The offender was committed for sentence from the Wagga Wagga Local Court on 26 February 2021 in respect of five charges of Sexual Intercourse with a Child above the age of 10 years and under the age of 16 years contrary to s 66C(1) of the Crimes Act, 1900 as it then was, and two charges of Aggravated Indecent Assault contrary to s 61M(1) of the Crimes Act, as it then was. The matters relate to seven sequences on H74890574.
The offender adhered to the pleas of guilty at the sentence hearing at the Wagga Wagga District Court on 20 May 2021 and accordingly is entitled to the full 25% discount for the utilitarian value of the pleas of guilty. There is another matter that entitles the offender to a further numerical discount to which I will return later in these remarks.
The offending occurred between June 1992 and January 1993. The maximum penalty for the offences contrary to s 66C(1) of the Crimes Act was 8 years imprisonment and the maximum penalty for the offences contrary to s 61M(1) of the Crimes Act was 7 years imprisonment. There was no standard non-parole periods applicable at the time.
[2]
Facts
The facts are before the court by way of agreed facts. The offending occurred while the offender was in an entirely inappropriate relationship with the victim who was 14 years of age at the time. While the specific offences for which the offender appears for sentence occurred while the victim was 14 the sexual relationship between the victim and the offender continued until the victim was 17. The offender was aged 43 to 45 during this period of time. The offender was born on 28 June 1950, is currently 70 years of age and has been a paraplegic since a motor vehicle accident in 1968.
The victim met the offender in or around 1989 when she was aged approximately 10 or 11 years of age when the offender was performing as a singer at the Cootamundra RSL club where he had met the victim's parents. A strong friendship between the offender and the victim's family developed. The offender later relocated to Tamworth. After moving to Tamworth he would often stay with the victim's family when travelling in the area on his way to or from performances.
The seven charges for which the offender appears for sentence involve three separate episodes of offending with sequences 1, 7 and 2 in that order being the first episode, sequences 3 and 4 the second and sequences 5 and 6 the third episode. I will deal with the seriousness of the matters when dealing with the facts of the three episodes rather than under a separate heading.
Sequences 1, 2 and 7 occurred in the September school holidays in 1992 when the victim was 14. The offender took the victim and a cousin and went to Tamworth. After a few days in Tamworth with the offender's then wife, the cousin returned to Sydney and the offender and the victim travelled to Ballina with one of the offender's co-workers, Kate Daniel. Ms Daniel and the offender were performing in a show at Ballina.
The offender, Ms Daniel and the victim stayed in a motel. After the show Ms Daniel went out with friends leaving the offender and the victim alone in the motel. The offender and the victim watched television from separate beds and during this time the prior sexual history of the victim was discussed.
The offender asked the victim to lay in bed with him and give him a cuddle and the victim obliged. The offender rolled over on to the victim and the victim recalls that it was hot and she found it difficult to breathe. The offender kissed the victim and asked if she was okay. The victim said yes and the offender continued to kiss the victim using his tongue. The offender then started playing with the victim's breasts over her night shirt. He then unbuttoned the night shirt and started rubbing and sucking on her bare breasts. The offender asked her if he could remove her underwear and the victim agreed provided that the offender did not enter her. The offender removed the victim's underwear, spread the victim's legs and moved his torso down between her legs, rubbing his torso back and forth over the victim's vagina. Sequence 1 (Aggravated Indecent Assault) is constituted specifically by the rubbing of the offender's torso back and forth over the victim's vagina.
Sequence 7 (s 66C(1) offence) then occurred with the offender licking the victim's vagina on the outside of the lips. The offender pulled himself up after a short time and the victim kissed him on the chest. They then cuddled and the offender told the victim to return to her bed.
Sequence 2 (Aggravated Indecent Assault) occurred the next morning when the offender asked the victim to join him in the shower. The victim entered the shower with the offender and felt extremely self-conscious and embarrassed. After watching the victim shower for a while the offender started to kiss and cuddle the victim. He told her that she could not tell anyone.
