R v Br [1996] ACTSC 108 (31 October 1996)

SUPREME COURT OF THE ACT

R v. BR
No. SCC75 of 1996
Number of pages - 9
Criminal Law

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Criminal Law - acts of indecency with a young person - impact of sexual abuse on the child - impact of sexual abuse on the offender's family - purpose of punishment - protection of the child - deterrence - rehabilitation - mitigating factors - interests of the victim.

Crimes Act 1900, s429AB

R v Allpass (1994) 72 A Crim R 561

R v P [1992] FCA 626; (1992) 111 ALR 541
R v J (1982) 45 ALR 331
R v RKB, unreported, NSW CCA, Badgery-Parker, McInerney and

Loveday JJ, 30 June 1992

R v Glen, unreported, NSW CCA, Simpson J, 19 December 1994
R v Burchell (1987) 34 A Crim R 148

HEARING

CANBERRA, 29 and 31 October 1996
31:10:1996

Counsel for the Prosecutor: Ms M Doogan

Instructing solicitors: Director of Public Prosecutions

Counsel for the Offender: Ms A Tonkin

Instructing solicitors: David Claxton

ORDER

THE COURT ORDERS THAT:

1. On the first count, act of indecency upon a minor, you are
sentenced to six months imprisonment.

2. On the second count, you are sentenced to six months
imprisonment.

3. On the third count, the act of indecency, being worse than
the others and a repeated offence, you are sentenced to
12 months imprisonment.

4. Each of these sentences are cumulative but are suspended and
you are directed to be released forthwith upon you entering into
a recognisance, self in the sum of $3,000.00 to be of good
behaviour for a period of five years from today upon condition
that during that period you accept the supervision on probation
of the Director of Adult Corrective Services (or nominee) and
obey the reasonable directions of that person, including but not
limited to,
. Continuing therapy and counselling with Mr Alan Jones, or
substitute therapist approved by the Director of Adult
Corrective Services, until he considers no further treatment is
required;
. Continuing participation as required by Ms Z Kalenuik, or
substitute therapist approved by the Director of Adult
Corrective Services, in relation to KE;
. Continued participation in Family Management Plan as agreed
with Z.

5. All names be suppressed.

DECISION

HIGGINS J The offender, BR, aged 34 years, is charged with three counts alleging acts of indecency in relation to his daughter, KE. Those offences occurred between 1 January 1994 and 30 April 1996. He is also charged that between those same dates he maintained a sexual relationship with KE.

2. The first act of indecency actually occurred in mid-1994. The offender, affected by liquor, entered KE's bedroom and placed his mouth on KE's genital area. It was, he said, "a little kiss". He apologised immediately and left.

3. The next specific charge occurred in August 1995. Again, he entered KE's bedroom. He pulled down KE's underpants and stroked the area of her upper leg and genital area.

4. The third matter was the last occasion when an act of indecency occurred. In April 1996, he again entered KE's bedroom and pulled down her underpants. He touched her with his finger in the vaginal and anal areas. He pressed his finger against it but did not penetrate either cavity.

5. He then said to his daughter that she should not let him do such things. He apologised to her and attempted, so he thought, to reassure her.

6. KE later told her mother what had been happening and the offences then came to light.

7. In addition to those occasions, the offender admitted to 12 or so other similar acts, although it must be said that those other occasions were not of a more distressing or intrusive nature than the second specifically detailed incident.

8. Nevertheless, the very repetition of such conduct in relation to a child aged between seven and nine, aggravates the seriousness of the conduct beyond the facts of each isolated occasion. Indeed, had there been only one occasion of interference of the kind alleged, it could have been passed off as an accidental touching. It was the repetition which contributed most to the impact on the victim.

9. When confronted by his wife with KE's disclosure of his misconduct, the offender readily admitted his guilt. He was charged and remanded in custody for four days before being released on bail.

10. He has been forbidden to see KE since 24 May 1996, but only by virtue of either being in custody or bail conditions.

11. Before evaluating the matter further it is, I think, useful to consider the evidence relating to the offender's background relevant to the reason for these offences occurring and his prospects for rehabilitation. It is equally important to consider the evidence of the impact of the offences on KE and on her prospects for the future.

The offender's history and prospects
12. The offender has expressed shame and remorse for his conduct towards KE. He seems to have insight into his own defects and the harm he has inflicted upon her.

13. His family and previous history is detailed in the pre-sentence report as well as the reports of therapists, Mr Alan Jones, a clinical psychologist, and Professor McConaghy, a Professor of Psychiatry.

14. The dynamics of the offending behaviour seems to me to correspond with that outlined and explained by Mr Frank Young, a Community Corrections Officer for ACT Corrective Services.

15. Of particular concern in this history is a confession by the accused that he sexually molested his younger sister then aged nine when he was then 14. That molestation continued, on and off, until he was 21.

