Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Eacott (a pseudonym) v R [2019] NSWCCA 158 Hearing dates: 3 April 2019 Decision date: 17 July 2019 Before: Leeming JA at [1]; Ierace J at [38]; Hidden AJ at [39] Decision: 1. Grant leave to appeal. 2. Appeal dismissed. Catchwords: CRIME – criminal appeals – appeal against sentence – persistent sexual abuse of a child – whether sentence manifestly excessive – objective seriousness below mid range – unusual facts – very strong subjective case – notional starting point 8 years imprisonment – sentence of six years with non-parole period of 3 years 6 months – sentence not manifestly excessive Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 Crimes Act 1900 (NSW), ss 66EA, 578A Cases Cited: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 Markarian v The Queen (2006) 228 CLR 357; [2005] HCA 25 Mills v Regina [2017] NSWCCA 87 R v Fitzgerald (2004) 59 NSWLR 493; [2004] NSWCCA 5 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 Category: Principal judgment Parties: Eacott (a pseudonym) (Applicant) Regina (Respondent) Representation: Counsel: S Kluss (Applicant) H Roberts (Respondent) Solicitors: R Hill (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2016/390103 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 04 April 2018 Before: His Honour Judge Hanley SC File Number(s): 2016/390013 Judgment 1. LEEMING JA: The applicant, who cannot be given his real name by reason of s 578A of the Crimes Act 1900 (NSW), pleaded guilty to a single charge of persistent sexual abuse of a child, contrary to s 66EA of the Crimes Act. The child was his natural daughter, who throughout the time of the events in question was aged between 6 and 10. The applicant was born in 1951 and was aged between 56 and 61 when the offences occurred. 2. Section 66EA(1) took the following form throughout the entirety of the duration of the offending conduct (from 2008 until January 2013): "A person who, on 3 or more separate occasions occurring on separate days during any period, engages in conduct in relation to a particular child that constitutes a sexual offence is liable to imprisonment for 25 years." 1. More recently, s 66EA has been amended, reducing the number of occasions required to establish the offence, and increasing the maximum sentence to life imprisonment. 2. The sentence imposed upon the applicant was for imprisonment for a period of 6 years, with a non-parole period of 3 years and 6 months. The total sentence included a reduction of 25% based on the offender's plea, so that the undiscounted starting point was 8 years. The non-parole period (which is a full year shorter than the 4½ years otherwise required by s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW)) reflected a finding of special circumstances. 3. The applicant seeks leave to appeal against that sentence. The only proposed ground of appeal is that: "His Honour imposed a sentence that was unreasonable or plainly unjust (for reasons that may not be able to discern) and the sentence is manifestly excessive." Agreed facts 1. The hearing proceeded on the basis of agreed facts. Those facts were relatively short and described five incidents which occurred to the victim, who was born in October 2001, after the applicant had married the victim's mother in 1998. Those incidents were described as follows: "Incident One 3. In 2008 when the victim was six years old, there was an occasion when the victim's mother was not at the house. 4. The offender was lying in bed and the victim accidentally touched him on the penis outside his clothing. The offender said "If you do that, I have to stay here with you longer". The victim then touched him on the penis again, and the offender read her a story. 5. After this incident, it became a 'rule' that if the victim would rub the offender on his penis [outside clothing] he would reward her with lollies or story time. This occurred numerous times over the next few years. Incident Two 6. In 2008 the offender then purchased a black lycra body suit. When the offender's wife was out of the house, the offender put on the lycra suit, which he told the victim was called 'the control suit'. The offender told her 'when I'm in this suit and you touch my penis, you're in control of me and I have to obey you'. 7. As a result, the victim rubbed the offender on his penis, outside the lycra suit. 8. After this incident, it became a 'rule' that if the victim rubbed the offender on his penis (outside the 'control suit') the offender would obey her commands. This included picking DVDs and getting ice cream. This occurred numerous times over the next few years. Incident Three 9. Whilst in the bedroom, the offender asked the victim to whip him to the buttocks and his penis with a small whip, whilst he was in the lycra suit. The victim did this. 10. This occurred on at least three occasions. Incident Four 11. In 2008 the offender was having a shower naked, when he invited the victim in. The victim undressed and also got in the shower. The offender asked the victim to touch him on the penis with her hands. The victim, at the instruction of her father, then masturbated the offender. He did not ejaculate. 