R v NC [2017] ACTSC 206

Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10 and 33

R v Giardini (Unreported, NSW Court of Criminal Appeal, Gleeson CJ, Handley JA and Sully J, 25 February 1993)

R v Grech [1999] NSWCCA 268

Office of the ACT Director of Public Prosecutions (Crown)

1. On 18 April 2017, the offender pleaded guilty to five counts of sexual intercourse without consent and eight counts of committing an act of indecency without consent.

2. The maximum penalty for the sexual intercourse offences is 12 years imprisonment. The maximum penalty for an act of indecency without consent changed over the period during which the offences were committed. Prior to 7 July 2011, it was five years imprisonment. After this date, it became seven years imprisonment.

3. The original indictment contained 18 counts. The offender's plea to 13 counts was accepted in full satisfaction of the indictment. The count numbers will, accordingly, not be chronological.

4. The offender was born in 1942. He is now 74 years of age. The offences occurred between 31 December 2006 and 1 April 2013.

5. The offender has some very old criminal convictions. Their age and type make them irrelevant.

6. The offender was born in Sydney. He has an abusive father who he blames for his mother's health conditions and ultimate death in 1979. The offender attended a religious school in northern New South Wales. He left school at the end of Year 10. Both of his parents have died, as have three of his six siblings.

7. The offender has been married twice. He had three children from his first marriage, which lasted eight years. His current marriage is of 40 years duration and remains in place, although the offences have, naturally, been the source of some stress. The offender has two children from his current marriage. They were unaware of this matter. His wife is now aware of the nature of the offences.

8. The offender is retired. He has spent his working life in a number of occupations, including as a musician, as a service station attendant, as a security officer and as an IT technician.

9. The offender relies on a partial disability support pension as a result of a number of medical conditions that he suffers. He takes many medications and has had frequent admissions to hospital in recent months for a recurring pneumonia condition. His wife still works. The offender has no drug or alcohol problems.

10. According to the pre-sentence report, the offender maintains that his relationship with the victim was consensual. He asserted that, notwithstanding her low IQ, she was a person who was independent in matters such as shopping and paying bills.

11. The offender was assessed as posing a moderate to low risk of sexual reoffending. Having regard to his health conditions, the risk of reoffending is probably more accurately classified as low.

12. The offending behaviour started when the offender was 64 years of age and the victim was 24 years of age. The victim has an intellectual disability which is of such an extent that she lacks the capacity to provide consent to sexual intercourse, or in fact any other action involving interference with her person. The latter includes the acts of indecency.

13. I will refer to the victim as BF. The offender first met BF when she was about nine years of age. She came to live, with her family, in the same street as the offender. The offender became friendly with BF and her mother. They moved to Queensland in about 2000, and resided there until 2008 when BF came back to live in Canberra. During this interval, BF would often stay at the offender's house during school holidays.

14. BF has an intellectual impairment. She has an IQ of 40. Under the appropriate diagnostic criteria, she has a mild intellectual retardation. Her mother has been appointed as her Guardian. She needs assistance with personal health care, lifestyle and accommodation decisions, as well as help with finances.

15. A psychological assessment conducted of BF in 2016 observed that:

Given her level of intellectual disability and deficits in adaptive functioning [BF] is vulnerable to being taken advantage of and would be incapable of providing consent to engage in sexual activities. She does not have the capacity to comprehend the consequences of her decisions.

16. Counts 1 and 2 occurred during a visit by the complainant to Canberra between 2006 and 2008. The offender and BF were alone in the backyard. The offender told BF that he was going to teach her about sex. He put his hand on her leg and rubbed it (Count 1). He inserted two fingers into the complainant's vagina (Count 2). BF began to bleed. The offender said to her "everything is all right because you're a woman now". He told her not to tell anyone about the incident.

17. Count 3 occurred between 2008 and 2010. The offender inserted a vibrator into BF's vagina. He did this on many occasions. She developed a urinary tract infection. The offender actually took BF to a doctor for treatment but told the doctor that he did not think that BF was sexually active. BF had more than one infection as a result of the offender's conduct.

18. Count 5 was also between 2008 and 2010. The offender had a shower with BF. He touched various parts of her body, including her vagina.

19. Counts 6 and 7 occurred during the course of the offender's regular visits to BF. They occurred between 2010 and 2012. He had regular sexual intercourse with her (Count 6) and on one occasion he ejaculated in her mouth (Count 7).

20. Counts 8 and 9 occurred during the same period. Count 8 involved the offender putting his hands on, and squeezing, BF's breasts. Count 9 involved penile - vagina intercourse.

21. Counts 10 and 11 were once again between mid-2010 and mid-2012. They involved a friend of BF who is also intellectually impaired. The offender asked the two women to undress and sit on a bed with their legs over each other (Count 10). He took photographs of them (Count 11).

22. Count 12 occurred when BF had moved into her own apartment. Her 'independence' was enabled by two carers who visited every day to help her with cooking and household chores. During this time, the offender took photographs of BF after she had undressed.

23. Count 17 and 18 occurred in the offender's motor vehicle. He put his hand on her vagina and rubbed it (Count 17). He put her hand on his penis until he ejaculated (Count 18).

24. What I've given above is a brief summary of the detail of the offences. Greater detail can be found in the Statement of Facts (Exhibit A).

25. The offences came to light in March 2013 when BF told her mother that she was having sex with the offender. BF's aunt then made a complaint to the police. BF gave the police details in September 2014 and March 2015. She told the police that she did not like the sexual conduct but agreed to it because the offender would get angry if she refused.

26. The offences which are the subject of the specific counts form only a small part of the sexual activity that occurred between the offender and BF. The offender consistently told BF not to tell anyone about the relationship. He specifically told BF not to tell her mother or a medical practitioner. This strongly suggests that he was aware that what he was doing was at least unlawful and certainly very wrong.

27. On 19 February 2016, the police executed a search warrant at the offender's home. He told police that the sexual activity was consensual "as far as he knew" and he never forced BF to participate. He said he did not wear a condom because he has had a vasectomy. This may have protected her against pregnancy. It would not have protected her against the transmission of a sexual disease.

28. The offender told the police that the sexual relationship had lasted about three years with intercourse occurring on a weekly basis. He told police that he was aware of her intellectual limitations, that she was on a disability pension and described himself, I observe with some incredulity, as being "like a carer's job only I wasn't being paid for it."

Sometimes she'd have days where she was just clear as crystal and other days she'd been off with the fairies sort of thing... You could talk to her about it and ask her thirty five seconds later what you spoke about and she never had a clue...To be honest with you if you asked [BF] what abuse meant she wouldn't have a clue what you're talking about... I tried to explain to her about sex, about getting pregnant, about condoms, about going out with guys but if you spoke to her and asked her ten minutes later what a condom was she wouldn't have a clue what you're talking about.

30. Any person having those views about another person would, in my opinion, have absolutely no doubt that the other person was incapable of giving consent to sexual activity.

31. Despite this, and as conceded by his counsel, the offender has not shown remorse and lacks insight into his offending.

32. The offender was first charged in June 2016. An indictment was filed on 24 November 2016. The complainant was to give evidence at a pre-trial hearing on 20 April 2017 and a trial was listed to commence on 5 June 2017. The pleas of guilty were, therefore, made at a fairly late stage in the proceedings. They nevertheless had significant utilitarian value and, much more importantly, saved the victim from having to give evidence. In my view, the pleas should attract a discount, which I assess in the order of 20%.

33. The offender has not spent any time in custody.

34. The sentencing process is complex. It involves a consideration of the principles of sentencing as well as its objects. To this end, it is necessary to consider the provisions of the Crimes (Sentencing) Act 2005 (ACT), in particular s 6 and s 7. Section 10 is also important because it tells the court that an offender should not be sentenced to a term of imprisonment unless no other penalty is appropriate. Section 33(d) tells the Court that a relevant factor to be considered is "if the personal circumstances of any victim of the offence were known to the offender when the offence was committed." That is unquestionably the case here.

35. The Crown provided me with a list of cases bearing some similarities to this case. Each case must of course be decided on its own facts but I have taken some guidance from R v Grech [1999] NSWCCA 268. In that case, the offender was the leader of a group home where the victim resided. The victim was aged 20 and 21 at the time of the offences and suffered from an intellectual disability. He lacked the capacity to consent to sexual intercourse. The offender had daily sexual contact with the victim for about 18 months. The offender was sentenced to a total of five years imprisonment with a non-parole period of three years. An appeal against the sentence failed.

36. Another important consideration is to apply principles of totality. This means that there must be a degree of both concurrency and accumulation in respect of the individual sentences.

37. I am also bound to take into account the offender's medical condition. According to Dr Reeve (Ex 1), he has recently had a heart attack and he suffers from the following conditions: severe osteoarthritis in the neck, emphysema, chronic pneumonia and outbreaks of extensive dermatitis. He has had a number of recent admissions to hospital. The doctor concludes his report in this way:

Imprisonment could contribute adversely to all his poor health issues.

38. The offender said that he had in fact had nine heart attacks, although there is no medical evidence to this effect.

39. The pre-sentence report refers to a terminal illness. I was told the terminal illness is emphysema. There is no specific medical evidence about a reduced life expectancy. This is not a case like R v Giardini (Unreported, NSW Court of Criminal Appeal, Gleeson CJ, Handley JA and Sully J, 25 February 1993) where there was specific evidence stating that the offender would die in prison. The medium life expectancy tables suggest that a male of 75 years of age has a life expectancy of 12.69 years. Having regard to the offender's health condition, I am sure that this is significantly reduced, but I cannot say to what extent.

40. On the other hand, I must take into account the nature of the offences, the effects on BF and the community's abhorrence of the conduct.

41. The victim impact statement by BF's aunt (Exhibit D) describes the trust that BF had placed in the offender. She regarded him as a father figure. The statement lists a number of effects on BF. These include high levels of anxiety and stress requiring psychological treatment, nightmares, behavioural issues, suicidal ideation, panic attacks, washing her body with very hot water (as she did after the offender had sex with her) and very low self-esteem.

