R v ME [2017] NSWDC 308

District Court New South Wales

Medium Neutral Citation: R v ME [2017] NSWDC 308 Hearing dates: 27 October 2017 Date of orders: 27 October 2017 Decision date: 27 October 2017 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Sentenced to an aggregate term of imprisonment consisting of a non-parole period 13½ years with a head sentence of 18 years Catchwords: CRIMINAL LAW – Sentence – Form 1 – Aggravated sexual intercourse with a person between the ages of 10 and 14 years –Incite an aggravated act of indecency – Position of authority – Breach of trust – Natural father of victim – Termination of pregnancy – Paying victim for sex. Category: Sentence Parties: The Crown ME Representation: Counsel: Mr J Fitzgerald - Offender

Solicitors: Director of Public Prosecutions – The Crown Legal Aid Commission – The offender File Number(s): 2016/313510 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.

Judgment 1. HIS HONOUR: The Court of Criminal Appeal has repeatedly emphasised that significant sentences are required in child sexual assault cases in order to protect vulnerable children from sexual exploitation. The case before me today is in my view one of the worst cases of sexual exploitation that has come before the Courts of recent times. The need to protect vulnerable children explains the sometimes harsh sentences which are imposed upon offenders and it also explains the sentence I will ultimately impose on this offender. 2. The offender has pleaded guilty to three offences of aggravated sexual intercourse with a person between the ages of ten and 14. Each of those offences has a maximum penalty of 20 years with a standard non-parole period of nine years. He has pleaded guilty to an offence of inciting an aggravated act of indecency. The maximum penalty for that offence is five years with no standard non-parole period. And he has pleaded guilty to an aggravated sexual intercourse offence with a person between the ages of 14 and 16 years. The maximum penalty for that offence is 12 years with a standard non-parole period of five years. 3. The circumstances of that last offence are most serious indeed, especially when the consequences for the victim of that offence are taken into account. 4. The circumstance of aggravation in each case is that the offender was in a position of authority over the victim. Indeed, he was her natural father. She was living with him. Her mother was not living in Australia and so he was the only parent that she had. He groomed and then exploited his daughter for his own lustful purposes over a lengthy period. 5. The victim in this matter was born in 1999. She and her mother moved to Australia when she was around the age of one. When she was about seven, with the assistance of family members, she tracked down her father, the offender, and after that she would often visit him at his apartment in the city in Sydney. 6. At one stage the offender moved in with the victim and her mother. When they were home alone, the offender would show her pornography websites on a laptop computer. Matters deteriorated significantly when the victim was aged around eight or nine. It was at that stage that her mother left Australia and returned to live in her country of birth, leaving the offender as the victim's sole custodian. They continued to live where they had been living and shared the only bed there. 7. Their relationship changed in an awful way after the victim's mother left. The offender began acting on the sexual interest he had in his daughter. The first thing that happened is that he asked her to masturbate him. The complainant says that when she was about eight or nine she was first made to masturbate the offender. That is the offence of inciting an aggravated act of indecency. This became quite a frequent activity. 8. Things got even worse when the complainant turned 11. He began offering her money for sex. At around this time he first touched her genitals. He firstly put his hand on her genitals and then penetrated her vagina with his fingers. That is an offence of aggravated sexual intercourse which appears on a Form 1. Immediately after that he put his penis inside his daughter's vagina which caused her pain. He did not use any form of birth control. That is an offence of aggravated sexual intercourse with a person between the ages of ten and 14 and is the first offence for which the offender must be specifically sentenced. It is also the offence to which all the Form 1 offences attach. 9. After this the victim and the offender developed a system whereby he would pay her $50 to have sex with him. This system operated from when the victim was 11 to when she was 15 years of age. They would engage in sexual intercourse regularly; on the bed, on the computer chair and on the couch. Although the offender began to use a condom, that practice eventually ceased and their sexual intercourse was unprotected. 10. At one stage when the complainant was 12 the offender performed cunnilingus upon her. That is another offence of aggravated sexual intercourse with a person between the ages of ten and 14 for which the offender must be specifically sentenced. 11. Also at around that time, when the complainant was still in primary school, the offender penetrated her anus with his penis. Not surprisingly, this cause her pain. She recalled telling the offender to stop and it is some small mercy that he did so. That is the third offence of aggravated sexual intercourse with a person between the ages of ten and 14. 12. The victim was silent about such matters because the offender told her not to tell anyone about the sexual activity which was taking place between them. 13. In around 2010 the victim's mother returned to Australia and she began living nearby, but this did not disturb the sleeping arrangements for the offender and his daughter. 14. The sexual abuse of his daughter stopped when she was aged 15 in a most disturbing way. She fell pregnant to the offender. Together they began to research ways to induce a miscarriage, but these were not successful. Ultimately, after several weeks had passed, her pregnancy was terminated. The act of intercourse which caused that pregnancy is another act of aggravated sexual intercourse with a person between the ages of 14 and 16 on this occasion. 