R v HI [2015] ACTSC 373

Crimes Act 1900 (ACT) ss 92L, 92K

Crimes (Sentencing) Act 2005 (ACT) s 33

Fisher v The Queen (1989) 40 A Crim R 442

R v BJW [2000] NSWCCA 60; (2000) 112 A Crim R 1

R v Tully (No 3) [2014] ACTSC 275

Legal Aid ACT (Offender)

1. HI, you appear before me today for sentence with respect to one count of incest, contrary to s 92L (2) of the Crimes Act 1900; three counts of committing an act of indecency with a young person under the age of 10 years, contrary to s 92K (1) of the Crimes Act 1900; and seven counts of committing an act of indecency with a young person between the ages of 10 and 16 years.

2. You were initially charged with 18 counts of acts of indecency with a young person and one count of incest. At the commencement of your trial by jury in this Court on 7 September this year, you were arraigned on all 19 charges and entered pleas of not guilty to each charge.

3. On 10 September, the third day of your trial, I directed that not guilty verdicts be entered with respect to two counts of committing acts of indecency with a young person, as the Crown conceded there was not sufficient evidence to support those charges.

4. On 12 September this year, the jury returned verdicts of guilty with respect to 10 counts of committing an act of indecency on a young person and one count of incest and returned verdicts of not guilty with respect to the remaining six counts of acts of indecency.

5. The offences were committed between 1988 and 1991 on your stepdaughter, who I will refer to as K, and K's cousin, who I will refer to as L. Counsel appearing on your behalf at the sentence hearing accepted the facts as they were set out in the Crown's written submissions. I will briefly summarise those facts. For convenience, I will refer to each charge using the count number as set out in the indictment on which you were tried.

6. In about 1978, you commenced a relationship with K's mother who, at that time, was pregnant with K. You later married. Throughout her childhood, K believed you to be her biological father. K and L spent a lot of time together with the girls regularly staying at each other's houses.

7. On a night between 11 July 1988 and 30 January 1989, L, who was then nine years old, was staying at your house for a sleepover with K. You were at home but K's mother was at work. The girls were dressing up and having a fashion parade and dancing in the lounge room with music on. You were sitting on the couch and watching the girls. You told them to take their clothes off. This constitutes count 2 on the indictment.

8. The girls went back into K's bedroom and got dressed into different clothes before going back into the lounge room and dancing. At some point, K became upset and went into her bedroom. At that time, L was wearing a nightie. She sat on the couch next to you for comfort and you put your arm around her while she was crying. At some point you held your erect penis and rubbed it up and down L's arm. This constitutes count 3 on the indictment. A short time later, K walked back into the lounge room and you put your penis away. K and L went into the bedroom. The following day L told her mother that she had seen you naked and her mother stopped L from returning to your house.

9. On the same night or on an earlier occasion, sometime between 9 April 1986 and 31 January 1989, when L was staying at your house, you ran a bubble bath. You set up a tripod camera facing the bath and then got into the bath. You encouraged K and L, who was at that time nine years old at the most, to take photos of you in the bath. You told L to take a photo of you. As L went to take the photo you pushed the bubbles away from your penis so that it was visible. K told you to cover yourself but you said, "No, it's all right". K then put her hands in the bath and tried to cover your penis with bubbles, however, you again pushed the bubbles away and exposed your penis. You said to L that it was okay to take a photo, which she did. This constitutes count 6 on the indictment.

10. On another occasion between 1 December 1990 and 28 February 1991, you and K, who was then 12 years old, were at home alone. You told K to go into your bedroom and get into bed. You then pulled out a big plastic bag of lingerie and told K to put some lingerie on. K changed into various pieces of lingerie while you took photos of her in different sexualised positions including lying on her back with her legs in a V-shape. You took close up photos of her genital area and her breasts with her arms trying to push her breasts together. K felt horrible and wanted her mother to come home. This constitutes count 7 on the indictment.

