R v JP

Count one-section 66A(1)

1. This offence occurred soon after the children were returned to their home. The offender saw Jane on the lounge watching television in his own home. Jane had a blanket over her. The offender went to the lounge, removed the blanket, said something and then licked Jane's vagina with his tongue. The event lasted for about three seconds. There was direct contact between the tongue and the vagina. Jane was aged eight or nine.

Count two-section 61M (1)

1. The agreed facts refer to this event occurring between 1 July 2014 and 29 May 2015 whereas the indictment gives the date range as 28 July 2014 to 31 May 2015. Unlike count one there is no time reference as to any other event so it is not known whether this offending occurred at approximately the same time as count one or possibly as much as 10 months later (though I note the psychology report relied on by the offender suggests the two offences occurred within weeks of each other). In this count Sally was lying on her bed reading. The offender while standing up used his hand to touch Sally on her breast, described by the agreed facts as a "brush". Sally said "don't do that" and the offender left. The matter took no more than a matter of seconds and based on the description in the agreed facts was reasonably characterised by the offender's counsel as momentary.

Other facts

1. There is no suggestion that any force was used in either offence nor is there any suggestion of any threat of the kind often seen where an offender tells a victim not to tell anybody or there will be trouble or some such other consequence.
2. There is significant detail given in the agreed facts to the aftermath of this offending. Some time between 1 July 2014 on 29 May 2015 Sally told her mother what the offender had done and was crying when she told her mother this. The mother then asked Jane if anything had happened to her and she told her that the offender had pulled down her pants and touched her on the private parts and had licked her on her private parts. The mother then told the father. The parents then went to the offender's house. Contact between the victims and the offender was then limited and on the evidence of the father given in this sentencing hearing (which I accept) did not occur again. The parents of the victims did not report the matter to the police. On the evidence of the father which I accept in all respects the parents did not wish to risk their children being removed by the authorities for a second time and felt it was in the best interests of the children for the matter to be dealt with within the family rather than by reporting it to the police.
3. The father in fact told his sister of the complaints of the victims and ultimately it was that sister who in 2017 made an anonymous complaint to crime stoppers about the allegations. On the first interview in December 2017 Jane did not make any disclosure and nothing was done. Some months later in April 2018 following a risk of harm report the police attended the victims' school but no interviews were conducted. The police attended the father's residence but he refused to open the door or to allow his children to be interviewed. At that same date police attended the mother's work premises and she denied any knowledge of the allegations.
4. The relevance of these matters goes to issues such as the insight of the offender into his offending and the offenders remorse. The Crown submitted that there was nothing preventing the offender attending on the police and making full confession. The case for the offender is that he in fact wanted to do that. The evidence of the father was that he had numerous conversations with the offender about the offender wanting to come forth to the police and the father said to him that they could not and that he would have to live with it. The father asked the offender not to go to the police for the sake of the children.
5. The subjective matters to which this evidence goes will be dealt with below. Whilst referring to the evidence of the father, I note he also confirmed his knowledge of the offender having served in the Navy for nine years, having served in Vietnam and having ongoing mental health issues as a result. The offender was engaged in underwater bomb disposal. His health was such that in 2015 subsequent to the offending he was an inpatient at the Currumbin hospital. When asked why nothing was said to the doctors about the offending the evidence of the father was that if he could not go to the police then he could not tell the doctors. The father's evidence was that the offender recognised his wrongdoing by wanting to go to the police. As noted already I accept the evidence of the father. A number of assertions were put to him in cross examination which he rejected. What the Crown was legitimately exploring was whether the circumstances here are of a family seeking to protect a family member from the consequences of their illegal behaviour, as opposed to a family decision to act in the best interests of the children by not reporting what had occurred.
6. The sister took part in a pretext call in which certain admissions were made. This was in April 2018. Ultimately in March 2019 the offender was arrested. He made certain comments which the Crown does not accept the effect of which was that he had seen Jane manhandling her sister Georgie (a pseudonym) by which he meant playing with her and touching her inappropriately. When later he saw her with a blanket over herself he was suspicious and pulled the blanket down and saw her playing with herself so he decided he says "to give her a bit of her own back". In other words he maintains he was doing to Jane what Jane had done to her sister.
7. The offender consented to an interview with the police, in which, in relation to count 2 he gave a version consistent with the above agreed facts. It is not clear on the facts as to whether Sally was clothed at the time for it is obviously distinctly possible to brush Sally's breast on her skin whilst also wearing clothes. The view I take is that if the child had been naked then that would have been something clearly stated in the facts. The victims declined to make any statements in the matter in March 2019. At that time Sally was an adult and Jane was 13.

