District Court New South Wales Medium Neutral Citation: R v Hamilton (a pseudonym) [2019] NSWDC 382 Hearing dates: 17 May 2019 Date of orders: 17 May 2019 Decision date: 17 May 2019 Jurisdiction: Criminal Before: M L Williams SC DCJ Decision: An aggregate sentence of four years, six months with a non-parole period of two years, eight months: at [45]. Catchwords: SENTENCING — multiple offences — aggravated indecent assault — guilty verdicts — jury trial SENTENCING — Aggravating factors — Abuse of position of trust or authority in relation to the victim SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences — Accumulation, concurrency and totality — Objective seriousness SENTENCING — Subjective considerations on sentence — Special circumstances Legislation Cited: Crimes Act 1901 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Caristo v R [2011] NSWCCA 7 GSH v R [2009] NSWCCA 214 McDowall v R [2019] NSWCCA 29 R v Stoupe [2015] NSWCCA 175 R v Thomas [2007] NSWCCA 269 R v Wheeler [2000] NSWCCA 34 R v XX (2009) 195 A Crim R 38 Sharma v R [2017] NSWCCA 85 SW v R [2013] NSWCCA 255 Van Ryn v R [2016] NSWCCA 1 Texts Cited: Nil Category: Sentence Parties: Regina (Crown) Hamilton (Offender) Representation: Ms S Traynor (Crown) Mr S Russell (Offender) File Number(s): 2017/256524 Publication restriction: STATUTORY NON PUBLICATION APPLIES – Section 578A Crimes Act 1900 (any matter that may identify the complainant(s)) and s 15A Children (Criminal Proceedings) Act 1987 (identification of any minor witness(es)) Judgment 1. Between November 2014 and 29 January 2016 the Hamilton family lived at a rental property in Lane Cove, the family being comprised of the offender, Hamilton, his wife, KD, and their four children, KB, born in 2000, HB1, born in 2001, MB, born in 2003, OB, born in 2005, and HB2, born in 2008. On the night of the 19 January 2016 there was an altercation which led to Mr Hamilton being charged with two counts of common assault in relation to his family members. He was dealt with by section 9 bonds in the Local Court and appealed to the District Court. Those are the only matters on his criminal record prior to the matters that bring him to court today for sentence. Mr Hamilton has not lived with the family since that time, and has been prevented from doing so as a result of court orders. 2. In about October 2016, for the first time, his daughter, KB, made complaints about things that he had done to her. After a meeting in January 2017 in relation to family law matters, HB2 also complained about things that his father had done to him. On 21 September 2017, after a meeting with the school counsellor, MB also disclosed things that he said his father had done to him. Those complaints or disclosures led to Mr Hamilton being charged with ten counts of aggravated indecent assault under s 61M(2) of the Crimes Act 1901, which carries a maximum penalty of ten years imprisonment, and what has been described in many cases as the anomalous standard non-parole period of eight years. Notwithstanding that anomaly, it is still a matter that has to be taken into account in the sentencing process. 3. He was convicted of all counts following a jury trial at which his defence was to deny that he committed any of the offences and that the complaints were, to put it shortly, motivated by his wife out of a sense of bitterness as a result of family law disputes and that he, being a man of prior good character, would not have committed those offences. He called a significant quantity of evidence at the trial to support that assertion of prior good character, including evidence from Mr Max Krilich, a former captain of the Australian rugby league team, Mr Bowdich, a former long-serving police officer, Mr Ron Delezio, a well-known charitable worker, and Mr Paul Tocchini, a well-known solicitor. 4. The jury rejected that defence, and clearly accepted the evidence of the complainants in each case, and the sentencing must now occur in the light of the facts which are either found or conceded to be consistent with the evidence. With some minor exceptions, which have been resolved during the course of submissions this morning, the facts said to arise from the verdicts proposed by the Crown have been accepted by Mr Russell on behalf of the offender. 5. The sentencing process must take account of the purposes of sentencing, which include ensuring that the offender is adequately punished for the offence, to prevent crime by deterring the offender and others from committing similar offences, to protect the community from the offender, to promote the rehabilitation of the offender, to make him accountable for his actions, to denounce his conduct, and to recognise the harm done to the victim of the crime and the community. 