R v Charlton

R v Charlton - [2024] NSWDC 633 - NSWDC 2024 case summary — Zoe

[8]

THE OFFENDING - COUNTS 9 TO 14 16. The next incident occurred on the access visit JY made to the accused a fortnight later. The accused picked JY and JC up from his parents' house. It was during the warmer months of the year. The accused first drove JY and JC to Caves Beach and the parkland to the right of the presently existing hotel. JC and JY had kites with them, and they flew them in the parkland for about 30 to 40 minutes. 17. They then went to the video and takeaway shops as usual and then back to the offender's unit. JC started to watch a video after lunch. The offender said to JY that she needed to go to bed, and he went and set up the bed in his bedroom. 18. Shortly afterwards, JY went into the offender's room. He was lying on his side with his back to the wall. He patted the bed next to him and said to jump up onto the bed. JY got onto and into the bed and lay on her righthand side with her back to the offender. The offender took hold of JY's left arm with his left arm and rolled her back towards him so that she was lying on her back. The offender then put his left arm over JY's body around her stomach. 19. The offender then took his left hand away from the victim's stomach and started to rub her from her head downwards over her left breast to her undies (Count 9, indecent assault - s 61M(2)). The offender then put his left hand inside JY's underwear onto her genitalia (Count 10, indecent assault - s 61M(2)). He did this a few more times. 20. The offender again rubbed his hand from her head downwards over her left breast to her underwear (Count 11, indecent assault - s 61M(2)). The offender then inserted his finger into JY's genitalia (Count 12, sexual intercourse child under ten - s 66A). JY felt sick and pretended to be asleep and acted like she was snoring so the accused would stop. JY was sore, and the accused was still singing the song as his finger was inside her genitalia. He left his finger in her genitalia for a short time, then he removed his hand and started to rub JY from her head downwards again. 21. The offender once again rubbed JY's body over her breast (Count 13, indecent assault - s 61M(2)). He then put his hand inside JY's underwear and again inserted a finger inside her genitalia. (The victim described the offender putting his finger in her vaginal opening), (Count 14, sexual intercourse child under ten - s 66A). JY was still pretending to be asleep. The digital penetration caused her pain. The offender then suddenly removed his finger from her genitalia, then his hand from her underwear. He climbed across JY and got off the bed and walked from the room. 22. JY lay there until it was time to go home. She was crying while she lay on the bed. The offender drove her and JC home later that day. JY felt confused, scared and hurt. 23. JY did not want to go back to the offender's unit, so she told her mother she was sick for the next few weekends. The following year, JC and JY started going back to the offender's house at Marks Point under the same access conditions; that is every second Sunday, 10am to 4pm. The offender stopped taking the victim to his bedroom.

[11]

RELATIONSHIP LEADING UP TO THE OFFENDING 28. The V family included the following people: MV, DOB October 1976, who had twin daughters, JV and CV, DOB June 1995. MV subsequently commenced a relationship with MM. They had six children together, two of whom are victims: 1. DV, DOB April 1998. 2. LV, DOB October 2002. 29. MM was often absent from the family home, leaving MV to raise the children. MV had a mild intellectual disability and largely left the children responsible for the housework, their own cooking and cleaning, and getting themselves ready for school. MV and MM would also often physically and mentally assault the children. Family and Community Services, the Samaritans and other organisations became involved with the family as a result. 30. DV recalled that his family moved to Windale when DV was approximately one or two years of age (1999 to 2001). They were still living in Windale in 2007, when DV was eight years of age. In 2007, DV was in Year 3 at public school. That year he was eight and turned nine in April 2007. His father left shortly after Dominic's ninth birthday in April 2007. Not long after MM stopped living with the family, the offender began to mow the lawns at the V family home. This was an arrangement that had been made by the Samaritans charity because MM was no longer around to mow the lawns. 31. The first couple of times, the offender came with another person, and after that he came to mow the lawns on his own. Over time, he became friendly with MV and started to get to know the children. After a few weeks, the offender started to visit when he was not mowing the lawns and would do so a couple of times a week. The offender had a black kelpie dog called "Fox," who he would bring to the house and tie up on the front veranda when visiting. 32. The offender would sometimes come to visit in the evenings or on weekends. He would sometimes stay for a meal with the family and sometimes stay overnight. When he stayed overnight, his dog would be kept in the backyard with the V family dog. The offender would talk to the children and watch TV with the family and generally be in the company of the family. The children trusted the offender because their mother had trusted him, and they opened up about their lives to him. 33. LV remembers the offender as a family friend when he started to come around to the house. It is LV's recollection that she was attending a preschool in Windale, and a preschool inside the public school at this time. The offender would sometimes pick up LV from school.

