District Court New South Wales Medium Neutral Citation: R v Flax [2014] NSWDC 268 Decision date: 05 November 2014 Jurisdiction: Criminal Before: Cogswell SC DCJ Decision: For the offence of sexual intercourse with a child under 10, a sentence of 5 years imprisonment with a non-parole period of 2 years Catchwords: CRIMINAL LAW - particular offence - offences against the person - sexual intercourse with a child under 10 - performed fellatio on the child - grandfather-like relationship - sentence - relevant factors - plea of guilty despite vehement denial of offence - plea to protect family - sentenced on basis of agreed facts - plea entered relatively late - 10% discount - gravity of offence - extremely serious offence - relevance of standard non-parole period - significant breach of trust - below the middle of the range but not towards the bottom of the range - spontaneous and isolated offence -nature and circumstances of offender - no prior criminality - good character taken into account in mitigation - 66 years of age - sick and disabled partner - hardship to third party not such that it would warrant a non-custodial sentence - low risk for recidivism - special circumstances for adjusting ratio between head sentence and non-parole period - age of offender - first time in custody - first offence Legislation Cited: Crimes Act 1900 (NSW), s 66A Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(5A) Cases Cited: Dipangkear v R [2010] NSWCCA 156 Meissner v The Queen (1995) 184 CLR 132 R v Edwards (1996) 90 ACrimR 510 R v Fisher (1989) 40 ACrimR 442 R v Wirth (1976) 14 SASR 291 Category: Sentence Parties: Regina (Crown) Michael Flax (offender) Representation: Counsel: J Fitzgerald (offender) Solicitors: H Fitzhardinge (Director of Public Prosecutions) File Number(s): 2013/00046563 Publication restriction: Pursuant to s 578A of the Crimes Act 1900 there is to be no publication of the victim's name or anything that may lead to identification of the victim. Identifying information has been removed from this version of the judgment to comply with the statute and, in some cases, replaced with pseudonyms (which are colours). Judgment 1. There are three prominent factors operating in this case where I have to sentence a 66 year old man for sexually assaulting a seven year old boy. 2. The first and most prominent factor is that he has pleaded guilty to an extremely serious offence. Parliament has fixed a maximum of 25 years imprisonment to the offence. Not only that, it has fixed a standard non-parole period of 15 years imprisonment to this offence. 3. The second factor is that the offender has a sick and disabled partner who is the grandmother of the victim of his offence. 4. The third factor is that although he has pleaded guilty, he vehemently denies committing the offence. 5. The man's name is Michael Flax. He has been charged with the crime of sexual intercourse with a child under 10. That is an offence against s 66A of the Crimes Act 1900. I have already indicated the maximum penalty and standard non-parole period that Parliament has fixed to that crime. 6. The offence happened some time between Boxing Day in 2012 and the last day of January 2013. Mr Flax was arrested on 14 February 2013. He was committed for trial in this Court on 11 September 2013, the trial being fixed for hearing on 7 April 2014. Only a week or two before that trial date he entered a plea of guilty. That was on 27 March 2014. 7. Because he pleaded guilty, but at a relatively late time, in due course he will receive a discount of 10% off his sentence. A good amount of trial preparation would have occurred over the six months between his committal and his plea. 8. It is first important for a judge to record what happened when sentencing an offender for a crime so that some assessment can be made of how serious an example the crime is of the particular offence. 9. Michael Flax's partner is Mary Ivory. Her son has a son who was at the time seven years old. The boy knew Mr Flax as "Poppy" for all of his life. He became enrolled in year one at the local public school and it was found that he had a learning disability. It seemed to be consistent with a severe language delay. He and his brother would be minded by Mr Flax and his partner Mary Ivory on a Friday night. One Friday night during the period that I have mentioned, the agreed facts record that Mr Flax woke the boy and took him to the kitchen to get a drink of water. Then Mr Flax approached the boy "and touched the complainant's penis and groin area, then lent down and removed the complainant's pyjamas. The offender fondled the complainant's penis and then performed fellatio on the complainant." He then stopped and took him back to bed. His brother was asleep. 10. The boy complained to his parents. He persevered in his complaint over about a week, adding that "Poppy put his mouth on my part". The boy's mother reported the complaint and the police interviewed the boy. 11. About two weeks later, on 14 February 2013, the police arrested Michael Flax. He was interviewed. He agreed about the babysitting arrangements and about getting a drink, but "denied the allegations of sexual misconduct". 12. It is also important to say something about the personal features of any offender whom a judge is sentencing. There is a helpful pre-sentence report that confirms that Mr Flax has a completely clean criminal record. It also confirms that neither Mr Flax nor Ms Ivory "accept that he committed this offence". Indeed, the author of the report added that Mr Flax "vehemently denied that this offence had occurred". Mr Flax and Ms Ivory have been together for some 35 years. The author of the report regarded Mr Flax as having a medium to high risk of re-offending. 13. A psychologist who prepared an actuarial risk assessment regarding the risk of re-offending was of a different opinion. She regarded Mr Flax as falling in the low risk category relative to other male sex offenders. She explained why in her report which is part of exhibit A. The author of that report confirmed that Mr Flax "denies the commission of the offence". She added that he pleaded guilty to "put an end to it" and "to save the victim and his brother from the court process". 14. Mr Flax was bailed almost straight away after his arrest. 15. Mr Flax was represented by Mr J Fitzgerald of counsel, who tendered a report by a forensic psychiatrist, Dr Christopher Bench, as well as medical material regarding Ms Ivory and material from Mr Flax's son and daughter-in-law. 16. Dr Bench provided a good amount of background material regarding Mr Flax and thought that he suffered an adjustment disorder with anxious mood. It seems to me that this is likely to be associated with his predicament. The psychiatrist noted that there would be a "significant exacerbation of his anxiety and be at high risk of the development of depressive illness" if he was to receive a custodial sentence. 17. What the various reports also note is that Mr Flax has been the full time carer for Ms Ivory for some years. She has serious medical issues, and I will refer to those in a moment. 18. Dr Bench also assessed Mr Flax as having a "low risk for recidivism". 19. Exhibit 2 was a report from Mary Ivory's general practitioner, Dr [Name]. He pointed out that his patient over the last seven years has developed insulin-dependent diabetes as well as heart disease, gross obesity and hypertension. She has had a heart operation. Dr [Name] adds the following, referring to his patient - "I feel she would be unable to live on her own (unaided) and due to these limitations she would most certainly need help in the home with house cleaning, washing her clothes, personal hygiene and help with the correct delivery of her medication. Ms Ivory would require admission to a nursing home if she did not have the help of her partner and carer, Michael Flax." That view is supported by Michael Flax's son and daughter-in-law, both of whom live in [another state]. They both express serious concern for Ms Ivory and her condition and how it may be affected by the absence of Mr Flax. 1. I should return now to the points which I referred to in my opening remarks. I repeat, this is a most serious offence. I think the 25 year maximum imprisonment is the highest length of a prison sentence other than a life sentence. I think that a standard non-parole period of 15 years is also the highest which Parliament has fixed. Mr Flax has pleaded guilty to an extremely serious offence. 2. Next I will refer to the third factor, which is his plea of guilty, despite a denial. Mr Fitzgerald helpfully referred me to the judgment of Dawson J in Meissner v The Queen (1995) 184 CLR 132. His Honour said the following at 157 - "It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred." That case itself concerned such a plea. 1. It is apparent in this case that Mr Flax claims that he has pleaded guilty on the basis mentioned by Dawson J of protecting his family but nevertheless he has pleaded guilty and he has admitted his guilt of an extremely serious offence. I have to make it abundantly clear that I must sentence him upon that basis. 2. The second factor I referred to in my opening remarks concerned Mary Ivory's ill health. It is obvious, as Mr Fitzgerald pointed out, that if Mr Flax goes to gaol, then Ms Ivory is going to suffer some impact. It may or may not be as serious as having to be moved to a nursing home; I do not know. But it will certainly have a serious impact on her. 3. The courts have considered over the years the relevance of such an impact that a sentence might have on a person other than the offender and how a judge should take that into account. Mr Fitzgerald helpfully referred me to a recent explanation of those principles by the New South Wales Court of Criminal Appeal in Dipangkear v R [2010] NSWCCA 156. Whealy J, with whom Hodgson and Buddin JJ agreed, referred to what had been said by Gleeson CJ on behalf of the Court of Criminal Appeal in R v Edwards (1996) 90 ACrimR 510. Whealy J extracted the following passage from Gleeson CJ's judgment. That extract appears at [30] of Whealy J's judgment - "There is nothing unusual about a situation in which the sentencing of an offender to a term of imprisonment would impose hardship upon some other person. Indeed, as senior counsel for the respondent acknowledged in argument, it may be taken that sending a person to prison would more often than not cause hardship, sometimes-serious hardship, and sometimes-extreme hardship, to another person. It requires no imagination to understand why this is so. Sentencing Judges and Magistrates are routinely obliged, in the course of their duties, to sentence offenders who may be breadwinners of families, carers, paid or unpaid, of the disabled, parents of children, protectors of persons who are weak or vulnerable, employers upon whom workers depend on their livelihood, and many others, in a variety of circumstances bound to result in hardship to third parties if such an offender is sentenced to a term of full time imprisonment." 1. Gleeson CJ went on to point out that the real difficulty "is to identify a ground upon which they can properly and relevantly be regarded as exceptional". His Honour was referring to circumstances where imprisoning an offender causes hardship to a third party. 2. Gleeson CJ referred to the judgment of Wells J in R v Wirth (1976) 14 SASR 291 at 295-296. Wells J referred to the inevitable consequence of hardship as a result of a sentence but of the need for courts to do their clear duty "especially where the element of retribution, deterrence, or protection of society is the predominant consideration". Wells J, in an often cited passage, referred to a way of assessing the exception where a judge may be willing "when applying a principle, not to carry it past the point where a sense of mercy or an affront to common sense imperatively demands that they should draw back." The circumstances need to be "highly exceptional". 3. I have naturally, as a human being, some sympathy for the predicament which Mr Flax has left Ms Ivory in as a result of committing this crime. But it seems to me that my duty is clear. I repeat, he has pleaded guilty to an extremely serious offence. The circumstances of his partner, Ms Ivory, are not such that they would provide me with an alternative to sentencing him to a custodial sentence. The crime is simply too serious to warrant that option. 4. Mr Fitzhardinge appeared for the Director of Public Prosecutions and, as well as his oral submissions, provided helpful written submissions. Part of the guidance that he took me to in sentencing offenders for this kind of crime came from the New South Wales Court of Criminal Appeal in R v Fisher (1989) 40 ACrimR 442 at 445. Mr Fitzhardinge extracted the following passage from the Court's judgment - "This Court has said time and time again that sexual assaults upon young children, especially by those who stand in a position of trust to them, must be severely punished, and that those who engage in this evil conduct must go to gaol for a long period of time, not only to punish them, but also as an endeavour to deter others who might have similar inclinations. … This Court must serve notice upon judges who impose weakly merciful sentences in some cases of sexual assault upon children, that heavy custodial sentences are essential if the courts are to play their proper role in protecting young people from sexual attacks by adults… ." 1. Mr Fitzhardinge pointed out some aspects of this offence which are important to take into account. It was aggravated by the fact that it involved a serious breach of trust. The boy had been placed at the home of his grandmother and Mr Flax by his parents to look after him. Mr Flax, on the charge that he has pleaded guilty to, took the opportunity to commit a most serious offence against the child. The sexual intercourse involved was performing fellatio on the child. It was, therefore, a very serious form of sexual assault. I do not say that it is the most serious kind but it is certainly more serious than some forms of sexual intercourse may be. 2. I do acknowledge that the offence was spontaneous and isolated. It was not part of an ongoing course of conduct which is often the case when sentencing offenders such as these. In addition, the boy was seven years old. The offence is for crimes committed against those who are 10 or under. In other words, the victim in this case was well under 10 years old. He was far from being extremely young for this kind of crime but nevertheless he was still two or three years younger than the maximum age for a victim of this kind of crime. 3. Mr Fitzhardinge submitted that the "offence falls below the middle of the range" but he added it is "not towards the bottom of the range" because of the features which he had pointed out. I accept his proposed classification of the seriousness of the offence, and Mr Fitzgerald realistically acknowledged as much as well. 4. Mr Flax is entitled to the benefit of the fact that he has had no prior convictions whatsoever. I accept both Mr Fitzhardinge's and Mr Fitzgerald's submissions that I should not be satisfied that his good character "was of assistance to the offender in the commission of the offence" so that s 21A(5A) does not apply. So, as Mr Fitzhardinge fairly conceded, "the offender is entitled to have his prior good character taken into account in mitigation of his sentence". 5. I also accept, as I have already found, that the hardship to Mary Ivory is not such that it would warrant other than an appropriate period of custody. 6. Mr Fitzgerald pointed out that there are special circumstances for adjusting the normal ratio between a non-parole period fixed by a judge and the balance of the term of a sentence. Normally a non-parole period represents 75% of a sentence but he submitted that I could reduce that in this case. He pointed to his client's age, being 66, and the fact that it was his very first offence and his first time in custody. Mr Fitzhardinge acknowledged those factors. I think that special circumstances in this case are particularly strong. I am going to make a significant reduction in the non-parole period. 7. Bearing in mind the degree of seriousness of the offence, I regard an appropriate overall sentence for an offence such as this, given the maximum which Parliament has imposed, as six years imprisonment. I would reduce that by 10% because of Mr Flax's plea of guilty. That produces a prison sentence of a little over five years, which I would round off at a prison sentence of five years. 8. Needless to say, I regard this offence as such that I have no alternative but to impose a penalty of full time imprisonment. That penalty will be five years imprisonment. 9. I regard an appropriate non-parole period, taking into account the factors which I have mentioned, and especially Mr Flax's age, to be two years. I appreciate that that is less than 50% of the overall sentence but, given his age and the fact that it is his first time in prison and his very first offence, I am going to reduce it to two years imprisonment. HIS HONOUR: Would you stand up, please, Mr Flax. 1. I set a non-parole period for your sentence of two years commencing today, 5 November 2014 and expiring on 4 November 2016. The balance of the term is three years commencing on 5 November 2016 and expiring on 4 November 2019. The first date on which you will be eligible for parole is 4 November 2016. HIS HONOUR: Have a seat there for a moment, Mr Flax, whilst I check with Mr Fitzgerald and Mr Fitzhardinge about those figures. FITZHARDINGE: I was content with those figures, your Honour, they seem to work. FITZGERALD: Yes, the mathematics, thank you, your Honour. HIS HONOUR: All right. Mr Flax, I have sentenced you to five years gaol for that crime. Normally a five year gaol term would - well, I have not done the sums, but your non-parole period for a five year gaol term would be over three years imprisonment, it would be close to four years imprisonment; that is the normal non-parole period for a five year gaol term. But I have reduced yours substantially to two years. You have got to spend two years in gaol. That starts today, and it finishes on 4 November 2016, two years from today. On that day, 4 November 2016, you are eligible for parole. I do not give you parole, the Parole Authority does. They will assess your parole beforehand and determine whether to release you on parole. Once you are on parole, you are still under sentence for the rest of the time, until 4 November 2019. Five years from today your sentence expires. Do you understand that? OFFENDER: Yep. HIS HONOUR: All right. Mr Flax can be taken away. ********** 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: 12 February 2015