6. Section 5 of the Crimes (Sentencing Procedure) Act 1999 provides that a term of imprisonment cannot be imposed by a Court unless it has considered and rejected all other alternatives. In this case, it is conceded by Mr Russell for the offender that, in the light of the objective and subjective matters, and the legislative guideposts indicated by the maximum penalty and the standard non-parole periods, a term of full-time imprisonment is mandated and there is no need for me to consider any alternatives. 7. During the time that the family lived at the rental property in Lane Cove, the daughter, KB, had her own bedroom, HB1 and MB shared a bedroom, and OB and HB2 slept with their parents and kept things in MB and HB1's bedroom. During that period, the offender was required to use the ensuite bathroom off the bedroom, which was shared by HB1 and MB. 8. The first three counts on the indictment involve offences against KB, who was 15 years old at the time. During this period at Lane Cove, KB would sometimes be banned from using social media by her mother, and would have her phone taken away. She requested that her father give her his phone to use without the knowledge of his wife. 9. On 7 June 2015 KB and the family went out for dinner in Lane Cove. Her mother went to bed on returning home. KB was in bed using her phone and going through social media when the offender came in and sat down on the end of the bed. He said how much he loved her and called her princess, and he moved up on the bed and sat next to her. He went under the doona and put his arm around her and hugged her, and she turned to the left facing the door and did not say anything. She drew an illustration at trial to illustrate these positions. The offender cuddled her and said, "You know I love you so much". As he did so, he moved his hand down towards her vagina on top of her pyjamas and kept talking to her. He put his hand on her vagina near her vagina hole. She turned to look at him and he said, "It's okay". She did not know what to do and she completely froze. He touched her vagina with his fingers in a pulsing movement near her vagina hole. This continued for a few minutes. She did not say anything to him at the time. He was in her room for around 15 minutes and then he walked out and did not say anything to her. She did not tell anyone at the time, she said no-one else was awake, and following this she posted some Facebook messages to a friend. 10. As to count 2, on a later occasion at an unspecified time, the offender entered KB's bedroom and lay with her underneath the doona. He moved his hands around her chest and was kissing her cheek and neck. He moved his hand down towards her vagina and pulsed his hand and his fingers moved around her vagina hole over the top of her clothing. He touched her vagina for about two to three minutes. 11. As to count 3, that concerned another occasion when he came into KB's bedroom and closed the door behind him. The offender had got into bed with her and had his hand around her chest and his hand on her vagina on the outside of her clothes. His hand had been on her vagina for about 20 seconds when her mother walked in. KB did not say anything to her mother at the time about what her father was doing. The offender did not immediately remove his hand from her vagina. The mother got angry and said, "What's going on here?" and he pulled his hand away and hugged KB and said something like, "I'm having time with my daughter, KD." The wife told KB to get up and do some chores. KB left the bedroom and spoke with her mother, and her mother asked if everything was okay and she said it was. 12. On 29 January 2016 the family was due to move to a newly constructed house the next day. There was, as I have indicated, an incident which led to police being called and ultimately led to the dissolution of the marriage. As I have said, the first complaint by KB about the indecent assaults was in October 2016 when she told her mother in a Thai restaurant on MB's birthday. 13. As to count 4, HB2 was six years old when he moved into the rental property at Lane Cove and turned seven not long after. The first time that HB2 was touched, he had got out of the shower in the ensuite to MB and HB1's room and went to get dressed. It was night-time and on this occasion the offender touched his bum. He "squinched" it with his hands and laughed. 14. Counts 5 and 6 involve an episode when HB2 was in Year 2 and seven years old. He had been taking a shower in the ensuite bathroom to MB and HB1's room. He got out of the shower, went to the wardrobe and opened the door to get his pyjamas. No-one else was in the bedroom. He took his towel off and put it on the bed and was naked. The offender came in from the door wearing an orange shirt and Wallabies shorts. The offender put one hand behind HB2 on his bottom and one hand in front on HB2's penis and "squinched" it or squeezed it for a few seconds. His hand was on both sides of his bum cheeks as he had a big hand. The offender was touching his skin. No-one said anything, but the offender laughed. HB2 said to the offender, "Don't, I don't like that" and "Why did you do that?" and the offender was still laughing. HB2 pushed his hand away and went out the door, and HB2 had to unlock the door to leave the bedroom. 