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1. On 28 August 2024, Mr Alexander Waters (a pseudonym) (the offender) pleaded guilty to the following offences: (a) Three offences of committing an act of indecency without consent, contrary to s 60(1) of the Crimes Act 1900 (ACT). The maximum penalty for these offences is 5 years imprisonment. (b) An offence of incest, contrary to s 62(2) of the Crimes Act 1900 (ACT). The maximum penalty for this offence is 15 years imprisonment.

2. This matter was listed for sentencing hearing on 29 January 2025. Upon the conclusion of that sentencing hearing I revoked the offenders bail. Thus the offender has been in custody since that date.

Agreed facts

3. The agreed facts are set out in the Statement of Facts, which forms part of the Prosecution Tender Bundle. As noted in the agreed facts, the relevant offences occurred over a significant period of time. The agreed facts may be summarised as follows.

4. The offender is the biological father of the two victims in this matter. The offender and his family moved to Australia from France in 2002. Upon their arrival, the family lived in Canberra, and remained living in Canberra until the breakdown of the family unit that resulted from this offending.

5. The offending occurred in the family home in a suburb of Canberra.

6. The relevant charges are within a significant timespan from 2005 to 2010. The victim of counts one, two and three (being the counts of act of indecency), is the offender’s eldest daughter. For clarity I will refer to this victim as the ‘first victim’. The victim for count four, being the count of incest, is the offender’s younger daughter. Again for clarity, I will refer to this victim as the ‘second victim’. Count 1 – Act of indecency without consent

7. The first offence occurred in the time period between 2005 and 2007, when the first victim was approximately 16 or 17 years old.

8. This offence against the first victim occurred in circumstances where the first victim was showering. As to Count 1, the offender entered the bathroom without knocking, looked the first victim up and down before looking directly at the first victim’s genitalia and saying in French, “that’s a nice little pussy you got there”.

9. The offender then left the bathroom. Count 2 – Act of indecency without consent

10. The second offence occurred in the following circumstances; the offender and the first victim were laying together on a couch at their residence in Canberra. At this time, the first victim recalls that she was around 17 years old. This recollection is based on the type of clothes that the first victim recalls wearing at the time of the offending.

11. On this occasion, the offender reached his hand down the back of the first victim’s jeans to around the top of her bottom and started to pull on the first victim’s underwear. The first victim then told the offender to stop and pulled away from him. Count 3 – Act of indecency without consent

12. The third offence occurred in the following circumstances; the first victim had gone out with her friends on a weekend night. The first victim estimated her age was either soon to be 18 or had recently turned 18 at the time of this offence. Upon the first victim returning home, the offender was awake.

13. Upon the first victim entering the home, the offender was noted by the victim to have had an alcoholic drink with him, and to have appeared quite drunk. As the first victim walked into the house, the offender walked towards the first victim, grabbed her by the waist and pulled the first victim in towards him.

14. Then, the offender told the first victim that he loved her in a way that a father should not. While the offender was still holding the first victim by the waistline, he instructed the first victim to kiss him. The first victim then gave the offender a peck on the cheek.

15. These events, whereby the offender would be awake upon the first victim arriving home at night and then act inappropriately towards her, occurred on multiple occasions. It was not an isolated event. In accordance with sentencing principles, I will therefore sentence for this specific count and this specific count only, while at the same time recognising that it was not an isolated event.

16. The first victim communicated concerning this series of offences (being counts 1, 2, and 3) with her aunt in France at the age of approximately 18, and later communicated with her mother and sister in approximately 2018. Count 4 – Incest

17. The offending against the second victim (the younger daughter), being the fourth offence, occurred in September 2010, when the second victim was 15 years old. At this time, the first victim had moved out of the family home to a residence in another suburb of Canberra, and was living with her boyfriend. Living at the family home at this time was the second victim, the offender’s wife, being the second victim’s mother, and the offender.

18. Around this time, the second victim would say goodnight and cuddle with her parents in their bedroom before the second victim went to sleep in her own bedroom.

19. On the evening of 10 September 2010, the second victim and her parents all went to bed at around the same time. The second victim got into her parents’ bed and was laying between her mother and the offender.

20. Sometime after falling asleep, the second victim woke up to the feeling of pain and found the offender penetrating her vagina with his two fingers. The Statement of Facts sets out that the offender was pushing his fingers into the second victim’s vagina trying to penetrate her.

21. The second victim immediately jolted upwards and saw the offender’s hand underneath the blanket, over her abdomen. The offender then screamed and cried out, saying “mum wake up”, and “dad did something wrong”, before jumping out of the bed and running to the bathroom.

22. Following the incident, the second victim and her mother went to the first victim’s home. When driving to the first victim’s home, the offender called his wife, stating at various times that “no it’s not true, she is a liar”, “I don’t want to lie, I’m just so scared of what’s happening”, and “I didn’t know it was [the second victim]”.