42. It might be said that the offender should be treated differently to someone who commits offences against a child. If that is correct, the distinction can only be slight because BF, through her mental impairment, has the mental age of a child.

43. In addition, the charges are representative of a course of exploitive conduct lasting over three years. Masquerading as a quasi-carer, the offender took advantage of BF for over three years to satisfy his own sexual appetite.

44. An issue arises as to the extent that the offending which has not been the subject of charges can be taken into account. Section 33(1)(c) of the Crimes (Sentencing) Act 2005 (ACT) says that if an offence forms part of a course of conduct, that is a relevant consideration. I think it appropriate to take the course of conduct into account as informing the appropriate sentence but not as an aggravating feature.

45. I can see no alternative to a term of imprisonment. These offences, even without consideration of the course of conduct, are objectively serious. That description may not apply to some of the indecency charges, but it certainly applies to the charges of sexual intercourse without consent.

46. I note that a suspended sentence or an intensive corrections order was not suggested.

47. Because the offences all involve the same victim, except perhaps the lesser offences involving the complainant's friend, it might be thought that the sentences could be concurrent. This would allow greater account to be taken of the offender's health condition.

48. Because of the period over which the offences were committed, and the seriousness of the offences, I have decided that there must be a degree of accumulation. The five sexual intercourse offences must dominate my decision on sentence and I think there should be a distinction between those offences involving digital penetration and those involving penile penetration. No condom was used in the latter and, as I have already said, the fact that pregnancy was not possible does not excuse a failure to protect against a sexually transmitted disease.

49. In my view, each of the sexual intercourse offences involving digital penetration should attract a sentence of two years and six months. The charge involving the placing of the offender's penis into the complainant's mouth will receive the same sentence as digital penetration. The sentences for the offences involving penile penetration should be three years.

50. The indecency charges are of differing severity. The count involving the use of the vibrator, leading to a urinary tract infection, is the most serious. Count one is the least serious. I will try to vary the sentences for the indecency charges according to the severity, but they will all fall within the range of the sentences for the sexual intercourse charges.

51. I'm taking this approach to avoid an overly long head sentence. Principles of totality are important. My intent is to arrive at a total sentence of 5 years with a non-parole period of 3 years. In arriving at these sentences I have specifically reduced each term of imprisonment by about 20% for the pleas of guilty and factored in the offender's state of health including the consequent extra difficulties he will face in dealing with prison life.

(a) For count 1 (CC 2016/4903), act of indecency without consent, the offender is sentenced to a term of imprisonment of three months commencing on 4 August 2017 and ending on 3 November 2017.

(b) For count 2 (CC 2016/4904), sexual intercourse without consent, the offender is sentenced to a term of imprisonment of two years and six months commencing on 4 August 2017 and ending on 3 February 2020.

(c) For count 3 (CC 2016/5230), sexual intercourse without consent, the offender is sentenced to a term of imprisonment of two years and six months commencing on 4 February 2018 and ending on 3 August 2020.

(d) For count 5 (CC 2016/5297), act of indecency without consent, the offender is sentenced to a term of imprisonment of three months commencing on 4 August 2017 and ending on 3 November 2017.

(e) For count 6 (CC 2016/5299), sexual intercourse without consent, the offender is sentenced to a term of imprisonment of three years commencing on 4 August 2018 and ending on 3 August 2021.

(f) For count 7 (CC 2016/5300), sexual intercourse without consent, the offender is sentenced to a term of imprisonment of two years and six months commencing on 4 February 2019 and ending on 3 August 2021.

(g) For count 8 (CC 2016/5232), act of indecency without consent, the offender is sentenced to a term of imprisonment of six months commencing on 4 August 2019 and ending on 3 February 2020.

(h) For count 9 (CC 2016/5233), sexual intercourse without consent, the offender is sentenced to a term of imprisonment of three years commencing on 4 August 2019 and ending on 3 August 2022.

(i) For count 10 (CC 2016/5307), act of indecency without consent, the offender is sentenced to a term of imprisonment of six months commencing on 4 August 2019 and ending on 3 February 2020.

(j) For count 11 (CC 2016/5383), act of indecency without consent, the offender is sentenced to a term of imprisonment of six months commencing on 4 August 2019 and ending on 3 February 2020.

(k) For count 12 (CC 2016/5384), act of indecency without consent, the offender is sentenced to a term of imprisonment of three months commencing on 4 August 2019 and ending on 3 November 2019.

(l) For count 17 (CC 2016/4920), act of indecency without consent, the offender is sentenced to a term of imprisonment of three months commencing on 4 August 2019 and ending on 3 November 2019.

(m) For count 18 (CC 2016/4921), act of indecency without consent, the offender is sentenced to a term of imprisonment of six months commencing on 4 August 2019 and ending on 3 February 2020.

(n) The total sentence expires on 3 August 2022.

(o) I set a non-parole period of three years to commence on 4 August 2017 and end on 3 August 2020.

(p) The warrant of removal of the offender is to be accompanied by a copy of the medical documents (Ex 1).

(q) His Honour further recommends that the Director of Corrective Services have immediate access to the offender's health records (Ex 1).

I certify that the preceding fifty-two [52] paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.