15. Counts 7 and 8 involve an episode where HB2 got out of the shower of the ensuite and was in MB and HB1's room getting changed. The offender came up and put one hand on his bottom and one hand on his penis and "squinched" it. This was the same as the way that HB2 had drawn in a picture which became an exhibit. 16. Each of the incidents involving HB2 were unable to be identified by month or otherwise, except that two of the three occurred at night. HB2 gave evidence that he reported each of these events to his mother, but his mother did not support that assertion in her evidence. On 19 January 2017 at the Family Court, HB2 told his sister, KB, that the offender had touched him and pointed to his groin area. She relayed this conversation to her mother and the Police were contacted. HB2 gave evidence which did not support such an assertion by KB, and there was otherwise no corroboration of that assertion. 17. Counts 9 and 10 involve MB. He was 11 years old when he was living at the rental property in Lane Cove. He was in the shower upstairs, in the ensuite and his father was in there as well. The offender kept glancing over at him. When MB got out and was drying himself, the offender came over and touched him on the penis. MB froze and did not know what to do, and quickly left and went downstairs. The offender touched MB's penis for two seconds. Nothing was said. MB drew a picture which became an exhibit to show where they were in the bathroom. MB thought that this was a school day. He thought HB1 was in his bed, KB was in her room and his mother was downstairs. He said he was in Year 6 when this happened, and his teacher was Mr Haines.. 18. Count 10 involved another occasion when MB was getting dressed in his room on a weekend. He had a T-shirt on but no pants and he went to get his underpants out of the wardrobe. The offender came over and grabbed him on the penis for a few seconds. He looked at his dad as if to say, "What are you doing?" He picked up his underpants and board shorts out of the cupboard and ran downstairs to finish getting dressed, and the offender walked into the bathroom. MB did not tell anyone about these events at the time, because he did not feel comfortable. 19. On 21 September 2017 there was a meeting with the school counsellor. KB, HB1, MB and their mother were present. At this meeting it was disclosed to HB1 and MB that the offender had been charged with indecent assault of KB and HB2. During this meeting MB was tearful but looking ahead. KB said, "MB, tell me" and MB replied, "He did it, he did do it" indicating that it had happened to him. 20. MB was then interviewed by police and he stated that he had seen things happen to HB2 but nothing had happened to him. He was interviewed again by Police two weeks later and disclosed the conduct referred to in counts 9 and 10. 21. OB gave evidence that he observed his father touch HB2 inappropriately anywhere between 12 and 150 times during 2015. He also said that he reported each of these incidents to his mother, and that evidence was inconsistent with the evidence of both HB2 and the mother. 22. In the Crown case on sentence, victim's impact statements have been provided by KB, MB and HB2. The statements of KB and MB were read to the Court. They are taken into account in the way suggested by Basten JA in R v Thomas [2007] NSWCCA 269 for the purpose of bearing in mind the harm done to the victim as provided by s 3A of the Crimes (Sentencing Procedure) Act. The Crown specifically does not assert that they lead to any aggravating factor being taken into account, nor that s 21A(5A) applies in the present case. 23. Balanced against the victim's impact statement and the significant effects upon the victims as disclosed in the statements that were read to the Court, Mr Russell points to two pieces of evidence, which were tendered on the sentence. Firstly, a lengthy quantity of social media posts by KB, which Mr Russell submits demonstrates that, perhaps, in some ways contrary to the picture painted in her victim's impact statement, she is leading a glamorous life with no body image problems and wants the world to know about it. As to an assertion by MB that he was put into a lower grade rugby team than he otherwise would have been suited for, as a result of the effects of these offences, Mr Russell points to evidence that he is currently playing in the 16A rugby side at his school, which is the highest team available to a person of his age. Those documents provide some qualification to the assertions in the victim's impact statements, but do not lessen the content of the statements and the expression of impacts upon the victim, and will be taken into account as the legislation and the authorities suggest. 