Victim Impact Statement

23. At the sentencing hearing, a statement on behalf of both victims was tendered and read to the court.

24. The Victim Impact Statement tendered in court relevantly included the following: This has affected our lives drastically and is hard to put into words. But here goes: - It has had an impact on every relationship in our [lives]. Making relationships with partners very difficult with issues of intimacy, trust and safety. - It has caused life long mental health issues that we struggle with on a daily basis. We now battle with severe anxiety, depression, [PTSD] and night terrors. This comes with memory loss, difficulty managing daily tasks and inability to deal with normal life [stressors]. - It has caused drug and alcohol problems by means of coping mechanisms. - It has had a severe impact on our paths and progress of life as we have had to battle this while we watched on as everyone else around us grew up and achieved goals making us feel inadequate and faulty. - It has had an impact on our work and financial stability. - Through years of therapy, we have had to relearn how to set healthy boundaries and process emotions in a healthy away.

We feel proud of our ability to survive and grow despite our past but it hasn’t been without challenges. We resent the loss of innocence and ability to trust. After all, isn’t it the parents’ responsibility to nurture and protect their children? As children, shouldn’t we be able to trust our parents blindly as they have our best [interests] at heart? Sadly, we learnt the hard way that it wasn’t so. We now get to carry this for the rest of our lives.

The despicable acts brought to justice today have festered in our family for too long. Swept under the rug and excused for too long. Today, we seek acknowledgement for the suffering we have endured at the hands of someone who should have protected us. Today, we stand up for what is right, and we do it proudly. Despite everything you have done to us, we stand strong and united. We want you to be accountable. We want people to know what you hide behind your well constructed mask. We know. So should everyone else.

25. The joint statement of the sisters was a powerful and eloquent expression of the inevitable impact of the criminal and appalling behaviour of the offender. His offending was a deplorable betrayal of his parenting role.

26. It is well established that there is a presumption of harm to child victims: see R v CV [2013] ACTCA 22 at [24]; R v Horton-Hegarty [2018] ACTCA 22 at [46].

27. The Court recognises the serious and long-lasting effects of the crimes of the father on the victims, his children. As I stated at the sentencing hearing: First of all, the court acknowledges your very important victim impact statement. It is a very eloquent statement that speaks of deep pain. The court has heard and understood your victim impact statement. This is something no child should ever have to go through and what is stated in the joint victim impact statement is, regrettably, what the courts see time and time again through the actions of people such as your father who commit these offences. No child should have to lose their innocence in this way or their ability to trust and it is, indeed, a parent's responsibility to nurture and protect their children and not to use them in this criminal way. I note the dignity in your statement that you stand strong and united, and that is important. And always know that the guilt for such an offence is borne by the offender and no-one else.

Objective seriousness

28. As to the seriousness of the offending: sexual offences involving children and involving incest are properly regarded by the community as abhorrent: R v BNS (No 2) [2016] ACTSC 145 [27], R v CC [2016] ACTSC 43 at [39]-[40]. Such offending committed by a parent involves a complete breach of childhood trust.

29. As Burns J correctly, properly and succinctly observed at [40], “Incest and other 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.”

30. The prosecution correctly submitted that while the first victim was not a ‘young person’ in the sense of being under the age of 16, the consequences for victims of child sexual abuse as referred to in the authorities, have application given the familial relationship. (R v SM [2021] NSWDC 786 at [33]). In my view, this submission is soundly based on the authorities and the facts in this case.

31. I discuss the submissions concerning objective seriousness below.

Incest (second victim)

32. The prosecution correctly submitted that the following matters are relevant in an assessment of the objective seriousness of the offence of incest. I underline the following factors:

33. First, the nature of the act. In the present matter, the offending involved digital penetration. I note it is well established on the authorities that there is no hierarchy of types of sexual intercourse, and that the type of penetration is but one factor to be taken into account: R v AJP [2004] NSWCCA 434; 150 A Crim R 575 at [24]; R v BNS (No 2) [2016] ACTSC 145 at [32]. I note the duration of the offending is indeterminate. Nevertheless, it is also clear that the offending was not momentary or fleeting. Nor was the offending of long duration.

34. Second, the age of the victim. I note the offender was 51 and the victim was 15 at the time of the offending; that is a significant age gap.

35. Third, the location of the offending is noted.

36. Fourth, the moral culpability of the offender.

37. Self-evidently, the offending involved an egregious breach of trust. Nevertheless, in the case of incest, the relevant legal authorities have underlined that the breach of trust is an inherent element of the offence of incest (R v BNS (No 2) [2016] ACTSC at [28]; R v SH [2015] ACTSC 25 at [43]).

38. In relation to the moral culpability of the offender, the prosecution correctly submitted that there is evidence that the offender told his wife on the phone shortly after the offending that he “didn’t know it was [the second victim]”, and a few days later he told the family doctor that he “thought she was his wife who was in bed with him.” I further note that similar comments were made to Professor Ogloff. The prosecution submitted that this belief cannot be established on the evidence as a mitigating factor. I agree. It is not established, on the evidence before me, on the balance of probabilities: R v Olbrich [1999] HCA 54; 199 CLR 270 and Filippou v The Queen [2015] HCA 29; 256 CLR 47.

39. I further underline, in this context, that the offender made assertions in the period following the offending that are inconsistent with a belief that the victim was his wife. The offender stated “I don’t know what happened”, “she’s a liar”, and that “he was very drunk and had no clear memory of what happened”.

40. I accept the prosecution submission that the offenders claim that he mistook his daughter for his wife is not credible. That accords with my view of the evidence.

Acts of indecency without consent (first victim)

41. It is clear that the offence of committing an act of indecency without consent may cover a wide spectrum of offending, from sexualised words to genital-on-genital contact: see R v Ardron [2021] ACTSC 91 at [37], R v Ridley [2014] ACTSC 382 at [36].

42. The prosecution properly submitted that the individual conduct relating to each act of indecency, when viewed as an isolated act, falls at the lower end of objective seriousness. Nevertheless the position of the offender as the victim’s father increases the seriousness. In my view, it is clear on the evidence that: (a) The offender abused his position of authority and that breach of trust was significant; (b) The victim was vulnerable as a result of the parental relationship. Being over 16 years of age does not and cannot change the parental relationship.

43. Counsel for the offender did not address objective seriousness nor cavil with the identifying features outlined by the prosecution.

44. Finally on the issue of categorising objective seriousness, I note that references to low, mid-range and high-range, are unlikely to be helpful. It is preferable “for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of that case”: R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [24]. I have accepted on the evidence that the features identified above are the relevant identifying features concerning objective seriousness.

Subjective circumstances

45. In evidence before me is a pre-sentence report (PSR) prepared for the offender. That report included the following.

Family/Marital Background

46. The offender is now 66 years of age; was born and raised in France and reported a happy childhood. The offender is now divorced.

Education and Employment

47. The offender attended university prior to being trained in piano tuning in France. The offender has operated his own business tuning pianos since 1980.

Alcohol

48. The offender disclosed issues concerning the misuse of alcohol. The offender stated his use of alcohol previously consisted of half a bottle of whiskey and a bottle of wine on a daily basis. The offender asserted that he had abstained from alcohol since 2009. 49 ․ Contrastingly, it is noted that one of the offences occurred in September 2010, and the Statement of Facts note the offender to have been consuming alcohol during the relevant period. The offender stated that he has no current desire to drink alcohol. Mental Health

49. In the report, the offender disclosed a history of Bipolar Depressive Disorder and a history of attempted suicide. The offender reported his depression had become worse without alcohol, and due to the difficulty in regularly seeing a psychologist due to legal fees. The offender reported his current mental health medication to be mirtazapine and diazepam.

Attitude To Offences

51. The report noted that the offender agreed in part with the Statement of Facts. He stated he was unable to recall the offences due to his level of intoxication at the time. The offender stated he believes the offences likely took place as set out in the Statement of Facts, as he does not believe his family would fabricate the events.

52. The offender acknowledged that his family will continue to suffer as a result of his actions. The offender claimed his actions had not been violent, and he expressed the belief that his family understood he had not been in control of his actions.

53. The report noted that the offender displayed remorse. Additionally it was noted that the offender appeared to minimise responsibility for his actions. I underline that both the remorse and the minimisation of responsibility are relevant in sentencing.

Conclusion to PSR

54. The report noted that the offender has been assessed as a low risk of general re-offending and a very low risk of sexual re-offending. Additionally it was noted that the offender suffers from poor mental health and a history of alcoholism.

55. It is the opinion of the author of the PSR that the offender would benefit from engaging with support for his mental health, and participating in a program for sexual offending.

56. Further in evidence before me are the two reports tendered by the offender, being the reports of Dr Furst and Professor Ogloff. Report of Professor Ogloff - Psychologist

57. The report of Professor Ogloff is a clinical forensic assessment. This assessment was conducted prior to the offender entering a plea, and the report was engaged for the purpose of considering the offender’s psychological functioning and any need for psychological treatment.

58. In relation to upbringing, Professor Ogloff reported the offender as having lived a relatively stable and normal childhood in France. Professor Ogloff noted that the offender moved to Australia in 2002 to commence work at the Australian National University. The offender was married to his wife from 1989 to 2022. The offender and his wife also had a baby, who died within a few months of birth from SIDS. The offender and his wife separated in 2017, and divorced in 2022.

59. In relation to sexual history, Professor Ogloff noted the offender as having a typical sexual development history, with no evidence of paraphilia (sexual attraction to prepubescent children) or hebophilia (sexual attraction to children at the time of pubescence).

