New South Wales District Court CITATION: R v. RA [2006] NSWDC 138 JUDGMENT DATE: 18 August 2006 JUDGMENT OF: Finnane QC DCJ DECISION: Count 1. I sentence the offender to a non-parole period of thirteen years. The balance of the term will be four years and four months. The non-parole period commences on 18 August 2006 and expires on 17 August 2019. The balance of the term commences on 18 August 2019 and the sentence concludes on 17 December 2023. ; Count 3. I sentence the offender to a non-parole period of seven years. The balance of the terms will be two years and four months. The non-parole period commences on 18 August 2013 and concludes on 17 August 2020. The balance of the term commences on 18 August 2020 and the sentence concludes on 17 December 2022. ; Count 4. I sentence the offender to a non-parole period of thirteen years. The balance of the term will be five years. The non-parole period commences on 18 August 2009 and concludes on 17 August 2022 on which day the offender is eligible for parole. The balance of the term commences on 18 August 2022 and concludes on 17 August 2027 on which day the offender is to be released from custody. CATCHWORDS: Sexual Intercourse - Child under 10 years of age - Sentence - criminality - level of seriousness - abuse of relationship - daughter - vaginal intercourse - digital intercourse - extent of contrition and remorse LEGISLATION CITED: Crimes Act 1900; s66A Crimes (Sentencing Procedure) Act 1999; ss. 21A, 54B CASES CITED: R v. AGP [2004] NSWCCA 434 PARTIES: Regina RA FILE NUMBER(S): 04/31/0470 COUNSEL: Crown: Mr G Fatches Offender: Mr G Jauncey SOLICITORS: NSW DPP: Mr J Outram Offender: Legal Aid Representatives - 1 - SENTENCE NON-PUBLICATION ORDER ON NAMES OF ALL PARTIES 1 HIS HONOUR: Children who are less than ten years of age are entitled to expect their father will protect them, nurture them, comfort them and help them. The offender was the father of an eight year old girl and far from protecting her, nurturing her, comforting her and helping her, he had penile sexual intercourse with her on two occasions, penetrated her vaginal area with a finger on one occasion and over twelve months engaged in acts of this type on about twenty or thirty occasions. 2 There is no specific evidence of any physical or mental harm being caused to this girl, but there is evidence that she was showing behavioural problems to her mother that caused her mother to investigate. When her mother investigated the facts about the episodes of sexual abuse became known. 3 Sentencing this offender presents a number of problems. He is a man of good character who has always worked and has always supported his children financially. Apart from his sexual abuse of his daughter he treated her well and treated her brother well. A number of people have spoken positively on him on the basis they believe him to be an innocent man. He appears to have a close relationship with his mother and with other members of his family. 4 He maintains his innocence and thus I must regard him as showing no contrition and no remorse. Notwithstanding the report of Dr Lennings I am unable to form any view that he is likely to rehabilitate himself. This is because he continues to maintain his innocence. He has given no evidence before me at any time and I simply lack any evidentiary basis for coming to the conclusion that he is likely to rehabilitate himself. 5 Dr Lennings has expressed the opinion there was a low likelihood of a risk of re-offending. His opinion is based on his application of a test known as Static 99. I have no confidence in the accuracy of this test and I am unable to accept that Dr Lennings expertise as a psychologist enables him properly to express an expert opinion about re-offending. 6 In my opinion it is not possible to determine whether the offender is likely to offend again. Certainly it is unlikely he would ever be able to offend against his daughter, she lives in another state and she will be an adult before he is released from gaol. There is no evidence to suggest he has any general interest in abusing young girls or that he has ever previously done so. 7 I have come to the conclusion that the two acts of penile penetration must be regarded objectively as being at least of a mid range of seriousness. The offence of digital penetration, whilst serious, is properly to be regarded as being one that falls below the mid range of seriousness. These findings in my opinion require me to impose sentences of considerable severity. 8 The only mitigating factor which I could find proved was that apart from these offences the offender should be regarded as a person of good character. He gave no evidence at the trial and gave no evidence at the sentencing proceedings. He was entitled of course to decline to give any evidence but his electing to take this course has meant that I know nothing about his motivation in committing these offences and I can form no opinion about rehabilitation. 9 I must sentence the offender in my opinion on the basis that he committed three serious sex offences against his eight year old daughter and that he has no contrition for what he has done. Furthermore these crimes were committed during a period in which he did similar things to his daughter on about twenty or thirty occasions. FACTS 10 The offender and TLS the mother of the child K had a relationship of a sexual type during her teenage years and K was born but at the time of the birth the offender and TLS were no longer in a relationship. When K was about one year old TLS contacted the offender and told him that he was the father of a girl. Commendably he accepted responsibility for this and resumed the relationship with TLS. As a result of the resumption of this relationship TLS had another child, a little boy C. The four of them lived as a family until K was five years old and C was two years old. The parties then split up again and the offender went back to live in Narrabri. From this time until 5 October 2004 both parents shared the custody of the children. This meant that the children would go to live with the offender at his place of residence in Narrabri on occasions and with their mother in Shellharbour on other occasions. In 2003 the little boy C went to live with his father on a more or less full time basis. 