[2016] ACTSC 325

(i) I confirm the convictions in respect of each count.

(ii) For Count 1, I impose a sentence of 2 years imprisonment commencing from 18 October 2016 and expiring on 17 October 2018.

(iii) For Count 2, I impose a sentence of 2 years imprisonment commencing from 18 September 2017 and expiring on 17 September 2019.

(iv) For Count 3, I impose a sentence of 2 years imprisonment commencing from 18 October 2018 and expiring on 17 October 2020.

(v) For Count 4, I impose a sentence of 1 year imprisonment commencing from 18 October 2016 and expiring on 17 October 2017.

(vi) For Count 6, I impose a sentence of 2 years imprisonment commencing from 18 October 2016 and expiring on 17 October 2018.

(vii) For Count 7, I impose a sentence of 6 years imprisonment commencing from 18 February 2018 and expiring on 17 February 2024.

(viii) For Count 9, I impose a sentence of 2 years imprisonment commencing from 18 October 2016 and expiring on 17 October 2018.

(ix) For Count 10, I impose a sentence of 1 year imprisonment commencing from 18 October 2016 and expiring on 17 October 2017.

(x) For Count 11, I impose a sentence of 6 years imprisonment commencing from 18 August 2019 and expiring on 17 August 2025.

(xi) For Count 12, I impose a sentence of 6 years imprisonment commencing from 18 October 2020 and expiring on 17 October 2026.

(xii) For Count 15, I impose a sentence of 6 months imprisonment commencing from 18 October 2016 and expiring on 17 April 2017.

(xiii) For Count 16, I impose a sentence of 1 month imprisonment commencing from 18 October 2016 and expiring on 17 November 2016.

(xiv) The overall sentence I impose consists of a non-parole period of 5 years commencing from 18 October 2016 and a term of imprisonment of 10 years. The offender will become eligible to be released on parole on 17 October 2021.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - particular offences - offences against the person - sexual offences - sexual intercourse with person under 10 - acts of indecency with a person under 10 - acts of indecency with a person under 16 - historical offences - guilty pleas - guilty verdict following trial by jury

Crimes Act 1900 (ACT), ss 76, 92E(1), 92K(1), 92K(2)

Crimes (Sentencing) Act 2005 (ACT), s 33(1)

R v Dent (NSWCC, No 60496 of 1990, 14 March 1991, unreported)

R v Eisenach [2011] ACTCA 2

1. On 29 August 2016 the offender appeared for trial before a jury facing an indictment which included 16 counts. He pleaded guilty to the first three counts. In the course of the trial he was acquitted, by direction, on one of the counts.

2. At the conclusion of the trial, after some two weeks, the offender was convicted of nine of the remaining 12 counts. He was acquitted on three counts.

3. All of the counts could be described as historical sex charges. They related to the period between August 1981 and December 1999.

4. The charges related to four complainants. Two were daughters of the offender and two were children who attended the offender's home under a childcare arrangement. The latter two children were also sisters.

5. The three offences to which the accused pleaded guilty at the commencement of the trial were assaults with acts of indecency concerning a person under the age of 16. The offences were crimes under s 76 of the Crimes Act 1900 (ACT) and, at the relevant time, carried a period of imprisonment of 5 years. The same applies to Counts 4 and 6.

6. Notwithstanding the pleas of guilty, the offender challenged the facts in respect of Count 3. The allegation made against him included a digital penetration of the complainant's vagina. He denied the penetration.

7. The remaining counts of which the offender was found guilty included one count of sexual intercourse with a person under the age of 10, four counts of an act of indecency with a person under the age of 10 and two counts of indecency with a person under the age of 16.

8. Count 7 is an offence contrary to s 92E(1) of the Crimes Act 1900 (ACT) and, at the relevant time, the maximum term of imprisonment was 17 years.

9. Counts 9, 10, 11 and 12 fall under s 92K(1) of the same Act and had a maximum term of imprisonment of 12 years.

10. Counts 15 and 16 fall under s 92K(2) and the maximum term of imprisonment was 10 years.

11. The offender is to be sentenced for the three counts for which he pleaded guilty and the nine counts on which he was found guilty by the jury.

12. As far as the pleas of guilty were concerned, they give rise to little entitlement to a discount on the sentence. The pleas were made on the first day of the trial. Because of the Crown's reliance on tendency evidence arising from the facts of the three counts, it was necessary for the complainant to give evidence in any event. This complainant was also was the complainant in Count 4, where her evidence was challenged.

13. As already mentioned, the offender challenged the facts behind Count 3 and the complainant was cross-examined accordingly. There was no utilitarian value in the pleas of guilty. I have no doubt they were made because of the overwhelming case against the offender on these counts, including admissions to a number of people, and because of a perceived forensic advantage in suggesting that the pleas to some offences might suggest innocence on the others.

14. SP and DN are the daughters of the offender. Their surnames are their married names.

15. ST and LT are sisters. They attended the offender's residence as part of childcare arrangements.

16. I am satisfied that Count 1 was committed when SP, then about six or seven years of age, was lying in her bunk bed when the offender touched her abdomen and then moved his hand underneath her under pants and touched the outside of her genitalia.

17. The accused then carried his daughter to his own bedroom where he took off her underpants. He then touched her genitalia with his hands and placed her hand on his erect penis. This made up Count 2.

18. Count 3 occurred when the offender, having put Vaseline on one or more of his fingers then penetrated SP's vagina with one or more of his fingers. At some stage the offender ejaculated onto SP's abdomen and then wiped away the semen with a cloth nappy.

19. I am satisfied that the verdict of the jury in respect of the nine counts resulting in guilty verdicts, included findings to the following effect:

(a) Count 4: When SP was about 15 years of age she was wearing a dress she had made at Ranger Guides. She was under the house in the company of the offender. He touched her breasts and put his hands between her legs. He made indecent suggestions to her.

(b) Count 6: DN was about 10 or 11 years old. She used the en-suite toilet in her parent's bedroom. The offender was lying on his bed. As DN was leaving the room the offender called her over to the bed. He put his hands under her underpants. He touched her genitalia and put one or more of his fingers into her vagina.

(c) Count 7: LT was about five years of age. She was under the house with the offender. He was sitting on a chair with the child on his lap. He removed her underpants and kissed her genitalia.

(d) Count 9: In the same incident, the offender inserted a finger, up to the first knuckle, into LT's vagina. I note here that the finding of not guilty on Count 8 arose from the jury not being satisfied, appropriately, that the finger had been inserted into the vagina as defined in the directions that I gave.

(e) Count 10: On another occasion under the house, the offender laid LT on a mattress. She was not wearing underwear. The offender was interrupted by another person and pulled a curtain across in order to hide the presence of the child.

(f) Count 11: The offender was in his bedroom with LT. He directed her to kiss his penis. She did so. The offender's wife walked into the room and then straight out again. LT then left the room.

(g) Count 12: LT and the offender were again under the house. He took off her underpants and exposed his penis. He directed her to kiss it, which she did.

(h) Count 15: The offender was assisting LT's family to move homes. LT was about 12 years old. She travelled in the same vehicle as the offender and another person. When they arrived at the 'new' home the offender took LT into what was to be her new bedroom and attempted to touch and kiss her.

(i) Count 16: When ST was about 10 or 11 years of age, the offender led her to the barbecue area in the backyard and spoke to her in an indecent fashion. He spoke of the insertion of a penis into a vagina.

20. The offences are of varying severity. Counts 15 and 16 may be viewed as being of minor objective seriousness. Counts 1, 2, 3, 6, 7, 9, 10, 11 and 12 should be regarded as objectively serious. Count 4 is probably of a little more than minor objective seriousness.

The offender's background and current condition

21. The offender was born in Melbourne in August 1941. He is now 75 years of age. He had a strict and religious upbringing. He moved to Canberra when he was 18 years of age to join the public service. He remained in the service until 1989 when he commenced his own business. He continued in this occupation until 1996 when he fell off a roof and was injured. He required a right hip replacement in 1997 and there has been a second replacement in 2014. He also injured his shoulder and in 2005 he underwent a total right shoulder replacement. In 2001 the offender had two knee replacements. He thereafter carried out contract work and truck driving. He retired in 2006.

22. The offender married in 1959. The marriage continues. I note his wife gave evidence in his case during the trial. There are eight children of the marriage. They are all now adults. Two of them were the subject of the allegations in the trial.

23. The offender has not had any difficulties with alcohol or drug consumption although in recent years he has tended to consume a good deal of alcohol to help deal with the charges he was facing. He was a heavy smoker but stopped many years ago.

24. The offender has always been an ostensibly religious man and, as the evidence in the trial revealed, he was closely involved in the Catholic faith either in a mainstream manner or with groups such as Hepzibah.

25. Most of the offender's medical problems have arisen over the last five years or so. He has difficulty hearing, he has diabetes, high blood pressure, an irregular heartbeat, a tendency to develop stomach ulcers and he suffers from urinary incontinence. He takes a good deal of medication to counter these conditions. In addition he has a diagnosis of early onset dementia.

