DPP v White (a pseudonym)

Sadly, and as expert evidence in the trial suggested was often the case, the presence of other adults in the household did not prevent the offender from committing four serious offences involving his two step granddaughters.

One evening when Zoe was 8 and Eva was 10 years old, the complainants were staying with their grandmother and the offender. The girls were sharing a bedroom. The offender entered the bedroom and began talking to them. He picked up what was described as a “banana sand toy” or a “banana squishy”. It is about 20 cm long, and looks like a banana. It can be squeezed. The offender referred to it as either a “doodle” or a “dick”. He started using it as a puppet. He told the complainants that it wanted to go into their “holes”. Addressing the banana, the offender said “what hole? There are two holes on the top bunk right now, which one would you like to go in”? The offender used his voice to answer for the banana saying “both”. The complainants said “no”.

The offender then picked up a toy snake and began using it as a puppet too. He simulated the snake having sex with the banana. While he was doing this the offender said words along the lines of “I know you want this”.

He then put both objects down and began playing a macabre version of “this little piggy” on the complainants’ toes. Instead of things such as a piggy having roast beef, in the offender’s version the piggies were shot, died, or suffocated.

While this was happening the complainants’ grandmother and uncle were but a short distance away in the loungeroom of the house.

Eventually he left the bedroom. The complainants began playing together. At one stage they left the bedroom, but as they were returning they looked into the bedroom the offender shared with his wife, the girls’ grandmother. The bedroom did not have a door. It had a curtain but that was open. As the complainants looked into the bedroom they saw that the offender was on his bed wearing black underpants which he had pulled to the side so that his penis was exposed. Importantly as it turned out, the description they gave of the underpants made it clear that they were saying that the underpants were “jockey style” as opposed to boxer shorts. The complainants gave evidence that the offender’s hand was on his penis and he was moving it up and down. He addressed Eva by name and said “don’t be scared of me, come here”.

The complainants went back to the bedroom they were using, but one of them needed to use the toilet. Zoe waited outside the toilet for her sister. Zoe could see into the bedroom. The offender was still on his bed, holding his penis, his underpants being pulled to the side so that his penis was again exposed. He said to Zoe words to the effect of “come here, don’t be scared of me” and then “come on or I will chase you”.

The complainants then went back to their bedroom and, although scared, eventually went to sleep. They said nothing to their grandmother or their uncle.

They were picked up by their father the following day and immediately told him what had happened.

Eventually matters were reported to police. They conducted a search of the offender’s home during which they seized the two objects I have described earlier and interviewed the offender. He denied any misconduct and blamed his stepdaughter Ms Stone, whom he described in offensive terms, for the complainants making these allegations against him.

He explained how his step granddaughters would know, correctly, that he wore black jockey style underpants by saying that his underpants were invariably black, and one of the complainants would often snoop, looking into drawers, including the drawer where his underpants were kept. However, as the prosecutor made clear to the jury in his final address, that did not account for the fact that the complainants knew, correctly as it turned out, that he wore underpants of that kind to bed.

The offender was charged with four offences; (a) two offences under section 66(1)(b) of the Crimes Act 1900 (ACT), commonly referred to as grooming, with a maximum penalty of 10 years. (b) one offence under section 61(1) of committing an act of indecency in the presence of a person under the age of 10, with a maximum penalty of 12 years, and (c) one offence under section 61(3) of committing an act of indecency in the presence of a person under the age of 16 with a maximum penalty of 10 years.

He pleaded not guilty to those charges but after a relatively short trial was found guilty by a jury on all counts. It is my task now to sentence him.

It is important that I assess the objective gravity of the offender’s conduct. In contrast to many grooming offences, the two such offences in the present case were made out by the offender’s criminal conduct on a single occasion. It is a matter of speculation as to precisely what act of a sexual nature the offender intended the complainants would commit, take part in or watch, but given the nature of his interactions with them that night, one cannot exclude the possibility that he would have intended that the complainants would allow him to penetrate their genitals with either one of the objects or a part of his body.

