STATE OF TASMANIA v NCG 26 APRIL 2019
COMMENTS ON PASSING SENTENCE PORTER AJ
The defendant, Mr G, has pleaded guilty to one count of maintaining a sexual relationship with a young person. The criminal conduct occurred in the period between 1 January 1983 and 19 June 1985. The victim, to whom I will refer in the usual way as the complainant, was his daughter, aged 12 at the start of that period. The defendant was then about 32 years old. The complainant has two siblings; a brother two years younger, and a sister who is eight years younger. The sexual offences relied on to make out the crime were committed mostly in the family home but also at the defendant’s workplace. The first identified occasion happened in a bedroom shared by the girls. The complainant was in the top bunk while her sister was asleep in the bottom bunk. The defendant came into the bedroom, removed the complainant’s underpants and performed oral sexual intercourse on her causing her to climax. At the time this conduct was neither aggravated sexual assault nor sexual intercourse as it now is, but indecent assault. The next identified occasion happened in a shed at the back of the home. The defendant lifted the complainant onto a work bench, adjusted her clothing and attempted to penetrate her vagina with his penis but was unable to do so. He was wearing a condom at the time. As described by the Crown, that is attempted sexual intercourse with a young person, although the equivalent substantive crime was then defilement. The next two occasions each involved actual vaginal sexual intercourse. The first event happened after the children made teepees in the backyard of the home in which to sleep. The complainant was in one, while the two other children were in the other. In the evening, the defendant went to where the complainant was. He pulled his pants down around his ankles and had vaginal sexual intercourse with her while wearing a condom. The complainant described it as painful and she believes that he ejaculated. The second incident of this type happened at the defendant’s workplace where he had taken the complainant to help her with a science assignment. He led her to a stretcher bed after locking the doors to his office. He removed parts of his clothing and hers, put on a condom and had vaginal sexual intercourse until he ejaculated. The complainant recalls that there were other occasions of sexual offending but is unable to recall the specifics. The Crown case is that this offending ranges from kissing on the mouth to vaginal sexual intercourse in the ordinary sense, and that these things happened about once every two to three weeks. The complainant eventually realised what was happening with her father, was wrong. She started to avoid him and left home when she was 16 years old to go to a boarding school. She returned home in her early 20s and told her mother that she had had sex with the defendant. Her mother confronted the defendant, telling him what she had been told. Apparently, while not saying much at all, he did not deny the allegations. In July 2015, the complainant complained to the police in New South Wales. Shortly after, the defendant’s wife and other daughter asked him if the allegations were true, and he effectively admitted they were, saying that he had regretted it ever since. On 11 February 2017 the defendant was interviewed by Victorian police, as he was then living in that State. He told police that he had been confronted by the complainant about six to eight months previously and had admitted his conduct to her. In the course of admitting to a number of the occasions as identified by the complainant, the defendant admitted to police two further occasions which are relied on by the Crown. The first of these involved massaging the complainant’s vagina when she was 12, and he was bathing her. The second is an act of vaginal sexual intercourse when the complainant was 13. The defendant said that while his wife was in the shower he put the complainant into his bed, had sexual intercourse with her but stopped when she complained that it hurt. The defendant admitted having sex with her three or four different times which included the occasion at his workplace. He denied an act of oral sex in girls’ bedroom, but admitted to such an act while the complainant was in his bed. Consistent with the complainant’s account that he told her at one stage that he was doing this so that she knew how to be with men, he claimed to police to have been educating the complainant on the subject of sex, but accepted it was “probably not his role”. He said he had guilt hanging over him because he knew he had done the wrong thing.
I have a victim impact statement of the complainant. Some of the important features are that the defendant’s conduct has caused the complainant feelings of hopelessness with low self-esteem. That caused her to turn to alcohol in her late teenage years. Sexual relationships with men have been a problem. The alcohol abuse worsened as did her school results. She did not gain the results she needed to enrol in tertiary education. She has two failed marriages, which she puts down to her personal difficulties revolving around trust issues and sex within the marriage. When she had to move back in with her parents, this was a psychological and emotionally difficult time for her, and she moved out as soon as possible. Her emotional difficulties have manifested themselves in psychosomatic back pain which has been disabling and involved detailed medical examinations. She believes she has essentially returned to a normal life but still suffers from such things as nightmares, sleeplessness, anxiety, depression and flashbacks. When she was in her 20s she told family members of what had happened, but seems not to have attracted any understanding, and, most regrettably, her mother and siblings have ostracised her, and she is isolated. This is to the extent of having been denied access to her nephews and niece.