After this whenever the offender visited the victim's family and the opportunity arose he would kiss her. The offender would always remind the victim not to tell anyone.
Going to the seriousness of the matters, the victim was 14 and therefore towards the upper end of the age range contemplated by s 66C(1) and 61M(1). The age disparity is significant, the offender being in his early 40's and the victim being 14. There is a significant breach of trust.
Simpson J (as her Honour then was) said in R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 at [24]:
"It is not possible to create some kind of hierarchy of the seriousness of the various kinds of sexual intercourse contemplated by s 66A and defined by s 61H. It is the facts and circumstances of each case including the nature of the intercourse that makes the proper evaluation of objective seriousness".
In Jolly v R [2013] NSWCCA 76 Bellew J (Hoeben CJ at CL, Slattery J agreeing) said at [72]:
"…The nature of the sexual intercourse which occurs in offending of this nature should not be considered in isolation, and then ranked in some form of hierarchy (see R v King [2009] NSWCCA 117 at [36] per McClellan CJ at CL).
More recently, McCallum J (as Her Honour then was; Gleeson JA, Fullerton J agreeing) in R v BA [2014] NSWCC 148 at [37] said:
"…Penetration during an act of cunnilingus could be an aggravating factor, but I am unable to accept that the absence of penetration during such an act is a factor which supports an assessment that the conduct falls towards the lower end of the range of seriousness. The Act provides no basis for concluding that cunnilingus is to be considered any more or less serious in itself that an act of fellatio…or penetration of the vagina. Each case must be assessed according to its own circumstances. I would accept the Crown's submission that the act of cunnilingus performed by a mature man on a child of six years who is under his authority and within his family involves significant criminality".
The decisions from which I have just cited involved different circumstances and different charges. However the principles, particularly that offending of a sexual nature should not be considered in isolation and ranked in some form of hierarchy, have a broader application.
The Crown submits (MFI 1 on sentence) that sequences 1 and 2 are above mid-range noting the skin on skin contact and the conduct generally. Counsel for the offender submitted that the conduct that occurred was the type of conduct that occurs in the course of a sexual relationship. The breach of trust and the age disparity was conceded. The Crown in the written submissions (MFI 1 on sentence) submits as to the seriousness of each matter. I have taken those submissions into account in arriving at the conclusions that I have as to the seriousness of the offending.
Taking into account the conduct as described in the facts and the factors to which I have referred, I am of the opinion that Sequence 1 is in the upper end of the mid-range and sequence 2 is marginally below mid-range. Sequence 7 is moderately below mid-range.
Sequences 3 and 4 occurred in Tamworth some days apart. In January 1993 when the victim was 14 the victim attended the Tamworth Country Music Festival with the offender, staying the whole ten days of the festival. On the drive from Cootamundra to Tamworth the offender asked the victim to lie across the front seat so that her head was on his chest. The victim complied with the request. The offender unbuttoned his shirt and asked the victim to suck his nipples while he continued to drive and again the victim complied.
The offender then put his left hand under the victim's pants and started rubbing her vagina. He then digitally penetrated the victim's vagina. This caused the victim discomfort and she felt tender for some time afterwards. The victim did not tell the offender to stop fearing that she would be in trouble or that she was doing something wrong if she did. Prior to arriving in Tamworth the offender told the victim to sit back up and to dress herself.
The next day the Victim was still feeling tender. She noticed a large blood clot in the toilet. The offender asked her if she was okay, to which the victim replied that she had a heavy period. The offender asked her to tell him when it was over so they might "get to do some stuff together".
Noting the matters already set out that are relevant to the assessment of all matters such as the age of the victim and the age disparity, the conduct to which sequence 3 relates in slightly below mid-range.
