Regina v PL

ss. 10, 10A Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: s 76 (repealed) Crimes Act 1900 Child Welfare Act 1939 (repealed)

Longman v The Queen (1989) 168 CLR 79 CASES CITED: R v MJR (2002) 54 NSWLR 368 R v AJB [2007] NSWCCA 51

PARTIES: Regina PL

COUNSEL: Regina: Mr M Barr Offender: Mr R Hood

SOLICITORS: Regina: S E O'Conner, Solicitor for Public for Public Prosecutions Offender: Ken Madden, Walter Madden Jenkins

1 The offender is the oldest brother of C, K, E and J. He has admitted indecently assaulting each of his sisters. Long before any criminal proceedings were instituted against him, he had told them in a series of letters that he was guilty of assaults on them of an indecent nature, that he was sorry and ashamed.

2 Each of his sisters has given evidence and has claimed that at the time he committed these indecent assaults, he was an adult, about 18 years old. If they are correct, these offences would have occurred in December 1969 or January 1970.

3 His case, from the time he commenced to write letters to them, was that he had committed the offences in late 1966 or early 1967, at a time when he was 15 1/2 years old or thereabouts.

4 If each of the complainants are correct, the offender placed each of them face down and naked on a bed in the family home, and then lay on top, with his erect penis between the cheeks of their rectum, rubbing it up and down. He has denied doing this to any of them and has claimed that he rubbed his naked body, including his penis, on the naked sides of their bodies.

5 These are the stark differences between the versions. The offender has given evidence, as has each of his sisters. The Crown must prove beyond reasonable doubt not only the fact of the occurrence of the indecent assaults, but the time and the manner of them. The offender has given evidence to support his position that whilst he committed indecent assaults on each of his sisters, he did it when he was less than 16 years old and the assaults were of a different kind to those alleged by his sisters.

6 In considering this matter, I have had regard to the direction in Longman, v The Queen (1989) 168 CLR 79 and the provisions of section 294 of the Criminal Procedure Act, 1986.

7 The Longman direction and section 294 are directed to what the Judge should say to a jury at the trial of a person where evidence is given of the commission of crimes, many years before, that is to say a direction that: "as the evidence of the complainants could not be adequately tested because of the passage of time, it would be unsafe to convict on the uncorroborated evidence of the complainants alone unless satisfied of its truth and accuracy after scrutinising it with great care and after taking this warning into account".

8 Sec 294 requires a direction that absence or delay in making a complaint does not necessarily indicate that the allegation is false and there may be good reasons why a victim of sexual assault may hesitate in making a complaint or may refrain from making a complaint.

9 In the late 1960's, no complaint of sexual assault could be successfully prosecuted unless there were some corroboration and the complaints of young girls would not be made, in any event, unless their parents were willing to advance them. It seems obvious to me, having heard the evidence of the mother of the complainants and the offender, that she would not have given her daughters any assistance to bring forward such complaints against their brother.

10 It is also understandable that young girls in any event would be very embarrassed about telling anyone of such events. There is evidence from C that her mother and father had not told them anything at all about sexual relations between human beings and the offender himself supports this.

11 It is really only in relatively recent times that there has been widespread publicity urging that these offences, when they occur, should be reported. Now, the victims are encouraged to come forward, are interviewed by police officers who are specially designated and trained to investigate these sorts of offences and are given counselling and other support.

12 Another aspect of the matter is that until the early 1980s, a common, but not universal, tactic for counsel for the accused in such trials was to suggest that the victim was sexually promiscuous and/ or had invited the sexual assault.

13 I can well understand how adults who were sexually assaulted as children or even as adults, would have been very hesitant to come forward in the 1960's to 1990's. Gradually, the statutory provisions concerning such trials have changed and every attempt is now made to try to make such trials less harrowing for the victim than they used to be. Even so, discussion of such personal invasions of the person is always embarrassing and difficult.

14 I can well understand why the complainants did not come forward for many years. It is important that they understand that they have done the right thing and I commend them for doing so.