[13]

The relationship between the Victim and DV relevant to DV being under the authority of the offender as a parental figure. 36. Another incident occurred in relation to DV in the same period, when DV was eight years old. DV is unsure whether this happened before or after the incident where the offender masturbated him. On this occasion, the offender took DV into the bathroom. Both the offender and DV were clothed when they entered the bathroom. The offender then closed the door and locked it with a sliding bolt lock. The bath had been run earlier. The offender forcibly removed all of DV's clothes, leaving him naked, and picked him up and threw him into the bath. The offender then stood and watched DV in the bath until he got out. The offender then helped DV to dry himself with the bath towel. DV did not tell anyone about this incident. 37. The offender would regularly ask DV if the offender could bathe or shower with him. DV told the offender that this was not going to happen. 38. NV, DV's brother, recalls that at nighttime when the offender was at the house, the offender would say "Who needs a bath?" The offender would grab DV and start pulling his clothes off in the lounge room. Once DV was naked, the offender would pick him up and throw him into the bath. 39. On a particular day on a weekend during daylight hours, the offender, MV, NV and DV were all home. DV and NV had been misbehaving and were hiding in their room. DV and NV then got out through their window and went to the bush for a while. When they returned to the house and climbed back in through the bedroom window, the offender opened the bedroom door and entered. He was alone. He put one arm around each boy's neck and applied pressure. The boys were moving around, trying to move away. The offender was yelling about how they had made their mother worried, and no-one knew where they had gone. The offender then dragged the boys into MV's bedroom to the bed. He then held the boys down on the bed with his weight. He had a hand around each boy's neck and was applying pressure to hold them down while he knelt on the bed. DV got away and ran from the room and then the offender released NV, who also ran from the room. 40. On another occasion during the same period, NV and DV were both present, and had again been misbehaving. When this happened, and the offender was at the house, the offender would pull each boys pants and undies down and smack each of them numerous times on their bare bottoms.

[17]

