The Police v AB
[2020] ACTMC 16
•8 July 2020
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | The Police v AB |
Citation: | [2020] ACTMC 16 |
Hearing Date(s): | 2 July 2020 |
DecisionDate: | 8 July 2020 |
Before: | Magistrate Theakston |
Decision: | See [39] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Crimes and offences against children – Historical offence – Indecent assault on male – Pleas of guilty |
Legislation Cited: | Crimes Act 1900 ss 66B, 81, 441. Law Reform (Sexual Behaviour) Ordinance 1976 s 6 |
Cases Cited: | R v Eisenach [2011] ACTCA 2 R v Dent (New South Wales Criminal Court of Appeal, Lee CJ, 14 March 1991) R v CC [2016] ACTSC 43 R v Miller [2019] ACTCA 25 R v Gavel [2014] NSWCCA 56; 239 A Crim R 469 GS v R [2016] NSWCCA 266 R v Sopher (1993) 70 A Crim R 570 R v Todd (1982) 2 NSWLR 517 R v EN [2019] ACTSC 354 R v Marsh [2019] ACTSC 251 R v Trezise [2018] ACTSC 135 R v Scheeren [2014] ACTSC 272 |
Parties: | The Police (Crown) AB (Defendant) |
Representation: | Counsel R Christensen (Crown) J Pappas (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aulich (Defendant) | |
File Number(s): | CC 8749 of 2011 CC 8750 of 2011 CC 2350 of 2019 |
MAGISTRATE THEAKSTON:
Introduction
These are my sentencing remarks in relation to this matter. The offender’s and victims’ names have been anonymised to protect the identity of the two victims.
Background
The offender has pleaded guilty to the following three charges:
(a) 8749 of 2011 – Indecent assault on male
That he, in the Australian Capital Territory, between 31 December 1974 and 1 April 1980, did indecently assault a male, namely [BB].Particulars: The offender performed repeated acts of oral sex on the victim.
(b) 8750 of 2011 – Indecent assault on male
That he, in the Australian Capital Territory, between 31 December 1974 and 1 April 1980, did indecently assault a male, namely [BB].Particulars: The offender performed repeated acts of fondling and masturbation involving the victim.
(c) 2350 of 2019 – Indecent assault on male
That he, in the Australian Capital Territory, between 1 January 1977 and 31 December 1980, did indecently assault a male, namely [CD].Particulars: The offender committed a continuing act of indecent assault involving fondling of the victim’s penis, exposing his own penis to the victim, and having the victim touch the offender’s penis.
Each of the charges is contrary to the now revoked s 81 of the Crimes Act 1900. That provision was revoked in 1984, and today equivalent offending is covered by other offences, all with larger maximum penalties and some with much larger maximum penalties. The first two charges are by virtue of s 66B of the Crimes Act 1900, which provides that charges of child sexual offences may include more than one incident of the commission of an offence under the same offence provision.
These proceedings have a long history. In 2011 and during a record of interview, the offender made admissions to fondling BB’s penis and performing oral sex on him. That same year he was charged. In April 2012, this Court stayed proceedings as the s 81 offences were at that time statute barred. The proceedings had not been commenced within 12 months of the offending, as was then required by s 6 of the Law Reform (Sexual Behaviour) Ordinance 1976. That bar was retrospectively revoked in 2013 by the insertion of s 441 into the Crimes Act 1900.
Incidentally in 2017, the offender was charged with similar, but unrelated, charges involving different victims. The offender was interviewed that same year and made admissions. In May 2018 the offender was sentenced in relation to those unrelated charged before Mossop J in the ACT Supreme Court. The offender received an aggregate sentence of three years, two months and six days imprisonment, suspended after serving six months with a good behaviour order of three years. The offender was released from imprisonment in November 2018.
In 2019, less than six months after his release from the AMC, the offender was charged with the above third offence. The parties subsequently engaged in negotiations in relation to the stay and which charges would proceed. In April 2020 and with the offender’s consent the above stay was lifted. At that same appearance the offender entered pleas of guilty to the three charges before me today for sentence. The prosecution concedes that in the above circumstances those pleas may be characterised as having been entered at an early opportunity. The offender had also made full admissions years before in relation the first and second charges. Due to the sensitive nature and age of the offending and the significant utilitarian benefit in resolving these matters without going to trial, including avoiding the need for either victim to give evidence, I will discount the sentences and non-parole period by 15% compared to what I would have otherwise imposed. I will also discount the sentences and non-parole period by a further 5% for the offender’s assistance with the administration of justice. That assistance involved his cooperation with authorities to resolve complex legal issues around the status of the stayed charges and the prosecution’s earlier decisions to proceed with other charges.
