AB v The Queen

COUNSEL : P. Byrne SC (Applicant) P.G. Berman and J. Castaldi (Respondent/Crown) SOLICITORS : T.A. Murphy (Applicant) C.K. Smith (Respondent/Crown) CATCHWORDS : Sentences for multiple serious sexual offences by head of family ACTS CITED : Crimes Act 1900 AB v The Queen [1999] HCA 46, unreported, 9 September 1999 R v RWC, CCA, unreported, 4 August 1994 R v H, CCA unreported, 24 October 1994 R v Hill, CCA unreported, 7 July 1992 CASES CITED: R v. Barrett, CCA, unreported, 3 March 1997 R v. Eagles, CCA, unreported 16 December 1993 R v. Fisk, CCA, unreported, 21 July 1998 R v. V G Ryan, CCA unreported, 2 March 1998 R v. G F Risdale (1995) 78 A Crim R 486 R v. AGR, CCA, unreported 24 July 1998 DECISION : Leave to appeal granted; Appeal on counts 4 and 9 (fixed terms of 4 years penal servitude starting on 6 November 1996) dismissed; Appeal allowed on counts 1, 10, 17 and 18 and counts 3 and 8; sentences thereon quashed.; In lieu of the sentences imposed on counts 1, 10, 17 and 18, the applicant is sentenced on each of those counts to a fixed term of four years penal servitude starting on 6 November 1996 and ending on 5 November 2000; In lieu of the sentences imposed on count 3 and taking into account the further eleven sexual offences the applicant is sentenced to a cumulative minimum term of five years penal servitude starting on 6 November 2000 and ending on 5 November 2005 and an additional term of three years six months starting on 6 November 2005 and ending on 5 May 2009; In lieu of the sentence imposed on count 8 the applicant is sentenced to a minimum term of four years starting on 6 November 2000 and ending on 5 November 2004 and an additional term of two years starting on 6 November 2004

IN THE COURT OF CRIMINAL APPEAL 60549/98

LEVINE J SMART AJ

JUDGMENT 1 LEVINE J: I agree with the orders proposed by Smart AJ and his reasons therefor. 2 SMART AJ: It is necessary to use a pseudonym to protect the identities of the victims as the events to which reference will be made occurred when they were children. Nothing should be published which would enable them to be identified. Their suffering has been substantial. 3 ADW seeks leave to appeal against the severity of sentences totalling a minimum term of eleven years and an additional term of three years in respect of eight serious sexual offences extending over seven years (1988-1995) and involving his two daughters, his step-daughter, her step-brother (the applicant's de facto step-son) and his niece. The sentencing judge took into account a further eleven serious sexual offences which occurred between 1988 and 1996. 4 On each of count 1 (carnal knowledge of his daughter A, between 16 and 17 years), count 10 (carnal knowledge of step-daughter between 16 and 17 years) and counts 17 and 18 (sexual intercourse with a child of 13 years - his niece) ADW was sentenced to a fixed term of five years penal servitude starting on 6 November 1996. 5 On each of count 4 (carnal knowledge of his daughter C, aged 17) and count 9 (aid and abet S, the step-brother of L, to carnally know her, then aged 16) ADW was sentenced to concurrent fixed terms of four years penal servitude starting on 6 November 1996. 6 On count 3 (sexual intercourse with his daughter C, aged 14 years, being under his authority) and taking into account the further eleven serious sexual offences ADW was sentenced to a cumulative minimum term of six years starting on 6 November 2001 and an additional term of three years starting on 6 November 2007. 7 On count 8 (sexual intercourse with L, his step-daughter, aged 15 years and under his authority) ADW was sentenced to a minimum term of five years starting on 6 November 2001 and an additional term of two and a half years starting on 6 November 2006. 8 The judge expressly applied the principles of totality and stated that he considered that ADW should spend eleven years in custody before being released to parole. 9 In his reasons the judge set out the facts in relation to each offence. It is unnecessary to repeat them. It suffices to say that ADW was the moving party in subverting his daughters, step-daughter and niece, having penile intercourse with them and touching them on other parts of the body. He used them for his own sexual gratification. On occasions children other than the particular recipient were aware of and saw what was happening. 10 With S, when he was aged 14, the applicant determined that on a trip away from home S would lose his virginity. The applicant took a room in a hotel in Temora which had a double bed and 2 single beds to accommodate himself, L and S. The applicant, with the co-operation of L, acted as coach and instructor, explaining to S how to have intercourse and having L show and assist S. After S failed to ejaculate on his first attempt, the applicant instructed him to have a shower and after that to try again and do it properly. S tried again, having intercourse and ejaculating. ADW watched and supervised. 11 The judge summarised the facts of the eleven offences taken into account. They included having carnal knowledge of his daughter A in a caravan at Dural while on a visit to Sydney, carnal knowledge of his daughter C (2 offences), attempted carnal knowledge of his daughter C and aiding and abetting S to have carnal knowledge with his step-sister L (5 offences). The applicant organised, prompted and oversaw this intercourse, eventually bringing about a situation where S regularly had intercourse with L and became attached to her, even though they were step-brother and sister. Further there were two offences of ADW having penile sexual intercourse with his niece, one when she was 13 and the other when she was 14. The penile intercourse was often accompanied by other touching and sexual acts. It is not necessary to rehearse all the details. Suffice it to say that ADW exhibited considerable depravity in sexually exploiting the persons mentioned. They said that he was a big man and that they were frightened of him. 12 The applicant was born on 25 September 1947. He was first arrested on 4 September 1996 in respect of some offences. His previous record comprised offences as a juvenile and then as an adult of dishonesty and more vehicle offences between 1967 and 1974. There was then a 20 year period when he had no offences. In 1994 he had a larceny conviction and was fined. In 1996 he was convicted of negligent driving. These are not of consequence. He has had no previous convictions for sexual offences. 13 Victim impact statements from A and C revealed that both were and remain severely traumatised by the applicant's conduct. 14 The judge accepted that the applicant had had a difficult and deprived life. The home in which he was reared was unhappy. He did not even complete Year 7 at high school. He was sent to a Boys Home for being "uncontrollable". He was sexually abused against his will by another boy. He claimed that when he was 17/18 he was raped by four friends at a party. He gave this further history to the Acting Senior Psychologist at the Metropolitan Reception and Remand Centre, Mr. Ballard, who had seen the applicant on many occasions and treated him. He had a de facto relationship with Suzanne for six years from when he was aged 21 to 27. They had four children, two of them being victims of these offences. He also had an affair with another woman. About 1975 he met Estelle and they eventually married. They divorced in 1991 and have one son. During this period he found his children from his first relationship and gained custody of them. He then lived with L, Estelle's daughter, another victim, in a de facto relationship. They had a daughter who was born in 1990. His relationship with L ended in July 1996. 15 The applicant gave Mr. Ballard a history of alcoholism. Mr. Ballard thought that the applicant's memory and sexual problems may be a direct result of long-term alcohol abuse. 16 The applicant said that he had a memory loss. A 1995 neuropsychological assessment showed mild cognitive impairments. Mr. Ballard said that these would be noticeable and frustrating to ADW in every day life. This situation would be exacerbated with high levels of stress and depression which he was experiencing. 17 Mr. Ballard's report revealed that the applicant had attempted suicide on three occasions before coming into custody. The report records that ADW had made numerous suicide attempts since being gaoled. All the attempts seem to have been impulsive acts. He constantly threatens self-harm or suicide. From time to time he regards his life as hopeless and wants to die. Most of his hopelessness is to do with his inability to have contact with his youngest daughter. It also seems to involve guilt, anger and shame. 18 Mr. Ballard reported the odd attitude of the applicant to the offences and wrote that there appeared to be cognitive distortion in relation to the offences as well as the assertion that he cannot remember. Mr. Ballard etched the applicant's profile. The judge attached importance at this. Mr. Ballard said that people with the applicant's profile are loners with little or no interest in other people. Being in control and exerting power perhaps to the point of intimidating others is a central means such people use to achieve their goals. I will not rehearse the other characteristics. Mr. Ballard wrote: "On the Multiphasic Sex Inventory Profile (MSI) Mr [ADW's] results indicated the presence of an asexual image, and that although he saw himself as a victim with some character disturbance, and justifies his sexual deviance to some extent, he is highly motivated for treatment." and "[ADW] is suffering from a personality disorder along with depression and health problems. Alcoholism is probably a causative factor in his memory impairment and sexual dysfunction. He vacillates between wanting treatment and wanting to die. He faces enormous difficulties and challenges if he is to realise a complete rehabilitation."

Mr. Ballard also wrote: "[ADW] has little or no understanding of his offending behaviour and is only now admitting that it was wrong."

