R v NC [2016] ACTSC 111

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - offender sentenced for three acts of indecency on or in the presence of person aged under 16 years - offender in a position of trust - early plea of guilty - delay in prosecution - need to consider sentencing practice at time of offending - consideration of offender's mental health where Verdins principles not engaged.

Crimes Act 1900 (ACT), s 92K(2)

Crimes (Sentence Administration) Act 2005 (ACT)

Monfries v The Queen [2014] ACTCA 46

R v Blanco [1999] NSWCCA 121; (1999) 106 A Crim R 303

R v Nona [2015] ACTSC 136

R v Scheeren [2014] ACTSC 272

R v Verdins [2007] VSCA 102; (2007) 16 VR 269

R v WR (No 4) [2015] ACTSC 211

R v WR (No 5) [2015] ACTSC 258

Legal Aid ACT (Offender)

1. NC has pleaded guilty to three offences, being two acts of indecency on a person under the age of 16 years and one act of indecency in the presence of a person under the age of 16, committed in 1999 and therefore arising under s 92K(2) of the Crimes Act 1900 (ACT). Those offences carried a maximum penalty including 10 years imprisonment.

2. The incident from which these charges arose took place in September 1999, when the complainant was 11 years old. At that time the complainant's mother was in a relationship with NC, and the complainant and her mother were living in his house in suburban Canberra.

3. The incident is described in the agreed statement of facts as follows:

On an afternoon in September 1999 [NC] was in the bedroom at the computer. Whilst [the complainant's mother] was in the bath, [NC] called the complainant into the bedroom and told her to sit on his lap as they chose songs to put on a CD. The complainant sat on [NC's] left thigh. [He] asked the complainant whether she had grown any pubic hair and asked her to show him. The complainant pulled down her pants partially to show [NC].

[NC] placed his left hand into the complainant's underpants and began to gently rub the outside of her vagina. The complainant froze and [NC] continued to rub the area below her pubic bone and just above her vagina.

[NC] then moved his hand down towards her vagina. [He] then rubbed the complainant's clitoris and the top of her vagina for about one minute.

Whilst rubbing the complainant's clitoris, [NC] pulled the front of his pants out to expose his penis. [He] asked the complainant if she wanted to look at his penis and the complainant said she did not. [NC] told the complainant that she was allowed to touch his penis.

[NC] removed his hand from the complainant's underpants and she ran to her bedroom crying.

[NC] told [the complainant's mother] the same evening what he had done. A few months later [the complainant's mother] brought the complainant into the main bedroom where NC was lying in bed. [The complainant's mother] stated that [NC] had told her what had happened and she apologised to the complainant on behalf of NC for the incident.

4. The complainant reported the incident to police during 2013. In July 2014, under the supervision of investigating police, the complainant took part in a recorded telephone conversation with NC. During this conversation he made some admissions in relation to his conduct, and sought to reassure the complainant that the incident had not been her fault. NC suggested that his actions had been opportunistic and that he wished he had never done it.

5. In November 2014 NC participated in an interview with police during which he made admissions to inappropriately touching the complainant on her "mound of Venus" for five seconds. He stated that the complainant had said no and that he had then stopped. He stated that his conduct had been a spur of the moment act, that he did not know why he touched the complainant, and that he gained no sexual gratification from doing so. He denied any arousal at the time of the incident.

6. NC appeared before the Magistrates Court on 24 April 2015. On 4 June 2015 he pleaded guilty to the first of the charges, and not guilty to the second and third charges. On 13 August 2015 he pleaded guilty to the second and third charges and was committed to this Court for sentence. These later pleas were entered on the fourth occasion that the matter was before the Magistrates Court.

7. NC has spent no time in custody in relation to these offences.

8. As well as the statement of facts, the following material is in evidence before me:

(a) NC's criminal history;

(b) a pre-sentence report prepared by Corrections Victoria, dated 7 September 2015;

(c) a victim impact statement from the complainant dated 13 October 2015;

(d) a letter from Jon Grainger, a psychologist, dated 29 January 2016 concerning the treatment he is providing to the complainant;

(e) a Patient Health Summary from the complainant's treating medical centre dated 2 February 2016, detailing the medication she is prescribed;

(f) the remarks made by the sentencing Judge when NC was sentenced for two child pornography offences in 2010.