Objective Seriousness

1. It is clear on the facts that count 2, a momentary brush of a breast is at the lower end of objective seriousness. The touching was momentary. The offender ceased immediately upon being asked and in fact on these facts would have ceased even before that was said. On any view the objective seriousness of this offence is low.
2. In terms of the more serious offence I have noted the maximum penalty and the standard non-parole period. Those matters are to be guideposts. These periods clearly reflect the opprobrium with which this offence is viewed by the community. There is no place in the community for such offending and the seriousness with which they are viewed is reflected by the legislative sentences.
3. The scepticism of the Crown as to why this offence occurred is well understandable. By this I am referring to the statement of the offender that he wanted to let Jane know how her sister would feel due to the inappropriate conduct he says he had witnessed. Adverse to the offender such an assertion contains within it an admission of the deliberateness and purposefulness of which the offending was done. This is not a case where the offender found himself in a position where he was holding the child or the child was on his lap and he opportunistically acted in the offending way. Rather he has gone over to the child on the lounge, taken off the blanket covering her and committed the offence. That said I do not consider that there was any degree of planning or forethought about it apart from the immediate moments prior to the offending. Nor was the offence repeated and nor was there any violence or any following threat. The offence was committed in a matter of moments. The allegation is of licking the vagina. It is of course well recognised that there is no hierarchy of forms of sexual assault and this current conduct is by legislative definition an act of sexual intercourse. The facts and circumstances of this particular event lead me to assess it as being on a lower level of objective seriousness and I will adopt that argued for by both the Crown and the offender and assess it at the low level of the mid range.

Section 21A

1. In respect of count 1 (concerning Jane) it was accepted by both the offender and the Crown that an aggravating matter was the harm suffered by Jane and also in respect of count 1 that the offender abused a position of trust; sections 21A(2)(g) and (k) of the Crimes (Sentencing Procedure) Act ("the Act"). The Crown also argued that subsection (l) was engaged as Jane was vulnerable, not on the basis of age or the offender's position of trust, but because Jane had only shortly before the period of offending been returned to her home after having been removed therefrom by the relevant care authority, for matters unrelated to the offender, but nevertheless in relation to inappropriate sexual behaviour. There was no suggestion the offender was unaware of this. That background potentially adds to the harm Jane may suffer due to this conduct, however to accept a matter adverse to the offender I need be satisfied of it beyond a reasonable doubt. I am not so satisfied this background renders Jane more vulnerable to the offending occurring, as in my view that sub section requires.
2. As to mitigating factors the offender cooperated with the authorities. The criticism made of him by the Crown is that this occurred almost 4 years after the offending, and about 4 years after the children complained. How that came to pass is set out in the above facts. On this issue I find the offender was in a difficult position, as was the father and mother. The mother and father asked the offender to say nothing as part of their effort to keep their family together. The Crown approach is critical of the father and mother in taking no action, but recognise the offender is not to be punished for conduct of the father. In my view, whilst in general terms a potential basis for criticising the father and mother can be identified, without the benefit of a full hearing and a proper understanding of all the facts and the circumstances in which they found themselves, they should not be the subject of adverse findings. The father was an impressive witness, and on the short evidence that he gave was clearly concerned for the welfare of his children and his family. On reading the agreed facts it is easy to form a view that the father's sister was outside of the family and acted against the family's wishes in reporting the matter. This would appear likely to be so. Yet when you add the father's evidence, he spoke openly to his sister about this matter and clearly bore no animus towards her. Ultimately, the fact is there was no attempt by the offender to deny his wrongdoing when confronted by the police, and on the basis of the evidence which I have accepted from the father, the offender had been wanting to make such admissions since 2015.
3. The offender submitted he was unaware of the consequences of his actions for his victims. Subject to any support for that assertion being found in the psychologist report referred to below, I would reject that submission. Either the offender was aware, or if not, it shows such a lack of insight as to outweigh any benefit of such a mitigating factor.
4. The other matters of mitigation the offender relies on are dealt with in considering the offender's subjective case.