12. In 2012 the family moved to xxxxx, Faulconbridge. Incident Five 13. In 2012, at the [Faulconbridge] house, when the victim was ten years old, the offender took the victim to his bedroom and lay her on the bed. The offender wore the lycra body suit. He took the victim's shirt off, and then licked and bit the victim's nipples. 14. The offender then used his hand to rub the victim on the vagina. The offender then licked the victim on her vagina for a short period. 15. This occurred on more than one occasion in the [Faulconbridge] house. 16. The victim describes sexual contact with her father occurring countless times between the ages of seven and ten, predominantly in her father's bedroom when her mother was out of the house. 17. In January 2013, about a year after moving to the [Faulconbridge] house, the offender told the victim 'we can't do that anymore'. The offending then stopped." 1. Some four years later, on 29 December 2016, the victim (then aged 15) told her mother that "Dad has been sexually abusing me, although nothing has happened for like four years now". The mother contacted the police on that date. The statement of agreed facts continued: "20. On that date the offender was arrested by police. When police arrived the offender admitted that he had previously had inappropriate sexual contact with his daughter. The offender said this had happened 'twelve to eighteen times'. 21. The offender participated in an ERISP on 30 December 2016. 22. The offender admitted that he had encouraged his daughter to touch him on the penis, and the use of the 'control suit'. He agreed he had taken showers with his daughter and touched her inappropriately in his bedroom. The offender also admitted that the victim would whip him at his request. 23. The offender claimed the activities between himself and his daughter were a sexual fetish or fantasy that they both enjoyed participating in. 24. The offender finally agreed that the activities stopped in January 2013 as 'sanity got into his head' and he 'didn't want to pervert his daughter.'" Reasons of the sentencing judge 1. After summarising those facts, the sentencing judge then addressed objective seriousness. His Honour said that the individual offences which were capable of giving rise to the offence of persistent sexual abuse were offences which carried maximum penalties of 14 years, 20 years, 25 years and life imprisonment, while the particularised incidents of offences by the applicant carried maximum penalties of between 5 and 7 years imprisonment. His Honour also had regard to the persistence of the offending, and the age of the victim (between 6 and 10 years), the fact that the applicant was the victim's natural father, and the degree of planning reflected in his purchase of the lycra suit. His Honour said: "That suit had two components: in many respects it minimised the type of offending behaviour in that the touching took place outside the clothing but it also appealed to his fetish of being controlled." 1. His Honour referred to the escalation of offending behaviour, in relation to the offences which took place in the shower, and the fact that there appeared to have been no coercion, force or threats made by the applicant, although those matters were tempered by the victim's youth. His Honour assessed the objective seriousness of the offending conduct as "below the mid-range and towards the lower range but certainly not towards the bottom of that range of criminal behaviour". 2. The sentencing judge regarded the location of the offending conduct (in the victim's home), the fact that there was some limited degree of planning, and that the applicant was in a position of authority or trust as aggravating factors to which he had to have regard. He added that the injury and emotional harm caused by the offences would have been substantial. 3. By way of mitigating factors, the sentencing judge noted that the applicant had pleaded guilty in the Local Court, and had made full admissions to his wife and to the police, as a result of which he was entitled to a 25% reduction in his sentence. His Honour had heard the applicant giving evidence, and said that "he impressed me as being significantly remorseful for his behaviour", and gave short reasons for that conclusion, based not only on an acceptance of his evidence, but also on the fact that the applicant had transferred his shares in the family home and business to his wife, as well as bank accounts in his own name in excess of $100,000. The sentencing judge said that the applicant "has no other assets other than some minor amounts of superannuation which he retains. I accept that those factors indicate also the extent of his remorse". 4. The sentencing judge found that the applicant had good prospects of rehabilitation, based on both his own evidence of remorsefulness and professional evidence of the risk of reoffending. 5. The sentencing judge took into account, but only "to a very limited degree" that there would be additional hardship to his prison sentence by reason of his being in protection, having regard to the nature of his offending. The sentencing judge regarded as most important the fact that he had suffered from toxoplasmosis for many years, which required cortisone injections, and suffered from macular degeneration in the other eye, and a painful back condition. His Honour said: "Unlike some who appear in this Court who tend to exaggerate the impact of any physical or medical problems he appeared to downplay it". 1. The sentencing judge referred to the applicant's background, as one of seven children in Dublin, Ireland, who never knew his biological father. His mother's subsequent partners were alcoholic and violent to her in his presence. He stayed with friends and relatives and even in an orphanage during childhood. He left Ireland for Australia when he was 19. After his first marriage ended, he met his second wife, the mother of the victim, and seemingly enjoyed a close relationship with her until the offending was disclosed. 2. The sentencing judge observed: 'He has no underlying mental health, alcohol or drug factors that would impact upon his capacity to commit this type of offence. The foundation for it appears to be in the long history of interest in bondage and discipline and sadism and masochism from a young age. This would appear to be an underlying factor as set out in the facts in respect of these offences." 1. His Honour said that although he identified as having depression and anxiety, that was a result of the disclosure of his offending. He was not satisfied that he suffered currently from any paedophiliac disorder. 2. The sentencing judge recorded applicable sentencing principles in a fashion which was not the subject of any complaint, and made a finding of special circumstances having regard to the opportunity for supervised rehabilitation, his age and the fact that it was his first time in custody. 3. Finally, his Honour referred to sentencing statistics but regarded the sample space as small and the overall statistics of little assistance. He had regard to two particular decisions, R v Fitzgerald (2004) 59 NSWLR 493; [2004] NSWCCA 5 and Mills v Regina [2017] NSWCCA 87, taking guidance from them as to the sentencing principles and found that the penalties imposed in those cases were of "some limited guidance" to the penalty that should be imposed. Applicants' submissions 1. The applicant's submissions, both written and oral, were brief. That reflected the fact that, in the case of a ground confined to manifest excess, there is relatively little that can be said aside from summarising the relevant features of the case and the sentence imposed. 2. The written submissions maintained that a notional starting point of 8 years was excessive, given the findings of objective criminality being below mid-range, the strong subjective case, including the signing over of the bulk of the applicant's assets, the disadvantaged background, the low risk of reoffending, the potential for rehabilitation and contrition, and a record that did not disentitle him to leniency. It was said that "his Honour's apparent starting point did not reflect the findings that he appears to have made." 3. In oral submissions, counsel accepted that incidents 4 and 5 represented an escalation of the offending behaviour, and were more serious, although the fifth still involved wearing the lycra body suit, which went to the relative absence of intrusion into the body of a young person. Counsel emphasised that: "when you look at what he did in terms of the offending it really pales to a very different category than those which are usually encompassed by this very serious offence and an offence which generally speaks to wide ranging sexual activity that involves the intrusion into the body of the young person which was not present in relation to this particular matter." 1. Counsel concluded her submissions thus: "This applicant has not only demonstrated great remorse in the plea of guilty and the plea of guilty entered at a very early stage. He made admissions the second he was confronted by his wife in relation to the behaviour. But he has also gone above and beyond what most applicants would ever consider doing in basically handing over every worldly asset including his business and the joint assets of the family to his wife. It is a level of contrition and remorse that coupled with his voluntary cessation of the behaviour and the fact that for many years he had abstained from anything that even approached anything like what had occurred in the younger years is a matter that in my respectful submission all boded for a lower starting point than that which was applied by the sentencing judge." Consideration 1. The applicant's submissions were succinct, but not without force. This is an unusual case, and in a number of ways. 2. First, the nature of the offending is highly unusual. In some respects, as the applicant submitted, the conduct was less serious than many of the classes of conduct which are capable of constituting this offence. 