HIS HONOUR: When K , the complainant in this matter, told her mother that, as she put it, "Me and poppy have sex," she was but six years of age. A few days later she was interviewed; the interview being electronically recorded. That interview became the primary source of evidence against the accused, the complainant's grandfather. It is a remarkably powerful piece of evidence. In a most matter-of-fact way the complainant describes a number of different sexual activities which she and the offender engaged in. She was not distressed about what had occurred at all. So sexualised had she become that she appeared to have seen nothing wrong in the offender sexually assaulting her in the ways I will shortly describe. This case is a perfect illustration of why children are vulnerable to the sexual predations of those who should be caring for them. She clearly loved her grandfather, a circumstance that the offender took advantage of in a most depraved way.
As well as giving evidence of other sexual activity, the complainant spoke about three specific things which occurred at a time that she was staying at her grandparent's place, with her grandmother being out at a party. These three matters form the basis of the three counts on the indictment.
The accused committed an indecent assault upon her by licking her bottom; at the time she being under the age of 16, namely six years of age; the offender had sexual intercourse with her by licking her genitals, at the time she was under the age of ten, and also under the authority of the offender. Finally, the offender had sexual intercourse with her by penetrating her genitals with his penis, again she being under the age of ten, and under the authority of the offender. These are serious offences, those latter two offences carrying maximum penalties of life imprisonment.
That the complainant had something of an intimate knowledge of adult sexual activity was undeniable. For example, when she was speaking to police about the accused performing cunnilingus upon her she demonstrated the position that she would be in by lying down on the couch on which she had been sitting, spreading her legs, and pointing to her genital region. Mr Provera, on behalf of the offender, accepted in his submission to the jury that the complainant had a knowledge of adult sexual matters, but suggested that the jury could not be satisfied by reasonable doubt that her knowledge came from the offender sexually assaulting her, as the Crown alleged. By their verdict the jury clearly rejected that submission beyond reasonable doubt, as would have I if it were necessary for me to make that decision.
There were two particular features of the interview which suggested strongly that the accused was the person responsible. Firstly, and perhaps most importantly, on three occasions while being interviewed the complainant was asked to describe the offender's penis; on each occasion she said that it was "soft." As it turns out, the offender suffered from erectile dysfunction at the time; his condition thus matches the complainant's description of his penis. Secondly, the complainant gave evidence that she had been told by the offender that if the offender's wife learnt that he and the complainant had engaged in sexual activity, he would go to gaol. Whilst other explanations for a six year old knowing about adult sexual activity can be contemplated, few of them would involve the complainant also learning that revelation of the offender's behaviour would see him incarcerated. This was a very strong Crown case.
It is hard not to feel sorry for the complainant. Since disclosing matters to her mother a great deal has happened to her. She was medically examined, she was interviewed for an hour and 40 minutes, and she gave evidence at an aborted trial held in November 2015. Whilst that trial was going on she was interviewed twice more, and then finally she gave evidence once again in the trial before me.
I want to emphasise that the offender is not to be punished for pleading not guilty, but when it comes to considering questions of remorse, for example, the offender has done nothing to mitigate the harm that he caused his granddaughter through sexually assaulting her in the first place.
These three offences for which the offender is to be sentenced were not isolated, the complainant giving evidence that things of this nature had occurred earlier as well. She spoke at one stage of things happening "heaps of times." There was evidence in the trial to suggest that the occasions on which the offender had the opportunity to commit offences of this kind were more limited than that, and I will sentence the offender on the basis that this did not happen "heaps of times," but it did happen often enough that he is not entitled to any leniency on the basis that these three offences were isolated.
It is my job to assess the objective seriousness of these three offences. As I mentioned, the first offence, the indecent assault was occasioned when the offender licked his granddaughter's bottom, it carries a maximum penalty of ten year's imprisonment. In her first JIRT interview the complainant marked a diagram showing whereabouts on her body the offender licked her. That diagram shows that he had licked her all over her buttocks, and also in her anal area. Objectively this is a most serious example of an offence of indecent assault.
Count 2 involves an act of cunnilingus. There is no rule that suggests the various forms of sexual activity covered by the term "sexual intercourse" are to be ranked in any particular order; in my view this was a serious form of offending even though some other forms of sexual intercourse would, in the circumstances of this case, be regarded as more serious.
Count 3 involves a form of sexual intercourse traditionally regarded as particularly serious, penile penetration of the six year old complainant's genitals. However, this was not penetration by an erect penis. No injuries to the complainant's hymen were observed on medical examination, and I am satisfied that the penetration which did occur was to a limited extent. Certainly there is no suggestion of the complainant being injured in any way, nor is there any suggestion that the offender ejaculated, or indeed was capable of doing so.
As well as the maximum penalties to which I have referred, each offence carries with it a standard non-parole period; eight years for the first count, and 15 years for the second and third counts. I will not impose the standard non‑parole period in any case, my reasons for not doing so appear in these remarks on sentence.
The breach of trust involved in these offences is obvious. The complainant's parents had separated; and with her father, the offender's son, living with his parents for a while after the separation, the complainant would visit her father and stay at her grandparent's place regularly. Then the complainant's father got a job in Queensland. Despite that, the complainant would regularly visit the home of her grandparents and often stay the night.
On the occasions, the subject of the three counts on the indictment, the complainant's grandmother went to what was described as a "candle party", leaving the offender and the complainant home alone. The three offences occurred whilst the two of them were on the bed which the complainant used, watching a DVD. Of course it is an element of counts 2 and 3 that the complainant was under the authority of the offender, so I will not regard the breach of trust, despite its enormity, as an aggravating feature of those offences.
Only today the Court of Criminal Appeal handed down a decision, Johnson v R [2016] NSWCCA 286, which considered the question as to in what circumstance it could be an aggravating feature of an offence that it occurred in the home of either the victim or of someone else. That decision confirms that it is an aggravating factor in the present case that these offences occurred in the offender's home. This was a place where the complainant had her own bedroom and which was effectively, for her, a home away from home.
It is not surprising that the consequences for the complainant of this offence appear to have been significant. The Crown does not suggest that the harm caused to the complainant in the present case goes beyond what is to be expected from offences of this kind, and I will not sentence the offender on any other basis. These consequences for the complainant were nevertheless significant and foreseeable. Not everything referred to in the victim impact statement can be attributed to the offender's crimes but a great deal of it clearly was. In particular one would not at all be surprised to learn that the complainant now is confused about many matters. She was manipulated by the offender to think that what they were doing was acceptable behaviour, but has now learnt that a person she had previously loved had lied to her about that. It is also not surprising that as a result of the offender's conduct the complainant's relationship with many family members, particularly males, has been detrimentally affected. The consequences for a victim of offences of this type are almost always serious, and those consequences need to be reflected in the sentence imposed upon the offender.
This is not the first time that the offender has committed offences of this type, albeit it has been a considerable period of time between his offending as a child, and then young man, and his offending for which I must sentence him which came about in his early 60s. When he was 19 he committed an offence on a 14 year old girl, his first wife's niece; and before that as a child he had committed an earlier offence of indecent assault as well.
The offender is now 63 years of age. His parents split up when he was eight, and following that he lived with various relatives for 12 months at a time before leaving school at 15. He has had many jobs along the way. He began on the railways. At one stage he was in the armed forces and served on HMAS Sydney on tour to Vietnam in the early 70s, but most of his working career has been on the railways. At the time of his arrest he was in a contract management position. He had to resign after his arrest in order to obtain access to his superannuation to pay the mortgage and to fund his legal representation.
He has been married twice, firstly at the age of 18. He was divorced a few years later. He has two children from that marriage, and although they were alienated from him for some time he has now reconciled with one of them. He later met his current wife and has been married almost 40 years to her. They have two children; two boys, one of whom was the father of the victim in this matter.
Like many males of his age he suffers from some ailments. His blood pressure is high, but that is controlled by tablets; he has diabetes, his condition is currently not insulin dependent but that may of course change. He has had surgery on one of his shoulders, and although he has full range of movement there is a limit to how much he can lift, and he has begun noticing problems in his other shoulder. As far as his heart is concerned, he had a triple bypass nine years ago, and double stents inserted two years ago. Although that list of medical conditions is not something anyone would wish to suffer from, it has to be said that they are not terribly unusual medical conditions in the case of a 63 year old man. The medications that he requires for those conditions are currently supplied to him in custody.
As far as his mental condition is concerned, he suffered from depression and anxiety, but that seems to have arisen as a result of being arrested in this matter. Depression and anxiety at the prospect of going to gaol for a significant period of time is not at all unusual either.
The offender described his conditions of custody in evidence today. It has to be said that gaols are terrible places; they are not places which anyone at the age of 63 would find to be terribly pleasant. The offender has been serving time before sentence in various forms of protection. It is a possibility that the offender will continue to serve the remainder of his sentence in custody, and if that is the case there is a possibility that his conditions of custody will be more onerous than that of the general prison population. I have taken both of those risks into account.
Some evidence was given today about the consequences of the offender going to gaol upon his family members, in particular his wife. It seems that she has depended on him in many ways concerning what Mr Provera described as "the business of life." She apparently cannot use a computer and has difficulty dealing with financial matters. However, hardship to the offender's wife is far from exceptional, it is a regrettably common place consequence of a breadwinner going to gaol. In any case, for many years before the offender's arrest the offender's wife and the offender effectively spent the working week apart; the offender living in a home unit in Liverpool while he worked down in Sydney, returning to his home in Newcastle on the weekends.
It goes beyond saying but I will say it; that the offender has expressed no remorse. He pleaded not guilty to these offences and even today denies his guilt, despite the overwhelming case against him. As to his prospects of rehabilitation, an application of an actuarial test puts him in the low risk range, but one of the features which put him there is his age. Given that he committed the offences for which I have to sentence him in his 60s, another pre‑sentence report tendered today notes, in what I believe to be an accurate way, that that protective factor may have limited applicability to the offender. In any case, whilst Static-99 says something about the numbers in a population who will offend, it says much less about the risk that an individual in that population will do so. I am unable to find that the offender has good prospects of rehabilitation.
One of the features that Mr Provera relied upon as regards to the absence of a need for specific deterrence was the unlikelihood that the offender would have access to children in the future. I know that he has a number of children, I know that he has at least one grandchild, the victim of this offence. It certainly cannot be said that the offender will not have an opportunity to commit offending in the future should he wish to do so.
There is one matter that I should have referred to earlier when I was speaking about the objective gravity of these offences, and that is the youth of the victim. She was significantly younger than the upper age threshold for each of the three offences.
I turn now to what is clearly the most important factor in sentencing for an offence of this type, general deterrence. Perhaps more than any other type of offence, general deterrence has a significant part to play. Offences of this kind are usually committed in secret; a loved family member is often able to persuade the victim of an offence to keep it a secret. Although Mr Provera relies on the circumstance that there was no violence used, in this case it was simply not necessary; the offender was able to sexualise his granddaughter to the extent that it appears she looked forward to her time with her grandfather.
Another factor suggesting the need for general deterrence in cases of child sexual assault is precisely what I have just said, the chances of detection are reduced because of the power that the offender holds over the victim of his offending; and finally, there are often lifelong consequences of offending involving a sexual assault on children. General deterrence is, I repeat, of prime importance in sentencing the offender today.
The Courts need to impose sentences which may even be considered harsh by some people as the Courts endeavour to protect other six year olds with grandfathers who would use them to satisfy their own sexual desires.
I will impose an aggregate sentence of imprisonment. Had I not done so I would have imposed the following sentences, on count 1 a head sentence of five years with a non-parole period of three years; on count 2 a head sentence of nine years with a non-parole period of five years; and on count 3 a head sentence of nine years with a non-parole period of five years.
The aggregate sentence I impose consists of a non-parole period of seven and a half years and a head sentence of eleven years to date from 29 October 2016. The non-parole period will thus expire on 28 April 2024, on which day the offender is eligible to be released to parole. As is obvious, I have found special circumstances in this case, they relate to the combined effect of this being the offender's first time in custody and his age.
Is there any other order required, Mr Crown, Mr Provera?
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Decision last updated: 20 April 2017