11 In February 2004 the father of the offender died in Narrabri and TLS took the two children to Narrabri to be with their father at the funeral. She left them in Narrabri for a few days and it was during this time that the first offence was committed by the offender. On the day of the funeral the offender and members of his family went to the funeral and to the wake. It would appear that the offender and others in his family were drinking heavily. That night the offender and the two children stayed at the house of one of the offender's brothers. 12 I am satisfied that the evidence establishes beyond reasonable doubt that the two children went to bed in a double bed and they were joined there quite late at night by their father, the offender. He slept between the two children. K was asleep but she felt her father pulling her pants down the side of her legs. He then placed his penis between her legs from the back into her vulva opening. She felt it go up and down, felt his pubic hair and noticed that she was "yucky" and "wet inside" the vulval opening. She then got up from the bed, went to the kitchen, had a drink and then went to sleep in another bed. Her father said nothing to her about this nor did she say anything to him. After a few days the two children went back to their mother and stayed with her until May of that year. TLS drove the two children back to Narrabri in May and they remained with their father until later in the year. 13 The second offence of which the offender was convicted occurred in late August 2004. The child K was able to say that this offence occurred just before a named teacher commenced at her school in Narrabri. It was agreed by the accused that the named teacher came to the school on 30 August 2004. 14 During May to August the children and their father lived with his mother in a house some distance from Narrabri. One night when K was in bed and the offender was there too he stuck his hands down her pants and pushed his fingernail into her vaginal opening. This caused her pain. 15 The third offence of which he was convicted again occurred when she was in bed with him. This was probably in September of the same year. On this occasion he pulled her on top of him so they were facing each other and he moved her up and down on his penis a number of times. He did not ejaculate, she fell off on the ground and hit her head. She said in evidence that similar sexual episodes occurred on twenty or thirty occasions and that she made notes in a diary by marking the days when these events occurred. Despite a search by police the diary was not found. However in my opinion the complainant K was a truthful, reliable and impressive witness. She was intelligent and definite in her evidence. It is obvious the jury have the same opinion. 16 It follows that I must sentence the offender on the basis that he penetrated the body of his eight year old daughter with his penis on two occasions and forced his finger into her vagina on one occasion, that he committed these acts during a period in which he did similar things to her on twenty or thirty occasions. The acts of penile penetration are worse in my opinion than the act of digital penetration and must receive more severe sentences. The first act since it was one where he ejaculated in her in my opinion is worse than the other act of penile penetration. 17 The offender was interviewed by police on 6 October 2004 and denied committing any sexual acts against his daughter. The jury considered those denials but rejected them. I am certain the jury was correct in coming to that conclusion. 18 These events came to light on 5 October 2004 when the little girl K was at the home of a friend of her mother and was showing unusual behavioural signs. When her mother enquired further K told her what had been going on. Police were contacted and she made a video interview with police on 6 October 2004. At the trial she was asked why she did not speak of these events before 6 October 2004 and she said that she was scared. 19 Having seen her give evidence and having considered all the other evidence and in particular the evidence of TLS I am sure that K was fond of her father, enjoyed being with him but was disturbed by his abuse of her which was something she could not understand. Because of the nature of the offences the offender has not seen her or spoken to her since 5 October 2004 and he will probably never see her again. Certainly there is little chance of that occurring during the remainder of her childhood since the sentences which I impose will mean that she is well and truly an adult before his release from custody. FACTS CONCERNING THE OFFENDER 20 The offender was born on 4 July 1974. The only blemishes on his good character come from two drink driving convictions. For the purpose of this sentencing exercise I propose to treat him as a man of prior good character. He grew up in the Narrabri area after attending school in that area and as I would understand it he has been normally an employed person following occupations that are at best semi-skilled. In his earlier life he acted responsibly in agreeing to care for his daughter. 21 It seems obvious to me that his relationship with his daughter, apart from his sexual activities, was a good one. As I have said before he has given no evidence and what I can glean about him comes from what he told Dr Lennings and what a number of character witnesses have said about him. A number of people came to court and spoke very well of him. Normally I would give a great deal of weight to that, however each of them gave this evidence of his good character on the basis that each of them believed him to be an innocent man. Necessarily I can give less weight to that evidence than I would give if they knew and accepted he was a guilty man. But I accept that he was apparently a good worker and has good relationships with members of his family and other people who know him. Dr Lennings is of the opinion there is little risk of his offending again. 