The proper sentence
90In NT v Regina [2007] NSWCCA 143 at [38]-[39], Harrison J referred to authority dealing with sexual abuse by parents as follows:
"[38]... this Court has on many occasions stressed the need to protect children from sexual abuse by adults and that this is especially so when the perpetrator is the victim's parent. In R v Dent (Court of Criminal Appeal, 14 March 1991, unreported) Lee J at [6], with whom Gleeson CJ and Loveday J agreed, stated:
'One begins with the proposition . . . that our community views with great concern the sexual molestation of children by adults and that has been acknowledged by the legislature in providing for greater penalties when the victim is under sixteen . . . That acknowledgement has been in our legislation over a long period of time. Little children are entitled to grow up free from defilement by sexual predators and free from risk of psychological upset, confusion and difficulties in later life, caused by such conduct.
When a child is living in a family situation, he or she is particularly vulnerable to sexual molestation from the male parent, or stepparent. The community regards the family unit as one in which each parent is in a position of trust in respect of the child, under a duty to rear it and give it proper guidance and to refrain from using the child for sexual pleasure. The child is usually helpless to protect itself against sexual attack from the parent - as in this case - and that can be seen in so many other cases of a like kind that come before us. One sees in such cases that the child is too embarrassed, too afraid or develops too great a sense of guilt to complain. When the male parent takes advantage of the helplessness of the child, he not only commits a breach of trust, but it is a cowardly breach of trust. The protector of the child's body, the guide and mentor of the child, in those circumstances has abandoned his proper role in order to gratify his lust on the child'.
[39] It is well established that the age of the victim is important in determining the criminality of the offending behaviour. Generally speaking, the younger the victim the more serious the criminality due to the helplessness of a young child in a family unit: R v BJW (2000) 112 A Crim R 1 at [21], a case involving a 13 year old child."
91These remarks remain relevant and pertinent in the context of the present case.
92More particularly, material tendered without objection in this appeal by the Crown for consideration in the event that this Court were minded to allow the appeal and to re-sentence the respondent, confirmed in stark and troublesome terms the profound and deleterious effect that child sexual abuse may have upon victims for many years, if not for the whole of their lives. That material consisted of reports from Dr Colette Hourigan dated 1 May 2013 and Dr Patricia Jungfer dated 9 May 2013. Part of Dr Jungfer's report is in the following terms:
"9.3 [The respondent's daughter] reports as a consequence of the experiences in her childhood and the events subsequent to the disclosure of the sexual abuse, that her entire life has been disrupted. She reports that her academic performance, her right to a stable and secure home environment, her ability to socialise, engage in an intimate relationship have all been devastated by the ramifications of the sexual assault. She reported as a consequence of disclosing the sexual assault, a constant preoccupation with what occurred, although prior to the disclosure this was something that she constantly focussed on and tried to put out of her mind. She described developing a strategy of dissociating from her past and her experiences to be able to function in the community. She continues to work hard at repressing the events that occurred in an attempt not to have to deal with the emotional consequences of acknowledging these events.
9.4 [The respondent's daughter] reports recurrent intrusive thought about the sexual abuse that occurred to her. She dreams of the sexual abuse. She finds it difficult to concentrate and focus with the thoughts constantly intruding. Coupled with the thoughts of the abuse are feelings of guilt, self blame and considering that she is in some way at fault for the circumstances. She describes difficulties with concentration, memory, avoids wanting to have to deal with the issues in any way, shape or form. She actively avoids engaging in relationships with others for fear that she will be abused and that her trust will be broken. She finds it difficult to enjoy and experience pleasure in a sexual relationship. She has found it difficult to form friendship relationships because of her secret past.
9.5 [The respondent's daughter] as a consequence of the disclosure of the events, and as a consequence of the ramifications of this, became seriously depressed and has made a number of severe suicide attempts. She continues to have thoughts of self harm, remains depressed, has difficulties with regards to self esteem, decision making and self confidence. [Her] ability to engage in normal community activities has been profoundly affected by the events that occurred to her with the repeated sexual contact with her father. This repeated sexual contact has also resulted in a confusion regarding her identity. She is troubled by the events that occurred and distressed that the events occurred and she did nothing to stop them. She maintains a somewhat childlike approach to the events that occurred and blames herself for the activities, internalising the accusations that were directed by her parents."
93It is uncontroversial that the facts underpinning the second set of charges only came to light as the result of the respondent's admissions made during the assessment phase of the Program. However, the significant added element of leniency to which the respondent is therefore entitled must not lead to a sentence that is unreasonably disproportionate to the nature and circumstances of the offences. The respondent's entry into the Cedar Cottage Program was conditional upon full disclosure of all previous offending conduct, so to that extent the respondent's revelations were partly the result of illegitimate influences. While that must be a matter of significance, it should also be noted that the first set of charges arose from complaints by the victim that were unrelated to the respondent's admission or self-reporting of the criminal conduct involved. The respondent did not come forward before that occurred. To that extent the context in which the admissions were made consisted of a process that was only taking place as the result of a police investigation triggered by the victim's original report. The revelations by the respondent that led to the second set of charges did not therefore materialise in a neutral setting, but were clearly prompted by the looming prospect of imprisonment in relation to the first set of charges. There was a considerable element of self-interest in the respondent's admissions, which were not in those circumstances unambiguously altruistic or purely cathartic. The additional offences were not in that sense unconditionally volunteered.
94Part of the material upon which the respondent relied in this Court included an affidavit affirmed by him on 25 November 2013. It was read against the contingency that this Court might consider terms of imprisonment were warranted. The whole of the affidavit is relevant to that consideration. Portion of it is in these terms:
"2. Between September and November 2012 I was assessed for participation in the Pre-Trial Diversion of Offenders Program run by Cedar Cottage. During the course of assessment I was told that treatment is based on making a full disclosure of all offences, not just those for which I had been charged.
3. I made a disclosure of additional offences to Cedar Cottage during assessment. I wanted to be completely honest and open to my wife and family in saying this is everything that happened. If I did not disclose everything, both my daughter and I would know I was participating in the Program on the basis of a lie by omission.
4. I do not want to spend any more of my life living with secrets and the fear of their being disclosed.
5. During assessment I came to understand the only way I could adequately demonstrate my remorse was to disclose the additional offences to the police. I had previously been told that established precedent was that these offences were normally included with those for which I was being assessed by Cedar Cottage.
6. After disclosing to Cedar Cottage I consulted my solicitor about going to the police. I voluntarily attended an interview with the police at Wyong police station and was subsequently charged with these additional offences.
7. I was advised by my solicitor that prior to the change in Regulations additional offences disclosed during assessment could be included with the original offences for referral to Cedar Cottage.
8. I was admitted to the Cedar Cottage Program in November 2012. I am very grateful to be given this opportunity to rehabilitate myself. I feel a tremendous obligation to my wife, my family and the many others who have faith in me to rehabilitate myself. I promised my family that I shall do everything in my power to complete the Program because I don't want to let them down.
9. Though I was relieved to be accepted into Cedar Cottage, the additional charges were a source of great anxiety when I commenced the Program. I experienced deep depression while waiting to be sentenced. I managed this with considerable help from my therapists at Cedar Cottage.
10. I was relieved that the sentences were such that I could continue to participate in the Cedar Cottage Program. I felt that I could now concentrate on my participation in the Program. I am very aware that failing to complete the Program or any breach of my good behaviour bonds will result in my imprisonment. I felt that my fate was now dependant on my behaviour, and my actions, attitude, diligence and effort in completing my treatment at Cedar Cottage."
95It is apparent that, with minor and presently irrelevant exceptions, the respondent adhered to the conditions of the Program and complied with its rules. He expressed both his desire to complete the Program and his opinion that it was of great benefit to him and, he hoped, ultimately to his family. The respondent has deposed to being extremely anxious about the outcome of these proceedings and to being terrified at the prospect of gaol. He has had suicidal thoughts from time to time. He also expressed remorse in his affidavit in the following terms:
"58. I look back in astonishment, horror and shame at the sexual abuse I perpetrated on my daughter and the behaviour that I am capable of. There are no words that adequately express the remorse I feel for the pain, distress and ruin my actions have caused my daughter and family. There is no apology I can give that will make it up to them. Every day I regret my abusing my daughter. I wish I could somehow undo the harm I have done."
96These are all important matters to be taken into account in the sentencing equation. Indeed, the respondent's rehabilitative efforts are impressive and well documented. It is a troubling matter that the imposition of a custodial sentence carries with it the necessary, or at least highly likely, consequence that those rehabilitative endeavours would be severely truncated if not entirely destroyed. That is a concern that also commands incorporation in the sentencing process, including a finding of special circumstances. It leads necessarily to the result that the sentences that we are minded to impose are less than those that should have been imposed if the respondent had been sentenced by his Honour.
97There are also at least two other matters that are important in that context. They are first, the attitude and approach taken by the Crown in the proceedings on sentence before his Honour, and secondly, the question of delay. Whatever else may be said about the fact that his Honour received less than proper assistance from the bar table, the net effect of what occurred included vocal support from the Crown for a non-custodial sentence. It is not to the point that such support only arose because of the misunderstanding concerning the application and the applicability of the Act to the second set of charges. It had the significant consequence that the respondent was not then sentenced to a term of imprisonment, as in our view he should have been, and he has since then been subjected to a wholly unsatisfactory and undoubtedly distressing uncertainty concerning his fate. The effect upon him of that uncertainty has no doubt been considerably exacerbated by the fact that the announcement of what should happen to him has ultimately run an arguably unsatisfactory course over many months until the publication of these reasons. These are matters that should be taken into account in the overall assessment of what is a proper sentence in this case. They also combine to produce the result that the sentences that we consider to be appropriate now are less severe than sentences that might have been imposed if the respondent had been sentenced when he should have been.
98The respondent relevantly pleaded guilty at the first opportunity. He is entitled to a discount of 25 percent for the utilitarian value of that plea.
99In the circumstances of this case, paying due regard to the objective seriousness of the offending conduct, and the particular subjective factors attending the respondent, no penalty other than the imposition of a term of full-time imprisonment is appropriate. The nature of the offences under consideration commands the imposition of sentences that recognise and give effect to the requirements of punishment, denunciation and retribution, as well as specific and general deterrence. The importance and relevance of these factors are not in our view offset in this case by the respondent's particularly awkward current uncertain status or the subjective considerations outlined in his affidavit and elsewhere.
100We have already indicated that the s 61J offences each carry a maximum penalty of 20 years imprisonment with a standard non-parole period of 10 years and that the s 61M offence carries a maximum penalty of 7 years imprisonment with a standard non-parole period of 5 years.
101We consider that the respondent should be sentenced as follows. For the s 61M(1) offence, the respondent should be sentenced to a term of 12 months, reduced to 9 months for the early guilty plea, with a non-parole period of 6 months. For each of the s 61J offences, the respondent should be sentenced to a term of 4 years, reduced to 3 years for the early guilty plea, with a non-parole period of 2 years. The sentences for offences 1 and 2 should be concurrent in as much as they concern the one incident and the s 61M offence does not materially add to the criminality inherent in the s 61J offence. There should however be some accumulation of the other sentences to reflect the fact that they each concern discrete incidents. We consider that the respondent should be sentenced to an aggregate sentence of 5 years and 6 months with a non-parole period of 3 years.