District Court New South Wales Medium Neutral Citation: R v Allen (a pseudonym) (No 2) [2024] NSWDC 300 Hearing dates: 3 May 2024 Date of orders: 3 May 2024 Decision date: 03 May 2024 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Verdict: On the limited evidence available the defendant committed the offence charged. A Community Corrections Order for a period of 2 years and 9 months is imposed Catchwords: CRIME — Child sex offences — Sexual intercourse with a child aged under 16 under authority MENTAL HEALTH — Criminal proceedings — Person unfit to be tried — Special hearing — Mental impairment — Defendant aged 89 — Suffers significant cognitive impairment — Dementia — Offender too ill to be present and excused — Defendant unfit to be tried — Principles to be applied SENTENCING — Mitigating factors — Unable to re-offend SENTENCING — Penalties — Community Corrections Order — Orders pursuant to Crimes (Sentencing Procedure) Act 1999 and Mental Health (Cognitive Impairment Forensic Provisions) Act 2020 SENTENCING — Relevant factors on sentence — Delay — Deterrence — General deterrence — Objective seriousness — Purposes of sentencing SENTENCING — Sentencing procedure — Instinctive synthesis SENTENCING — Subjective considerations on sentence — Age of offender — Significant cognitive impairment — Dementia — Health issues — Gaol would cause significant hardship — Mercy Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Mental Health (Cognitive Impairment Forensic Provisions) Act 2020 (NSW) Cases Cited: Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257 Costello v R [2017] NSWCCA 32 DPP v Snow [2020] VSCA 67 Engert v R (1995) 84 A Crim R 67 Magnussen v R [2013] NSWCCA 50 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 R v Allen (a Pseudonym) [2024] NSWDC 64 R v Asplund [2014] NSWCCA 237 R v Burrell (2000) 114 A Crim R 207 R v Cattell [2019] NSWCCA 297 R v Edwards (1996) 90 A Crim R 510 R v Hornhardt [2017] NSWCCA 186 R v Kane [1974] VR 759 R v L (District Court (NSW), 17 June 1996 unrep) R v McDonald [2024] NSWDC 136 R v Miceli (1997) 94 A Crim R 327 R v Smith [2024] NSWCCA 437 R v Smith (1987) 44 SASR 587 R v Sopher (1993) 70 A Crim R 570 R v Windle [2012] NSWCCA 222 State of WA v Rayapen [2023] WASCA 55 Texts Cited: J Gleeson, "The Legal Case for Mercy", Barry O'Keefe Memorial Lecture 2024, 20 March 2024 https://www.hcourt.gov.au/assets/publications/speeches/current-justices/gleesonj/Gleeson(20March2024)BarryOKeefeLecture.pdf R G Fox, "When Justice Sheds a Tear: The Place of Mercy in Sentencing" (1999) 25 Monash University Law Review 1 Category: Sentence Parties: Gerald Allen (the accused – a pseudonym) Public Prosecutions (NSW) (Crown) Representation: Counsel: L Fernandez (for the offender) C Todd (for the Crown) Solicitors: Kennedy & Cooke Solicitors (for the offender) Public Prosecutions (NSW) (Crown) File Number(s): 2021/158389; 2021/113016 Publication restriction: Pursuant to s 15A Children (Criminal Proceedings) Act 1987 (NSW) and s 578A Crimes Act 1900 (NSW), there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of a complainant. Identifying information has been removed from this version of the judgment to comply with the statutes. Pseudonyms have been used. JUDGMENT – ex tempore revised Introduction 1. There are already pseudonym orders in place for this matter: R v Allen (a Pseudonym) [2024] NSWDC 64. The names of the children and Allen (a pseudonym) are not to be published. 2. Allen is now 90 years old. He has dementia and other health problems. He was charged with a number of offences against three children, his granddaughters, Debbie and Cara, and his step-grandson, Miller. The offences are said to have occurred between 1984 and 1992. 3. On 1 June 2023 Allen was found unfit to be tried by Judge Pickering SC. His Honour determined that Allen would not become fit to be tried within 12 months. 4. On 14 March 2024, after a special hearing at Bega District Court held pursuant to the Mental Health (Cognitive Impairment Forensic Provisions) Act 2020 (NSW) I acquitted Allen of the six counts relating to his granddaughters. I found, on the limited evidence available, that he committed a s 66C(2) Crimes Act 1900 (NSW) offence, a count relating to his step-grandson. That was an allegation of Sexual Intercourse with a Child aged under 16 while under Authority. It occurred at the same south coast town as the other allegations and is said to have occurred between 20 October 1989 and 16 March 1991. 5. Allen's dementia is a cognitive disorder: Mental Health Act, s 5. Given Allen's state of health he was not present at the hearing, nor is he present today: Mental Health Act, s 58(8). My finding, on the limited evidence, that he did commit an offence means that I am now required to decide whether, had he been fit to be tried in an ordinary way and had been convicted, he would have been subjected to a term of imprisonment, and if he would have been, what limiting term would be appropriate, or alternatively, what other non-custodial options are available: Mental Health Act, s 63. A limiting term is the best estimate of the sentence that the court would have imposed on the defendant in those circumstances: Mental Health Act, s 64. 