Circumstances of the offending
The offending relates to two victims and occurred around the second half of the 1970’s.
The first and second charges relate to the victim BB and occurred over a period of over five years. BB is the biological son of the offender. At the time of the offending he was aged between 7 and 12 years. The offending involved the repeated and regular acts of fellatio on BB and the fondling and masturbation of BB’s penis. The frequency of those acts was not articulated within the agreed facts. However, four examples were provided in that document. The first charge relates to the repeated and regular acts of fellatio, and the second charge relates to the repeated and regular acts of fondling and masturbation. The examples demonstrate that, at times, both sets of offending occurred together.
The offending ceased when BB was 12 years of age once he avoided being alone with the offender. In 2011, BB made a complaint to police. As indicated above, the offender made admissions to the offending during a record of interview in 2011.
The third charge involved CD, a friend of BB. CD was aged somewhere between 8 to 12 years at the time. CD went swimming with BB and the offender at the Cotter area. BB was in the water while CD was sitting at the top of a rock slide. The offender sat down close behind CD with his legs either side of CD and with his arms around CD. The offender rubbed CD’s penis through his shorts, and later grabbed CD’s hand and placed and held it on the offender’s hard penis. At some point CD saw the offender’s penis. The incident stopped when BB called out from the water for the offender to ‘stop’ or ‘break it up’.
In 2018, BB made a complaint about the incident to police during their investigation. BB has provided a victim impact statement that describes the years of emotional struggle, self-blame and embarrassment that has, and continues, to haunt him.
Defendant’s subjective circumstances
The offender is almost 82 years of age, is separated from his wife and has limited contact with his four adult children. He completed school at Year 9 and later obtained his Higher School Certificate at evening college. He gained tertiary qualifications in the social sciences and completed a Bachelor of Arts (Social Science) degree later in life. The offender worked in the public service for decades, retiring in 1997. He resides in his own home and supports himself using his superannuation.
In evidence there is a report from a geriatric specialist, Assoc Prof Tuly Rosenfeld. That report was prepared for the sentencing conducted by Mossop J in 2018. It documents the offenders health issues at that time as being:
(a) blind in his right eye due to a stroke experienced in 2006;
(b) hypertension and raised cholesterol;
(c) impaired glucose tolerances (pre-diabetes);
(d) gliosis in the occipital lobes;
(e) mild problems with cognition;
(f) minor issues with memory; and
(g) post-traumatic stress disorder and anxiety.
Assoc Prof Rosenfeld opined that the offender’s physical and mental health issues were likely to worsen over time, causing any period of imprisonment to be a greater burden and reduce his life expectancy by one third. He was not able to say that a period of imprisonment would, of itself, affect the offender’s health or life expectancy.
Mr Pappas, who appeared for the offender, suggested that the Australian Bureau of Statistics Life Tables 2014 – 2016 suggest that an 82 year old male has a remaining life expectancy of 7.7 years.
The only convictions the offender has are those imposed by Mossop J in 2018 and a conviction in 2015 in the Myrtleford Magistrates Court for similar offending that involved fondling the penises of young boys as they slept at a Methodist Church youth camp in 1975 and 1976. Curiously, he was discharged without penalty after an adjournment of two years.
The offender has expressed remorse in relation to the offences against his son, during the 2011 record of interview. He said ‘I’m admitting, yes it happened … I did that to him and I’m ashamed of it’.
Sentencing principles
My attention has been drawn to a number of judicial authorities that address sexual offending against children.
In R v Eisenach [2011] ACTCA 2, the Court cited with approval the observations by Lee CJ at CL from R v Dent (New South Wales Criminal Court of Appeal, Lee CJ, 14 March 1991) at 6 about the features particularly abhorrent in sexual offending against children:
One begins with the proposition ... that our community views with great concern the sexual molestation of children by adults … Little children are entitled to grow up free from defilement by sexual predators and free from risk of psychological upset confusion and difficulties in later life, caused by such conduct.
When a child is living in the family situation he or she is particularly vulnerable to sexual molestation from the male parent, or step-parent. The community regards the family unit as one in which each parent is in a position of trust in respect of the child, under a duty to rear it and give it proper guidance and to refrain from using the child for sexual pleasure. The child is usually helpless to protect itself against sexual attack from the parent – as in this case – and that can be seen in so many other cases of a like kind that come before us. One sees in such cases that the child is too embarrassed, too afraid or develops too great a sense of guilt to complain. When the male parent takes advantage of the helplessness of the child, he not only commits a breach of trust, but it is a cowardly breach of trust: The protector of the child’s body, the guide, and mentor of the child, in those circumstances has abandoned his proper role in order to gratify his lust on the child.