16. That does not seem to support Mr Young's concern that whilst the offender is not a paedophile, in the clinical sense, he does present a risk of recidivism. That risk can be reduced, Prof McConaghy says, to "negligible" levels by ongoing therapy.

17. That therapy is presently being administered by Mr Jones in consultation with Prof McConaghy.

18. I am satisfied that the offender is willing and, indeed, eager to undertake therapy. I share Prof McConaghy's conclusion that his prospects for successful rehabilitation are excellent.

19. Although it is a significant reservation, the evidence is that, but for the sexual misconduct charged and admitted, the offender is of unblemished character and a good family man.

20. Indeed, that is exemplified by the attitude of KE towards him.

The impact on KE and her future prospects
21. There is no "victim impact statement" within the meaning of s429AB, Crimes Act 1900. There was a report from a clinical psychologist who had interviewed and treated KE. It follows that there was no need for the consent of the victim to the tender of that report, though Z did consent on KE's behalf. I conclude from R v P [1992] FCA 626; (1992) 111 ALR 541 that such material, if properly prepared and tendered, is, nevertheless, to be taken into account. The offender consented to the tender of the report in question.

22. The report was prepared by Ms Zena Kalenuik who identified KE's present and major source of distress as "not being allowed to see my Dad". Ms Kalenuik considers that distress to be a major impediment to further therapy. There is no doubt that therapy is needed. It is a consequence of the offender's conduct, as Ms Kalenuik perceives it, that KE is and was withdrawn and unhappy. She felt some unwarranted responsibility for the sexual abuse. She cannot confront her feelings of lowered self esteem, fear and anger without the opportunity to interact on a normal level with the offender. There are some anxieties and concerns which have not affected her by reason of the fact that the sexual abuse was not as invasive or as close to sexual intercourse as in some instances.

23. Nevertheless, her relationship with her younger brother and sister and her behaviour generally show concerning signs.

24. Ms Kalenuik concluded,

At this stage it is not realistic to separate long-term effects
of the sexual abuse and long-term effects of the sudden and
continued separation of (KE) and her father, based on my
therapeutic contact with (KE). Currently (KE) is responding most
strongly to the sudden removal of her father from the family
home as well as denial of access. I phoned (KE) one afternoon
and she answered the phone sobbing. She told me, heaving with
emotion, "I'm tired of it. I just want to see my Dad". She has
been effected (sic) by the sexual abuse, however in my opinion
she has also been affected by not being able to communicate with
her father. Long term effects of the sexual abuse will become
clearer once therapy as a family can begin, as will (KE's) own
recovery.

25. In her oral testimony, Ms Kalenuik further reinforced the view that KE cannot begin to deal with and recover from the effects of the offender's conduct until she has re-established her relationship with him. Of course, it is possible that thereafter she will reject him. However, it remains, in her view, vital that there be joint therapy with KE and the offender as soon as practicable.

The evidence of Z
26. Z, having initially been shocked and horrified at the offender's conduct, is desirous of attempting to re-build the family unit. She seems to be a strong and capable woman realistically appraising the family situation albeit still willing to continue her marriage. She, nevertheless, gives first priority to KE's well-being and is, understandably, anxious to avoid the offender's enforced removal to custody.

27. Although it is not central to her concerns, as I assess them, it is, nevertheless, undeniable that the family will suffer extreme financial hardship if the main breadwinner, the offender, is gaoled. Added to this, there is no extended family in Australia and, for reasons referred to in the reports I have mentioned, the family has no other support network of friends.

28. It will be immediately perceived that this is a case where the usual punishment would certainly punish the victim, as well as the victim's family, as severely as the original abuse has affected the victim herself.

29. It is necessary, therefore, to consider carefully, the purpose of punishment and the particular factors affecting it in the present case.

The purpose of punishment
30. The general purpose of punishment in cases such as the present is the protection of the child victim and potential other victims whether of this or other offenders.

31. It is, I think, accepted that such purpose will usually be served only by an immediate custodial sentence.

32. There is a perceived need to deter sexual predators.

33. Whether general deterrence operates to affect other potential offenders, given that such molestation of children is abnormal behaviour indulged in without thought of discovery, is a moot point. Nevertheless, the community is entitled to feel that an offender has received his just deserts in the circumstances.

34. That is not to be equated with vengeance. The community will be taken to understand when leniency, or mercy, is appropriate, though in the short term there may be misgivings.

35. The case of R v Allpass (1994) 72 A Crim R 561, indicates that there may be "exceptional cases" such as where offenders suffering intellectual handicaps have been treated rehabilitatively. There are other recent examples in the Territory of such cases.

36. There is a particular interest in ensuring that an offender, where possible, is rehabilitated. That is essential to render unlikely further offending behaviour.

37. However, as rehabilitation is only one aspect of sentencing, it may be necessary to impose condign punishment, even though that may jeopardise the offender's recovery. The need for rehabilitation may need to be left to a period after release from an appropriate period in custody.