6. If I determine that I would not have imposed a sentence of imprisonment, I may impose any other penalty or make any other order I might have imposed or made, if the offender had been guilty of the offence in an ordinary trial of criminal proceedings. 7. A number of factors that must be considered when determining penalty are set out in s 63 Mental Health Act. If I nominate an appropriate term of imprisonment the Mental Health Review Tribunal will continue to review Allen and make appropriate recommendations. But, until that review he would need to be detained, and in all likelihood unless some other option could be found, and none have been suggested, he would be held in a prison: Mental Health Act, s 65. Facts for sentence 1. Miller and his family would visit Allen at the south coast home he shared with his then wife. She is now deceased. At the special hearing Miller told the Court that he recalls a family visit to the home on the south coast. His step-grandfather asked his parents if he could take Miller outside to lock up the caravan which was parked out the front. Miller said: "Well, we got out to the caravan, we got to the front door of the caravan. Because of the position of the caravan, it was quite, quite dark. There was a streetlight opposite the caravan on the street, but it cast a fair bit of shadow. Once we reached the shadow area, [Mr Allen] turned to me and grabbed me by the shoulders, leaned down and started telling me that he loved me. He said that a couple of times trying to reassure me or something and then he got down lower, unzipped my pants and he began sucking my penis. This lasted for a few minutes, and I believe he was – he kept stopping and reassuring me saying 'I love you; I love you', and, and that's when I became a bit hazy and I sort of went into shock, and I don't really know how long that lasted for. But after that happened, I remember us walking back inside and, and after that, my recollection of the night gets pretty fuzzy.": Tcpt, 5 March 2024, pp 171-172. 1. Under cross-examination Miller said that he never said anything to his mother shortly after it happened because of a feeling something that was wrong: Tcpt, 5 March 2024, pp 182-183. He said: "Fear of embarrassment and I was just – like I said, I'm a shy person. I don't like confrontation, so there was no way I was going to bring that up. I was way too scared [about] having my penis sucked by a man.": Tcpt, 5 March 2024, pp 182-183. 1. He also said that during later visits after the Allens had moved to a house by the river that the defendant would try to and otherwise touch him. His sister confirmed that type of behaviour did occur, noting at the time their nan was not well, or mobile, as she used an oxygen machine. 2. In my judgment following the special hearing of R v Allen (a Pseudonym) [2024] NSWDC 64, I noted Miller impressed me as a calm and thoughtful witness who did not embellish. He focused on describing what had occurred. His account was clear. It did not seem damaged by the passage of time or the careful cross-examination by Mr Fernandez, who appeared at the special hearing and who appears today. 3. He told a friend what happened a few years after the event, although no details were given. I concluded at par [176]: "Miller's evidence about Count 8 was clear. It was believable. He was about 9, 10 or 11 when the events described occurred. He told a friend he'd been abused a few years later. He gave an account of other behaviour by the defendant that was supported by his sister. His parents may have been able to support or contradict his account, but their absence, while important, as the prosecution have the onus of proof, is not decisive. I believed his account. It was as I have noted, not implausible." Objective seriousness 1. It needs to be stated from the outset that there was, at the relevant time as there is now, an absolute prohibition on any sexual activity with a child. That prohibition is strictly enforced. The laws are there to protect children from the physical and psychological harm taken to be caused by premature sexual activity. It follows that every act that involves sexual interference with a child is serious and is treated seriously by the courts. The guidance offered by the maximum penalty which, at the time was 10 years imprisonment, makes that clear. 2. I have to focus on the nature and character of the incident. The degree of physical contact is also of considerable significance. When assessing the objective seriousness of sexual intercourse offences against children, the actual the act involved is also important. While no type of intercourse is by itself, more or less serious than the other, the nature of the act of intercourse is important. The forced oral intercourse here was intrusive but not painful. It can, and did, lead to considerable confusion and stress. The act was relatively brief, it was furtive, it was inflicted without any forewarning. 3. The relationship between the offender and the child here is reflected in an element of the offence, 'under authority', which is integral to the charge. But more than that, the child was entitled to look to his grandfather for support and protection, not abuse. That breach of trust is an additional, though related, factor that must be taken into account. 4. The age difference between the offender and the child is relevant. Allen was 55 to 58 and Miller aged 9, 10 or 11. I note that s 80AF Crimes Act applied to these proceedings. 