The complainants were not in their own home, but were nevertheless in a home they frequented and they were entitled to feel safe while they were there. They no doubt felt they were effectively trapped in their bedroom when the offender did what he did, because he was between them and the doorway.

As far as the other two offences are concerned, the offender did more than simply expose his penis, he masturbated whilst they watched, and attempted to get them to come closer to him. He was clearly getting some sort of sexual gratification by masturbating while they watched.

All offences represented a significant breach of trust which his wife, his stepdaughter, her husband, and the complainants placed in him. Everyone concerned was entitled to expect that the offender would care and protect the complainants and not use them for his own sexual gratification.

A measure of the isolation felt by the complainants is that although their grandmother and uncle were present in the house at the time, they neither called out to them, nor complained about the offender’s behaviour, instead waiting until their father picked them up the following afternoon.

Because the particular relationship between the complainants and the offender (step grandfather and step granddaughter) is not a relationship referred to in s 11 of the Family Violence Act 2016 (ACT), the offences were not statutorily aggravated by the circumstance that they involved “family violence”. Nevertheless, I can take into account the nature of the relationship between the offender and the complainants as making these offences more serious than they would otherwise have been.

It is of note that in the present case, because of the complainants’ parents’ situation in 2023, the complainants were in the habit of spending significant amounts of time with the offender and their grandmother. So, it is not really the nature of the precise family relationship between the complainants and the offender which is important, it is the fact that because of the situation which the complainants’ parents were in, the complainants came to depend on their grandmother and the offender to provide that which the complainants’ parents could not – to nurture and guide the complainants, to provide for them, and perhaps most importantly of all, to protect them from harm.

Far from protecting them from harm, it was the offender himself who harmed them. No victim impact statements were relied on by the prosecution, but that does not mean that the complainants were not harmed by what the offender did. In any case, the seriousness of offences such as these does not rely on harm being demonstrated to the particular victims of the offences.

Offences involving sexual activity with children are now recognised as being very serious indeed. Research such as that undertaken by the Royal Commission into Institutional Responses to Child Sexual Abuse has demonstrated that offences such as those for which I am to sentence the offender can have long term deleterious effects on a child’s mental health, behaviour, and relationships with others. Such effects are often long lasting and can intrude into all aspects of a victim’s life.

Children are vulnerable and effectively powerless to defend themselves against offences of this kind, particularly so when the offender is in a position of power, trust and responsibility over them.

It is for these reasons that when offences like these are detected, the courts must respond with significant sentences. Those who may be tempted to obtain sexual gratification in the way this offender has must be made aware that their wrongdoing will be met with appropriate punishment. The offender himself must be deterred from acting in this way in the future. And sentences imposed on those who mistreat children in a sexual way must mark in a very concrete way just how wrong such conduct is.

The offender is not a young man. He is currently 79 years of age. He has no relevant prior criminal history, the significance of which is of course moderated by his behaviour towards his stepdaughter which I mentioned earlier.

He left school at 15 and maintained regular employment in a variety of occupations until he retired at about 65. He had a close relationship with his parents and maintains regular contact with the surviving members of his family. He had four children from a previous relationship. One of those children has died, he is estranged from another but remains in regular contact with the other two children.

He has been married to his current wife, the grandmother of the complainants, for over 30 years. He and his wife share grandchildren from both sides of the blended family. He receives support from his wife’s adult son, the uncle who was present in the house when these offences were committed.

He regularly attends church-related gatherings and socialises with members of his church community. He has lost some friendships both as a result of ordinary circumstances, but also once these current offences became known.

Although he told the author of the pre-sentence report that his alcohol use was predominantly social, he acknowledged that he did consume excessive amounts of alcohol on the night these offences occurred, although of course he denied having committed the offences themselves.

The offender is not to be punished for denying that he committed these offences and pleading not guilty. That said however, it is clear that he expresses no remorse for having offended against his step granddaughters, and so there is little evidence to suggest that he recognises the wrongfulness of his conduct and the harm he has caused.

