R v BGS [1999] NSWCCA 89

New South Wales Court of Criminal Appeal CITATION : R v BGS [1999] NSWCCA 89 FILE NUMBER(S) : CCA 60454/98 HEARING DATE(S) : 16 April 1999 JUDGMENT DATE : 16 April 1999

PARTIES : Regina v BGS JUDGMENT OF : Grove J at 36; Bell J at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : Acting Judge Nash

COUNSEL : W. Dawe QC (Crown) P. Byrne SC/Heazlewood (Applicant) SOLICITORS : R. Gray (Crown) Baker Ryrie Rickards Titmarsh (Applicant) CATCHWORDS : Criminal Law; Severity of sentence; Sexual assault; Sexual intercourse with child under 10 years; Aggravated sexual intercourse without consent; Voluntary disclosure of guilt; Judicial Commission Statistics ACTS CITED : Crimes Act 1900 Sentencing Act 1989 Regina v Ellis (1986) 6 NSWLR 603 Regina v Hudson (unreported NSWCCA 30/7/98) CASES CITED: Regina v Bloomfield (1998) 44 NSWLR 734 Regina v Reid (unreported NSWCCA 24/7/98) R v BID (unreported NSWCCA 5/11/92) R v Thorley (unreported NSWCCA 5/2/91) DECISION : Leave to appeal granted. ; Appeal dismissed.

13 IN THE COURT OF CRIMINAL APPEAL

60454/98

GROVE J VIRGINIA BELL J

Friday, 16 April 1999

REGINA v BGS

JUDGMENT

1 VIRGINIA BELL J: BGS seeks leave to appeal against the severity of sentences imposed on him by his Honour Acting Judge Nash in the Sydney District Court on 11 August 1998. 2 The applicant pleaded guilty to six charges alleging the commission of various sexual assaults upon his daughter NAS. Two charges were preferred under s.66A of the Crimes Act 1900 alleging sexual intercourse with a child under the age of 10 years. The maximum penalty in relation to these offences is 20 years. A further charge alleged the commission of an act of indecency by a person in authority contrary to s.61E(1A) as it then applied. The maximum penalty in relation to this matter is six years. Two charges were preferred pursuant to s.66(2) alleging sexual intercourse with a child under 16 years by a person in authority. The maximum penalty in relation to these matters is 10 years penal servitude. The final count alleged the commission of an offence of sexual intercourse without consent in circumstances of aggravation contrary to s.61J(1), the circumstances of aggravation being that the victim was under the age of 16 years and under the authority of the applicant. The maximum penalty for such an offence is 20 years penal servitude. 3 His Honour imposed sentences totalling eight years penal servitude. In relation to the last count, the offence contrary to s.61J(1), a minimum term of four and a half years was specified to commence on 11 August 1998. An additional term of three and a half years was nominated. The other sentences imposed by his Honour were concurrent with the sentence imposed in relation to this matter. 4 The offences took place over a period of five years when the victim was aged between seven and 12 years. The first offence took place on her seventh birthday. On that occasion the applicant digitally penetrated her vagina for a short time and made her touch him on his penis. A further offence occurred while she was still only seven years of age involving sexual intercourse consisting of penile penetration of her vagina. Three of the offences occurred on the one day when the victim was in her first year of high school. On that occasion the applicant had sexual intercourse with her, again involving penile penetration of her vagina. A short time after that act, while the two of them were in the bathroom of the family home, he put his penis into her mouth. He ejaculated inside her mouth. She complained of feeling sick for some days after this incident. Shortly after this episode of oral sex, the applicant took NAS by the hand and pulled her through the hallway of the house towards the bedroom. She was struggling and refusing to accompany him. The applicant kept hold of her arm, hurting her. As she pulled away from him she hit her head on the hallway which caused further pain. She was forced by the applicant into the bedroom where he had sexual intercourse with her without her consent. 5 The Crown, in detailed written submissions, has referred the Court to a large number of authorities which support the following propositions: (1) there is an expectation that sexual assaults upon young children will be punished severely; (2) the breach of a position of trust is an aggravating feature; and (3) sexual assaults upon young children within a family environment require the imposition of significant punishment to operate by way of general deterrence. 6 Mr Byrne of Senior Counsel, who appears on the applicant's behalf, concedes that the above principles apply to the sentencing of persons charged with such offences. They have been stated on many occasions and do not require further exposition. 7 Mr Byrne advances in his written submissions a number of challenges to the approach adopted by the sentencing judge in this case. In oral argument he indicated the most significant matter relied on derives from the circumstance that the applicant surrendered himself to the police voluntarily, admitting that he had sexually abused his daughter in the past and thus initiating the criminal proceedings that brought him before the Court. This is a powerful subjective circumstance. 8 The assaults on the child appear to have stopped when she was aged about 12. Thereafter she remained living in the family home with her siblings, the applicant and his wife. Some time after the assaults stopped, NAS told her mother that her father had been molesting her. The mother immediately raised the matter with the applicant, who denied it. NAS did not refer to the subject again and the mother dismissed it, believing it had been said in the heat of the moment when NAS was upset with her over a disciplinary matter. 9 When NAS was aged 14 she asked a friend if she could move into the friend's home. She complained that her father had touched her in the past and she was in fear of him. The friend spoke to NAS's mother and relayed the allegations. The mother immediately confronted the applicant who, on this occasion, admitted to the history of sexually assaulting the child. This led to the break-up of the family with the mother and the three other children moving out of the family home. 10 Around this time NAS and her mother spoke with officers of the Department of Community Services about the history of abuse. From a file note made by an officer of that Department there is a suggestion that NAS wished to report the matter to police. It is clear that the matter was not reported to the police at that time. This contact with the Department of Community Services occurred in April 1994. Somewhat inexplicably NAS's allegations do not appear to have been followed up by the Department. Whatever concerns the applicant may have had at that time as to the possibility of criminal charges being brought against him, by December 1997 when no action had been taken he had every reason to believe that his admission to his wife would not result in him being charged. 11 The evidence placed before his Honour showed that in the period following the break up of his family the applicant was clearly troubled by his behaviour and guilty about the damage that he had done to his daughter. He and his wife had been the operators of a small business in a country town. After the separation he made arrangements to sell the business. It seems to have taken some time to do that. Finally, by late 1997, he left the country town and returned to Sydney. 12 His sister has qualifications in the area of psychology and, it would seem, some specialist knowledge relating to child sexual assault. In the period between the break-up of the family and December 1997, he had sought advice from her and come to gain some insight concerning his behaviour towards his daughter. It appears that he had also made contact with officers attached to Cedar Cottage, a facility that provides intensive counselling for sexual offenders. 13 On 18 December 1997 the applicant, in company with his solicitor, attended at the Marrickville police station where he volunteered that he had committed sexual offences on his daughter. He participated in an electronically recorded record of interview on that occasion. He did not disclose in full detail all of the matters that he was later to plead guilty to but he did go a long way down that path. He volunteered both that he had had sexual intercourse involving penile penetration of the vagina and the incident of oral intercourse. The interview must have been painful for him and there is no reason to doubt that he was doing his best. Subsequently, police made contact with the victim and took a statement from her. Ultimately she was to provide them with two statements. 14 The applicant was thereafter re-interviewed and, whilst not remembering that sexual intercourse had commenced as early as when the child was aged seven, he did not seek to suggest that she was lying. He has at all times pleaded guilty to the matters with which he has been charged. 15 The applicant gave as his reason for coming forward to the police that he wished to do everything possible to help his daughter so that she could get her life together. Certainly by the time he came forward he appears to have appreciated that his conduct would undoubtedly have caused psychological damage to her and that by his public acknowledgment of it and submission to the criminal justice system she might be assisted to come to terms with it. 16 Mr Byrne draws attention to this Court's decision in Regina v Ellis (1986) 6 NSWLR 603 at 604 and to the significance that disclosure of an otherwise unknown offence may have by way of discount on sentence. Mr Byrne submits that his Honour failed to give a sufficient discount in accordance with this principle and further that his Honour failed to give sufficient weight to the circumstance that the applicant had pleaded guilty at the first opportunity and maintained that plea throughout. 17 His Honour's reasons were given ex tempore and in circumstances referred to at the commencement of his judgment which constrained him to be briefer than he would otherwise have wished to be. After referring to a number of favourable subjective features in this case, his Honour, at page 8, referred to the contents of a report prepared by Dr Hugh Jolly dated 24 July 1998, which was Exhibit 2 in the proceedings before him. In that report, Dr Jolly notes that it may be further to the applicant's credit that he wished to confess before his daughter was emotionally able to report the relevant matters. His Honour went on to observe: "The principal matter that I feel should be taken into account in favour of the prisoner, but of course deterrence both of him and generally has to be considered, is that he did surrender to the police, knowing that until then no complaint had been made to the police in respect of his alleged conduct. In addition to surrendering he underwent two detailed interviews, the first of which I have already referred to on 18 December 1997 and then, after the statement had been obtained from NAS, a further electronically recorded interview on 7 January 1998. Again, I intended to refer to some parts of those interviews. In the circumstances I shall merely summarise it by saying that, while he did not profess to recall all the matters about which he was being questioned, at no time did he do other than indicate he would be pleading guilty to the charges, by inference from what he said and that generally speaking, whatever NAS said was correct." 18 His Honour went on to note that at all times NAS would have known that it would not be necessary for her to give evidence in court. Plainly his Honour had in mind that the attitude of this applicant had been one of contrition evidenced by a stated intention to plead guilty from the outset. 19 A further challenge advanced by Mr Byrne in his written submissions is that his Honour permitted the fact that the applicant had shown pornographic videos to NAS on occasions to cloud his consideration of this case. In particular, complaint is made that his Honour characterised adults who engage in such behaviour as "sick". In the course of his reasons, his Honour made the following observations: "One aspect of the case that I have not referred to but which I feel I should is that in the course of her statement to the police, NAS referred to the fact that there were many occasions in which her father showed her what she described as pornographic videos. This, unfortunately, is also an aspect of this type of case about which the Court has heard a great deal over recent years and how any right thinking member of the community can feel that it is in order that such video tapes should be made available within the community is of quite importance. The general view seems to be that what an adult does privately is a matter for the adult. My view is that any adult who watches movies or videos of that thing is sick anyway and even more so when showing it to children and that is the real problem with making such material available to so-called responsible adults, they get shown to children or, alternatively, children come across them in the home and look at them themselves. This, of course, is just part of the overall picture." 20 In this portion of his remarks on sentence his Honour pauses and comments on a matter of some current popular controversy, namely, the extent to which pornographic videos ought to be distributed within the community. He expresses what he makes clear is a personal view that adults who watch such material are sick and that there is the real risk that material of this sort will become available to children if it is available to adults. When one reads that passage in the context of the whole of the reasons for judgment, I do not consider it could fairly be said that his Honour had allowed the views he holds about the watching of pornographic videos to cloud his judgment when he came to deal with this applicant. His Honour went on in the course of his reasons to draw particular attention to and to accept this applicant's remorsefulness for what he did. 21 A further ground of complaint is that his Honour failed to admit into evidence the statistics compiled by the Judicial Commission relating to sexual offences and the pattern of sentencing in respect of those. It is contended that his Honour fell into error by failing to consider that statistical material in determining the appropriate sentence. 22 On the hearing of this application we allowed in evidence from the applicant's solicitor, Francis Baker, in the form of an affidavit sworn on 12 April 1999. Mr Baker deposes to being present on 10 August 1998 when statistics complied by the Judicial Commission were handed up to his Honour. This is not recorded in the transcript of the proceedings but apparently took place during submissions made by counsel. Mr Baker states that his Honour, in the course of making reference to the decision of this Court in Regina v Hudson (unreported NSWCCA 30 July 1998), said that such information (apparently referring to the statistical material) was of "no great assistance". 23 His Honour is a very experienced District Court judge. The use to which statistical material may be put has been the subject of detailed consideration in this Court in the matter of Regina v Bloomfield (1998) 44 NSWLR 734. The Chief Justice, in drawing together the observations made by members of this Court in a number of decisions, noted both that statistics may be less useful than surveys of decided cases which enable some detail of the specific circumstances to be set out for the purpose of comparison and that the sentence to be imposed depends on the facts of each case and for that reason bald statistics are of limited use. On the hearing of this matter, we have received statistical information from the Judicial Commission which I understand was placed before his Honour. 