26 Mr Tehan, senior counsel for the respondent, submitted that the indecent assault offence should not be regarded as falling within the worst category of such offences. He submitted that the offence was a single instance, was of short duration and was limited to touching the breasts of the complainant. He contrasted that with the facts of other cases that have come before the courts with more serious features but which have resulted in a sentence less severe than that imposed here, but he acknowledged the limitations of such comparisons. He submitted that this case ought to be regarded as an instance more appropriately falling with the category of the average sentence, which was identified in the sentencing statistics for indecent assault in 2002/2003. The average sentence in that year was seven months' imprisonment.
27 Mr Tehan submitted that the fact that no offence had been committed by the respondent over the 20 year period demonstrated that, although he had little if any access to sexual offender counselling when he was previously imprisoned and released on parole, the respondent had substantially rehabilitated himself prior to this offence, and thus had good prospects for rehabilitation in future.
28 Mr Tehan's submission as to the nature of the offence seems to me to inappropriately concentrate on the precise physical conduct which constituted the indecent assault rather than on the totality of the indecency and offensiveness as it was experienced by the victim. In addition, the contention that there had been a process of rehabilitation of the respondent, and that there was insight into his offences needs to be viewed against the backdrop of what he said about his offending when interviewed by police.
29 In his record of interview concerning the offence against N the respondent was asked what mental age he thought N was and he said "Who knows? I don't know. Fourteen, fifteen, twelve. Who - you'll never know with her." He said that he had asked N if he could feel her breasts and "she said she didn't care, ok, she didn't worry about it." He was asked whether he kissed her whilst he was feeling her breasts, to which he responded "just the done thing, isn't it".
30 N's statement to police was then read to the respondent by an interviewing police officer. She said in her statement that the respondent had asked if he could put his hand down her top. She said she couldn't say anything: "He scares me". Then he kissed her on the mouth, putting his tongue into her mouth. She said "it was gross" because "it is my Pa and he shouldn't do things like that. It was a big kiss, it seemed to go on for about a minute. It was gross." Apart from correcting a couple of minor matters, he did not dispute her account. He denied her allegation that he had said that one day he would like to put his fingers into her vagina. He agreed that he had said to her "don't say anything to anyone because it gets me into trouble".
31 The respondent was asked whether he was saying that N was happy with what he did. He answered "I don't know her - what her thoughts were but she didn't - she didn't say, 'No you - you can't do that' or anything like that. She just shrugged and said other people had been - had felt her breasts ... and she didn't mind if I did". He agreed that she was not leading him on but said "she didn't say no when I asked her". He said he shouldn't have done it, he knew it was wrong, and "it's stupid".
32 As his Honour recognised, notwithstanding the seriousness of the offending there were a number of mitigating factors that had to be taken into account. In the first place there were the pleas of guilty, which he found to have been entered at the earliest opportunity. In addition, the respondent had a history of gainful employment and counsel tendered character references from past employers.
33 The respondent is now aged 67 years and has serious health problems. His Honour accepted that the respondent had himself been the victim of sexual abuse as a child: at the age of nine or ten being sodomised by a youth aged about 17 or 18. He was also subsequently sexually abused by an uncle. Such a history is relevant to sentencing but the weight to be given to it will depend on the totality of circumstances in a case.[13] In this case his Honour appears to have given it appropriate weight.
34 His Honour found that the respondent suffered hypertension and artificial urethral sphincter stress incontinence, lumbar osteoarthritis, osteoarthritis of the hips, and peripheral vascular disease. The left femoral artery is totally occluded and he had 30 to 50 per cent stenosis of the right femoral artery. He was due to have an operation for this condition whilst in custody. In 2002 he suffered prostate cancer, resulting in a prostatectomy with residual urinary stress incontinence and subsequently suffers erectile dysfunction. His Honour accepted that the general ill-health and age of the respondent, together with the fact that he would serve his sentence in protective custody, meant that imprisonment could be particularly difficult for him.
35 The advanced age of the respondent is a relevant consideration.[14] It is recognised that each year of the sentence which the respondent must serve represents a substantial portion of the period of life left to him.[15] But as Winneke, P observed in R v Gregory[16], age alone cannot be permitted to justify the imposition of an unacceptably inappropriate sentence.
36 His Honour accepted that there had been considerable delay in the reporting of the incest offence but he recognised that the delay was entirely understandable since as a result of reporting the original offences of incest, at a time when she was aged 13, S had been forced into institutional care.
37 Mr Tehan emphasised the impact of delay on the respondent, but as Ormiston JA observed in R v Nikodjevic,[17] whilst delay is a relevant consideration it is "undue" delay which is the relevant factor and in cases of sexual offences delay in reporting does not give an automatic right to a reduction or discount in sentence. This was not an instance where delay has meant that the respondent has had hanging over him the threat of prosecution and imprisonment.
38 In submissions on the plea, counsel relied on reports by consultant forensic psychologist, Elizabeth Warren and consulting psychologist, Jacob Topy, both of which reports were compiled prior to disclosure of the offence which constituted count 1. The respondent had not told either psychologist of that offence and, indeed, had expressly denied to Mr Topy that any offending had occurred after his release from prison. In those circumstances, the learned sentencing judge was rightly unwilling to place great weight on those reports but he did have regard to the history of sexual abuse in the childhood of the respondent, which was detailed in the report from Ms Warren.
39 Ms Warren reported that the respondent showed signs of suicidal ideation but also high shame and low self esteem and had symptoms of depression, loss of enjoyment of activities, loss of sleep through worry and anxiety. In her report Ms Warren described the respondent as "a frank interviewee". He said of the offence against N - who he described as his granddaughter - that he knew she was confined to a wheelchair for much of the time and had limited literacy, but he had "lost sight of the fact" that she was vulnerable because she was the brightest one there, and "I knew she had intercourse previously because before Christmas I kinda asked her, had a discussion with her". Ms Warren described the respondent as having extremely high levels of shame, and said he was a man of well above average intellectual ability. She described him as contrite, remorseful and having insight.
40 As I have said, the report of Ms Warren must be discounted to some extent by virtue of the failure of full disclosure by the respondent, but his Honour appears to have accepted that there was some evidence of remorse, at least with respect to the child N, although apart from the plea of guilty itself, the signs of true remorse and self awareness seem to me to have been quite limited and not to have extended to S.
41 The respondent told Mr Topy that there had not been any other sexual relations with his daughters since the time he had been in prison, which was a blatant lie. Mr Topy, being unaware of the true situation, reported that the respondent appeared to answer questions put to him honestly. He concluded that he was unlikely to be at risk of re-offending.
42 This was clearly a case in which the principle of general deterrence had to be given great weight and his Honour acknowledged that to be so. As to the requirement that protection of the community be the paramount consideration for sentencing, his Honour acknowledged that the respondent's state of health and disability rendered that less of a consideration. Nonetheless, he regarded general deterrence and specific deterrence, just punishment and denunciation, as being of particular importance, as indeed they were.
43 As to the sentence on count 1, the sentencing statistics for 2002-2003 which were referred to us, record the 90th percentile[18] as a sentence of five years' imprisonment. The highest sentence for incest, of the 85 instances, was seven years' imprisonment in that year. Mr Tehan submitted that it could not therefore be said that the sentence imposed here, of four and a half year's imprisonment, fell outside the appropriate sentencing range.[19]
44 The crime of incest is both prevalent and has a capacity to erode the decency of family life and the trust and confidence of its victims, as Winneke P observed in Director of Public Prosecutions v G.[20] The nature of the offence requires the Court to punish it severely, placing particular emphasis on principles of general deterrence, denunciation and protection of young persons.[21]
45 In my opinion, the offence against S was one of particular gravity. To have committed the offence while on parole for offences against the same victim, to have done so without any apparent concern for the possibility of pregnancy, and when knowing the impact of his previous offending on S, brings this case within the category of worst cases; it is no less so because it was a single instance of incest. The consequences for the victim of this single offence have been truly devastating, and they are continuing. As she said in her victim impact statement, S lived with and hid the awful truth of the paternity of her daughter, endured the terrible suffering of N throughout her life - as well as the demands that were placed on herself - as a constant, daily, reminder of the horror of the offence committed against herself.
46 Having regard to principles of double jeopardy, in addition to the fact that the respondent pleaded guilty to these offences, and in addition to the factors of mitigation and the circumstances in which he will serve the sentences, the sentence that I would impose on both counts upon re-sentencing will be significantly less than would otherwise have been appropriate.
47 In my opinion the sentence on count 1 ought be set aside and in lieu thereof a sentence of six years' imprisonment should be substituted.
48 As to count 2, whilst it may be said that the actual incident of indecent assault was brief, and was limited in character, the fact that it occurred at all renders it an appalling instance of the offence. In the prosecution opening, it was asserted that in 2000 the respondent asked S whether he was the father of N. She told him he was, in response to which he laughed and walked away. It was not until 2006, after the complaint of incest had been made by S, that DNA tests were conducted to prove that the respondent was the father of N. In submissions on the plea counsel for the respondent said that his instructions were that although he had been told, "at times", that he was the father, the respondent did not accept that to be the case, until the DNA results were announced. Counsel said he had been instructed that the respondent "had been told" at different times that another person was the father, but it was not stated that it was S who had said so. His Honour did not make an express finding that the respondent knew he was her father when he committed the offence against N. On the plea counsel for the respondent made the sensible concession that "it matters not" because, as he acknowledged, the offence would have been no less grave had he committed the offence in a state of uncertainty as to whether his victim was his daughter or granddaughter.
49 Given the prior convictions of the respondent, the fact that many of them related to his daughter S, given his knowledge, at the very least, that N might be his own daughter; having regard to his awareness that N was so severely disabled; given, too, what must have been his awareness of the importance of the relationship of S and her daughter, and of the likely devastating impact to S of sexual abuse by him of N, then the indecent assault on N was so offensive as to place this offence well within the category of the most serious of such offences. If its seriousness placed it within the 90th percentile then the sentencing statistic suggested that the average sentence for offenders at that level was two years and five month's imprisonment. In my view, the extraordinary vulnerability of N and the even more extraordinary breach of trust which was involved in the offence against N renders a sentence of imprisonment of six months for the indecent assault so inadequate as to constitute error.
50 I would set aside the sentence on count 2 and - once again, allowing for factors which particularly pertain to Director's appeals in moderation of a new sentence - would substitute a sentence of 18 months' imprisonment.
51 Whilst it might well be appropriate to require that the whole of the sentences on counts 1 and 2 be served cumulatively, the fact that this is a Director's appeal dictates that only 12 months of the sentence on count 2 should be served cumulatively on the sentence imposed on count 1.
52 This produces a total effective sentence of seven years. I would order that the respondent serve five years' imprisonment before being eligible for parole.
Ground 2
53 Ground 2 of the Director's grounds of appeal relates to this passage in the sentencing remarks: