Regina v Rick Stephen Giles
[2008] NSWDC 54
•11 April 2008
NEW SOUTH WALES DISTRICT COURT
CITATION:
Regina v Rick Stephen Giles [2008] NSWDC 54
FILE NUMBER(S):
08/11/0014
HEARING DATE(S):
21/02/08, 27/03/08
JUDGMENT DATE:
11 April 2008
PARTIES:
Regina
Rick Stephen Giles
JUDGMENT OF:
Finnane QC DCJ
COUNSEL:
SOLICITORS:
Regina: Mr R Labrum, NSW DPP
Offender: Mr M Betts, NSW Legal Aid
CATCHWORDS:
CRIMINAL LAW
sentence
age of complainant at time of offences
aggravated act of indecency
aggravated sexual intercourse with person aged
between 10 and 16 years
appropriate discount for plea of guilty
contrition
full admission to offences
no explanation for offending behaviour
offender in position of authority
pattern of sexual abuse
plea of guilty
prospects of rehabilitation
LEGISLATION CITED:
ss. 61O, 66C, Crimes Act 1900
CASES CITED:
TEXTS CITED:
DECISION:
First offence: I sentence the offender to a term of imprisonment of three years. That sentence will commence on 4 August 2007 and will cease on 3 August 2010. It is a fixed term.
Second offence: I sentence the offender to a term of imprisonment of four years. That sentence will commence on 4 August 2007 and will cease on 3 August 2011. It is a fixed term.
Third offence: I sentence the offender to a term of imprisonment of four years. That sentence will commence on 4 August 2008 and will cease on 3 August 2012. It is a fixed term.
Fourth offence: I sentence the offender to a term of imprisonment of five years. That sentence will commence on 4 August 2009 and will cease on 3 August 2014. It is a fixed term.
Fifth offence: I sentence the offender to a term of imprisonment of five years. That sentence will commence on 4 August 2010 and will cease on 3 August 2015. It is a fixed term.
Sixth offence: I sentence the offender to a term of imprisonment of eight years. That sentence will commence on 4 August 2010 and will cease on 3 August 2018. It is a fixed term.
Seventh offence: I sentence the offender to a term of imprisonment of seven years. That sentence will commence on 4 August 2011 and will cease on 3 August 2018. It is a fixed term.
Eighth offence: I sentence the offender to a non-parole period of three years. That non-parole period will commence on 4 August 2015 and will cease on 3 August 2018. The balance of the term will go from 4th August 2018 to 3rd August 2023. The sentence will terminate on that day.
I recommend that the offender be given the benefit of programmes dealing with sexual rehabilitation and that he be considered for release on parole at the end of his non parole period, but only if he has satisfied the authorities that he has made serious attempts to rehabilitate himself.
JUDGMENT:
SENTENCE
Introduction:
The offender Rick offender, Rick Stephen Giles comes before this court having pleaded guilty to eight offences involving aggravated sexual intercourse of a girl aged between 10 and 16 years and an offence of an aggravated act of indecency. I have also been asked to take into account other sexual offences in dealing with the sixth offence.
This girl was his stepdaughter and was someone he had cared for as a father since she was six months old. His duty was to love and protect her. Instead of that, when she turned a little over 11 years old, he began a pattern of sexual abuse which continued until she was 15 years old.
She is now 23 years old and late in 2006brought to the attention of her mother, her fiancée and the police the occurrence of these sexual offences. Police commenced their investigations and in August 2007 she agreed to wear a listening device and speak to him about what he had done. At the time he had separated from her mother and was living in a motel in Liverpool. When she spoke to him on 4 August 2007, he readily agreed that he had sexually abused her and expressed his remorse for doing so. He was arrested on the same day, interviewed by the police and charged with the offences for which he is before me.
The police interviewed him on the day of his arrest and he agreed that he had committed the offences, and that he deserved to be punished, that his stepdaughter’s life had been adversely affected and that he was entirely responsible. His admissions to his stepdaughter and to the police marked him as being quite different to many other persons who are charged with offences of this type.
It is common, in my experience, to be told by such offenders that they were led on and that they were the victims. He has admitted his guilt and remorse and is entitled to be given credit for that.
The fact that he has admitted his guilt, expressed remorse and has not sought in any way to blame the victim, means that I can have much greater confidence in the possibility of his rehabilitation than I have had in the past with other such offenders. Because of this, I am imposing an overall sentence which is very much less than it would have been, had I not been satisfied that he seriously acknowledged his guilt and wanted to be rehabilitated.