19 Mr. Ballard recommended a number of measures aimed at rehabilitating the applicant. He thought that suicide was still a strong possibility. Therapy must first deal with this. He added "Until he has some sense of hope and purpose for his life little in the way of rehabilitation is likely to be achieved." 20 Dr. Olav Nielssen, consultant psychiatrist, reported that the applicant's social judgment was clearly impaired in the way he characterised the offences as "a love affair". Dr. Nielssen also thought that the applicant appeared "to have a personality disorder characterised by unstable mood, chronic depression, immature and self defeating responses to stress and gross boundary violations". The applicant also suffered from a chronic low grade depression. However, the offences were not typical of someone who was severely depressed at the time the offences occurred. Dr. Nielssen thought that the applicant's prognosis depended on his response to counselling and treatment whilst in gaol. 21 Dr. Nielssen noted that the applicant was being held in strict protection and was suffering considerable distress, that strict protection prisoners have limited access to programmes available in gaol and spend more time locked in isolation. Dr. Nielssen added that special protection prisoners experience constant threats and derision from other prisoners and some prison officers. Dr. Nielssen has done a substantial amount of work in gaols. 22 The judge, after noting that the applicant had no previous sexual offences and had not previously had counselling assessed his prospects of rehabilitation as average. The evidence supported that finding. The applicant is going to need sustained and long-term support while in gaol and on his release. Indeed, he is likely to need ongoing support for his problems for many years to come. They are obviously deep seated. If rehabilitation occurs he will need such support to prevent relapses. 23 The judge accepted that the applicant had pleaded guilty to the offences at the first practicable opportunity. The judge took this firstly as a sign of contrition and remorse. Secondly, the pleas had a utilitarian value of saving the State the time, trouble and expenses of conducting a number of serious criminal trials. Thirdly, the applicant saved the victims from the ordeal of giving evidence and the traumatic experience that complainants in such cases have in the course of the trial process. 24 The judge attached importance to the aspects of prevention, retribution, general and private deterrence, the need to remove the applicant from society so that he will be prevented from committing similar or cognate offences during the sentences imposed and hopefully ever again. He also considered rehabilitation. 25 The judge found special circumstances but only applied that finding to the cumulative sentence on count 3 with a minimum term of six years and an additional term of three years and to the cumulative sentence on count 8 of a minimum term of five years and an additional term of two years six months. He did not allow for greater additional terms and lesser minimum terms because he assessed the applicant's prospects of rehabilitation as no higher than average.

Appeal Ground 1 : The overall sentence is manifestly excessive, particularly having regard to the applicant's plea of guilty.

26 Counsel for the applicant conceded that there were a large number of serious offences committed over a relatively long period of time against different victims and that the criminality involved in the applicant's conduct must attract a substantial sentence of imprisonment. I would add that all the victims were teenagers who were entitled to expect him to protect them and not abuse them. His criminality is high. Nevertheless, it was submitted that a sentence of fourteen years is, when the totality of the criminality is taken into account along with the subjective features, excessive. 27 The applicant submitted that if he had been convicted after a number of trials (and there would probably have been five separate trials) he would not have received greater sentences than those imposed and therefore the argument that he had not been given sufficient credit for his pleas of guilty had been made good. 28 The applicant submitted that an analysis of the relevant statistics from the Judicial Commission supported the proposition that the sentences were excessive. The Court was taken to the statistics for multiple counts under s.66C(1) of the Crimes Act 1900 of sexual intercourse with a child aged 10-16 with Form 1 Matters, no prior convictions and a plea of guilty for the period January 1990 to October 1998. These statistics showed that there were four such offenders who went to prison, with full terms of twenty-four months, thirty-six months, forty-eight months and six years respectively. The statistics for all offenders of sexual intercourse with a child aged 10-16 showed that 14 per cent received full terms of 48 months, 3 per cent received 54 months, 10 per cent received 5 years, 10 per cent received 6 years and 4 per cent received 7 years. 29 The applicant accepted that sentences higher than those in the present case had been imposed in AB v. The Queen [1999] HCA 46, unreported 9 September 1999, but that case had been referred back to the Court of Criminal Appeal to re-sentence. AB was a teaching brother in a church school and committed some 67 offences on 15 boys in his care over 11 years. The boys were between 9 and 11 years of age. There were 13 offences of sexual intercourse, 46 of indecent assault, 7 of acts of indecency and one of gross indecency. Many of these offences were representative of more like offences. The offences involved grave breaches of trust and "deep-seated long-lasting, if not permanent psychological damage" to the boys. AB had evaded the authorities for years. It is an even graver case than the present. The trial judge sentenced him to 18 years with a minimum term of 13½ years. 30 In R v RWC, CCA unreported, 4 August 1994, RWC pleaded guilty to 24 charges of sexual assault upon 4 female victims aged between 8 and 25, extending over the period 1984 to 1992. Two of the victims were RWC's daughters. The charges involved acts of penile and digital penetration and included carnal knowledge of a child under 8. At the time of the commission of 14 offences RWC was on bail in connection with an unrelated sexual assault charge on another child. The complainants had been seriously threatened with reprisals if they told the authorities. The offences involved child sex abuse on a scale rarely seen. It was a worse case than the present. This Court held that sentences involving penal servitude comprising a minimum term of 12 years and an additional term of three years were not excessive. That was a worse case than the present one. 31 In R v H, CCA unreported, 24 October 1994, H was convicted by a jury after a trial of 16 sexual offences; some were against his daughter and others were against his step-daughter. He was sentenced overall to a minimum term of 14 years. Dunford J stated that the extremely serious offences involved not only physical violence but the sexual abuse of his daughter and step-daughter in a manner and context which was disgusting and at times quite bizarre and which extended over 15 years. Dunford J adopted the trial judge's description of H "holding the entire family in thrall by a regimen of calculated brutality and unbridled lust and terrorising and debauching his daughters". H's conduct was described as nothing short of monstrous. This Court held that the sentences were not manifestly excessive. Again, that is a worse case than the present one. 32 In R v. Hill, CCA, unreported, 7 July 1992, the offender was a paedophile who had pleaded guilty to a large number of offences against young boys between 8 and 14 years. The boys were picked up by Hill at Cinema complexes and other places and given a good time. Buggery and oral intercourse were involved with some of the activity being recorded by video taping. The boys were encouraged to practice indecent acts on each other. Hill had served a previous long sentence for serious sexual offences. He was unable to control himself. His attitude was that the boys consented and like what happened. This Court held that sentences comprising in total a minimum term of 12 years and an additional term of 4 years were not excessive. One important distinguishing feature was Hill's previous convictions. 33 In R v. Barrett, CCA unreported 3 March 1997, Barrett was sentenced for 29 sexual offences over a period of 1972-1980 involving 5 boys between 9 and 12 years of age. One victim complained and four more were discovered through the police investigation. Forty-four additional sexual offences over a 9 year period involving 13 boys between 8 and 16 years of age were taken into account. These were disclosed by Barrett. There was sustained and exploitative paedophilic activity. There was an abuse of trust. Barrett was a friend of some of the parties. There was no evidence of force or violence. He pleaded guilty and had voluntarily ceased activities before being exposed. The sentences comprising a minimum term of 7½ years and an additional term of 2½ years were upheld. 34 In R v Eagles, CCA unreported, 16 December 1993, there were eight sexual offences involving 5 young boys. He pleaded not guilty to one offence. After conviction he pleaded guilty to the remainder of the offences. There was an abuse of trust, Eagles being a baby sitter/Scouts leader. Sentences comprising a minimum term of 7 years and an additional term of 3 years were upheld. 35 In R v Fisk, CCA unreported, 21 July 1998 there were 24 offences involving 3 victims aged 14-19 years. There was a plea of guilty. Fisk exploited children from dysfunctional backgrounds. Sentences comprising a minimum term of 9 years and an additional term of 3 years were upheld. He would have received 14 years but for assistance to the authorities. 