The Queen v Trickey
[2008] NFSC 1
•15 APRIL 2008
SUPREME COURT OF NORFOLK ISLAND
The Queen v Trickey [2008] NFSC 1
CRIMINAL LAW – sentence – sexual intercourse without consent – complainant intellectually disabled – vulnerability of victim as aggravating factor – hardship to third parties as mitigating factor
Criminal Law Act 1960 (NI) s 93D
Sentencing Act 2007 (NI) ss 5(1)(a), 5(1)(c) 92(1) and 100THE QUEEN v NORMAN LINDSAY TRICKEY
SCC1 OF 2007WEINBERG CJ
15 APRIL 2008
SYDNEY (HEARD ON NORFOLK ISLAND)
IN THE SUPREME COURT OF NORFOLK ISLAND
CRIMINAL JURISDICTION
SCC1 OF 2007
BETWEEN:
THE QUEEN
AND:
NORMAN LINDSAY TRICKEY
Respondent
JUDGE:
WEINBERG CJ
DATE OF ORDER:
15 APRIL 2008
WHERE MADE:
SYDNEY (HEARD ON NORFOLK ISLAND)
THE COURT ORDERS THAT:
1.For the offence of sexual intercourse without consent contrary to s 93D of the Criminal Law Act 1960 (NI), Norman Lindsay Trickey be imprisoned for a term of three years and ten months, the commencement date of that sentence being 15 April 2008.
2.A non-parole period of one year and eleven months be fixed, the commencement date of that non-parole period being 15 April 2008.
IN THE SUPREME COURT OF NORFOLK ISLAND
CRIMINAL JURISDICTION
SCC1 OF 2007
BETWEEN:
THE QUEEN
AND:
NORMAN LINDSAY TRICKEY
Respondent
JUDGE:
WEINBERG CJ
DATE:
15 APRIL 2008
PLACE:
SYDNEY (HEARD ON NORFOLK ISLAND)
REASONS FOR JUDGMENT
Norman Lindsay Trickey, you have been convicted by a jury in the Supreme Court of Norfolk Island on one count of sexual intercourse without consent contrary to s 93D of the Criminal Law Act 1960 (NI). The maximum penalty for that offence is imprisonment for twelve years. You are now to be sentenced.
The essential facts may be stated briefly. At about 6 pm on Sunday 25 February 2007, Priscilla Davies, a young woman then aged twenty-five, went to your home at Collins Head Road on Norfolk Island. She went at your invitation. You had suggested to her earlier that day that she might join you for dinner. You had an ulterior purpose. You intended to have sexual intercourse with her.
Priscilla Davies is intellectually disabled. She was injured in a car accident at a very young age and sustained brain damage. She has been assessed as mildly retarded and as having an IQ of 69. You yourself described her as being “slow”. She had no previous sexual experience. She had no idea of what you had in mind when you suggested that she come for dinner.
Your wife Phyllis suffers from emphysema and a number of other serious illnesses. On the day in question, she was in hospital. You took advantage of her absence from home when you arranged for Priscilla to visit you. That was shameful conduct on your part. However, my task is to sentence you for your criminal behaviour and not for your moral failings.
When Priscilla arrived at your home, you offered her some wine. You showed her your garden and took her through the maze that you had created as a tourist attraction. You returned to the house and began to prepare dinner. You then told her that there was something else you wanted to show her. You asked her to follow you, and when you reached the doorway of one of the bedrooms, you invited her to enter the room. You pulled the doona and sheet down, and switched off the light. You said to her words to the effect of: “I get really horny around you and no one else.”
Priscilla still had no idea of what you were contemplating. However, she felt worried and anxious. You then walked around to the side of the bed where she was standing and said to her that you had been “wanting to do this with you years ago”. You started kissing her neck and then her mouth. You put your tongue in her mouth and then began to fondle her breasts. Priscilla told you, in a forceful voice, that she wanted you to stop. You ignored her and began to undress her. You pushed her backward onto the bed and finished undressing her. You touched her breasts and began sucking them. She told you on at least three occasions in a loud voice to stop but you did not. You kept saying: “just a little bit more.”
You then had sexual intercourse with her without her consent. Afterwards, you prepared dinner for the both of you and invited Priscilla to stay the night. She declined to do so. She left and the following morning told a friend what you had done. The matter was then reported to the police.
The jury, by its verdict, found that you were fully aware at the relevant time that Priscilla was not consenting.
Having sexual intercourse without the other person’s consent is always an act deserving of heavy punishment. Rape is a crime which comprehends a wide variety of circumstances and as many degrees of culpability. It is recognised that deterrent and retributive elements predominate in sentencing for this offence. Heavy penalties are necessary to mark its gravity, to express the community’s disapproval of the crime, to act as a deterrent and to protect victims from unwanted sexual contact.
The objective circumstances of this particular crime are serious. You were sixty-two years of age at the time. You were old enough to be Priscilla’s grandfather. You had known her throughout her entire life. You knew that she was unsophisticated and naïve. You knew of her intellectual disability and that this made her highly vulnerable. She described your conduct aptly as sexual abuse. You also abused a family friendship with her adoptive parents (who are in fact her grandparents), which went back many years, and took advantage of their absence from the island while her adoptive father was receiving urgent medical treatment. As Mr Greenhill properly conceded, Priscilla’s disability and special vulnerability are aggravating features of your crime.
You have shown no remorse whatever for your actions. You pleaded not guilty. You testified before the jury that Priscilla had initiated all sexual contact that occurred that evening. You claimed that you were taken by surprise and that, in a moment of weakness, you went along with her desires. The jury rejected your evidence. They found that Priscilla was telling the truth and that you were lying. The fact that your evidence was not believed does not mean that you are to be punished more severely on that account, and you may rest assured that you are not being treated more harshly by reason of the manner in which you conducted your defence. However, you are not entitled to any leniency which might otherwise have attached to a plea of guilty and a genuine expression of remorse.
There are a number of mitigating circumstances in your case. You have no prior convictions. There is evidence before me that you are a person of prior good character and reputation. I accept that evidence. You are now sixty-three years of age. Your actions on the night in question were, it would seem, wholly out of character. I do not think that you will re-offend. It follows that individual deterrence is not a major factor in sentencing you for this offence.
You have until this time led an apparently blameless life. For some years you have operated a successful glass bottom boat business on Norfolk Island. You are also a gardener of some considerable skill. You are married and have two adult sons and several grandchildren. Any sentence of imprisonment that I impose must be served in New South Wales. This means that you will be cut off from your wife, who must remain on Norfolk Island, and at least one of your sons. Indeed, your wife’s condition is so serious that there is a chance that you may never see her alive again. I refer in that regard to the evidence of Dr Garry Mitchell, her treating doctor, which was called on your behalf on the plea.
I accept that you may have to serve part of your sentence, at least, in protective custody. That is an unfortunate by-product of your crime. It is a matter that I take into account in your favour.
As previously indicated, the maximum sentence for the offence of which you have been convicted is twelve years’ imprisonment. You are to be sentenced in accordance with the provisions of the Sentencing Act 2007 (NI). That Act creates, for the first time, a system of parole for Norfolk Island prisoners. It is now possible to fix a non-parole period as part of any sentence that is imposed. Section 92(1) provides that where a Court sentences an offender to be imprisoned for twelve months or longer, and does not suspend that sentence in whole or in part, the Court shall fix a non-parole period of not less than fifty per cent of the period of imprisonment that the offender is to serve under the sentence.
Mr Greenhill submitted that any sentence of imprisonment should be suspended in whole or at least in part. He did so largely on the basis of Dr Mitchell’s evidence regarding your wife Phyllis’s condition. He submitted that it is plain that Phyllis is in need of constant care and that you are the only person capable of providing such care.