5. The age of the child relevant to the range encompassed by the offence is also relevant, the younger the child the more serious the offence. As should be obvious this was very serious offending. Section 66C(2) Crimes Act relates to children aged 10 to 16. Although the sexual act appears to have been a one-off offence, the sexual interest in the child continued to the child's continuing distress. Facilitation of the course of justice 1. The court may impose a lesser penalty than it would otherwise impose on an offender who was tried on indictment having regard to the degree which the administration of justice has been facilitated by the defence: Crimes (Sentencing Procedure) Act 1999 (NSW), s 22A. 2. While this was not a trial, it is appropriate that those provisions apply to these proceedings. Here, Agreed Facts were prepared and agreed to by those acting for Allen, exhibits were tendered without objection, and the witnesses, other than the complainants, were either not required or not cross-examined. 3. Mr Fernandez referred me to a recent decision: R v Smith [2024] NSWCCA 437 at [88]-[94] (Naughton J). There she reviewed a number of cases where s 22A had been applied in recognition of the facilitation of justice. In many, a percentage reduction in the otherwise appropriate sentence was indicated. That was the course her Honour followed. Her Honour also indicated that the final sentence after reduction for s 22A factors must not be unreasonably disproportionate to the nature and circumstances of the offending. I accept that quantification of such discounts is not erroneous, but it, as the High Court pointed out in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [64], can lead to error. 4. I do not believe a percentage discount is required to be expressed in these proceedings, but I have taken into account that this special hearing was conducted expeditiously, with focus only on the relevant issues, thus saving Court time and expense to the police and prosecution. Victim impact 1. I have received a Victim Impact Statement from Miller. In it he said, "that before [Allen] abused me, I was a happy normal kid". After [Allen] abused him, he said, he "felt like I had started to become weird". His level of confidence and the way he behaved changed. He believes he "had a lot of anxiety, and [his] social confidence was all gone". He gave examples. He can still "remember the illumination from the streetlight" and what occurred. He can "remember feeling numb and in shock after the sexual assault" happened. He said, "After what [Gerald] did to me I found it hard to trust family when it came to things … I can't help how I feel". He gave examples. He said that: " … coming to court and giving evidence is something that I never thought I would do. But after giving my statement and finding solidarity with my cousins after so many years; I was determined, mobilised, and resolved to see this to the end." 1. He concludes: "In the journey that is my life I am happy to have this court process done. I am happy that he was made accountable for what he had done to me all those years ago and for all the pain, trauma, and sadness this has caused. And now I will be moving forward with my life in my way." 1. A Victim Impact Statement attests to the personal harm suffered by the victim as a direct result of the offence. I have no difficulty accepting what is set out in it. It serves the very practical purpose of drawing to the Court's and the community's attention to the personal harm caused by this crime. If the offender is capable of understanding this judgment, he too may gain some insight into the impact of his act. Subjective case 1. Allen was born in 1934. He is now 90 and very frail. He started working at 13. He did his national service and trained then as a mechanic. He worked all his life until retirement. He had a number of jobs, including running small businesses. In his later years he worked for local council. He was a regular drinker, reflected in matters on his criminal record from some time ago. He would drink seven to eight schooners a day. His only other recreation was lawn bowls. 2. He suffered strokes in 2008 and 2020. Subsequent scans and testing reveal cerebral atrophy and other vascular insults. In 2020 he had a fall and went to hospital. After that he was unable to return to his home. Eventually, after a long stay in hospital, a place was found for him at an aged care facility on the south coast. He still lives there semi-autonomously with his second wife as his primary carer. He has contact with only one daughter, she has his power of attorney. His second wife and that daughter assist in his care. 3. He suffers a number of chronic conditions including protruding hernias, emphysema, osteoporosis, hypertension, and a leaking heart valve. He cannot be operated on for any of his conditions as he would not survive anaesthesia. He was found to have bowl cancer in 2020, and it appears that although he responded well to treatment at the time, that cancer has returned. He has had a number of falls. One last month caused concussion. He takes multiple medications for his conditions including also for depression. 