BACKGROUND RELATING TO THE RELATIONSHIP BETWEEN THE OFFENDER AND THE J FAMILY LEADING UP TO THE OFFENDING [The uncharged acts referred to in the following were used in the trial only as context evidence, and are, as one would anticipate, not to be the subject of sentence. Some relate to the offender normalising sexual language to assist in committing the offending conduct.] 47. LT and PJ have eight children and four of the children are victims in these proceedings. DJ, DOB July 1997; MJ, DOB February 2008; CJ, DOB January 2010; and AJ, DOB August 2012. 48. The offender's sister was married to JP's brother. The J family had known the offender for a long time and the children knew him affectionately as "Uncle Peter." The family was living at Jack's Creek, Narrabri, on a property. This was a 100-acre property with a three-to-four-bedroom house. The offender started to stay there in around 2006 to 2007, and during that time lived in at least two different caravans. 49. After some time, PJ gave the offender another caravan to live in, a bigger one which had previously been kept at the back of the house. There was a table and chairs at the front of the caravan and a double bed up the back where the offender slept and watched TV from. The television was clearly visible from the bed, so a person would sit on the bed to watch the television. The offender began living fulltime at the property around 2008. 50. Initially, the offender would provide some assistance to the J family when he came to stay because PJ was often away for work and his partner did not have a driver's licence. The offender would also drive her and the kids to town or the hospital if needed. He would also drive the kids to and from the bus stop which was some 16 kilometres down the highway. 51. When the offender was staying on the property, PJ's partner saw the offender every day. Each day, he would get the kids up for school and then the offender would come into the house. He would get breakfast and then drive the kids to the bus stop. Afterwards he would spend time in his caravan watching TV. When it was time to pick the kids up, he would go down to the bus stop. After the kids got home, the offender would have a shower in the house as there was no shower in the caravan. He would then usually have dinner with the J family before he went back to his caravan to sleep. The offender would also help PJ around the property and would sometimes get firewood. Over time, the assistance provided by the offender reduced. 52. The offender would go into the caravan with the girls, and they would watch children's DVDs together. This started when CJ was about two years old. CJ turned two in January 2012. When AJ was old enough, she and CJ would go and watch DVDs in the offender's caravan. DJ recalls that at the earlier times, he would see CJ and AJ go into the offender's caravan almost daily. Sometimes they went together and sometimes separately. When they watched movies with the offender, sometimes the door would be open and sometimes closed. There were times when DJ found the door locked when the girls were in the caravan with the offender. 53. NJ recalls that the offender used to say inappropriate sexual things. The offender told NJ that he had gotten a tattoo of a chain around one of his wrists because that was how far he was able to get his hand "up a woman's vagina and he (the offender) said that's how far he got it, so he got a tattoo there." The offender also told NJ that he had got a tattoo of an open eye on his forehead so that when he was performing cunnilingus on a woman, he could watch her. 54. DJ also recalls that the offender had a chain link tattoo on his left wrist. DJ recalls that the offender told DJ the tattoo was there to show how far up inside a woman his hand had been. 55. NJ recalls that sometimes, when he walked into the offender's caravan, the offender was watching pornographic videos. NJ remembered that on several occasions, MJ, CJ and AJ were present in the offender's caravan when he was watching these videos. NJ specifically recalled an incident when he was in primary school living in his own caravan, which he started doing when he was nine or ten years of age. NJ turned nine in 2011. CJ was about six or seven years old (CJ turned six in January 2016), and AJ was three or four years old (AJ turned three in August 2015). 56. NJ was sitting in his own caravan at about 4.30pm. He could hear sex noises and female moaning sounds. NJ went to the offender's caravan which was parked not far from NJ's. NJ knocked on the door then stuck his head in. He saw the offender lying on the bed in between CJ and AJ who were sitting up fully clothed. NJ saw that on the television two women were engaged in sexual activity together. NJ shut the door and went back to his own caravan.

[34]

Count 4 - Indecent Assault - Victim under 10

The offender again moved his hand under the victim's underwear, lower onto her genitalia, skin on skin on her pubic bone. Mid-range objective seriousness.
I find that Counts 1, 2 and 3 fall below the mid-range and Count 4 at the mid-range for offences of this kind. Count 4 is more objectively serious, given that the offender rubbed the victim's genitalia skin on skin as opposed to on top of her clothing and was very close to the opening of the victim's genitalia. The victim was the daughter of the offender, and she trusted him and whilst not at the lowest age range for this offence, it is certainly not at the upper most age of just under ten, she being six or seven at the time of the offending.
Applying Chiro v R HCA 37, it is acknowledged that in circumstances where the Crown cannot prove beyond reasonable doubt that JY was six or seven, the facts most favourable to the offender would mean the victim should be taken as having been seven for the purposes of sentencing. The offender was aged 36 or 37 years of age at the time of the offending, so there was a significant age gap between the victim and the offender of approximately 30 years.
The victim was clearly distressed and confused by the incident and she demonstrated compliance and submission which is typical of a child of that age in the dynamic of a parental relationship. This offending occurred in the context of the offender previously stroking the victim in a similar way on top of her clothing, not around her genitalia though, whilst singing the song "If I had words" to normalise the conduct with the victim leading up to this incident and placing the victim in a false sense of security and safety with the offender alone in his room. This explains why the victim did not call out to alert her brother who was in the lounge room next to the bedroom or tell anyone about what had happened.
While each count constitutes its own offending, and a discrete penalty must be imposed, the offending in respect of these counts was over the course of one single period of conduct which would entitle the offender to have the sentences made largely concurrent to each other for this incident. There are relevant aggravating factors for Counts 1 to 4:

[67]

