R v Nona [2015] ACTSC 136

CRIMINAL LAW - Sentence - offences against children- sexual intercourse with a person under the age of 16 years - act of indecency in the presence of a person under the age of 16 years - historic offences - denunciation - rehabilitation - contrition - remorse

Crimes Act 1900 (ACT) ss 92E(2), 92K(2)

Crimes (Sentencing) Act 2005 (ACT) ss 7, 33

Bugmy v The Queen (2013) 249 CLR 571

R v Hayes [2012] SASCFC 96

R v Moon [2000] NSWCCA 534

R v Scheeren [2014] ACTSC 272

R v Todd [1982] 2 NSWLR 517

1. Following a trial in December 2014, the offender was found guilty of the following offences:

(a) Between 20 October 1995 and 26 February 1996, sexual intercourse with a person under the age of 16 years (J), contrary to s 92E(2) of the Crimes Act 1900 (ACT) (Crimes Act). The maximum penalty is 14 years' imprisonment.

(b) Between about 9 April and about 30 April 1996, sexual intercourse with a person under the age of 16 years (J), contrary to s 92E(2) the Crimes Act. The maximum penalty is 14 years' imprisonment.

(c) Between 28 July and 15 September 1996, commit an act of indecency in the presence of a person under the age of 16 years (J), contrary to s 92K(2) of the Crimes Act. The maximum penalty is 10 years' imprisonment.

(d) Between 28 July and 15 September 1996, commit an act of indecency in the presence of a person under the age of 16 years (H), contrary to s 92K(2) of the Crimes Act. The maximum penalty is 10 years' imprisonment.

2. At the time of offences (a) and (b), J was 12 years of age. At the time of offence (c), J was 13 years of age. At the time of offence (d), H was 14 years of age.

3. J and H were sisters. They resided with their mother and younger brother at Chifley until July 1996, and then at Kaleen. Offences (a) and (b) occurred at the Chifley home and offences (c) and (d) occurred at the Kaleen home. The victims' mother was in a relationship with the offender from about September 1995 to September 1996. At that time the offender was 22 to 23 years of age.

4. The offender is a Torres Strait Islander who was undertaking a two year art degree in Canberra.

5. The facts in relation to offence (a) are that, when the victims' mother went to hospital, J and her younger brother were left at home in the care of the offender. He allowed them to sleep on a mattress in the lounge room and slept between them. He inserted his fingers into the victim's genitals and then engaged in penile-vaginal intercourse to the point of ejaculation.

6. Offence (b) does not concern an act of sexual intercourse that has been specifically identified. According to the victim, there were a few occasions at about the relevant period when the offender engaged in sexual intercourse with her. The matter that is the subject of the charge is the occasion that resulted in the victim becoming pregnant. In September 1996 it was discovered that J was pregnant and DNA analysis revealed that the biological father was the offender.

7. The victim was more than 20 weeks pregnant when her pregnancy was diagnosed. That fact dates the offence between about 9 and 30 April 1996. When the pregnancy was discovered, the victim underwent a late stage termination, which was not a straightforward procedure.

8. Offences (c) and (d) address the same conduct incident. There was an occasion when the victims were outside their home in the yard. The offender attracted their attention by tapping on a window. He then masturbated in front of them.

9. The offender was sentenced on 25 February 2014 by Burns J in separate proceedings for offences of a sexual nature committed against H. Those offences occurred in the period 1 September 1995 to 29 July 1996. There were five incidents. The offender was sentenced on one count of unlawful assault with intent to engage in sexual intercourse, five counts of sexual intercourse with a child under the age of 16 years and three counts of performing an act of indecency on a child under the age of 16 years. Some of the incidents of sexual intercourse involved digital penetration, and two incidents involved penilevaginal intercourse.

