R v Grimmer

Exhibit 1

1. The offender has no relevant prior criminal history. He has one previous conviction for a driving offence in 1983. For all intents and purposes, the offender has no criminal record.
2. The SAR notes that the offender has been employed with the same employer for 27 years. Prior to his incarceration, Mr Grimmer lived with his partner and two children. The offender initially denied all but one of the offences, that of kissing the victim and touching her breast. In a subsequent interview. he admitted to kissing the victim on the cheek while they were out on his boat. The offender stated that he took full responsibility for his behaviour towards the victim. He acknowledged that he had tended to treat the victim as an adult and tried to be her friend, and that he spoke to her in a manner that implied something more than an adult/child relationship. The offender reported that he is now more aware of how to behave appropriately with young people under the age of 16.
3. Mr Grimmer denied excessive alcohol use at the time the offences were committed. The report writer noted that the offender had been undergoing psychological counselling in the community to address issues associated with the matters currently before the court. The offender was unable to identify any impact of his offending on the victim. In relation to the impact on his own family, he reported that it affected his ability to attend his son's sporting events. His main concern was the impact upon his capacity to meet mortgage payments should he become unemployed as a result of sentencing.
4. Mr Grimmer was assessed as a T3 low risk of reoffending according to the Level of Service Inventory - Revised (LSI-R). Community Corrections has overridden that risk assessment to T3 medium. Due to his high media profile, there were concerns about community reaction to Mr Grimmer, and the impact upon his personal safety.
5. The structured case note from Ms Sarah Wright senior psychologist, appended to the SAR, was a file review only, and was prepared to assist in the prediction of sexual recidivism and to make comment on the offender's treatment needs. It does not purport to be a comprehensive risk assessment. When describing the offending, Ms Wright was of the view that Mr Grimmer minimised the seriousness of his offending behaviour. He reported that he had consumed alcohol at the time of the offence, although he denied being heavily intoxicated.
6. Ms Wright observed that Mr Grimmer reported that his relationship with his de facto partner has been strained since the sexual offences came to light. He also reported intimacy issues that pre-dated the offences. The report writer is of the view that this relationship appears to be marked by conflict. However, the offender retains the support of his brother and sister-in-law in Brisbane.
7. Using an actuarial risk assessment, which Ms Wright says has moderate predictive accuracy, she assesses the offender's risk of reoffending as being average. She emphasises that the assessment did not include a formal assessment of dynamic risk factors.
8. Ms Wright believes that the offender's dynamic risk factors include problems with general self-regulation (including impulsivity and negative emotionality). He has a history of heavy drinking. The offender has reportedly experienced thoughts of deliberate self-harm and suicide, which may indicate vulnerability to emotional collapse when faced with life stressors. He also has intimacy deficits. Mr Grimmer reported experiencing anxiety, and has suicidal thoughts in relation to a number of stressors. He also has a media profile as his sister was murdered in 1970. Factors indicative of increased risk include victim access, substance abuse, emotional collapse and/or sexual preoccupation.

Exhibit 2

1. Dr Adam Martin, forensic psychiatrist, interviewed the offender on 4 December 2019. The offender described himself as "just surviving day to day". He reported being the target of undue media attention because of his name and association, as when he was a child, his three-year-old sister was kidnapped and murdered. He described broken sleep and having suicidal thoughts. He described no psychotic phenomena.
2. Following the offending and prior to police intervention, Mr Grimmer said he disclosed what had occurred to his brother and sister-in-law. He subsequently sought out psychological counselling, first with Ms Nicole Rowe and then Dr Barry McNamara (at the same practice). Mr Grimmer takes medication for his hypertension, and described significant snoring and sleep disturbance. The offender denied a history of problematic drinking, other than a driving under the influence conviction at eighteen. He further denied ever having used illicit drugs.
3. Growing up, the offender reported that his parents were chronically distressed by the loss of their three-year-old daughter. Mr Grimmer denied unusual sexual behaviour or paraphilic urges, fantasies or behaviours. He recognised that what had occurred was wrong and was fully aware of issues around capacity and consent in relation to sex. He stated that he "should have known better", and recognised the potential damage in relation to inappropriate or criminal sexual behaviour.
4. Dr Martin was of the view that Mr Grimmer presented with significant distress, low mood and anxiety. He expressed shame and regret about the offending. In Dr Martin's opinion, this was consistent with genuine remorse, and he believes that the offender has a good level of insight into the nature of the offending. Dr Martin said that the offender did not seek to minimise or distort responsibility and that at least at this stage should not be diagnosed with a paedophilic disorder. Dr Martin believes that the offender's risk of reoffending is low and would be further minimised by ongoing psychological treatment. He also notes that the impact of full-time custody would be highly distressing for Mr Grimmer in that it would be isolating, impact his family's livelihood and that he would not be able to engage with his current psychologist.

Exhibit 3

1. The case notes from Ms Nicole Rowe, psychologist, state that Mr Grimmer originally sought counselling on 14 November 2016. On that date, the offender was hesitant to disclose the cause of a recent argument with his wife. However, after some discussion it became apparent that the discord had occurred as a result of a relationship the offender had formed with a 14-year-old girl (AB). Indeed, the complainant and the family friend had insisted that the offender disclose the offences to his wife. I note that the offender accessed counselling soon thereafter.
2. When asked about the extent of his relationship with AB, the offender provided general answers and deflected questions. He admitted to kissing the complainant and fondling her breast on one occasion, but was adamant he had not touched her anywhere else. While he stated he was willing to take full responsibility for his actions, he contradicted this by saying that the victim's guardian should have advised him that his behaviour was inappropriate. Ms Rowe believed that the offender appeared to place a lot of blame on his wife for her current anger and behaviour. Mr Grimmer stated that he had not thought previously about power imbalances that occur with relationships between adults and minors and the vulnerability of young people. The offender was aware that Ms Rowe was a mandatory reporter, and a report would be submitted to an appropriate authority. Ms Rowe expressed concern at the offender's suicidal ideation, but identified the offender's son as a protective factor. Ms Rowe immediately reported the matter to authorities.
3. Ms Rowe's notes of 28 November 2016 demonstrate that the session was utilised to explore the offender's relationship with AB. Time was spent exploring appropriate interpersonal boundaries. The offender was adamant that he would never allow himself to be placed in another like situation and indicated that he wished to continue counselling.
4. The balance of the case notes are from Dr Barry McNamara, who took over from Ms Rowe. He reported that the offender had ongoing issues with restlessness and interrupted sleep. Mr Grimmer readily admited that he was "quite foolish" in his actions. However, Mr Grimmer was adamant that he was not a predator. Dr McNamara apparently described the offender as "not particularly bright" and as someone who had not really grown up.
5. Letters from Dr McNamara indicate that the offender had 17 counselling sessions and telephone support on 3 occasions from 14 November 2016 to 16 December 2019. His last date of attendance was 16 December 2019 and his next appointment was to be in February 2020, although I note that the offender was taken into custody for unrelated matters which would have stopped the ongoing counselling.
6. Exhibit 3 also contains an extract from the offender's ERISP, during which he made some admissions and expressed shame and regret.

Exhibit 4

1. Ms Linda Grimmer, who I presume to be the offender's sister-in-law, confirms her support for the offender. She says that due to media coverage, the family is unable to attend court. She confirms that Mr Grimmer has strong community ties and that he has held the same job for over 30 years. She believes that he is not a threat to the community, takes this matter seriously and has shown remorse for his actions.

Time in custody

1. The offender has spent no time in custody directly referable to these offences.

Plea of Guilty

1. The offender has pleaded guilty to all three counts. There was dispute about the discount that I should apply. The Crown says that these matters were committed for trial on 20 March 2018. Two trial listings were vacated during the circuit sittings, both on the offender's application. Each time, the complainant and numerous Crown witnesses were apparently ready to give evidence. The Crown submits that this represents a very late plea and that any utilitarian discount should be limited to 5-10%.
2. Mr Lo Schiavo submitted that the value of not requiring a victim to endure a hearing should be taken into account in the consideration of the value of a guilty plea. He said that the court should apply a sentencing discount of approximately 20% as the offender entered the pleas to the matters before the court on 17 October 2019, once the counts against were finalised.
3. In my opinion, notwithstanding the fact that two trial listings were vacated, there is real utilitarian value in this plea of guilty. I allow a discount of 12.5%.

Objective Seriousness

1. In relation to the first offence for which the offender is charged, the Crown submits that when determining objective seriousness I should take into account that there was a significant age difference between the victim and the offender (38 years), that the offence is aggravated as it involved a significant breach of trust by the offender (a "father figure" to the victim), that the offending was not isolated and occurred over a period of time, that the nature of the offending is that the offender began touching the victim by putting his hands down her pants, touching her on the outside of her vagina and inside her underwear, that he isolated her from others and kissed her on the lips, and that the offender put his hand up her top and touched her breasts on the inside and outside of her bra.
2. In relation to the second offence for which the offender is charged, the Crown says that the same factors of age difference and relationship of trust are present. The victim told the offender to 'stop' and he told her not to tell anyone because he could get into a lot of trouble. Further, the incident occurred on a boat a considerable distance from the shoreline, where the victim was in an especially isolated and vulnerable position. The nature of the offending was that the offender tried to force himself on her after driving away from the shoreline. He kissed the victim on the lips several times and put his hand up her top on the outside and inside of her bra.
3. In relation to the third offence for which the offender is charged, the same factors of age difference and relationship of trust are present. The nature of the offending is that the offender kissed the victim on the lips, put his hand under her top and touched her breasts.
4. The Crown submits that I would find each offence on the mid-range of objective seriousness.
5. Mr Lo Schiavo submits that the court should consider that the conduct relating to all three counts would be classified as below the mid-range for these offences.
6. I have considered all the submissions made by both the Crown and the offender. I observe that the maximum penalty and the significant standard non-parole period demonstrate the gravity with which the legislature views such offending. In my opinion, taking into account the Agreed Facts and the matters submitted by the Crown, the first two offences (sequence 3 and sequence 1) are at the mid-range of objective seriousness for offences of this type. I find the third offence (sequence 5) is at just below the mid-range of objective seriousness.

General Deterrence

1. The Crown submits that with this category of offences, general deterrence is of great significance. She submits that this is especially so when the offender is in a position of trust to his victim. The Crown says that such offences involve a high degree of criminality and condign punishment is called for, not only to punish the offender but in an endeavour to deter others. I agree with the submission. General deterrence has a role to play in this sentencing exercise. The same can be said for personal deterrence, in particular because of my views of the offender's remorse and prospects of rehabilitation, to which I will return.

Remorse and Prospects of Rehabilitation

1. Some time was taken in oral submissions with respect to the offender's remorse and his prospects of rehabilitation.
2. Mr Lo Schiavo submitted that the offender has good prospects of rehabilitation, and pointed to the comments of Dr Martin in the psychiatric report tendered in the proceedings. He was of the view that the offender has good prospects and pointed to insight, remorse, a lack of major co-morbid mental health problems, that he is a pro-social individual and that he does not have a significant criminal record. Dr Martin also pointed out that the offender had access to counselling shortly after the last incident of offending, which he says is of some significance when determining these matters.
3. The Crown submitted that the offender has no insight into his offending behaviour. She says that this is clearly reflected in the SAR, where he was unable to identify any impact of his offending on the victim. The Crown further submits that the offender shows limited remorse.
4. I note the comment of Dr McNamara that the offender is of limited intelligence. It may be that the insight and remorse that one would expect and hope from a person of above average intelligence is not present in this case because of a difficulty the offender finds in expressing himself. I do not know. Notwithstanding that comment, the evidence before me does not establish that the offender has good prospects of rehabilitation based on insight and remorse. However, I find that he has some limited and evolving insight, and I do not find that he has no prospects of rehabilitation. It is hoped that with further counselling and assessment, the offender eventually rehabilitates.

Prior Criminal History

1. The offender has no criminal history for all intents and purposes. The Crown did not submit that s21A(5A) of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act) applies in the present case, in the sense that the offender's good character assisted him in the commission of the offences. For the purposes of this sentence I accept that the offender is entitled to some limited leniency because of his lack of prior criminal history.

Assistance to Authorities

1. Mr Lo Schiavo submitted that the sentence should be discounted as the offender has provided assistance to law enforcement authorities by cooperating and making admissions at his first interview with police. I do not consider this submission to have any merit, in particular because the offender did not make full admissions in his interview and because he is being given a discount for his plea of guilty.

Offending not part of a planned or organised criminal activity

1. Mr Lo Schiavo submitted that the conduct was not part of any planned or organised criminal activity and should be taken into consideration. While sequence 3 and sequence 5 may be viewed as opportunistic, the same cannot be said for sequence 1 when the offender took AB out on his boat some distance from the shore before assaulting her.

Totality

1. A court sentencing an offender for more than one offence must determine the appropriate sentence for each individual offence and then consider questions of accumulation or concurrence bearing in mind the principle of totality. The effect of the totality principle is to require me, having assessed all individual sentences, to stand back and consider whether the overall sentence to be imposed is just and appropriate and reflects the overall criminality of the offending. [1]
2. This in turn requires consideration to be given to whether the sentences to be imposed for each offence should be concurrent or cumulative.
3. Of the three offences, sequence 3 and sequence 1 were committed in close proximity to one another (over the same holiday period), and the Crown concedes that they were part of an ongoing course of conduct and that a degree of concurrency would be appropriate. I note that a sentence must not be concurrent simply 'because it may be seen as part of the one course of criminal conduct'. [2] Sequence 5 took place approximately five months later.
4. I have also had regard to the principle of proportionality.