60. Professor Ogloff referred to the offender’s significant history of mental health issues and alcohol misuse. In particular, Professor Ogloff noted that the offender has an established history of low mood, and has been diagnosed with and treated for various forms of mood and anxiety disorders for most of his life. The offender first sought treatment for depression in 1996 while living in France. The death of the baby from SIDS precipitated a downward spiral in his mental health.

61. The offender’s depression persisted in Australia where he was treated for depression and anxiety. Medical documentation confirms diagnoses of depression over the past decade. Alongside his mental health symptoms, the offender has a longstanding history of alcohol dependence.

62. Professor Ogloff opines that the offender meets the criteria for a diagnosis of Persistent Depressive Disorder, Generalised Anxiety disorder, and Alcohol Use Disorder being severe and in sustained remission.

63. In considering the intersection of the offender’s diagnoses and the offending, Professor Ogloff made the following observations: It is my opinion that the presence of the Persistent Depressive Disorder and Generalised Anxiety Disorder was not a direct cause of [the] offending. I agree with [the offender’s] own understanding of the alleged offending that his use and abuse of alcohol was more directly causative of the offending. Notwithstanding the effect that alcohol abuse and inebriation may have had on his behaviour and judgement, the presence of the Persistent Depressive Disorder and Generalised Anxiety Disorder alone cannot explain the offending. …In short, the mental illnesses are neither necessary nor sufficient explanations of his offending. But for the presence of his alcohol abuse, however, it would have been unlikely for the alleged incidents of offending to have occurred… …Taken together, the offending behaviour appears to be opportunistic and driven by [the offender’s] abuse of alcohol. Reports of Dr Furst – Psychiatrist

64. Dr Furst, a forensic psychiatrist, prepared two reports concerning the offender. The first report was prepared before the plea of guilty was entered and the second report was prepared after the plea of guilty had been entered.

65. As also discussed by Professor Ogloff, Dr Furst notes the offender as having reported a significant history of depression, which commenced when he was a teenager, and for which he has been medicated since 1996.

66. Dr Furst further noted the offender’s significant alcohol consumption over the years from the time he moved to Australia in 2002, through to 2009, when he stopped drinking. With limited exceptions, the offender is noted to have remained sober since that time.

67. In response to questioning regarding the offending, Dr Furst notes the offender stated as follows: In relation to the allegations of act of indecency without consent between 2005 and 2006 and involving his daughter [the first victim], [the offender] said, “I think I have bad behaviour because of alcohol.” In relation to the incident with his younger daughter [the second victim], alleged in 10 September 2010, [the offender] said, “I drank a lot. We went to bed [himself and his wife]. [the second victim] came. We talked, I think. Then I fell asleep. That’s all I remember.” … …He said, “I woke up and [the offender’s wife] was saying I was assaulting [the second victim] and she was yelling and she was very upset. I was really confused…”

68. In providing a diagnosis for the offender, Dr Furst opined that the offender meets the diagnostic criteria for Bipolar Affective Disorder, Panic Disorder and Alcohol Use Disorder.

69. In discussing the relevance of these conditions to the sentencing process, Dr Furst stated that if incarcerated, the offender will be at high risk of developing more severe depression and anxiety because of the bipolar disorder. This is noted as making a prison sentence more onerous for the offender. Submissions on subjective circumstances

70. Counsel for the offender properly submitted that the Court would have regard to the following subjective circumstances of the offender. (a) The age of the offender — 66 years old. (b) The offender’s plea of guilty. (c) The offender’s Alcohol Dependence Disorder. (d) The offender’s lack of prior criminal history. (e) The pre-sentence report notes that the offender has been assessed as at a low risk of general re-offending and a very low risk of sexual re-offending. Thus it was correctly submitted that rehabilitation remains relevant in this case. (f) The offender has expressed his shame, embarrassment and remorse for the relevant offending.

71. The prosecution correctly accepted that this is not a case where the prior good character of the offender should not be taken into account. The basis for this was that it was not the prior good character that enabled the offences. It was “by reason of his relationship to the victims, he had unfettered access to them”. It was, self-evidently, the parental relationship.

72. In relation to remorse, I underline that the offender has displayed remorse. I accept this on the evidence. Nevertheless I also take into account that the remorse operates alongside some degree of minimisation of responsibility on the part of the offender.

73. In relation to the offender’s mental health, the prosecution correctly noted the report of Professor Ogloff, which stated that the link between the mental illness and the offending is “tangential at best”, and “neither necessary nor sufficient explanations for his offending”. Thus in my view the offender’s moral culpability and the need for general deterrence are not significantly reduced: see R v Verdins [2007] VSCA 102; 16 VR 240. Nevertheless I do note that the offender will be at a high risk of developing more severe depression and that factor operates to make prison more onerous: see [69] earlier in this judgment.

74. As to the offender being affected by alcohol at the time of the relevant offending, in my view, intoxication in this case does not mitigate the seriousness of the offence or reduce the offending nor reduce moral culpability: see R v Naing [2023] ACTSC 210 at [54].