11. Between 1 January 1990 and 28 February 1991, K, who was then 11 or 12 years old, had moved into the spare bedroom of the house. You walked into the spare bedroom where K was in bed and told her to put her hands between her legs and rub herself until it felt good. You walked away before coming back a few minutes later and asking if she had made herself feel good yet. You told her to let you know when she had finished. On the third time you walked into her room, she told you that she had finished and you said, "That's good". This constitutes count 8 on the indictment.

12. On a night between 1 January 1991 and 31 December 1991, you and K, who was then between 12 or 13 years old, were home alone. K got into her bed to go to sleep. A short time later, you went into your bedroom, laid on your bed and started to masturbate. You called K into your room and asked her to stroke you. You were stroking your penis and showed K how to do it. K sat on the bed and masturbated you for a couple of minutes. She recalls that her arm got tired. You stroked K's head and made moaning noises. This constitutes count 13 on the indictment.

13. At some point, you asked K to use her mouth. K put her mouth on your penis while you pushed her head up and down. This happened for one or two minutes until you ejaculated onto your stomach. This constitutes the offence of incest, which is count 14 on the indictment.

14. On another occasion during the same period, K was again in your bedroom masturbating you. At some point, you told her to roll over and you laid on top of her and rubbed your penis against her genitalia. K was wearing her night shirt and no underwear. K felt like it was stretching her skin. You tried to push your penis into her but it hurt and she said, "Don't". You kept rubbing your penis against her and asked her if she enjoyed it. K tried to smother her head into the side of a pillow. This constitutes count 15 on the indictment.

15. On occasions between 11 July 1989 and 31 December 1990, K, who was then 11 or 12 years old, went with you to the ANU photography studio where you were working. On a week day during the school holidays, you and K were in the dark room and you made her masturbate you. This constitutes count 17 on the indictment.

16. A few weeks later, you and K again went to the photography studio. You took photos of her modelling jewellery, including earrings made from chicken feet. Afterwards, you told K to take her top off and hold her arms in tight, to push her breasts together while you took photos of her in different positions. This constitutes count 18 on the indictment.

17. During the summer between 1 December 1989 and 28 February 1991, K's grandparents visited you from New Zealand. K was 11 or 12 years old at the time. K's mother, her grandparents and two of her cousins went to Gibraltar Falls for lunch. At some point, you told the group that you wanted to take photos at the base of the waterfall and invited K to go with you. When you got to the Falls, you took some photos and then suggested to K that you go swimming. While you were swimming you made K masturbate you. This constitutes count 19 on the indictment.

18. I take into account a Pre Sentence Report dated 23 October this year. You reported that you were born in England and described an unremarkable upbringing. You immigrated to New Zealand when you were a young man in search of employment opportunities. It was in New Zealand that you met your first wife in 1973, with whom you had one child before divorcing in 1976. You moved to Australia a few years later, where you met your second wife while she was pregnant with K, her first child and the victim of some of these offences. You subsequently had one other child together. You divorced in 1993 as a result of these offences.

19. You met your third wife in 1996. Your wife has four children, now adults, to a previous union. You assisted in raising these children and most of them regard you as their father. You described your relationship with your wife as supportive and loving. Your wife remains supportive of you despite the stressors of these proceedings.

20. Overall, you have had two biological children and five stepchildren. You told the author of the Report that you have positive relationships with some of your children but you do not have any contact with the two children to your second marriage, one of whom is the victim of the current offence.

21. You are tertiary educated and hold a Bachelor of Science (Computer Network Management) and a Master of Science (International Business Management). You reported consistent employment in the information technology field for the last 14 years, in both Australia and in the United Kingdom. You advised that you were made redundant in February 2015 and you have not worked since that time. You are currently on Newstart allowance from Centrelink.

22. You told the author of the Report that you are currently being treated for an unidentified medical condition and that you are experiencing a heightened level of anxiety due to these proceedings. Otherwise, you do not suffer from any mental health conditions.

23. You claim that you have been wrongly convicted of these offences. You maintain that you are not guilty of all charges and deny inflicting any sexual, emotional or physical harm upon your victims.

24. The author of the Report considers that you have strong familial support and that you have led a pro-social life characterised by employment and a series of long-term relationships. You have had no prior contact with the criminal justice system. The author of the Report assessed you as being at low to medium risk of general reoffending and a low risk of sexual reoffending.

25. A Victim Impact Statement written by K and dated 30 October 2015 was tendered at your sentence hearing. It describes a significant and lasting effect resulting from these offences. She states that, as a result of your actions, she gave up her childhood dreams of having a good job, falling in love and having a family, and that she has instead lived in a world of pain and confusion. Much of her confusion stems from the fact that she believed that you were her biological father, as you brought her up for 15 years under this pretence, and that she has loved you as a father. She describes self-harming and taking drugs in an attempt to make the pain go away. She mentions attempting to take her own life when she was still a child.

26. K described leaving home at the age of 15, having unstable accommodation and, at times, living on the streets. She states that she did not finish high school, attend her graduation or have a date for her school formal. She still hates the end of the school year as it reminds her of what she missed out on as a result of what you did to her.

27. K believed herself to be "tainted and damaged goods". She describes fear, insecurities and problems with trusting others. She was in physically and mentally abusive relationships for many years. She describes living with "filthy memories" and the guilt of not having spoken out earlier. She found participating in the current proceedings traumatic, as she had to relive the past. She states that, as a result of the abuse, she will never have a normal life and the memories will never go away.

28. Two character references were tendered on your behalf. The first is written by your nephew and is dated 27 October this year. He writes that he was taken aback when he heard of the charges against you and that he considers the offences to be extremely out of character. He has fond memories of visiting you as a child and describes you as a hard worker and family orientated person.

29. I also take into account a character reference written by your sister dated 28 October this year. At the time of writing the reference, you had been living with your sister for approximately six weeks whilst on bail since the conclusion of your trial. She describes a close relationship with you and says that you offered her and her two sons support when her marriage broke down. She describes you as a caring, loving and protective person, a hard worker and a very much loved member of the family. She writes that she and your parents were very surprised to learn of the charges against you, describing them as totally out of character and inconsistent with your professional and personal reputation.

30. At all relevant times, the maximum penalty for the offence of incest with a person between the age of 10 and 16 years was 15 years' imprisonment. The maximum penalty for committing an act of indecency with a young person under the age of 10 years was 12 years' imprisonment. The maximum penalty for committing an act of indecency with a young person between the age of 10 and 16 years was 10 years' imprisonment.

31. It is clear that the community and the legislature view sexual offending against children as very serious. In written submissions, the Crown referred me to the case of R v TW (2011) ACTLR 18, where Refshauge J said at [21], adopting the reasons of Maxwell J in Fisher v The Queen (1989) 40 A Crim R 442 at 446:

... the community looks to the courts to deal with persons convicted of serious sexual assaults, or abuses upon young children, in such a way as to provide some measure of protection for young persons, and some measure of deterrence to those persons who contemplate similar activities.

32. In assessing the objective seriousness of the offences, I take into account s 33 (1) of the Crimes (Sentencing) Act 2005 (ACT):

(a) Section 33 (1) (a) requires the court to take into account the nature and circumstances of the offence. I take into account that you deliberately and opportunistically took advantage of both your stepdaughter and your niece. The offences you committed against your niece are particularly abhorrent as they occurred when she was only nine years old. The offences against your stepdaughter often occurred in her own home, a place where she was entitled to feel safe. You took soft pornographic style photos of her, encouraged her to masturbate herself and to masturbate you. You forced her to perform oral sex on you.

(b) Section 33 (1) (c) requires me to consider whether the offence forms part of a course of conduct. I take into account the fact that your offending against your stepdaughter occurred repeatedly over a period of at least three years.

(c) In relation to s 33 (1) (d), I take into account the fact that both victims were related to you and the fact that they were vulnerable children aged between 9 and 13 years when you abused them. I note the comments of Sheller AJ the case of R v BJW [2000] NSWCCA 60; (2000) 112 A Crim R 1 at [21]:

... a child aged 13 or younger is virtually helpless in the family unit when sexually abused by a step-parent. All too often the child is afraid to inform upon the step-parent.

...

The younger the victim the more serious is the criminality.

(d) Section 33 (1) (f) provides that I must consider the impact of the offence on your victims and their families. It is clear from the Victim Impact Statement, to which I have already referred, that the impact upon your stepdaughter, K, has been severe and long lasting.

(e) In relation to s 33 (1) (u), it is clear that you were in a position of trust and authority when the offences were committed. K believed you to be her father and you were L's uncle. Both of your victims should have been able to trust you. You grossly breached that trust by sexually abusing both young victims.

(f) In relation to s 33 (1) (v), I accept that the only reason you committed these offences was for your own sexual gratification.

33. In written submissions, the Crown has offered descriptions of the objective seriousness of the offences. At the sentencing hearing, counsel appearing on your behalf accepted those descriptions, as I do. They are as follows:

(a) count 2, which was constituted by you making L dance naked while you watched, falls within the low range of objective seriousness;

(b) count 3, which involves you rubbing your penis against L's arm, falls at the mid range;

(c) count 6, which involves you making L take photos of you with your penis exposed in the bath, falls within the low range;

(d) count 7, which involves you taking photographs of K in lingerie, falls within the mid range;

(e) count 8, where you repeatedly told K to masturbate herself, falls within the mid range;

(f) count 13, where you made K masturbate you, falls within the mid range;

(g) count 14, which is the count of incest constituted by forcing K to perform oral sex on you, falls within the mid range for the offence of incest;

(h) count 15, which involves you rubbing your penis against K's genitalia is close to the worst case for an act of indecency with a young person;

(i) count 17, which involves you making K masturbate you in the darkroom at the photography studio, falls within the mid range;

(j) count 18, where you took photos of K naked, falls within the mid range; and

(k) count 19, which involves you making K masturbate you at Gibraltar Falls, comes within the mid range of objective seriousness.

34. I note that you maintained your pleas of not guilty which, of course, was your right, and that the sentences which I must impose are not to be increased by reason of you maintaining pleas of not guilty, but your pleas disentitle you to any discount that might have been provided to you had you entered pleas of guilty. You have maintained your innocence and, as such, you have not demonstrated any remorse.

35. I note that you have no criminal history and, as such, you are to be considered a person of prior good character. However, this is to be given lesser weight in relation to sexual offences against children, as it was your good character that provided you with the opportunity to commit these offences.

36. There has been a significant delay in bringing these proceedings before the court. This delay is partly as a result of the complainant's delay in reporting the offences to the police, which she did in 1999. In 2000, you participated in a taped record of interview with police and denied the allegations. In July 2000, while the police were still conducting investigations, you moved to the United Kingdom and did not return to Australia until 2012. I note that there is no suggestion that you moved to the United Kingdom in order to try to avoid prosecution with respect to these matters.

37. Police became aware that you were in Australia in 2014 and proceeded to charge you with these offences. The Crown was unable to explain to me whether there were any efforts made to extradite you while you were in the United Kingdom and, if not, why that was the case. There has, therefore, been a delay of many years between the offences being committed and you being sentenced. I accept that you would have suffered some anxiety during this period as to whether you would be charged with these offences, although it is likely that, as the years progressed, that anxiety would have diminished. It has not been suggested that you have committed any further offences since those for which you are now before the Court.