15. Eventually, the victim told some friends about the sexual abuse committed upon her by her father. She has since told other people, a psychologist and eventually police. 16. The offender was arrested on 20 October 2016 and has been in custody since that time. He made a lengthy interview with police in which he made full admissions and indeed particularised a number of other sexual acts which the police were not at that stage investigating. They all appear on the Form 1. 17. To say that these offences were serious is a significant understatement. There are many aspects which aggravate these offences beyond the usual offence of child sexual assault which is serious enough in the first place. 18. He had a previous sexual offence committed in 1979 when he was convicted of an offence of carnal knowledge after having sex with a 15 year old girl. The offences all occurred in the victim's home. She was vulnerable in the extreme. As I mentioned before, she only had her father to look after her. She had nowhere else to go. These offences represent a breach of trust of the most gross form. There was planning involved, there was connivance involved and the harm which these offences have caused the offender's daughter is conceded to be substantial. 19. The consequences for the victim have been enormous. They are set out in a victim impact statement prepared by the victim's carer. The reason the carer has prepared the victim impact is illustrative of the problems that have been caused to this unfortunate young girl. She suffers from severe emotional disturbance after giving statements in the matter and has suffered psychotic episodes in the past. 20. Part of the harm, of course, comes from knowing that the person who abused her was her natural father. Although the harm she has suffered is substantial, it was entirely foreseeable. The offender can have been under no illusions as to what harm he was causing his daughter and yet he continued for years, only stopping, as I have indicated, after he made her pregnant and she had to undergo a termination. 21. Returning to other ways in which these offences are to be considered as most serious ones: they followed a period of grooming; the offender even paid her to have sex with him; and the only thing that stopped these offences occurring was the victim falling pregnant. All of these offences are well into the upper range of objective seriousness. The last offence approaches the most serious form of offending covered by the offence of aggravated sexual intercourse with a child between the ages of 14 and 16. 22. The lengthy psychological report tendered on behalf of the offender has been of considerable assistance. In setting out the background to the offender's crimes, as far as his childhood is concerned, the psychologist says this, "Overall, Mr E reflected on his childhood and family experience in negative terms and he described having grown up being unhappy, feeling unwanted and somehow inadequate. It seems that his attachment experience was highly disturbed and in my view this set the scene for his subsequent interpersonal problems that have seen Mr E struggle with meaningful intimacy and stability in relationships in addition to also ultimately contributing to his sexually abusive behaviour." 1. The circumstances may perhaps in a small way explain what he did, but in no way do they excuse it. 2. The psychologist also reports that the offender appears to have minimised the way in which he groomed and sexualised the victim and that his account of his motivations in offending were confused and distorted. However, when challenged, he was able to identify that his daughter was likely intimidated and coerced by him because she trusted him. The psychologist says that this bodes well for his capacity to profit from offence-focused treatment. 3. Although the offender did not give evidence, I am prepared to accept that he is remorseful. He has said as much to the psychologist. He made full admissions to police and he told them of additional matters which they were not yet investigating. In order to reflect the utilitarian value of his pleas of guilty, I will impose a sentence which is 25% less that it would otherwise have been. 4. When Mr Fitzgerald began his submissions to me, he emphasised that he was making many concessions on instructions from his client. These concessions were all well made. It appears that he in no way seeks to excuse his behaviour and accepts full responsibility for it. I am told that he no longer seeks to minimise the effect of his offending and, having considered the victim impact statement, accepts full responsibility for the enormous harm he has caused to his daughter. 5. Mr Fitzgerald did not make any submission that I would find special circumstances in this case, understanding that an application of the statutory ratio would provide a lengthy period of eligibility for parole given the necessarily lengthy sentences which I have to impose upon his client. 6. I will impose an aggregate sentence. Were it not for that circumstance, I would have imposed sentences as follows. Before imposing sentence I should note that I have taken into account both the maximum penalties and the standard non-parole periods in determining the appropriate sentence to impose upon the offender. My reasons for not imposing the standard non-parole period appear in these remarks on sentence. 7. Sequence 1, I would have imposed a sentence consisting of a non-parole period of six years with a head sentence of eight years. For sequence 8, a sentence of three years. For sequence 10, a non-parole period of four years with a head sentence of six years. For sequence 11, a non-parole period of five and a half years with a head sentence of seven years. For sequence 13, a non-parole period of six years with a head sentence of eight and a half years. 8. Instead I impose an aggregate sentence consisting of a non-parole period of 13 and a half years with a head sentence of 18 years. The non-parole period will expire on 19 April 2030 on which day the offender is eligible to be released to parole. 9. The sentence will date from 20 October 2016, the day on which the offender was first arrested.