26. I have been provided with two reports from the Associate Professor Rosenfeld, a consultant geriatrician and physician. He first saw the offender on 14 September 2016. I note that the offender attended the appointment on his own having driven from Canberra.

27. Associate Professor Rosenfeld found clinical evidence of brain vascular disease. In addition he said there was ECG evidence of a "likely previous heart attack and evidence of previous myocardial ischaemia." He observed that CT brain scan demonstrated significant atrophy in the brain. He noted that clinical testing indicated early memory disturbance.

28. Associate Professor Rosenfeld thought the brain disease, and the associated cognitive deficits, would worsen over the next 5 to 10 years. He envisaged the occurrence of unforeseen events associated with the offender's medical conditions. This has in fact occurred and is the subject of the doctor's supplementary report dated 6 November 2016. This report records that on 29 October 2016, the offender suffered from episodes of chest pain which led to his admission to the Canberra Hospital. He was discharged on 1 November 2016. The discharge summary recorded a diagnosis of angina and testing revealed arterial blockage. The offender was commenced on antiplatelet therapy to reduce the likelihood of a heart attack.

29. Returning to Associate Professor Rosenfeld's first report the doctor observed that prison was likely to be very challenging for the offender especially as his brain disease developed. He noted that on the medium life expectancy tables the offender had a life expectancy of 12.69 years but this would be reduced by about a third by the offender's medical conditions.

30. In his supplementary report, as a result of the fresh developments in the offender's health condition, the life expectancy reduction was increased to 50%. This means a life expectancy of six to seven years.

31. The offender is clearly an unwell man who has a number of health conditions some of which are likely to deteriorate and, especially in relation to the dementia, gradually reduce his cognitive capacity and ability to deal with everyday life, let alone life in custody. This clinical history is a significant factor which I am bound to take into account.

32. There is also a report from a psychologist, Dr Clout, which says the offender is suffering from symptoms consistent with a major depressive disorder and he is consuming too much alcohol. She suggests that both of these problems need to be addressed.

33. The offender does not have any criminal history besides these offences.

34. The offender applied for, and was granted, bail for a period of four weeks following the trial. He went into custody on 18 October 2016. In the course of the bail application, I indicated that an imprisonment sentence was "inevitable". I remain of this view.

35. Nevertheless, it is important to consider a number of factors which will dictate the length of imprisonment. These include applying sentencing standards as they were at the time of the offences, the offender's otherwise absence of any criminal record and the need to achieve a just totality of all of the sentences that need to be imposed. I must also recognise that the offender is unlikely to re-offend if only as a result of his deteriorating health condition.

36. I am also bound to take into account the offender's health condition, its pessimistic prognosis and the difficulties which it will impose on the offender living in a prison environment.

37. On the other hand, I must take into account the nature of the more serious offences, the effects on the victims and the community's abhorrence of the conduct. With some qualification the only remorse that has been expressed concerns the three offences to which the offender pleaded guilty. The qualification is that he does not concede the facts of the offence as described by the victim. Clearly the jury disagreed with him.

38. Although there were four complainants, one of them, ST, was subjected to only a minor act of indecency. It is impossible to assess, comparatively, the effects of the offender's conduct on SP, DN and LT. I am sure that the need to live harmoniously within the family, as was the case with SP and DN, accentuated the hurt they suffered.

39. The evidence of Mr Dahlitz in the trial graphically described the emotional trauma that LT was no doubt experiencing.

40. Victim impact statements from SP, SP's husband, DN, DN's husband, LT and ST were tendered. With the exception of ST each of the victims read their respective statements to the court. Each of the statements was an emotional and moving account of the stress, trauma, anguish, guilt and struggle to cope that they each endured in their separate ways. SP and DN are married with children. The whole of their respective families have felt the effects of the offences. LT has struggled in her own way but her struggles have had an impact on her sister ST and no doubt on other members of her family.

41. I think that I will be reflecting at least the sentiment of some of what each of them said by including in this judgment the poem written by SP.

My earliest memory is fear.

Paralysing fear

Fear of my dad coming into my room.

Fear of my mum going out.

Fear of being left alone again

Trying to be invisible

Fear.

Pretending I am asleep, hoping he will go away

But he never does.

I cry myself to sleep again

Feeling dirty

Knowing I can't tell

It will all be my fault

They will send him to jail and it will be MY fault

The family will fall apart...

And it will be my fault.

Even when he stops, I am still paralysed

I am SO afraid

It could happen again anytime

He looks at me and I am terrified

He touches me. Is it beginning again?

He makes a comment. Is it beginning again?

He looks at me. Is it beginning again?

I am terrified. I am paralysed

I scream in silence, but there is no one to hear me.

Is it beginning again? Will it ever end?

42. There are a number of elements that play an important part in the sentencing of this offender. As far as his children were concerned, they were living within a family environment which they were entitled to expect was safe and free from sexual abuse. Their capacity to defend themselves was limited and probably non-existent. Not only were they defenceless but they had to continue to live within the family for many years, doing their best not to break up the family cohesion but knowing that they either had been molested or faced the prospect of it occurring again.

43. "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 the mentor of the child, in those circumstances has abandoned his proper role in order to gratify his lust on the child." (R v Eisenach [2011] ACTCA 2 quoting from R v Dent (NSWCC, No 60496 of 1990, 14 March 1991, unreported)

44. LT's position is different to ST and DN but still contains elements of a breach of trust. LT and ST's family left their daughters in the care of the offender and his wife and they had every right to expect that they would be in a safe environment. The details of the offences against LT, especially when she was a very young child, can hardly be more serious.

45. In assessing the objective seriousness of the offences I must have regard to the matters set out in s 33(1) of the Crimes (Sentencing) Act 2005 (ACT). Of particular relevance here is the deliberate conduct of the offender in the sexual abuse of the young girls, the depravity of some of the conduct (for example having LT kiss his penis), the tender age of the victims, the vulnerability of the victims, the period of time over which the offences were committed and their characterisation as being part of a course of conduct.

46. It is necessary to take into account the offender's plea of guilty but it was of almost no utilitarian value and it was, as I have already noted, qualified. Any deduction arising from the pleas can only be minimal.

47. It would be unrealistic to make all of the sentences cumulative although a case could be made out for doing so. I must have regard to the totality of the sentence but also to the need to demonstrate to the victims and to the public that the offender is being punished for each of the offences. Ultimately there has to be a degree of both concurrency and accumulation.

48. It might be said that the views of Associate Professor Rosenfeld mean that any substantial sentence (effectively beyond about six years) will mean that the offender will die in prison. That is of course a possibility but one that he is exposed to with even a shorter sentence because of his assorted medical conditions. I do acknowledge there is an element of delay which I take into account.

49. The offences were committed over many years so that it is almost impossible to look at other cases and discern any sentencing trends. I can only do my best to ensure that a just result is arrived at by applying the necessary sentencing considerations.

50. I intend to sentence the offender to a total term of imprisonment of 10 years but to set a non-parole period to expire in 5 years. The latter consideration is to give effect to his deteriorating health condition and his reduced life expectancy. By this time, if he is still alive he may well be significantly demented.

51. To achieve my intention there is a degree of both accumulation and concurrency in the sentences although it cannot be said that there is a strict pattern that dictates which sentences are concurrent and which are cumulative. As I said my purpose is to achieve an overall just result.

(i) I confirm the convictions in respect of each count.

(ii) For Count 1, I impose a sentence of 2 years imprisonment commencing from 18 October 2016 and expiring on 17 October 2018.

(iii) For Count 2, I impose a sentence of 2 years imprisonment commencing from 18 September 2017 and expiring on 17 September 2019.

(iv) For Count 3, I impose a sentence of 2 years imprisonment commencing from 18 October 2018 and expiring on 17 October 2020.

(v) For Count 4, I impose a sentence of 1 year imprisonment commencing from 18 October 2016 and expiring on 17 October 2017.

(vi) For Count 6, I impose a sentence of 2 years imprisonment commencing from 18 October 2016 and expiring on 17 October 2018.

(vii) For Count 7, I impose a sentence of 6 years imprisonment commencing from 18 February 2018 and expiring on 17 February 2024.

(viii) For Count 9, I impose a sentence of 2 years imprisonment commencing from 18 October 2016 and expiring on 17 October 2018.

(ix) For Count 10, I impose a sentence of 1 year imprisonment commencing from 18 October 2016 and expiring on 17 October 2017.

(x) For Count 11, I impose a sentence of 6 years imprisonment commencing from 18 August 2019 and expiring on 17 August 2025.

(xi) For Count 12, I impose a sentence of 6 years imprisonment commencing from 18 October 2020 and expiring on 17 October 2026.

(xii) For Count 15, I impose a sentence of 6 months imprisonment commencing from 18 October 2016 and expiring on 17 April 2017.

(xiii) For Count 16, I impose a sentence of 1 month imprisonment commencing from 18 October 2016 and expiring on 17 November 2016.

(xiv) The overall sentence I impose consists of a non-parole period of 5 years commencing from 18 October 2016 and a term of imprisonment of 10 years. The offender will become eligible to be released on parole on 17 October 2021.

I certify that the preceding fifty-two [52] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim