District Court New South Wales Medium Neutral Citation: R v Graham (a pseudonym) [2020] NSWDC 747 Hearing dates: 16 October 2020 Decision date: 16 October 2020 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Sentenced to a term of imprisonment of 15 years. Non parole period of 11 years. Catchwords: CRIME — Child sex offences — Sexual intercourse with child <10 - Sexual intercourse with child >10 <14 - Sexual offences - Indecent assault - Circumstances of aggravation - Persistent sexual abuse of a child SENTENCE – Maximum penalty life imprisonment SENTENCE - Relevant factors on sentence – father and daughter- escalating abuse - age of child - period over which abuse occurred - abuse of position authority over the victim - breach of trust - need for care to double count aggravating features series of criminal acts – admissions on arrest - early guilty plea - impact of abuse on child – remorse or regret - COVID 19 not eligible for early release – impact of offender's intellectual disability - special circumstances not required. Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Anderson v R (1981) VR 155 DPP v De La Rosa [2010] NSWCCA 155 R v Herring (1956) 73 WN (NSW) 203 R v Jarvis (a pseudonym) [2020] NSWDC 396 Category: Sentence Parties: John Graham (the offender) Director of Public Prosecutions Representation: Counsel: Mr S Fraser, Public Defender (for the offender) Mr D Scully, Deputy Senior Crown Prosecutor Solicitors: Legal Aid NSW (for the offender) File Number(s): 2019/00375480 Publication restriction: Pseudonyms have been used for the names of the accused and the complainant. Pursuant to s15A Children (Criminal Proceedings) Act 1987 and s578A Crimes Act 1900, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child complainant. Identifying information has been removed from this version of the judgment to comply with the statutes SENTENCE – ex tempore revised Facts for sentence 1. John Graham was born in 1983. His eldest daughter, the complainant, was born in July 2004. The family lived close to where Graham had grown up in southern Wollongong. The complainant is the eldest of his three children. 2. In November 2019 a report was received by police about the possibility the complainant had been involved in sexual activity with Graham. The complainant disclosed to police that the offender had engaged in sexual activity with her from the age of eight. He had told her that this was normal. And, because she was young, she believed him. As she grew older she came to realise that what was happening was not normal, but the offender would still force her to do what he wanted. The events would usually occur in one of the bedrooms of the family home. 3. Touching in a sexual manner became regularised. The acts included penile-vaginal intercourse. Sometimes a condom was used, sometimes it was not. The complainant said the offender took care not to ejaculate inside her. He would however force her to perform oral sex on him and ejaculate during that act. At times she would say no. At times during oral sex she would bite his penis and/or try to push him away. 4. She learnt not to push him off because he would hurt her more, "particularly down there". She said so normalised was the offending that she came to know when the offender wanted to engage in sexual activity. The first time penile-vaginal sexual intercourse occurred was in 2012 when she was in year 3 of primary school and aged between eight or nine. Details are given of the incident and are in the facts before me. 5. She said that after this first time her father would have intercourse with her whenever he had the chance. Throughout 2017 and 2018, when she was between 12 and 14, the acts of penile-vaginal intercourse and oral intercourse occurred regularly. At some stage the complainant disclosed what was occurring to her mother. Her mother tried to stop the offender by talking him out of it. However the offender did not stop, rather he belittled her mother and continued with his activity. 6. The agreed facts, detail occasions when during his digital penetration of her vagina she told him to stop and of his failure to stop. As with other types of intercourse, she was continually told that she had to do this for him as it was "normal". 7. She was also made to masturbate his penis to the point of ejaculation. Details of some of these acts and some humiliating aspects to them are set out in the facts. 8. Details are given of an incident in Sydney in October 2018 when the complainant was 14 years old. As a more mature child she told police, "I just had to let him and hoped it would be over soon." She said, "When I'd finally given him what he wanted, he was happy." Another incident from early 2009 of her just "letting him do what he wanted" is detailed in the facts. On another occasion she was given $20 for performing oral sex on him, but when she bit his penis she was slapped across the face. On at least one occasion she was given alcohol. 9. The complainant's account was supported in a general manner by her mother, who said that she did not report the offending to police because she was afraid of what people would think of her and feared that she would lose her daughters. The mother's situation can in part be explained by she herself having been the victim of sexual abuse as a child by a close relative. Further humiliation of his wife by the offender is detailed in the facts. 10. When he was arrested on 28 November 2019, Graham made admissions. In his police interview he said that he had a sexual attraction to her and saw the complainant as his "partner." He accepted that he had been touching her in a sexual manner since she was eight or nine and he agreed that penile-vaginal intercourse had occurred. He said that events often occurred when he was intoxicated. He said that he had asked his wife to 'role play' when they were having sex and pretend she was the complainant. 11. He told the police of his fantasies and sexual attraction to young girls. He said of the complainant, "she pretty much just goes along". He said that he initiated all the activity: "I think that she's doing that because I'm her dad and she thinks she has to". He agreed he had performed oral sex on her and of having her perform oral sex on him. He told police he felt ashamed and disgusted. Maximum penalty 1. A plea of guilty came early, although it was repeated today when a fresh indictment was presented. I will reduce the otherwise appropriate sentence by 25% to reflect the utilitarian value of that plea. 2. The maximum penalty for this offence is life imprisonment. That maximum penalty was not available during the whole course of the offending activity, but as I discussed in R v Jarvis (a pseudonym) [2020] NSWDC 396, the maximum penalty applies to this offence. I was not asked to revisit that decision today. 3. That life sentence acts as one important guide to the exercise of my sentencing discretion. Section 66EA(8) Crimes Act 1900 also notes that I must take into account the maximum penalty for the unlawful sexual acts engaged in by the offender during the period in which the unlawful sexual relationship existed. 4. In a helpful table in his written submissions, MFI 1, Mr Crown sets out maximum penalties: Section 66A(2) offence was life imprisonment with a 15 year standard non parole period. Section 61M(1), 7 years, 5 years standard non parole period. Sexual intercourse under authority, s 66C(2), 20 years imprisonment, 9 years standard non parole period; and aggravated sexual intercourse (child 14 to 16), s 66C(4), 12 years imprisonment and 5 years non parole period. 5. Although important guides, maximum penalties do not override a proper consideration of the seriousness of the offending behaviour. 6. Although not every incident was particularised, those that are show a course of conduct carried out against the complainant by the offender. The use of a s 66EA charge was entirely appropriate and accepted by the defence. It is axiomatic from the use of this section that the offence involves a series of criminal acts. But the number of occasions and the time period over which they occurred remains a very relevant consideration. 7. Here, the father-daughter relationship is of considerable significance. Again, as with most topics that are set out in s 21A of the Crimes (Sentencing Procedure) Act 1999, I have to be careful not to double count matters that relate to, or aggravate, the objective seriousness of the offending, particularly where those circumstances derive from that relationship. Further when a crime involves multiple acts of abuse, including sexual intercourse, each act particularised or set out must be considered individually and, because this is a s 66EA matter, collectively. 8. Important factors here include: 1. The actual character and objective seriousness of the acts involved and the degree of physical contact involved. 2. The age of the child at the relevant time. 3. The age difference between the perpetrator and the child. 4. The duration of all the offending, and the time over which the individual acts occurred. 5. The nature of any harm suffered; predominantly, here, psychological harm. 6. Any physical pain, or injury, or physical assaults that accompanied the sexual or indecent acts. 7. The risk of any psychological harm. 8. The risk of possible pregnancy or disease. 9. That the acts occurred in the family home where the child was entitled to feel safe and secure. 10. That at least on one occasion the child was given alcohol. 11. That the complainant's mother was induced into being complicit. 12. Finally, and perhaps most importantly in a matter such as this, the relationship that existed between the child and the offender. 1. Fathers are expected to protect and nurture, not abuse children in their care. A father is in a particular position of trust, and that trust here was breached over a repeated period. Here that position of trust derived from the fact he was the child's father and had total authority over her. The concepts 'breach of trust' and 'under authority' are inextricably intertwined. The child complainant was expected to obey, and accept the directions of the offender. She was in no position to do anything else other than to submit to his sexual demands of her. He had authority over every aspect of her life. She was a child in the family home. He was her father; in such a situation she was virtually helpless. Victims Impact Statement 1. In her Victim Impact Statement the child speaks of the impact of the offence on her, and asks: "Imagine being eight years old again. School is okay and you have nothing to worry about. Wrong. It started then. I had to grow up then and there at eight years old because of him, my father. I'm still terrified to this day that he's going to come back. I'm living in fear constantly." 1. She speaks of having flashbacks; how she was concerned about wondering where the next meal would come from and how she and her family were impacted upon by the offending. She says even while he is in gaol she is still terrified and scared. She speaks of attempts of taking her own life, and flashback to what occurred, and the feeling of loss so far as her family and friends are concerned. 2. She says, "I don't know how I'll ever get it out of my head," and her feelings that she is still not believed, despite the offender's own admissions. She says she has tried counselling and therapy but to date nothing has been particularly successful. She speaks of the impact on her of leaving the family home, and how she has lost school time, and how these events \ interfered with her relationship with her siblings. Other concerns include inability to sleep, and problems with eating certain foods. She speaks of self-harm, and the impact of that on her. 3. The absolute prohibition the law places on sexual activity with a child is intended to protect children from the psychological harm taken to be caused by such activity. Behavioural responses to child sexual abuse vary, and there is no unique set of behavioural constellations. Responses vary because of the diversity of the abuse experience. A sentencing Court has to recognise that all forms of child maltreatment present significant risks for later physical and emotional wellbeing. 4. Any sexual interference with the child can lead to inappropriate and dysfunctional interpersonal relations, feelings of betrayal, of trust, callousness, guilt, and shame. Significant longer term effects have been identified, and set out by the recent Royal Commission. 5. Every act of sexual interference by a father with a daughter is serious. Some of the acts here were relatively benign, but the significant matters were individually particularly serious and occurred on such a regular basis. Collectively the acts require punishment at the higher end of the scale. Subjective case 1. The subjective case, while not supported by evidence on oath, is relatively uncontroversial. I am indebted to Mr Bembrick for a comprehensive background report. He sets out the family history, growing up in southern Wollongong with a supportive family in public housing. The offender left school when he was 15. It appears that he had learning difficulties which were identified at a young age, and had to go to special classes. 2. He was not literate at all until he went into gaol, and he is still functionally illiterate. He has had a few jobs, but really he has been unemployed for most of his life. He has been on the disability support pension since he was a teenager. 3. He has been with the mother of his children since they first met in high school. Although they live together he said they could not afford to marry. He was, however, able to care with his children with support from his other family, who live nearby, and still continue to provide support for him. 4. Mr Bembrick addresses the question of remorse, and notes the letter to which I will soon refer. The offender told Mr Bembrick, "I regret all this. I wish I'd never done it. I thought about how what I've done has affected [her]: " "I know it's my fault only, no‑one else. My partner might blame herself, but it's my fault. I've done it." 1. Mr Bembrick describes a man with intellectual disability who is likely to be a target while in gaol, and possibly stood over. He complains of sleeping poorly, and having trouble getting assistance from authorities. 2. Ms Barhon, a clinical psychologist, conducted a number of tests. She received a similar history to that provided by Mr Bembrick. 3. So far as his mental health is concerned, he now reports to be up and down due to his current situation. She says he is still missing Father's day. Testing reveals his overall full scale IQ falls into the borderline range of intellectual functioning. That is it puts him in the bottom 6% of the Australian population. 4. In her opinion; his learning difficulties, his borderline intellectual disability, his lack of educational attainment, are all significant factors in his capacity to exist in the community, and will impact upon him while he is in gaol. Although he has a history of alcohol abuse, he appears to have coped in custody without abusing alcohol. 5. He appears to have put on a significant amount of weight when I compare him today with the photograph taken on his arrest. So far as gaol is concerned, it has allowed him to improve his physical wellbeing, but he will, she believes, need support to maintain alcohol abstinence once he returns to the community. 6. With regards to his risk of re-offending: he told to Ms Barhon that he does not feel good at all about the charges. She has concluded that he did not demonstrate a clear understanding that what he had done was wrong or appear to be accepting responsibility for his actions. She said that his actions and his attitude still display a clear sense of entitlement to offend against his daughter. 7. She says that although his offending was opportunistic with poor self‑awareness, he still has ongoing attitudes that support sexual offending. Given the chronicity of his offending and his use of physical coercion, threats and the like, his risk of re-offending is elevated. At the moment he minimises his offending. She says that despite his disability he still has some given his intellectual abilities; he can learn with repetition, and therefore will benefit from programs that can address his sexual offending. She concludes that without adequate psychological support and ongoing treatment he remains at risk of re-offending. 8. Pastor Tukatama wrote a letter to me setting out, on the offender's behalf, his remorse and regret. With great respect to the Pastor, who I know does good Christian work with prisoners, he fails to, understand the consequences of this offending and the consequences of the sentence that must be imposed. Where he repeats statements from the offender that he wants to be a loving and respectful father and husband, those repeated sentiments appear totally at odds with the offending behaviour, and show an unrealistic appreciation of the sentence that must be imposed. 9. In his letter to me Graham shows some capacity to read and write, but it remains at a basic level. The offender by his plea and his admissions to police takes full responsibility for his actions. In his letter to me he said – using his own spelling and syntax: "I am a man that has maed a few Big marstak's in Life I know I tack full responsibility for whot I have done to tho's I have hourt and tho's that Look't up to me." He also says "I never Lornt much at school about Life responsibility's, sex Eagercgsen, how to bee a DaD or a partner to. In Life we try to Do the right and responsibil thing's….. I have never Been in Jail Befor…. I Know I am in Jail for what I have Done rong in Life. In Life, Lornging more ever day as my Life go's on… Been in Jail is my folt and Know one else, is as it was my Bad Doing that got me here. I know it's up to you and the commity to give me a nather go in Life… I am not a Bad man Like most that Do thes Crime's. Hope you see I am a good man that has Just maed some marstarKe's Back in my Life… It is hard to get usto Been LocKt in at 3pm into 8:30am the next Day, and it has Been hard as I have not been a bull to call anyone …. Im not too shor how Jail is meen't to Be, as this is my fist time, hey. I Know you have to give me a parnchment for the crime I have Done. I Just hope you give me a nather go to in prove my Life, on the out sied to bee that Better man and DaD and partner, and commity helper man, that I now I can Bee." 1. He also wrote about his experiences in gaol. With respect, and it may well be a result of his borderline intellectual disability, he shows no real appreciation of the consequences of his actions, neither to himself, his family and his victim in particular. 2. He has a borderline intellectual disability. That is a limitation in his present functioning characterised by sub-average intellectual functioning with related limitations. These matters were summarised in exhibit B, prepared by Professor Susan Hayes of Sydney University. 3. Intellectual disability attracts the same application of proper principle which apply to those who suffer mental illness:" Anderson v R (1981) VR 155. The relevant principles were succinctly summarised by the Chief Judge at Common Law in DPP v De La Rosa [2010] NSWCCA 155. Not all apply here. It is not suggested that the offender's intellectual disability had a causal relation to his offending, although it may explain why he adopted the attitudes he did, and why he was apparently, even today, incapable of understanding the impact of his offence and the total wrongness of what he did. 4. His lack of capacity and other deficits will make his time in gaol harsher than those for prisoners who are not so disabled. It is hoped that he will eventually realise that he has no hope of reuniting with his family. 5. That he cannot have visits with other close family is an additional hardship. He has no idea about the impact on him of a lengthy sentence. This lack of capacity for conceptual thinking does reduce his moral culpability to a degree. 6. His intellectual disability means he has no concept of the consequence of his actions; this means greater weight must be given to specific deterrence and considerations of community protection. I have already noted Ms Barhon's conclusions at page 6 of her report. But people with a borderline disability can and do learn and Graham has the capacity to learn a wide range of skills, but he will have to do so during his time in custody. Submissions 1. I am indebted as always to Mr Scully and Mr Fraser for their helpful, comprehensive and fair written submissions. I have sought to do justice to them in this judgment. Synthesis 1. Synthesising all the relevant factors. The maximum penalty of life imprisonment and the penalties that would otherwise have applied to individual offences reflect a community expectation that those who commit such offences, and offences over such a period of time and of such variety and consequences for their victim, will suffer severe punishment. 2. Mr Fraser in his submissions asked for a finding of special circumstances. Given the length of the sentence that must be imposed here, apart from some modest rounding, there is no justification for such a finding. The minimum term served must properly reflect all the purposes of sentencing, and my sentence, even allowing for an appropriate reduction for mitigating factors and the plea of guilty, will provide sufficient time for him to be supervised and assisted in adjusting to normal community life. 3. A proper sentence marks the court's view of the seriousness of the crime and should let others know the retribution that will fall upon them if they commit similar crimes: R v Herring (1956) 73 WN (NSW) 203. Sentencing courts have an obligation to protect the community. This offender must be removed from the community for a significant period in order to achieve that aim and the aim of appropriate punishment and retribution. But he must also be returned to the community. 4. Even though he has an intellectual disability Graham can learn; but his learning environment will be a gaol, and there is always a risk that a person with borderline intellectual disability will learn negative things from other prisoners rather than positive and helpful things from those who provide rehabilitation services. 5. Graham will be in custody during the COVID pandemic. He will not qualify for early release should COVID get into the gaol. Because of it he will suffer more restrictions in terms of his capacity to have contact with those family members who still support him, a matter I must take into account. He will have no control over social distancing. If COVID gets into the gaol, he will be at risk. 6. Sentencing courts can only take mitigating factors so far. Courts have obligation to, by the sentence imposed, vindicate the dignity of the victim, to express the community's disapproval of the offending, and as far as we can protect the vulnerable from repetition of it. 7. The sentence will be reduced by 25% to reflect the early plea of guilty. There will be no finding of special circumstances here, for the reasons I have outlined. Had it not been for the plea of guilty, a sentence of 20 years imprisonment would have been imposed. Orders 1. There will be a sentence of 15 years imprisonment. I impose a non parole period of 11 years, commencing on 28 November 2019. The offender will be eligible for consideration for release to parole on 27 November 2030. There will be a parole period of four years from that date. ********** 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: 10 December 2020