10. The offender was sentenced to an effective sentence of seven years and six months' imprisonment from 10 August 2012 to 9 February 2020, with a nonparole period of three years and nine months' imprisonment. The nonparole period expires on 9 May 2016. The individual sentences ranged from two years' imprisonment for the first act of indecency to four years and six months' imprisonment in relation to two counts of sexual intercourse with a child under the age of 16 years. The offender appealed against the sentences on various grounds. The prosecution crossappealed alleging that, individually and cumulatively, the sentences were manifestly inadequate. The appeal has been heard and the decision is reserved.

11. Each of the offences is of substantial objective seriousness. One relevant consideration in relation to objective seriousness is the age of the victim. J was aged 12 or 13 years at the time that the offences were committed against her. Sections 92E(2) and 92K(2) of the Crimes Act concern offences against victims up to the age of 16 years.

12. The sexual assaults were not isolated matters. First, it is not alleged that offences (a) and (b) were the only episodes of sexual offending against J. Second, the offender committed sexual assaults against H during a similar period. The fact that the matters were not isolated does not increase any penalty. However, it deprives the offender of leniency that might be afforded if the matters were isolated.

13. Another consideration in relation to the objective seriousness of the offences is that each offence occurred at the victims' home. An important consideration is that, at least in the case of offences (a) and (b), there was a breach of trust. At the time of the offences, the offender was the sole adult in the home. Offence (b) is particularly serious because it resulted in pregnancy. The victim underwent a significant medical procedure as a consequence of the offending conduct. The offending conduct, particularly offences (a) and (b), must have had a profound effect on J.

14. The offender is now 42 years old. He was raised in an isolated Indigenous community on Badu Island, in the Torres Strait. He remained there until his early teens, attending school on Badu Island.

15. The offender's family circumstances at that time were extremely disadvantaged and abusive. The offender has never met his biological father. As a baby, he was adopted out to a couple whom he considers to be his parents. Unfortunately, each of the offender's adoptive parents had a problem with alcohol. The offender's adoptive mother was physically abusive towards the offender and his 10 siblings. She regularly inflicted corporal punishment. The offender described it as "floggings" in response to relatively trivial misbehaviour such as swimming at a forbidden location, or arriving home late after school.

16. The offender's adoptive mother acted out her frustrations for her domestic situation on both the offender and his siblings. The offender witnessed significant injury being occasioned to his siblings, who often sported bruises.

17. The children and the offender's adoptive parents concealed the family's circumstances. The offender was reluctant to reveal what was occurring. He feared that it might result in the breakup of the family unit. As is often the case with children in such circumstances, he thought that the conduct meted out to him was normal family behaviour.

18. Although it was not the subject of any particular comment in the expert reports, it must be the case that, as one of 11 children, the offender was emotionally neglected. The offender was the fifth of the 11 children. As a middle child he would not have attracted significant nurturing.

19. Two of the 11 siblings are now deceased, as are the offender's adoptive parents, and the offender has limited contact with the surviving siblings.

20. The offender's first language is an Indigenous language of the Torres Strait. He did not learn English until Year 7 and he is not as adept in the English language as would be the case if he was a native speaker.

21. At about 14 years of age, the offender moved to Thursday Island to continue his schooling for Years 8 and 9. On Thursday Island, he resided with an auntie. That seems to have been a happier domestic environment. Nevertheless, the offender must have felt displacement at leaving the small community on Badu Island at that tender age. From Thursday Island, his schooling continued in Cairns, where he progressed to Year 12. He then went on to undertake a degree in art at TAFE. On completing the degree, he returned to Badu Island for about 12 months. Then, aged about 22 years, he moved to Canberra to undertake a two year visual arts course.

22. The offender has fathered six children to three women. Between about 2003 and 2010 he was in a relationship with a woman who is the mother of four of the children. She resides with the four children in the Cairns area. The offender maintains some contact with the children and their mother. The offender hopes that when he is released from custody, the children and their mother will come to live with him on Badu Island.

23. The offender began to use alcohol at about 16 years of age. When he came to Canberra he started to drink very heavily because of a sense of displacement, depression and related issues. At weekends, he drank to the point of blackout. He remained heavily dependent on alcohol after leaving Canberra. That remained the position until the offender was in his 30s.

24. By that stage the offender's art career was established. He became focused on that career. Further, he became aware of the serious medical consequences that can flow from alcohol abuse. He had had plenty of opportunity to observe the impact of alcohol on relatives. The offender has never been treated for alcohol abuse. He has addressed the problem himself. For that reason, there is a concern that, if the offender is placed under stress upon his release from custody, there is a risk of him reverting to alcohol abuse. That said, alcohol does not seem to have been a serious problem for some years.

25. The offender's early employment included working as a seaman off Badu Island and employment as a teacher's aide. From about 1989, the offender focused on his artistic career. He has exhibited artwork since 1991. He is now an internationally renowned artist who has done an enormous amount to promote the arts of the Torres Strait. In custody, he has contributed to the art education program at the Alexander Maconochie Centre (AMC). He has also engaged in other programs, including a conservation and land management program.

26. The offender has provided many references. These attest both to his personal character and to his commitment and talent as an artist. One of the referees, Ms Frances Cummings, an art historian, has known the offender since 1992. She has maintained significant contact with him since that time. She makes the following observation of the offender in the mid 1990s:

Dennis impressed with his prodigious talent and most significantly his absolute passion for his Culture and fierce desire to create an awareness of the rich, unique significance of the Torres Strait Island people's myths and stories. He was quite a shy person in the company of white, urban Australians, humble and unaffected by the acclaim that was growing for his art, but to listen to him talk about a specific work and tell its story was to understand the deep emotional and heartfelt commitment he had to his culture.

27. The offender tendered a letter from Mr Michael Kershaw, who acts as the offender's art manager, and also, to some extent, assists the offender to navigate western culture. Mr Kershaw describes the offender as:

...the role model for aspiring young Torres Strait Islander artists as well as an example to other young indigenous Australians...

...an exceptional and extraordinary artist that has made a major contribution...

28. Other referees describe the offender as "courteous", "generous", "a person of integrity", "a thoughtful, gentle man" and a caring and supportive father.

29. The offender believes that incarceration is impacting on his creativity. He feels fear and a sense of containment. He feels cut off from feelings of freedom and contact with the natural world. I accept that he feels these sentiments quite strongly, given his cultural background and strong sense of spiritual connection to the natural environment. It is clear that the offender has a strong spiritual connection to the Torres Strait, both to his island, Badu Island, and to the sea. Associated with this connection is the fact that the offender has not in the past been used to confined spaces. In the past, he has spent a lot of time at or near the sea, outdoors and hunting. When the offender is released, he intends to return to Badu Island. At this stage, he is speaking more about working on the sea than engaging in creative pursuits. In evidence, he expressed a desire to go fishing and stay out on the ocean for weeks.

30. A contentious aspect of his cultural background is that contemporary middle-class morality was not a significant feature of his upbringing, either within his adoptive family or more generally. For example, it was not impressed upon him that sex with children was very wrong. As a young man, the offender was aware of the historical practice of polygamy. There is reference in the evidence to the fact that in Melanesian cultures, adult males often have young wives and, historically, some abuse has been tolerated. That does not mean that toleration of abuse is ever acceptable, but it does provide a context.

31. It would appear that while it was not acceptable on Badu Island for children to be sexually abused, by the same token, the offender did not receive the sort of moral and sexual education that occurs today, at least in developed parts of Australia. The bright line which exists in contemporary Canberra between appropriate and inappropriate treatment of children did not exist on Badu Island when the offender was young.

32. The Court received a report and heard evidence from Associate Professor Warrick Brewer, a neuropsychologist. Assoc Prof Brewer referred to the fact that the offender feels the confines of the gaol quite acutely and he misses his family. The sense of disconnection from family is exacerbated by the fact that the offender's family and community are so physically remote from Canberra. The offender was unable to attend a recent funeral and other, earlier funerals. Funeral attendance is a strong cultural requirement for Torres Strait Islanders and the inability to attend funerals is very disturbing to the offender.

33. Assoc Prof Brewer conducted psychometric testing on the offender and found that he has "borderline" intellectual ability. He is in the bottom 4% of the population for his age. He has a reading ability of a person aged 11 years. This is not necessarily a reflection of the offender's intellectual ability; to some extent it may be a reflection of the fact that English is his second language and his education was relatively disadvantaged. Assoc Prof Brewer determined that the offender's IQ fell short of that expected from a person who had participated in tertiary education. He estimated that when the offender was engaging in tertiary education and prior to alcohol affecting the offender's intellectually capacity, the offender had an IQ of 92.4, placing him in the 28th percentile.

34. In addition to identifying cognitive deficits, Assoc Prof Brewer considered that the offender suffered from mild to moderate levels of depression. He referred to a history of depression including suicidal ideation. He noted recent brooding and morbid thought processes. He recommended that the offender undertake a medication review and that consideration be given to antidepressant medication.

The overall neuropsychological profile reflects a man who suffers mild-moderate acquired brain injury. Aetiology from the available evidence is chronic alcohol abuse that compounds early entrenched verbal learning deficits, notwithstanding Mr. Nona's English being his second language.

In terms of Mr. Nona's childhood circumstances being a contributor to the assessment of his culpability, his experience of neglect and violence at the hands of his adoptive family may arguably be regarded as contributing to his culpability. Here, the emotional impact of neglect and violence in childhood generally is highly detrimental to the normal maturation of prefrontal neural development characteristic of normal adolescence. It presents a risk for delayed socio-emotional development and associated maturation of higher-level (executive) processes that mediate that same development. It is also a common risk factor for neurodevelopmental disorders including anxiety, depression, and self-medication of distress with substances such as alcohol. Prolonged and/or heavy use of alcohol in turn usually exacerbates underlying pre-existing socio-emotional immaturity. In Mr Nona's case specifically, there is sufficient evidence from all reports that he was subjected both to sustained neglect concerning his emotional well-being and to physical violence. His history also reflects the risk factors described above.

37. I note that the dated report of Dr Jonathon Adams, a forensic psychiatrist, raises matters that are similar to those raised by Assoc Prof Brewer. It refers to an alcohol problem, poor memory and indications of depression.

38. The offender has no criminal history apart from the history that relates to the victims, J and H.

39. While in custody at the AMC, the offender has been assaulted on three occasions. It is difficult to determine the reasons for the assaults but it is suggested that the assaults related to the nature of the subject offences.

40. In articulating the many subjective features that might ameliorate a sentence, I am not ignoring the plight of the victims, particularly J. The conduct of the offender was appalling. It was completely inexcusable. I am sure that it has had a devastating and lifelong effect on J. The Court acknowledges the suffering that she has experienced over the years and will no doubt continue to experience.

Sentencing Act Considerations

41. The sentencing purposes are set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). As far as personal deterrence is concerned, I believe that the experience of imprisonment is an important factor which has already had a strong deterrent effect on the offender, regardless of the length of any sentence that I impose. Sentencing purposes of accountability and denunciation, and the imposition of appropriate punishment are very important in this case. I am mindful of the likely, very serious impact on the victims, and also the impact on society generally of any abuse of children, particularly abuse that occurs in a domestic situation.

42. I believe that I have referred to the relevant factors in s 33 of the Sentencing Act. However, I should make particular reference to two factors enumerated s 33 of the Sentencing Act. Submissions were made about remorse and contrition. Neither remorse nor contrition was expressed, but in a culturally complex situation I would be reluctant to place too much weight upon these factors.

43. A second matter to which I should refer is the question of risk of recidivism. The Pre-Sentence Report (PSR) and the Adult Sex Offender Program Suitability Assessment Report assess the offender as having a low to moderate risk of re-offending. A second PSR assesses the offender as being of a moderate or medium risk of re-offending.

44. In my view, past behaviour is the best predictor of future conduct. The offender was at large in the community for almost two decades between the offending conduct and his arrest. There is no suggestion that during that period the offender committed any offence or engaged in sexually inappropriate behaviour. The prosecution has not established that the offender represents more than a low risk of re-offending.

45. The delay between the offences in 1995-96 and the present time needs to be considered. Delay can inform sentencing generally because of the way in which it may relate to sentencing purposes, particularly rehabilitation.

46. A warrant for the offender's arrest was taken out in 1997 or 1998. Although the offender's whereabouts were never a secret, particularly as he was a prominent artist, he was not arrested. Police interest in the case was reignited in about 2009 and thereafter the offender was arrested and charged. There was a period of more than a decade when the police were aware of the allegations and had taken out an arrest warrant, but did not pursue it. The delay between 1995-96 and the offender's incarceration in August 2012 has enabled the offender to demonstrate virtually complete rehabilitation. Not only has the offender not re-offended, but he has embarked upon a very positive path, making a unique and very valuable contribution to Indigenous culture and Australian culture generally. In making that observation, I am not suggesting that he should be rewarded just because he has the talent to have made that contribution.

47. A factor that generally arises with the delay in prosecuting stale offences is that the Court is minded to afford some degree of understanding and flexibility in its approach to sentencing. In relation to delay, the Court has considered the New South Wales case of R v Todd [1982] 2 NSWLR 517 and the South Australian case of R v Hayes [2012] SASCFC 96.

48. It is desirable for the Court to consider the sentencing pattern at the time when the offences were committed. The prosecution helpfully referred the Court to the decision in R v Moon [2000] NSWCCA 534, which states that (at least in New South Wales), where a sentencing range current at the time of the offending can be established, the Court will approach the sentencing task by having regard to that pattern.

49. In this case, both the defence and the prosecution made every effort to ascertain whether there was a sentencing pattern for the relevant offences in the mid 1990s. Their research has revealed that the sentences that were imposed varied wildly in their length and were generally very lenient when compared to current sentencing patterns.

50. The pattern in relation to the setting of nonparole periods has not been ascertained. However, in R v Scheeren [2014] ACTSC 272 research was done into the pattern of non-parole periods in the 1980s, and it was found that non-parole periods were generally lower than those that are currently set. I infer that, if anything, the nonparole periods set in the 1990s were lower than those that are currently imposed.

51. In sentencing the offender, I must consider the overall picture of imprisonment, both the relationship between the individual sentences that I impose and the relationship between this group of sentences and the group of sentences imposed for similar offences committed against H. While the latter group of sentences are the subject of an appeal, at present they stand.

52. I have been referred to and I have read a great deal of material about the sentencing of Indigenous offenders. I am acutely aware of the decision in Bugmy v The Queen (2013) 249 CLR 571. One of the key matters highlighted by that decision is that sentencing is individualised in our system and individualised justice requires an evidence-based approach to sentencing. In this case, the Court has the benefit of extensive evidence upon which to determine appropriately individualised sentences.

54. For offence (a), sexual intercourse with a person under the age of 16 years, the offender is sentenced to three years' imprisonment from 10 August 2016 to 9 August 2019.

55. For offence (b), sexual intercourse with a person under the age of 16 years, the offender is sentenced to three years and six months' imprisonment, from 10 August 2017 to 9 February 2021.

56. For offence (c), commit an act of indecency in the presence of a person under the age of 16 years, the offender is sentenced to 12 months' imprisonment from 10 August 2020 to 9 August 2021.

57. For offence (d), commit an act of indecency in the presence of a person under the age of 16 years, the offender is sentenced to 12 months' imprisonment from 10 August 2020 to 9 August 2021.

58. The effective sentence is five years' imprisonment, running until 9 August 2021. With the earlier sentences imposed by Burns J, the offender will serve a period of nine years. I fix a new non-parole period of four years and six months' imprisonment, to expire on 9 February 2017.

I certify that the preceding fifty-eight [58] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Murrell.