36 In R v. VG Ryan, CCA unreported, 2 March 1998, there were 14 sexual offences involving 12 boys aged 6-12. The relationship was that of parish priest and altar boys. Of the 12 victims in the indictment only 3 were known to the police. Ryan disclosed the remainder. Thirty-nine additional offences on Form 1 were taken into account. The effective sentence was 20 years with a minimum term of 15 years. These sentences were upheld. The special leave application was adjourned by the High Court pending the decision of AB. That was decided on 9 September 1999. Ryan appears to involve much the same extradition point. 37 In R v G F Risdale (1995) 78 A Crim R 486 there were 46 offences involving at least 25 children, mainly altar boys, with Risdale being the parish priest. There were one brother and sister whose father had been killed recently. There were pleas of guilty. There was a gross abuse of trust and a significant impact on the children. The Victorian Court of Appeal upheld total sentences of 18 years with a non-parole period of 15 years. The distinguishing feature of Risdale was the large number of children involved. 38 The applicant placed reliance on R v. AGR, CCA unreported, 24 July 1998. After a jury trial AGR was found guilty of two offences of indecent assault and one of buggery upon CR his youngest brother when he was respectively 9, 10 and 14 years old. AGR then pleaded guilty to indecently assaulting JPR, a brother of AGR and CR, indecently assaulting BS (with a further offence to the same effect being taken into account), two offences of having sexual intercourse with JAV, a child under 10 years (with 2 further offences to the same effect and an offence of indecently assaulting JAV being taken into account), two offences of indecently assaulting TMV, a child under 10 years or 16 years at the time of the offences, and four further offences committed against TMV being taken into account and committing an act of indecency on PJH. The sentences imposed by the trial judge comprised, in total, a minimum term of 12 years and an additional term of 4 years. 39 The counts of indecent assault were representative counts, the applicant having indecently assaulted CR many times from the time CR was 3 years old until the commission of the act of buggery when CR was 14 years old. After that CR refused to allow the applicant to abuse him sexually any further. CR was 10 years younger than the applicant. JAV had been entrusted to the applicant's care by his family whom the applicant knew. The commission of the offences against JAV represented a betrayal of trust. 40 There were 17 offences, with some of the counts being representative counts, occurring over at least 23 years and six victims whose ages ranged from about 6 years to 15 years. AGR had no relevant criminal record and his sentence would be served on protection. The Court stated that the fact that the offender had been sexually abused as a child was a matter which could be taken into account in mitigation of penalty. The Court held that the sentence imposed was excessive and substituted sentences totalling 12 years with fixed or minimum terms of 8 years. 41 AGR practised wicked acts upon his young brothers. There was an element of debauchery in what occurred. There was a breach of trust towards JAV. The criminal acts extended over a long period. While the role of an elder brother and that of a person entrusted with the care of a young child are important and involve heavy responsibilities, those of a father are even greater. 42 Counsel for the applicant submitted that of all the many cases dealing with sentences for child sexual offences AGR provided the most assistance and indicated the order of sentencing which was appropriate to the present case. 43 Daughters, step-daughters and members of a family group should be able to rely on their father or the man who is responsible for the family group to protect them. In this case he used his position to defile them. He dominated the household and the children mentioned. 44 Accepting that the offences were grave, the criminality was very high, and that the victims were adversely affected to a serious extent, long terms of imprisonment were warranted. However, the sentences imposed were unduly long, having regard to the early pleas of guilty and the credit to which the applicant is entitled for those pleas. The sentences imposed would have been within the permissible range if there had been a trial and no pleas. 45 The applicant will need extensive counselling and treatment in gaol. Assuming that a substantial measure of rehabilitation is achieved in gaol so that the Parole Authorities conclude that he can be released on parole on completion of his minimum term, the applicant will as earlier mentioned need ongoing support and supervision after release. 46 The effect of the judge's sentences was to impose less than the usual additional term when the sentences are aggregated as they should be, that is 14 years and 11 years. For a full term of 14 years the usual minimum term would be 10½ years and the usual additional term would be 3½ years. It is unusual for the Probation and Parole Service to supervise for longer than 3 years but the applicant will need support beyond that period to avoid relapses. 47 After considering all the circumstances and bearing in mind the cardinal importance of the gravity of the offences, the importance of deterrence and the principles of totality, the sentences should be adjusted so that full term sentences of twelve years six months with minimum terms totalling nine years are imposed. Because of the accumulation of sentences, fixed terms have been set for some of the sentences. The eleven offences on Form 1 and mentioned earlier have been taken into account on count 3. 48 I propose the following orders:

(b) Appeal on counts 4 and 9 (fixed terms of 4 years penal servitude starting on 6 November 1996) dismissed.

(c) Appeal allowed on counts 1, 10, 17 and 18 and counts 3 and 8; sentences thereon quashed.

(d) In lieu of the sentences imposed on counts 1, 10, 17 and 18, the applicant is sentenced on each of those counts to a fixed term of four years penal servitude starting on 6 November 1996 and ending on 5 November 2000.

(e) In lieu of the sentences imposed on count 3 and taking into account the further eleven sexual offences the applicant is sentenced to a cumulative minimum term of five years penal servitude starting on 6 November 2000 and ending on 5 November 2005 and an additional term of three years six months starting on 6 November 2005 and ending on 5 May 2009.

(f) In lieu of the sentence imposed on count 8 the applicant is sentenced to a minimum term of four years starting on 6 November 2000 and ending on 5 November 2004 and an additional term of two years starting on 6 November 2004. ********

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