R v Shiel

District Court of NSW|2022-12-05

JUDGMENT

The offender appeared at the Downing Centre Local Court on 9 June 2022 and pleaded guilty to three charges of intentionally sexually touch child who is of or above the age of 10 years and under the age of 16 years contrary to s 66DB(a) of the Crimes Act 1900 (NSW). The pleas of guilty were adhered to at the sentence hearing on 5 December 2022. Accordingly, the offender is entitled to the full 25% discount for utilitarian value of the pleas of guilty. The maximum penalty for the offence of intentionally sexual touch a child who is of or above the age of 10 years and under the age of 16 years is 10 years imprisonment.
In addition to the three substantive matters, the offender asks that when passing sentence, the Court take into account an additional offence of intentionally sexually touch child who is of or above the age of 10 years and under the age of 16 years also contrary to s 66DB(a) of the Crimes Act.
In dealing with matters on the Form 1 I will need to ensure that I apply the principles enunciated by the Court of Criminal Appeal in the Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146.
Admitted on behalf of the Crown were the following: 1. Notice of committal (Ex C1) 2. Charge certificate (Ex C2) 3. Form 1 (Ex C3) 4. Agreed facts (Ex C4) 5. Criminal history (Ex C5) 6. Custodial history (Ex C6) 7. Sentencing assessment report (Ex C7) 8. Case note report (Ex C8) 9. Bail conditions (Ex C9)
Admitted as Ex O1 on the sentence hearing on behalf of the offender was the Psychological report of Mr Patrick Sheehan dated 19 October 2022.
In determining the appropriate sentence, I acknowledge that I am involved in a one step process in which it is necessary to have regard to all of the relevant facts and circumstances as are known to the Court including the facts surrounding the commission of the offences, those matters affecting its relative seriousness and the offender's subjective circumstances.

Agreed facts

The offender is a 63 year old male and is the victim's great-uncle. The victim was aged between 9 and 11 years old at the time of the offences. The offender was known to the victim, and others in the family as "Muncle". He was living with his father ('John') at 33 Ford Street, North Ryde ('Ford Street') and had a designated living area at the back part of the house, which included the back television room and adjacent bedroom.
At the end of 2018, John suffered a stroke, and from the beginning of 2019 and throughout 2020, the victim's mother ('Kelly') would attend the Ford Street home two or three morning per week, before school hours, for approximately 5 to 15 minutes to assist John with showering and other household tasks. Kelly would take the victim with her.

Sequence 2

On 19 November 2019, on the victim's 10th birthday, the victim was at the Ford Street home before school with her mother and brother. She was in the main room when the offender said he had something to show her. The victim went with the offender to his back room.
When they were in the back room, the offender hugged the victim and then kissed her on the mouth using his tongue. After tongue-kissing for a short time, the offender stopped and told the victim it was their secret, and she should not tell anyone.
The offender "French-kissing" the victim was not isolated to this occasion, and the offending occurred on five occasions between 2019 and 2020.

21 June 2021

The victim attended the Ford Street home with Kelly in the morning before school. The victim as wearing her sports uniform and a new Sydney North representatives soccer jacket. The week prior, the victim had won a soccer tournament and the offender had offered to pay for this jacket for the victim after her mother had said it was too expensive. On this morning, the victim went to the back room to show the offender her winner's medal and new jacket.

Sequence 5 (on a Form 1)

When the victim got to the back room, the offender was seated on a recliner chair. The victim sat on the offender, in the chair, straddling him. They hugged for a while. The offender said to the victim, "I've missed you so much" and "when you get older we can be naughtier in the bedroom". The offender then kissed the victim using his tongue. The victim was grinding her hips on the offender.

Sequence 8

While in this position, the offender put his hand inside the victim's sports shorts and underwear and touched the victim on the bare vagina using his fingers for ten to fifteen seconds. The victim tried to move away but the offender was holding her in a hug. The victim was uncomfortable and scared.