3. However, no attempt was made to attack the sentencing judge's assessment of objective seriousness, and rightly so. While the indecent assaults were less serious than many of the individual offences which can constitute s 66EA, their frequency is to be firmly borne in mind. In this respect, the word "incident" in the descriptions in the Agreed Facts may mislead. Inviting the victim to rub the applicant's penis outside his clothing occurred numerous times. Asking the victim to rub his penis outside his "control suit" so that he would obey his daughter's commands occurred numerous times. Asking his young daughter to whip his buttocks and penis while wearing the lycra suit occurred on at least three occasions. The applicant's acts of rubbing and licking his ten year old daughter's vagina occurred more than once. Inviting his 7 or 8 year old daughter to masturbate him while both were undressed in the shower happened only once. And paragraph 16 of the agreed facts refers to the victim's descriptions of sexual contact with her father occurring countless times, mostly in her father's bedroom while her mother was out of the house. 4. Moreover, the victim was abused at a very young age, on numerous or countless occasions, over a four year period by her own father in her own home, who had taken the trouble to acquire a lycra body suit. 5. Secondly, the applicant's contrition, remorse and acts of reparation, coupled with the applicant's age, medical condition and unlikelihood of reoffending gave him an unusually strong subjective case. 6. This may be part of what underlay the sentencing judge's observations about the limited utility not only of sentencing statistics but also of the sentences imposed for other offences against s 66EA. 7. The sentencing exercise was one which I would regard as a difficult one. 8. Plainly the applicant has a very strong subjective case. Plainly his chances of reoffending are very low. I regard of especial importance the fact that the offending stopped, years before it was reported by his daughter, when she reached a stage of maturity when he told her it could not continue, and he came to appreciate the damage he was doing to her. 9. The gravamen of the applicant's submissions was that a starting point (undiscounted) of 8 years given the below the mid-range assessment of objective seriousness, coupled with a strong subjective case, was manifestly excessive. 10. I do not ignore the notional starting point of 8 years' imprisonment. But the ultimate issue is whether a sentence of 6 years' imprisonment with a non-parole period of 3½ years is manifestly excessive. I am not satisfied that it is. 11. The applicant must show that the sentence was unreasonable or plainly unjust: Markarian v The Queen (2006) 228 CLR 357; [2005] HCA 25 at [25]. 12. It is trite that it is not the function of an appellate court to substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised the sentencing discretion in a manner different from the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Markarian v The Queen at [28]. It is necessary for the appellate court to conclude that there must have been an error, even though when and how is not apparent from the statement of reasons: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]. 13. Nothing in the reasons of the sentencing judge is suggestive, to my mind, of any misapplication of principle or misunderstanding of the task at hand. To the contrary, they suggest a careful and sensitive assessment of an unusual exercise of sentencing discretion. Nor is error to be inferred from the sentence actually imposed. I bear in mind that: 1. first, the notional starting point of 8 years is less than a third of the 25 year maximum then applicable to this offence, and 2. secondly, the sentence which is impugned as manifestly excessive is to be considered as a whole, and comprises a head sentence of less than a quarter of the 25 year maximum term, and a very substantially reduced non-parole period, based on a finding of special circumstances. 1. I would not conclude that a sentence of 6 years' imprisonment with a non-parole period of 3½ years is manifestly excessive for the offence of persistent sexual abuse of the applicant's daughter, on numerous occasions over a four year period when she was aged between 6 and 10, in her home, in a variety of ways, despite his early guilty plea and a very strong subjective case. 2. For those reasons, I would grant the applicant leave to appeal, but dismiss the appeal. 3. IERACE J: I agree with Leeming JA. 4. HIDDEN AJ: I agree with Leeming JA. ********** Amendments 19 July 2019 - [30]: third sentence, "she told him" changed to "he told her" 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: 19 July 2019