In R v CC [2016] ACTSC 43 at [39] and [40], Burns J noted the additional harmful features involved in sexual offending against an offender’s child:
Sexual offences involving children … are rightly regarded by the community as odious. … sexual offences committed by a parent or a step-parent towards their child involve a significant breach of trust. Indeed, it is difficult to contemplate a more complete breach of trust. Children trust their parents and they learn about the nature of our world including what is considered right and wrong from observing their parents.
… sexual offending against your child is calculated to cause confusion in the child, to warp their understanding of what is considered right and wrong and to lower their estimation of the fundamental social unit, the family, as a place of love and safety. Such offences are also apt to cause grave and long-lasting psychological damage. As such, these offences cause great harm, not only to the particular victim but also to our community and its social institutions and values.
In R v Miller [2019] ACTCA 25 at [37] and [44], the majority discussed the purposes of sentencing and the relative weight to be given to the objective and subjective features:
37. It is a fundamental principle of sentencing that a sentence must be proportional to the objective seriousness of the offence. This principle of proportionality sets both the upper and lower limits of a sentence that may be imposed in the proper exercise of the sentencing discretion for a particular offence. Just as it would be outside the proper exercise of the sentencing discretion to impose a sentence more severe than the objective gravity of the offence permitted because the court believed the community needed to be protected from an offender, a court cannot impose a sentence so lenient that it does not reflect the objective gravity of the offence because of the offender’s subjective features. The subjective features of the offender are important, but they cannot justify the imposition of a sentence which does not adequately reflect the objective seriousness of the offending.
…
44. The primary sentencing considerations for sexual offending are punishment, deterrence, denunciation and recognition of the harm done to the victim. In the proceeding before the primary judge there was little by way of remorse demonstrated by the respondent beyond his plea of guilty to the offence. Personal deterrence should have been a relevant consideration at that time. General deterrence, or deterrence of others from committing like crimes, is always an important consideration in imposing a sentence for sexual offending. The above does not deny the relevance of rehabilitation in sentencing offenders such as the respondent, but in sentencing for sexual offences rehabilitation will ordinarily be given lesser weight than the other considerations to which we have referred due to the gravity of the offending.
In R v Gavel [2014] NSWCCA 56 at [110], the Court summarised its previous observations about the impact of this type of offending against children:
This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives. Sexual abuse of children will inevitably give rise to psychological damage. ... The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity. (citations omitted)
In GS v R [2016] NSWCCA 266 at [99] and [100], the Court addressed the issue about how an offender’s advancing age and frailty may influence sentence:
It is a common feature of historical sexual offences committed by older men against very young children that, by the time the victim has reached maturity and is able to summon the courage to make complaint to authorities, the offender will be advanced in years. By the time he is brought to justice he may be quite elderly, or ill-health of later years may have caught up with him.
…
The necessity for the courts to impose penalties which reflect the community’s abhorrence of these crimes and which otherwise fulfil the purposes prescribed in [the legislation] restricts the degree to which sentences can be mitigated on account of the age and/or frailty of the offender.
Similarly, in R v Sopher (1993) 70 A Crim R 570 at 573-574, the Court addressed how heath and relatively short life expectancy may influence a sentence:
Health and age are relevant to the length of any sentence but usually of themselves would not lead to a gaol sentence not being imposed if it were otherwise warranted. Much depends on the circumstances. For example, a person may have but a short period to live or need intense treatment which cannot be provided in gaol. There may be circumstances where to keep a person in gaol will probably lead to his early death and this would not otherwise occur. The variety and combination of circumstances are legion. An appropriate balance has to be maintained between the criminality of the conduct in question and any damage to health or shortening of life. The Department of Corrective Services has the responsibility of providing for health care but there may be cases where what is required on a permanent basis extends beyond what it can provide and can be expected to provide. In almost all cases what the Department is able to provide will suffice. If gaol is significantly harder for a person because of difficulties due to health and age this would be a relevant matter to take into account.
My attention was also taken to a number of authorities that address the issue of delay. They each echoed the same set of principles, which are perhaps best distilled by Street CJ in R v Todd (1982) 2 NSWLR 517 at 519:
… where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstances that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentence for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach – passage of time between offence and sentence, when lengthy will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.