Threshold

1. The Crown submits the section 5 threshold of the Sentencing Act is crossed for the following reasons: 1. The age difference between the victim and the offender; 2. The relationship of trust between the victim and the offender; 3. The multiplicity of criminal acts (touching of various areas of the body, multiple acts of indecency involved in each charge); 4. The intrusion under the victim's clothing and flesh-to-flesh contact; 5. The touching of the genitalia of the victim, inside her underwear; and 6. The grooming and predatory behaviour in the lead up to the offending.
2. The Crown submits that no penalty other than full-time imprisonment is appropriate.
3. Mr Lo Schiavo submitted that a Community Corrections Order would be appropriate given the offender had independently sought out rehabilitation in the form of a psychologist and has good prospects of rehabilitation.
4. Having carefully considered all the possible alternatives, I am satisfied that the section 5 threshold has been crossed. Due to the seriousness of the offending, I find that no penalty other than imprisonment is appropriate. It is common ground that an Intensive Correction Order is not available in the circumstances.

Standard Non Parole Period and Special Circumstances

1. Given the terms of s54B(3) of the Sentencing Act (NSW), I indicate that my reasons for deviating from the standard non-parole period (which is imprisonment for 8 years) are the special circumstances that I find, that is that this will be the offender's first time in custody and that he will require constant supervision, counselling and rehabilitation upon his release. I have deviated to a ratio of approximately 63% because of special circumstances.

Sentence

1. I have taken into account the various purposes of sentencing under s3A of the Sentencing Act. They include ensuring an offender is punished for his or her conduct, deterring crime, protecting the community, promoting an offender's rehabilitation, making an offender accountable for his or her actions, denouncing an offender's conduct and recognising the harm done to victims of an offence in the community. As always, the facts and circumstances of the present offence and this offender highlight how the various purposes of sentencing pull in competing directions - especially given in my opinion the offender's need for counselling and ongoing rehabilitation.
2. As the High Court said of s3A in Muldrock v The Queen (2011) 244 CLR 120 at [20]: The purposes there stated (in s3A) are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law (Veen v The Queen (No 2) at [476-477]). There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen (No 2) [at 476] in applying them.
3. The instinctive process of sentencing requires consideration of the relevant facts and circumstances as they are known to the court, including the facts surrounding the commission of each offence, matters affecting relative seriousness, the offender's subjective circumstances and other aspects which bear upon the question of sentence, including the guideposts of the maximum penalty and the standard non-parole period and the factors referred to in s21A of the Sentencing Act. The sentencing court is required to identify the factors relevant to the sentencing discretion and then to make a value judgment as to the appropriate sentence in all the circumstances (Markarian v The Queen [2005] HCA 25).
4. In determining an appropriate sentence I have kept in mind the two legislative guideposts: the maximum penalty for each offence of 10 years imprisonment and the statutory non-parole period of eight years.
5. I intend to proceed to sentence the offender by way of an aggregate sentence pursuant to s53A of the Sentencing Act. I have been mindful to ensure that the aggregation of the sentences reflects an appropriate measure of the total criminality involved.
6. As I am satisfied that no alternative other than a sentence of imprisonment is appropriate, the next step is to determine the aggregate sentence in the quantitative sense. Having considered all of the matters I have referred to in this sentence judgment, after a discount of 12.5 %, I impose an aggregate sentence of imprisonment for 3 years 2 months.
7. As required by s53A(2)(b) of the Sentencing Act, the indicative sentences I would have imposed are as follows: 1. For the Sequence 3 offence (Count 4), I would have imposed a sentence of 3 years, less a discount of 12.5% which (rounding down) is approximately 2 years 7 months with a non-parole period of 1 year 7 months. 2. For the Sequence 1 offence (Count 5), I would have imposed a sentence of 3 years, less a discount of 12.5% which (rounding down) is approximately 2 years 7 months with a non-parole period of 1 year 7 months. 3. For the Sequence 5 offence (Count 6), I would have imposed a sentence of 2 years 6 months, less a discount of 12.5% which (rounding down) is approximately 2 years 2 months with a non-parole period of 1 year three months.

Orders

1. Mr Grimmer, please stand.
2. You are convicted of the offences of: 1. Indecent assault person under 16 years of age, contrary to s 61M(2) of the Crimes Act 1900; 2. Indecent assault person under 16 years of age, contrary to s 61M(2) of the Crimes Act 1900; and 3. Indecent assault person under 16 years of age, contrary to s 61M(2) of the Crimes Act 1900.
3. You are sentenced to an aggregate term of imprisonment for 3 years, 2 months. Your sentence will commence today, 27 March 2020.
4. I impose a non-parole period of 2 years, which will expire on 26 March 2022.
5. Your head sentence will expire on 26 May 2023.
6. Mr Grimmer, do you understand the orders I have made?

Endnotes

1. Mill v The Queen (1988) 166 CLR 59 at [63].
2. R v Jarrold [2010] NSWCCA 69 at [56]. 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: 30 March 2020