R v SH [2015] ACTSC 25

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

Cotter v Corvisy (2008) 185 A Crim R 560

GAT v R [2007] NSWCCA 208

Giles v Barnes [1967] SASR 174

Ibbs v R [1987] HCA 46; (1987) 163 CLR 447

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

R v AD [2014] ACTSC 222

R v AJP [2004] NSWCCA 434

R v BJW [2000] NSWCCA 60

R v Gavel [2014] NSWCCA 56

R v PGM [2008] NSWCCA 172

Ryan v R [2001] HCA 21; (2001) 206 CLR 267

Name of victim and any identifying details, including name of the offender.

1. On 29 August 2014 a jury found SH guilty of one count of incest and two counts of committing an act of indecency on a person under the age of 16.
2. In determining an appropriate sentence I have had regard to submissions put on behalf of the offender and the Crown and to the following material:
   • (i) a pre-sentence report prepared by Angela Brown and dated 21 October 2014;
   • (ii) forensic neuropsychological report by Dr John McMahon dated 15 January 2015;
   • (iii) psychiatric report by Dr Stephen Allnutt dated 25 January 2015; and
   • (iv) the evidence of AHM, TF and DM.

3. The background facts may be shortly stated.
4. The offender was the complainant's stepfather. The complainant, her mother, two half-siblings and a step-brother resided together, with the offender.
5. At some time between 1 February 2007 and 12 October 2007 the complainant watched a movie called 'Silent Hill', she became frightened and went into the master bedroom, got into bed and fell asleep. It was not unusual for the victim to go into her parent's bedroom when she was scared. At that time the offender's wife was away from the home, studying in Wagga Wagga.
6. Sometime later the complainant woke to find that the offender had removed her underwear. The offender pushed the complainant's legs apart, put his hands on her thighs and licked her vagina (count one). The offender also put one of his fingers on the complainant's clitoris and moved it down and circled it around the entrance to her vagina (count 2). At some point the offender stopped and the complainant put her underwear back on and moved to the edge of the bed. The offender lay behind her and put his arm over her and began rubbing her chest and stomach under her clothes (count 3).
7. The complainant did not immediately report what had happened but later (in November 2012) she reported the incident to her mother and her boyfriend. She then told her friends sometime around January 2013.
8. The real issue at the trial was whether or not the offender's acts were voluntary or whether he was asleep at the time. By their verdict the jury rejected the submission advanced on behalf of the offender - that he was in a sleep state at the time of the offending and did not make a conscious or deliberate decision to engage in the acts constituting the offences.
9. Two aspects of the factual circumstances are disputed.
10. The first concerns the Crown's contention that the offender planned to sexually molest his step daughter for his own sexual gratification. The essence of this contention is the proposition that earlier in the evening in question the offender had set up the movie, 'Silent Hill', on a computer in the complainant's bedroom for her to watch later. The inference being that he did so knowing the complainant would get scared and come into his bedroom, at a time when his wife was away, and provide him with an opportunity to molest her. In support of this contention the Crown relied on aspects of the complainant's evidence to the effect that the offender had put the movie on her computer so that she could watch it later (the relevant evidence was canvassed during the sentencing hearing, Tn p157-161 and 194-196).
11. The offender gave evidence at the trial and he strongly denied setting it up so that the complainant could watch the movie (Tn p56 lines 25-30).
12. I have carefully considered the evidence in relation to this contention and I am not persuaded beyond reasonable doubt that the offending was planned. Contrary to the Crown's submission I find that the offending was opportunistic in nature, rather than planned.
13. The second matter in dispute is whether the offender threatened the complainant during the course of committing the offence of incest. The complainant's evidence was, in essence, that she woke to find the offender committing the offence and asked him to stop, to which he replied 'do you want me to smack you'. The offender was asked about this exchange during the course of his evidence but he had no recollection of it occurring (Tn p48 lines 10-18).
14. Counsel for the offender pointed to the fact that there was no further comment the next day, in support of his contention that no threat was made. I do not find this submission persuasive - the following morning there was no discussion about the incident at all.
15. I am satisfied, beyond reasonable doubt, that during the course of committing the offence of incest the victim asked the offender to stop and the offender responded by saying 'do you want me to smack you'.

1. The purposes for which an offender may be sentenced are set out in s.7 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act). The court may impose a sentence for one or more of the following purposes:
   • (a) to ensure that the offender is adequately punished for the offence in a way that is just and appropriate;
   • (b) to prevent crime by deterring the offender and other people from committing the same or similar offences;
   • (c) to protect the community from the offender;
   • (d) to promote the rehabilitation of the offender;
   • (e) to make the offender accountable for his or her actions;
   • (f) to denounce the conduct of the offender;
   • (g) to recognise the harm done to the victim of the crime and the community.

1. In deciding how an offender should be sentenced, the court must consider the matters in s.33(1)(a) to (za) of the Sentencing Act which are relevant and known to the court. These considerations do not limit the matters a court may consider in deciding how an offender should be sentenced for an offence.
2. I now turn to consider the particular matters which are relevant in the present matter.

1. In relation to the nature and circumstances of the offending there can be little doubt that the offences committed were serious. The objective seriousness of the offending is reflected in the maximum penalty for each offence. The maximum penalty for the offence of incest upon a child under the age of 16 years contrary to s.62(2) of the Crimes Act 1900, is 15 years' imprisonment. The maximum penalty for the offence of committing an act of indecency upon a child under the age of 16 years contrary to s.61(2) of the Crimes Act 1900, is 10 years imprisonment. As the High Court observed in Markarian v The Queen ((2005) [2005] HCA 25; 228 CLR 357) the maximum penalty available for an offence will almost always require careful attention, especially as a yardstick.
2. The complainant was 11 years old at the time of the offending and, as Shellar JA observed in R v BJW ([2000] NSWCCA 60 at [20]-[21]),:

"... a child aged 13 or younger is virtually helpless in the family unit when sexually abused by a stepparent. All too often the child is afraid to inform upon the step-parent; see generally R v Bamford (unreported) CCA, 23 July 1991 per Lee CJ at CL at 5. The younger the victim the more serious is the criminality."

1. It is also relevant that the offending occurred in the complainant's home, where she was entitled to feel safe.
2. I have already found that during the course of committing the offence of incest the offender threatened to smack the complainant. The use of such a threat is an aggravating feature of the offending in this case and has been reflected in the sentence imposed (See DPP v DJ [2011] VSCA 250 (24 August 2011) at [26])
3. It is also relevant to observe that the three offences occurred within the same episode of offending and, in particular, counts 1 and 2 were effectively contemporaneous. I have also had regard to the nature of the act constituting count 1, that is cunnilingus. The nature of this act may be generally regarded as more serious than digital penetration but less serious than penile-vaginal penetration (Ibbs v R [1987] HCA 46; (1987) 163 CLR 447; R v PGM [2008] NSWCCA 172 at [26]- [27]). This is of course necessarily modified by the context in which the offence occurred and the other circumstances of the offending (R v PGM [2008] NSWCCA 172 at [26]- [27]; R v AJP [2004] NSWCCA 434 at [24]- [26]). I also note that the precise duration of the offending is unknown but I accept the Crown's submission that it was 'likely to be minutes' (Crown submission at paragraph 34).
4. As to the two counts of committing an act of indecency, count 2 is plainly more serious than count 3 as it involved sexual touching of the complainant's genitalia.

1. The complainant has not provided a victim impact statement. The court cannot draw any inference about the harm suffered by them from the fact that victim impact statements have not been given (see s.53(1)(a) of the Sentencing Act).
2. However I accept that the offences would have had a serious, adverse impact on the complainant. In R v Gavel ([2014] NSWCCA 56 at [110]) the court made the following observation about the effect of sex offences upon children,:

"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]."

1. The offender is a 49 year old man with close family support. He has four children in addition to the complainant, two from previous relationships and two with his current wife. His wife remains supportive of him. He was educated to year 12 and began a career in the public service in 1996. Prior to going into custody in August 2014 he was in full time employment with the Commonwealth for 25 years and was employed at a senior level in the IT field. He has no prior criminal history.
2. The offender is a person of previous good character and three witnesses were called to attest to that fact and that the offending behaviour was considered to be totally out of character. Evidence of this nature is capable of adding to the weight which the court attaches to an offender's favourable record. As Bray CJ said in Giles v Barnes ([1967] SASR 174 at 180):

"If the Court is told nothing is known against a man it assumes he possesses a good character in the negative sense, namely that there are no black marks against him so far as is known. It is, however, generally assumed, and in my view rightly, that where a witness who knows the defendant ... given positive evidence as to his character and reputation, that adds considerably to the weight which the Court attaches to the defendant's favourable record."