9. All of that material was tendered by the prosecution.

(a) a psychological report dated 10 January 2016 from Dr Martin Sellbom; and

(b) an enrolment form from Federation University detailing the study that NC hopes to undertake this year.

11. In considering the objective seriousness of the offences I have had regard to the following matters.

12. The prosecutor pointed out that some premeditation was suggested by NC waiting until the complainant's mother was in the bath to carry out the offences. That fact certainly suggests that the acts were intentional rather than accidental or otherwise uncontrollable, but it does not establish in my view that the acts were anything more than opportunistic.

13. The three offences charged took place during a single incident. Unusually for offending of this nature, that seems to have been an isolated incident. There was no material put before me to suggest that the complainant had been groomed by NC before the incident, nor was there any suggestion of sexually inappropriate conduct by NC towards the complainant on other occasions.

14. At the time of the offending, NC was effectively in a position of parental responsibility in relation to the complainant, who was his 11-year-old step-daughter and who was living in his home due to his relationship with her mother. Accordingly, these offences represent a significant breach of trust.

15. As noted, NC disclosed his offending to the complainant's mother on the evening on which it occurred. When he was contacted by police he participated in an interview and made admissions in relation to his conduct. During his consultation with Dr Sellbom to facilitate the preparation of the psychological report, NC stated "I've never shied away from what I did. Not hiding it. Not a secret. Just something I got wrong". In explaining his offences to the pre-sentence report author, he said that he wished he hadn't acted as he did.

16. I accept that these actions and comments, in combination with NC's early plea of guilty, are indicative of some degree of remorse, and suggest that NC possesses a degree of insight into the wrongfulness of his conduct.

17. When Dr Sellbom asked him about why the complainant might have reported the offending 16 years after its occurrence, NC responded that his step-daughter "must've got cranky with me at some stage". The prosecutor submitted that this statement was indicative of a lack of insight into the impact that his behaviour had had upon the complainant, but she was unable to articulate how NC might have more appropriately responded. Furthermore, even if, as the prosecutor seemed to imply, the correct answer was along the lines that NC understood that the complainant would have been distressed as a result of his actions, Dr Sellbom's question seems to me to be about what might have triggered the report at the relevant point, rather than at an earlier point when that distress was presumably also a factor. I do not see this exchange as necessarily indicating a lack of insight or a lack of remorse.

18. The complainant provided a victim impact statement in which she wrote of the ongoing difficulties that she has experienced since the incident with NC. The existence of such difficulties in recent years was confirmed in evidence provided by her psychologist, who noted that she had sought therapy in 2014 when memories of NC's abuse were triggered by another incident of child abuse in her extended family. The problems described by the complainant, however, include longstanding mental illness, especially depression and anxiety, which has required treatment over at least the last 10 years through costly medication and counselling, has affected her ability to maintain employment, and has led to several incidents of self-harm including a suicide attempt. The complaint also wrote of the strain which the offending has placed on her relationship with her family and in particular her mother.

19. Counsel for NC did not challenge the complainant's description of the difficulties she now faces. He accepted that NC's conduct would have had a serious impact upon her, but did raise the possibility that not all of the complainant's ongoing problems are the direct results of NC's offending.

20. The complainant, on the other hand, said that "the entire trauma [she has] experienced in [her] life" has stemmed from NC's acts of indecency. However, it is apparent even from her own statements that there are other sources of distress in her life, including in particular her clearly troubled relationship with her mother. That relationship must have been strained by the complainant's mother's reaction to NC's disclosure of the offences against the complainant; no doubt she was seriously affected by her mother's failure to protect her, and her mother's apparent decision to put her own relationship with NC ahead of her daughter's needs, both at the time of the offences and in the years since. Of course, that particular problem would not have arisen but for NC's actions, but I cannot conclude that NC's actions were the sole cause, or even the first cause, of all of the complainant's difficulties.

21. On the other hand, I am satisfied that NC's offending has caused significant damage to the complainant, and has contributed in a significant way to the mental health and relationship difficulties she now faces.

22. In summary, I consider that the first two offences, those that involved touching the complainant, are of medium seriousness, and the third one, involving exposure of NC's penis, is of low-level seriousness.

23. I have also had regard in this sentencing to NC's subjective circumstances.

24. NC is now 58 years old; at the time of the offending he was 42. His criminal history consists of two offences, one of possessing child pornography and one of using a carriage service to access child pornography material. The possession offence came to light after police became aware of NC's use of a carriage service to access child pornography; this happened a few years before 2010, but the material before me gives inconsistent information about the actual dates. Significantly, though, these offences post-date by some years the offending for which NC is to be sentenced today.

25. NC was sentenced in relation to the child pornography offences in 2010, receiving a sentence of 16 months imprisonment, of which three months was served in full-time custody and five months by way of periodic detention, with the remainder suspended upon NC entering a good behaviour order for 18 months. The sentencing Judge noted that NC had begun using adult pornography in the context of a relationship breakdown and had through that developed an interest in child pornography, although claiming that he looked at child pornography out of curiosity and obtained no sexual gratification from the substantial quantity of material he had collected.

26. NC was born in Canberra in 1957 and has two younger sisters. His father is dead, and he says he now has minimal contact with his sisters and his mother. In talking to Dr Sellbom, NC described his childhood as unremarkable, although he did disclose a range of behavioural issues throughout his schooling, and an incident of sexual abuse by a stranger in a public toilet block when he was aged 13. In 2010 NC discussed this incident with psychologist Tom Sutton, reporting that it had led to "a sense of fear and being hurt; inability to use urinals; compulsive counting of tiles in the toilet; taking pegs off the line; [counting] tooth brushing strokes ...".

27. NC completed school to Year 12, and subsequently undertook further study in electronics and communications. He maintained stable employment for many years, working as an electronics technician and in other similar positions, but he has not had a steady job since his conviction for child pornography offences in 2010. He is currently studying for a degree of Bachelor of Information Technology, and told Dr Sellbom that he hopes to do contract work in that field upon completion of his studies.

28. NC has been married twice. He has two adult sons from the first of these marriages, and describes his relationship with those children in positive terms. His second marriage, to the mother of the complainant, has continued "on and off" for a period of around 15 years. NC told Dr Sellbom that he has recently resolved to end this relationship, partly due to the stress associated with the current charges.

29. NC suffers from various physical ailments, including lumbar spondylosis, tendonitis in his left arm, and coronary artery disease. He had a heart attack 11 years ago.

30. NC has reported a history of depressive illnesses for which he has sporadically received treatment. Dr Sellbom noted that NC appeared to have been diagnosed with Bipolar Disorder in 2011, and that he has been prescribed an anti-psychotic drug since that time.

31. Dr Sellbom opined that NC meets the diagnostic criteria for a mixed personality disorder with schizoid, schizotypal and obsessive-compulsive features resulting in impaired social and occupational functioning. He also suggested that NC may meet the diagnostic criteria for Obsessive-Compulsive Disorder. In the report that was in evidence, Dr Sellbom opined that NC does not meet the criteria for any mental health condition that would warrant special sentencing consideration under the categories identified in R v Verdins [2007] VSCA 102; (2007) 16 VR 269 (Verdins), although he did note that:

While it is possible that forced and enclosed socialization [I assume this is a reference to what would be imposed on NC in a prison environment] might exacerbate some of his symptoms of] depression and anxiety, these can likely be managed therapeutically. Moreover, [NC] has been incarcerated in the past and cited chronic boredom (likely a common experience associated with incarceration) as the most significant adverse effect.

32. NC told the pre-sentence report author that he was suffering from Bipolar Disorder at the time of the offending and had "acted on his curiosity", but there is no evidence before me supporting that possibility, and the 2011 diagnosis of Bipolar Disorder cannot of itself be relied on to establish the relevance of that diagnosis 12 years earlier. Furthermore, there is nothing before me suggesting that NC's offences would have been caused, or even explained, by Bipolar Disorder if such had been diagnosed at the time.

33. In Monfries v The Queen [2014] ACTCA 46, the ACT Court of Appeal considered the manner in which sentencing courts may take account of information about an offender's mental health if that information does not support mitigation of sentence in accordance with the principles laid out in Verdins. The Court stated at [67]:

Where a mental health condition does not reduce moral culpability, does not render an offender an inappropriate vehicle for a message of general deterrence or does not otherwise have particular relevance to a specific sentencing purpose, and does not mean that the offender will suffer more in custody, the mental health condition may nevertheless be considered as part of an offender's general subjective circumstances, and may inform the sentencing outcome in the same way as other subjective circumstances do so.

34. In accordance with this statement I have taken account of NC's diagnosis of Bipolar Disorder and of the personality disorder identified by Dr Sellbom, and of the impairment that those disorders cause to his social and emotional functioning. I note in this context that Dr Sellbom recommended a "sustained and intensive" period of psychotherapy targeting his social and emotional detachment, rigid and obsessional thinking, paranoid ideation and depressed affect.

35. In his report Dr Sellbom also referred to an earlier report prepared by psychologist Tom Sutton in relation to NC's 2010 convictions for child pornography offences. In that report, Mr Sutton opined that NC was not a paedophile.

36. The current offences were committed 17 years ago. There has been no recurrence of such offending, and no other offending except the child pornography offences dealt with in 2010. I do not consider that rehabilitation is a significant issue in relation to the current offences.

37. Sexual offences against children require general deterrence, especially since they can cause significant ongoing damage to the victims and often go undiscovered for many years. On the other hand, personal deterrence does not seem to be such a significant issue in this case.

38. NC entered relatively early pleas of guilty to these offences, and they will be recognised by a sentencing discount in the order of 25%, although some of that concession will be achieved through provision of somewhat more concurrency than might otherwise be appropriate.

39. The early guilty pleas are particularly significant in that they have spared the complainant the need to appear in court and tell her story.

40. NC is entitled to be sentenced according to the sentencing practice that prevailed at the time the offences were committed, to the extent that that practice can be established (R v WR (No 5) [2015] ACTSC 258; R v Scheeren [2014] ACTSC 272 (Scheeren); R v Nona [2015] ACTSC 136) (Nona). In the case of Nona, Murrell CJ noted at [49], after considering submissions from counsel, that sentences imposed for sexual offences committed against children in the mid-1990s "were generally very lenient when compared to current sentencing patterns".

41. Although these offences were committed some 17 years ago, the police only became involved in 2014, as a result of action taken by the complainant. This is despite the fact that, as already noted, NC admitted the offending to the complainant's mother on the day that it occurred. In these particular circumstances, I consider it reasonable to treat the delay in bringing these matters to court as to some extent akin to delay on the part of the authorities; of course, NC himself could have gone to the police at any point, but it is by no means clear that this would have been welcomed by the complainant, at least early on, rather than being seen as compounding the abuse.

42. In the matter of Scheeren, Murrell CJ at [30] considered the effect of delay in prosecution upon the sentencing exercise. Her Honour cited the case of R v Blanco [1999] NSWCCA 121; (1999) 106 A Crim R 303 at [16]- [17] as authority for the propositions that:

[D]elay may be relevant to a sentencing exercise first, because of the "uncertain suspense" in which an offender may have been left, second, because the offender may have demonstrated progress toward rehabilitation during the intervening period, or third, because a sentence for a stale crime calls for a measure of understanding and flexibility of approach, it being in the public interest that those suspected of serious crime be brought to justice quickly, particularly when there is a strong case available against them.

43. In this case, there is no evidence before me whether NC felt he was left in a state of "uncertain suspense" after his disclosure, or whether he had assumed that the lack of immediate action in response to that disclosure meant that there would be no action. There has been no specific rehabilitation demonstrated, but as already mentioned, it is at this stage reasonable to accept that NC's actions were an isolated incident and did not reflect any pattern of behaviour. It is not clear to me why the public interest in bringing offenders to justice quickly implies that offenders who do not suffer swift justice should receive understanding and a flexibility of approach, but to the extent that this is relevant, it would seem to require substantial understanding for those who, like NC, have confessed early and been brought to justice late.

