R v CC [2016] ACTSC 43

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - particular offences - offences against the person - incest - indecency with a young person between the ages of 10 and 16 years - history of mental health issues - history of illicit substance use - history of alcohol abuse - criminal history - early guilty pleas - demonstrated remorse - good prospects for rehabilitation - specific deterrence - sentenced to terms of imprisonment.

Crimes Act 1900 (ACT) ss 61, 62

R v HI [2015] ACTSC 373

R v PR (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 12 September 2013)

R v TC (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 28 March 2011)

1. CC, you appear before me today for sentence with respect to five counts of incest, contrary to s 62(2) of the Crimes Act 1900 (ACT) (the Crimes Act) and one count of indecency with a young person between the ages of 10 and 16 years, contrary to

s 61(2) of the Crimes Act. The maximum penalty for the offence of incest is 15 years' imprisonment and the maximum penalty for the offence of committing an act of indecency on a young person between the ages of 10 and 16 years is 10 years' imprisonment.

2. You were charged with these offences on 18 July 2015 and following negotiations between yourself and the Crown you entered pleas of guilty in the Magistrates Court on 22 September last year. You were then committed to this Court for sentence on 22 September. You have been in custody since you were arrested on 17 July 2015.

3. The offences were committed between 27 March 2015 and 1 July 2015 on your stepdaughter, TS, who, for convenience, I will refer to as the victim. You commenced a de facto relationship with the victim's mother in or about 2004. At that time Ms S had two daughters from a previous relationship, one of whom was the victim. Both children came to view you as their father. You and Ms S also had two children together. You, Ms S and the four children all lived in a house in Isabella Plains and all of the offences were committed in this house.

4. At your sentence hearing an Agreed Statement of Facts was tendered particularising the facts that relate to each count. I do not propose reciting the precise details with respect to each offence, however, I will detail the facts with respect to the first charge and briefly summarise the facts in relation to the other charges. I note that the victim was 13 years old during these offences.

5. The first count of incest relates to the following incident. On 27 March 2015, you and the victim were watching music videos on the computer together. The victim was sitting on your knee and you began tickling her leg. She was wearing shorts and you moved your hand up her leg and inside her shorts. You then began to pull her underwear to one side and you began to touch her labia. You then digitally penetrated her vagina with one finger while you said, "You turn me on". You then undid the victim's bra and began to touch her breasts and nipples, which is the subject of the indecency charge. You then placed your hand back into the victim's pants and digitally penetrated her vagina with your finger. You continued to do this faster and harder than before causing her pain. You removed your finger from the complainant's vagina when her two sisters entered the room. The victim did not say anything as she was frightened of you. When her sisters left the room you told the victim not to say anything and not to tell her mother.

6. Three of the counts of incest also relate to you digitally penetrating the victim's vagina. On one of those occasions you also licked and penetrated the victim's vagina with your tongue. I note that on that occasion you motioned to undo the button and fly of your pants and then said, "That's probably a bit far, isn't it?" On a separate occasion you also engaged in an act of cunnilingus with the victim. All of these offences ceased due to interruptions by other children in the family. These offences all involve a serious breach of trust on your part.

7. On 17 July last year, the victim disclosed your offences to her mother while at the Canberra Hospital receiving treatment for an injury. Police were subsequently contacted and the victim participated in an evidence in chief interview. On that evening you were arrested at the Canberra Hospital. While being arrested you said, "I didn't do anything too bad or full on. I didn't rape her, you know".

8. A victim impact statement dated 29 January 2016 by the victim was read aloud by her mother at your sentence hearing and was also tendered as evidence. The victim described both the physical and emotional impact your offences have had on her. She described self-harming on multiple occasions and running away from both school and home on a number of occasions. She described blacking out on numerous occasions which resulted in her being both verbally and physically violent towards friends and family members. During her blackouts she would often come to being unaware of her surrounds and unable to recall what had happened.

9. She also describes being unable to sleep and eat properly. She further described being diagnosed with post-traumatic stress disorder, anxiety and depression. She has now been prescribed antidepressants.

10. The victim's mother also provided her own victim impact statement. She described how distressing it was to see her daughter try to cope with your offences, particularly she described how difficult it became for her daughter to attend school as, when someone would mention you, she would break down, become physically violent towards others and would come home from school with lumps on her head from head butting walls. She described that it got to the point where she felt that her daughter did not need to have the pressure of school so she did not insist upon her attending.

11. She also described the impact your offences had on her family, particularly having to tell her younger children the reason they were no longer able to see you. She described having to seek support from the Child At Risk Health Unit, in addition to attending regular counselling sessions and completing a parenting course to support the victim. I note that a letter from Ms S' treating psychiatrist was tendered during the course of the sentencing hearing, confirming that she continues to attend Tuggeranong Mental Health Centre.

12. A Pre-Sentence Report was tendered at your sentence hearing. You are 34 years old and you were adopted as a baby. Your adoptive mother died when you were approximately five years old and at that time your grandmother moved into your family home and resided there until your stepmother moved in approximately five years later.

13. You told the author of the Report that your grandmother leaving was very upsetting and resulted in the breakdown of your relationship with your parents. You described your upbringing as very strict and you told the author of the Report that you left the family home at age 13. This resulted in you experiencing a period of homelessness. You were later placed in the foster care system. At the age of 16 you reported that you resided with your uncle in country New South Wales, however, you left this accommodation when you moved in with your girlfriend at 18 years of age. This relationship produced a son, however, you told the author of the Report that you have not had any contact with your son since that relationship ended, which was when your son was approximately four years old.

14. You began a relationship with the mother of the victim approximately 10 years ago. You described your relationship with your daughters and stepdaughters as close and described your relationship with your partner as being characterised by alcohol, illicit substance use, mental health issues and verbal arguments. You told the author of the Report that this resulted in you performing extra parental responsibilities. You reported maintaining a close relationship with your father and stepmother, both of whom have visited you regularly since you were remanded in custody.

15. In the 12 months prior to being remanded in custody you were self-employed and ran a mobile laser tag party hire business. You described satisfaction in this role and expressed your desire to return to the business in a more managerial role once released from custody. I note that since 19 November last year you have been employed as a cleaner in the admissions area of the Alexander Maconochie Centre (AMC).

16. You disclosed to the author of the Report a history of problematic alcohol use which you claimed was exacerbated by stressors within the family. You advised that in the time immediately prior to being remanded in custody you were drinking in excess of nine standard drinks up to three times a week. On 23 October last year, an alcohol screening tool was administered which indicated that your use of alcohol was at a hazardous risk level requiring intervention.

17. You also disclosed to the author of the Report that prior to being remanded at the AMC you had been using cannabis on a weekly basis. While being in custody you have regularly attended groups in relation to your alcohol and illicit substance abuse.

18. You told the author of the Report that you were in a motor vehicle accident approximately 10 years ago, which caused you some residual neuropathic pain for which you are medicated. You reported being diagnosed with mental health issues and prescribed medication by your general practitioner. You did not provide details of your general practitioner so the author of the Report was unable to confirm that fact. I interpolate here to note that two letters from Dr William Knox, a consultant psychiatrist, dated 3 November 2009 and 21 May 2010, were tendered at your sentence hearing. Both of these relate to your motor vehicle accident on 30 November 2005 and refer to you being prescribed pain relief medication by your general practitioner.

19. I also note that you have been prescribed antidepressant medication while in custody. You told the author of the Report that you have a history of selfharm and you attempted to overdose on medication in May 2015. Information provided by ACT Health revealed that you have been diagnosed with adjustment disorder and also revealed a more recent self-harm attempt. This was confirmed during the interview with the author of the Report, that in July 2015, you attempted to take your own life using a motor vehicle.

20. It was the view of the author of the Report that you did not take full responsibility for your actions, rather you attempted to shift the blame on the issues with your now

ex-partner, inability to cope with the pressures of daily life, serious family illness, the death of a close friend and, the responsibilities of running a new business.

21. I note that you failed to attend scheduled interviews to discuss your attitude to the offences and to examine the Statement of Facts. I note, however, that you were able to give appropriate explanations for not attending on those two occasions.

22. You were assessed as at low to moderate risk of further sexual offending using an actuarial tool that does not consider thought processes or other sexual motivations. You were assessed as suitable for the Adult Sex Offender Program, which is available both in custody and in the community.

23. The author of the Report expressed concern about your lack of protection in the areas of mental health, alcohol and illicit drug use, as well as the lack of ongoing employment or stable accommodation. On that basis the author of the Report assessed you as at medium risk of reoffending. It was noted that you made an application to a residential rehabilitation program to address your alcohol and illicit substance use.

24. A letter written by you was tendered and you also gave evidence at your sentence hearing on 29 January this year. In your letter you apologised for your offending and expressed remorse. You also detailed the courses that you have completed whilst in custody, which you said have assisted you to better understand your behaviour, emotions and how to act and live while in the community.