Remorse

75. The Statement of Facts and the reports underline that the offender has demonstrated remorse, regret and shame for his offending against his daughters. This remorse is referred to in a number of documents including the second report of Dr Furst. I further note the reference included the following, as set out below. [the offender] is certainly very troubled by the shame and embarrassment of it. He is deeply repentant and remorseful and he’s owning the problem and taking full responsibility by pleading guilty.

76. I accept that the offender is remorseful. Additionally, alongside this remorse I note that the offender’s insight is also somewhat limited as discussed above at [53] and [72]. Nevertheless I do take into account on sentence the remorse expressed by the offender. Reference

77. A reference under the hand of a colleague of the offender dated December 2024 was tendered as an exhibit in this case. The reference includes the following: I have known [the offender] for a long time. Having read the Indictment, I can honestly say that the person who carried out those acts is not the person I know. While we didn’t have a deep friendship outside work - one doesn’t work with someone for as long as we have, and not get a sense of the man. I’ve never doubted [the offender’s] personal integrity. I trust him on many levels within the business and with the people I’ve sent him out to work for – including schools, aged care facilities, childcare venues, concert venues, music conservatoriums and of course, private homes. He’s never let me down in any of these situations. I was aware that he drank at the times we’d gather around a meal table – it never seemed excessive to me at the time. I was unaware that his drinking was ‘problematic’ and it never caused any problem to the flow or operation of the business or drew any specific response from our clients. [The offender] rarely used any sick leave or cancelled appointments at short notice as one might expect from a person who was drinking alcohol regularly. The only time that I recall, was following an accident at home that caused him to break his femur resulting in 8 weeks off work. Not long after that, he told me he’d given up drinking ‘to lose weight’ and I have never seen him touch a drop since. His resolve to stay sober was admirable – he’d made a decision and stuck to it. Collating the above with what I now know, it makes sense that he’d stop drinking if his behavior at home had come to this. It further makes sense that he’d have all the more motivation to stay sober. In hindsight, the timeline with the offences certainly lines up with that being a motivating factor in him stopping drinking. Since the charges came up, and we’ve talked a little about it, [the offender] is certainly very troubled by the shame and embarrassment of it. He is deeply repentant and remorseful. and he’s owning the problem and taking full responsibility by pleading guilty.

78. I take this reference into account on sentence.

Criminal History

79. The offender has no prior criminal history. I accept that the offender prior to the commission of these offences, was a person of no criminal record and therefore of prior good character before the commission of these offences. He is of course no longer a person of good character having pleaded guilty to these offences against his children.

Pleas of guilty

80. The offender entered pleas of guilty following a Criminal Case Conference, two months prior to pre-trial evidence was due to commence. There was significant delay to the matter progressing apparently due to the preparation of psychiatric and psychological reports for court.

81. Pursuant to s 33(1)(j) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard.

82. In respect of the guilty pleas, the prosecution submitted that the offender pleaded guilty after the matter had been before the courts on many occasions and after the matter had been listed for an application to adduce tendency evidence, and a trial date had been set. This was approximately two months before the two victims were scheduled to give pre-trial evidence.

83. The prosecution submitted a discount in the range of 10-15% may be appropriate: see Calatzis v Jones [2024] ACTSC 42 at [35].

84. Taking into account the relevant facts, in my view, a discount of approximately 15% is appropriate: see Blundell v The Queen [2019] ACTCA 34 at [12].

Time in custody

85. The offender has now spent 44 days in custody since I revoked the offender’s bail on 29 January 2025. I will backdate the sentence accordingly.

Comparable cases

86. It is well established that sentencing statistics provide only limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). There are a number of decisions of this court relating to offenders who committed broadly similar offences. Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4]: [C]onsiderations to which a sentencing judge is obliged … to have regard cannot be applied mechanically … given that the factors that must be taken into account are incommensurable, and … in many respects, inconsistent.

87. Section 33(1)(za) of the Sentencing Act provides that current sentencing practices is a matter to be considered in sentencing.

88. In accordance with authority, the following cases from this jurisdiction provide a “yardstick” as referred to by the High Court in relation to this sentencing exercise: Hili at [53]-[54].

89. In submissions, the prosecution referred to a number of cases. These cases are included in a table attached to this judgment as an annexure. The Court has noted corrections concerning some of the summaries of cases put forward by the prosecution. Counsel should be astute to ensure accuracy of any case summaries that are placed before the Court. Case summaries should not contain errors. Additionally I note, significant emphasis was placed on the cases of R v SH [2015] ACTSC 25 and DPP v Van de Zandt (No 3) [2023] ACTSC 359 in oral submissions. R v SH [2015] ACTSC 25

90. In this case, the offender was charged with one count of incest and two counts of committing an act indecency on a person under 16 years. The offender (49) was the stepfather of the victim (11). The offending occurred in circumstances where the victim awoke to find the offender had removed her underwear and was licking her vagina, before proceeding to circle his fingers around her vagina and then rub her chest and stomach.

91. Concerning subjective factors, Ross J noted the offender’s lack of criminal history, prior good character, hardship to family, lack of remorse, and good prospects of rehabilitation. The total sentence imposed in this matter was 5 years 3 months imprisonment, with a non-parole period of 2 years 9 months. DPP v Van de Zandt (No 3) [2023] ACTSC 359

92. In this case, the offender was charged with one count of sexual intercourse with a person under the age of 16 years, and one count of committing an act of indecency on a person under the age of 16 years. The offender (34) was the uncle of the victim (15). The offences occurred in circumstances where the offender was laying on a bed with the victim and digitally penetrated the victim’s vagina before placing her hand on his erect penis.

93. Concerning subjective factors, McCallum CJ noted that the offender was 72 years of age at the time of the sentencing for the offence. It was also underlined that the offender showed no remorse, was of prior good character, had health problems, and would face significant hardship in custody. The sentence imposed for these offences was 3 years, to be suspended after 6 months on entering a GBO for a period of 2 years and a half years.

94. In submissions the prosecution properly noted that the offending in the above outlined cases was opportunistic, isolated and uncharacteristic, whereas the offending in the present matter did not involve an isolated incident.

95. Counsel for the offender did not provide cases to be considered by the Court in this context. Statutory and other relevant considerations

96. It is obvious that the offender’s criminal offences were “the antithesis of the… relationship” that should exist between a father and his children: FD v The Queen [2013] NSWCCA 139 at [150].

97. In sentencing the offender, the court is required to take into account matters under s 33 of the Sentencing Act that are known and relevant and I have referred to the relevant matters earlier in this judgment.

98. The court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, recognition of harm to the victim, and rehabilitation are important sentencing considerations.

99. As is accepted to be the case in every sentencing exercise, careful regard must be had to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357. The maximum penalties as referred to at the outset are as follows: a) Incest – 15 years b) Act of indecency – 5 years

100. The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. In this case in my view, an alternate to full time custody is not appropriate in light of the seriousness of the offending and the importance of general deterrence.

101. Additionally, when sentencing for multiple offences, there being four offences in this sentencing exercise, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v Queen [2016] ACTCA 53 at [64]. In doing so, I must ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved: Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 307-308, Mill v The Queen [1988] HCA 70; 166 CLR 59 at 63, Pearce v The Queen [1998] HCA 57; 194 CLR 610 and R v XX [2009] NSWCCA 115; 195 A Crim R 38.

Sentence

102. It is recognised by this Court as I have underlined earlier at [25] to [27] that the offences committed against the victims have had a serious and significant impact upon both the daughters of the offender. Both the short and long-term consequences of being a victim of the relevant offending against each daughter are acknowledged by this Court. No child should be offended against in this way by a parent. General deterrence as I stated earlier is therefore important in this case.

103. In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above at length, including the objective seriousness of the offences and subjective matters relevant to the offender. I have also taken into account the principles concerning totality, concurrency and cumulation discussed above at [101].

104. The appropriate sentence for the offence of incest (Count 4) is 4 years 6 months imprisonment, reduced to 3 years 9 months on account of the plea of guilty (discount approximately 15%). The offence will be backdated to commence on 29 January 2025 to account for the time already spent in custody and will expire on 28 October 2028.

105. The appropriate sentence for the offence of committing an act of indecency without consent (Count 1) is 5 months imprisonment, reduced to 4 months on account of the plea of guilty (discount approximately 15%). This sentence will commence on 29 August 2028 and expire on 28 December 2028.

106. The appropriate sentence for the second offence of committing an act of indecency without consent (Count 2) is 7 months imprisonment, reduced to 6 months on account of the plea of guilty (discount approximately 15%). This sentence will commence on 29 November 2028 and expire on 28 May 2029.

107. The appropriate sentence for the third offence of committing an act of indecency without consent (Count 3) is 12 months imprisonment, reduced to 10 months on account of the plea of guilty (discount approximately 15%). This sentence will commence on 29 March 2029 and expire on 28 January 2030.

108. The overall sentence consists of a term of imprisonment of 5 years with a non-parole period of 2 years 6 months. This sentence will commence on 29 January 2025 and expire on 28 January 2030. The offender will become eligible to be released on parole on 28 July 2027.

Orders

109. For these reasons the following orders are made: 1. For the offence of incest (Count 4) (CC2022/10965), contrary to 60(1) of the Crimes Act 1900 (ACT), the offender is convicted and sentenced to 3 years 9 months imprisonment that will commence on 29 January 2025 and expire on 28 October 2028. 2. For the offence of committing an act of indecency without consent (Count 1) (CC2022/10966), contrary to s 62(2) of the Crimes Act 1900 (ACT), the offender is convicted and sentenced to 4 months imprisonment that will commence on 29 August 2028 and expire on 28 December 2028. 3. For the offence of committing an act of indecency without consent (Count 2) (CC2022/10967), contrary to s 62(2) of the Crimes Act 1900 (ACT), the offender is convicted and sentenced to 6 months imprisonment that will commence on 29 November 2028 and expire on 28 May 2029. 4. For the offence of committing an act of indecency without consent (Count 3) (CC2022/10968), contrary to s 62(2) of the Crimes Act 1900 (ACT), the offender is convicted and sentenced to 10 months imprisonment that will commence on 29 March 2029 and expire on 28 January 2030. 5. A non-parole period of 2 years 6 months is imposed. This sentence will commence on 29 January 2025 and expire on 28 January 2030. The offender will become eligible to be released on parole on 28 July 2027. Judge speaks directly to offender at sentence hearing on 14 March 2025 after orders

110. Mr [Waters], I am now going to speak to you directly about the criminal offences that you have committed. This is serious offending. You have heard what your daughters have had to say. You must understand that when children cannot trust their own father, that is a very deep and a very painful betrayal. That is a very deep and painful betrayal of your role as a father. To be a parent is a privilege. It is a real privilege to be a father; to be a parent. It is such a privilege, and you abused that privilege, and you abused your daughters.

111. The Court recognises that there has been a period of delay and there has been some rehabilitation on your part. I take that into account in setting the non-parole period at 50 per cent. To betray criminally the trust placed in a father, as you have, must result in significant time in jail. So, your sentence is five years in jail, and you will be eligible for parole on 28 July 2027.

I certify that the preceding 111 numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas Karlsson. Associate: Date: 20 March 2025 Annexure to DPP v Alexander Waters (a pseudonym) [2025] ACTSC 84

Name Objective Features Subjective Features Outcome and Citation R v SH Charges: No prior history. Incest: 5 years [2015] imprisonment. 1x incest on a person under 16 (s.62(2)). Prior good character ACTSC but only allowed a AOI: 2 years 9 25 2x act of indecency on a person under 16 limited effect in months (s.61(2)). mitigation. imprisonment. Age: Hardship to family AOI: 6 months Offender: 49. relevant but not imprisonment. afforded any Victim: 11. Total sentence: 5 significant weight. years 3 months Facts: No remorse. imprisonment. The offender was the victim’s stepfather. One Good prospects of NPP: 2 years 9 night she awoke to find the offender had removed rehabilitation. months her underwear. He licked her vagina (incest). He imprisonment. then circled his fingers around her vagina (AOI). He then lay behind her and rubbed her chest and stomach (AOI). Opportunistic offending. Committed for own sexual gratification. R v BNS Charges: Age 36 at time of Count 1: 4 years (No 2) sentence. imprisonment. 3x incest on a person under 16 (s.62(2)). [2016] Exposed to alcohol Count 2: 4 years ACTSC 5x act of indecency on a person under 16 abuse and sexually imprisonment. 145 (s.61(2)). abused as a child. Count 3: 18 Age Long history of drug months Offender: 33. and alcohol usage. imprisonment. Victim: 11. No remorse – Count 4: 18 continued to deny months Facts: offences. imprisonment. Offender (O) was the stepfather of the victim (V). Long and significant Count 5: 2 years His sexual interest in her commenced when she criminal history, but imprisonment. was around 11. no prior sexual Count 6: 12 Counts 1 and 2: O entered bedroom when V was offending. months asleep, moved his hand under her pants and Moderate to low risk imprisonment. inserted his finger into her vagina. of sexual reoffending Count 7: 15 Count 3: O sucked V’s upper chest during the (corrected by the months same incident as Count 2. Court – previously imprisonment. stated ‘low risk of Count 4: O entered room while V asleep and sexual reoffending’). Count 8: 4 years touched her thigh area above her underwear. imprisonment. Count 5: O massaged V’s back and breasts. Total Sentence: 9 Count 6: O lay next to V and toucher her right years buttock under the blankets. Occurred on same imprisonment. day as Count 5. NPP: 4 year 6 Count 7: O invited V to practice kissing with him. months. Put her on lap but ceased as her father came home. Occurred same day as Counts 5 and 6. Count 8: O entered bedroom when V was asleep, moved his hand under her pants and inserted his finger into her vagina. Found guilty at trial. Charges: Offender 34 years of Incest: R v CC 5 x Incest with person under 16 (s.62(2)) age. 4 x 3 years [2016] 1 x act of indecency with person under 16 Short criminal history imprisonment. ACTSC (s.61(2)) but no prior sexual 1 x 3 years 6 43 Age: offending. months Offender: 34. Programs in custody imprisonment. Victim: 13. re: alcohol and Act of Facts cannabis use. indecency: 12 Offending committed on 13-year-old stepdaughter History of mental months over period of months. Whilst watching music health, medication Total Sentence: 5 videos offender digitally penetrated victim for depression and years, 9 months. (Incest<16), undid her bra and touched her attempted suicide. NPP: 2 years, 11 breasts (AOI<16). Three further occasions of Low-moderate risk of months. digital penetration, inclusive of one including sexual offending. cunnilingus, and one further occasion of Engagement in adult cunnilingus (4 x Incest<16). sex offender PG in Magistrates Court. program. Insight and acceptance of responsibility (with some minimisation of offending conduct expressed). Charges: Offender 72 years of SI: 3 years DPP v Sexual intercourse with a person under the age of age at time of imprisonment. Van de 16 years (s 92E(2)): 14 years imp. sentence. AOI: 18 months Zandt Act of indecency on a person under the age of 16 No evidence of imprisonment. (No 3) years (s 92K(2)). remorse. [2023] Suspended after Age No relevant prior ACTSC serving 6 months Offender: 34. convictions. 359 on entering GBO Victim: 15. Health problems for period of 2 and Facts (‘needs relatively a half years high medical care’). Historical offending (1986). Offender was the (corrected by the Hardship of custody uncle of the victim. Whilst in bed he rubbed and Court – previously due to age and penetrated her vagina with his fingers (SI<16), stated the GBO physical ill health. before placing her hand on his erect penis was 2 years). (AOI<16). At this time she said ‘you’re my uncle’, Delay relevant factor. and he immediately ceased. Opportunistic offending, ‘isolated and an uncharacteristic aberration’. Assessed as falling in the mid-range of objective seriousness. ‘Devastating and lasting impact’ on the victim. Found guilty after trial. Charges: Offender 48 years 1st AOI: 6 months R v EP 2x act of indecency without consent (s.60(1)) old. imprisonment. (No 3) Others including sexual assault in third degree, No criminal history. 2nd AOI: 8 [2019] use carriage service to harass, threaten to Some history of drug months ACTSC distribute intimate image. and alcohol use. imprisonment. 242 Facts: Assessed as Total sentence: 3 The offender and victim were in a de facto medium-low risk of years. relationship for six years which ended amicably. reoffending. NPP: 18 months. One day the offender attended the victim’s house Limited remorse. where an argument commenced, and he grabbed her wrists then ran his hands over her chest and breasts (AOIWC). He then forced her onto a bed and started pulling down her underwear (sexual intercourse 3rd degree). Shortly after he released the victim, he then grabbed her dress and ripped this and her bra (AOI). Offending aggravated due to breach of trust. Found guilty at trial (with respect to the two AOI’s). Charges: Offending out of R v Dune GBO for 20 Act of indecency without consent (s.60(1)). character. [2018] months. Facts: No prior history. ACTSC The offender was highly intoxicated. He pressed 257 Strong prospects of his penis against the victim while she was asleep. rehabilitation. They were both clothed. The victim told him to stop, and he did. Opportunistic and no skin-to-skin contact. ‘While the offence is not trivial in any way, it is not one of the more serious types of this type of offending’. Plea of guilty. Charge: No notable prior 2 years 6 months R v Act of indecency on a person under 16 years criminal history. (reduced to 16 Ardron (s.61(2)). History of abuse of months for plea [2021] Age: alcohol and drugs, and time spent in ACTSC Offender: 40. although taken rehabilitation – 91 Victim: 15 years 7 months. positive steps to time spent in Facts address substance rehabilitation Victim was mowing offender’s lawn for cash. After misuse. added by the mowing the lawn, offender approached victim and Mental health issues. Court) – to be asked if he smoked weed, then kissed him on the served via ICO. Medium-low risk of lips, put her tongue insider his open mouth and reoffending. rubbed up against him. She removed her t-shirt and bra and was removing her shorts when the complainant said ‘I’m 15 I shouldn’t be doing this’. The offender apologised and said, ‘I thought you were older’. Significant violation of complainant’s person integrity and done for own sexual gratification. Offence was of short duration and an isolated incident, impulsive and opportunistic. Significant psychological impact on the complainant. Objective seriousness means full-time imprisonment is a sentencing option. Plea of guilty at criminal case conference. R v Charges: Minor criminal history First AOI: 2 years Cashin 2 x act of indecency on a person under 16 for traffic offences. imprisonment. [2016] (s.61(2)). Required to care for Second AOI: 2 ACTSC 4x use carriage service to transmit indecent a son with years and 6 351 communication. disabilities. months 1x using carriage service to ‘groom’ person under Diagnosis of prostate imprisonment with (note: 16 cancer. a non parole appeal Age: Evidence of period of 1 year dismisse Offender: 58-60. traumatic childhood. (Corrected by the d Cashin Victim: 11-13. Court – non v The parole period not Queen Facts: included) [2017] ACTCA The offender was the husband of the victim’s 13) godmother. For the first offence, the offender waited until the victim (11 or 12) was alone. Before she had a shower, the offender approached her from behind and touched her breasts. For the second offence, the offender was alone with the victim (12 or 13) who was watching television on the floor. The offender placed his hand between her legs and squeezed her bottom. Offender claimed not to remember offences. Found guilty at trial.