1. Character evidence was called from the offender's wife of 15 years. When asked if she would trust the offender with her young daughter upon his release from gaol, she replied 'absolutely' (Tn at p172 lines 27-28). TF and DM also gave character evidence on behalf of the offender.
2. TF has known the offender for 25 years as he had previously been married to her sister. TF described the offender as 'a very decent, honest guy' and said that she was 'shocked and horrified' upon learning that he had been found guilty of committing these offences. TF's evidence was that such conduct was out of character and that she would trust the offender with her two young daughters (Tn at p175 lines 5-16).
3. DM is the offender's adult son from a previous relationship. He has a 3 year old daughter. He also gave evidence to the effect that the offending was out of character and that upon the offender's release from custody he would trust him with his young daughter (Tn at p177 lines 11-27).
4. In my view the weight to be attributed to the character evidence provided is lessened somewhat by the fact that none of the character witnesses accepts that the offender deliberately committed the offences of which he has been convicted (Tn at p172 lines 27-28; p176 lines 10-16; p177 lines 33-44; and p178 lines 1-10).
5. I would also observe that while an offender's previous good character must be taken into account in sentencing, its weight as a matter of mitigation of sentence will vary according to the circumstances of the offending (Ryan v R [2001] HCA 21; (2001) 206 CLR 267 at 275 per McHugh J). In the context of this matter the offences are very serious and accordingly general deterrence and denunciation loom large in the sentencing process. In these circumstances the offender's previous good character has only a limited effect in the mitigation of sentence.

1. Section 33(1)(o) requires that the court have regard to the probable effect that any sentence or order under consideration would have on any of the offender's family or dependents. It was submitted on behalf of the offender that a full time custodial sentence will result in hardship and financial difficulties for his family. Such a proposition was said to be supported by the evidence, and in particular the evidence of the offender's wife. The evidence relevant to this matter was as follows:
   • AMH has been married to SH for 15 years during which time he has been the main income earner for the household. SH was earning about $106,000 per annum before resigning his position.
   • AMH works on a casual basis and estimates her take home salary to be about $10,000 this year. She is seeking full time employment but has been unsuccessful to date. AMH is also in receipt of Centrelink or Family Support payments of about $900 per fortnight, in addition to her income from performing casual work.
   • AMH has two dependent children (aged 10 and 12 years) who both attend non-government schools. The school fees are about $12,000 per annum. AMH approached the schools for fee relief but has not yet received a response.
   • The family home is subject to a mortgage of about $280,000 and the repayments are about $730 a fortnight. AMH's parents are paying the mortgage at the moment, but this is a short term proposition until AMH can 'find a job, sell the house, buy something with a smaller mortgage that [she] can manage on [her] own' (Tn at p172 lines 4-12).
2. The circumstance in which s.33(1)(o) may result in a more lenient sentence were considered by Refshaughe J in Cotter v Corvisy ((2008) 185 A Crim R 560 at 577, [82]) where his Honour said:

"... it seems to me that the approach that should be taken is that the effect of a sentence on the family and dependents of the offender should be taken into account, but will only result in any significant leniency where the effect is more severe or prejudicial than the inevitable and usual consequences of the imposition of a proper sentence or where it will not overwhelm the proper statutory purposes for which the sentence should be imposed."

1. In the present matter I am not persuaded that the imposition of a full time custodial sentence will have an effect upon the offender's family which can be said to be more severe or prejudicial than the inevitable and usual consequences associated with the imposition of such a sentence. It follows that while I have taken this matter into account it has not resulted in any significant leniency.

1. Section 33(1)(r) requires the court to take into account whether the recording of a conviction or the imposition of a particular penalty would be likely to cause particular hardship to the offender.
2. Counsel for the offender did not contend that the recording of a conviction or the imposition of a particular penalty would be likely to cause particular hardship to the offender.
3. In this regard I also note that at pp 7-8 of his report Dr Allnutt made the following observation about the effect of a custodial sentence on SH's mental health:

"To date your client appears to be coping within the correctional environment, although he does describe a degree of psychological distress. In my view, given his interpersonal difficulties, there is a risk that he will experience difficulties in managing his relationships with other inmates and, potentially, authority figures, but there is no evidence of that occurring at this stage, I would see his risk for deterioration in his mental state as relatively similar to that of the average inmate."