4. When his fitness for trial was raised, Allen was seen by Dr Greenberg and Dr Nielsen. Both are forensic psychiatrists well respected by the Court. Dr Greenberg conducted an AVL examination but could not test him fully. He found as a result of his interviews that Allen had a mild cognitive disorder and was unfit to be tried: Mental Health Act, s 36. Dr Nielsen diagnosed dementia with significant cognitive impairment. He said that impairment would not improve. He noted short term memory deficits. 5. Material before the Court also indicates that Allen suffered some minor extra curial punishment when he was assaulted in a restaurant by the daughter of one of the female complainants. Now 90, he has no real idea about the allegations or the special hearing or its consequences. He could not be present at the hearing or today. Delay 1. Delay, illness, old age, while relevant in mitigation of sentence, do not mean that those who have committed sexual offences against children can avoid punishment: see for example my recent decision of R v McDonald [2024] NSWDC 136. But the delay also caused considerable disadvantage to him in the conduct of the special hearing. 2. The mere fact there has been a significant delay does not necessarily mean the sentence or limiting term, if imposed, must be reduced. Offenders do not necessarily benefit just because there was delay in the revelation of their offending: R v Hornhardt [2017] NSWCCA 186; R v Cattell [2019] NSWCCA 297. I do note that the offending appears to have ceased in 1989 and there is no evidence he has committed any crime since. But Allen has not, until these crimes came to light, and until my finding, suffered the opprobrium that his crimes deserve. He did not lose his liberty in the 1990s, as surely he would have: Magnussen v R [2013] NSWCCA 50 at [62]. 3. Every exercise of sentencing is individual. There is no fixed principle about whether and to what extent, leniency arising from delay should be granted. Here, the very nature of the offending and the relationship between the complainant and the offender made him reluctant to come forward and make a complaint. 4. Studies placed before the Royal Commission revealed that victims of child sexual assault often did not disclose for many years. If one freezes or clams up at the time, if one feels guilty about an experience, it is only a small step for an immature mind to draw a conclusion that they themselves are at fault. Hiding from consequent shame can be a potent deterrent to disclosure. Those general principles were reinforced by the Victim Impact Statement that I received today. Ill health 1. A person cannot escape just punishment because of their ill health. But I can, and will, take into account the extra burden on him of his health, and particularly the impact of his multiple conditions will have on him were he to go into custody. Allen has a number of chronic and debilitating conditions. In gaol he would be significantly more vulnerable than most prisoners. He would, if gaoled, either be placed in a special facility or a gaol hospital. He would not have the same access to medical treatment or medications as he does presently. That said, Justice Health can, and do regularly, assure the courts that they can provide for anyone who is gaoled no matter what their condition: R v Smith (1987) 44 SASR 587; R v Sopher (1993) 70 A Crim R 570 at [573]; R v Asplund [2014] NSWCCA 237 at [67]. 2. Allen's age also makes him particularly vulnerable. Courts do not, and should not, estimate the lived experience of gaols, particularly for those with underlying health conditions: R v Burrell (2000) 114 A Crim R 207 at [27]. Submissions 1. Mr Fernandez and Mr Todd, Crown Prosecutor, provided comprehensive written submissions to which they briefly spoke this afternoon. There was little between them on matters of fact or principle. I have considered those submissions and sought to address them in my determinations as to the appropriate disposition of this matter. I hope this judgment does justice to them. 2. The parties accept that condign, that is serious punishment, is almost always required and deserved where a child as young as Miller is sexually assaulted. But in the particular circumstances of this case, the Crown position, shared by the defence, is that while it would be an extremely lenient option, a limiting term is not required and that a Community Corrections Order could be imposed: Crimes (Sentencing Procedure) Act, s 8. Mercy 1. Sentences by their severity should reflect the seriousness of what was done. Sentences by their severity must attempt, so far is as possible, to recognise the harm that was done to the victim and the community. Sentences also operate to reflect the community's repugnance and disapproval of the type of offending and attempt to recognise the gravity of the offence. It is hoped that by the severity of the punishment inflicted, others noting that punishment, will be deterred and not offend in a similar way. 2. However, in some cases where wholly exceptional circumstances arise, the Court can, as a matter of mercy, impose a lesser sentence on an offender than would otherwise be justified: R v Edwards (1996) 90 A Crim R 510 at [515]-[516]; Costello v R [2017] NSWCCA 32. See also J Gleeson, "The Legal Case for Mercy:" "When properly exercised mercy in the law is thoughtful and not arbitrary. Mercy may be expressed only within a detailed framework of principles, statutory and common law, which are designed to promote consistency in decision making.": Barry O'Keefe Memorial Lecture 2024, 20 March 2024 https://www.hcourt.gov.au/assets/publications/speeches/current-justices/gleesonj/Gleeson(20March2024)BarryOKeefeLecture.pdf 1. As Windeyer J said in Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257 at [269]: "This is not because mercy, in Portia's sense, should season justice. It is that a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice." 1. In Engert v R (1995) 84 A Crim R 67, Allen J expressed the point succinctly; "Human sympathy would say 'Well you would not expect him to get the same sentence as someone else'". 