24. In addition to the character evidence led at trial, there is evidence contained in a Sentencing Assessment Report and a number of medical reports and testimonials. The Sentence Assessment Report was prepared following contact with the offender and his mother, and the perusal of various medical reports, business documents and references. The evidence suggests that the offender now resides alone, and he has the support of his mother and his current partner. He has been working full-time as a real estate agent, and the evidence at trial establish that he has had a successful real estate business for many years. However, given the unlikelihood of his real estate agent's licence being renewed, he reported having to sell the business depending upon family law decisions. 25. He maintained his denial of the offences, stating that his ex-partner was out to annihilate his life and career. As to the offences, he said, "It's not me. I wouldn't do it. I don't know anyone who would do it. It's the opposite of who I am. I love kids." That is consistent with the evidence that he gave at trial. He was assessed as having a below average risk of further sexual offending and was unlikely to be suitable for specialist sex offender treatment programs given that score. His family was identified as being at specific risk, given the common assault convictions in 2016, and these offences involving repeated instances of familial indecent assault. 26. The author of the report said that he displays no insight into the impact of his offending, reporting that when he has incidentally seen his children in passing, they have displayed no fear of him. The risk assessment summarised by the author of the report was based on the case minute prepared by the St Leonards Community Corrections Office, which took into account a number of factors indicative of the risk. He was assessed as being suitable for community service work but, as Mr Russell concedes, that is an academic point. 27. There was evidence at the trial as to health problems, and further evidence in a report from a cardiologist, Dr Hellestrand, who refers to an incident of atrial fibrillation in 1992, a cardiac arrest in 1999, and insertion of a defibrillator. His cardiac status is currently satisfactory, but he is in atrial fibrillation, and there were periods of sinus arrhythmia. The specialist said that he was asymptomatic and was not concerned about his cardiac health, although periods in custody will involve periods of anxiety and stress, which may be a long-term concern, and if any trauma is inflicted on the defibrillator, then it may cause the device to malfunction or cease functioning. 28. Dr Burfitt, the general practitioner, notes that he has continued remote monitoring of his heart rhythm with downloads each night to his cardiologist. He has serious cardiac disease which will require ongoing monitoring and treatment and specialist recommended medication changes and review, depending upon the state of his health. 29. The evidence shows that there are proceedings in the Family Court, in which one of the issues is whether the offender is entitled to retain and operate his real estate business or whether it is sold or transferred to his former wife. There is a hearing of that matter in June 2019, and his solicitors assert that it would be desirable for him to be present at the interim hearing to provide them with instructions. 30. There are further references from Ms Richards, who speaks of his hard work, his commitment to his family and business life and his contributions to the community. There are further certificates from various community organisations in relation to his work in the community over years. There is not a great deal in issue between the Crown and Mr Russell in the helpful written submissions prepared by both counsel, and in their brief supplementary oral submissions today. 31. As to objective seriousness, although authorities such as McDowall v R [2019] NSWCCA 29 and Sharma v R [2017] NSWCCA 85 indicate that it is unnecessary for the Court to delineate where in a range any particular offence sits, the parties have agreed that it is of use in a case such as this to undertake that assessment, and I do so in the light of the submissions and the facts that have been put. 32. Mr Russell concedes that the offences committed against KB were aggravated within the meaning of s 21A(2)(k) Crimes (Sentencing Procedure) Act 1999 because they involved an abuse of his position of trust as her father. The touching occurred when he got into a bed with her, at night and, on one occasion, it is open to the Court to conclude that the offender gave his phone to her as a pretext for entering her room late at night, although I am not prepared to make that finding beyond reasonable doubt, it being unnecessary for the purposes of assessing objective seriousness. It suffices to note, as I did, that the facts demonstrate that on three occasions he went into her bedroom. The character of the assault, including the degree of physical contact, is of considerable significance. Here, the touching was on her vagina on top of her clothing. It occurred for some minutes on the first two counts and, on the third count, for about 20 seconds and was only stopped when her mother walked in. The offender sought to reassure her that what was happening was okay. The Crown acknowledges that given that the touching was on the outside of her clothing, this may be seen as less serious than if it was underneath her clothing and she was 15 years of age, which is towards the higher end of the age category for this offence. The Crown asserts that the offence is less than or below mid-range for offences of this kind, but it is certainly not at the bottom of the range, given the duration and the circumstances in which the offending occurred. It is common ground that an aggregate sentence of imprisonment will be imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999 and there will be some notional degree of accumulation given the fact that there were three separate offences involving that complainant. I accept Mr Russell's submission that there was no specific evidence that the offender sought to reassure his daughter that what was happening was okay. 33. As to HB2, the Crown accepts that the evidence of touching or squeezing him on the naked buttocks falls at the lower end of the range for these kinds of offences, particularly given the limited duration. However, the offences against him which involved touching his penis and bottom at the same time, that is counts 5 and 6 together, and 7 and 8 together, are more serious. They clearly made him feel uncomfortable and he told his father to stop, and on one of these occasions, the door had been locked and his father laughed. HB2 was only six or seven at the time, and the offences also involved an abuse of a position of trust, being an aggravating factor. There was skin on skin contact, albeit only for two seconds, and the nature of the touching was such that it caused HB2 to remove his hand and run away from his father. The offences do appear opportunistic, given that HB2 was already in a state of undress, and I am unable to find beyond reasonable doubt that the offender had locked the door on at least one occasion showing that he had turned his mind to offending at least moments before so and had time to reflect on it. There is no evidence of sexual gratification implicit in the offending, as Mr Russell submits. The Crown concedes that there should be some concurrency between counts 5 and 6 and counts 7 and 8, but some partial accumulation for the three episodes of offending, a submission which is accepted by Mr Russell. 34. As to MB, the Crown also accepts that they are below mid-range given the fleeting nature of the contact. They involve skin on skin contact and grabbing of the genitals for a few seconds only. Nothing was said during the encounters. These offences were also aggravated by virtue of the breach of trust, and MB gave evidence that he did not say anything to his father at the time as he did not know what his father would do. The Crown acknowledges that each of the offences were opportunistic, but that is qualified to a certain extent by the fact that the offence against MB occurred more than once and was a crime similiar to the offences against HB2. As Mr Russell notes, there is no suggestion of any threats or violence against any of the complainants. 35. Having made those observations as to objective seriousness, the finding as to objective seriousness in each case will be set out in a table to be provided at the conclusion of this judgment, which will also set out the indicative sentence and, given that there is a standard non-parole period, the indicative non-parole period for each case. 36. It is clear that the maximum penalty and the standard non-parole period are important guideposts in the sentencing exercise, and the Crown points to what was said in relation to s 61 in [243] – [251] in Van Ryn v R [2016] NSWCCA 1. There, Hulme J referred to what had been said by Latham J in GSH v R [2009] NSWCCA 214, namely "…it is difficult to justify a finding below the mid range for an offence under s 61M(2) constituted by the touching of the genitalia of a 9 year old girl" In the light of the submissions by the Crown in this case, that is no more than a general assertion about the particular facts of GSH. 1. In Van Ryn v R [2016] NSWCCA 1, reference was also made to observations which have been made on several occasions by the Courts as to the profound and long-term deleterious effects that child sexual assault offences have upon victims. As Johnson J said in SW v R [2013] NSWCCA 255, at [52], "Sexual abuse of children of very tender years will inevitably give rise to psychological damage emanating from (at least) the confusion in the young mind of the victim of abuse." 