15 On the other hand, there can be no doubt that the offender in this case faced considerable difficulties in getting any evidence to support any part of his case and these difficulties were directly related to the time lapse between the offences occurring and the offences being reported to the police. Not only did he have considerable difficulty in remembering precisely what he was doing and where he was in the late 1960s, but each of the complainants had difficulty in remembering what happened, where it happened, and when it happened. Photographs were tendered of the complainants and the offender, as each of them was when he or she was a child, but the witnesses were not entirely certain when some of the photos were taken, where they were taken, or how old the children in them were. All this is quite understandable.

16 None of the complainants can remember living in any house before the family moved to 22 Sutton St, Cootamundra. It is agreed that the family had in fact lived for four years at 170 Sutton Street Cootamundra. In 1965, C was nine years old, K was six years old, E was four years old, and J was two years old. If the sexual assaults had occurred in 1967, each would have been two years older, or thereabouts. It seems to me quite surprising that C and K would not have remembered living in this house in 1967.

17 According to agreed evidence in Exhibit 2, the family moved to 170 Sutton Street Cootamundra in 1965 and stayed there until about August 1969 when they moved to 22 Sutton Street Cootamundra. One of the exhibits, C4 is a photograph of E holding a dog, while she is sitting in a chair near a refrigerator. At the time, she appears to be about 6 or 7 years old. E claimed that this photograph was taken while the family was living in 22 Sutton Street, but her mother, NL cast doubt on that by saying that the family had a dog at 170 Sutton Street, but not at 22 Sutton Street. She also said she could not recognise the scene shown in the photograph, nor was she sure it was E.

18 The offender said the family had a pup at 170 Sutton Street, but not at 22 Sutton Street. In August 1969, E would have been a little over 8 years old. If the photograph was taken at 170 Sutton Street, it could have been taken when she was about 6 or 7 years old. The photograph does not go to prove anything much, except that it shows how uncertain E was about her age and about where she was living when the family had a dog. The preponderance of evidence favours the dog being only at the home in 170 Sutton Street.

19 Another curious feature of the case is that none of the complainants have any memory of living with the offender at all before these assaults took place. The evidence shows that he lived on a full-time basis with the family until mid-to late 1963 when he went to live in a seminary from which he returned in June 1967. This would have been about the time that the family moved to 170 Sutton Street, Cootamundra. Since he had been away for a little over 18 months, and they were quite young, it is possible they would have found it difficult to remember living with him. However, after this, he lived at home and went to the Catholic secondary School in Cootamundra, which was adjacent to the Catholic primary school, which they attended. In 1968, he went to attend Oakhill College, a full-time boarding school for his last two years at school. He returned from this boarding school in November or December 1969.

20 Thus, when he came home from the seminary, he was at home on a full-time basis for two years and in the following two years, he would have been home during school holidays. He has given evidence to this effect and I see no reason to doubt it.

21 The fact that none of them can remember him before the end of 1969 demonstrates the difficulty facing the complainants in giving evidence based on memory. Unless I can be sure beyond reasonable doubt that their evidence as to the time of the events occurring is reliable, I cannot accept that the Crown has proved that the events occurred at the time they say.

22 On the other hand, each of them gives evidence that the offender committed acts of a very stark type. Each has said that she did not discuss the detail of the sexual assaults with the others, but merely the fact that they occurred. It must be very doubtful if a child of not quite four years old could remember a sexual assault, and I would have thought it equally doubtful that a child of six could have remembered the detail of a sexual assault, although it may be possible that she would have some memory of an event occurring which she found disturbing. However, a child of eight and a child of eleven might remember a sexual assault. If each of the children were four years older, there could be more certainty that they would be able to remember.

23 There is no doubt that each of them had very limited recollection of where they lived and what schools the offender attended. Much of this detail was supplied to them by others in the family. There seems to me to be a very great likelihood, despite their denials, that the elder two children have discussed the events with one another over the years, and they have told the other two what occurred to them.

24 It is not a matter of my weighing up competing contentions and trying to balance them. Unless the Crown can persuade me beyond reasonable doubt that what the complainants say as to these events occurred in the manner they claim, I cannot make a finding that the events did occur at the time and in the manner they have said. For reasons which I will give in greater detail, I have come to the conclusion that I cannot be satisfied beyond reasonable doubt that the assaults occurred at the time and in the manner deposed to by the complainants.

25 The offender has admitted assaulting each of the complainants indecently and has given a version of when this occurred. In my opinion, the Crown did not negative beyond reasonable doubt that he committed the offences when he was fifteen and a half years old.

26 It follows that I accept the offender committed offences of indecent assault against each of the complainants and that at the time; he was about 15 and a half years old.

27 According to C, the offender assaulted her in a room which was a small, dark back room. She could "see" G's room. She could remember being in the room and then lying face down and naked. He lay on top of her, put his penis between the cheeks of her anus and thrust up and down. He ejaculated on her legs and "bum" and then asked her if she knew what rape was. She thought she was similar in size to him. She thought this happened to her a number of times over a period of three weeks.

28 She said in evidence that she told no other person the detail of what he had done until she spoke to the detective who took her statement. She did tell her sisters years later that she had been assaulted by her brother Paul, but did not tell them what had happened. She also claimed that she remembered the offender had given her 20 cents after this sexual assault.

29 J claimed that she remembered being sexually abused by her brother, the offender, when the two of them were in her brother G's room. What she says happened was that he came up to her after she laid down on the bed and then he laid on top of her, putting his penis between her anal cheeks and rubbed it up and down until he ejaculated on her back. She just lay there looking out the window and at the time she had no appreciation of what he was doing. He cleaned her back with a handkerchief and gave her 20c which she then used to buy lollies at the service station near her school. She thought she was six or seven at the time. If the events occurred when the offender claimed they occurred, she would have been two and a half years old and clearly would not have been going off to a service station to buy lollies.

30 She said that she realised he had done things to her only when she had gone with her parents and some of her siblings to live in Annandale. She saw him coming in the house wearing the same type of shorts he was wearing at the time of the attack on her and she then ran up the stairs, into the bedroom shared with her sister E and said to her; "[the offender] did things to me"

They both ran into the room shared by K and M and again J said; "[the offender] did things to me"

to which K replied, " yeah, me too. Now get out".

The subject was not raised again for years. At the time, J was twelve or thirteen, she thought.

31 She did tell her sister E that the offender put his penis "in between my bottom" to which E would reply " no, no stop! " She was not sure if she told K or C, but she could have, since " I have been open about it over the past few years, so I could have said that."

32 She also said that she told her sisters about how she had been given 20c by the offender.

33 K gave evidence that the offender's first sexual assault of her was in her bed, a top bunk. She slept in a room with other girls of the family, perhaps four girls were sleeping in the room, and the offender came in at night, woke her up, putting one arm across her chest and the other one down her pants so that he touched her on the labial lips, but did not penetrate her. He rubbed his hand up and down in this area.

34 The other assault was carried out in her brother G's room where he made her lie on the bed with her legs dangling down and her face down. He lay on top of her and pushed his penis between her anal cheeks until he ejaculated. This assault took place during the day. She thought she was ten or eleven years old.

35 E remembered being taken into the bedroom of her parents by the offender when she was eight or nine years old. He laid her on a lounge in that room, placed her down on it, pulled her underwear down and played with her bottom and her vaginal area.

36 The second assault took place when she was in bed at night time. He came in; she was lying on her stomach. He lay on top of her, placing his penis between her anal cheeks and rubbed up and down until he ejaculated. He then wiped the ejaculate off her back and left the room.

37 During the correspondence with his sisters, he admitted abusing all four of them. In a letter of 18th January 2006, he claimed that all abuse occurred after he left the seminary and that it was between 1965 and 1967. At the time, C, on his memory was 10 or 11. He wondered whether his parents knew and because they knew, they sent him to a boarding school in 1968 and 1969.

38 In evidence, he claimed that he left the seminary at Galong in mid 1966 and the offences occurred in December 1966 or January 1967.

39 The first sister he abused was C. According to him they went into a room with a single bed. He put her on this bed. She was lying on the bed closer to the door than him. He pulled her clothes up, touched her on the breast and near her labial entrance. This took 3 to 5 minutes

40 After this, he abused her again in the same way, but this time, she objected and he held her hands over her head and compelled her to permit him to touch her. He did the same to K and again did it twice, that he can remember. K resisted on each occasion. He may have assaulted C and K more than twice. These assaults occurred during the day.

41 He assaulted each of E and J, who were much younger, by going into their rooms at night. Each of them slept on a bottom bunk. He would get into bed with them and rub himself alongside the body of E or C. He did not touch them on the breast on in the labial area. He then went back to his room and masturbated.

42 He denied committing any assaults on any of the girls in 1969 or 1970 and denied ever placing any of them underneath him, while he pushed his erect penis between their anal cheeks.

43 I have come to the conclusion that each of the complainants believes that the offender assaulted her in the manner she has described and at the time she has specified. However, I have grave doubts about the accuracy of their accounts. All of them have difficulty remembering the offender in any way at any time when the family was living in Cootamundra.

44 I find this difficult to understand, since when he came back from the Galong seminary, he went to school in Cootamundra at a school which was adjacent to the primary school which they attended. He was home before and after school and in school holidays except for the period that he was in Galong and the period he attended the Boarding school during the last two years of his schooling. Even then, with the exception of the period immediately after his year 12 exams, he was at home during school holidays.

45 All of them have given evidence of his being on top of them while he was thrusting his penis between the cheeks of her anus. C and J have given evidence of this assault occurring in day time in G's room at the back of the house, while K and E have given evidence of this assault occurring whilst they were in bed at night, with other girls present in the room. E has spoken of a different assault taking place in her parents' bedroom on a lounge. The offender's mother has said that there was never a lounge in that room. I find it difficult not to accept what the mother says about this.

46 All of them must rely on memory for these events and over nearly forty years, reliance only on memory makes for some uncertainty.

47 In considering whether the Crown has made out its case, I must direct myself that it would be unsafe or dangerous to convict the accused if this were a trial and the only evidence were that of the complainants, unless I were satisfied of its truth and reliability. I consider that I should give myself the same warning when I come to consider whether the assaults occurred in the manner and at the time alleged by the complainants. After nearly forty years, the offender has no way of establishing what his movements were in December 1969 or January 1970, but he has denied committing the assaults at this time and has denied committing them in the manner alleged by the complainants.

48 In deciding whether the Crown has proved beyond reasonable doubt that the assaults occurred at the times and in the manner alleged by each of the complainants, I must also have regard to his evidence and evidence called on his behalf. The correspondence between the offender and the complainants is also of great importance.

49 This correspondence was begun by C writing to him, apparently because a therapist suggested that she do so. The letter from her was not written for the purpose of getting admissions so that she could get the police to prosecute. I accept that she wrote because she wanted to confront her brother with what he had done and get him to admit it so that she could get some closure for herself.

50 In his reply, sent for the purpose of dealing with what his sister raised, the offender admitted abusing C and explained it as the actions of a young boy who had been in a seminary for three years and who had not seen any girls for two years. He said: "In a weird way I was finding out about girls and in the process I abused my sisters who I love dearly. It all happened over a 2-3 week period and I abused you and K at the same time. I don't know why it happened or why it stopped. I have been trying to deal with it for 40 years…"

51 This admission strikes me as significant. It was volunteered by the offender who was trying to deal with his sister's quite justifiable complaint and it has the ring of truth about it. It also tends to explain why the complainants could not remember him, i.e. he had been away for nearly two years in a seminary in a distant country town. His account places the events of the assaults in December 1967 when he returned from the seminary in Galong. At the time, he would have been not quite 16 years old. He no doubt was nearly fully grown and could have been expected to have hair on his body. To the children, he would have seemed much older and as he had been away for some years, to be somewhat remote.

52 Because these events have come to light so many years afterwards, he has no way of calling anyone to back up his evidence and he could not call anyone to establish all his movements when he came home from boarding school at the age of 18. He has been prepared to admit indecent assaults on each of his sisters from the time it was raised with him, but he has never accepted he did what they claimed he did. He has accepted that what he did was disgraceful and that it had very bad effects on each of them.

53 Taking into account all of this evidence, I am not satisfied beyond reasonable doubt that the indecent assaults occurred in December 1969 or January 1970 and I am not satisfied beyond reasonable doubt that the Crown has established any more than he has admitted in the letters and in his evidence.

54 As I have said earlier in my Judgment, each of the complainants no doubt fully believes what she has said in evidence, but I cannot make findings in a criminal case based on strong beliefs. Each of them has suffered a terrible ordeal as they have come to recognise what the offender, their eldest brother, did to them. Each of them has confronted this and has had the courage to come forward and expose this disgraceful conduct, at some personal cost.

55 Despite fears advanced by C in her letters to the offender, there is no reason to suppose that he has ever behaved in an inappropriate way to any child since these events occurred when he was fifteen and a half years old. There is evidence from teachers with whom he has worked that he always behaved honourably and admirably during his quite lengthy career as a teacher. His qualities were given recognition by his employer's promotion of him to positions of importance. He has given evidence that he has not done anything improper towards children under his care either as a parent or as a teacher. I accept what he says.

56 He has had marital, gambling and drinking problems in the past, but he has sought counselling. I regard him as a man of good character.

57 Each of the victims has made statements about the effect these assaults has had on her life. C, J and K read their statements in open court. E supplied a written statement which I read. Each of these statements is a very sad document, which sets out the suffering each of them has had to endure during their lives. Although I have come to the conclusion that the Crown has not negatived the accused's version of what occurred and thus I have found that these assaults occurred when he was not sixteen years old, they have certainly had terrible effects on each of the victims and I take into account in the sentence which I pronounce the effect in each case.

58 However, I consider that this must be tempered by the fact that I have concluded from the evidence before me he was not sixteen years old when he committed these offences. I express my sympathy to each of them and I hope that the court process and the outcome may help each of them to begin a healing process that will enable them to move on in life.

59 Sentencing the offender poses considerable difficulties. The offences occurred more than forty years ago and over a two or three year period when he was not sixteen years old. At the time, the Child Welfare Act, 1939 was in force.

60 In 1967, the Crimes Act, 1900 sec 76 made an indecent assault on a female under the age of 16 years punishable by imprisonment for 5 years. If there were a trial, a warning would have to be given to the jury that it was not safe to convict on the uncorroborated evidence of the prosecutrix. As the offence was not one which was punishable by death or penal servitude for life, the offence would have had to be prosecuted before a Children's Court. (See - Child Welfare Act 1939, sec 83(2)).

61 Because this Act has been repealed and it is difficult to find old copies of it, I set out the wording hereunder: " Section 83 (2) Where a child or young person is charged before a court with an indictable offence (other than homicide, rape or an offence punishable by death or penal servitude for life), and the charge is heard and determined in a summary manner, the court may if the child or young person admits the offence, or the court finds that the charge is proved-

release the child or young person on probation upon such terms and conditions as may be prescribed or as the court may, in any special case, think fit, and for such period of time (whether expiring before or after the date upon which the child or young person attains the age of 18 years) as the court may think fit; or

commit the child or young person to the care of some person who is willing to undertake such care upon such terms and conditions as may be prescribed or as the court may, in any special case, think fit and for such period of time (whether expiring before or after the date upon which the child or young person attains the age of 18 years) as the court may think fit; or

commit the child or young person to the care of the Minister to be dealt with as a ward admitted to state control; or

commit the child or young person to an institution either generally or for some specified term (whether expiring before or after the date upon which the child or young person attains the age of 18 years) not exceeding three years; or

in addition to or in substitution for any committal under paragraph( d) of this subsection, require the child or young person to enter into a recognizance with or without a surety to be of good behaviour and to comply with any terms and conditions the court may specify, for a term which shall not be less than 12 months or more than three years, and in default of entering into such recognizance may direct that the child or young person shall be detained or further detained in a shelter or institution for a period not exceeding three months unless such recognizance is sooner entered into; Provided that committal to a shelter shall not exceed 30 days:

Provided further, that in no case shall the total term of such detention and further detention together exceed three years."

