The pseudonym Mr Antin will be used for the defendant. When the judgment is taken out identifying information will be removed and the children will be referred to by the pseudonyms - Complainant B and Complainant C.
Mr Antin is 90 years old, he has dementia and other health problems. He was charged with a number of serious sexual offences initially in relation to three children but one charge in relation to one child was later withdrawn.
On 31 March 2021 Mr Antin was found 'unfit to be tried' by Acting Judge Woods: R v Antin, Unreported Wollongong District Court 31 March 2021. In accordance with Part 3 Div 3 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (The Act) a special hearing was be conducted by this Court from 5 October 2021. On the limited evidence available I found that Mr Antin had committed the offences charged as counts 5, 6, 8 and 9 of the original indictment. I found him not guilty of count 7 and he must have the full benefit of that acquittal: R v Antin (a pseudonym) [2021] NSWDC 532.
I now have to deal with Mr Antin in accordance with the provisions of the Act for those remaining four counts. Counts 5, 8 and 9 were charged pursuant to s 51M(2) Crimes Act 1900 (NSW). They carry a maximum penalty of ten years. Count 6 is an offence pursuant to s 66A Crimes Act; it has a maximum penalty of 25 years. In any exercise whether a limiting term matter under the Act or to which the Crime (Sentencing Procedure) Act 1999 applies. Those maximum penalties are one important guide to the exercise of any judicial discretion.
In accordance with the scheme set out in the Act I first need to determine whether or not, given my finding on those four counts, I would have imposed a sentence of imprisonment for the offence if the special hearing had been an ordinary trial of criminal proceedings and the person had been fit to be tried for the offence: s 63 the Act. If I do I must nominate a limiting term that is the best estimate of the sentence that the Court would have imposed on the defendant in those circumstances.
When determining penalty I can consider the following factors:
1. I must take into account that because of the defendant's cognitive impairment a person may not be able to demonstrate mitigating factors for sentencing or make a guilty plea for the purpose of obtaining a sentencing discount,
2. I may apply a discount of a kind that represents part or all of the sentence discounts that are capable of applying to a sentence because of those factors or a guilty plea,
3. I must take into account periods of the defendant's custody or detention before or after the special hearing that related to the offence.
A limiting term takes effect from when it is nominated. I must give Mr Antin the benefit of any time spent in custody. As he has spent time in custody it is agreed that first limiting term should start from 17 June 2020. I have to take into account that a sentence of imprisonment in an ordinary trial of criminal proceedings may be subject to a non‑parole period but a limiting term is not and I have to take into account in an ordinary trial of criminal proceedings a consecutive sentence of imprisonment are to be imposed with regard to the non‑parole periods.
When I have reached my determination and have nominated a limiting term I must refer the defendant to the Mental Health Review Tribunal (the Tribunal) and notify the Tribunal of the orders. I have the power to order the defendant be detained in the mental health facility, a correctional centre, a detention centre or other place pending the review of the defendant by the Tribunal.
In discussion with the parties it was agreed that the only appropriate order would be that Mr Antin be detained in a correctional centre until the review by the Tribunal. I am told this matter is listed before the Tribunal this week. It is agreed that whether or not there should be alternative place of detention is best left to the Tribunal for two reasons. First, because at the moment I do not have all necessary material before me to properly determine the matter. And secondly, the Tribunal because of its expertise would be a better body to make such a determination.
Given the seriousness of the charges and my earlier determination on the limited evidence available Mr Antin committed the four offences, it is agreed that options other than fixing limiting terms are not available to me. I am aware that once my limiting term is imposed Mr Antin now becomes what the Act describes as a 'forensic patient.'
It is then for the Tribunal to determine whether there are reasonable grounds for believing that care, treatment of control of Mr Antin is necessary for his own protection from serious harm or the protection of others from serious harm. They will monitor his continuing condition, including any likely deterioration in his condition and the likely effects of any deterioration. The Tribunal may make an order for the transfer of a forensic patient to some other place of detention. Ultimately he may be released into the community but only after considering the important matters set out in s 84 and 85 of the Act which relate to the need for his own protection but importantly the protection of the community.
