because of difficulties in your relationship with your second wife and because of other matters. You said that you drank a bit and you used zopiclone on yourself as well as for its prescribed use in respect of your wife. You now have the antidepressant drug, fluoxetine, prescribed for you in prison.
I do not consider that feeling under pressure within your marriage at the time of the offending in the second indictment or experiencing difficulties in your relationship with your second wife explains, or palliates in any way, the gravity of your offending against victims 2 and 3 (s 5(2)(s)).
Before I pass sentence on you, is there anything you wish to say?
THE PRISONER: I’m just sorry for what’s happened, and I apologise to everybody involved.
HIS HONOUR: Thank you. I have given some weight to your late expressions of remorse in arriving at the sentences that I impose, but I have to have regard to the overall objective effect of your behaviour, and the general need for deterrence. I have also taken into account what your counsel put on your behalf. Please stand. I impose the following sentences.
In respect of the first indictment involving victim 1, I enter a conviction and sentence you to six months imprisonment commencing on 20 July 2018.
On the second indictment, I enter a conviction on each count and impose the following sentences:
(1)on count 30, commencing on 20 July 2018, 15 months imprisonment (6 months of which be served concurrently with the sentence imposed in proceeding No. SCC 2 of 2019);
(2)on count 1, commencing on 20 August 2018, 15 months imprisonment;
(3)on count 2, commencing on 20 September 2018, 15 months imprisonment;
(4)on count 3, commencing on 20 October 2018, 15 months imprisonment;
(5)on count 4, commencing on 20 July 2018, two years imprisonment;
(6)on count 5, commencing on 20 July 2018, three years and six months imprisonment;
(7)on count 6, commencing on 20 January 2019, three years and six months imprisonment;
(8)on count 7, commencing on 20 January 2019, four years and six months imprisonment;
(9)on count 8, commencing on 20 April 2019, three years and six months imprisonment;
(10)on each of counts 10, 11 and 12, commencing on 20 July 2018, three years imprisonment;
(11)on each of counts 17, 18, 19, 20, 21 and 22, commencing on 20 October 2018, seven years imprisonment;
(12)on each of counts 24, 25 and 26, commencing on 20 July 2018, seven years and six months imprisonment;
(13)on count 23, commencing on 20 July 2018, 10 years imprisonment;
(14)on count 13, commencing on 20 January 2026, three years imprisonment;
(15)on count 28, commencing on 20 July 2018, one years imprisonment;
(16)on count 9, commencing on 20 October 2025, four years imprisonment;
(17)on count 16, commencing on 20 April 2020, seven years imprisonment;
(18)on each of counts 14 and 15, commencing on 20 April 2020, ten years imprisonment;
(19)on count 27, commencing on 20 July 2026, four years imprisonment; and
(20)on count 29, commencing on 20 October 2022, 8 years imprisonment.
I will order that you not be eligible for parole until 20 January 2026.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 17 October 2019