The conduct to which sequence 4 relates occurred at the offender's home the day after the festival concluded. The offender's wife had gone to work and the children were in and out of the house with friends.
The offender called the victim to his bedroom and shut the door. He inquired of her as to whether her period had ended and she said that it had. He then said that they should "fool around" before he returned her to her parents in Cootamundra.
He got out of his wheelchair and positioned himself on the bed. He directed the victim to place the wheelchair against the door and lock the brakes in order that they could not be disturbed. The offender then removed his catheter and administered an injection into his penis to make it erect. The offender instructed the victim to undress and to suck his nipples and she complied with these instructions. While the victim was doing that the offender was using a stimulator on his penis and he eventually ejaculated. The victim then directed the victim to lick up the semen and again she complied.
The offender then directed the victim to straddle him, sitting on his penis but to take it slow and gentle. The offender and victim then had penile vaginal sexual intercourse. The victim feared she could become pregnant however the offender informed her that he was unable to father children.
Again there are the factors common to all counts. In respect of sequence 4 the offender ejaculated in the presence of the victim and directed her to lick up the semen. The intercourse was penile/vagina. In all of the circumstances this matter is slightly above mid-range.
Sequences 5 and 6 occurred on a trip from Tamworth to Cootamundra when the victim was 14 or 15. The offender was driving the victim back to her parent's place. He asked her lie across the front seat and suck his nipples. While the victim was doing this he digitally penetrated her vagina. This matter is moderately below mid-range.
During the same trip, about an hour from Cootamundra, the offender pulled the car over to the side of the road and told the victim that they were going to fool around. The offender told the victim to sit sideways in the driver's seat of the vehicle and to remove her shirt and underwear and spread her legs. The offender digitally penetrated the victim. He commenced thrusting his fingers in and out of her vagina in what she described as a gentle manner. He then asked if he could use three fingers in her vagina. He ended up "fisting" the victim's vagina causing uncomfortable pressure on the victim's vagina. This went on for about 20 minutes. The offender then told the victim to get dressed and spray herself with deodorant so that did not smell like "they had been fucking". He then drove her home.
Noting the various factors to which I have already referred and the nature of the offending noting the "fisting" and the period of time over which the intercourse occurred sequence 6 is in the upper end of the mid-range.
The facts then recite that there were further sexual encounters between the offender and the victim over the next couple of years with all sexual contact ceasing when the victim was 17. The victim finds it difficult to remember all the individual occasions as there were so many that have blurred into each other. The victim recalls asking the offender whether they would ever be together, to which he replied, "maybe at a later time, but at this time you are too young". The offending therefore was not isolated and restricted to the seven occasions to which the seven sequences relate.
After both her parents passed away the victim disclosed the offences, she not wishing to hurt her parents with the knowledge in the event that they would blame themselves. On 22 October 2019, the day after her mother passed away the victim telephoned the offender and told him that she was going to tell people what he had done to her.
On 24 October 2019 the offender sent a text message to the victim telling her that he was going to turn himself in to the police. On 27 October 2019 the offender attended the AFP office in Canberra. He confessed to as many as 20 sexual acts that he performed on the victim. A file was forwarded to the Wagga Wagga police outlining the confession made by the offender.
On 3 December 2019 the victim attended the Wagga Wagga police station and provided a statement. On 25 February 2020 Detective Senior Constable Galvin attended the offender's residence in Canberra and the offender subsequently entered into a record of interview in which he made full admissions including the conduct constituting sequence 7 (cunnilingus), of which no details had been given by the victim.
The facts recite that during the course of the interview the offender made the following admissions:
1. A specific recollection of penetration of the victim between 3 to 5 [times] (A 112);
2. He suggested that he had oral sex with her in a motel room in Goulburn followed by a threesome in Mildura (A 100; A 173-181);
3. He confirmed what the victim said occurred in the Ballina incident but further disclosed he performed cunnilingus on her. He also said that he believed this incident occurred in January 1994 when she attended the Tamworth music festival;
4. He confirmed having a shower with the victim the next day and admitted to kissing and cuddling;
5. He believed the victim was 14 at the time of the Ballina trip but stated it was January 1994. The victim would have been 15 at that time.
6. There was only one trip to the Tamworth Country Music Festival and that occurred in January 1994;
7. He showed the victim how he used a vibrator to ejaculate on an occasion she was staying at his family home during the course of the Tamworth music festival;
8. He admitted that he used his fingers to have sex with her on the drive back to Cootamundra;
9. The first instance of penile/vaginal intercourse would have occurred at the victim's parent's house. They were in bed and had intercourse with the victim sitting on top of the offender;
10. There were 2 or 3 times he had sex with the victim at her parent's house but he believes these were digital and or oral sex;
11. There were occasions he had sex with the victim two or three times that she went away with him on local travels overnight or away to do a job;
12. He confirmed that he persuaded the victim to participate in a threesome that she did not want to do; and
13. That there were at least 15 to 20 incidents of some kind of sexual contact with the victim which he believed started in early 1994 and finished in late 1994 or early 1995.
The facts further recite that the offender informed police that he felt guilt and remorse for what he had done and acknowledged the breach of trust and the breach of the friendship of the victim's family had weighed heavily on his mind over the years. He also told police the fact the victim was only 14 years of age at the time also weighed heavily on his mind.
[3]
Assistance
This conveniently leads to the other issue that entitles the offender to a further numerical discount, i.e. the assistance to the authorities.
Mr King submits that the assistance by the offender is that of the type contemplated by the decision of R v Ellis (1986) 6 NSWLR 603, in which Street CJ said at 604:
"This Court has said on a number of occasions that a plea of guilty will entitle a convicted person to an element of leniency in the sentence. The degree of leniency may vary according to the degree of inevitability of conviction as it may appear to the sentencing judge, but it is always a factor to which a greater or lesser degree of weight must be given.
When the conviction follows upon a plea of guilty, that itself is the result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters into the sentencing decision. Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence.
The leniency that follows confession of guilt in the form of a plea of guilty is a well-recognised part of the body of principles that cover sentencing. Although less well recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned." (emphasis added)
Beech-Jones in giving the judgment of the Court in R v AA [2017] NSWCCA 84 said at [47]:
"In this case there are reasons to doubt whether the form of "assistance" that AA provided on the evening of 23 October 2015 would fall within the passage from Ellis set out above. By the time AA attended the police station, the process for reporting BB and CC's complaints to the police was already in train. Nevertheless, his actions in attending the police station in advance of the police being notified of the complaints, and in admitting some of the abuse, does fall within s 23(1)."
R v AA is also authority for the proposition that if an allowance is made for assistance in accordance with the principles enunciated in R v Ellis then section 23 of the Crimes (Sentencing Procedure) Act, 1999 applies and the discount must be quantified - see Beech-Jones J at [49].
Section 23 of the Crimes (Sentencing Procedure) Act, 1999 relevantly provides:
23 Power to reduce penalties for assistance provided to law enforcement authorities
(1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.
(2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters:
(a) (Repealed)
(b) the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered,
(c) the truthfulness, completeness and reliability of any information or evidence provided by the offender,
(d) the nature and extent of the offender's assistance or promised assistance,
(e) the timeliness of the assistance or undertaking to assist,
(f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist,
(g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist,
(h) any injury suffered by the offender or the offender's family, or any danger or risk of injury to the offender or the offender's family, resulting from the assistance or undertaking to assist,
(i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence,
(j) (Repealed)
(3) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.
(4) A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must:
(a) indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and
(b) state the penalty that it would otherwise have imposed, and
(c) where the lesser penalty is being imposed for both reasons-state the amount by which the penalty has been reduced for each reason.
(5) Subsection (4) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions.
(6) The failure of a court to comply with the requirements of subsection (4) with respect to any sentence does not invalidate the sentence.
The situation with the matter presently under consideration is a little different to that of R v AA. The offender in the present matter went to the police and admitted his guilt before the victim went to the police. Certainly she had threatened to go the authorities but had not done so by the time the offender went to the police. The offender made full admissions including to some conduct (sequence 7) which the victim does not recall.
The usefulness and significance of the assistance is obvious. The matters recited within the facts as set out at paragraphs 35 to 38 clearly indicate the extent of the assistance. Sequence 7 is based solely on the offender's admissions. The assistance is truthful and complete. The nature of the assistance is full and complete admissions to the conduct. There is no reason to doubt the reliability of the assistance. The assistance would have saved a deal of effort so far as the investigation is concerned. The assistance was timely once the victim indicated that she was going to tell people of the offender's conduct. The only benefit that will accrue to the offender is the numerical discount for the assistance. That numerical discount is the only benefit the offender will receive. There is no suggestion that the offender will suffer harsher custodial conditions because of the assistance. There is no suggestion that the offender or any of his family will suffer any danger or risk of injury because of the assistance. The assistance relates to the offending for which the offender is being sentenced.
Mr King submits that the offender is entitled to a numerical discount of 15% whereas the Crown submits that the value of the assistance is no more than 10%. Taking into account all of the factors to which I have referred and noting the assistance allowed in the decision of R v AA I am of the opinion that the offender should be afforded a discount of 15% for the assistance. Accordingly, the total combined discount for the pleas of guilty and the assistance will be 40%.
An issue arose at the sentence hearing as to the method of application of any discount that was allowed where an aggregate sentence was to be imposed. I suggested to counsel that the discount would be applied to the indicative sentences in the same manner as the discount for a plea of guilty. I understood Mr King to accept that that was the appropriate method. I did not understand the Crown to dissent.
[4]
Criminal History
The offender has no criminal history and in other circumstances would be entitled to considerable leniency because of that noting that he is now 70 years of age. However, there is on this issue the nature of the offending to be considered.
McHugh J, who was part of the majority in allowing the appeal, in Ryan at [35]-[37] said:
"Given these circumstances, Gleeson CJ was correct when he said that the appellant was not entitled to significant leniency because of his otherwise good character. However, Nield DCJ gave the appellant no leniency whatsoever for his otherwise good character. He was entitled to some leniency for his otherwise good character. That being so, the Court of Criminal Appeal should have allowed the appeal and re-sentenced the appellant. In re-sentencing the appellant, some weight should be given to the appellant's otherwise good character.
In considering a prisoner's good character when sentencing, the court must distinguish two logically distinct stages. First, it must determine whether the prisoner is of otherwise good character. In making this assessment, the sentencing judge must not consider the offences for which the prisoner is being sentenced. Second, if a prisoner is of otherwise good character, the sentencing judge must take that fact into account. However, the weight that must be given to the prisoner's otherwise good character will vary according to all of the circumstances of the case.
In this case, once the offences before Nield DCJ and Rummery DCJ are excluded, the appellant was of otherwise good character. He was entitled to some leniency because of that good character."
Kirby J, also part of the majority in Ryan said at [110]:
"…To ignore totally evidence relevant to the latter because of a general assessment that the appellant was not, globally speaking, a good man or had committed serious crimes, involves a departure from basic sentencing principle. Even in the case of offences against vulnerable children and young persons over an extended period, as here, a proper evaluation of all matters relevant to the sentencing function required that some weight be given to the evidence of character that stood to the appellant's credit. By dismissing that evidence out of hand, and refusing to give it any weight at all, the sentencing judge erred".
However, the preponderance of recent authority is such that the weight to be given to the prior lack of record is limited. Rothman J in delivering the decision of the court in R v TWP [2006] NSWCCA 141 at [16]-[17] said:
"There are a number of matters which need to be raised in relation to the sentence imposed and the remarks of the sentencing judge. The first is the reference to "previous good character". The sentencing judge was here referring to the fact that, as at the date of sentencing, the respondent had no prior convictions. He was also referring to the references, mentioned above, provided on his behalf. The sentencing Judge seemingly took this into account to some large degree as he did the lack of a likelihood to re-offend. Each of these, no doubt, depends upon the report of the registered psychologist which was in evidence before his Honour and before this Court.
The difficulty with this approach, in relation to offences of this kind is that, similar to most white-collar crime, the non-apprehension of the respondent (or his prior good behaviour) is almost a necessary condition to the commission of the crime. In circumstances where the respondent faces 17 offences of sexual assault on children spanning a period of almost 20 years, previous good behaviour is a factor which ought provide little weight in favour of the respondent."
The offender is therefore entitled to some degree of leniency because of his lack of record. However that leniency is not as considerable as it might otherwise be because of the nature of the offending.
[5]
General Deterrence
It is undoubted that there is a need for general deterrence when dealing with offences of child sexual assault. The need for general deterrence is not diminished because of the sexual relationship between the offender and the victim. The concept goes back to at least the Crown appeal in the matter of R v Muldoon unrep. NSWCCA 13.12.1990. More recently, see for example the judgment of Hulme J in R v Van Ryn [2016] NSWCCA 1 at [179] where his Honour said:
"The Crown referred to EG v R [2015] NSWCCA 21 at [42] where Hoeben CJ at CL said:
'General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually abuse children intentionally and repeatedly that their actions will not be tolerated and that they will receive significant punishment.'"
Walton J in giving the leading judgment (Hoeben CJ at CL, Hulme J agreeing) in Chamseddine v R [2017] NSWCCA 176 said at [50]:
"It is well recognised that sexual offences against children are objectively serious and cause significant harm to the victims. In R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469, the Court stated at [110]:
"This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the "long term and serious harm, both physical and psychological, which premature sexual activity can do". The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368-372 [26]-[39]."
Some of the other cases that deal with the issue of general deterrence include R v Burchell (1987) 34 A Crim R 148 and MC v R [2017] NSWCCA 316.
Further, as the Crown correctly submits (MFI 1 on sentence) the fact that the offender is older and infirm does not generally diminish the role of general deterrence. In this regard the Crown refers to the decision of MC v R [2017] NSWCCA 316. Hamill J (Simpson JA, Rothman J agreeing said at [56]:
'…However the fact that an offender is elderly and infirm, along with the other subjective and mitigating circumstances that were established on the applicant's behalf, are not matters that generally lead to a diminution of the role of general deterrence'".
[6]
Victim Impact Statement
Exhibit B on sentence is a victim impact statement that was read to the court by the victim. That victim impact statement, as those statements often do, speaks eloquently of the short and long term harm done as a result of the offending. The victim saying, "What happened to me wasn't OK" had a particular resonance.
However, in the absence of other material the contents of the victim impact statement could not be used to make any finding as to aggravating factors. In this regard I note the decision in R v Tuala [2015] NSWCCA 8. However, the effect on the victim is something taken into account in the instinctive synthesis approach pursuant to s 3A(g) of the Crimes (Sentencing Procedure) Act, 1999.
[7]
Subjective case for the offender
The offender has a particularly strong subjective case. The offender was involved in a serious motor vehicle accident in the course of his employment in February 1968 which resulted in him being paraplegic. The offender is in the Warrigal Aged Care facility in Calwell, a suburb of Canberra. The Summary Care Plan is included as document 6 in exhibit 1 on sentence.
A Manual Handling Chart indicates the assistance the offender needs, including two person assistance, a grab ring and general hoist to get him in and out of bed. He uses a power assisted self-propelled wheelchair. He is at a medium risk of fall.
The offender has a significant number of physical health issues apart from the paraplegia. Those issues are set out in a number of documents within exhibit 1. The GP Care Plan Review, document 5 within exhibit 1, sets out the issues, which are:
1. Crohn's Disease - which is a bowel inflammation
2. Recurrent urinary tract infection
3. Paroxysmal atrial fibrillation
4. Depression
5. Aortic aneurysm
6. Below knee amputations (bilateral)
7. Osteomyelitis
8. Osteporosis
9. Colostomy
10. Repair of inguinal hernia (right side).
11. The offender also has a catheter permanently fitted. The report from Dr Rangiah dated 20 March 2020 (document 8 in Exhibit 1) sets out the complications the offender has experienced with the hernia repair surgery. The other report dated 27 October 2020 sets out the issues and complications with the colostomy that was performed in 2016.
As Mr King submitted the offender is suffering from a plethora of physical conditions. He went through and summarised those conditions as set out immediately above. It was put and I accept that there is a high risk of infection and that the offender is a high care resident of the aged care facility. It was submitted - which I also accept - that the offender would be very vulnerable in custody as there was a constant risk of injury and infection. Undoubtedly custody will be more onerous for the offender. I will recommend that the offender be placed in the aged care facility. I will also direct that copies of the various medical reports contained within exhibit 1 be annexed to the warrant forwarded to the Department of Corrective Services. Counsel for the offender accepted that there must be a sentence involving full time custody.
Also included within exhibit 1 is a comprehensive report from Dr Richard Furst, Forensic Psychiatrist. The personal background of the offender is set out in some detail. He went to school initially in Queanbeyan and then went to live at North Star, a locality near the Queensland border (between Boggabilla and Warialda) where his father worked as a station hand. The offender worked for the local council in Pittsworth and it was while engaged in this work that he was involved in the impact that led to him being paraplegic. The offender's brother died in a motor vehicle accident. He assisted in looking after his mother who suffered two strokes. He attended a psychologist in Canberra feeling stressed and anxious.
Dr Furst sets out (p 4) that the offender denied having any sexual attraction to children and he opines that there was no evidence of sexual preoccupation. The offender has not been involved with an intimate partner since 2016. His sexual function is impaired and he has required an injection to achieve and sustain an erection since the early 1990's.
The report sets out that the offender was sexually abused by a group of older boys while living at Queanbeyan and later by an older man who befriended him. He had relationships in his later teenage years.
Dr Furst goes on to explain that the offender has no feeling in his groin or penis but would use a vibrator to achieve ejaculation but with no physical sensation. This is consistent with what the victim described.
In answer to a number of specific questions Dr Furst opines that there were no indications that the offender has a major mental illness and there were no indications that he has an intellectual disability or a dementia.
The report (p 5) sets out that the offender accepted his guilt and expressed remorse about his actions, describing long standing feelings of guilt and shame about his conduct. This is entirely consistent with the offender's actions in confessing to the authorities.
Dr Furst went on to opine that there were no indications of current sexual deviance or social preoccupation. I understand Dr Furst to opine (see generally p 6) that the offender is unlikely to re-offend.
Document 9 in exhibit 1 is a testimonial reference from Mr Robert Dowding who has known the offender since 2006. The offender has substantially assisted the amateur music club in Pittsworth, Queensland. The offending to which the offender has pleaded guilty was a surprise to Mr Dowding and in his opinion is out of character of the person he knows.
Given the matters already dealt with so far as the assistance is concerned, the plea of guilty and the expressions of remorse to Dr Furst and to Mr Dowding, I am more than satisfied that the offender is remorseful. Given his age and lack of record and his physical disabilities I am also satisfied on balance that he is unlikely to re-offend. For essentially the same reasons I am also prepared to find on balance that there are good prospects of rehabilitation.
[8]
Delay
The Crown within the written submissions (MFI 1) addresses the issue of delay. I did not understand Mr King, counsel for the offender to make any particular submission on the issue of delay. It is accepted that s 25AA of the Crimes (Sentencing Procedure) Act apply. In passing sentence I have regard to the maximum penalty for the offences at the time of the commission of the offences. However, I must pass sentence according to the "sentencing patterns and practices at the time of sentencing, not at the time of the offence".
[9]
General Remarks
In passing sentence I will need to give regard to and proper effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely:
1. to ensure that the offender is adequately punished for the offence,
2. to prevent crime by deterring the offender and other persons from committing similar offences,
3. to protect the community from the offender,
4. to promote the rehabilitation of the offender,
5. to make the offender accountable for his or her actions,
6. to denounce the conduct of the offender, and
7. to recognise the harm done to the victim of the crime and the community.
Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Given the maximum penalties provided for, and the offending including the multiplicity of offending, I am firmly of the opinion than no other sentence other than a sentence of imprisonment is appropriate. No contrary submission was advanced on behalf of the offender.
Mr King on behalf of the offender submitted that there should be a generous finding of special circumstances given the age of the offender, the fact that this is his first time in custody, the notional partial accumulation of sentences, the significant health issues and the good prospects of rehabilitation. The Crown does not argue against a finding of special circumstances. I agree there should be a generous finding of special circumstances for the reasons advanced by counsel for the offender.
This is an appropriate matter for the invocation of s 53A of the Crimes (Sentencing Procedure) Act and the imposition of an aggregate sentence. If separate sentences were imposed I am of the opinion that the sentences imposed in respect of sequences 1 and 7 would be concurrent but there would be need to be some partial accumulation in respect of all other offending to recognise the different offending and the time over which that offending occurred.
It will also be necessary for me to set out the sentences that would have been imposed if separate sentenced had been imposed. I will do that in tabular form hereunder. The entries under the heading "indicative sentences" are rounded down in some instances. These remarks have been reduced to writing and will be provided to each party upon pronouncement of sentence.
Seq. Offence Description Maximum penalty Indicative sentence
1 Aggravated Indecent Assault Rubbing torso on vaginal area 7 years 14 months with a starting point of 2 years
7 Sexual Intercourse with Person 10-16 years Cunnilingus 8 years 1 year 9 months with a starting point of 3 years
2 Aggravated Indecent Assault Kissing & cuddling in shower 7 years 9 months with a starting point of 15 months
Sexual Intercourse with Person 10-16 years Digital penetration 8 years 1 year 9 months with a starting point of 3 years
3
4 As above Penile/vaginal intercourse in bedroom 8 years 2 years with a starting point of 3 years 6 months
5 As above Digital penetration on trip from Tamworth to Cootamundra 8 years 1 year 9 months indicating a starting point of 3 years
6 As above Digital Penetration and "fisting" 8 years 1 year 9 months with a starting point of 3 years
[10]
Orders
In respect of the matters to which the offender has pleaded guilty he is convicted.
The offender is sentenced to an aggregate sentence of 3 years and 9 months with a non-parole period of 2 years.
The non-parole period will commence on 2 July 2021 and expire on 1 July 2023. The balance of term of 1 year 9 months will commence on 2 July 2023 and will expire on 1 April 2025.
The non-parole period is approximately 53% of the total sentence which indicates a substantial finding of special circumstances, the reasons for which are set out within these reasons.
The sentence needs to be put in the context of the offender receiving a combined discount for pleas of guilty and assistance of 40%. All of the assistance is in respect of past assistance. But for the 40% discount for the plea of guilty and the allowance for past assistance the total aggregate sentence would have been 6 years and 6 months.
The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.
I direct a copy of the following be annexed to the warrant forwarded to the Department of Corrective Services:
1. Report of Dr Furst;
2. GP Care Plan Review - document 5 of exhibit 1; and
3. Manual Handling Chart - Document 6 of exhibit 1.
[11]
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: 02 July 2021