The issue of delay has some role to play in the sentencing process. As I have said, the complaint was made to police in July 2015 before the interview in February 2017 in the State in which the defendant was then living. The file was referred to the Tasmanian DPP in November 2017, but it was not until July 2018 that consent was given for this charge to be laid. The defendant was arrested in Victoria on 4 December 2018, extradited to Tasmania where he appeared before a magistrate on 5 December 2018 and granted bail. The indictment was filed on 11 April 2019 and he pleaded guilty the next day.
The defendant is now 68. But for this offending, he is of good character with a good work history. That should be recognised, but it is not uncommon in cases such as this. He has been a productive contributor to the community. Over many years he has variously worked in industries such as shearing, mining, mechanics and lastly farming, before retiring a few years ago. His wife did some occasional work but he has essentially been the sole financial provider for his family. Clearly, the defendant’s levels of criminality and moral culpability are very high. The victim of the crime was his young daughter. I note the absence of some aggravating factors. There was no force beyond what was necessary to do the relevant acts, although the defendant used his position of authority and trust, and exploited the complainant’s vulnerability. There does not seem to be any suggestion of threats or incentives offered not to tell what was happening. In terms of mitigation, I am told that the defendant is genuinely remorseful. This is relevant to factors of personal deterrence and rehabilitation. It is said that remorse is evidenced by a number of things. He pleaded not guilty to the complaint on 10 December 2018, but I am told that was because of uncertainty about the facts alleged, and that an early indication of a plea of guilty was given. He has pleaded guilty to the indictment. Beforehand, he had fully co-operated with police and disclosed additional incidents about which the police did not seem to be informed, and which were not put to him. There are the expressions of regret and guilt made to his wife, and in the interview. One aspect of this relates to the issue of an apology by the defendant to the complainant. As part of the Crown facts, I was told that when she was about 24, her marriage ended and she had a young child. Her mother asked if she would move back in with the family; the complainant said she could not move unless the defendant apologised for what he had done. The complainant’s mother told the defendant of this, and the defendant told her that he had apologised, something, I was told, the complainant disputes occurred. I was told she did move back home but “cannot recall receiving an apology”. In his police interview, the defendant asserted that he had apologised to the complainant some years later, for what had happened. In submissions, the defendant’s counsel maintained the assertion that he had apologised many years ago. I was not asked to formally resolve the issue. Even ignoring this apology issue, and despite his claim of a sex education role, I am satisfied that the defendant is remorseful, as distinct from having feelings of self-pity for having been found out. In the circumstances of the case, that has some, but no great, weight. I am inclined to think, given the way the facts were put and what the defendant told police, that an apology was given some 10 years after the events but, put in context, I think it adds little. The plea of guilty itself has utilitarian benefit of some significance, and due weight must be given to it. To the extent that her truthfulness was ever an issue, it provides the complainant with final and authoritative vindication. Importantly, it has obviated the need for her to give evidence. Lastly, the law operates so as to provide the defendant with some moderation of penalty because of the delay in the process; in particular from when he was interviewed, none of which is attributable to him. However, in these types of cases, the fact that the offending was a long time ago is not of itself mitigatory.
The law is that person sentenced for this crime on the basis of three or more identified occasions of sexual offending should ordinarily suffer the same penalty as if the offences were charged separately, subject to moderating factors of proportionality and totality. If the evidence shows that the extent of the crime goes beyond identified occasions, it is often not possible to do more than make an estimate of that extent, and the court takes into account that the identified offences were part of ongoing abuse. In this case, there are six identified occasions relied on, four of which involve vaginal sexual intercourse, with an attempt to commit the same offence, and one incident of what was then indecent assault. I am satisfied that these formed part of a sustained course of conduct engaged in every few weeks, involving a range of offending from less serious forms of indecent assault to conduct similar to the identified occasions.
Mr G, because of the need to protect children and young people, your serious criminal conduct calls for a clear and robust response to serve as a deterrent. Your daughter was entitled to look to you for safety and nurturing. By a persistent course of sexual abuse, you gravely betrayed the trust she was entitled to place in you. You deprived her of the proper nature and benefits of late childhood and early adolescence, and caused pronounced long-term disabilities and difficulties. I accept that the need for personal deterrence is not a major factor in your case, but condemnation of what you did is important. At the same time, the law allows for some leniency for the reasons I have explained. You are convicted and sentenced to eight years and six months’ imprisonment to commence on 11 April 2019, to take into account your remand pending sentence and the one day earlier spent in custody. I order that you not be eligible for parole until you have served one half of that term. I am required to make an order the Community Protection (Offender Reporting) Act unless I am satisfied that that you do not pose a risk of similar offending. I cannot be so satisfied, but I think the period involved does not need to be lengthy. I order that your name be placed on the register, and that you comply with the obligations under that Act for a period of three years upon your release.