1. Without any criticism, I indicate that neither counsel have taken me to any particular case said to be a relevant comparator, although the Crown does agree that the decision of R v Stoupe [2015] NSWCCA 175 has some relevance to the sentencing process here, and I have taken account of the sentences imposed by the Court in that matter on the Crown appeal. 2. Mr Russell did not point to any particular mitigating factors, but it is useful to note that under s 21A Crimes (Sentencing Procedure) Act 1999, the offender did not have any record of, or significant record of, previous convictions. He was of previously good character, he is unlikely to offend, and he has good prospects of rehabilitation. 3. I must take account of the principle of totality when sentencing for multiple offences. I must evaluate, in a broad sense, the overall criminality involved in all of the offences, and ultimately come to an aggregate sentence which achieves an appropriate relativity between the totality of the criminality and the totality of the sentences. As Sully J said in R v Wheeler [2000] NSWCCA 34, "[There is] the need to ensure public confidence in the administration of criminal justice; and, in particular, to ensure that there does not emerge in the community at large a perception that there is not all that much to choose between the person who commits one or two offences, and the person who commits six or seven offences, for the reason that somehow or other they all manage to finish up with effective sentences between or among which there is hardly anything in practical terms to choose." 1. There are a number of propositions set out by Hall J in R v XX (2009) 195 A Crim R 38, which must be borne in mine when considering questions of totality and accumulation, and the ultimate issue to be determined is whether the sentence for one offence can comprehend and reflect the criminality for the other offences. If it can, the sentences should be concurrent, but if not, then the sentences should be partially accumulated. 2. In terms of assessing an ultimate non-parole period, I bear in mind the principles set out by Hulme J in Caristo v R [2011] NSWCCA 7 at [27], namely that "The non-parole period is the minimum period of actual incarceration that the offender must spend in custody having regard to all the elements of punishment, including rehabilitation, the objective seriousness of the offence and the offender's subjective circumstances" 1. I accept, although not conceded by the Crown, that there is a basis for a finding of special circumstances, as Mr Russell submits. The full range of subjective considerations are capable of warranting such a finding in this case. The offender will serve his first period of full-time custody, together with the documented medical problems and the accumulation involved in the sentencing, justifies a finding of special circumstances leading to a longer period of supervision on parole than under the statutory prescription. 2. Mr Russell's written submissions indicate that an appeal has been lodged against the jury verdict, and that a bail application may follow the conclusion of the sentencing proceedings, but that is not a matter of any relevance at the present stage. 3. The orders that I make are: 1. The offender is convicted of each offence. 2. I impose an aggregate sentence of imprisonment of 4 years, 6 months, to commence on 17 May 2019 and expiring on 16 November 2023. 3. I impose a non-parole period of 2 years, 8 months expiring on 16 January 2022. The offender is eligible for release to parole on that date. 4. The indicative sentences are: 1. Count 1 – 14 months; NPP 9 months 2. Count 2 – 15 months; NPP 10 months 3. Count 3 – 16 months; NPP 11 months 4. Count 4 – 6 months; NPP 4 months 5. Count 5 – 8 months; NPP 6 months 6. Count 6 – 12 months; NPP 8 months 7. Count 7 – 9 months; NPP 6 months 8. Count 8 – 13 months; NPP 9 months 9. Count 9 – 12 months; NPP 8 months 10. Count 10 – 12 months; NPP 8 months 1. I find special circumstances. Annexure 1 Sentencing Table (HAMILTON) (87.2 KB, pdf) Note – These extempore remarks were revised without access to the court file ********** 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: 07 August 2019