1. Dealing with offenders who have serious health concerns have given rise to similar sentiments: R v L (District Court (NSW), 17 June 1996 unrep); State of WA v Rayapen [2023] WASCA 55; R v Kane [1974] VR 759; R v Miceli (1997) 94 A Crim R 327; R G Fox, "When Justice Sheds a Tear: The Place of Mercy in Sentencing" (1999) 25 Monash University Law Review 1; and a case cited by Mr Fernandez, DPP v Snow [2020] VSCA 67 at [80]-[89]. 2. But there is another matter that must always be considered, as Justice Gleeson also noted in her recent lecture, "Mercy towards an offender may operate as an injustice to the victim whose suffering is recognised by punishment." Synthesis 1. Many years ago, a serious crime was committed on a child. The delay in reporting the matter and the offender's cognitive impairment meant that a trial could not be held. At a special hearing where Allen was incapable of either attending or presenting his version of events, based on the limited evidence available, I found the offence had been committed. 2. A young child was sexually abused by his grandfather. Given the seriousness of that crime there is a general expectation that only a custodial sentence of some length could meet the purposes of sentencing. But here Allen could not, because of his cognitive disability, understand what he was being punished for. In those circumstances he could not personally be held accountable for his actions. He could not comprehend why he was being moved from his supported accommodation to a gaol. He would be very vulnerable in gaol. He would most likely spend his time at a special facility or a hospital. He would most likely die in gaol. Some may say that is what he deserves, but a proper purpose of the criminal law is not to give effect to public opinion which may be subject to prejudice or ill-informed public opinion. The urge for retribution is, or should be, treated as diminished in the case of the mentally ill: R v Windle [2012] NSWCCA 222 at [42] (Basten JA). 3. Given where Allen is now housed, given his short available lifespan, given that he has not come to notice for other offending this century, there is no risk of future offending. The community in 2024 does not need protection from Allen. While community protection also encompasses prevention of offending by others, principles relating to general deterrence and retribution have limited utility here. Despite the community's greater recognition of the short and long term harm sexual abuse causes children and the increasingly severe penalties imposed by courts, sexual offences against children sadly continue. 4. Victim vindication is an important principle. But the victim here can take solace from the fact that he was believed by the Court, and that Allen's crime has been revealed to his family and the community. 5. Although Allen must have the full benefit of my acquittals, the other complainants may take some comfort from my conclusion that although I could not find the specific counts charged were proved beyond reasonable doubt, I found that they were in fact abused by their grandfather: see R v Allen (a Pseudonym) [2024] NSWDC 64. 6. Adequate and proportionate punishment are important principles, but here a retributive sentence would require the brutal utility of a gaol term and in extraordinary circumstances here, that option is not required. While Allen's criminal act towards Miller deserves no mercy, we as a community are capable of exercising compassion and common humanity in tempering the full effect of punishment. Call it mercy, call it compassion or call it practical utilitarianism, a limiting term here is not appropriate. Orders 1. Following my findings that on the limited evidence available the defendant committed the offence charged, I impose on Gerald Allen a Community Corrections Order for a period of 2 years and 9 months: Crimes (Sentencing Procedure) Act, s 8. It is a fundamental condition of that order that he be of good behaviour: Mental Health Act, s 63(3). 2. As I have indicated, though I would not have imposed a sentence of imprisonment in respect of the defendant had it been a normal trial, and as no limiting term has been imposed, I direct the Registrar of the Court notify the Mental Health Tribunal that a limiting term is not to be nominated in respect of Allen: Mental Health Act, s 53(6). "HIS HONOUR: Is anyone going to be in a position to explain this order to Mr Allen or is he beyond that? FERNANDEZ: He's beyond that your Honour." ********** 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 July 2024