New South Wales District Court CITATION: R v McIntosh [2006] NSWDC 97 JUDGMENT DATE: 8 September 2006 JUDGMENT OF: Conlon SC DCJ at 1 DECISION: See para 56 CATCHWORDS: Discount for plea of guilty on first day of trial where Crown accepts plea in full satisfaction of indictment - Delay - Diagnosis of paedophilia - Moderate risk of sexual recidivism LEGISLATION CITED: Crimes Act 1900 s 61M(2) Crimes (Sentencing Procedure) Act 1999 s 21A R v SY & Anor [2003] NSWCCA 291 R v Dib [2003] NSWCCA 117 R v Ponfield (1999) 48 NSWLR 327 R v R [2000] NSWCCA 163 CASES CITED: R v Thomson and Houlton (2000) 49 NSWLR 383 R v Todd [1982] 2 NSWLR 517 R v Olbrich (1999) 199 CLR 270 R v Dent (unreported NSWCCA 14 March 1991) R v Fisher (1989) 40 A Crim R 445 PARTIES: Regina Peter James McIntosh FILE NUMBER(S): 05/21/2018 COUNSEL: Mr J Chicken (offender) SOLICITORS: Ms T Kauffman (NSW DPP) Nikola Velcic & Associates SENTENCE 1 HIS HONOUR: The offender, Peter James McIntosh, appears for sentence consequent upon his pleading guilty to the following charge, that on 16 October 1994, at Kingswood, in the State of New South Wales, he did assault T and immediately at the time of such assault committed an act of indecency on T a child under the age of ten years, namely nine years. The maximum penalty for this offence is a term of imprisonment for ten years. 2 The plea was entered at the Penrith District Court on 9 June 2006, the day the matter was listed for trial. Originally there were three counts on the indictment. The above mentioned charge was count 1 and the Crown accepted his plea to that count in full satisfaction of the indictment. Consequently, in my view, it cannot be said that the plea was entered at the earliest opportunity. 3 In R v SY and R v KS [2003] NSWCCA 291 it was stated: "It does not always follow that a plea is entered at the first reasonable opportunity simply because the plea occurs after negotiations with the Crown once the offender has been committed for trial. Clearly there will be occasions where the nature of the bargain struck does indicate that the offender could not reasonably have been expected to plead guilty before the opportunity was presented to plea to some less serious charge. But that is not always so and it behoves the sentencing judge to look at the situation realistically in determining the value of the plea on the utilitarian basis". 4 The judgement went on to say and refer to the matter of R v Dib [2003] NSWCCA 117: "This court held that the fact that the plea to the lesser offence is offered at the first reasonable opportunity does not automatically mean that a full discount for the plea should be given. Hodgson JA with whom Barr JA agreed stated, 'If a plea is entered a long time after a person is first charged but at a time when a lesser charge is substituted for the greater charge the advantages to the administration of justice are less, even though the plea may have been made at the earliest opportunity. There is, in any event, no entitlement to a 25 percent discount and the fact that in this situation there are less advantages to the administration of justice can justify a smaller discount. This approach may mean that in some cases an offender may obtain an lower discount just because the prosecuting authorities initially brought a greater charge than that ultimately pursued so that the delay in the plea of guilty was not the offender's fault, but this is consistent with the nature of the discount as being at least in part a recognition of practical advantages and not merely a recognition of mitigation of culpability'". 5 Those statements have some applicability to the present situation. I am of the view, in relation to the present plea, that the advantage to the administration of justice was less. However, there remains a utilitarian benefit, particularly in so far as it has spared the complainant from having to give evidence at trial. 6 The extent to which the penalty is mitigated is dependant upon the circumstances of each case, but it must be discernable. I refer to R v Ponfield (1999) 48 NSW LR 327 and R v R [2000] NSWCCA 163 and R v Thomson and Houlton (2000) 49 NSW LR 383. 7 For reasons that I will give in due course I propose to impose a custodial sentence in relation to this matter. I have reduced the length of that sentence by about 15 percent to reflect the utility of the plea. 8 The facts of this matter are as follows, and these are the agreed facts tendered on the sentence following the plea. The offender, born 12 September 1941, has pleaded guilty to one charge under the Crimes Act s 61M(2) that on 16 October 1994 he committed an aggravated indecent assault on T who was then aged under ten. The maximum penalty for the offence is ten years imprisonment. 9 At the time of the offence the offender was the next door neighbour of the victim who was at the time aged nine. At about 8am in the morning of 16 October 1994, a Sunday, the victim was in her nightie in the backyard of her home at Kingswood. She was wearing underpants under her nightie. 10 Also in the backyard was the victim's sister, N, then aged five. She was either playing nearby or was on a trampoline. In a shed out of sight of the victim was her father. 11 The offender was in his backyard. He was wearing shorts and a singlet. He spoke to the victim over the fence asking her if she wanted a glass of lemonade. She replied that she did and the offender lifted her over her fence and took her into the lounge room of his house. Here he placed her onto a mattress, which was on the floor in the lounge room. He told her he had slept there the night before and that he had been watching the cricket. 12 He climbed on to the mattress and lay on top of the victim. He moved his hands over her body and rubbed her back. He then put a hand under her nightie and rubbed her back. At the time he was telling her that she was cuddly and that she had lovely hair. 13 The offender then rolled on to his back and pulled the victim on top of him so that she was lying on his stomach. He then pulled her pelvis down towards his groin area so that his penis rubbed against the victim's vaginal area. As he simulated intercourse the offender was groaning and saying, "That's better". 14 The victim attempted to leave by shouting out that she wanted to play on her trampoline. She was hoping to attract the attention of one of the other persons who may have been in the house at the time. This included the offender's wife and their children, a daughter in her teens and a son slightly younger. No-one responded and the offender held on to the victim's wrist. Eventually she released herself and returned to her house. 15 She complained almost immediately to her sister. Later on that same day she complained to her mother's friend. Her mother was interstate at the time, but when she returned some days later the victim told her. The mother confronted the offender who denied the allegations. 16 On 21 October 1994 the victim made a statement to the police. Shortly afterwards the offender and his family left the house. 17 The police interviewed the offender on 21 April 2005. He denied the offences and said that he could not remember living in the street where the victim and her family lived at Kingswood. He denied being confronted by a person claiming that he had molested her daughter." 18 An aggravating feature is that the offence was committed whilst the offender was on parole for the offence of aggravated indecent assault on a child under ten years. The offender was sentenced in Moree District Court on 6 September 1993 to a term of imprisonment of eighteen months with a non-parole period of nine months. 19 The Crown submitted that another aggravating feature was that the offender was in a position of trust as a next door neighbour and violated that trust by indecently assaulting the victim. 20 Mr Chicken of counsel, for the accused, submitted that it was, in effect, an opportunistic assault by an adult male neighbour and that a position of trust did not apply. I am of the latter view (that is, I accept the submission of Mr Chicken). 21 The offence was committed some thirteen years ago. The Crown conceded that on 31 October 1994 the garage of the premises occupied by the offender at which the offence occurred was burgled apparently by members of the victim's family. The offender subsequently reported the break in to the police on or about 31 October 1994 and gave his details. The report was made ten days after the victim had attended the Penrith Police Station to report the indecent assault. 22 The Crown acknowledged that it is unclear why the police were not then able to locate the offender until he was arrested on 10 June 2005. In fact, probably more precisely a little earlier than that, when they put the allegation to him. I think it was in April 2005. 23 However, on 10 June 2005 the offender was released from his custody in a Queensland prison, having served a three year period of imprisonment. 24 It was on 14 June 2002, at the Brisbane District Court, the offender pleaded guilty to one count of indecently dealing with a girl under fourteen years. The victim of that offence was his granddaughter who at that time was four years of age. The offence occurred in December 1987. As indicated, he was sentenced to three years imprisonment with a non-parole period of nine months. 25 As it happened he was not released to parole and served the great majority of his three year sentence, being arrested upon his release on 10 June 2005 and extradited to New South Wales to face the present charges. 26 Consequently his time in custody referrable solely to this offence is one year, two months and twenty-nine days. 27 The delay, combined with the fact that the offender has now been in continuous custody for almost four years and three months is a complicating factor when considering the question of totality. 28 Mr Chicken referred me to the matter of R v Gary Wayne Waites (CCA 17 October 2001) wherein it was held that: "The principal to be applied where there has been a delay and there is the complicating factor of interstate imposition has been dealt with in this Court in R v Todd" 29 That decision of Waites then referred to the judgment of Street CJ in that case of R v Todd where his Honour made these observations: "Moreover, where there has been a lengthy postponement whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion and to the fact that sentencing for a stale crime long after the committing of the offences calls for a considerable measure of understanding and flexibility of approach. Passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of a sentence. At times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner." 30 The offender's criminal history, apart from those matters to which I have already referred, indicates that he first came before the Courts on 18 January 1983 on two charges of aggravated assault on a female child. They were dealt with by way of a fine. 31 The offender told the psychologist, John Taylor - and I will be referring in more detail to Mr Taylor's report - that these offences occurred after his first wife had left him. He had taken a woman and her daughter into his home as boarders. He stated that the daughter, aged about twelve years, was being naughty and he spanked her naked bottom when she was getting out of the shower. 32 Also in 1990, in Queensland, he was convicted of four counts of unlawful and indecent dealing with a girl under fourteen years of age and he was given probation for three years and ordered to undertake psychiatric and psychological treatment. 33 As indicated a psychological report of Mr John Taylor has been tendered on behalf of the offender. It indicates the offender was born in central Queensland and he was the eldest of two children. At about nine or ten years of age his family moved to Sydney and when about twelve or thirteen years they moved back to south Queensland where the offender attended boarding school. 34 It was stated that he had a close relationship with both parents during his formative years and he had no apparent problems with his schooling. However, he left school at fifteen after gaining the Queensland Junior Certificate and he pursued a career as a shearer, remaining in that occupation for about thirty years. 35 Later he was employed in the mining industry and, after moving back to Sydney, he was employed as a truck driver. 36 He was married at twenty years of age. That marriage lasted twenty-two years and there were five children from it. He married a second time at age forty-nine. There were no children from the marriage, but his wife had three children from a previous relationship. 37 The history elicited by Mr Taylor included an assertion that when the offender was about ten years old he was sexually assaulted by a cousin. It was alleged that the assaults involved anal intercourse, oral sex and masturbation. In relation to this, Mr Taylor recorded the following: "I didn't want to talk to people...I felt ashamed...I couldn't tell anyone". 38 He told Mr Taylor that he did not receive any therapy or counselling for this. He stated that as an adult he has experienced sexual fantasies involving children when he is intoxicated. 39 Mr Taylor stated that the offender became rather tearful when discussing the sexual assaults he had experienced as a child and he stated he had not previously discussed these with anyone. He also became rather distressed when discussing his offending behaviour. 40 When he was in gaol in Queensland, he told Mr Taylor, he was involved in a Cogskills program in which he was to discuss aspects of his offending behaviour. He stated that he found this hard to do and that he has never been able to determine the reasons for his offending behaviour. 41 The offender informed Mr Taylor that all his criminal offences occurred when he was intoxicated with alcohol. He stated that he believed his intoxication resulted in him losing control of himself and said that when he is drunk he becomes sexually assaulted and careless. 42 In respect to the present offence he told Mr Taylor he was intoxicated with alcohol at the time the offence occurred and he does not have a recollection of what he has done. He then said: "What I do remember is that it happened on the spur of the moment". 43 He stated he had become sexually aroused. Mr Taylor commented: "He expressed remorse and regret for his offending behaviour. He said, 'I feel very ashamed, isolated. It makes me feel like an isolated, discarded person...the damage it has done to me is ten times greater to her'". 44 In conclusion Mr Taylor stated: "From the information available the most appropriate diagnosis that can be given for Mr McIntosh is that of a sexual disorder and he satisfies the criteria for a diagnosis of paedophilia. From the history gained from him it appears that he has never undertaken any treatment for this disorder". 45 Mr Taylor also stated: "Mr McIntosh is assessed as having a low moderate likelihood of general recidivism and recidivism involving aggression. However, he is assessed as having a moderate risk of sexual recidivism. These opinions are based on actuarial analysis and clinical methods employed during the assessment." 46 Mr Taylor continued: "It is evident from this assessment that Mr McIntosh is in urgent need of treatment for his sexual disorder. This will necessarily need to address the sexual trauma that he experienced as a child and the effects that this has had on him including the relationship between the trauma he suffered and his offending behaviour. He stated that he is strongly motivated for treatment. He also expressed considerable regret and remorse for his offending behaviour". 47 Mr Taylor continued" "Mr McIntosh also expressed motivation to attend the ex inmate program following his release from gaol. He stated he would like to receive ongoing counselling support which can be provided by this program. He is assessed as being a suitable candidate for inclusion in the program". 48 The ex inmate program referred to is one conducted by Mr Taylor and he has attached to his report information about the program and participation conditions. 49 The suggestion by the offender contained in Mr Taylor's report that he was subject to sexual abuse as a child is not (as I understand from Mr Chicken's submissions) put forward as a matter of mitigation. If it was, it would have to be proved on the balance of probabilities, R v Olbrich (1999) 199 CLR 270 and the accused gave no evidence following his plea of guilty before me. As raised, I do not regard it as a matter of mitigation. However, Mr Chicken urged me to consider this matter in regard to the offender's prospects of rehabilitation. He submitted that it was significant that this disclosure about his own sexual abuse had never before been made and therefore one could more readily accept his now stated motivation to undertake treatment for his disorder. 50 It was also submitted that the fact that he has not offended since 1994 was also a significant matter when considering his prospects of rehabilitation. 51 Concerning the structure of the sentence, Mr Chicken submitted that it was important that the offender received treatment for his disorder and consequently there was a need for a longer than usual period of supervision and that the community would also be best served by such a period. 52 I acknowledge the general policy in relation to sentencing offenders convicted of sexual offences against children is that the children are entitled to grow up free from defilement from sexual predators and free from psychological upset, confusion and difficulties in later life caused by such conduct and I refer to the matter of R v Dent (NSWCCA 14 March 1991 unreported). 53 Further, sexual assault upon young victims must be severely punished and heavy custodial sentences are essential if the Courts are to play their proper role in protecting young people from sexual assaults by adults. I refer to R v Fisher (1989) 40 A Crim R at 445. 54 I have taken into account the victim impact statement dated 2 June 2006 and the harm that the victim is said to have suffered. But in accordance with authority I do not elevate the harm as being a feature of aggravation as per s 21A of the Crimes (Sentencing Procedure) Act. 55 After a consideration of the subjective features of the offender and all other matters relevant to sentencing, the sentence I impose should nevertheless reflect the objective seriousness of the offence. 56 Taking into account the aspect of delay and in attempting to properly apply the principles as outlined in the case of R v Todd in respect of totality, I sentence you to imprisonment for four years to date from 10 June 2005. I fix a non-parole period of two years to expire on 9 June 2007 when you will become eligible for parole. 57 The aspect of delay alone was sufficient for me to find special circumstances and in the exercise of my discretion I have found it appropriate to vary the statutory ratio. ********** 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.