As is often the case, apart from these offences, he could be considered in a general sense, in relation to sexual matters, to be a man of good character. HeHe is a man who has committed minor offences in the past but he has always provided for his family and has always worked. However, he has also been a consumer of illegal drugs and an abuser of alcohol. For this reason he cannot be considered to be a man of exemplary character and it is clear that during the years from 1995 to 1999, he was a frequent sexual abuser of the victim, his stepdaughter. That abuse included frequent acts of penetrating sexual intercourse involving digital and penile sex, as well as cunnilingus and fellatio. There were also frequent indecent assaults and acts of indecency. These were very serious crimes.
His admissions of guilt to the victim and his admissions of guilt to the police, coupled with his expressed remorse, and maintaining his pleas of guilty following his being charged certainly has saved his victim the harrowing experience of having to give evidence at a trial. He must be given credit for all of this.
I have read a reference from his brother. He speaks of a sad family background and have of someone who was a frequent user of amphetamines and someone who from time to time became depressed. His brother is of the opinion that he the offender is remorseful and disgusted about his actions and that he would take the opportunity to rehabilitate himself. An employer provided a reference to establish merely that he was a worker.
I have also been provided with a psychological report which gives background information on the offender. What it reveals is that the offender and his brother grew up in an unstable home where there were many problems with his alcoholic father and ultimately, this led to a family breakdown.
He struggled at school and may well have had attention deficit disorder but he managed to pass his School certificate. Since he left school he has worked in semi-skilled employment, sometimes through through labour hire companies. His relationship with his wife ceased in 2001, partly because of his use of cannabis and amphetamines and partly because of her adulterous relationships with other men. He has no contact now with his daughter o r his wife but does maintain some contact with his son. He has a relationship with another woman.
Throughout his adult life he has had problems with drug and alcohol abuse. He expressed remorse for his abuse of his stepchild and concern for her. He has good intellectual ability according to the psychologist and has a low risk of re-offending.
I am prepared to accept that much of what is in this report is factual because it coincides with what his brother has said and what he has told the police himself.
I accept her opinion not merely because of his admissions to the psychologist, but because what he told her is what he told the victim and what he told the police. It is also what he told me in a letter which was provided to me by his legal representative. I have read the letter, which sets out his feelings of remorse and concern for the victim as well as expressing intentions of becoming a good citizen.
He also gave evidence and confirmed what he had told the psychologist, what he put in his letter, what he told the complainant and the police. He has said that he wants to do a programme, that he deserves to be punished and he would never engage in this conduct again. He struck me as being genuine.
I thus accept that in his case there are good prospects of rehabilitation, although I weigh this up against the facts that he provided no explanation for his conduct.
There must be an explanation and he has not chosen to reveal it.
Objective matters:
These offences are very serious matters. Seven of them involve sexual intercourse with a young girl. Three of the charges concern penile–vaginal sexual intercourse. The charges are clearly representative charges since it is clear that between 1995 and 1999 he frequently had sexual intercourse with a very young girl who was his stepdaughter and frequently committed other types of sexual abuse on her.
Because they are very serious offences, severe sentences must be imposed to make it clear that this conduct will not be tolerated in our society. The sentences must also have such severity as to deter others as well as the offender himself from committing such conduct in the future.
The agreed facts show that the victim has suffered greatly because of this ongoing and persistent sexual abuse. She has suffered emotional, psychological and physical trauma which has had a severe impact on her day-to-day life and her subsequent personal relationships with men.
The severity of the sentences must in some way take account of all of this suffering. The sentence must also make it clear to parents and stepparents that if they act in a predatory way towards children in their care, they will be severely punished.
At the same time, the needs of society are best met if a sex offender can be rehabilitated by the time he is released from prison, because society then has nothing to fear from that offender.
Whilst I consider that there is some realistic possibility of rehabilitation, I cannot be certain of it. In my view, if the offender does not satisfy the prison authorities that he is genuinely committed to rehabilitation, they should not release him on parole.
Other sentencing considerations:
Because of his co-operation with the police and his early plea of guilty, he is entitled, in my opinion to a 25% discount on sentence. The sentences which I impose reflect that discount. Because there are realistic chances of rehabilitation and because he has never served any previous sentence of imprisonment, I find special circumstances and I fix a non-parole period which is less than it would otherwise be.
I have decided to impose sentences which will see him released after 11 years in custody. He will then be on parole for another five years. In order to achieve this result, I have made some of the sentences concurrent or partly concurrent with other sentences, but there is some accumulation to make clear that each sentence is clearly distinct from the others. The final sentence has a non-parole period which would not be given if that were a sentence when only one offence had been charged. The sentences must be appropriate, but not so severe as to be excessive in their overall effect.