62 I must attempt to sentence in accordance with the standards at the time of the offence (See R v MJR (2002) 54 NSWLR 368). However, if a prosecution had been commenced against the offender as a boy under the age of 16 years, it certainly would have been launched before a Children's Court.

63 In my opinion, the probable result would have been that the Magistrate who heard the case would have made a finding that the offence had been committed and he would have ordered the release of the offender on probation (Sec 83(2)(a)) or he would have made a decision not to proceed to a finding of guilt and to make an order dismissing the charge or admonishing and discharging him or discharging him conditionally on his entering a recognizance to be of good behaviour (Sec 83(3)).

64 It is, in my opinion, likely that the Children's Court Magistrate would have made a decision not to proceed to a finding of guilt and to dismiss the charge. There is no doubt in my mind that nothing more would have happened. Even sentences for rape, at that time prosecuted only in the Supreme Court, were in modern day terms, very mild.

65 I appeared as counsel in a trial in 1971 or 1972 where gang rape was alleged and my client, a young man of 18 years or so, after conviction was sentenced by the late Mr Justice O'Brien to a sentence of 18 months imprisonment with a non-parole period of 9 months. This sentence was the subject of a Crown appeal and was doubled. Even so, the sentence would be regarded now as far too lenient.

66 Indecent assaults even committed by adults in those times were not necessarily required to have sentences of imprisonment imposed (See R v AJB [2007] NSWCCA 51).

67 As I have earlier said in these reasons, the assaults committed by the offender were indecent and they caused great distress and suffering to the victims who were so young at the time. However, the sentence I impose must take into account the offender's youth at the time, his genuine contrition, his possession of good character at all times since these offences were committed and the fact that he has served the community well and for many years as a schoolteacher.

68 In my view, having regard to the penalties that were likely to have been imposed in the 1970's, it is still appropriate to impose a penalty of some kind, but not one that will see him imprisoned, put on a bond or fined.

69 It is also not appropriate, in my opinion, to find the offences proved and then to dismiss them pursuant to sec 10 of the Crimes (Sentencing Procedure) Act, 1999 because acts of indecency committed against four separate victims, even though committed by a 15 year old boy, are serious offences and deserve to have some penalty imposed.

70 In my opinion, the correct penalty in the circumstances is that I convict the offender of each offence, but pursuant to sec 10A of the Crimes (Sentencing Procedure) Act, 1999, I impose no other penalty. In itself this is a penalty of some significance because such a sentence is a conviction and this will lead to consequences for the offender which he would not have if I were to dismiss the matters pursuant to sec 10 of the Crimes (Sentencing Procedure) Act, 1999. Amongst other things, he will have to register as a sex offender pursuant to the provisions of the Child Protection (Offenders Registration) Act, 2000. I would accept the submission of the offender's counsel that his obligation will then be to report annually for 15 years. The legislation imposes other obligations on those who are required to register.

71 The Commission for Children and Young People Act, 1998 in section 33B prohibits registered offenders from being employed in jobs where children are present. Applications for review of this prohibition are also provided for in Subdivision 2 of Division 2 of this Act. In the short term at least, it would appear likely that the offender would not be able to pursue employment as a classroom teacher

72 These are in one sense extra curial punishments which flow from a conviction. They are severe punishments in themselves and there is no need, in my opinion, for me to impose any penalty additional to that of the convictions.

73 I convict the offender of each offence, but pursuant to Sec 10A of the Crimes (Sentencing Procedure) Act, 1999, I impose no additional penalty.

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