Sequence 3

After the offender touched the victim's vagina, he held the victim's hand and moved it inside his pants. The victim touched the offender's penis on the skin for ten to fifteen seconds. They later returned to the main room and the victim went to school with her mother.
It is agreed that the offender's sexual touching of the victim was not isolated to the above offences. In the years 2020 and 2021, there were occasions when the offender touched the victim's vagina, and the victim touched the offender's penis. This occurred in a similar position on the recliner chair in the back room, however, it was only ever on top of clothing. Sequences 8 and 3 above were the first time that the touching occurred under clothing.

Complaint

On 28 July 2021, the victim was at home with the rest of her family. Kelly heard the victim crying. When Kelly asked the victim what was wrong, the victim said "Muncle raped me, but he threatened me not to tell." Kelly said, "when you say rape, did Muncle have sex with you?" to which the victim said, "no, just kissing and touching". Kelly contacted the police.
On 3 August 2021, Kelly called the offender on two occasions. The calls were electronically recorded pursuant to a warrant.
In the first conversation (at 12:18pm), Kelly said that the victim had "told her what happened". The offender apologised and said he had kissed, cuddled and touched the victim. In response to Kelly saying, "she is just a little girl", the offender responded, "I know, I know, I don't know what I can say".
During the second conversation (at 12:30pm), the offender told Kelly "it's not what she thinks" because he "never forced her to do anything, it just happened". Kelly said, "she was only 10 when it started", to which the offender responded "I know… I don't know what else to say, you do what you have to do, do what's best for her, if you need to call the police then go ahead and do that, I hope you won't, but you do what you have to do". When asked how long the offending had been occurring, the offender said, "maybe twelve months, just a kiss here or there". The offender also said, "things happened that shouldn't have happened" and "I'm very, very sorry".
Following the second conversation, the offender sent the following text to Kelly: "I'm sorry Kelly, I only ask that dad isn't hurt in any way, I don't know what else I can say or do, if you need anything from me please let me know, I can't begin to say how sorry I am, do what you will with me, please don't hurt dad, if that's at all possible, thanks."

Arrest and ERISP

The offender voluntarily attended Ryde Police Station at 2:00pm on 3 August 2021 where he was arrested and taken into custody. He later participated in an ERISP.
The offender admitted that he had kissed the victim, had touched her backside, rubbed the victim's vagina on the outside of her clothing and that the victim had rubbed his penis on the outside of his clothing, while they were on the recliner chair. He told Police that they were very close and would cuddle often.
The offender explained how the victim would sit on him, facing him, while he was seated on his recliner chair and that she would grind on him, and they would kiss and touch. The offender said he should not have allowed this to happen, but he was "weak" and that he was the adult and was taking full responsibility.
The offender believed it started when the victim was 10 years old. They kissed a few times. He stated that on the first occasion, the victim kissed him using her tongue in his mouth and he "should have nipped it in the bud". The offender admitted that the "French kissing" occurred approximately five times, commencing in 2019 with "little pecks".
The offender initially denied touching the victim under her clothes, but when taken to the events of 21 June 2021, he admitted that such a denial was a "fib" and ultimately admitted that he did touch the victim on the vagina under her clothes on that occasion, however, did not accept that the victim had touched his penis on the bare skin.
The offender admitted telling the victim it was their secret. He denied saying "when you get older, we can do naughtier stuff in the bedroom", however, accepted he possibly wanted things to go further with the victim.
A review of mobile phones belonging to the offender and victim revealed an exchange of text messages commencing in April 2019. The messages including love hearts, and references to "missing" each other's "cuddles" and "kisses".