VICTIM IMPACT

Victim Impact Statements are before the Court from JY and DV. JY's Victim Impact Statement is an eloquent and detailed outlining of all of the problems that have beset her both personally, emotionally and also in regard to her vulnerability within the community from those who have become aware of the offending.
It is clear that she has been very substantially affected by the conduct of her father, that it is entirely within the boundaries to accept that this will continue despite counselling and/or treatment for many years to come, if not, and most probably for the rest of her natural life. It is appalling that an individual would do this to a child, but even more appalling where it is the father who inflicts the illegal sexual activity on his child.
I accept that JY has been badly scarred by the offender's conduct and I would like to refer to at least part of her statement when she said, talking about coming to the trial to give evidence, "The first day I came here to give evidence I went to walk into the room, but I was really overwhelmed and scared, started to cry. I had to walk back out, shaking in fear, just seeing you. Every day I came here feeling sick, ashamed, scared, vulnerable and got taken back to those moments; back to that scared nervous little girl. The Crown's red shoes actually got me through one of those days as they were the brightest things in the room. I have been seeing psychologists since 17 years old to help me through. For many years I have struggled with depression, anxiety, unhealthy relationships with food, nightmares, unhealthy relationships - domestic violence, sexual abuse, that's a small list. The day last year when I got my subpoena, I was a mess knowing I had been in the same room as you, wanting to face you for me, for the scared little girl who once needed you to protect her, to show her that I protect myself. I had to send one of my kids to mum's because I mentally couldn't be the mum that they needed at that point. I got sleeping tablets from my doctor and had weekly psychologist appointments and check-ups together with anti-depressants and struggled to sleep."
Despite the significance and substantial nature of the impact that this offending has had on JY, those impacts are within what can ordinarily be expected as the impacts that flow from offending of this nature.
DV also provided an impact statement which outlined the effects that these matters have had on him including depression, PTSD and having to eventually face, what he refers to as the shameful nature of the abuse, which he had apparently managed to repress for many years by utilising the defence of "denial". He made his statement in 2020 and he said, "… the last few years had been the hardest, I've had to confront my problems and bring up shameful and embarrassing things to complete strangers, to my family and friends. I repressed my memory of the sexual abuse so well for so many years that it feels like I went through it all again. I have nightmares now and have so for many years."
Again, the offending has had a very significant effect on DV in relation to his ability to enjoy life, his feelings of trust and the ability to form new relationships. He has also found that his damaged self-esteem and confidence have made it difficult to find suitable employment opportunities. He stated, "The crime has changed my normally happy predisposition to life and social connections. I find it difficult to feel happy and cannot help feeling that I pull others down when I engage in normal healthy social activities. Often, I feel unsafe to venture out by myself as panic and anxiety overwhelms me for no reason. It causes me to avoid new relationships and distance myself from the feelings, exposure, judgments and criticisms." ... "Years after they discovered what Peter did, I went to therapy and thought I was getting over this, I was very wrong. My full understanding of what happened to me has only gotten clearer as I've gotten older. The crime will never really stop, this is what I will live with forever."
Again, the impact has been very significant as one would expect it to be. It does not go, however, outside the ordinary sequelae which victims of this type of offending suffer, as I have said for significant periods of their life if not for the entirety of their life.
Section 25AA(3) of The Crimes (Sentencing Procedure) Act requires the Court to take into account the trauma of sexual abuse of children as it is now understood and not as it was understood in the past. Statistics available for offences committed in the past where the sentencing has happened in the past frequently did not understand the full degree of trauma and impact caused to children by this offending. Section 25AA(3) was introduced to ensure that Courts would take into account what is now understood as to the serious nature of those sequelae on the victims, particularly as a result of the recent Royal Commission into Sexual Offending Against Children disclosed it, and I have taken s 25AA(3) into account.