24 In his written submissions Mr Byrne also complains that his Honour failed to take into account the fact that the applicant was himself abused. We were referred to the decision of this Court in Regina v Anthony George Reid (unreported NSWCCA 24 July 1998). In the course of his second electronically recorded interview with police, the applicant disclosed that in his childhood he had been subjected to sexual abuse over a number of years by a much older male cousin. In Reid, James J (with whom Mason P and Grove J agreed) observed at page 13: "In my opinion if it is established that a child sexual offender was himself sexually abused as a child and that that history of sexual abuse has attributed to the offender's own criminality, that is a matter which can be taken into account by a sentencing judge as a factor in mitigation of penalty as reducing the offender's moral culpability for his acts, although the weight it will be given will depend very much on the facts of the individual case and will be subject to a wide discretion in the sentencing judge." 25 His Honour had before him the report of Dr Jolly and at page 3 of that report the doctor expressed the opinion that it is of relevance that the applicant was himself sexually abused. On page 4 of that report, Dr Jolly went on to say this: "What do we make of BGS's own victim status? Well, studies have shown that the abused child can go on to become an abusing adult ... Studies of offenders reveal disproportionate numbers who have been abused in childhood themselves. Again, it is a clue, not an explanation. As ever, the answer is probably multi factorial ... but one is left with the impression that BGS can avail himself of therapy, atone for his (demonstrably most selfish) conduct, in general terms to become a better citizen in the future." 26 His Honour did take up this aspect in his reasons for judgment. At page 5, referring to evidence that had been led on the sentence hearing from Dr Jones, his Honour made specific reference to the circumstances that the applicant had been abused at the age of nine by a relative. He went on to note that it had been the applicant's account that he had lived with what had happened to him without telling anyone apart from the doctors and that he did not want the same to happen to NAS. I do not consider that this challenge is made good. 27 Another ground relied on by Mr Byrne in his written submissions is that his Honour failed to adequately take into account in assessing the sentence the fact that it would be served in protective custody. During the course of evidence led on the applicant's behalf from Dr Jones, Mr Heazlewood sought to obtain an account of the restrictive nature of protective custody. Dr Jones is a consultant to the Corrections Health Service. His Honour commented in the course of this segment of the evidence: "It's well known that people who are incarcerated for offences of this nature do it harder than most members in the gaol community, Mr Heazlewood." 28 Mr Heazlewood observed that he would not take that any further and his Honour observed: "We don't need evidence of it." His Honour went on to say: "It's a matter to be taken into account along with everything else." This was a matter to which his Honour returned in the course of his reasons for sentence. At page 9 his Honour said: "Mr Heazlewood has submitted that I should have regard to special circumstances within s.5(1) of the Sentencing Act relating to the offender's age, that he has no prior convictions and therefore that this sentence will be the first but hopefully the last in his life, that he will almost certainly be in some form of protective custody in the course of his sentence which, as is well known, means that he will have a harder time in gaol than the general population of offenders there." 29 His Honour took the circumstance that the sentence would be served in protection into account, not only in the overall sentence but also in his determination that there were special circumstances within the meaning of s.5(2) of the Sentencing Act 1989. I do not consider this ground has been made good. 30 I return to the principal challenge advanced on the applicant's behalf, namely, that when one looks at the overall sentence it must be concluded that his Honour failed to give adequate weight to the subjective considerations. The applicant presented for sentence as a 40 year old man of otherwise good character who was hard working and well respected in the community. There was abundant evidence that he was remorseful and deeply concerned about the damage that he had done to his daughter. Most strongly, as I have earlier noted, is the powerful circumstance that he voluntarily disclosed his guilt in relation to the long course of sexual abuse of his daughter. 31 Mr Byrne has suggested that the decision of this Court in BID (unreported NSWCCA 5 November 1992) might be considered as a useful guide in sentencing in matters of this nature. BID raised similar considerations. In that instance, the prisoner had voluntarily disclosed his abuse of his son to a minister of religion. The son maintained great affection for his father and there was no question but that for the father's confession the matter would never have come to light. The abuse consisted of fellatio and mutual fondling of the genitalia. The child was aged between five and nine years. The sentence imposed in that instance totalled four years with a minimum term of three years. The prisoner unsuccessfully sought to appeal against that sentence as being excessive having regard to the Ellis considerations. 32 His Honour Gleeson CJ, in agreeing with the orders proposed by Lee J dismissing the appeal in BID, cited Thorley (unreported NSWCCA 5 February 1991) and in particular the passage: "It is necessary for appellate courts to permit sentencing judges a proper range of discretion. Our duty is to correct error, not to satisfy the individual preferences of appellate judges." 33 His Honour observed in the circumstances of BID that the sentencing judge had been confronted with an unusually difficult sentencing task. The same must be said of the present case. 34 The feature in this matter which might be thought to distinguish it from BID is that the offence in respect of which his Honour imposed the heaviest penalty was one that was accompanied by a degree of violence. The child was dragged to the bedroom and forced to have sex. In the facts sheet which was before his Honour and in the statement made by NAS to police, there is reference to her observation that the applicant "has always been rough when he was sexually assaulting me" and, further, "he has never been gentle and he caused me pain all over my body from this rough treatment." 35 Having regard to the serious nature of the offences in this case, notwithstanding the strong subjective features to which Mr Byrne points, I consider that the sentence imposed was within the range of a proper exercise of his Honour's sentencing discretion. I would therefore propose that leave to appeal be granted but that the appeal be dismissed. 36 GROVE J: I agree with the orders proposed by Bell J and the reasons which she has given. The orders of the Court will be therefore as proposed by Bell J. **********