R v MM [2013] NSWDC 49

District Court New South Wales

Medium Neutral Citation: R v MM [2013] NSWDC 49 Hearing dates: 15 February 2013. Decision date: 15 February 2013 Before: Berman SC DCJ Decision: Sentenced to an overall term of imprisonment consisting or a non parole period of 2½ years and a head sentence of 4½ years Catchwords: CRIMINAL LAW- Sentence - Aggravated indecent assault - complainant under authority of offender - Breach of trust Legislation Cited: Crimes Act Category: Sentence Parties: The Crown MM Representation: Mr Rosser - Offender Director of Public Prosecutions File Number(s): 2011/202764 Publication restriction: There is to be no publication of the name of the complainant or of any material, which may tend to identify the complainant. That is also to include the name of the offender or any material which may tend to identify him due to the relationship to the complainant.

SENTENCE 1HIS HONOUR: In March 2011 a terrible tragedy overtook Ms M. On that day her mother committed suicide. She lingered on for four days until life support was discontinued. It was this incredibly distressing event which appears to have been the catalyst for Ms M revealing to the authorities what her father had been doing to her previously. She contacted one of the police officers who had been involved in attending her home upon the discovery of her mother's suicide and Ms M told her what had been happening to her. 2After her mother's suicide Ms M moved out of the home and began to live with an old family friend and her family. She chose not to have any contact with the offender. The offender did not take this well. He used Facebook to communicate with the complainant and indeed threatened to discontinue paying her private school fees if she did not communicate with him. Facebook was later used by Ms M at the suggestion of police to engage the offender in an online conversation in which the offender made generalised admissions to having done what Ms M had complained about. 3The offender now faces charges for two offences under s 61.M(1) of the Crimes Act. They are offences of aggravated indecent assault. They were committed on the complainant when she was either 12, 13 or 14 years of age. They are described at times as representative charges. It is important to understand the approach that I will take to these charges which I believe to be consistent with authority. I will sentence the offender for the misconduct covered by the two specific offences, but he does not receive any benefit through being able to say that they were isolated occasions of criminality. 4In general terms the complainant described the offender's conduct this way. She said that every time was the same and so what I am about to describe covers the two counts. She said, and I will quote a fairly lengthy passage from the statement of facts - "He would come into my bedroom really late at night so mum couldn't hear. I was asleep and I would either wake up with him opening my bedroom door or getting into my bed. Every single time I would be lying on my stomach and he would come into my bed and lay next to me. I could feel his naked body pressing against my back and bottom. I would always move trying to let him know I was awake but he would always keep going. He would then pull down my pyjama pants. Sometimes he would remove my underpants and other times he would either put his hand down the front of my pants or down the back and would touch my vagina. He would rub the top part of my vagina. Whilst he was rubbing my vagina he would put his penis between the top part of my legs and his body would be moving back and forth. His penis was hard and on one occasion he ejaculated on me whilst doing this. He would rub my vagina for some time and then he would put his hand up my pyjama top and rub my nipples. This lasted for about half an hour. He would never say anything to me and I would never say anything to him. It always happened in my bedroom and it was the same all the time. I was so scared of dad I was always worried about him coming into my room." 5The gravity of such conduct is immediately obvious. It goes without saying that this was a breach of trust as serious as it can be. The offender was the complainant's natural father and she was entitled to look to him to protect her, not to abuse her. Instead of protecting her he appears to have used her to satisfy his sexual desires, apparently caring little, if anything, for her welfare. 6The circumstance of aggravation relied on by the Crown is the circumstance that the complainant was under the authority of the offender at the time of the offending. For reasons Mr Rosser explained it would be wrong for me to also regard the fact that the complainant was under the age of sixteen as a further aggravating feature. It is impossible to say, because of the time period covered by the counts on the indictment, which statutory regime operated but for a period the circumstance that the complainant was under sixteen would have exposed the offender to a higher penalty. For that reason I will not regard the age of the complainant as an aggravating feature, although I do have to say that given the circumstances of this case the issue of age would have added little to the underlying gravity of the offender's criminal conduct in any case. 7Despite the clear admissions that the offender made in the Facebook communication the pleas of guilty could not be described as early. The offender was committed for trial to this court and his pleas of guilty were only entered on the first day of that trial. At all times the offender faced a charge equivalent to count 1 on the indictment. But count 2, as originally preferred, alleged a more serious act, sexual intercourse. The offender pleaded guilty to count 2 once an offence in its present form was substituted. 8That raises the possibility of different discounts for the utilitarian value of the offender's pleas. The plea to count 1 was certainly not entered at the earliest opportunity but on one view that could not be said of count 2. However Mr Rosser accepts that in the circumstances of this particular case, and in the knowledge of what led up to the pleas of guilty being entered, there is no need for the offender to get a different utilitarian discount for the offence in count 2 when compared to the offence in count 1. 9He suggests that the value of the plea of guilty is primarily to be seen in other aspects of the sentencing process. By pleading guilty the offender has both demonstrated remorse and demonstrated his concern for the welfare of his daughter. He has avoided the need for her to re-live these distressing events by giving evidence against him and has validated her complaints, accepting that what she says was entirely true. 10The offender has no other criminal history. He is now 53 years of age and the offences occurred in circumstances which led Mr Rosser to describe them as situational. There is no suggestion that the offender represents a risk to anyone else and indeed there is no suggestion that he represents a risk to his daughter, the complainant in this case. Although the two offences did occur as part of a wider course of conduct, extending over some considerable period it is to be noted that the offender voluntarily ceased his conduct some time prior to his wife's suicide. 11This is not a case where the offender stopped doing what he was doing only because he was detected by police, or because complaint had been made to them by his daughter. The period of offending was a closed one and it came to an end because the offender, for whatever reason, stopped abusing his daughter in the terrible way he had been. That tends to suggest that the offender's prospects of rehabilitation are good. 12The offender has had long-term responsible employment and two references attesting to his otherwise good character were tendered before me today. This is not a case where it was the offender's good character which enabled him to commit these offences. It was his relationship with the complainant which allowed him to do what he was doing to her. 13Of course the offender must go to gaol. General deterrence is of crucial importance in a case like this. The harm that offences of this nature cause is significant indeed. One does not need a victim impact statement in order to make that finding. To have been abused by your natural father in circumstances such as described in this case could only have ever had a significant effect on the complainant. 14As a result of his misconduct the offender's children want nothing to do with him. That, I have to say, is not surprising. Not only his daughter, the complainant in this case, but his two sons have ceased contact with him. 15The offence is regarded as serious, not only by the courts but also by the legislature. The maximum penalty of seven years and the standard non-parole period of five years demonstrate that. I have taken into account both the maximum penalty and the standard non-parole period. My reasons for not imposing the standard non-parole period appear in these remarks on sentence. 16It is necessary that there be a level of accumulation. I certainly will not be double counting by not regarding these offences as isolated and by accumulating partially because there are two offences. I have been careful to avoid that in choosing the ultimate overall sentence which I will impose upon the offender. There are special circumstances in this case. It is the offender's first time in custody and the Crown did not speak in opposition to a finding of that kind. 17I was assisted by a table from the Public Defender's website which carries the usual disclaimer "This table is intended to be used as a guide only. Individual cases should be read if they are to be relied upon". Consistent with that warning Mr Rosser did provide me with a number of printouts of cases but as I said to him during the course of his submissions, having read those cases I was reminded of the repeated statements by the Court of Criminal Appeal to the effect that no two cases are alike. There were many differences between the present case and the cases handed to me by Mr Rosser, both as regards objective gravity, subjective circumstances and indeed the nature of the charges faced by the offender. 18The offender is sentenced to imprisonment. For count 1 on the indictment I set a non-parole period of two years to date from today, 15 February 2013, and there will be a head sentence of four years. On count 2 on the indictment I set a non-parole period of two years to date from 15 August 2013 and a head sentence of four years. The overall sentence is thus one of two and a half years with a head sentence of four and a half years. The non-parole period will expire on 14 August 2015 on which day the offender is eligible to be released to parole.