Ordinarily in sentencing proceedings a court can reduce a sentence for a number of reasons and apply discounts to the sentence. As the Act indicates I can now do so after a special hearing. In such matters it is sometimes obvious to a judge that the defendant would, if they had had the capacity, have accepted their guilt and entered a plea at an early opportunity. When there is material to justify such a finding on balance it would be wrong given the way the Act is structured to not allow a discount on that sentence as contemplated by the Crimes (Sentencing Procedure) Act and the guideline decision of R v Thompson, R v Houlten [2000] NSWCCA 309; (2000) 49 NSWLR 383. The restrictions placed on matters dealt with in the indictment would not, given the structure of both Acts, mean s 25D Crimes (Sentencing Procedure) Act could curtail my discretion.
However, there is no indication in the material before me that Mr Antin could have, would have or is capable of admitting his guilt. The few responses to the allegations noted by the two psychiatrists, Dr O'Dea and Dr Reutens indicate that he alleged that the allegations were part of a conspiracy to ensure that he lost his property. In those circumstances it would not be appropriate to give a plea discount in the ordinary terms. However the Court does have a general power to reduce penalty: ss 21, 22A Crimes (Sentencing Procedure) Act. I can take into account the manner in which the hearing was conducted and the facilitation of the administration of justice by those representing the defendant when I come to synthetise an ultimate penalty. Although the two complainants had to be cross‑examined it was done as carefully and expeditiously as possible. I could not in all the circumstances however put a percentage on that nor do I believe I am obliged to.
[2]
Facts relied on
The facts I found proved on the limited evidence were fully set out in my earlier judgment. What follows is a brief summary.
[3]
Complainant C
Counts 7, 8 and 9 are said to have occurred when Complainant C was ten or eleven. She told me that on one occasion when she was in her back yard Mr Antin beckoned to her to come over to his yard and then inside his home. She presumed it was give her some vegetables from his garden as he had done before. In the home he pulled down her tights and underpants and his own pants, count 9. He positioned her so she was leaning over, he was behind her, he placed his penis against her butthole. She felt it brush against her and she felt the tip of it. That is alternative count 8.
[4]
Complainant B
Complainant B was Mr Antin's granddaughter. Soon after she was born she and her family lived in a house opposite that occupied by her grandparents, she then moved to a country town but the family would visit the grandparents regularly. She told me she had memories of Mr Antin doing two particular things to her on a number of occasions every time the family visited the grandparent's home. She was however only able to provide details of the first and last incidents. The first incident occurred when she was about three years old. She said Mr Antin took her upstairs to his room then he lowered his pants and exposed his penis and motioned that she perform what she described, as a young adult, a hand job on him. He put his hand on hers and moved her hand over his exposed and erect penis. He made a noise of showing enjoyment and said "Good girl."
The last incident occurred the last time the family visited their grandmother who is now deceased. She was still living at the family home when this occurred. Complainant B and her sister wanted to play basketball, her grandfather said he would get her a ball but instead he took her to a shed behind the house. There he turned her facing over a stool. He lowered her pants and her underwear and he put his penis in her bottom. She said "He anally raped me." She said she felt "discomfort" but in her police interview she spoke of 'pain' and she told me, "I just know it hurt." She said he had done similar things about ten times before.
[5]
Assessment of Seriousness
Mr Fraser, Public Defender, who appeared at the special hearing and today provided comprehensive written submissions. The prosecution accept them as fair and balanced.
Mr Fraser's submissions set out factors relating to my assessment of the objective gravity of the offending: R v King [2009] NSWCCA 117; R v AJP [2004] NSWCCA 434. In brief summary there is an absolute prohibition on sexual activity with a child. That prohibition is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity Clarkson v R [2011] VSCA 152: R v Gavel [2014] NSWCCA 56. This is one important reason for the high maximum penalties fixed for indecent assault offences and particularly those involving sexual intercourse with a child.
For indecent assaults I must consider the actual character of the assaults: R v Van Ryn [2016] NSWCCA 1. I look at the:
1. the degree of physical contact involved.
2. the part of the body touched
3. whether there was skin on skin contact: GSH v R [2009] NSWCCA 214; Corby v R [2010] NSWCCA 146
4. the age of the child and the perpetrator
5. the age of the child relative to the range encompassed by the offence as the younger the child the more serious the offence: R v KNL [2005] NSWCCA 260.