1. Section 33(1)(u) requires that I take into account whether the offender was in a position of trust or authority when the offences were committed.
2. The offender is the step father of the complainant. He had commenced dating his current wife when the complainant was approximately 16 months old, he moved into her house the following year and they married when the complainant was about 4 years of age. The complainant called the offender "dad".
3. There is no question that the offender was in a position of trust and authority over the complainant.
4. The offender's position as the complainant's step father can be seen to be an aggravating factor in relation to the acts of indecency, but not in relation to incest where abuse by a family member of the position of trust he or she occupies is an integral part of the offence and is reflected in the high maximum penalties for incest offences (see R v TC SCC 87 of 2010, sentencing remarks of Penfold J at page 4).

1. The reason(s) why the offender committed the offence is also a relevant consideration.
2. I accept the Crown's submission that the offender committed the offences for his own sexual gratification. Counsel for the offender did not challenge this aspect of the Crown's submission (Transcript p 193 lines 8-32).

1. I am also required to consider whether the offender has demonstrated remorse.
2. The submissions advanced on behalf of the offender frankly acknowledged that he had 'no remorse or contrition' in relation to his offending. Despite the verdict of the jury the offender continues to deny that he had the requisite intent to commit the offences. The pre-sentence report and the medical evidence also suggest an absence of remorse and insight.
3. The author of the pre-sentence report, Ms Brown, reported that the offender expressed limited acceptance of his offending behaviour (Exhibit Crown 1 at pp 2-3),:

"He minimised his own responsibility by continuing to claim that he offended in a state similar to sleep walking. [The offender] articulated the view that the victim held some responsibility for not talking about the offences the following day, which he suggested would have led to the family being able to resolve any distress felt by the victim. While he was able to identify the fear of detection that prevented self-disclosure at the time of the offences, [the offender's] predominant attitude appears to have been that the victim would have come to understand his behaviour as she grew older."

1. On the basis of the above observation Ms Brown concluded that the offender 'demonstrated a limited understanding of the impact of his offending on the victim, although he did express some retrospective insight into appropriate adult/child boundaries'(Exhibit Crown 1 at p 3).
2. In his report Dr Allnutt observed that the offender 'continued to maintain that the index offence was an accident'( Exhibit A2 at p4) and later expresses the following opinion (Exhibit A2 at p7),:

"Your client maintains his account that he was in a somnolent state at the material time of the offending and that his behaviour derived from a sleep disorder ..."

1. Section 33(1)(za) provides that 'current sentencing practice' is one of the matters the court is to consider in deciding how SH should be sentenced.
2. The submissions as to current sentencing practice were of limited assistance. Annexure A to the Crown submissions sets out what are described as sentencing tables in relation to these offences. Two cases were referred to in respect of the offence of incest (GF v R [2005] ACTCA 46 and PR v B [2014] ACTCA 40). The Crown referred to another case, R v AD ([2014] ACTSC 222) during the course of oral argument. Each case is distinguishable from the present matter.
3. GF concerned two counts of incest - involving two separate acts (digital penetration and cunnilingus) which occurred on the one occasion. The complainant was 10 years and two months old at the time of the offence. The offender, who had committed relevant prior offences, pleaded guilty and was sentenced on each count to three years and eight months imprisonment to be served concurrently. A non parole period of 14 months was fixed. The Court of Appeal rejected the contention that the sentence imposed was manifestly excessive observing that 'the sentence and non parole period, in our view, demonstrate a degree of leniency that is more than should be expected in the circumstances' ([2005] ACTCA 46 at [11]).
4. PR concerned one count of incest and one count of act of indecency. The complainant was the offender's step child and was under 10 years of age at the time of the offending. PR pleaded guilty and was sentenced to two years and six months imprisonment for the act of indecency offence and to five years and one month for the incest offence. After orders for concurrency the total effective sentence was 6 years and 6 months imprisonment with a non parole period of 4 years. A subsequent appeal by PR was dismissed.
5. PR is plainly distinguishable from the present matter. The complainant was under 10 years of age and hence the relevant maximum penalties were greater (20 years and 12 years imprisonment respectively as opposed to 15 years and 10 years in the present matter) and the nature of the offending was, in my opinion, objectively more serious than that in the matter before me (the relevant facts in PR are set out at [2014] ACTCA 40 at [9]- [10]).
6. In AD the offender was the complainant's 20 year old half brother. AD pleaded guilty and was sentenced, relevantly for present purposes, to three years imprisonment in relation to a count of incest. The sentence was wholly suspended and a good behaviour order imposed. There were a number of features of AD which make it clearly distinguishable from the present matter, including the offender's remorse, subjective circumstances and the absence of any threat or force.
7. While the cases referred to are distinguishable from the facts of the present case I am satisfied that the sentence I propose to impose fits conformably with the sentences referred to and is consistent with current sentencing practice in this jurisdiction.
8. In relation to the offence of committing an act of indecency on a child Annexure A to the Crown's submission refers to eight cases. Each of these cases has features which distinguish them from the present matter (such as, the age of the complainant; the nature of the offence; the plea; prior offences; or, that the offending constituted a course of conduct).
9. No real attempt was made to extract any principles from the cases referred to, other than the proposition that when assessing the objective seriousness in the indecent assault of a child it is necessary to consider the actual character of the assault, including the degree of physical contact (see GAT v R [2007] NSWCCA 208 at [22]). I also accept that physical touching of genitalia is generally regarded as a more serious form of this type of offending than other touching or the taking of photographs.

1. General deterrence, denunciation and recognition of the harm done to the victim of these offences are important factors in this particular sentencing exercise. Given the absence of any prior offending and the offender's low risk of reoffending, specific deterrence and the protection of the community have assumed less significance in this case.
2. Rehabilitation is also an important consideration. There is some complexity to the assessment of the offender's prospects for rehabilitation. As previously mentioned, the offender is in what Dr Allnutt describes as the 'pre-contemplative phase of acceptance'. In other words, he lacks insight into his offending and continues to deny that he had the requisite intent to commit the offences. Such a lack of acceptance may be said to impair his rehabilitation. However, Dr Allnutt deals with this issue in his report, he states:

"He is in a pre-contemplative phase of acceptance. In my view, this is not an uncommon position for people convicted of sexual offences to adopt particularly in the pre-sentence phase, and it is probable that he would be able to be moved from the pre-contemplative to the action phase and engage in a sex offender rehabilitation program. He does voice a degree of motivation, although he couches it in terms of understanding better the impact that his behaviour had on his step daughter." (Exhibit A2 at p9)

1. In the course of his report Dr Allnutt also recommended that the offender engage in a sex offender program 'with a focus on assisting him to move from a pre-contemplative phase ... to an action phase' (Exhibit A2 at p7). I endorse Dr Allnutt's recommendation.
2. There are a number of factors which support a finding that the offender has good prospects for rehabilitation, namely: there is no history of prior offending, he has a low risk of recidivism and he has a supportive family and a good employment record. I am satisfied that the offender has good prospects for rehabilitation.
3. Counsel for the offender conceded that a period of imprisonment was inevitable, given the nature of the offending, but submitted that the court should consider alternatives to full time imprisonment including a wholly or partially suspended sentence and periodic detention.
4. I have considered the various alternatives to a sentence of imprisonment to be served by full time detention, but I am satisfied that no other penalty is appropriate.
5. SH, please stand. I record convictions on one charge of incest with a young person under 16 years of age and two charges of committing an act of indecency with a young person under 16 years of age.
6. I now sentence you for those offences as follows:
   • (a) for the incest offence (count 1) - to five years imprisonment;
   • (b) for committing an act of indecency (count 2) - to two years' and nine months imprisonment; and
   • (c) for committing an act of indecency (count 3) - 6 months imprisonment
7. Having regard to the fact that these offences were committed as part of the one incident, and that counts 1 and 2 were effectively contemporaneous, I will order a substantial degree of concurrency between these individual sentences.
8. I note that you have been in custody since 29 August 2014 and that is a matter which must be taken into account (s.63(2) Sentencing Act). The sentence in respect of count 1 will commence on 29 August 2014. The sentence in respect of count 2 will be served concurrently with the sentence imposed in respect of count 1 and hence will also commence on 29 August 2014. I will order partial concurrency in respect of the sentence for count 3, that sentence will commence on 29 May 2019.
9. The orders as to concurrency and cumulation result in a total effective sentence of five years and three months imprisonment from 29 August 2014 until 28 November 2019.
10. I now turn to consider the non parole period.
11. The fact that you have good prospects of rehabilitation; an absence of prior offending and a low risk of reoffending have led me to impose a shorter than usual non parole period.
12. I fix a non parole period of 2 years and 9 months from 29 August 2014 to 28 May 2017.
13. The earliest date on which you will be eligible to be released on parole is 29 May 2017.

I certify that the preceding 74 numbered paragraphs are a true copy of the Reasons for Sentence herein of his Honour Justice Ross.