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[2018] ACTSC 142
Supreme Court of the ACT
2018-05-15
Mossop J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - sentencing - act of indecency with person under the age of 10 - act of indecency with person under the age of 16 - incest - offender found guilty by jury - offender has not accepted guilt - course of conduct over a substantial period - punishment and general deterrence - custodial sentence
Holyoak (1995) 82 A Crim R 502
R v AB (Unreported, Supreme Court of the ACT, Penfold J, 12 April 2012)
R v BI (No 4) [2017] ACTSC 71
R v BNS (No 2) [2016] ACTSC 145
R v CC [2016] ACTSC 43
R v G (Unreported, Supreme Court of the ACT, Penfold J, 22 March 2012)
R v HI [2015] ACTSC 373
R v PJ (Unreported, Supreme Court of the ACT, Burns J, 16 April 2013)
R v PR (Unreported, Supreme Court of the ACT, Nield AJ, 12 September 2013)
R v SH [2015] ACTSC 25
R v TC (Unreported, Supreme Court of the ACT, Penfold J, 28 March 2011)
R v Thorn [2016] ACTSC 217
1. DL was found guilty by a jury of eight offences relating to two victims. The victims, SL and UL, are his granddaughters. In relation to SL he was found guilty of:
(a) three counts of an act of indecency with a person under the age of 10 years;
(b) one count of an act of indecency with a person under the age of 16 years; and
(c) two counts of incest.
2. In relation to UL, the offender was found guilty of two counts of incest.
3. An act of indecency with a person under the age of 10 years, contrary to s 61(1) of the Crimes Act 1900 (ACT), has a maximum penalty of imprisonment for 12 years. An act of indecency with a person under the age of 16 years, contrary to s 61(2) of the Crimes Act, has a maximum penalty of imprisonment for 10 years. Incest with a person under the age of 10 years carries a maximum penalty of 20 years imprisonment: Crimes Act, s 62(1).
5. Count 1 is an act of indecency which occurred between 2005 and 2007 when SL was between five and eight years old. It occurred at the home of the offender and his wife in an apartment in Turner. It involved the offender having SL masturbate him until he ejaculated. It occurred when both SL and the offender were in bed during a sleepover by SL and her siblings at the offender's house.
6. Counts 2, 3 and 4 occurred between 2006 and 2009 when SL was between six and nine years old. They involve an incident during a sleepover at the home of the offender and his wife in Turner. The offender and SL were in bed together with UL, who was asleep, and the offender put SL on top of him. He had penile-vaginal intercourse which is Count 2. This hurt SL and gave her a "really weird feeling" and she asked him to stop. He continued for a little while and then stopped. He then had her masturbate him for a few minutes which is Count 3 and then had penile-vaginal intercourse again which is Count 4. These three offences are closely related and form a single incident.
7. Count 5 occurred in 2008 or 2009, prior to SL's tenth birthday in October 2009. She was therefore eight or nine years old. This occurred at SL and UL's family home in Palmerston. It involved the offender taking a photograph of SL's genital area when, at the instigation of the offender, she was lying on the floor in her brother's bedroom with her legs apart and her underpants off.
8. Count 8 occurred in 2010 at the Palmerston house. SL was sitting on the offender's lap while he completed a crossword. After she provided an answer to one of the clues, he praised her, kissed her on the mouth and inserted his tongue into her mouth.
9. There are two charges involving UL. Count 6 occurred between 2006 and 2008 when UL was between four and six years old. The offender took her to the main bathroom in the Turner apartment, lifted her onto the bathroom basin and had penile-vaginal intercourse with her.
10. Count 7 occurred between 2007 and 2009 when UL was between the ages of five and seven at the Turner apartment. UL was in the bed with her younger brother. In the morning the offender got into the bed, lifted UL onto his stomach and had penile-vaginal intercourse with her.
11. The evidence given by both complainants at trial was, even though it was clearly distressing to recall the events in the circumstances that they were required to, impressive and clearly accepted beyond reasonable doubt by the jury. The evidence illustrated the utility of early evidence-in-chief interviews conducted by police officers experienced in this kind of case and the significance of permitting victims of sexual offences to give evidence remotely as was done in this case.
12. Victim impact statements were read by SL and UL. These statements demonstrated the profound and complex impact of the offending conduct upon each of them. They particularly emphasised the psychological impact upon them as they grew up and the way in which the offending conduct is likely to affect them, to a greater or lesser extent, for the whole of their lives.
13. The statement of SL also drew attention to how difficult it was to ultimately speak out about her "deepest darkest secret" and the exhausting process involving police, lawyers, a jury and the Court, involving, as she perceived it, constant conflict.
14. Having regard to the evidence that was available in the trial, it is also clear that the psychological impact caused by the offending conduct is on top of the difficulties that each of these children faced as a result of the difficult relationship between their parents and their parents' separation. Their lives were complicated enough without the offending conduct.
15. These offences are extremely serious. They involve very serious sexual offending directed to young children who were unable to protect themselves. The conduct involved a gross breach of trust being directed by the offender towards his granddaughters. A breach of trust will usually be involved in a case of incest having regard to the biological relationship between the parties, but it is not necessarily the case and the extent to which it involves an abuse of trust will vary. It was very clearly present here where each of the victims had an otherwise loving and trusting relationship with the offender. Further, those offences committed during sleepovers at the apartment in Turner involved a breach of trust placed in the offender by his son and daughter-in-law.
16. The offences involved a course of conduct in relation to each victim. The course of conduct proved beyond reasonable doubt involved in the present offences and the conduct that occurred in Queensland in 2012 in relation to UL, in relation to which I accept her evidence. That course of conduct demonstrates that each act was not an isolated incident. I do not increase the penalty imposed upon the offender by reason of the Queensland conduct or the other conduct in the non-specific evidence given by SL and UL of sexual misconduct at other times. However, I do take into account the fact that each proved offence was a part of a course of conduct demonstrated by the other counts on the indictment, disentitling the offender to the leniency that might have been available if an offence was an isolated incident.
17. The consequences of such offending conduct for the victims are likely to be complex and long-term. It is a psychological burden that these children should not have been required to bear. The conduct has had a significant impact upon other members of the offender's family.
18. Each of the incest charges are in the mid to upper range of objective seriousness for this offence.
19. The objective seriousness of the acts of indecency vary. Count 1 and Count 3 are in the upper range of objective seriousness. Count 5 is in the mid range. Count 8 is at the lower end of the range of objective seriousness.
20. The personal circumstances of the offender are disclosed in a pre-sentence report dated 10 May 2018. He is aged 69 years. He had an unremarkable upbringing. Both his parents are dead. He has three siblings. He was married in 1969 and he and his wife had two sons born in 1970 and 1972. Communication with his sons has ceased following police involvement in relation to the current offences.
21. The offender and his wife's home was sold to fund legal representation in relation to the current offences. His wife now resides in rental accommodation on the Gold Coast. She is likely to remain living there during the period of the offender's incarceration.
22. The offender held senior executive management positions within Airservices Australia. He was a member of the New Guinea Air Services Ltd board and then chairman of the company. He was awarded an Australia Day achievement award by the Secretary of the Department of Transport in 2006 for his contribution to sustainable aviation safety in Papua New Guinea. He has a Comsuper pension. The financial position of him and his wife has been adversely affected by the need to fund legal representation in the current case.
23. His friends and colleagues are "pro-social" individuals. He has no drug or alcohol issues. He has high blood pressure and an arthritic condition which is managed through medication. He also suffers from sleep apnoea. He is prescribed medication for depression.
24. Notwithstanding the verdict of the jury, he does not accept his guilt. He is assessed as being at a low risk of general and sexual reoffending.
26. Following the verdict of guilty, his bail was revoked and the offender has been detained in custody from 12 April 2018. The sentences imposed will be backdated in order to take that into account.
27. I was referred to a number of cases relevant to the Court's current sentencing practice for incest and acts of indecency.
28. The circumstances of these cases varied and were summarised in a table provided as part of the Crown submissions. They related to offences involving children under 10, as well as between 10 and 16. The range of sentences imposed on the incest charges was from 3 years to 8 years. The cases referred to were: R v TC (Unreported, Supreme Court of the ACT, Penfold J, 28 March 2011); R v G (Unreported, Supreme Court of the ACT, Penfold J 22 March 2012); R v AB (Unreported, Supreme Court of the ACT, Penfold J, 12 April 2012); R v PJ (Unreported, Supreme Court of the ACT, Burns J, 16 April 2013); R v BNS (No 2) [2016] ACTSC 145; R v SH [2015] ACTSC 25; R v PR (Unreported, Supreme Court of the ACT, Nield AJ, 12 September 2013).
29. Counsel for the offender referred to: R v CC [2016] ACTSC 43; R v BI (No 4) [2017] ACTSC 71; R v HI [2015] ACTSC 373. Those cases showed sentences of imprisonment for incest of two years and six months to three years and six months and a sentence for attempted incest of 2 years. Each of these cases involved children between 10 and 16 years old.
30. Many of the cases to which I was referred also involved acts of indecency between adults and children within the same family. They therefore also provided some evidence of sentencing practice of the Court in relation to such offences.
31. I have had regard to these decisions and the sentences imposed as providing some indication of sentencing practice, both in relation to incest and acts of indecency between adults and children of the same family.
32. I adopt what Burns J said in R v CC at [40], [42] in relation to sexual offending by a parent against a child. It is equally applicable to cases involving abuse of grandchildren. His Honour said:
33. The gravity of such offences increases with the youth of the victim. That is illustrated by the increases in the maximum penalty from 10 years in cases where the victim is 16 years or over, to 15 years when the victim is 10 or over but under 16, to 20 years where the victim is under 10. In this case, SL was between the ages of six and nine and UL was between the ages of four and eight. These are ages when children are extremely vulnerable yet old enough for sexual misconduct to be extremely psychologically damaging.
34. As is, unfortunately, not unusual, the offender comes before the Court with no criminal history and otherwise as a person of apparently exemplary character. As the offender has not accepted the verdict of the jury he has demonstrated no remorse or contrition. While he was considered a low risk of both general and sexual reoffending, the nature and gravity of these offences are such that punishment and general deterrence are very important sentencing considerations.
35. I have taken into account the age of the offender at the time of sentence. He is 69 years old. I take into account the fact that his age means that a substantial term of imprisonment is likely to bear more heavily upon him than a similar term imposed upon a younger man who could look forward to a worthwhile life after release: Holyoak (1995) 82 A Crim R 502 at 507. I also take into account the health conditions from which he suffers. These appear to be well managed but are likely to make time in custody somewhat more burdensome than a younger person without those conditions. Given that his wife will continue to live in Queensland and the estrangement from the rest of his family, the burdens of imprisonment are unlikely to be lightened by frequent family visits. I have also take into account the fact of his good character and achievements in the rest of his life. It is clear that, as counsel for the offender put it, his fall has been complete. In cases such as this, because of the insidious nature of this kind of offending and the difficulty of detecting it, general deterrence is a very significant sentencing consideration and good character carries lesser relative weight than it might in a different type of case: see R v TC. However, I have still taken the offenders good character into account in determining the appropriate sentences.
36. It is clear because of the gravity of the offences and the maximum penalties provided by the legislature that no sentence other than a custodial one is appropriate. Further, no sentence other than one involving full-time detention is appropriate. As the matter was determined by the jury after a contested hearing, no discount on account of a plea of guilty is available.
37. It is clearly a case where no sentence other than a substantial sentence of full-time imprisonment is appropriate in relation to each of the offences. Counts 2, 3 and 4 clearly form part of a single incident and hence there will be a large degree of concurrency between the sentences for those offences. The separate, very serious offending directed to UL must be cumulative to a substantial extent upon the offending directed to SL. Because the course of conduct occurred over a substantial period, I have treated later offending as being more serious than earlier offending: R v Thorn [2016] ACTSC 217 at [53], [88]. However, considerations of totality mean that a substantial degree of concurrency must operate between the various sentences. I have set a relatively short non-parole period which is just under 60 per cent of the head sentence.
38. The sentences which I will now impose involve an aggregate sentence of eight years imprisonment with a non-parole period of four years and eight months.
I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.
R
DL [2018] ACTSC 142