6. Any physical harm or pain that accompanied the act.
Similar principles apply in assessing sexual intercourse offences. Ms Olender, who now appears for the Director of Public Prosecutions, submits that the form of the intercourse here was particularly degrading and makes it a more serious example of the type of offence. With great respect, the form of the intercourse when it involves a child as young as complainant B is not particularly relevant. Each type of intercourse is equally degrading and oppressive of the child.
What is important here, as Ms Olender properly submits, is the relationship between the child and Mr Antin and the breach of trust involved. Here a grandfather used a child for his own sexual purposes when his true role was to nurture and respect his grandchild. One cannot underestimate the impact of such a breach of trust on a young child.
When indicating the limiting terms for the offences against Complainant B I take into account they were part of a course of conduct. So far as Complainant C is concerned this it appears to have been a one off incident.
[6]
Subjective case
Mr Antin has one matter on his criminal record but it can be ignored. When he first commenced offending against Complainant B he lost any good character that he may otherwise have had.
There has been some delay in bringing those matters to court however during the period of delay he had the benefit of people assuming he was a man of good character and of living free in the community; when in fact he was, when the offences were first committed, a serious sexual offender. Delay only operates to mitigate sentence in the sense that his subjective situation has changed significantly since the earlier offences began.
I have limited information about his background. He was born in Macedonia in 1931. It appears he had no formal schooling and that he started working when a young child, as soon as he was physically able. He spent time in the army in the former Yugoslavia. He came to Australia and worked most of his working life as a labourer. He was able to achieve a level of comfort and provide for his children. He was able to buy a family home and investment properties.
Dr Reutens summarises a number of conditions, which are not unusual for a man of ninety. His medical history notes; back pain, disc prolapse, dermatitis, rosacea and hypertension. He had pulmonary embolisms in 2009 and 2010. He has had cataract removal and hypercholesterolemia. He has gastroesophageal reflux disease, osteoarthritis and chronic renal disease stage 3.
He also, as his both doctors indicate, developed a significant cognitive impairment; described by them both as a major neurocognitive disorder.
His present physical and mental state needs to be considered. There is no information before me that his, I use the shorthand, 'dementia' contributed to the commission of the offences. Although, so far as Complainant C is concerned it seems obvious from the evidence given by his parents that his condition had been deteriorating and was noticed by them. He was, however, still able to lead a life in the community.
His subsequent deterioration means that a number of problems that have been described in other cases as "intractable" arise. Because of his present condition limiting terms have to be imposed. General deterrence is often of considerable importance in sentencing child sex offenders but here those considerations need significantly less emphasis than would be the case if I sentenced after trial, a person who did not have his significant cognitive disability.
A limiting term could not be utilised as general signal to the community that anyone who offends against children in the way that I have found here faces significant punishment. That is because the finding is based "on the limited evidence' and the condition of the offender that justified the special hearing.
In his present mental state Mr Antin does not even realise that he is Australia. It is impossible to make a finding that specific deterrence could have an impact upon him.
Because of his age and mental condition a custodial sentence will weigh more heavily on him. he will serve his term in conditions more onerous than those for a person who does not have his condition. This is frankly a cases where despite the heinousness of the offending found to have been committed on the limited evidence the community would say human sympathy means that you would not expect him to get the same sentence as someone else: R v Engert (1995) 84 A Crim R 67 per Allen J at 70.
The state of the health of any offender is always relevant when it comes to an appropriate sentence. I am confident that Corrective Services will do and have done what they can but I am aware particularly during the present pandemic that outside medical services are limited because of the need to quarantine. I interpose at this stage that I am also aware that he has served his time in detention during the course of the pandemic with all the restrictions placed on prisoners that have been necessary to prevent the disease entering and now spreading.
It is clear that his state of ill health will make his period in custody and detention a greater burden but there is no evidence that imprisonment gravely has an adverse effect upon him.
The limiting term that I impose will effectively last for the rest of his life and while that might attract sympathy for some, although I suspect not for many in the community, it is not the test the Court must apply. The Court must apply principle: Anastasiou v R [2010] NSWCCA 110. It is not for this Court to impose an inappropriate sentence in order to give an ill or elderly offender hope of release before his death: GS v R [2016] NSWCCA 266 at 107.