The facts of the offences:
First offence:
This offence was one of an aggravated act of indecency and it occurred in December 1995, when the victim was between eleven and eleven and a half years old. Before this first offence, the offender groomed her for it by being present with her in a shower and asking her to shave her legs with a razor that he handed to her. He also asked her to shave the hair on his chest while he was in the shower with her. This occurred on a number of occasions and was most inappropriate conduct for him to engage in.
Between July and December 1995, he got into a bath with the victim, facing her and asked her to put her legs up on the side of the bathtub. He then masturbated until he ejaculated and then asked her to step into a shower. He joined her in the shower.
The act of indecency is the masturbation and ejaculation in her presence when she was under the age of 16 years, was naked and had her legs up on the bathtub. It is an aggravated act, because the victim was under his authority and because the victim was under the age of 16 years (See Crimes Act, 1900, sec 61O). The maximum penalty is five years imprisonment.
Committing an Aggravated aggravated indecent assaultact of indecency in the presence of a young child is serious and must receive a penalty which makes this clear. The offence is an offence of gross betrayal of trust.
But for the discount of 25%, to which he is entitled for his plea of guilty, and my finding special circumstances because of his age and his prospects for rehabilitation, I would have imposed a sentence of 4 years imprisonment. However, because of these factors, I reduce that to a sentence of 3 years which is a fixed sentence.
Second offence:
This offence is aggravated sexual intercourse of a person between 10 and 16 years, namely 14 years (See Crimes Act, 1900, sec 66C). The maximum sentence is 10 years imprisonment. The aggravating feature was that the victim was under his authority.
The offence occurred about February 1996. The victim, then eleven and a half years old, had come home from school and was playing with some dolls in a bath. She got out of the bath, wrapped a towel around herself and walked into her bedroom. The offender walked behind her, telling her to lie down on the bed and take her towel off. She did so and he leant over and sucked her breasts. He then said he would caress her and started to touch her with his hands on her stomach and legs, moving his hands to her inner thighs. He then moved his hand to the area of her labial entrance and put one of his fingers into her vagina and moved it up and down a number of times before he walked out of the bedroom.
The offence is a very serious one. It involves a deliberate deep penetration of the vagina of a young girl who was the stepdaughter of the offender. In my opinion, it is not as serious as penile penetration of the vagina, but because it is serious and it must be severely punished. I have taken into account also the discount on sentence of 25% and I find special circumstances because this will be his first gaol sentence and he is contrite and there are good prospects of rehabilitation.
I have decided that an appropriate sentence is one of 4 years imprisonment which will be imposed as a fixed term.
Third offence:
This offence is aggravated sexual intercourse of a person between 10 and 16 years, namely 14 years (See Crimes Act, 1900, sec 66C). The maximum sentence is 10 years imprisonment. The aggravating feature was that the victim was under his authority.
It occurred in about July 1996 when the family moved from Kirrawee to Menai. The victim had just turned 12 years old. The offender came into her bedroom after she had a shower in the afternoon when she had returned from school. He told her to lie down on the bed and after telling her that he would “caress her” he ran his hands all over her body while she was naked and sucked her on the breasts. He then placed his finger in her vagina for a short time and then left the bedroom. On occasions, he would shower with her and would follow her into her bedroom while he also was naked. This offence occurred so many times that she was unable to distinguish any particular assault.
The sentence for this offence warrants a greater sentence of imprisonment than the earlier offences because the cunnilingus offences a sentence of 5 years imprisonment as a fixed sentence should also be a sentence of four years imprisonment. The sentence is a fixed term.
Fourth offence:
This offence is aggravated sexual intercourse of a person between 10 and 16 years, namely 14 years (See Crimes Act, 1900, sec 66C). The maximum sentence is 10 years imprisonment
This offence, which seems to stand alone, happened when the victim was almost thirteen and a half years old. She had come home from school and had a shower in the upstairs bedroom. Her mother was at work and her little brother was at after-school care.
When she got out of the shower, the offender ordered her to go into his bedroom and to sit on the end of the bed. He appeared, naked from the waist down and ordered her to “ go down on me”. She protested, saying it was disgusting. He then told her he would put on a condom, so it was clean. He did so and said:
“Come on, please do it, you’ll like it, it’s clean, not dirty”
The victim then performed fellatio on the offender for a short time and then stopped. The offender then left the room and returned with a clear plastic sandwich bag. He removed the condom, placing the sandwich bag on his penis and asked the victim to suck on it. She refused to do so. Just then, her mother returned home unexpectedly and the offender disappeared to remove the condom from the sink and dispose of it.
The circumstances and the forcing of fellatio on such a young girl in my opinion warrants a sentence of 5 years imprisonment as a fixed sentence. Fellatio is a more serious offence, in my opinion, than digital penetration, since it involves the introduction of the penis into the body of the victim. I take into account the same factors for discount of sentence, special circumstances and rehabilitation as I have mentioned earlier.
Fifth Offence
Between May and July 1998 when the victim was aged 13 ½ years, she was in the offender’s bedroom with him. He took out a pornographic video from a backpack, placed it into a video player and played it to the victim who was sitting on the bed. She was wearing her school uniform. After a few minutes he started to undress the victim and took off her underpants. He then performed cunnilingus on the victim for about 20 minutes.
In my opinion, the sentence of this offence should be the same as for the previous offence as it involves the penetration of the body of the complainant by the tongue of the offender and it involved an attempt to corrupt the child by playing pornography to her.
The sentence will be five years imprisonment as a fixed term.
Sixth Offence:
On a Saturday in August 1998, when the victim was 14 years of age, she was playing outside in the back yard. She had pitched a tent and was playing with dolls in the tent for most of the day while her mother was a work. The victim had also been playing in the tent with her younger brother for a while and then he went off to play on his own. She had taken her pillow into the tent and was lying down.
The offender came into the tent and pulled down the victim’s clothing including her underpants. He took his pants off so that he was naked from the waist down. He lay on top of her with his arm round her and started to kiss her neck. He then inserted his penis into her vagina and had sexual intercourse with her. He ejaculated inside her vagina.
This was a very serious act of sexual intercourse and the offence is aggravated by my taking into account three acts of aggravated indecent assault, one aggravated act of indecency and three acts of sexual intercourse which are all on the Form One signed by the offender.
Taking all these matters into account, the appropriate sentence is one of eight years imprisonment as a fixed term.
Seventh offence:
This was a particularly disgraceful offence. The victim’s mother was away from the house a few days. Taking advantage of the situation, the offender bought some alcoholic drink and induced the victim who was 14 years of age to drink it. When she eventually stood up from her chair she had difficulty standing up. He then took her to a bedroom, laid her down on the bed naked and whilst naked he, told her to sit on top of him so that his penis was in her vagina. He then had sexual intercourse with her. A little later on she vomited.
In my opinion the appropriate sentence is one of seven years imprisonment as a fixed term.
Eighth offence
This offence occurred in about April 1990. The victim’s mother was at home playing the piano and the offender was in the lounge at the opposite side of the house. He called the victim into the lounge room and when she arrived, she stood in front of him as he sat on a lounge chair. He grabbed her by the waist and turned around so that her back was to him. He sat the victim down on his lap and as he did this, he pulled down his underpants just far enough for his penis to be exposed. He then pulled down her underpants. His penis was erect and he pulled her down so that his penis entered her vagina. He held on to her waist and had sexual intercourse with her but did not ejaculate.
In my opinion there should be a sentence of eight years imprisonment with a non-parole period of three years. This reflects the seriousness of the offence and it will enable his release at the end of eleven years if the parole authorities consider that he has taken serious steps to rehabilitate himself.
The sentences:
First offence:
I sentence the offender to a term of imprisonment of three years. That sentence will commence on 4 August 2007 and will cease on 3 August 2010. It is a fixed term.
Second offence:
I sentence the offender to a term of imprisonment of four years. That sentence will commence on 4 August 2007 and will cease on 3 August 2011. It is a fixed term.
Third offence:
I sentence the offender to a term of imprisonment of four years. That sentence will commence on 4 August 2008 and will cease on 3 August 2012. It is a fixed term.
Fourth offence:
I sentence the offender to a term of imprisonment of five years. That sentence will commence on 4 August 2009 and will cease on 3 August 2014. It is a fixed term.
Fifth offence:
I sentence the offender to a term of imprisonment of five years. That sentence will commence on 4 August 2010 and will cease on 3 August 2015. It is a fixed term.
Sixth offence:
I sentence the offender to a term of imprisonment of eight years. That sentence will commence on 4 August 2010 and will cease on 3 August 2018. It is a fixed term.
Seventh offence:
I sentence the offender to a term of imprisonment of seven years. That sentence will commence on 4 August 2011 and will cease on 3 August 2018. It is a fixed term.
Eighth offence:
I sentence the offender to a non-parole period of three years. That non-parole period will commence on 4 August 2015 and will cease on 3 August 2018. The balance of the term will go from 4th August 2018 to 3rd August 2023. The sentence will terminate on that day.
I recommend that the offender be given the benefit of programmes dealing with sexual rehabilitation and that he be considered for release on parole at the end of his non parole period, but only if he has satisfied the authorities that he has made serious attempts to rehabilitate himself.
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LAST UPDATED:
17 April 2008
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