25. In your letter you also asked me to consider allowing you to spend some time with your father who is terminally ill with cancer. This was supported by a letter from your father's doctor that was tendered confirming that your father has been diagnosed with metastatic prostate cancer with complications in February 2012. In your letter you also asked for the opportunity to continue to run your small business so that you could maintain a steady income for your family and yourself.

26. In your evidence at the sentence hearing you admitted the Statement of Facts although you described your memory of the events as vague. You also spoke of the events that led up to you committing these offences, including the strain of your relationship with your now ex-partner who you described as being in poor mental health during this period and also caring for four children. I note that you claim that you were relatively unassisted in caring for the children. You also spoke of a friend passing away from a motorcycle accident and your father encouraging you to contact your biological parents in the lead up to the commission of these offences.

27. You described consuming alcohol to excess approximately three times a week, smoking cannabis every day and taking prescription drugs such as Valium. You considered your mental health was poor during this period and that you should have sought assistance. You spoke of two suicide attempts. One took place on the day of your arrest. You described being relieved that you were going to be dealt with and by that you meant punishment.

28. You accepted responsibility for your offending during your evidence. You were unable to say what your motivation for your offending was and simply stated that you made bad decisions. You considered that you were sexually attracted to the victim at the time of these offences.

29. A Psychological Report by a clinical psychologist, Mr Nomchong, dated 20 November last year, was tendered by you at the sentence hearing. I note that part of that Report was objected to by the Crown and I excluded the parts that were objected to on page 3 of the Report. The Report described a lengthy personal background and also describes your alcohol and drug uses in detail, both of which I have already referred to.

30. I do note that it was the opinion of Mr Nomchong that you had become increasingly disenchanted with your relationship over time and this resulted in you seeking solace, comfort and connection with a significant other and this motivated you to get closer to your stepdaughter. Mr Nomchong considered that you had a well established drug and alcohol addiction that worsened as tensions in your relationship grew. It was his view that this drug and alcohol abuse impaired your judgment and led to you seeking intimacy with the victim on several occasions. Mr Nomchong also formed the view that you had good insight into the nature of your offences, your actions and consequences for yourself, the victim and other parties involved.

31. It was also the opinion of Mr Nomchong that your abuse of alcohol and cannabis impaired your function of memory, which is the reason that you have been unable to recall the precise details of the circumstances surrounding your offending. It was his further view that you should continue with your current psychological treatment for at least 12 months.

32. I also have before me three letters that were tendered at your sentence hearing. One is authored by your father, which is undated. Your father described his relationship with you as loving and states that he has tried to support you as much as possible. I also note that your father refers to you being diagnosed with attention deficit hyperactivity disorder at age 12.

33. Your stepmother, LC, also provided a letter which is undated where she refers to you as her son. She has written that she genuinely believes that you are repentant for what you have done and that you are trying to turn your life around.

34. I also received a character reference from Reverend Peta Thorpe who is a Chaplin at the AMC. Reverend Thorpe described you as, "a gentle, thoughtful detainee who is willing to reflect deeply on his offending behaviour and who has expressed a strong desire to make changes in his life". Reverend Thorpe also detailed your commitment to the Seasons for Growth Program, which is aimed at helping people understand the impact of change, loss and grief on their lives. Reverend Thorpe also described that you demonstrated courage, a high level of honesty and self-awareness while completing this course.

35. I have also had the benefit of an Assessment Report from the Adult Sex Offender Program. It is noted that you accepted responsibility although demonstrated limited insight into your reasons for offending. The author of the Report noted that you are unable to account for your reasons for committing these offences.

36. You expressed some understanding of the impact of your offending behaviour on the victim and you told the author of the Report that the victim would have been scared of you, angry at you and may have been confused, not have been able to attend school and possibly self-harmed. I note that you expressed a desire to engage in appropriate treatment.

37. You have a relatively short, although not insignificant, criminal history. I note that a number of your previous offences were dealt with in the Childrens Court both in the Australian Capital Territory and in New South Wales, including offences of damaging property, minor theft, taking a vehicle without authority, breaking and entering, assault and trespass. I also note that you were before the Magistrates Court in 2003 for an offence of assault and also a further offence of threatening to cause property damage. You also appeared before the same Court in 2004 for a breach of a recognisance and again in 2008 for damaging property.

38. The circumstances surrounding these offences were detailed during your evidence at the sentence hearing. I do not consider it necessary to recite that evidence for present purposes. I note that you do not have a prior history of sexual offending.

39. Sexual offences involving children and particularly incest are rightly regarded by the community as odious. Offences of incest or sexual offences committed by a parent or a step-parent towards their child involve a significant breach of trust. Indeed, it is difficult to contemplate a more complete breach of trust. Children trust their parents and they learn about the nature of our world including what is considered right and wrong from observing their parents.

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.

41. The community regards such offences as particularly serious criminal offences, as is demonstrated by the maximum penalty of 15 years' imprisonment for incest and 10 years' imprisonment for committing an act of indecency on a young person between the ages of 10 and 16 years.

42. The community looks to its courts to assist in the protection of children and community institutions and values by passing sentences that reflect the community's disapprobation and that deter offenders or would be offenders from similar offending. Rehabilitation of offenders is always a relevant sentencing consideration but in offences of this type punishment and deterrence generally have greater weight.

43. The Crown took me to a number of sentences which have been imposed for this type of offending in the past. In R v TC (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 28 March 2011), the offender pleaded guilty to offences of incest and committing acts of indecency with respect to his two daughters. The offences occurred about 11 years before he came to be sentenced. The offences occurred when the victims were very young and one of the incest offences involved penile/vaginal penetration. Her Honour imposed a sentence of four years' imprisonment for each offence of incest committed against the offender's older daughter.

44. In R v HI [2015] ACTSC 373 on 19 November 2015 I sentenced the offender after trial to two years' and six months' imprisonment for an offence of incest constituted by an act of fellatio. The offender was the stepfather of the victim and the offences occurred some 24 years before the offender came to be sentenced. The significant delay in prosecuting the offender was not adequately explained by the prosecuting authorities. In the intervening period the offender had remarried and helped raise a number of stepchildren without incident. I was satisfied that he had effectively rehabilitated himself during that period.

45. In R v PR (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ,

12 September 2013), Nield AJ sentenced the offender to imprisonment for five years and one month for an offence of incest constituted by an act of fellatio. The victim was the offender's stepdaughter. The sentencing remarks do not reveal the exact age of the victim, only that she was under 10 years of age. The maximum penalty for the offence which was before his Honour was 20 years' imprisonment.

46. I accept that your pleas of guilty were early pleas and that they indicate remorse. They also have utilitarian value and, of course, avoid the necessity of your victim having to give evidence about these events which is a very significant matter in my opinion. I will reduce the otherwise appropriate sentences by 25 per cent to reflect your pleas.

47. Whilst you have demonstrated a level of remorse for your offending you have also attempted to minimise or explain your behaviour in your dealings with police and Corrections' officials. Despite your pleas, specific deterrence remains a relevant sentencing consideration, albeit moderated by your good prospects for rehabilitation. In my opinion nothing less than immediate terms of imprisonment are appropriate with respect to these offences.

48. I will refer to the charges by their charge numbers in the Magistrates Court. With respect to charge 6761 of 2015, a charge of incest on 27 March 2015, constituted by digital penetration of the victim's vagina, you are convicted and sentenced to three years' imprisonment, which I have reduced from four years, which will commence on

49. On charge 6765 of 2015, a charge of incest between 17 May 2015 and 31 May 2015, constituted by digital penetration of the complainant's vagina, you are convicted and sentenced to three years imprisonment commencing on 17 January 2016 and expiring on 16 January 2019.

50. On charge 6767 of 2015, a charge of incest on 7 June 2015, again constituted by digital penetration of the vagina of the complainant, you are convicted and sentenced to three years imprisonment commencing on 17 July 2016 and expiring on

51. On charge 6769 of 2015, a charge of incest between 1 June 2015 and 30 June 2015, again constituted by digital penetration of the vagina and also cunnilingus, you are convicted and sentenced to three years and six months imprisonment commencing on 17 January 2017 and expiring on 16 July 2020.

52. On charge 6770 of 2015, a charge of incest on 1 July 2015, constituted by an act of cunnilingus, you are convicted and sentenced to three years imprisonment commencing on 17 January 2018 and expiring on 16 January 2021.

53. On charge 6762 of 2015, a charge of committing an act of indecency, you are convicted and sentenced to 12 months imprisonment commencing on 17 April 2020 and expiring on 16 April 2021.

I certify that the preceding fifty-four [54] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.

54. The aggregate term of imprisonment is therefore one of five years and nine months imprisonment commencing on 17 July 2015 and expiring on 16 April 2021. I set a

non-parole period of approximately 50 per cent of that aggregate, being two years and 11 months, commencing on 17 July 2015 and expiring on 16 June 2018.