R v WR

See [42] to [47] below.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - offender to be sentenced for two acts of indecency on young girls committed in 2001 - offender in position of trust - need to consider "current sentencing practice" - criminal history including recent convictions for earlier sexual offences.

Crimes (Sentencing) Act 2005 (ACT), ss 33(1)(za), 66

Crimes Act 1900 (ACT), ss 92K(1), 92K(2)

Human Rights Act 2004 (ACT), s 25

OH v Driessen [2015] ACTSC 148

R v DK [2014] ACTSC 173

R v Farrugia [2013] ACTSC, Penfold J, 1 October 2013

R v Fitzpatrick [2013] ACTSC, Nield AJ, 25 June 2013

R v GJ [2014] ACTSC 186

R v Kelly [2014] ACTSC, Murrell CJ, 28 April 2014

R v Scheeren [2014] ACTSC 272

R v WR (No 4) [2015] ACTSC 211

Stalio v The Queen [2012] VSCA 120; (2012) 223 A Crim R 261

Legal Aid ACT (Offender)

1. WR has been found guilty by a jury of two offences, one of an act of indecency on a person under the age of 16 and one of an act of indecency on a person under the age of 10 years. These offences arise under provisions that at the relevant time were numbered as ss 92K(2) and 92K(1) of the Crimes Act 1900 (ACT), and carried respective maximum penalties of imprisonment for 10 and 12 years.

2. The offences were committed on the same evening in 2001. WR attended a small party at the home of close friends who had two daughters. WR was the godfather of one of the girls, E, then aged 10. Her nine-year-old friend, A, the daughter of other guests at the party, was also present. WR and those other guests, who had been drinking and therefore did not want to drive home, stayed overnight at the house. WR was offered the sofa bed in the living area, and his goddaughter and her friend, both of whom were very fond of WR, volunteered to share the sofa bed with him.

3. The jury in finding WR guilty accepted the evidence of the two girls that in the course of the night, he had touched both of them indecently. E said that he had touched her around her vaginal area, although the jury was not satisfied by her evidence that he had digitally penetrated her vagina, which was the subject of a charge on which he was found not guilty. A said WR had made her kiss him and hold and stroke or rub his penis.

4. The allegations came to the attention of the parents of the two girls within weeks, and the matter was reported to police in general terms, but it was made clear that the girls did not want to make formal complaints at that stage. Only in 2012 did the girls, by then of course young women, speak to police about what had happened 11 years earlier. In due course, WR was charged and his trial on these allegations took place earlier this year.

5. WR had not spent any time in custody until the jury found him guilty of these two offences on 26 March this year, at which point I remanded him in custody.

6. Since then, WR has also been tried and found guilty of six charges involving acts of indecency against his stepdaughter allegedly committed in the early 1990s when she was 10 or 11 years old. On 27 July this year, he was sentenced for those offences to a total of four years and three months imprisonment with a non-parole period of two years and six months; a head sentence made up of three nine-month sentences and three 18-month sentences and, obviously, a fairly substantial degree of concurrency among the sentences (R v WR (No 4) [2015] ACTSC 211).

7. It will be necessary for me to take those sentences into account for totality purposes when I determine what sentences I should impose.

8. The sentences imposed by Ashford AJ were backdated to the date on which I remanded WR in custody, so he has already had the benefit of that pre-sentence custody. I shall bear that in mind in determining the degree to which the sentences I impose are accumulated on those earlier sentences.

9. As well as the facts arising from the jury trial, the following material is in evidence before me:

(a) two victim impact statements;

(b) WR's criminal history; and

(c) a pre-sentence report;

all of which were tendered by the prosecution. No evidence was tendered by the defence, although, defence counsel did provide the results of some useful research about sentencing practices in the early 2000s.

10. In considering the objective seriousness of these offences, I have had regard to the following matters.

11. Both the offences were not minor examples of acts of indecency, but nor were they the worst that can be imagined.

12. They were aggravated by the breach of trust involved. In my view, WR was in a position of trust in relation to both girls arising out of the trust shown by the parents of the girls in consenting to their wish to sleep in the sofa bed with WR. That trust presumably reflected the more general trust placed in WR by E's parents who had appointed him as E's godfather and who, presumably for that reason, also had no qualms about permitting another young girl to share his bed.

13. I do not consider that this finding is inconsistent with the comments of Refshauge J in OH v Driessen [2015] ACTSC 148 at [138] to [149]. Indeed, I also consider that, consistent with Refshauge J's conclusions, WR was in a position of trust directly in relation to the two victims arising from their apparent genuine affection for WR, developed over an extended period in which he had been a regular and welcome visitor to E's home, and their recognition of him as at least a close friend of E's parents.

14. However, I have not heard any submissions about the exact extent of the uncertainties raised by his Honour in that judgment, or their impact in a case of this sort, so I shall not rely on that second kind of position of trust but take account only of the undoubted trust in WR demonstrated by E's parents.

15. I note also that A, one of the victims, gave evidence that WR had told her not to tell anyone else what had happened, which in the circumstances appears to have been an attempt to exercise authority that WR believed he could exercise in relation to her.

16. There was no evidence of any obvious grooming behaviour by WR before the night of the offences, and unchallenged evidence that it was the girls rather than WR who had proposed that they all share the sofa bed. Accordingly, I accept that the offences were unpremeditated and opportunistic.

17. WR maintains that he is innocent of these offences, and accordingly has expressed no remorse. To the contrary, he told the pre-sentence report author in a report prepared covering both the current offences and the offences for which he was sentenced by Ashford AJ that the offences did not happen and that he is the victim of a "fabricated conspiracy" against him.

18. Both victims prepared victim impact statements which they, very bravely, read to the court.

19. E described panic attacks, disturbed sleep, anxiety, tension headaches and general poor health, which she attributes in part to ongoing depression and stress. She has problems with body and self-image, and often feels isolated when in the company of others who do not understand her experiences. She still struggles to open up to the doctors and psychologists from whom she seeks help. She has used alcohol and smoking as a coping mechanism, and has had suicidal thoughts. She has also felt guilty about not coming forward with her claims earlier, fearing that this might have allowed other children to be abused.

20. A described having recurring nightmares about WR. She mentioned the problem it caused when she confided in a school friend about the abuse, resulting in her becoming a topic of gossip within her school, avoiding school, and eventually needing to move to another school. A also described the strain she suffered in the lead up to the trial, causing a racing heart and much lost sleep.

21. It is notable that both women alluded to the difficulties that WR's molestation had caused them in their adult relationships with men. This is a consequence commonly reported by the survivors of sexual abuse but, I suspect, often not understood by the perpetrators of this kind of abuse who, if they consider the matter at all, either believe it will be quickly forgotten or, in some particularly disturbing cases that I have come across, believe that it will somehow enhance their victim's sexual responses later. I should emphasise that there is no suggestion that WR took that last-mentioned approach to his offending; on the other hand, as already noted, he denies the allegations and does not admit to any remorse or regret for his actions.

22. Two of the 18-month sentences imposed by Ashford AJ related to offences bearing some similarity to the offences I am dealing with. Her Honour, who assessed them as above mid-range but not in the highest range of objective seriousness, described the offences as follows:

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.

23. I consider that the two offences I am dealing with are also slightly above mid-range seriousness. There are various grounds on which I could assess one of them as slightly more serious than the other, but those grounds do not all run one way. For instance:

(a) the offence against A, in requiring her participation rather than simply submission, is in my view slightly more unpleasant than the other offence;

(b) the victim impact statements suggest that E might have suffered more than A from WR's abuse; however, I hesitate to place too much weight on this because that impression might simply reflect differences in how the two victims express themselves, rather than in the real impact on each of them;

(c) E's abuse by her godfather and a trusted family friend may have been slightly more distressing than A's abuse by someone who did not have such a central role in her life, although I note that A also seems to have been fond of WR;

(d) A was at the upper end of the age range covered by the offence charged, while the offence charged in respect of E, although covering any victim under 16, would normally only be charged in respect of victims aged 10 or older, thus putting E at the lower end of the normal run of victims of that offence (of course, the offence against younger children carries a higher penalty, which would account for the fact that A was in fact younger than E).

24. Having regard to these factors, I do not propose to identify one incident of abuse as more serious than the other, but the offence against A will receive a slightly higher penalty than the offence against E to reflect the higher maximum penalty of the relevant offence.

25. I have also had regard in this sentencing to WR's subjective circumstances.

26. WR is now 64. His criminal history in the ACT, apart from the most recent offences, consist entirely of traffic offences, the most recent in 1992. In New South Wales, he was fined last year for several apparently minor firearms offences.

27. WR was born in New South Wales and grew up in a happy family with two siblings. His parents and brother are now dead, but he continues to be supported by his sister, with whom he was living before being remanded in custody. WR has been married twice. He has a daughter from his first marriage, who is now in her thirties, but has had no contact with her for 10 years or so, apparently because WR disapproves of her partner. One of his step-daughters from his second marriage was, as mentioned, the complainant in his other trial on similar charges. Most recently, his 10-year relationship with a woman with five children broke down after he was charged with the current offences.

28. WR left school at 16 after his father's premature death, and completed a plumbing apprenticeship. After working briefly as an employee, he established his own business, which operated for many years until his health failed and he became eligible for a disability support pension in the early 2000s.

29. An assessment of WR when he was first remanded in custody identified a history of heart problems for which he now has stents, and a recent knee replacement. He suffers, among other things, from high cholesterol and chronic back pain. There is no suggestion that his health problems cannot be properly managed in custody.

30. WR has consumed alcohol for many years, but for at least the last 20 years has drunk only in moderation, claiming to average about three standard drinks each week. There has been no direct evidence or claim that the current offences were attributable to WR's intoxication, or that his judgment was impaired by intoxication, although I note that the ostensible reason for the various guests staying overnight after the party was that people had been drinking and should not drive home.

31. The pre-sentence report author provided the following comments:

[WR] has not accepted responsibility for the offences. He has not expressed empathy and neither has he shown insight into the potential harm his actions may have impacted the victims. [sic]

The offender's outright denial and verbalised opposition to therapy is a concern, as is the period of time over which the offending behaviour has extended. It is, however, considered that with appropriate intervention, [WR] may be able to address any underlying issues that may have contributed to the offences. Assessed as being at a low risk of both general and sexual reoffending, he may benefit further from addressing other issues, including social isolation, which he has experienced following the current charges.

32. Since WR denies the offences, it is unsurprising that he has no interest in any treatment aimed at reducing his risk of re-offending. One might think that this would mean that he will continue to pose the same risk to young girls, but I note, although it is not entirely explicable, the pre-sentence assessment that he is at low risk of further sexual re-offending.

33. These are offences for which general deterrence is particularly important, because they involve vulnerable victims who are often for whatever reason reluctant to make complaints, thus leaving offenders free to continue abusing the trust placed in them by virtue of their apparent good character.

34. WR's denial of responsibility suggests that he also requires personal deterrence. I am satisfied that no penalty other than imprisonment is appropriate for these offences.

35. Section 33(1)(za) of the Crimes (Sentencing) Act 2005 (ACT) requires the sentencing court to consider, among many other things, "current sentencing practice". There is a question whether that phrase refers to practice at the time sentence is imposed or at the time the offences were committed.

36. In the case of R v Scheeren [2014] ACTSC 272 (Scheeren), Murrell CJ concluded that if sentencing patterns at the time of an offence showed more leniency than current patterns, this should be taken into account in sentencing, especially having regard to the similar (although not identical) principle relating to reduced penalties for particular offences that emerges from s 25 of the Human Rights Act 2004 (ACT) (at [57]). Her Honour's approach drew on the conclusions of the Victoria Court of Appeal in Stalio v The Queen [2012] VSCA 120; (2012) 223 A Crim R 261 that, although "current sentencing practice" referred to sentencing practice at the time of the sentencing rather than at the time of the offence, a sentencing court was not prohibited from taking account of sentencing practices at the time of the offence in seeking to impose a sentence that is just in all the circumstances.

37. I note in this context that the expression "current sentencing practice" is arguably wide enough to encompass not just the range of sentences currently imposed for reasonably contemporaneous offences but also the approach currently adopted in sentencing for so-called "historical" offences. There is to my knowledge nothing in the explanatory material relating to this provision that requires it to be interpreted more narrowly.

38. In Scheeren, her Honour concluded that the evidence put before her of sentencing outcomes in 1980 and 1981 did not permit any conclusion about the pattern of head sentences for the sexual offences being dealt with in that case, but did suggest that non-parole periods (across the board rather than just for sexual offending) were generally lower than they currently are. Ashford AJ, in sentencing WR last week, noted the conclusion about non-parole periods and that the offences that she was sentencing were committed a decade later than those dealt with in Scheeren. Ashford AJ set the non-parole period at about 59% of the head sentence, which is toward the lower end of what is often mentioned as the normal range applied in sentencing adults for recent offences in these courts. For instance, in Scheeren, the Chief Justice noted that non-parole periods currently "often lie in the range of 50 - 70% of the effective sentence". The offences for which I am sentencing WR were of course committed a further decade after the offences dealt with by Ashford AJ, and only about 14 years ago.

39. As well as the matter of Scheeren, counsel referred me to sentencing remarks in the matters of:

R v Fitzpatrick [2013] ACTSC, Nield AJ, 25 June 2013

R v GJ [2014] ACTSC 186

R v DK [2014] ACTSC 173

R v Farrugia [2013] ACTSC, Penfold J, 1 October 2013

R v Kelly [2014] ACTSC, Murrell CJ, 28 April 2014.

40. I have considered all those sentencing remarks. All are useful in terms of identifying points on a range, albeit not the limits of a range and certainly not the limits of the range for these particular offences (for instance, two of those matters involved sentences imposed on offenders for offences that were more minor than the current ones and that would never have come to light but for voluntary disclosures by the offenders themselves).

41. Finally, I note that Ashford AJ considered that WR's criminal history was "of no great significance", and presumably allowed some leniency on that basis. I, however, am sentencing a person who has a criminal history of the same kind of offence, involving six convictions in relation to one victim. The fact that those earlier offences have only been proved and dealt with since WR was tried on the current offences does not in my view detract from their significance as part of his criminal history in the current sentencing.

42. WR, please stand. I record convictions on one offence of an act of indecency on a person under the age of 16 and one of an act of indecency on a person under the age of 10.

(a) for the first offence, to imprisonment for 20 months; and

(b) for the second offence, to imprisonment for 24 months.

44. The second sentence will be served so as to extend six months beyond the end of the first sentence, giving a total sentence for those two offences of 26 months and an effective accumulation of two months.

45. That sentence will be accumulated on the sentence already imposed by Ashford AJ so as to extend the total sentence by 15 months, giving a total sentence of five years and six months. Ashford AJ set a non-parole period of two years and six months, representing, as already noted, a period of roughly 59% of the head sentence. Under s 66 of the Crimes (Sentencing) Act 2005 (ACT) I need to set a new non-parole period to cover the total sentence, and accordingly I set a non-parole period of three years and one month, which is 56% of the total sentence.

46. The sentences I have imposed will run as follows:

(a) for the offence against E, from 26 July 2018 to 25 March 2020; and

(b) for the offence against A, from 26 September 2018 to 25 September 2020.

47. The new non-parole period will run from 26 March 2015 to 25 April 2018; thus the effect of the backdating provided by Ashford AJ, and the non parole period that I have set, is that you will be eligible for parole at the earliest in about another 33 months, namely 25 April 2018.

I certify that the preceding forty-eight [48] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold.