R v YY No. 3

District Court of NSW|2016-12-01|Before: Ms J

Introduction

On 4 October 2016 an indictment was presented at Wollongong District Court containing 13 counts. After receiving legal advice YY, the offender, waived his right to trial by jury and elected for a trial by judge alone. The Director of Public Prosecutions consented to that course. The trial proceeded for some days. It was then adjourned for judgment.
The offences were said to have occurred at Berkeley, Warrawong and Kembla Grange between 2004 and 2006. The complainant, AA, was born on 21 November 1996. The offender is her maternal grandfather. He was born on 1 October 1946. He is now 70.
At various times during the trial the indictment was amended without objection to correct typographical errors and revise dates to accord with the evidence led. There was no evidence at all that the events described in count 10 occurred. YY was found not guilty of that count.
On 19 October 2017 I found YY guilty of all the remaining counts in the indictment. I must now sentence him for those 12 offences. My judgment at trial has, of course, informed this decision as have my findings of fact.

Evidence in summary

Counts 1, 2, 3 and 4 alleged that the offender assaulted AA, then a child aged eight or nine, and at the same time committed an act of indecency on her. The offences are said to have occurred between 21 May 2004 and 21 November 2005: s 61M(2) Crimes Act 1900.

Count 1

AA was in the garage of her grandfather's and grandmother's home getting an ice block from the fridge. The offender was working on his car. He came over to her and from behind grabbed "her boobs" over her clothes. He told her, "Your sister lets me": trial transcript 6 and 7. Her sister NP gave evidence that similar incidents had happened with her.

Count 2

AA said a few days after the garage incident she went to her nan and pop's kitchen to get a chocolate. The offender put his arm around her and squeezed her boobs. She walked back outside to other family members. She said, "I had to act normal". She said she did not say anything, "I couldn't because I couldn't. I was a kid. He's not meant to do that, I didn't know what to say": trial transcript 7 and 8.

Count 3

AA said that soon after the previous incident she was told to get scraps from the kitchen. She went to the shed where the dry dog food was kept. The offender shut the door and squeezed her boobs from the front, she then said, "Get off me", and they went to feed the dogs: trial transcript 9 and 10.

Count 4

This incident is said to have occurred in another shed on the property between the two dog cages: see sketch, exhibit A and trial transcript 10 and 14.
AA said the offender, when they were in the shed, grabbed her boobs. She said, "Pop - someone's going to come". He then turned her around and "rubbed his like hard...his penis, obviously, against my groin area. I then fed the dogs and sat by the frog pond".

Count 5

Count 5 alleged the offender committed an act of indecency on AA then a child aged eight or nine, during the period 20 November 2004 to 21 November 2008: s 61O(2) Crimes Act 1900.
The offender was in the dog "Nudge's" cage. AA was in the backyard. While she watched he masturbated the dog. He then lifted the dog up so it stood on its hind legs and continued to masturbate it to ejaculation saying, "I made him spoof": trial transcript 14.

Count 6

Count 6 alleged that the offender assaulted AA, then a child of age nine, and at the same time committed an act of indecency on her. The offence is said to have occurred between 20 November 2005 and 21 November 2006: s 61N(2) Crimes Act 1900.
AA was at her grandparent's home. She walked into the kitchen. The offender was there. He grabbed her and pushed her onto the table. He then rubbed his groin on her; his "dick" was hard. He made an attempt to take her clothes off. She cannot recall what she said: trial transcript 57 and 58.

Count 7

Count 7 alleged the offender committed an act of indecency on AA, then a child aged nine, during the period 20 November 2005 to 21 November 2006, s 61(O)2 Crimes Act 1900.
At a family gathering AA was watching the movie Shrek. She was alone on the lounge. The offender came to the lounge/kitchen door: see sketch, trial exhibit D. He pulled down his pants, exposed his penis and masturbated to ejaculation. He wiped the ejaculate from the floor and left. Nothing was said: trial transcript 20.

Count 8

Count 8 alleged that the offender assaulted AA, then a child aged ten to 11 and at the same time committed an act of indecency on her. The offence is said to have occurred between 1 January 2006 and 31 December 2007: s 61M(2) Crimes Act 1900.
AA told me that she would go to the golf course with her grandfather while he practised. On one occasion he had asked her to come behind the toilet block where there are bushes. He pulled down her pants. He then pulled his own pants down, put a condom on his penis and masturbated while looking at her. He threw the condom down and they went and continued to play golf: trial transcript 23 24.

Count 9

Count 9 alleged the offender assaulted AA, then a child aged ten, and immediately after committed an act of indecency in her presence. The offence is said to have occurred between 20 November 2006 and 21 November 2007: s 61M(2) Crimes Act 1900.
CD, the complainant's mother and the offender's daughter, was unemployed at the relevant time but she did go to occasional job interviews. On one such occasion the offender drove her to a nursing home in Warrawong. It has a car park now: exhibit F. AA came with them. When her mother went inside she sat in the front passenger seat of her pop's 4 x 4 Toyota Hilux. She said he undid the zipper of the shorts he always wore, placed her hand on his penis and held it there making her pull it. He then let go her hand, masturbating himself until he ejaculated into a hankie. The evidence about this allegation can be found at trial transcript 21 to 23 and there is a photograph, exhibit F.

Counts 11 and 12

Counts 11 and 12 alleged that the offender had sexual intercourse with AA, then a child aged ten to 11. The offences were aggravated by her being under his authority. The offences are said to have occurred between 21 November 2006 and 21 November 2008: s 66C(2) Crimes Act.
These incidents, the last in sequence, are said to have occurred when AA took covered plates of food for her grandparent's dinner from her home to her grandparents. Her nan was not there. The offender, she said, told her to ring her mum and say she would stay to feed the dogs. While she was on the phone he put his hands down her pants and stuck his finger into her vagina. It hurt; she said, "Ouch". He then pushed her into the lounge room, onto the lounge, pulled down her lower clothing, unbuttoned his shorts, pulled his shorts down, put his penis at her vagina hole and pushed achieving some partial penetration. She said, "Pop stop", he stopped.

Count 13

Count 13 related to a further allegation that the offender that the offender assaulted AA, then a child aged between seven and ten and at the same time committed an act of indecency on her: s 61M(2) Crimes Act 1900. It is said to have occurred between 21 May 2004 and 30 April 2007.
The prosecution relied upon what was seen by a Crown witness, AFB: trial transcript 151 152. She said she saw the offender lying on AA on the main bed moving up and down on her. AA was saying, "Get off pop".
AA did not supply these details. She only recalls being chased into her sister's room and at one time "he was on top of me": trial transcript 19.

Maximum penalties

Section 66C carries a maximum penalty of 20 years. Parliament has fixed a standard non parole period of nine years for an offence that, taking into account only objective factors affecting its relative seriousness, is the middle of the range of seriousness.
Section 61M(2) Crimes Act carries a maximum penalty of ten years and has a standard non parole period of eight years. The ratio between that maximum and the standard non parole period has been subject to criticism, justifiably so. In BT v R [2010] NSWCCA 267 Hulme RS J described the relatively between the maximum and the standard non parole periods as "absurd".
But another court has said, "Nevertheless an eight year standard non parole period has been prescribed by the legislature and the Courts must give to effect to it: see R v NJK [2011] NSWCCA 151 at [40]. That decision binds me. However, care needs to be taken. Adequate punishment requires that a sentence bear proportion to the gravity of the crime committed. The standard non parole period for a s 66C(2) offence is nine years. The standard non parole period for a s 61M(2) offence is eight years. Generally, objective factors affecting the relative seriousness of an indecent assault (s 61M(2)) by contrast with a sexual assault (s 66C(2)) would justify a significantly different proportionate response for an offence objectively in the middle of the range. Proper reference to the guidance offered by the different maximum penalties for these offences would also require a differentiation.
Section 61(O)2 carries a maximum penalty of seven years. There is no standard non parole period.
Careful attention to maximum penalties, and where applicable standard non parole periods, is required. This is not just because parliament has legislated for them. They both provide a sentencing measure to be balanced with all other relevant factors. They also invite a comparison between the instant case and the worst case. That said, it is not appropriate here to look first to a maximum penalty or the standard non parole period and then proceed by way of making a proportional deduction from it: Markarian (2005) 228 CLR 357 at [30] and [31], a point also made in Way v R [2004] NSWCCA 131.

Objective seriousness

Every act that involves the sexual exploitation of a child is seriousness, "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 [2011] VSCA and R v Gavel [2014] NSWCCA 56.
This is one important reason for the higher maximum penalties and high standard non parole periods fixed for such matters.
Important considerations include: 1. The actual character of the assault, including the degree of physical contact involved, particularly where the child was touched by an adult. For example Latham J observed in GSH v R [2009] NSWCCA 214, "It is difficult to justify finding below the mid range for an offence under s 61M(2) constituted by the touching of the genitalia of a nine year old girl". This case was cited with approval in Van Ryn [2016] NSWCCA 1. 2. The age difference between the perpetrator and the child. 3. The relationship between the child and the perpetrator. Care needs to be taken where this relationship gives rise to an element of the offence set out as a circumstance of aggravation or has some relationship to it, matters that have been raised in discussion by counsel. 4. Where the offence occurred and in what circumstances. 5. The age of the child relative to the range encompassed by the offence. It has been said the younger the child the more serious the offence: R v KNL [2005] NSWCCA 260. Here AP was aged between eight and 11 years. The ages noted as elements of the offence were ten years s 61O(2), 14 years s 66C(2) and 16 years s 61M(2).
Similar considerations apply when the criminal act involves sexual intercourse with a child. There is no rigid hierarchy of the different forms of intercourse and no one type of intercourse is by itself more or less serious than the other. What is of considerable significance is the nature of the intercourse, the degree of physical contact involved, the time over which the act occurred and whether any harm, hurt or injury, physical or psychological resulted and, of course, the extent of that harm. It is essential that all relevant circumstances be considered.
When assessing matters going to objective circumstances my sole regard must be to the nature of the offending: Muldrock v The Queen (2011) 244 CLR 120 at 132 [27].
The s 61M(2) counts 1, 2, 3, 4, 6 and 13 each involved touching or rubbing the child's body over her clothes. There was no skin on skin contact and no contact with her genitals. All are serious but given the range of matters that could be encompassed by s 61M(2) below the objective mid range, toward the bottom that range of serious offending. There was some escalation in activity, however, which must be reflected in my ultimate determination. Count 13 involved what might have been interpreted as play had not the offender's more sinister intent became obvious from his later behaviour. Individually or if only an isolated incident any of these crimes may not have called for full time custody but they were not isolated. They formed part of a pattern of escalating sexualised behaviour by a grandfather to his granddaughter a vulnerable child in need of support not abuse. Only custodial sentences could meet all of the purposes of sentencing.
Count 8, another s 61M(2) offence, the incident in the car, involved skin on skin contact and masturbation to ejaculation. The nature of the offending and the degree of contact places this offence objectively in the middle of the range.
The two s 61O(2) offences, counts 5 and 7, involved gross acts designed I suspect to expose the complainant to sexual activity and test whether she might complain or not. They would have been deeply disturbing. They deserve custodial sentences.
The two s 66C(2) offences, counts 11 and 12, were both, thankfully, brief. The degree of penetration was minimal but in count 11 the digital penetration caused some pain. Both would have been disturbing for the child, both involved a further gross breach of the proper relationship between a grandfather and a granddaughter. Although objectively below mid range because of the length of time and degree of contact and the degree of harm or its absence, in regard to count 12, they were serious crimes and deserve very significant punishment.

Should there be variation from the standard non parole period?

Having considered all the objective facts and circumstances affecting the relative seriousness of the offence, only one of the offences, count 8, fell in the middle range of seriousness. Those findings, the subjective case for the offender, including a finding I will make of special circumstances, the need to take into account the totality principle and the process of accumulation all justify some variation from the standard non parole periods of the sentences I will indicate.

Accumulation and concurrence

A sentencing judge is accorded flexibility, as much flexibility as consonant with the statutory sentencing regime in determining the appropriate sentence: Markarian v The Queen at s 371 [27]. A judge is accorded the same flexibility when determining the structure of two or more sentences. A sentencing judge is required is required to impose an appropriate sentence for each offence and to structure the sentences such that the overall sentence is just and appropriate to the totality of the offending behaviour for sentence: Mill v The Queen (1988) 166 CLR 59 at 62 - 63.
Sentences however are not made concurrent "because of the similarity of the conduct" or because the conduct may be seen to be part of one course of criminal conduct. Public confidence in the administration of justice requires sentencing courts to avoid any suggestion of a discount for multiple offending. This is particularly so where the offences are discrete and separate: R v MAK [2006] NSWCCA 381.
Here, however, the offender's liability for each offence and many of the matters that must be synthesised do overlap and call for some concurrence between the sentences. It was recognised in MAK, citing Clinch (1994) 72 A Crim R 301, that the severity of a sentence is not simply the product of a linear relationship. The severity of a sentence increases at a greater rate than the increase in the length of a sentence. Thus a sentence of five years is more than five times as severe as a sentence of one year. The Court there also noted that under the totality principle an extremely long total sentence may be crushing upon the offender in the sense that it can induce a feeling of hopelessness and destroy any expectation of useful life after release. This is a point of particular relevance to someone being sentenced aged 70, a point made by the Victorian Court of Appeal in Yates [1985] VR 41 at 50.

Subjective case

In 2004 to 2007 YY was nearing the end of a long working life. He had children and grandchildren. Many lived nearby and would visit. His yard had play equipment and cages for his dogs and sheds. He enjoyed his golf and hunting with his dogs. He would take grandchildren to golf and 4 x 4 driving. Some he took hunting and camping. His wife worked nightshift. After she took redundancy she became ill. She died in 2010. Following his wife's death he formed a relationship with another woman and she too died as a result of a cancer. She died in 2014. YY, nursed both his wife and his later partner through their terminal illnesses.
YY is respected by friends and family. He was considered to be of good character. Two granddaughters spoke of it to me. Tendered as exhibit 2 were a number of testimonials. His sisters spoke of a man who one described as "one in a million", someone who was always there for them. His granddaughters spoke of him being caring and respectful, always good and supportive. Other friends spoke of the support he had given his wife and later partner and them when they were sick. The solid support he has had, as evidenced by the people in court and those who still believe in him gives me some hope that those pro social supports will continue while he is in custody and will assist him in adjusting to normal community life, reducing hopefully his risk of re-offending.
A criminal record was tendered as part of exhibit A. It relates to matters which I do not believe are strictly admissible. I pay no regard to them and I am not asked to by the Crown. He is to be treated as a first offender.
That said, AA was YY's youngest grandchild. Her brothers were often in trouble. Her mother relied on her parents. Of all the grandchildren, her family had the least. The family must understand that this finding is a finding of guilt, and a finding of guilt in relation to a grandchild. Care must be taken in the future for no matter what support is given, his record and antecedents and background deserve support in the community. As I said care must be taken.
A report from Dr Furst, Consultant Forensic Psychologist, was tendered as part of exhibit 1.
YY did not give evidence at trial or sentence. He gave Dr Furst a personal history; it was consistent with that run at trial. The material set out in Dr Furst's report was not put forward as evidence going to my assessment of any objective circumstance of an offence. The material appears uncontroversial. It allows for some understanding of the man now to be sentenced. It accords with other material before me at trial and in these proceedings. It can be accepted.
Dr Furst notes a history of arthritis and ischaemic heart disease and the impact of just over 12 months he spent on remand. There was a suicide attempt following his conviction but testing indicates minimal depressive symptoms. These symptoms are being managed by medication and he can be weaned off them. They are unfortunately consistent with the type of symptoms generally experienced by those who have spent time in custody or are facing long terms of custody.
Dr Furst said that any incarceration is "unlikely to be any more stressful than it would be for the average 70 year old". I do not however, underestimate the lived experience of prison for anyone let alone a 70 year old. The public should understand that our prisons are not pleasant places.
I have material before me that indicates that following my verdict there was an attempt at self-harm. There is clear authority from the Court of Criminal Appeal (see Christodoulou [2008] NSWCCA 102) that that attempt cannot be taken into account in sentencing. The rationale appears to be that to take it into account might encourage offenders to self-harm if they think it might reduce their term of imprisonment and I follow that authority. But I do note that an offender being prepared to self-harm to reduce time in custody or avoid time in custody is an indication of how terrible an experience prison can be. The public should understand that our prisons are not pleasant places. It is not simply losses of freedom, it is the process of imprisonment and the punishment associated with it.
Dr Furst was asked to address the risk of re-offending. He concluded the offences were: "Consistent with familial incest constituting violation of trust and opportunistic sexual exploitation of his granddaughter rather than a pervasive pattern of sexual deviance throughout life or paedophilia. Sexual offenders presenting later in life with incest generally fall into the category of male sex offenders considered to be a low risk of re-offending".
I accept Dr Furst's expertise and his conclusion, it appears to be reasonable and well supported. It accords with my own experience informed by having sentenced too many matters of this type and my assessment of all evidence at trial and before me today. That said, any predicative prognosis or any risk analysis for any sex offender takes into account a limited number of factors. Given the nature of this offending, the clandestine nature, how he exploited his granddaughter and was prepared to do so despite risk of being detected and his reliance upon her not complaining any risk assessment, any finding I make must be, as I said in discussion with counsel, guarded.
Dr Furst said that while sex offender treatment was not a high priority he would defer to any assessment by Corrective Service specialists. He indicated that psychological support should be given to the offender in custody and on release in order to improve his coping skills. He also will need regular help from a Justice Health GP to monitor his general physical health. Reviews by a Geriatrician, Rheumatologist and Cardiologist will be required. The offender's medical condition and details of his suicide attempt were confirmed by medical reports tendered as part of exhibit 1. I will have those reports accompany the warrant to the gaol.
YY exercised his right to go to trial, he still maintains his innocence. He is not to be punished for that fact but he has forgone the opportunity of a substantial reduction in the otherwise appropriate sentence.
His good character is relevant. This is not a matter where s 21A(5A) applies however the crimes involved repeated offending over years that lessens the significance of prior good character: PGM [2008] NSWCCA 172.