Psychological report of Mr Patrick Sheehan dated 19 October 2022

Following a four hour interview with the offender, Mr Sheehan prepared a treatment progress and sentencing report dated 19 October 2022. The offender had commenced a structured program of 10-12 individual treatment sessions with Mr Sheehan on 2 June 2022 and participated in two treatment sessions prior to being bail refused on 8 July 2022.
The treatment was designed to address the immediate and background factors relating to the offender's offending behaviour and included developing a detailed plan for how to manage the risk factors associated with sexual offending in the future. Mr Sheehan considered the program to be comparable to the "Low Intensity Sex Offender Treatment Program" as offered by CSNSW.
The offender was mostly a competent communicator but showed a pattern of agreeableness, tending to passively agree or otherwise defer to the interviewer as opposed to formulating his own ideas. His affect was mildly flat, with some anxiety but never profoundly depressed. He did become quietly distressed during discussion of offences and the impact of his behaviour on his family.
The offender was born and raised in North Ryde. He is the eldest child and has three younger sisters. He was raised in an intact, conventional, and well-functioning family unit. He denied any familial problems with domestic violence, mental illness, criminality, sexual abuse, or trauma. He had no learning problems and attended school until year 11. The offender had no history of psychiatric disorders or admissions.
The offender had a solid employment history, having worked within the Road Traffic Authority, in various roles, for 42 years. He settled in traffic light maintenance for 33 years. He retired in 2018, aged 60, with the intention of being a carer to his father. He managed his retirement poorly and fell into inactivity, stagnation, and life dissatisfaction. He entered retirement with no real plans and experienced a loss of purpose or stimulation. He was not clinically depressed at the time but was not well adjusted. The offender's mother died in 2001 and the offender had occupied a full time carer role of his 87 year old father since 2019.
The offending had resulted in complex family dynamics. He speaks with his father who did not wish to discuss the offences and he speaks with two of his sisters. His older sister, the grandmother of the victim, has cut off all contact.
The offender was diagnosed with Addison's disease, a disorder in which the adrenal glands produce inadequate hormones, for which he was treated with steroids. The offender had been diagnosed with an autoimmune disorder and compromised kidney functioning while in custody. He was on a range of medications to stabilise his multiple conditions.
The offender recalled being exposed to trauma in Parklea Correctional Centre, having heard an inmate in an adjacent cell being seriously beaten. He described partial symptoms of Post Traumatic Stress Disorder ('PTSD'), including intrusive distressing memories, autonomic arousal and being triggered by certain noises, but not the full PTSD criteria.
Mr Sheehan opined that the offender's offences were an example of disordered sexual behaviour, and the age of the complainant was within the range for paedophilic disorder, as is the period of offending, being longer than six months. The criteria were technically met, however, the offender's self-report of the absence of sexual interest in children prior to or since this period of offending, or beyond the complainant, meant the offender's case was atypical.
The offender freely acknowledged his offences, expressing shame and deep regret. However, shame had been a barrier to developing further insight into his behaviour, as the offender tended to become stuck in shame and negative self-evaluation whenever he attempted to examine his offending more closely. The offender expressed full appreciation that his actions had been harmful to the complainant and may cause difficulties in her life in the future.
It was very likely that his lack of intimate relationships or other sexual outlet, combined with his under stimulating lifestyle post retirement, were all factors that contributed to the offending. However, this remained a hypothesis until further treatment engagement could occur.
The offender presented as a motivated treatment participant and showed genuine curiosity to understand more about himself and how he came to engage in the offending.
Mr Sheehan considered the offender would be in the 'very low risk' range on standard actuarial risk assessment instructions (Static-99R), scoring a -2 of a possible 12 points. However, it was noted that the offender's dynamic risk factors were not yet fully understood but would appear to relate specifically to intimacy deficits, sexual frustration, and lifestyle issues pertaining to his poor adjustment to retirement.
Mr Sheehan concluded that it was unlikely the offender would be found suitable to participate in Corrective Services NSW intensive residential programs known as MISOP or HISOP in custody. Mr Sheehan considered there was more certainty for the offender's rehabilitation if he was afforded the opportunity to complete the treatment program commenced in mid-2022. Upon his eventual release from custody, Mr Sheehan planned to see the offender on a fortnightly to monthly basis for six months before entering a maintenance treatment phase of bi-monthly sessions for a further 12 months.
The offender's experience in custody was made more onerous than that of an average inmate considering his age, multiple health complaints, custody for the first time, and having been sentenced for child sexual offences. His SMAP status would assist in his protection, but reduce his amenability in the prison system, with fewer placement options.

Evidence of Mr Paul Martin Shiel

The offender's first cousin gave evidence at the sentence hearing. He has known the offender his whole life, being only a month older than him. Mr Shiel is aware of the offences for which the offender has been charged and has discussed them with him. In these discussions, the offender has allegedly expressed absolute regret, remorse and embarrassment, which Mr Shiel believes to be sincere. Mr Shiel described the offender's character as exemplary, stating that he has had a very stable work life, and in more recent years, has devoted himself to caring for his elderly father.
The offender resided with Mr Shiel and his wife for a period of approximately 8.5 months while he was on bail. Mr Shiel explained that the offender had significant restraints on his liberty and was not allowed to leave the unit unless attending medical appointments or to see his solicitor, in which case either Mr Shiel or his wife would be required to accompany the offender. The police were at liberty to visit the unit as often, and whenever they liked and they would, sometimes five times in one night.
The offender was 'exceptional' and would assist as much as he could during the period in which he lived with Mr Shiel and his wife. He would also assist Mr Shiel with his small charity for homelessness.
Mr Shiel confirmed that they had a very large family and would attend all kinds of family gatherings such as Christmas together. The offender was at most of those events and would interact well with the children.
Mr Shiel confirmed that he and his wife would support the offender in any way that they could, stating that he was welcome to live when them in their unit.
During cross examination, Mr Shiel denied being told that the offender had some attraction and emotional connection to the victim, however, accepted that there must have been some kind of attraction or association which led to the offending. Mr Shiel told the court that he did have adult children, and four grandchildren from their foster son. However, those grandchildren did not visit Mr Shiels home, and instead, Mr Shiel and his wife visited them. Mr Shiel also confirmed his daughter was having a child in March next year.
Mr Shiel confirmed that children did not visit the home with regularity. There were two children who lived below their unit who they knew well, however, they only attended if their parents permitted them and if Mr Shiel, or his wife, were in the unit.

Sentencing Assessment Report and Case note report

The offender had been assessed at a low risk of reoffending according to the Level of Service Inventory - Revised and assessed at a below average risk of sexual reoffending according to the STATIC-99Rv2016. The case note referred to some of the offender's dynamic risk factors as including intimacy deficits and sexual self-regulation. However, it noted that to definitively identify the offender's current dynamic risk factors, and to determine case management and intervention targets, further assessment post-sentencing by a CSNW psychologist was recommended.

Crown submissions

The Crown noted that child sexual assault offences were inherently serious, citing R v Gavel [2014] NSWCCA 56 at [110].
The Crown contended that in assessing the objective seriousness of the offences, it was significant to consider the actual character of the assault, including the degree of physical contact involved. Additional considerations included the age of the victim, the age gap, any use of coercion and the duration of the conduct. The Crown submitted that the duration of each offence was of less significance in this case, given there were many episodes of offending.
The Crown submitted, that the following factors add to the seriousness of the offending: 1. The victim was between 9 and 10 years old (sequence 2) and 10 or 11 years old (sequences 8 and 9), being at the bottom of the age range set for the offence. 2. There was a significant age gap between the victim and the offender of 51 years. 3. The offender was the victim's great-uncle and was in a position of trust. 4. The offences were not isolated.
The Crown conceded that the offender had no record of prior convictions, however, submitted that the offender's prior good history would be given minimal weight in circumstances where there was an ongoing and conscious course of offending from 2019 - 2021.
The Crown contended that general deterrence, denunciation and protection of the community loom large in this sentencing exercise, citing Hoeben CJ at CL in Eg v R [2015] NSWCCA 21 at [42]. The s 5 threshold had been crossed, and the only appropriate penalty was one of full time imprisonment.
At the sentence hearing, the Crown referred to comments in the report of Mr Sheehan (O1) and the case note report (C8), to the effect that the offender's dynamic risk factors were not yet known in their entirety. This impacted the assessment of the offender's risk of reoffending and rehabilitation.

Offender's submissions

The offender conceded that the offences were serious, particularly noting the age of the victim, the age gap, the position of trust and the fact that the offences were not isolated. Notwithstanding any subjective mitigating factors, it was conceded that a sentence of full-time imprisonment was appropriate.
The offender submitted that the following mitigating factors were present: 1. An early plea of guilty requiring a 25% discount. 2. Profound remorse and acceptance of responsibility. 3. Prior good character (and first time in custody). 4. Low risk of re-offending (very low with an appropriate treatment program).
Whilst conceding that general deterrence, denunciation and protection of the community demanded full-time imprisonment, the Crown's reliance on R v Fisher (1989) 40 A Crim R 442 at [445] of "Gaol for a long period of time" should be approached with some caution, given the significant differences in the facts of the cases and maximum penalties of the respective offences.
Senior Counsel for the offender contended that, with reference to Judicial Commission statistics, 27 months imprisonment for each offence, and an overall sentence of 3 years would be appropriate. Further, it was submitted that special circumstances should be made, given the offender's prospects of rehabilitation would be significantly enhanced if a period of parole of 18 months were available, during which he would engage in monthly and then bi-monthly psychology sessions.
At sentence, Senior Counsel for the offender submitted that it would be appropriate for the Court to backdate the commencement of the sentence to take into consideration time spent on bail under strict conditions, amounting to a form of "quasi-custody". It was contended that an appropriate backdate of 50% of the time the offender spent on bail would be appropriate.
The Crown conceded that it would be open to the court to consider backdating the sentence to some degree.

Consideration

In sentencing the offender, it is necessary to take into account the purposes of sentencing provided in s 3A of the Crimes (Sentencing Procedure) Act 1999 including: 1. ensuring the offender is adequately punished for the offence; 2. preventing crime by deterring the offender and others from committing similar offences; 3. protecting the community from the offender; 4. promoting rehabilitation of the offender; 5. making the offender accountable for his actions; 6. denouncing the conduct of the offender; and 7. recognising the harm done to the victim of the crime and the community.
At the time of the offending the victim had just turned 10, being the youngest age for the element constituting the offence. The last of the offending occurred when the victim was aged 11. There was a significant age difference between the victim and the offender.
The offending occurred in circumstances where there was an established familial relationship between the offender and the victim. The offending involved an abuse of trust arising from that established relationship. The offending was not isolated, instead involved a course of conduct over a period exceeding 18 months, with repeated intentional sexual touching.
It is well recognised that offences against children are subjectively serious and cause significant harm to victims. As the Court of Criminal Appeal observed in R v Gavel at [110]: "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]".
The court also takes into account the prevalence of child sexual offences committed in circumstances where there exists an established relationship between the offender and the victim. Such offending necessarily involves the abuse of trust to which reference has already been made.
I find that the offences fall within the low to mid-range of objective seriousness.
The sentence must reflect general and specific deterrence. In respect to general deterrence, denunciation and protection of the community, the observations of Hoeben CJ at CL in EG v R at [42] are apt: "The concern of the courts is to send a message to those who had sexually abused children intentionally and repeatedly that their actions will not be tolerated and that they will receive significant punishment".
There must also be an element of specific deterrence in respect to the offender, although I accept it is of lesser significance.
The offender has expressed considerable remorse in respect to his offending, recorded in the psychological report of Patrick Sheehan. The psychologist noted the offender's expressed shame and deep regret, so much so that it had been a barrier to developing further insight into his behaviour. The offender's remorse and regret is further supported by the evidence of the offender's cousin Paul Shiel. It is further demonstrated by the offender's early guilty plea for which he is entitled to 25% discount for its utilitarian value.
The offender has good prospects of rehabilitation, having voluntarily engaged in a treatment plan with Patrick Sheehan, interrupted by reason of the offender's incarceration. However, the offender has expressed his intention to continue with such treatment upon his release.
I accept that given the isolated nature of the offending, and the offender's steps towards rehabilitation, that there is a low risk of reoffending. This is consistent with the sentencing assessment report and case note report.
I take into account the offender's prior good character, although I accept the Crown's submission that this should be given lesser weight given the circumstances of the offending.
I find special circumstances are established given the offender's prospects of rehabilitation, enhanced with an earlier release and longer parole period. In finding special circumstances I also take into account that it would be the offender's first time being incarcerated.
Whilst there are three offences in respect to which the court is passing sentence, I find this is an appropriate matter for the court to invoke s 53A of the Crimes (Sentencing Procedure) Act 1999 and impose an aggregate sentence. It will be necessary for me to indicate what sentences I would have imposed had separate sentences imposed. A court sentencing an offender for more than one offence must determine the appropriate sentence for each individual offence and then consider questions of accumulation or concurrence bearing in mind the principle of totality. The effect of the totality principle is to require me, having assessed the individual offences, to stand back and consider whether the overall sentence to be imposed is just and appropriate and reflects the overall criminality of the offending.
There needs to be a degree of accumulation between the sentences imposed, given the offender is to be sentenced for committing three offences on the same victim on separate occasions.
I am satisfied that the s 5 threshold has been crossed, and having considered all possible alternatives, am of the opinion that no penalty other than full-time imprisonment is appropriate.
In respect to Sequence 2, intentionally sexual touch child aged 10 to 16, the appropriate sentence is 3 years from which is to be deducted the 25% for utilitarian plea of guilty, resulting in a total sentence of 2 years 3 months.
In respect to Sequence 8, sexually touch child aged 10 to 16, the appropriate sentence is 3 years, from which is to be deducted the 25% for utilitarian plea of guilty resulting in a total sentence of 2 years 3 months.
In respect to Sequence 3, intentionally sexually touch child aged 10 to 16, and taking into account a further charge of intentionally sexually touch child aged 10 to 16 (Sequence 5), the appropriate sentence is 3 years 6 months, from which is to be deducted the 25% for utilitarian value of the plea of guilty, resulting in a total sentence of 2 years 7 months (rounding down).
Taking into account the need for accumulation between sentences, a total aggregate sentence of 3 years and 6 months is appropriate.
Having found special circumstances, I impose a non-parole period of two years.
The offender was arrested and remained in custody bail refused until 21 October 2021. On that date the offender was granted bail by Hamill J in the Supreme Court with the imposition of strict bail conditions which included daily reporting to police, residing with his cousin, Paul Shiel, not to be absent from his place of residence except for attending legal or medical appointments, to report to police or attend court. Even when absent from the premises, the offender was required to be in the company of Paul or Karen Shiel. Further, the offender was to present himself at the front door of his premises at the direction of any police officer to confirm compliance with the conditions of bail. Mr Shiel gave evidence that the police often attended the premises, including multiple times in one evening. The Crown made a successful detention application, resulting in the offender being returned to custody on 8 July 2022. Accordingly, the offender has spent a total of 239 days in custody referrable to the offences.
The offender contended that the strict bail conditions amounted to quasi-custody and in the circumstances, the Court would further backdate the sentence taking this into account.
I accept that the bail conditions were sufficiently onerous and stringent so as to justify a further backdating of the sentence. The offender was subject to the strict bail conditions for a period of 259 days. The determination of appropriate backdating, if any, given the strict bail conditions is a discretionary matter depending on the circumstances of the individual case R v Fowler [2003] NSWCCA 321 at [242]; R v Webb [2004] NSWCCA 330 at [18]; Hoskins v R [2016] NSWCCA 157 at [36]; Frlanov v R [2018] NSWCCA 267 at [24]; Banat v R [2020] NSWCCA 321 at [18].
In the circumstances, the sentence will be further backdated by a further 100 days.

Orders 1. In respect of the offences to which the offender has pleaded guilty, the offender is convicted. 2. I impose an aggregate sentence of imprisonment for 3 years 6 months to date from 9 January 2022 and to expire on 8 July 2025. 3. I impose a non-parole period of 2 years to date from 9 January 2022 and expiring on 8 January 2024. 4. The earliest date the offender is eligible to be released to parole is 8 January 2024.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 December 2022

Crimes Act 1900(NSW)s 66DB(a)

At a glance

Court

Decision date

Source

Judgment (17 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (11)

Cited By (1)