45. In the matter of R v WR (No 4) [2015] ACTSC 211, the offender was found guilty by a jury of six offences of committing an act of indecency upon a child under the age of 16 during a period from 1990 to 1992. The victim on each count was his step-daughter, who was aged 10 to 12 at the time of the offending. The offending involved the touching of the victim's vagina and bottom, the offender placing the victim's hand on his penis, and the offender moving his genital area against the victim while they were both clothed. Similarly to the present matter there was a significant delay in the reporting and prosecution of the offences, and there was also evidence of the significant impact that the offending had had upon the victim's psychological functioning, but unlike the current case, WR continued to deny the commission of the offences and accordingly demonstrated limited victim empathy or remorse. That offender received sentences of imprisonment, after being found guilty at trial, of between 9 and 18 months in relation to each count, with an effective head sentence of 4 years and 3 months and a non-parole period of 2 years and 6 months.

46. The prosecutor submitted that the objective seriousness of this offending, and in particular the ongoing impacts upon the complainant, required a sentence of imprisonment including some immediate full-time custody.

47. Defence counsel accepted that a sentence of imprisonment was required, but submitted that having regard to the objective seriousness of the offences, the delay in prosecution and NC's subjective circumstances, in particular his apparent remorse and willingness to cooperate with authorities, a fully suspended sentence of imprisonment would be adequate.

48. I agree with both counsel that no sentence other than imprisonment is appropriate in this case, but I am not convinced that any of that sentence needs, at this stage, to be served in full-time custody.

49. NC, please stand. I record convictions on the two charges of committing an act of indecency upon a person under the age of 16 years and one charge of committing an act of indecency in the presence of a person under 16 years.

(a) for the first act of indecency - to imprisonment for 14 months, reduced from 18 months to take account of your guilty plea, and to run from today;

(b) for the second act of indecency - to imprisonment for 14 months, reduced from 18 months, to start from 25 March 2016 and therefore adding one month to the total sentence; and

(c) for the third act of indecency - to imprisonment for six months, reduced from nine months, to commence from 25 September 2016 [and therefore adding another month to the total sentence.

That total sentence is therefore 16 months imprisonment running from today until 24 June 2017. ][1]

51. The sentence will be suspended with immediate effect, and I now order you to sign an undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration Act) 2005 (ACT) for 18 months. The good behaviour order is subject to the following conditions:

(a) that you give security in the amount of $1,000 for your compliance with this good behaviour order, and that doesn't have to be a cash security - Mr Davies will explain that to you;

(b) that for such period not exceeding 18 months as Corrective Services considers necessary, you accept the supervision of ACT Corrective Services and obey all reasonable directions of the Director-General or her delegate;

(c) that you undertake such counselling, courses, programs or treatments as directed by your supervising officer, which may include but is not limited to a course of psychotherapy as recommended by Dr Sellbom and already mentioned; and

(d) finally, that on or before close of business tomorrow afternoon (and you should assume that is 4.00 pm) you attend Corrective Services at Eclipse House to arrange your supervision.

52. I note, however, that your pre-sentence report was provided by Corrections Victoria, and that that organisation indicated a willingness to accept a transfer of any supervision order made in this sentencing. You will need to take that up with the Corrections authorities here.

53. You will be given a written copy of the good behaviour order, and it will probably be read out to you by court officials. But in short, what it means is that for the next 18 months you need to keep out of trouble, keep in contact with Corrective Services here, or Corrections Victoria, and do as your supervisor directs.

54. If you commit another offence during that time, or if you otherwise breach your obligations under the good behaviour order, you may find yourself back before this Court to be re-sentenced for these offences, as well as possibly losing your $1,000 security and, depending on exactly how you have breached those obligations, and especially if there were any sort of repeat of the relevant kinds of offending, you could find yourself serving some or all of this sentence in full-time custody.

55. If you have any particular questions about those orders, please ask the court officials or Mr Davies.

I certify that the preceding fifty-six [56] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold.

[1] The italicised remarks were made during the delivery of these sentencing remarks, but are an incorrect summary of the effect of the sentences in fact imposed, which provide for a total sentence of 15 months imprisonment running from 25 February 2016 to 24 May 2017.