I have given Mr Greenhill’s submission, or at least so much of it as related to a partially suspended sentence, anxious consideration. In the end, however, I am unable to accept that your sentence should be suspended, either in whole or in part. The authorities make it clear that a wholly suspended sentence of imprisonment in relation to a count of rape would be an extreme rarity. This is not such a case. Indeed, there is nothing, in my view, which warrants partially suspending the sentence of imprisonment that I will shortly impose upon you. Rather, I have given effect to the mitigating factors present in your case by reflecting them in the term of imprisonment that I will impose and the non-parole period that I will fix.
It is regrettable that your incarceration in New South Wales will cause so much hardship to members of your family. It is particularly sad that your imprisonment will make it so difficult for your wife and sons to cope with her illness. Your family are the innocent victims of your crime. Nonetheless, it is well recognised that hardship caused to third parties as a result of the sentence imposed on an offender can usually only be of minimal importance, particularly when the offence of which the offender is convicted is serious. Inevitably, hardship will be caused to others, especially those who are dependent on the offender in some way. I have taken into account the hardship that your imprisonment will cause to your family.
In sentencing you for this crime, I am required to have regard to the need for general deterrence. I must also ensure that you are punished in a way that is just in all the circumstances. These factors are addressed in ss 5(1)(a) and (c) of the Sentencing Act. The sentence I impose must make it clear that the people of Norfolk Island, acting through this Court, entirely repudiate your actions on the night in question.
In her victim impact statement, Priscilla generously acknowledged that she had not suffered any major physical injury as a result of your offence. Not surprisingly, however, she said that she was “emotionally upset” and had undergone months of counselling. She said that she felt embarrassed, ashamed and worried about what other people were thinking. She was often tearful and had flashbacks of the incident. She said that she had lost trust in many people. She worried about the impact and stress caused to her family, particularly her father, who was very ill.
To Priscilla’s great credit, she indicated that she was determined to keep busy and not allow you to ruin her life or reputation. She said that she felt a sense of relief that this case was over. She felt proud that she had done this for other women on Norfolk Island as well as herself.
Priscilla Davies is, in my view, a remarkable young woman. She has done her best to overcome her disability. She has nothing to feel embarrassed or ashamed about. She conducted herself with great dignity in court. Her victim impact statement is of positive benefit to you.
Your conduct towards Priscilla was totally unacceptable. Women are entitled to the full protection of the law, especially against those who behave, as you did on this occasion, as sexual predators. When Priscilla told you, repeatedly, to stop, her meaning was clear and unambiguous. She said no, and she meant no. Those who will not take no for an answer must be prepared to suffer the consequences.
Section 100 of the Sentencing Act relevantly provides that a sentence of imprisonment commences on the day it is imposed. Curiously, there is no provision which, in terms, allows a sentence to be backdated to the date upon which a prisoner first goes into custody. Nonetheless, fairness dictates that you should be given credit for the time that you have spent in custody awaiting sentence. In your case, that is just over one month. I have no doubt that the uncertainty surrounding your fate has made that period particularly difficult for you. I have taken that period of one month in custody into account, and given you some additional benefit in relation to it, as will be seen by the sentence I now impose.
The sentence of this Court is that you be imprisoned for a term of three years and ten months, that sentence to commence from this day. I fix a non-parole period of one year and eleven months, that non-parole period also to commence from this day. I fix that non-parole period on the basis that it is not less than fifty per cent of the period of imprisonment imposed, as required by law.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Weinberg. Associate:
Dated: 15 April 2008
Counsel for the Prosecution: Mr J Kiely SC Solicitor for the Prosecution: Crown Counsel for Norfolk Island Counsel for the Accused: Mr R Greenhill SC Solicitor for the Accused: McIntyres Solicitors Date of Hearing: 10, 11, 12, and 13 March 2008 Date of Judgment: 15 April 2008