NT is to be sentenced today for two offences of having sexual intercourse with his 8 or 9 year old granddaughter: s 66A(1) Crimes Act 1900 (NSW). There are also other matters on Criminal Procedure Act 1995 Forms 1 to be taken into account. It is appropriate in the circumstances I do so.
The first offence occurred in 2013 or 2014. At the time the maximum penalty was 25 years imprisonment with a standard non-parole period of 15 years. The second offence occurred in 2015 by then the maximum penalty had been increased to life imprisonment. The standard non-parole period remained at 15 years. Those maximum penalties and the standard non-parole period of 15 years are of importance, as guides to the exercise of my sentencing discretion.
It is almost inevitable in matters such as this that reference will be made to the general deterrence object of sentencing: s3A(a) Crimes (Sentencing Procedure) Act 1999. General deterrence is a principle that requires sentences operate to signal the punishment that will be imposed for breaches of the law, anticipating that others who know of such penalties will refrain from offending for fear of the consequences to themselves. The maximum penalty of 25 years did not deter NT. The increase in penalty to life imprisonment did not deter NT. The abhorrence that all right thinking people have of sexual crimes against children and the inevitable impact of his offending on his victim and on his family did not deter NT. Those matters may deter some from offending, but they do not deter that small group of men, who all too regularly come before this Court for sentence: JIRS Statistics show about 15 cases each year. That said the proper role of the criminal law is not limited to the utilitarian value of general deterrence: Munda v Western Australia (2013) 249 CLR 600: [2013] HCA 38 at [54].
It is important that courts indicate very clearly how very seriously such offences are viewed and by the sentence imposed meet its obligation to vindicate the dignity of the victim, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of the offending: see Munda at [52] to [58].
Where a child has been hurt and offended against in sexual way retributive sentences are required. Retribution is a notion that reflects the community's expectation that the offender will suffer punishment and that particular offences will merit severe punishment: Ryan v The Queen (2001) 206 CLR 267; R v Windle [2012] NSWCCA 222. The term 'retribution' is often used interchangeably with deterrence as "a proper sentence marks the Court's view of the seriousness of the crime, and to lets other wrongdoers know the retribution which will fall upon them if they commit similar crimes:" R v Herring (1956) 73 WN (NSW) 203 at 205.
There is an absolute prohibition on any sexual activity with a child. The law is strictly enforced and is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity. It follows that every act that involves the sexual interference with a child is serious and is treated seriously by the courts. The guidance offered by the maximum penalties and standard non-parole periods makes that clear.
Behavioural responses to child sexual abuse vary; no unique set of behavioural constellations have been identified. Responses vary because of the diversity of abuse experiences. A sentencing court must recognise that all forms of child maltreatment present significant risks for later physical and emotional well-being. Any sexual interference with a child can led to developmentally inappropriate and dysfunctional interpersonal relations, feelings of betrayal of trust, powerlessness and guilt and shame about the experience. Significant longer term effects have also been identified: Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report, Impacts, Volume 3, pages 9 - 11.
[2]
History of proceedings
On 22 March 2017 in the Australian Capital Territory (ACT) Supreme Court Justice Penfold sentenced NT to 6 ½ years imprisonment for 10 offences involving acts of indecency on a child under 10: s 61 Crimes Act 1914 (ACT); R v NT [2017] ACTSC 69. The complainant was the same granddaughter as the matter before me. The offences were similar in nature to those before me and formed part of a pattern of criminal behaviour by the offender toward his granddaughter over a number of years.
Her Honour reviewed all relevant matters, including a Victim Impact Statement from the child complainant and other family members. She had the benefit of comprehensive evidence about the offender's personal circumstances, including a Pre-Sentence report and a report from Dr Wyeth. Of some importance was the offender's disclosure to police of sexual crimes in NSW that had not been reported by the complainant.
While Her Honour was sympathetic to the offender's own history as a victim of abuse while a child, she could not accept that fact went beyond - "providing some sort of explanation for what he has done to his granddaughter; it provides no justification, and it provides little reasons in this case for leniency."
Justice Penfold's decision is of critical importance to these proceedings as on arrest the offender also disclosed details of sexual offences against his granddaughter in New South Wales. Those matters have been in abeyance for some time. NSW Court Attendance Notices were only created in May 2019. They were first listed in the NSW Local Court in February 2020.
As he was in custody in the ACT all appearances in NSW were by Audio and or Video links. NT, having indicated his guilt, was committed to the District Court in Bega on 25 May 2020. Efforts were made to have NT transferred to NSW so he could be sentenced in this jurisdiction. Those efforts failed.
NT became eligible for consideration for release to parole in the ACT on 13 September 2020. But he could not be released to parole as no accommodation was available to him as he had these outstanding NSW charges.
On 22 October 2020 NT appeared before me for sentence via an audio link to the ACT correctional facility. He was represented by Mr Averre, of counsel. He adhered to the pleas entered in the Local Court and confirmed his guilt in relation to the Form 1 matters. Having received parole in the ACT he was transferred to NSW custody this year. He appeared today via video-link from a NSW gaol.
[3]
Agreed facts
The offender was born in 1951. He had no prior convictions. His granddaughter was born in 2006. She lived in southern NSW and later Canberra. The two spent a lot of time together at the offender's home in Canberra or in the family caravan at a van park on the South Coast of NSW.
In July 2016 the complainant came to stay with the offender and his wife in Canberra. The offender's wife saw the two together: what she saw disturbed her. She spoke to the complainant and the offender. He told her he was in love with the complainant: R v NT at [4]. More details came out and his wife went to the police.
On 10 September 2016 the offender wrote to his family making admissions to sexually touching the complainant and apologising for his betrayal of his family: Ex A tab 9. The complainant spoke to police. On 17 September 2016 NT was interviewed by ACT police. He made "full and frank" admissions. He was arrested for the offences that occurred in the ACT and has been in custody since that date.
Those admissions provide the basis for the two charges for sentence and the matters on the Form 1. They are set out fully in the Agreed Facts tendered: Ex A tab 3.
In brief summary:
Incident 1: One evening in 2013 or 2014 while staying in the caravan the offender, rather than tuck his granddaughter in her bunk bed, climbed in with her. He first rubbed her stomach and thigh over her pyjamas and then despite her saying "no," used his fingers to play with her labia and clitoris. The whole incident did not take very long. While this occurred the offender's wife was also in the caravan watching TV. The complainant was 8 years old.
Incident 2: On another evening in 2015 the child then aged 8 or 9 was alone in the caravan with her grandfather. They, at his suggestion, hopped into bed without their clothes. As they watched a kid's movie he touched her neck and back and kissed her lips. He told police it was "the most intense time." He then used his fingers to play with the outside of her vagina and her clitoris. He then sucked the child's nipples. The incident went on for about an hour.
Sexual intercourse requires proof of penetration to any extent of the external genitalia of a female that is capable of penetration: s 61H Crimes Act 1900 (NSW). Here, each offence was disclosed by the offender and by his guilty plea he admits such penetration.
[4]
Objective seriousness
The actual character of the assault, including the degree of physical contact involved, is of considerable significance in assessing the objective seriousness of sexual assaults against children. So too are; the age of those involved, any existing relationship between them, the age of the child relative to the 10 years noted in s66A.
The Form 1 matters attach to both offences for sentence. They involve aggravated indecent assaults on the child during each of the incidents the subject of a count for sentence. While I do not sentence for the matters on the Form 1 they do operate to increase the sentence that would otherwise be appropriate. So much was made clear by the High Court in Markarian v The Queen (2005) 228 CLR 357. Such an increase operates to recognise the need for personal deterrence and retribution for the crime for sentence: Attorney General's Application No. 1: (2002) 56 NSWLR 146 at [39] - [42]; Abas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115, at [22]. That approach requires I take care not to double count matters that are both on the Form 1 and also form part of the incident, only one part of which was the matter for sentence.
Both offences for sentence involved the skin on skin touching of the child's vaginal area by the fingers of the offender. Here, the penetration was minimal and on a purely physical level the least invasive form of sexual intercourse. The first incident was very brief but the child was younger. The second however occurred along with other indignities over some period and his grandchild was still only 8 or 9 years old.
The age of the child, her relationship with her grandfather, who she should have looked to for care and protection, his gross breach of trust toward a child in his care and the significant confusion that all these factors must have caused her, increase objective the seriousness of each incident. The events were not isolated. The offender used his granddaughter for his own sexual gratification. He deceived her and himself by treating her as a consenting adult when nothing could have been further from the truth.
[5]
Victim Impact Statement
In her Victim Impact Statement, which was before both Justice Penfold and me, the complainant spoke of her sadness at keeping a secret from her family and how her "Poppy' made her feel unsafe.
[6]
Subjective material
Much of the material before me was also before Justice Penfold. Her Honour set out NT's background, including a history of lifelong issues with his sense of self, relationships with others, irresponsible behaviour, chronic suicidal thoughts and vague anxiety symptoms, which Dr Wyeth said fits with the diagnosis of a Personality Disorder, Borderline type.
After reviewing the evidence offender's background he Honour noted:
"[49] In this case, however, I do not think that the difficulty for NT in establishing his claims is a matter of major significance. Even accepting NT's claims of childhood sexual abuse in their entirety, I am not persuaded that a man of his age, who seems to have addressed that childhood abuse sufficiently to be able to build an apparently satisfying life, including good relationships with both his wife and son, as well as his son's family, did not realise how unacceptable his conduct was, and was not capable of restraining himself. That is, while I have considerable sympathy for NT in relation to his early experiences, I do not accept that any childhood sexual abuse he suffered could go beyond providing some kind of explanation for what he has done to his granddaughter; it provides no justification, and it provides little reason in this case for leniency."
Dr Wyeth's report noted the offender's cognitive distortions, including a belief that his victim enjoyed what he did to her and that he did what he did to please her. He said that these cognitive distortions should be addressed in a sex offender treatment program and that he would "expect that the Corrections Psychologists would examine his personality structure, relationship problems and cognitive bias and expand on the assessment of paedophilic disorder." Dr Wyeth noted that NT would benefit from longer term therapy to address his personal issues including his own experience of sexual abuse as a child.
Justice Penfold concluded her judgement:
"I consider that whether NT's mental health problems make him a danger to the community will be best assessed towards the end of his non-parole period rather than on the basis of the extremely unsatisfactory evidence currently available to me."
NT has now been in custody for over 4 years. In that time he has completed the ACT's sex offender programme successfully. He engaged in all aspects of the program and "willingly attended to challenges around his treatment targets of emotional regulation, intimacy deficits, cognitive distortions and sexual deviance:" Exhibit 1 tab 6. It is recommended he continue to develop his Relapse Prevention Plan and continue to address his mental health and wellbeing issues.
Other ACT custodial records indicate his positive approach, although there are still some underlying mental health and physical issues that require attention. He has worked in the responsible position as the "visits sweeper" with an "excellent work ethic." He is described as "polite, keen" 'punctual' and 'respectful:" Exhibit 1 tab 4
[7]
Totality
I am required to impose an appropriate sentence for each offence and to structure the sentences such that the overall sentence is just and appropriate to the totality of the offender's crimes: Mill v The Queen (1988) 166 CLR 59 at 62-63
I must consider the total criminality involved; not only in the offences for which the offender is being sentenced, but also the ACT offences for which the offender is currently serving a sentence. This is particularly so where for reasons outside NT's control he could not be sentenced in the one jurisdiction despite there being only one victim of his offending. Fairness also requires some weight to be given to the progress of his rehabilitation during the term of his ACT sentence's non-parole period, and the fact the circumstance that he has been left in a state of uncertain suspense and to what will happen to him once he came to NSW: R v Todd [1982] 2 NSWLR 517 at 519
The delay between the commission of the offence, but more particularly since his admissions, should not cause unfairness to the offender. Rather the total period to be spent in custody should adequately and fairly represents the totality of the criminality involved in all of the offences committed against his granddaughter
[8]
Synthesis
On discovery NT made full and frank admissions, including of offences and details of offences that would not otherwise have been discovered. His early acceptance of responsibility is important: R v Thompson [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [3].
NT must have each otherwise appropriate sentence reduced by 25% to reflect the utilitarian value of his early guilty plea. Care will be taken not to erode that benefit by the process of accumulation of the two sentences and those from the ACT.
NT expressed appropriate remorse and accepted responsibility for the harm his actions caused his granddaughter and family. His revelation's about undisclosed offending must also be recognised by a reduction in sentence that I must ultimately synthesise: R v Ellis (1986) 6 NSWLR 603.
In CMB v Attorney-General for NSW (2015) 256 CLR 346; [2015] HCA 9 ,the High Court confirmed, at [40] - [43] and [70] - [73], that s 23 of the Sentencing Procedure Act now embodies and gives effect to the principle in R v Ellis:
"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;" Ellis at 604.
NT has engaged in and successfully completed a custody based sex offender programme. His success will however have to be followed up with treatment in the community.
The accumulation of this sentence on that from the ACT is the primary reason for a finding of special circumstances. Three (3) years on parole should allow for monitoring and follow up of the good behaviour already demonstrated while in custody. While longer period on supervision might be thought desirable the accumulated non-parole period should properly reflected the seriousness of what was done and is the minimum time in custody his crimes demand.
There are strong reasons here to mitigate each sentence but mitigating circumstances can go only so far. The sentence must be structured to allow the good rehabilitative work done to date to be tested and to recognise that he has already been punished in the ACT for his other actions against his victim. A sentence can and should encourage reintegration into the community but in matters such as this victim vindication and recognition of the harm done still require a retributive sentence to ensure the offered is adequately punished for what he did to his granddaughter.
I propose to start the sentence from a year before he first became eligible for parole in the ACT. It is not NT's fault he was not transferred to this jurisdiction earlier.
[9]
Orders
For Count 1, Sexual intercourse with person under age of 10 years (DV), taking into account the matter on the Form 1, I indicate a sentence of 3 years 9 months with a non-parole period of 1 year 10 months.
For Count 2, Sexual intercourse with child under age of 10 years (DV), taking into account the matters on the Form 1, I indicate a sentence of 6 years 9 months with a non-parole period of 3 years 4 months
There will be an aggregate sentence of 7 years 9 months. There will be a non-parole period of 4 years commencing 13/09/2019 and expiring 12/09/2023. The balance of the sentence of 3 years 9 months is to commence upon the expiration of the non-parole period on 13/09/2023 and expiring on 12/06/2027.
NT will be eligible for consideration for release to parole at the expiration of the non-parole period on 12/09/2023.
The total effective sentence for both the ACT and NSW offences is 10 years and 6 months with a non-parole period of 7 years.
[10]
Amendments
22 March 2021 - Grammar changes only
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Decision last updated: 22 March 2021