[7]
Structure
As the new Act does not pick up the Crimes (Sentencing Procedure) Act there is no power to impose an aggregate sentence. There were two separate and distinct victims here requiring accumulation between the terms imposed for each. So far as complainant C is concerned the first act was preparatory to the second and it was a one off incident. The term for the more serious offence being Count 8 can reflect the criminality of both: R v Cahyadi [2007] NSWCCA 1. So far as Complainant B is concerned there were two distinct types of offending and they were not isolated but part of a pattern. There must be some accumulation.
I have to consider the principle of totality but that principle has limited impact. As other principles require the limiting terms to be significantly reduced in all the circumstances
I am indebted to Mr Fraser for his comprehensive and fair submissions and the prosecution accept them as fair and balanced. The only differences are Ms Olender's submission that the s 66A offence, count 6, falls well above the middle of the range and her emphasis on the breach of trust involved, a matter which Mr Fraser concedes. Sometimes courts can be assisted by submissions that refer to a range but here I focus on what was done and all of the relevant matters which must be synthesised.
[8]
Synthesis
I have an obligation to vindicate the dignity of two young victims and to express the community's disapproval of the offending I have found proved. It is also necessary to do what the Court can to afford protection by the state against repetition but given the orders that I will impose and the function of the Tribunal who will be monitoring Mr Antin for the rest of his life and that final element can be met.
Every sentencing exercise whether a limiting term or otherwise has a human element that human element has to give proper weight to the situation of the offender and impose a limiting term that is one indicator of the seriousness of which the Court views the crime committed. I also have to take into account all relevant considerations and there are extraordinary relevant considerations given the age of the offender and his personal circumstances. It means that no direct correlation between the harm done and the time fixed as a limiting term is impossible.
Further, the public and the victims of the offence and their families should understand that there is a procedure in place for dealing with people who have a significant cognitive impairment as Mr Antin does. The mental health system is generally a better than the blunt instrument available to judges sentencing with the criminal justice system way. It provides better services to the defendant and the community. A victim should never measure or equate their injury with the punishment actually inflicted and the time spent in custody.
That said, the Court does not and has not ignored what fell from both the complainants in evidence and their Victim Impact Statements. They bravely came forward to report these incidents. They continued with the proceedings. They gave their evidence and were subjected to appropriate cross‑examination. They were believed by the Court and as a consequence of their coming forward there is no reasonable prospect of Mr Antin ever offending against a child again.
Complainant B told me in her Victim Impact Statement of how what her grandfather did to her as a child affected; her mental health, her behaviour, her relationships and her social life. She still suffers nightmares about being back with him and she told me she still suffers trauma. She has panic attacks, anxiety, old men freak her out. She still has significant problems with trusting anyone.
Complainant C told me how what had happened to her interfered with her learning and her school life and her interactions with others. She is still overly sensitive at times and loses concentration and focus. She worries about her future particularly intimate relations. She has headaches and food intolerances. She is anxious meeting new people and her anxiety continues.
It is hoped that the end of these proceedings will enable both complainants to get on with the rest of their lives. They have shown a lot of promise and there is a bright future hopefully available to them both.
[9]
Orders
The formal orders of the Court are:
1. Count 9 - a limiting term of two years which will date from 17 June 2020. I
2. Count 8 - there is a limiting term of three years which will date from 17 June 2020 the same date.
3. Count 5 - a limiting term of four years which will date from 17 December 2022.
4. Count 6 - a limiting term of seven years which will date from 17 December 2023.
The effective time or limiting term is one of nine years and six months.
I order that Mr Antin be detained in a Correctional Centre pending review by the Mental Health Review Tribunal: s 65(2) the Act.
I direct that the registrar of the District Court provide to the Mental Health Review Tribunal;
a copy of the orders made today,
a copy of my earlier judgment,
a copy of this judgment as soon as it is taken out and corrected
a copy of the exhibits and written submissions tendered or filed today.
Thank you Madam Interpreter, thank you Ms Olender, thank you Mr Fraser.
[10]
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Decision last updated: 29 October 2021