The offender's subjective case

1. The offender relies on the report of Patrick Sheehan, psychologist. That report is based on the history given by the offender who did not give evidence and so the report needs to be considered in that light. A family history was given by the offender which can be summarised as follows: 1. The offender is 73 and was born in Sydney but raised in regional areas. He has three siblings. There was a maternal history of mental illness with his grandfather suiciding. Whilst he was close to his father there were extended periods where he was left with extended family members. The offender joined the Australian Navy at about age 16. For a time he supported his mother but difficulties caused he says by her caused that to end and there was some family conflict and contact with his siblings has been somewhat distant. 2. His high school years were uneventful with no learning problems. In his Navy career he was deployed to Vietnam on three occasions between 1965 in 1969 doing hazardous work of mine clearing. He was commended for this work and was ultimately honourably discharged but with a toll having been taken on his mental health. His later work in a crematorium was also a psychological burden. 3. In his early 50s he was diagnosed as suffering PTSD. Whilst he had developed relationships in the Navy he later felt alienated. 4. The offender has been with his wife almost since they met at age 19, marrying at age 20 with two children. 5. The offender denied any history of sexual interest in children. The psychologist concluded in this regard that there was nothing in the offender's report of his sexual history that could extend any insight into the commission of the current sexual offence matters.
2. The offender places much reliance on the state of his mental health in seeking the appropriate sentence. The medical and psychiatric history recorded by the psychologist included the following: 1. He has a history of hypertension, an enlarged heart for several years, a myocardial infarction in 2002 and a diagnosis of type II diabetes in 2011. Since imprisonment in March 2019 he has lost weight and has had difficulty obtaining his medications. 2. There were no childhood psychiatric disorders. His mental health issues arose in the aftermath of his war experience leading to the belated diagnosis of PTSD referred to above and the prescription of various antidepressant medications. He has seen a psychiatrist Dr Ian Hayes over several years. In addition to PTSD there is a mood disorder. 3. Following the offending the offender was admitted to Currumbin Clinic as a psychiatric admission in April 2015 experiencing suicidal ideation. The offender stated the admission was precipitated by the offending and said "I badly needed to talk about it but I couldn't talk about it". This is in line with the facts recounted above. 4. He is presently displaying prominent symptoms of depression and currently receives some medication. He continues to suffer some intermittent suicidal ideation and it would be fair to say that prison is far from easy for him. 5. The psychologist would not apply a diagnosis of paedophilia disorder. Interestingly he notes that the offending occurred over a period of a few weeks which is not stated in the facts.
3. As to the offending the offender acknowledged his offences. The offender said that he and his wife were caring for his granddaughter which I take to be a reference to Jane and could not seem to extinguish her age inappropriate sexual behaviour. It will be remembered that it was Jane who had been involved with inappropriate sexual behaviour with a sibling which led to the removal of the children in the first place. I hasten to add in making that factual observation that I do not seek to attribute blame to the victim. The offender said in relation to this behaviour "it kept going on. I couldn't handle it. I don't know why I did what I did" and said he was angry at the time of the offences. The psychologist says that these explanations for the offences against both girls do not have a sexual motive and in his view are not entirely convincing. There was no submission adverse to the offender regarding sexual gratification and the offenders assertion noted above in respect of the offence against Jane was to "give her a bit of her own back". The behaviour of course is reprehensible. The statement is consistent with an absence of sexual motivation. Just why he would reach out and brush the breast of the 16-year-old is not similarly capable of explanation. The psychologist ventures that the insight of the offender is partially obscured by shame.
4. Nevertheless a full understanding of the consequences of his actions was shown. Again consistent with the above facts he said he had initially sought to disclose his offences but was discouraged by the family from doing so due to fear that the children would be taken into care. The offender said undoubtedly what he did was wrong and would be devastating for the children and that he beat himself up about it every day. He said it probably wrecked her whole upbringing which I take to be a reference to Jane. He accepts responsibility for that.
5. The psychologist came to the following conclusions: 1. the offender's history does not indicate antisocial orientation; 2. his adjustment in the community has been pro social; 3. there is no known history of problematic sexual behaviour; 4. the most notable feature of his history is his PTSD following his war trauma and relapsing major depressive disorder throughout adulthood; 5. he acknowledges his offences and the harm so caused however his understanding of his behaviour remains underdeveloped at this stage; 6. the offender is in the very low risk category of sexual recidivism on known actuarial factors. Dynamic risk factors are less clear; 7. he would not be suitable for custody based intensive treatment due to his low risk rating. There may be suitable low-moderate intensity programs which he was amenable to participating in though it is unlikely it would be offered; 8. he presents as clinically depressed and could not meaningfully participate in treatment until that improved; 9. incarceration would be subjectively more onerous for the him than the average inmate given his mental health and the nature of his offences.
6. The offender also tendered as part of Exhibit 1 medical notes from the Casino Medical Centre which were supportive of the medical history given to the psychologist. Additionally there was correspondence passing between Dr Hayes the psychiatrist and the Currumbin Clinic and the Casino Medical Centre again supportive of the history given in the psychologist report. The medical discharge summary from the Currumbin Clinic was also tendered which reflected a treatment diagnosis of major depressive disorder, post-traumatic stress disorder and relationship issues. That discharge summary was dated 13 May 2015. The nondisclosure of the offending at that time has already been noted. Correspondence from the Navy showed the high regard in which the offender is held and that recognition has been made of his service including a commendation from the United States Navy. Lastly there were three testimonials. They speak well of the offender and in effect expressed the view that they consider the offending to be totally out of character. They recognise his depression and his war service and his relationship with his wife.

Submissions and discussion

1. There was no dispute that the offender pleaded guilty at the first available opportunity. This is a matter to which section 25D of the Act applies. As the plea was accepted by the magistrate the discount is 25%.
2. There is also no dispute that the offender has no criminal history and is now presently 73 years of age. Due to the offences in question section 21A(5A) needs to be considered. That section provides that a lack of previous convictions is not to be taken into account as a mitigating factor if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence. This section is plainly aimed at those circumstances where an offender takes advantage of his/her good standing in the community to facilitate the offending whether by gaining access to a victim in isolation or otherwise by gaining a position of authority and therefore opportunity to offend by reason of being of good character. Other circumstances to which this section applies can no doubt arise. In the present case the position of authority is gained by reason of being the grandfather of the victims, not by reason of the grandfather's good character. That is had this offender had a criminal record of some kind the probability is that he would still have been left in charge of the children, thus facilitating his ability to offend, though the position might one would hope be different if it was a criminal history of sex offending against children. The section however is not so specific and I am not satisfied that the offender's good record was a factor that assisted in the offending so that the good record and the good character of the offender will be taken into account in determining sentence. Not only is this offender of good character by reason of not having a criminal history but he has also bravely served his country in wartime and he has suffered since then as a result through the affliction of PTSD. These matters I take into account.
3. I also accept the submission on behalf of the offender that he is unlikely to reoffend. I have set out above the aspects of the psychologist report supporting this view and I accept the report in that regard. A concomitant conclusion to this is that the prospects of rehabilitation are good. I have also accepted the evidence of the father that the offender wished to report the offences but did not do so in deference to the father's own ideas as to how to best protect his family. In addition to that there is the early guilty plea as well as the statements made to the psychologist. The remorse of this offender is clear.
4. It was submitted on behalf of the offender that there appeared to be a causal link between the offender's mental health condition and the offending. I accept that the offender suffers from the mental health conditions identified but I reject the submission that there is a causal link between that and the offending. The mental health condition has been something suffered by the offender for many years and there is no evidence to explain why such a long period of no such offending should be brought to an end with this offending by reason of that condition. Further and more conclusively there is no view of a psychologist that supports this submission nor was I taken to any other of the medical material that supports this submission. The best the evidence is for the offender is that the period of offending was followed by the admission to the Currumbin clinic. The offender was admitted to the Currumbin clinic on 14 April 2015 and discharged 15 days later. The disclosure by the children to their mother occurred between 1 July 2014 and 29 May 2015 (agreed facts paragraph 16). The likelihood is that this disclosure was both made known to the offender and was before 14 April 2015. It would seem likely that the decline in mental health was caused by the disclosure of the offending rather than the offending being caused by the mental health.
5. Mental health, as fairly recognised by the Crown, nevertheless still has a role to play in determining the appropriate sentence. This may be because the offender is, due to the state of his health an inappropriate vehicle for general deterrence; or it may mean that a custodial sentence may weigh more heavily on the person; or it may reduce or eliminate the significance of specific deterrence. On the other hand mental health condition may mean the person is a greater danger to the community.
6. The way I intend to treat the mental health of the offender is to reflect it in a finding of special circumstances due to the difficulty a custodial sentence may pose for the offender given his state of mental health. I am not satisfied that it had any effect in a causal way nor do I consider that it renders the offender an inappropriate vehicle for either general or specific deterrence.
7. There was no dispute but that a finding of special circumstances should be made. In addition to the health of the offender there is his current age, being now 73 years and that this is his first offence and therefore it will be his first time in custody. It was further submitted that the offender is a vulnerable prisoner due to the nature of his offences and that he was of a status known as "limited association". That submission is well founded in a general sense however suffers from the fact that without any evidence of the actual circumstances of the offender within the prison system and as to whether they will remain that way or be changed due to for example a change in location the situation may or may not be onerous. In one extreme limited association means being isolated from the entire rest of the prison population; in other circumstances it means being placed in a separate wing of the system populated only by child sex offenders. Nevertheless I accept that from time to time at least the nature of the offending would render the prisoner vulnerable.
8. In determining the appropriate sentence I have taken into account all of the above matters. It pays to recall the general principles that have been set down in relation to such offences. Sexual offences against children are objectively serious. They are said to cause significant harm to the victims which in a general sense can be accepted and that is accepted by the offender on this occasion. The conduct is psychologically damaging. Children are vulnerable and look to adults for protection. The abuse of the adult child relationship and in this case of the grandfather / granddaughter relationship is a total betrayal of the trust of the child placed in the grandfather offender. These comments are all the more pertinent in relation to the offence affecting Jane and despite the seemingly minimal nature of the offence affecting Sally one would be slow to discount the effect on a 16-year-old girl of been sexually touched by her grandfather albeit fleetingly on the breast.
9. Section 3A of the Act sets out the purposes of sentencing. These include to ensure the offender is adequately punished, to recognise the harm done by the offending, to denounce the behaviour and to protect the community. In determining the appropriate sentence I have had regard to these matters.
10. It was proposed by the offender and seemingly accepted by the Crown that it would be appropriate to proceed by way of an aggregate sentence pursuant to section 53A. I propose to do so. It is necessary to set out the indicative sentences for each offence.
11. Dealing first with the second count under section 61M(1) I have already noted the maximum and standard non-parole period is of seven and five years respectively at the time of the offending. The issue here is that when viewed in isolation I consider it unlikely that the offender would be given a custodial sentence; whilst the section 5 threshold is undoubtedly crossed in relation to the count concerning Jane I do not consider that to be the position here. The most appropriate way in which to deal with this offence in the circumstances of this case seems to me to be to impose a short term of imprisonment but to make it effectively wholly concurrent with the other sentence. In this way the admonishment for the behaviour is recorded and the overall period of incarceration is neither inappropriately lengthened nor shortened. Accordingly the indicative sentence for this count will be one month imprisonment.
12. It is the count concerning Jane that is plainly more serious. Counsel for the offender helpfully handed up some statistics but those statistics have well-recognised limitations. What I have found to be of some assistance is two Court of Criminal Appeal authorities relating to offenders in a similar position of authority as the present offender. The first case is FD v R [2013] NSWCCA 139. In that case the offender was the grandfather of the victims. There were two counts of sexual intercourse with a child under 10 and seven counts of indecent assault and four matters on a form one. In that case there was a significant issue as to whether the offender suffered brain damage and one of the points of the appeal was the established failure of the trial judge to properly allow for that. It was accepted on the appeal that there had been that error (amongst others) but that the sentence imposed was nevertheless appropriate. The effect of the sentence overall was a four-year non-parole period and a four-year balance of term. The second authority was NLR [2011] NSWCCA 246. In that case the offender was a step grandfather. There were two counts involving placing his fingers in the vagina of a child under 10 and an offence of aggravated indecent assault on a second victim aged under 16. A form one matter was taken into account with the second of the sexual intercourse offences. The net effect of the sentences was a head sentence of eight years 10 months and 15 days and a non-parole period of five years.
13. What these two examples demonstrate is the endless combinations of facts that need to be dealt with in sentencing matters leading to results within a fairly broad range. The offending being dealt with in the present case is in my view markedly less than the offending being dealt with in either of the two examples just cited. In my view this is clear from simply the number of offences being dealt with without attempting the most likely fruitless task of a detailed comparison both as to the facts and the subjective circumstances.
14. In my view the appropriate sentence in this case in respect of the first count, after allowing for the 25% discount, is 3 ½ years. In light of the finding of special circumstances there shall be a non-parole period of two years and four months so that the balance of term remaining is 50% of the non-parole period. Further for the reasons already set out the aggregate sentence to be imposed pursuant to s53A is 3 ½ years and pursuant to s44(2A) the non-parole period is two years and 4 months. I note that in accordance with s44(2B) I have set out my reasons above as to why the statutory ratio of the balance of the term to the aggregate sentence of imprisonment is greater than one third.
15. The offender has been in custody since his arrest on 19 March 2019. Accordingly the sentence will commence from that date.

Orders

1. JP, of the two offences on the indictment you are convicted. I have set out the indicative sentences above.
2. In respect of those offences there will be an aggregate sentence of 3 ½ years. The sentence will commence on 19 March 2019 and expire on 18 September 2022.
3. There shall be a non-parole period of two years and 4 months commencing on 19 March 2019 and expiring on 18 July 2021.
4. The earliest date you are eligible for release is 18 July 2021.

Amendments 26 November 2019 - NAME OF THE OFFENDER CHANGED TO INITIALS 29 November 2019 - Wife's name and date of birth removed 29 November 2019 - corrected paragraph numbering 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: 29 November 2019