Ground 3 - Error in not giving Weight to the Sexual Abuse of the Applicant as a Child
- As noted above, the applicant told Dr. Nielssen that he had himself been sexually abused as a child over a period of years, by an uncle. The abuse was said to have included anal penetration. No complaint had ever been made to police. The applicant gave no evidence before her Honour, and so the only evidence before the sentencing judge was the hearsay account contained in Dr. Nielssen's report.
- Her Honour referred to the issue in her judgment, and noted the potential relevance of the childhood abuse of an offender. She concluded, however, that in the circumstances of the case before her, that the particular feature of the case could have no mitigating effect on sentence. The applicant contends that such a conclusion was simply not open to her Honour, submitting that "there was no material before the court which would have diminished the importance of that earlier abuse".
- That submission presupposes that the issue of childhood abuse was in fact of "importance" in the first place. There is no reason to conclude that it was.
- For a history of childhood sexual abuse to be taken into account as a mitigating feature of an offender's subjective case, the fact of the abuse must be established on the balance of probabilities, as must a conclusion that the history of abuse was a contributory factor in the offender's own offending conduct: R v AGR (Court of Criminal Appeal, 24 July 1998, unreported).
- As to the first criteria, the applicant gave no evidence of the abuse he claimed to have suffered, and his account of it was not able to be tested in cross-examination. That alone meant that her Honour was entitled to treat the claims with some circumspection: R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 at [58] - [59].
- Even if the offender's self report to Dr. Nielssen was sufficient to establish that abuse had occurred, there was nothing before the court to establish its causal connection to the commission of the index offences. Whilst Dr. Nielssen referred to studies suggesting a link between childhood abuse and adult offending, he did not positively conclude that such a link existed in the applicant's case. Indeed, he recorded without comment the applicant's statement that he had not believed there to be any link between the abuse he suffered and that which he perpetrated. The applicant described the abuse he experienced as violent and threatening, whilst characterising what he had himself done as taking the affection of his step-daughters for him "the wrong way", with "one thing leading to another" (AB 53). There is no obvious link to be drawn and, without specific evidence on the point, her Honour was entitled to treat the evidence as she did.
- The applicant complains that her Honour should have considered the issue of childhood abuse when considering his prospects of rehabilitation but, in circumstances where the evidence did not establish any causal connection between abuse and offending, it is difficult to see why that should be so. If the applicant's childhood experiences had no relevance to his adult offending, even his determination to seek counselling or treatment relevant to his experiences (something of which there was no evidence) could have had no impact on the prospects of rehabilitation.
- The weight to be given to the evidence relating to childhood sexual abuse was very much a matter for her Honour. The fact that she accorded it little or no weight is not demonstrative of error, and the applicant has failed to show that there was error in this regard.