Ill health

As well as the risks associated with his medical condition I do not ignore the realities of prison life: Burrell (2000) 114 A Crim R 207. This does not necessarily mean that a prison sentence should not be imposed or that the sentence should be less than the circumstances of the case would otherwise require: L, unreported NSWCCA 17/06/96.
The offender's age and poor health here will make his imprisonment more burdensome than for the average prisoner. It is a special circumstance warranting a longer period on parole: Sellen (1991) 57 A Crim R 313.
This morning I received and I have considered AA's Victim Impact Statement. It sets out the harm she has suffered. It eloquently sets out how she still battles with what occurred, her fear, that her innocence was taken away and how aspects of her life will never be normal. She speaks of the mental torture she has suffered and how she continues to have an adverse reaction as a consequence, that has resulted in a significant lack of trust so far as men are concerned. She fears for her daughter. She fears that at the time that she felt it was because of something she had done. She says she still feels ashamed and guilty.
AA, although the term "victim" is used, must understand that she was not to blame. The Court recognises the harm that she suffered; it is a factor relevant to sentencing, that she was used and she was abused. It is not her fault. It was not her fault that she did nothing to justify this behaviour. She was a child and was entitled to be treated appropriately as a child not abused and exploited.
The offence clearly had a real and lasting impact on her. It does not fall however into the category in s 21A(2) that could be regarded as substantial. That is because of the sad fact that such impacts are the norm. While some who have been abused as she was are capable of remarkable resilience, most suffer as she has. As I said earlier that is one reason for the high maximum penalties, and the standard non parole periods, but it bears repeating.
I am indebted to Mr Crown for his written and oral submissions and the submissions of Ms Davenport SC, who appeared at trial and on sentence: Crown submissions MFI 1. I trust this judgment has done justice to those submissions.
I was referred to other cases and I have had reference to other cases including my own decisions and decisions of the Court of Criminal Appeal. The consistent application of principle requires careful consideration of these decisions but as Justices Bell and Gageler noted in R v Pham [2015] HCA at [39] applying Hili v R [2010] HCA 45, (2010) 242 CLR 520, "… sentencing is a discretionary judgment and that the mix of factors that must be weighed in determining the appropriate sentence will never be the precisely the same as in past cases or cases". I would add that the harm done to a victim of crime such as this could never be and should never be precisely equated with the sentence imposed. Courts have to synthesis on a number of important factors, one of them of course is the harm, but there can be no relatively directly between harm, cause and time in custody.

Synthesis

I must give effect to basic principles of sentencing law set out in the Crimes (Sentencing Procedure) Act 1999 and at Common law. One important principle is the sentence of imprisonment should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of the objective circumstances: Hoare v R (1989) 167 CLR 348.
The matters raised in mitigation were significant and due recognition must be given to them but they must not be allowed to lead to the imposition of a penalty which is disproportionate to the gravity of the offence: Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600.
The sentences by their severity must alert the community to the harm occasioned by offences such as these and the potential penalties that will be inflicted. The hope is that such measures may deter others and this offender from committing such crimes.
Another sentencing principle in matters such as this is retribution, "A notation that reflects the community's expectation that the offender will suffer punishment and, that particular offences will merit severe punishment": McHugh J in Ryan (2001) 206 CLR 267. At times when the terms "deterrence" or "community disapproval" are used in a judgment it is really this principle, retribution that is being enunciated. However, while a proper purpose of the criminal law a court should never give effect to the irrational prejudices of ill-informed public opinion: R v Windle [2012] NSWCCA 222.
The courts in sentencing for such matters also have an obligation to vindicate the dignity of the victim of the crime: Munda v Western Australia [52] to [58], and the harm generally that offences of this nature do to our community. They break down the trust that we should have, such a breakdown was reflected in the lack of trust now felt by the victim of this offence, AA. There were a series of criminal acts, they occurred over a three year period. They involved a complete breach of trust owed to a young grandchild. As I said I must take care not to double count matters of aggravation which are also related to elements of an offence.
Having regard to the matters identified my ultimate objective remains one of imposing a sentence that is just and appropriate.
I will impose an indicative sentence. That sentence will date from 23 November 2015. There will be a finding of special circumstances; that will be reflected in the indicated sentence and in the ultimate aggregate sentence. There has been some rounding of these figures to avoid months or days, some modest rounding up, most rounding down.
YY if you could please stand?
With the exception of counts 5 and 7 I have to indicate the non parole period as well because they carry a standard non parole period.
In relation to count 1 I indicate a sentence of two years with a non parole period of one year and three months.
In relation to count 2 I indicate a sentence of two years with a non parole period of one year and three months.
In relation to count 3 I indicate a sentence of two years and three months with a non parole period of year and five months.
In relation to count 4 I indicate a sentence of two years and three months with a non parole period of one year and five months.
In relation to count 5 I indicate a sentence of two years.
In relation to count 6 I indicate a sentence of two years and three months with a non parole period of one year and five months
In relation to count 7 I indicate a sentence of two years.
In relation to count 8 I indicate a sentence of two years and three months with a non parole period of one year and five months.
In relation to count 9 I indicate a sentence of three years with a non parole period of two years.
In relation to count 11 I indicate a sentence of five years with a non parole period of three years and three months.
In relation to count 12 I indicate a sentence of five years and six months with a non parole period of three years and six months.
In relation to count 13 I indicate a sentence of one year with a non parole period of eight months.
There will be an aggregate non parole period of five years to commence, taking into account days in custody, on 23 November 2015. You will be eligible for consideration to release to parole on 22 November 2020. There will be a parole period of three years. That is an aggregate sentence of eight years imprisonment with a non parole period of five years to date from 23 November 2015.

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: 19 January 2017

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Judgment (21 paragraphs)

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Cases Cited (20)