Consideration
While I am required to sentence in accordance with current sentencing practices, the maximum penalty of 5 years imprisonment remains for each offence. That maximum is reserved for the worse case with the worst offender and is not merely the jurisdictional limit exercisable by this Court. In this matter punishment, denunciation, general deterrence and recognition of the harm done to the victims must be the predominant sentencing considerations.
These offences are clearly repugnant and involve a gross breach of trust by the offender. The young boys were particularly vulnerable to the offender’s actions. The offender exploited his access to the boys, available only because he was the father of one of the victims. The offences that involve the offender’s son are particularly abhorrent. The existence of that close biological relationship and the repeated and regular nature of the offending are significant and separate aggravating features. The offender used the boys for his own sexual gratification, without any regard to the experience of the boys or the adverse consequences that may follow.
I assess the first charge as being at the upper end of objective seriousness. This is because of the nature of the acts involved, the father son relationship between the offender and the victim, the age and vulnerability of the victim and the repeated and regular conduct captured by that charge over a period of over five years.
I assess the second charge as approaching the upper end of objective seriousness. The difference between the first and second charge is the nature of the acts involved. I note there is a degree of overlap in the offending between the first and second charge and I will therefore make the sentence on the second charge concurrent for a large part of the sentence on the first charge.
I assess the third charge as being just below the halfway point for objective serious. This is due to the nature of the conduct involved, the relative short duration of the offending, the position of trust the offender was in while caring for a friend of his son and the age and vulnerability of the victim.
In sentencing the offender, I take into account that these offences occurred 40 years ago, and that there is no suggestion that the offender has re-offended since. Accordingly, rehabilitation appears to have already been achieved and specific deterrence therefore need not feature so highly.
I also take into account the delays in progressing the first two charges since the statutory bar was lifted in 2013, and the resultant uncertain suspense the offender has been left in. I also take into account that ideally, all of these charges should have been finalised before Mossop J in 2018 when he sentenced the offender for the unrelated matters.
I also take into account the offender’s advanced age and physical and mental health. I accept that by reason of that age and health, he may find a term of imprisonment more onerous than others may. However, there is no evidence that imprisonment would damage his health or shorten his life. I also include as a consideration the visit limitations and risk to the offender while in custody flowing from the current COVID-19 emergency.
I accept that at this point in the offender’s life, decades after the offending, he is genuinely remorseful for, and ashamed of, his conduct and regrets engaging in that conduct.
I have had regard to the comparative sentences of R v EN [2019] ACTSC 354; R v Marsh [2019] ACTSC 251; R v Trezise [2018] ACTSC 135; and R v Scheeren [2014] ACTSC 272 and note that while they are relevant and useful, they have limitations.
Having considered each of the available alternatives to imprisonment, I am comfortably satisfied that nothing other than an immediate period of full time imprisonment would be appropriate. I will apply the principle of totality to ensure that the aggregate sentence and non-parole period are appropriate in all the circumstances.
As indicated above, I will discount the sentences and non-parole period from what I would have otherwise imposed by 20% due to the pleas of guilty and assistance to the administration of justice.
I will set a relatively short non-parole period due to rehabilitation being achieved and demonstrated over the last 40 years.
Sentence
The Court imposes the following sentences:
(a) 8749 of 2011 – Indecent assault on male
The offender is convicted and sentenced to 3 years, 7 months imprisonment, starting on 8 July 2020 and ending on 7 February 2024. But for the plea of guilty and assistance with the administration of justice, that term would have been 4 years, 6 months.
(b) 8750 of 2011 – Indecent assault on male
The offender is convicted and sentenced to 3 years 2 months imprisonment, starting on 8 August 2022 and ending on 7 October 2025. But for the plea of guilty and assistance with the administration of justice, that term would have been 4 years.
(c) 2350 of 2019 – Indecent assault on male
The offender is convicted and sentenced to 5 months, 14 days imprisonment, starting on 25 July 2025 and ending on 7 January 2026. But for the plea of guilty and assistance with the administration of justice, that term would have been 7 months.
That is an aggregate sentence of imprisonment of 5 years 6 months, from 8 July 2020 to 7 January 2026.
A non-parole period of 2 years is set starting on 8 July 2020 and ending on 7 July 2022. But for the plea of guilty and the assistance with the administration of justice, that would have been a period of 2 years, 6 months.
| I certify that the preceding [39] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Magistrate Theakston Associate: Lauren Dreyar Date: 8 July 2020 |
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