38. The evidence establishes that, since that time, you have entered into a new relationship and you have a number of children from previous relationships. You have been in constant employment until February this year. The evidence establishes that you have largely rehabilitated yourself over the last 24 years, so that personal deterrence is not a significant sentencing factor with respect to the present offences.

39. In arriving at appropriate sentences for these offences I take into account the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT) which are:

(a) to ensure that the offender is adequately punished for the offence in a way that is just and appropriate;

(b) to prevent crime by deterring the offender and other people from committing the same or similar offences;

(c) to protect the community from the offender;

(d) to promote the rehabilitation of the offender;

(e) to make the offender accountable for his or her actions;

(f) to denounce the conduct of the offender; and

(g) to recognise the harm done to the victim of the crime and the community.

40. I said earlier that personal deterrence is not a significant sentencing factor because you have effectively rehabilitated yourself over the last 24 years. The most important sentencing considerations for these offences are general deterrence; that is, deterring others from committing this type of offence, denunciation and punishment. In my opinion, nothing less than immediate terms of imprisonment can achieve these sentencing objectives.

41. In determining the length of each term of imprisonment, with respect to the individual offences, and the overall length of imprisonment, I take into account that you have not previously served a term of imprisonment and that you have been effectively rehabilitated.

42. These are historic offences and you are entitled to be sentenced in accordance with the sentencing practices at the time the offences occurred. The Crown has attempted to put before me evidence of sentences imposed in other cases where offending occurred at about the same time as the present offences, but it is sufficient to note that the material is insufficient to demonstrate a sentencing practice with respect to this type of offence at the time that these offences occurred.

43. As I said in R v Tully (No 3) [2014] ACTSC 275, which was a case in which offending occurred between 1992 and 2002:

In the absence of such evidence, I am not prepared to conclude that the sentencing practices or standards of this Court with respect to child sexual offending was significantly more lenient between 1992 and 2002 than it is today.

44. With respect to count 2, I record a conviction and you are sentenced to six months' imprisonment, commencing today, 19 November 2015 and expiring on 18 May 2016.

45. With respect to count 3, I record a conviction and you are sentenced to 18 months' imprisonment commencing on 19 January 2016 and expiring on 18 July 2017.

46. With respect to count 6, I record a conviction and you are sentenced to six months' imprisonment commencing on 19 April 2017 and expiring on 18 October 2017.

47. With respect to count 7, I record a conviction and you are sentenced to nine months' imprisonment commencing on 19 July 2017 and expiring on 18 April 2018.

48. With respect to count 8, I record a conviction and you are sentenced to 15 months' imprisonment commencing on 19 September 2017 and expiring on 18 December 2018.

49. With respect to count 13, I record a conviction and you are sentenced to 18 months' imprisonment commencing on 19 December 2017 and expiring on 18 June 2019.

50. With respect to count 14, I record a conviction and you are sentenced to two years' and six months' imprisonment commencing on 19 December 2017 and expiring on 18 June 2020.

51. With respect to count 15, I record a conviction and you are sentenced to two years' imprisonment commencing on 19 December 2018 and expiring on 18 December 2020.

52. With respect to count 17, I record a conviction and you are sentenced to 18 months' imprisonment commencing on 19 December 2019 and expiring on 18 June 2021.

53. With respect to count 18, I record a conviction and you are sentenced to eight months' imprisonment commencing on 19 February 2021 and expiring on 18 October 2021.

54. With respect to count 19, I record a conviction and you are sentenced to 18 months' imprisonment commencing on 19 February 2021 and expiring on 18 August 2022.

55. The effect of the sentences that I have imposed means that you are liable to serve an aggregate term of imprisonment of six years and nine months commencing today, 19 November 2015, and expiring on 18 August 2022. I set a much shorter than usual non-parole period to reflect your rehabilitation, your lack of criminal history and the staleness of these offences. I set a non-parole period of two years and three months commencing today, 19 November 2015 and expiring on 18 February 2018.

I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.