Of course, there is a difference between a person not admitting that they engaged in particular conduct and that person recognising that the conduct is wrong, but there is simply no evidence that the offender regards what the jury found him to have done is morally reprehensible, as all right thinking people would find it to be. This makes personal deterrence of more importance in this sentencing exercise than would otherwise be the case. I make this finding despite the assessment in the pre-sentence report that he represents a low risk of reoffending. The brazen nature of his offending and the absence of evidence that he recognises the wrongfulness of his conduct give me significant concern about his attitude to future behaviour of a similar kind.

One of the purposes of sentencing is to rehabilitate an offender. In some cases, the ultimate objective of the criminal law, the protection of the community, is best achieved by rehabilitating a wrongdoer so that he or she will not harm anyone in the future.

In other cases, and this is one, rehabilitation must not be allowed to trump the other purposes of sentencing. Nevertheless, it is a factor that I must bear in mind.

As is not unusual in the case of nearly 80 year old men, he has a number of physical health issues. He sees his general practitioner regularly, takes medication and is supported by a community nurse who sees him every fortnight. Although he reports no diagnosis of any mental health problems, he is prescribed antidepressant medication.

It is likely that if a sentence of full-time imprisonment was imposed, because of his age, he would do his time in custody harder than would ordinarily be the case. A man of his age, entering prison for the first time, after having been convicted of child sexual assault offences, would likely find the experience quite different to a younger man with experience of custody convicted of an offence of a non-sexual kind.

Some might have little sympathy for this circumstance, but the effects of a particular sentence on a particular offender must be taken into account in every sentencing exercise.

While current sentencing practice is a relevant consideration, there are no true comparable cases. This means that choosing the appropriate sentence I will impose upon the offender will be determined by reference to established sentencing principles which I have already mentioned.

The submissions for the offender made by Mr Masters refer to a number of features which I am asked to take into account in the offender’s favour. I will make some comments about some of them:

The submissions say there was only “One episode” - whilst these events occurred on the one evening I don’t think it’s true to say that there was only one episode.

It is said that there was no “physical contact” nor “penetration or attempted penetration”. It is of course not a mitigating feature that an aggravating feature is not present. Had there been physical contact the offender would have been charged with different offences. But that is not the point Mr Masters is making here. The relevance of these matters is that sentences of other than full-time custody have been imposed in cases where more serious offences than the present, involving penetration for example, are involved.

Next, the submissions point out that there were “other adults nearby”. I am not sure how this works in the offender’s favour. The fact that he did what he did brazenly is actually a matter of concern if I am considering what protective factors might make it less likely that he would commit offences in the future.

On the other hand, I accept that these offences were of a relatively short duration, they were not repeated, the offender is 79 with problems with his health, he has no relevant criminal history, has stable accommodation where no child would be living and he has demonstrated compliance with court orders leading up to today.

Despite the matters on which the offender is entitled to rely, I am satisfied, and easily so, that a sentence of imprisonment is required. No lesser sentence would properly meet the objectives of sentencing, particularly retribution, denunciation and general deterrence.

The question then becomes how that sentence of imprisonment should be served.

The offender has been assessed as suitable to serve any sentence of imprisonment by means of an Intensive Corrections Order (ICO). The prosecution submits that nothing less than full-time imprisonment would properly reflect all the circumstances of this case. I do not agree. Particularly important in making this decision is that these offences did not involve any actual touching of the complainants, occurred over a single evening, and that the offender would do his time in custody much harder than would ordinarily be the case because of his age and lack of previous convictions.

Questions of concurrency and accumulation also arise. It would be quite wrong to impose sentences which are entirely concurrent. The sentences for the offences must reflect the fact that each complainant was separately harmed, even though it was the same act which caused that harm. On the other hand, the principle of totality applies. Therefore, the sentences for these offences will be partly cumulative and partly concurrent.