R v Drenkhahn

Counts and maximum penalties

1. Counts 1, 2 and 4 relate to aggravated indecent assault of a child under 16: s 61M(1) Crimes Act 1900. The maximum penalty at the time was seven years imprisonment.
2. Count 3 relates to sexual intercourse with a child aged between ten and 16: s 66C(1) Crimes Act 1900. The maximum penalty at the time was eight years imprisonment.
3. If dealt with on a certificate, the firearms matters both have penalty limits of two years imprisonment.
4. Careful attention to the maximum penalties fixed by Parliament is always required. They are a sentencing measure to be balanced with all other relevant factors.

Objective seriousness

1. There is an absolute prohibition on any sexual activity with a child. The law is strictly enforced and is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity. It follows that every act that involves the sexual exploitation of a child is serious and is treated seriously by the courts. The guidance offered by maximum penalties makes that clear.
2. Every sentence must be appropriate and proportionate to the gravity of the crime considered in the light of its objective circumstances. The objective seriousness of particular offending in turn must be determined in light of the entirety of the facts and circumstances in question.
3. There is no hierarchy of seriousness of kinds of sexual intercourse. Accordingly, the form of sexual intercourse does not necessarily determine objective seriousness.
4. In assessing the objective seriousness of individual matters, the acts or act done, the character of the sexual or indecent assaults, and the degree of physical contact involved is of significance. The degree and nature of the event must be considered, as must the time over which the acts occurred and whether or not any pain, physical hurt or harm was caused. Some degree of psychological harm is generally presumed. Other matters bearing on the assessment may be the age difference between the perpetrator and the child; the relationship of the perpetrator to the child; and the age of the child relative to the range encompassed by the offence.
5. Count 1 involved an older man forcing his actions on a reluctant 13 year old who had no idea of what he was doing. There was skin-on-skin contact but no other assault as such. Barry's pants were pulled down and his penis was manipulated until Barry ejaculated.
6. Count 3 involved an act of oral intercourse to ejaculation, performed on a 13 year old by an older man. The boy was alone and isolated in the offender's home, a place he had previously felt safe and welcome. Again, the child's innocence and confusion were exploited.
7. Count 4 occurred in the child complainant's home. It was a brief episode that stopped when the child said "No." No skin-on-skin contact was involved.
8. Count 5 involved a short but disturbing wrestle involving a naked man and a boy who did not want this to be done to him by anyone, let alone his godfather. He told the jury, "I felt violated and what he did was wrong."
9. Children are socialised to be respectful and subservient to adults. It is clear that Mr Drenkhahn was a close family friend and trusted by the parents of the children to look after them. To all outward appearances, he did so, taking them on overnight trips and on regular fishing trips.
10. Where the perpetrator is an adult and close family friend who is otherwise looked up to by the child, his actions and motivation would not have been clear to his young victims. There is also a risk in such circumstances when young boys are aroused by the actions that there will be subsequent confusion as to what occurred and why they reacted to such assaults. These reactions were expressed in evidence at trial and in the Victim Impact Statement of Barry. They are, tragically, common.
11. I note Mr Lloyd in his submissions referred to the absence of features which can often aggravate such offending: MFI 2.

Victim Impact Statement

1. A Victim Impact Statement was received from Barry setting out the harm suffered. It will be received. It was read by me to the open court and to the offender and it will be considered by me: ss 28 and 30B(2), Crimes (Sentencing Procedure) Act 1999. It was prepared with the assistance of a counsellor as Barry is not very literate. The absence of a victim impact statement from Robert does not give rise to an inference that the offence had little or no impact on him: s 30E of the Crimes (Sentencing Procedure) Act.
2. Barry told me of the depression and confusion he felt after these events. He did not know if what had occurred was right or wrong. He felt he could not talk about it to his mum who was Drenkhahn's friend. When his son was six, he started having terrible thoughts about what had happened and could not block them out. He said he used alcohol and other drugs to do so. He had troubles coping with the memories of the events and they continued after disclosure. He detailed some of the more extreme consequences. He has tried to better himself and has sought help. A letter from the Local Area Health Service detailing that assistance and his response to it was included in the tender.
3. The feeling and emotional hurt suffered are, tragically, not uncommon results of such assaults, but if it is any consolation, it is my experience that as health professionals learn more and more, they are better able to assist survivors of such crimes. The positive attitude and determination shown by Barry indicate that with such help, his emotional health should improve.

Firearms act offences

1. Turning briefly to the firearm matters, the Firearms Act 1996 makes it clear that firearm possession is a privilege that is conditional on the overriding need to ensure public safety. There was no justification here for the continued possession of the .303 rifle. The weapon was not registered. I am prepared to accept that the rifle was originally used as an adjunct to the offender's trawling business. I am aware that sometimes a firearm can be used if a large and dangerous shark is caught in a net and must be destroyed, but the rifle was no longer required for that purpose. It should have been destroyed or surrendered. Regular amnesties are well publicised.
2. It is also a sad but tragic fact that if possessed, such rifles can be used as I hear too often in this Court. If stolen, they can come into the hands of criminals who then use them to commit further crimes. Because of the breach of the Firearms Act and its potential consequences, this is a matter that requires the imposition of criminal convictions but in all the circumstances, as is agreed by the parties, it is inexpedient, in the circumstances, to impose any further penalty.

Old offences

1. Section 25AA of the Crimes (Sentencing Procedure) Act 1999 applies to these proceedings. I must sentence the offender in accordance with the sentencing patterns and practices that apply today, not at the time of the offence.
2. I am not aware that courts have ever underestimated the trauma sexual abuse causes children. In 2000, matters such as this were treated very seriously and retributive penalties imposed. The sentencing patterns have changed. Sentences for these matters are now more severe than those revealed in the Judicial Commission's statistics for that period. That is because of increased penalties and standard non-parole periods. Increasing sentences also recognises the retributive approach signalled by such increases and the imposition of standard non‑parole periods. There is also a greater understanding of the long-term psychological consequences for victims and a considered judicial response to changing community attitudes to these crimes: R v MJR (2002) 54 NSWLR 388 at [57]. The understanding of the harmful effects of sexual offending against children has increased since the Royal Commission delivered its Criminal Justice Report in 2017: Royal Commission into Institutional Responses to Child Sexual Abuse (Criminal Justice Report, August 2017).
3. While I am required to comply with s 25AA, I must take guidance from the maximum penalties that were applicable in 2000, not now. Section 25AA does not alter this fundamental common law principle. Accordingly, as with every sentencing exercise, the Court must determine the relevant facts available to the Court; have regard to the maximum penalties in force at the time as a guide to the range of punishment then available; identify where, within the range of offending conduct covered by the offence charged lies; and fix the term of the sentence or sentences; and determine whether special circumstances require a longer non-parole period: MPB v R [2013] NSWCCA 213 at [34] & 35: Moon v R [2000] NSWCCA 534; (2000) 117 A Crim R 497 at [66] - [71]; R v Cattell [2019] NSWCCA 297

Delay between offence and sentencing

1. There was a delay of three years between when Drenkhahn was first charged and when the matter was able to be resolved in court. Although considerable efforts are being made generally and were made here to expedite the matter, courts in country areas are not as well serviced by judges in criminal trial proceedings as we would all like. There have been a number of complications in this matter and I do take into account the overall impact of the three-year delay in resolving this matter, both in terms of stress, cost and other concerns.
2. There is also, as with all historical cases, a need to consider the impact of delay. Complex issues arise when sentencing for a crime long after it has been committed. These issues call for a measure of flexibility, of understanding and approach. It is recognised that delay, even extensive delay, does not necessarily benefit an offender: R v Cattell [2019] NSWCCA 297. Each case has to be assessed on its merits. Here, the very nature of the offending and the relationship between the offender and the complainants made them reluctant to come forward. Studies put before the Royal Commission show it is not uncommon for male victims of child sexual assault to not reveal the abuse for many years. It is not uncommon for child victims to themselves become sexually aroused and feel guilty as a consequence. If one feels guilty about an experience, it is understandable for a child to be confused or feel they have been bad and that it is somehow their fault that the abuse occurred. Hiding from the consequent shame can be a potent deterrent to disclosure.
3. On the other hand, the evidence before me establishes that this offender is a person who had never before faced a court. He ceased offending, on the material before me, in 2003. He has not committed any crime since. Although he offended against the two brothers on three separate dates, there is no evidence that, despite opportunity to do so, the criminal activity was repeated. He has enjoyed his liberty and reputation during that time but on the other hand, he did not get the benefit of the sentencing patterns that applied in 2000. As I have said, matters such as this give rise to complex issues which have to be synthesised. As Howie J noted in Moon v R [2000] NSWCCA 534; (2000) 117 A Crim R 497, while there is no universal rule, delay should not be allowed to dictate a sentence that is not appropriate. He then went on to say: "It is the fact of imprisonment, rather than the length of the sentence, which will be of greatest significance to punish the offender and denounce his conduct."
4. That particular quote needs to be revisited in light of s 25AA.