[68]

SUBJECTIVE MATERIAL

The offender did not give evidence at trial, nor did he give evidence on sentence. In respect of subjective material before the Court is the offender's criminal history and New South Wales Department of Corrective Services Conviction Sentence and Appeals report, the report of Ms Caroline Hare, psychologist, dated 26 March 2024, a New South Wales Department of Corrective Services Report in respect of the risk of sexual reoffending, prepared by the New South Wales Department of Corrective Services, dated 27 February 2024. and a document provided apparently by the offender's general practitioner, simply being a list of the offender's attendances on his general practitioner between 31 March 2009 and 9 November 2018, the attendances being nothing more than short entries such as admitted JHA coronary angiography, medication and discharge hospital, general check-up and scripts, documents saved, influenza vacs, flu vacs, pathology required, pathology for diabetes clinic, diabetes and ischaemic heart disease, freestyle light test strip, diarrhoea, nausea and the like - minimalistic entries which may be meaningful to his general practitioner but are not particularly meaningful to me in the absence of a report from his practitioner as to any particular medical problem and its severity and likely impact on him.
There is some better reference by way of his reporting to Dr Hare on his state of health and problems. Of course what is contained in Dr Hare's report is simply what she has been informed by the offender and what she is able to identify from material provided to her such as the indictment, a police report, the Corrective Services Conviction Sentence and Appeals report, the Sentencing Assessment Report of JY Ryan that I have already referred to, and the case note report of Paola Castillo, psychologist, on 27 February 2024. She observed that the offender attended for interview in an AVL suite, making use of a walking stick or cane consistent with him experiencing some mobility issue.
He informed her that he was raised in Swansea and the Lake Macquarie area by his mother and a stepfather who he believed was his father until he reached adolescence, and his mother informed him that he was in fact a stepfather. At that time, he felt very angry towards his stepfather and betrayed by his biological father who he has apparently never had any contact with. He spent some time, apparently in a youth remand centre at that period where he claims he was sexually assaulted by other boys, a fact that he has not previously disclosed before talking to Ms Hare.
He has three younger, maternal half-siblings, two sisters and a brother. Although he has had some ongoing contact with them up until the time of this offending, he does not currently maintain any contact with them. One of his problems in that regard is that he is currently facing separate charges which have not yet come to trial, being charges of a sexual nature in relation to allegations of sexual offences committed against his younger sister during their childhood.
He described his stepfather as being a good man and at least from the age of 16 he described developing an increased respect for his stepfather.
The offender spent time living away from home from about the age of 15 and gained permanent independence when he married in his early 20s. He referred to his childhood as being 90% happy and receiving lots of support from his mother and stepfather, and that the sad stuff, then referring to his involvement with criminal justice, was his "own fault," asserted by him as being triggered by his underlying "anger that nothing went right for him." He said that he developed the perception in his childhood that he had the opposite of the Midas touch, that is, that he ruined everything he touched.
He is said to have had an unremarkable school history, leaving school at the earliest opportunity when he was 14 years and nine months old. He had occasionally truanted while at school but was never suspended and furthered his education after leaving school by engaging in English and Mathematics classes at TAFE as a young adult.
He indicated that he had maintained an unstable employment history, being engaged in multiple manual labouring jobs over the years, with recurrent episodes of unemployment and periods on unemployment benefits.
At the time of the report, he indicated that it was years since he had engaged in formal employment. Between 2006 and 2018 he had lived on the J family property, doing some chores there as part payment for rent, but during the latter part of that time he was on a disability support pension due to his physical health issues.
He was apparently not involved in any structured leisure activities within the community, and he focused all his time on his companion dog, once he had acquired the dog.
Whilst in custody he worked for a period in the Nowra Correctional Centre laundry, but that ceased when he suffered an injury in custody when falling from his bunk bed.
He describes himself as a loner, being friendly, but preferring to be alone, with only past superficial friendships who he has said would describe him as being an acquaintance. He reported having experienced persistent loneliness after the end of his marriage in the late 1980s/early 1990s until he acquired the companion dog.
He identifies as heterosexual. His first significant union was in the early 1970s when he was in his mid-teens. It lasted approximately eight years but was terminated when he was serving a custodial sentence in approximately 1977, aged 20. His next significant relationship commenced in the late 1970s and they wed a couple of months prior to his wife terminating the union in the late 1980s.
There were two children of that marriage or union, being his son JC, born in 1983 and his daughter JY, who is one of the victims. His contact with his daughter ceased many years ago, but he had some ongoing contact with his son up until he was charged with these offences, and his son has not visited him on any occasion since he has been in custody. JY ceased contact with him approximately 20 years ago. Apparently, his son ceased accepting any phone calls from him in 2022 while he was in custody.
He informed the psychologist that he was aware of the legal age of sexual consent in New South Wales and acknowledged that it was never okay for an adult to engage in sexual behaviours with a child, describing the impact of sexual abuse on children as "very bad" and citing, in that regard, his own experiences at the hands of male peers as previously referred to. Despite his having that understanding, he committed this significant series of offences against children over a period of approximately 23 and a half years.
He informed the psychologist of having knee pain and shoulder pain resulting from the bunk bed fall in 2022, regular bouts of diarrhoea, stress-related migraines, episodes of dizziness several times daily, occasionally causing him to collapse, cataracts, hearing loss, obesity and type-2 diabetes, and said that he was on 14 medications daily including blood thinners, iron supplements and medicine to help manage his blood sugar level, antihypertensive medication, statins and medications for reflux. He said that he had stents inserted to reopen a blocked artery in approximately 2000 when he was in his mid-40s and that he had had triple bypass surgery to his heart sometime between 2016 and 2018 after suffering a heart attack.
Despite the lack of evidence of these problems, I am prepared to accept that the offender had stents inserted, that he does have some ongoing problems in relation to his physical state, but there is nothing outlined in this material or in the GP's list of attendances that raises any issue that any of his problems are not entirely capable of being appropriately dealt with while in custody.
The psychologist indicates that he reported having been involved in a motor vehicle accident when he was 17 years of age and suffering a head injury and becoming forgetful or neglectful after that. He was said to have recently undergone brain scans at the Prince of Wales Hospital as a result of the fall from the bunk but had not received the results, and I note no results have been put before me.
The psychologist opined, as a result, that he could be suffering neurological decline, which in turn could impact his decision making. She recommended that further neurological and/or neuro‑physical assessment "outside the scope of the current assessment" would be required to assess this aspect of his presentation. Again, I note that no such material has been placed before me on sentence.
He is said to have had reported episodes of heavy alcohol use during his life, particularly prior to 2018, when he subsequently moderated to a very conservative consumption of two middies of beer per week, once he had the companion dog.
Apparently, he has smoked cannabis intermittently since he was about 20 years of age and regularly smoked it while living at the J family property. He claims to have ceased smoking cannabis in 2018, when he also moderated his drinking. Apparently, he also experimented irregularly with hallucinogens in the 1970s, but has ceased such use. He reports having no withdrawal symptoms or cravings since being remanded in custody.
The psychologist summarised his criminal history in the following fashion: "Mr Charlton's NSW criminal history reflects general anti-social conduct dating from 1973 (aged 15) including convictions for acquisitive offences, driving offences, property damage and contravene prohibition/restriction in order. He has prior convictions for sexual offences (two offences of wilful and obscene exposure) committed in 1990 and 1996. Mr Charlton reported being unable to recall these past sexual matters when they were explored during the current assessment."
A case note indicated to the psychologist that he had faced three child sexual abuse charges in 2007 against complainants from the same family as two of the complainants in the current matters, but that those complaints were dismissed in 2008. They are accordingly not relevant to the current sentencing procedure and the fact that he apparently awaits a future trial for further sexual abuse allegations against his sister arising from their childhood also is not relevant to the sentences to be imposed here.
I will simply take into account his general criminal history which does not have any significant matters in relation to sexual offending but which is not totally irrelevant in the light of the two offences of wilful and obscene exposure, noting that the first of those occurred on 27 March 1990 and the second was on 4 January 1996. In relation to each of them he received a recognizance under s 558 to be of good behaviour for a period of time.
I find it unusual that the offender cannot recall what it was he was dealt with for wilful and obscene exposure, however there is no further information before me which illuminates that issue.
Ms Hare refers to the offender as maintaining his innocence with regards to all of the present matters. She rated him as being above average risk in relation to Static-99R for being charged with or convicted of a further sexual offence and placed him in the high risk/treatment need category. She otherwise opined that his account: "… reflects the presence of cognitive distortions or comfortable stories that I opine allowed him to overcome internal barriers to committing the sexual offences, for example telling himself that he was engaging in innocent play and/or tending to the complainant's needs."
Mr Charlton's poor problem solving meant that following the sexual offence charges being laid (and dismissed) in 2008 by siblings of two of the complainants in the current matters, he failed to reflect on his conduct and adjust his behaviour to avoid placing himself in situations whereby he was at risk of further allegations being made. She also suggests that because of his multiple physical health complaints, which she apparently accepted, and a history of unresolved trauma, that those combined factors might suggest that he could experience the custodial environment as more challenging than someone without those issues.
The case note report assessed the offender as being on the Static-99R test as being at above the average risk level. It is also noted that he has consistently denied his sexual offending behaviour. As he is assessed as above average risk in custody, he would be eligible to participate in a high intensity sex offender program, although if he continues to deny the offending, he may be more eligible for the deniers' program.
The Sentencing Assessment Report of J Ryan dated 5 February 2024 contains the following as to family and social circumstances: that both of his parents have died and he has no support available to him, having also cut all ties with his close family and friends due to the index offences. He was apparently the recipient of a disability pension from Centrelink for the past five years.
Under History of Anti-Social Behaviour, his history of offending is described as: "Including offences relating to driving, stealing, break and enter, wilful and obscene exposure, malicious damage, in breach of AVO ... the index offences display a continued and concerning pattern of behaviour of offences of this nature ... while Mr Charlton has a limited history of sexual offending, the index offences were committed over an extended number of years ... Mr Charlton refused to accept responsibility for the offences and denied any culpability".
Under The Impact of Offending, it is stated that: "Mr Charlton showed no insight into the impact of his offending. He dismissed suggestions the victims would have been affected by his actions and maintained his denial."
The Community Corrections officer assessed him as a medium risk of offending, but I note he has been otherwise assessed at a higher level, including by his own psychologist. The Community Corrections officer also indicated under Attitudes: "Mr Charlton presented a minimising attitude towards his offending. He denied committing the offences and reported a belief he is only guilty due to the Court's findings ... Mr Charlton was unable to provide any rationale with regards to the noticeable pattern of similar behaviour reported by the individual victims in these offences."
However, in Ms Hares' report, the offender provided some explanation for these matters. She states at para 30: "Mr Charlton maintains his innocence with regards to all the current matters. He suggested a female friend of his ex-wife's 'put stuff (in her) head and 'caused trouble' resulting in his daughter making allegations of sexual abuse. Mr Charlton reported the next allegations dating from 2007 - occurred within the context of him having formed a friendship with the complainant's mother. He described attending her home to complete chores such as attending the garden during a period when she was separated from her partner. Mr Charlton acknowledged sitting with his arms around the girls while watching television and going bushwalking with the boys. He described playing with the children and touching them (non-sexually) on the outside of their clothing. He also recounted an incident whereby the children 'tied' (him) up' and 'pulled (his) pants down' exposing his penis. His account suggests he employed cognitive distortions or comfortable stories that justified his sexual misconduct as innocent play. Regarding the most recent allegations spanning 2006 to 2018, Mr Charlton advised that he was living on the property of his brother-in-law's brother's wife and nine children during this period. The father was often away, leaving the Mr Charlton to support the complainant's mother with chores and caring for the children. Mr Charlton reflected having felt close to the children ('I thought of those kids as my own') and indicated engaging in activities such as changing nappies, swimming with the children and driving them to places. He said the allegations were made after his tenure at the property ended abruptly. This was after he made a sexually explicit comment to the complainant's mother over the telephone which her partner overheard. Mr Charlton said the comment was made in jest (telling her she would need to perform a sexual act on him in return for him securing some cannabis), but her partner verbally abused Mr Charlton and told him not to return to their property. Mr Charlton offered his belief the complainants were forced to make the allegations against him by their father who he believes was 'getting even' after misperceiving Mr Charlton was having an affair with his partner (which Mr Charlton denied). Given Mr Charlton was maintaining his innocence, victim empathy was not canvassed during the current assessment."
His psychologist opined after her consideration of all of the material and her consultation with the offender, the following: "Based on his presentation and limited insight, I was unable to form an opinion as to whether Mr Charlton was suffering from any diagnosable mental health conditions, either historically or at the time of the present assessment. He appears to have experienced an emotional crisis when his marriage terminated when he was aged in his late thirties/early forties, and he evidences a long-standing pattern of avoidant emotional coping that allows problems to re-emerge rather than resolving them through proactive coping strategies."
The trial was defended. The offender continues to deny any of the offending in respect of which the jury found him guilty. There is, accordingly, as previously said, no discount for the utility of a plea. There is also no evidence of remorse or contrition from any of the material before me and the prospect of rehabilitation has to be extremely guarded in the circumstances where the offender continues to deny the conduct. Rehabilitation is only ever likely to occur where an offender acknowledges that they have committed the offences and is prepared to then accept or seek treatment or guidance as to how to deal with their individual problems which may have a bearing on the commission of the offences.
There is no psychological explanation for any of these offences and as I have said, there is no remorse or contrition. The offender continues in blanket denial of the pain and suffering he has caused to his daughter and to all of the other victims of his offending and no doubt, of course, stress and concern to their relatives who have had to cope with them and their problems arising from this offending.
I intend, as indicated to deal with these matters by way of an aggregate sentence which in itself will take account issues such as totality and concurrency.
I will now proceed to state the indicative sentences as I am required to in the circumstances where I propose to impose an aggregate sentence. That will include where the offence is one that has a standard non-parole period provided by the legislation, an indicative non‑parole period. But not in relation to obviously any count which does not have a standard non‑parole period provided by the legislation. I will provide a schedule to the parties. HIS HONOUR: I will just read the count number and the indicative sentence and then deal with the aggregate sentence. So, first of all, Mr Charlton is convicted in respect of Counts 1 to 17, 19, 20, 21 and 23. In respect of Count 1, the indicative sentence is 18 months' imprisonment. Count 2, the indicative sentence is two years' imprisonment. Count 3, 18 months'' imprisonment. Count 4 two years' imprisonment. Count 5 18 months' imprisonment. Count 6, two years six months' imprisonment. Count 7, 18 months' imprisonment. Count 8, two years, and six months' imprisonment. Count 9, 18 months' imprisonment. Count 10, two years six months. Count 11, 18 months. Count 12, seven years' imprisonment. Count 13, 18 months' imprisonment. Count 14, seven years. Count 15, four years with an indicative non-parole period of three years. Count 16, four years with an indicative non-parole period of three years. Count 17, one year with an indicative non-parole period of nine months. Count 19, one year. Count 20, four years six months with an indicative non-parole period of three years four months. Count 21, ten years with an indicative non-parole period of seven years six months. Count 23, three years four months with an indicative non-parole period of two years six months.
I will impose an aggregate sentence with a non-parole period of 12 years commencing from the date of his arrest on 20 December 2021. He will accordingly be first eligible for parole on 19 December 2033. The balance of term is four years which will expire on 19 December 2037.
The total term of the head sentence is accordingly 16 years with a 12-year non-parole period. It will be evident to the parties that in those circumstances I have clearly not found special circumstances.
As I have said, there is no remorse or contrition. The only prospect of rehabilitation, it would seem to me, is the length of time that he is required to serve in prison, and he will be significantly older by the time he is first eligible for release in December of 2033. Increasing age may be the only hope that he can be rehabilitated and will not reoffend. But that is entirely speculative.
The prospect of rehabilitation in my view is well served by the fact that there are four years of potential parole if he is released at the earliest occasion. Noting of course, although he is only likely to be supervised for three years of that period, it is nonetheless in my view a matter in which any lesser sentence would not appropriately reflect the seriousness of the offending which occurred over such a significant period in respect of a significant number of children, who were in fact all under the age of ten on every occasion, and in circumstances where over time it appears that the offender put himself into situations where he could, in effect, groom the children by way of placing them in the effective position of being under his authority, and them developing a trust in him as a result. CHARLTON TABLE OF CHARGES Redacted version (282121, pdf)

At a glance

Court

Decision date

Before

Source

Judgment (69 paragraphs)

Parties

Cases Cited (4)