22 As I have said before I am not prepared to come to the same conclusion because he has given no evidence and the test which Dr Lennings applied obviously involved the assessment of a number of subjective factors. I do not have the same confidence in his as is expressed by Dr Lennings. In his report Dr Lennings asserts that: "It is probably the case that Mr A's situation is a product of a heightened opportunity to offend and in the man such opportunity can be addressed by appropriate supervision strategies." 23 I am unable to accept that this is a valid assessment of the situation at all. The offender chose the bed in which his children slept and he chose deliberately to sleep in that bed and to sexually abuse his daughter. A normally protective parent would not have engaged in conduct of this type. ASSESSMENT OF THE SERIOUSNESS OF THE CRIMES 24 Each of the offences has a standard non-parole period of fifteen years with a maximum sentence of twenty five years. This is a very high non-parole period compared to the maximum sentence, but Parliament fixed this period and I must accept that Parliament has concluded that this offence is so reprehensible that an offence in the middle range of seriousness warrants a fifteen year minimum gaol term. 25 If I determine that any of these offences are in the middle range of seriousness then s 54B of the Crime Sentencing Procedure Act 1999 obliges me to set the standard non-parole period as the non-parole period for the offence, unless I determine that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period and the only reasons to which I can have regard in doing this are set out in s 21A of the same Act. 26 Of the matters mentioned in s 21A I am of the opinion there are some aggravating factors, namely the offender has abused a position of trust or authority in relation to the victim and that the victim was vulnerable because she was very young. The only mitigating factor which I can take into account is that he was a person of good character. Because of a lack of evidence I am unable to make any conclusions about his prospects of rehabilitation. He has shown no remorse for the offences. 27 I also take into account the fact that these three offences were committed during a period in which he committed against the victim twenty or thirty other similar offences. These offences cannot be regarded as isolated offences. I have come to the conclusion that the two offences of penile penetration, having regard to the aggravating factors and the context of there having been committed against the victim, along with twenty or thirty other similar offences, means that each of them is at least a middle range offence. 28 Whilst I consider, for reasons which I have already given, that the first such offence was worse than the other, I am unable to conclude that this means that the offence is greater than a middle range offence. These offences are middle range offences because they are committed by a father against his daughter. 29 The wilful invasion for sexual purposes of the body of a child who is less than ten years old is one of the most appalling crimes that could be committed. In my opinion, it is much worse when it is committed by a father. The offence of digital penetration is a serious one but in my opinion is not a middle range offence, even though it is committed by a father on his daughter. Penetration by a finger was very unpleasant but it is a lesser offence than penetration by a penis. 30 Since the offender has never previously committed any serious offence and since he was, in many respects, a good father and a good citizen, I am of the opinion that I can impose a lesser non-parole period for the two middle range offences. In imposing any sentence, I must have regard to the maximum sentence and I must form an opinion, after carefully reviewing the consequences of the imposition of any sentence, as to what the appropriate period should be for the overall sentence. 31 In my opinion, each of the major offences requires me to impose a sentence of a non-parole period of thirteen years with a third offence requiring me to impose a non-parole period of seven years. There should be some accumulation of sentences so that the effective non-parole period will be sixteen years and the total sentence will be twenty-one years. I impose these sentences after considering sentencing statistics and the decision of Regina v AGP [2004] NSWCCA 434. SENTENCES 32 Count 1. I sentence the offender to a non-parole period of thirteen years. The balance of the term will be four years and four months. The non-parole period commences on 18 August 2006 and expires on 17 August 2019. The balance of the term commences on 18 August 2019 and the sentence concludes on 17 December 2023. 33 Count 3. I sentence the offender to a non-parole period of seven years. The balance of the terms will be two years and four months. The non-parole period commences on 18 August 2013 and concludes on 17 August 2020. The balance of the term commences on 18 August 2020 and the sentence concludes on 17 December 2022. 34 Count 4. I sentence the offender to a non-parole period of thirteen years. The balance of the term will be five years. The non-parole period commences on 18 August 2009 and concludes on 17 August 2022 on which day the offender is eligible for parole. The balance of the term commences on 18 August 2022 and concludes on 17 August 2027 on which day the offender is to be released from custody. He should now go with the officers. My remarks can be distributed to counsel. 35 OUTRAM: Your Honour one thing before the offender goes. I must draw to your Honour's attention the provisions of s 562BE which enables your Honour if your Honour is so minded to make a apprehended violence order. In this instance your Honour I would only ask that your Honour consider that but because of the sentences imposed become unnecessary. 36 HIS HONOUR: I really don't think it's necessary that I impose such an order. 37 OUTRAM: I agree your Honour and I would not ask your Honour to do it, except to consider it. 38 HIS HONOUR: So I consider that but I decline to do it. Thank you for drawing it to my attention. ********** 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. 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