Multiple offences

1. I am required to impose an appropriate sentence for each offence and structure the sentences such that the overall sentence is just and appropriate to the totality of the offender's crimes: Mill v The Queen (1988) 166 CLR 59 at 62-63.
2. There must be some accumulation of penalty even though the offences against Barry, two offences occurred on the one day and the other shortly afterwards. Public confidence in the administration of justice requires sentencing courts avoid suggestions there is a discount for multiple offending. This is particularly so where there are two discrete victims of the offence.
3. There are, however, common factors related to the commission of the offences, the circumstances of the offending, and the case put for the offender. One penalty could not fully comprehend and reflect the criminality of the others. But here, there should be partly cumulative sentences, otherwise there is a risk that the total sentence would fail to reflect the totality of what Drenkhahn did.
4. There is also a need to accumulate, at least partially, so as to acknowledge the harm done to the individual victims and the individual instances Drenkhahn offended against Barry. That said, had count 5 stood alone, a full-time custodial sentence might not, as Mr Lloyd submits, have been required, but it is a sad but tragic fact that count 5 did not stand alone.

Subjective case

1. Drenkhahn is presently on remand. He is on protection in the limited association area of a prison and shares a cell with three others. Since going to gaol on 4 December 2019, he has not yet had a psychiatric review. His physical fitness is improving but, entirely understandably, his emotional situation is not good. Judges understand and appreciate the impact and lived experience of prison but I suspect few in the community realise how terrible it is to be locked away with no rights or freedoms.
2. As is his right, Drenkhahn maintains his innocence of the charges. He is not to be punished for that stance or for taking the matters to trial. He cannot, however, as a consequence, gain any benefit for expressions of remorse or acceptance of responsibility. There is nothing before me to indicate that his continuing denials increase his risk of reoffending.
3. It is accepted that apart from the offending the subject of these proceedings, he has never before been before a court for punishment.
4. I have received a number of character references: Exhibit 1. His wife stands by him. She speaks of the impact of the charges and his imprisonment far from home, particularly over the New Year when his town was threatened by fire. She will stand by him. She has mobility issues and wants him home to help her as soon as practicable.
5. Other friends all speak highly of him as a friend and member of the local community in both its amateur and professional fishing activities. Some note his positive interaction with their children and speak of his role as a mentor and role model.
6. The offender's general practitioner, Dr Kallinen reported consultations for anxiety, depression and suicidality and a number of physical ailments: exhibit 2. The physical ailments can be managed with medication, diet and exercise.
7. I am also assisted by reports from Dr Ellis, a forensic psychiatrist, and Dr Reddy, a treating consultant psychiatrist: exhibit 3 and 4. Although not supported by any evidence on oath, the reports do not attempt to address the circumstances of the offences but focus on the results of their professional consultations and uncontroversial background matters, which are otherwise supportive.
8. To Dr Ellis, the offender denied attitudes supportive of sex between adult men and boys. The first report of any psychiatric disturbance was a suicide attempt after these charges were laid. He exhibits no signs of any personality or other disorders. Any cognitive deficits appear associated with anxiety as a direct result of the charges, his conviction and his subsequent imprisonment.
9. Dr Ellis used a static assessment tool to score Drenkhahn in the well below average risk category for reoffending. He said aside from his convictions there are no other risk factors. Dr Ellis concludes: "Generally presents with positive factors for rehabilitation. He has cooperated with supervision and treatment whilst subject to bail. He has stable accommodation, a good work ethic and no evidence of personality disorder. He does not endorse attitudes that support offending. He is of an age when sexual recidivism is rare. He should be monitored for suicidal ideation while in custody. He could participate in programs while in custody, but the better evidence for reducing recidivism are community based programs and monitoring alongside medication."
10. Dr Reddy provided a report setting out treatment for anxiety and depression given from 2017 in hospital and during outpatient reviews. Dr Reddy was obviously impressed with Drenkhahn as a person but made it clear he did not have the expertise to provide any risk analysis.
11. It is uncontroversial that prior to his convictions, Drenkhahn had lived and worked in his community for close to 50 years. He came to Australia from Germany as a young child. He is loved by his family. He was respected for his work. He is described as being of good character and good nature. He has represented his industry as a volunteer. He has held executive positions with a number of organisations, where his input was valued and significant. He has assisted many in gaining employment in the fishing industry. He is still held in high esteem by some in the local fishing industry.
12. He accepts his reputation has been destroyed and I am aware, on the material before me, from personal experience, of the impact in a small community of such convictions or even the charging and what that impact can be. The fact he was charged, the delay in bringing the matter to trial, and the associated local media interest have understandably depressed him. He has been on strict bail but he has had his liberty in the community. Those restrictions will be taken into account.
13. I have the benefit of a sentencing assessment report which was provided dated 13 February 2020: exhibit B. That report confirms the other subjective material to which I have referred.

Special circumstances

1. The evidence relating to his subjective circumstances, past and future prospects, his age and illness all indicate that Drenkhahn is unlikely to offend again in any way. He will need some help adjusting to normal community life, but he has strong links to prosocial members of the community who remain willing to assist despite his convictions.
2. These matters and his history of prosocial activity, apart obviously from the episodes of offending, provide a strong basis for a finding of special circumstances. However, in so finding, I am mindful of the requirement that the minimum period for which he should be imprisoned must properly reflect the gravity of his offences and the other manifold purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at 717 [59].

Submissions

1. Ms Keay, Crown Prosecutor and Mr Lloyd, QC for the offender, have provided helpful oral and written submissions: MFI 1 & 2. I have discussed them with counsel. I have considered and I have addressed them in coming to my determinations as to the appropriate individual and aggregate sentences.

Synthesis

1. Reinhard Fritz Drenkhahn was a respected member of his local community. He worked hard and provided for his family. He should be enjoying his retirement and caring for his wife of many years. He should be continuing his community work at Eden. Now at 69, he is a convicted sex offender. He is sharing a cell with three others and is subject to a protection regime often required by older prisoners and sex offenders.
2. He is in gaol because about 20 years ago he committed sexual offences against two young boys, boys who until then looked up to and respected him as apparently others still do.
3. Mitigating factors must be given appropriate weight, but they must not be allowed to lead to the imposition of a penalty which is disproportionate to what was done. Where adults offend against children in an indecent and sexual way, there is a legitimate community expectation the offender will suffer punishment and that particular offences will merit severe punishment. A proper sentence marks the Court's view of the seriousness of the crime, and should let other wrongdoers know the retribution which will fall upon them if they commit similar crimes.
4. Sentencing courts have an obligation to vindicate the dignity of each victim, to express the community's disapproval of that offending, and to afford such protection as can be afforded to the vulnerable against repetition of the offending. In doing so, the courts must synthesise many competing features. Ultimately, my duty as a sentencing judge requires an attempt to translate the complexity of the human condition and human behaviour to the mathematical units of punishment which are usually expressed by time in custody.

Orders

1. For the possess unauthorised firearm and possess unregistered firearm -not prohibited firearm/pistol, In accordance with your guilty pleas you are convicted. Applying s 10A of the Crimes (Sentencing Procedure) Act, it is inexpedient to impose any other penalty than the fact of conviction.
2. Mr Drenkhahn, in accordance the jury verdicts in each matter, you are convicted.
3. The indicative sentences to be applied to the matters for which you went to trial and were found guilty by the jury are these: 1. Count 1 - Aggravated indecent assault - victim under the age of 16 years, I indicate a sentence of 2 years 3 months. 2. Alternative Count 3 - Sexual intercourse with person 10 or over & under 16 yrs, I indicate a sentence of 3 years 3 months. 3. Count 4 Aggravated indecent assault - victim under the age of 16 years, I indicate a sentence of 12 months. 4. Count 5 Aggravated indecent assault- victim under the age of 16 years, I indicate a sentence of 12 months.
4. Having considered issues of accumulation, concurrency, totality and special circumstances, I am satisfied that an aggregate sentence of four years imprisonment with a non-parole period of two years should be fixed. The sentences should date from 4 December 2019. You will be eligible for consideration for release to parole on 3 December 2021. Your total sentence will expire on 3 December 2023.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 April 2020