R v WR

Crimes Act 1900 (ACT), s 61(2)

Crimes (Sentencing) Act 2005 (ACT), s 7

R v Scheeren [2014] ACTSC 272

Legal Aid ACT (Offender)

1. The offender appears before me today for sentence having been found guilty by a jury of the following six charges:

(a) An act of indecency on a child under the age of 16 years, between 1 September 1990 and 31 December 1990.

(b) An act of indecency on a child under the age of 16 years between 1 September 1990 and 31 December 1990.

(c) An act of indecency on a child under the age of 16 years between 1 December 1991 and 30 April 1992.

(d) An act of indecency on a child under the age of 16 years between 1 January 1991 and 30 June 1992.

(e) The sixth count on the indictment was that of an act of indecency on a child aged 10 or 11 years between 1 January 1991 and 30 June 1991.

(f) Count 7 on the indictment, again an act of indecency on a child under the age of 16 years between 1 January 1991 and 30 June 1991.

2. Each of the counts are offences against s 61(2) of the Crimes Act 1900 (ACT) and carry a maximum available term of imprisonment of ten years.

3. The victim was born in 1980 and there is no dispute that at the time of each of the offences she was aged between 10 and 11 years and certainly under the age of 16 years. The offender was her stepfather, her natural father having died in 1985 when the victim was four or five years old. There were four children of that marriage. Her mother had entered into a relationship with the offender and married him in 1991. There were no children of that relationship. The offender had a daughter who stayed with the family from time to time. They separated in about 2003.

4. Initially the family lived in a house in Chisholm in the ACT, moving to Theodore in about March 1991. At the Chisholm house were the victim, her mother and younger brother, and the offender was there for a period of time. The victim's older sister lived there for a few weeks only. In the Theodore house was the victim, her mother, her younger brother and the offender. The offender's daughter stayed there on some weekends.

5. Count 1 on the indictment occurred at the Chisholm house between 1 September 1990 and 31 December 1990. The victim was aged nine or ten. She walked into her mother's bedroom where her mother was asleep. The offender was in bed and called the victim to him. He was naked. She went to him. He made her put her hand on his penis and touch it. His penis was erect. The victim felt scared and intimidated and said that she did not know what to do. She left the room. She did not tell anybody about this event at that time.

6. Count 2 occurred between 1 September 1990 and 31 December 1990 in Canberra at the Chisholm house a few weeks after the events in count 1. The victim thought she was at the end of year four at school and thus aged about ten years. The offender was sitting on a three-seater couch in the lounge room. He asked the victim to come and sit on his lap which she did. She had her back against his chest and was facing the television. He placed his hands on her hips and thighs and started to move himself around on her. This made her feel scared and uncomfortable. His genital area was touching her bottom and vaginal area. She got off his lap and went away.

7. Count 3 occurred between 1 December 1991 and 30 April 1992 in Canberra. At times the family went to Point Hut to swim and have a picnic. The victim was aged about 11 years and in year 5 at that time. The offender drove the family to Point Hut to an area across from the main beach. There was a rocky area in the water and the offender was sitting on a rock in the water. The victim said he pulled her to him and she wrapped her legs around him facing him with her hands around his back. She said he started to do that grinding thing again and his penis became harder and he was moving it against her bottom for a few minutes. She felt uncomfortable and got off. Again, she told no-one as she said she had no idea who to tell or what to say and she was scared.

8. Count 4 occurred between 1 January 1991 and 30 June 1992 in Canberra in the Theodore house in her mother's bedroom. The victim was in year five or six at school. She said she went into her mother's bedroom. The offender was in bed watching television. Her mother was not there. The victim lay on the bed to watch television as well. The offender had his arm around her and began to rub her bottom with his left hand underneath her pyjamas. She felt uncomfortable and frightened but could not tell anybody. He stopped and she got up and went away.

9. Counts 6 and 7 occurred in one episode. This was between 1 January 1991 and 30 June 1991 in Canberra and again in the Theodore house. The victim said she was in year 5 or 6 and thus aged about 10 or 11. She woke up in her bed and said the offender was in her bed with her with his arm around her. He put his arm and hand down her pants and began rubbing her vaginal area from the front and the back. He had no pants on. She said he then grabbed her hand and his penis was soft and he began to guide her hand onto his penis. She said, "What's going on? What are you doing?" He then got up, opened the door and walked out.

10. In dealing with subjective features I note the offender is now almost 65 years of age. At the time of the offending he was around 40 years of age. His prior criminal history is of traffic matters and fines in New South Wales for gun offences only. It is of no great significance.

11. He was a plumber by trade and operated his own business for many years. He ceased work in 2004, as I understand it, as he was kicked by a horse and suffered multiple injuries. I also understand he has suffered from a heart condition and has had heart surgery in about 2006. He also suffers type two diabetes and has had a back injury and apparently a knee problem. He also lost the sight of his right eye in an accident many years ago.

12. The pre-sentence report of 21 July 2015 notes that a medical assessment by ACT Health in May 2015 noted a number of medical conditions which are unspecified and it appears the offender has received appropriate treatment since he has been remanded in custody. I have no medical reporting in respect of any of those conditions, although I accept he is receiving appropriate treatment for the conditions which have been noted.

13. The author of the pre-sentence report thought the offender suitable for low level intervention by the ACT Corrective Services, commensurate with the assessed risk, with supervision to address risks of sexual offending and referral to counselling programs in relation to child sexual offences and the like. It noted social isolation. However, it was noted the offender's outright denial and opposition to therapy is a concern.

14. It is also of concern to me that the offender advised ACT Corrective Services that he takes no responsibility for these offences and categorically maintains a denial of the offences, saying they are a fabricated conspiracy against him. He expressed no desire to undertake any interventions if convicted and he showed no victim empathy. That does not lie easily with the comment by ACT Corrective Services in respect of future matters to address such problems.

15. Turning to objective factors. The offending conduct involved his stepdaughter who was aged about 10 to 12 years at the time. There are six charges involving five episodes over about a two year period. The offender assaulted his stepdaughter by rubbing her genitalia, touching her genitalia and making her touch his erect penis. Most of these events took place in the home, a place where the victim was entitled to feel safe. She initially felt unable to confide in anybody until she spoke to her older sister in about mid-1993. At that time a report was made to Family Services and the victim was placed in foster care for a short period of time. She also confided in a school teacher at a later time and some of her school friends. She reported to the police in 2014 when she felt able to relate those incidents.

16. As a stepparent his actions are a significant breach of trust to a young child. The offences noted in counts 1, 6 and 7 fall in a higher range of objective seriousness than those in counts 2 and 3, noting the activities in each of those offences. I assess counts 2, 3 and 4 as falling in the lower range of objective seriousness and those in counts 1, 6 and 7 as falling above mid-range but not in the highest range of objective seriousness.

17. The victim read a victim impact statement in court. She was clearly upset. She spoke of the disruption the offences caused on her life, at school and within her family and social circle. She described her abuse of alcohol as a result of the assaults and her need to seek psychological help. She described the effect which the offences have had on her, in sexual relationships in particular. Clearly there has been a significant impact upon her and I acknowledge all these matters.

18. For offences involving sexual offences against children the court must impose sentences which make it clear to those who commit those offences that they will attract stern punishment. These are historic offences and the offender is entitled to be sentenced in accordance with sentencing practices as at the time the offences occurred.

19. I have had the benefit of written submissions from both counsel and also schedules prepared by them in relation to sentences passed in the ACT Supreme Court during the period 1990 to 1992. Whilst it is difficult to ascertain precise details from such a schedule, they appear to show that sentences overall were more lenient than at present times although they do not show if there was a guilty plea or if the sentence followed a trial or any other distinguishing matters.

20. Each counsel has referred me to a number of cases, all of which I have read and for which I thank them for their assistance. Of particular utility to me is the decision of R v Scheeren [2014] ACTSC 272, 16 October 2014, a decision of the Chief Justice in which she comprehensively looked at sentencing patterns in 1980 and 1981 concluding that there was a sentencing pattern pursuant to which the court imposed non-parole periods significantly less than currently imposed. Of course, the present matter is some decade later.

21. The Court is bound by the provisions of the Crimes (Sentencing) Act 2005 (ACT) ('Crimes Sentencing Act') and the essential parameters of objective circumstances, subjective matters and the maximum available penalty for any offence. The Court must have regard to the sentencing purposes of s 7 of the Crimes Sentencing Act. Adequate punishment is a central purpose and the primary indicator is the maximum penalty with 10 years imprisonment. Specific and general deterrence are also considerations, as is protection of the community and promotion of rehabilitation. I acknowledge the harm done to the victim and the devastating effect the offences have had on her.

22. In looking to the sentencing patterns at that time I am mindful of the lesser sentences imposed and it would seem to me that I should categorise the sentences in the two categories to which I referred; namely, that the offending in counts 2, 3 and 4 falls within a lesser range than the sentences which need to be imposed in relation to counts 1, 6 and 7.

23. I have considered the penalties available and it is conceded that imprisonment is called for in relation to these matters. I have previously noted my concerns in relation to the offender's indications to ACT Corrective Services in that he accepts no responsibility for his offences, however, that is not a factor which would increase the sentences which I intend to impose.

24. WR, you are convicted on each charge and I sentence you as follows.

25. In relation to count 2, I impose a sentence of imprisonment of nine months from 26 March 2015 to 25 December 2015.

26. In relation to count 3, I impose a sentence of imprisonment of nine months from 26 August 2015 to 25 May 2016.

27. In relation to count 4, I impose a sentence of imprisonment of nine months from 26 January 2016 to 25 October 2016.

28. In relation to count 1, I impose a sentence of imprisonment of 18 months from 26 June 2016 to 25 December 2017.

29. In relation to count 6, I impose a sentence of imprisonment of 18 months from 26 March 2017 to 25 September 2018.

30. In relation to count 7, again, I impose a sentence of imprisonment of 18 months from 26 December 2017 to 25 June 2019.

31. The overall effective sentence I impose is a sentence of four years and three months commencing on 26 March 2015. I set a non-parole period of two years and six months from 26 March 2015 to 25 September 2017. There is an accumulation of five months on the first series and of nine months on the last.

32. I haven't specifically referred to it and I probably should and that is in relation to the delay in reporting. I referred to the fact that the victim had reported to her sister and later to school friends and her school teacher, and that there was no reporting until 2014 to police, but also I take into account the fact that there was a period the victim was under the care of Family Services but ultimately no action was taken and she was returned to the family, including the offender and at that stage, of course, I think he was entitled to believe that no further action would be taken and none indeed was until 2014 when the complaint was made to the police.

I certify that the preceding thirty-two [32] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Ashford.