38. In this case, the offender's prospects are good, they will be seriously damaged by service of a custodial sentence.

39. However, I would not be moved in this case to do more than mitigate the length of such a period in custody by reason of that consideration.

Hardship to family
40. That is clearly likely. It is most regrettable. However, the effective cause of it is not this Court's response to the offender's crimes but those crimes themselves.

The offences themselves
41. The conduct is outlined already. It involved a pattern of conduct and the abuse by a male parent of a position of trust in respect of a helpless child. It involved a despicable and cowardly course of conduct. The child's protector, her guide and mentor, abandoned his proper role to exercise secret power over her to alleviate his own feeling of inadequacy.

42. The community would, I think, even after considering the offender's history and remorse, view him with disgust and contempt. It would be inappropriate to give effect to his interests otherwise than by a term of custody appropriate in the circumstances, mitigated by a desire to minimise damage to the family and recognition of the difficulties child molesters have in prisons.

The interests of the victim
43. Whilst the long-term damage to the victim is presently unknown, it is significant that, unlike the situation in R v P (supra) the victim has not been driven from the home though she is separated from her father. Whilst his desire to resume family life is of little weight, though relevant, the victim's position cannot be so lightly dismissed.

44. The prospects of family reunion was considered in R v P. It was the lack of any prospect of reunion including the victim that led the appeal court to set aside a wholly suspended sentence and substitute a sentence suspended after nine months.

45. The release immediately of that offender was not seen to confer any benefit on the victim. It should be noted, too, that the acts of indecency committed by P were much more intrusive and degrading than the acts of this offender, reprehensible though they are.

46. In R v J (1982) 45 ALR 331, by way of contrast, the offender had committed sexual acts upon or with the victim since she was nine until age 14. On at least two occasions there had been fully penetrative sexual intercourse. The sentencing judge, nevertheless, fully suspended a prison sentence for two reasons, per Toohey J at 333,

The first was the dependence of the family on the respondent,
particularly as Mrs J was not a person of strong character and
would have grave difficulty herself in holding the family
(including the victim) together. The second was that with
goodwill, perseverance and the advice of psychiatrists and
social workers, there was a reasonable prospect that the family
might be restored to normality, a prospect that was probably
doomed if the respondent were given an immediate custodial
sentence.

47. Toohey J encapsulated the importance of that consideration in the following passage, at 338,

What is important is not simply that the respondent's family
will suffer if he is imprisoned; such a situation arises daily
in the life of the courts. It is the fact that the victim is
herself part of that family and her future must be considered.

48. Gallop J agreed with the dismissal of the Crown's appeal. Davies J dissented.

49. That was simply a decision that the sentencing discretion had not miscarried. It was, in my view, a border-line case. I would myself have taken the view that given the nature and extent of the offender's crimes, some custodial time would have been appropriate.

50. There is also the attitude of the victim. In R v RKB, unreported, NSW CCA, Badgery-Parker, McInerney and Loveday JJ, 30 June 1992, Badgery-Parker J at 5 stated,

If one were to take account as a mitigating factor the wishes of
a victim that punishment of a particular kind be not imposed,
logic would demand that the same regard be paid to the wishes of
a victim that a penalty of the utmost severity be imposed. The
element of objectivity would depart from the sentencing process.

51. Whilst the admonition towards objectivity is to be heeded, sentencing often defies logic in favour of justice. It is not regarded as just to punish an offender whose negligent act fortunately caused little harm as severely as an offender whose similarly negligent act caused extensive harm. Yet logically, each act is as reprehensible from the viewpoint of the offender's conduct as the other. Forgiveness may, however, in cases such as domestic violence be of little weight. In other cases, it may have more impact.

52. I would support the view of Simpson J in a later case in the Court of Criminal Appeal, R v Glen, unreported, NSW CCA, 19 December 1994, where her Honour said,

I do not suggest that forgiveness by a victim can never be a
relevant factor in the sentencing decision. It has been so
regarded in the past. ... The converse, of course, cannot so
readily be accepted. A victim or family of a victim calling for
vengeance could create special difficulties for courts, and it
is, in my view, generally undesirable that the sentencing
process be subjected to distraction from a consideration of what
is, in an overall sense, a proper result.

An imbalance or one sidedness is thereby immediately created; a
merciful attitude by a victim, or victim's family may be
material, a vengeful attitude cannot or should not be. This
imbalance is common to all offences in which there is an
identifiable victim, and is only one of a number of reasons why
caution should be exercised in the consideration of such
evidence.

Conclusion
53. I have to bear in mind all of the above considerations. If the present position of the victim was to remain unchanged, I would feel obliged to mitigate my conclusion that an immediate custodial term be imposed given the attitude of and the interests of the victim.

54. But for that consideration, I would impose a penalty of two years imprisonment on the fourth count with a non-parole period or suspension of the balance of sentence after nine months.

55. What I do propose to do is to sentence the offender finally on the first three counts and adjourn the sentencing proceedings on the fourth count.

BR stand.

56. On the first count, act of indecency upon a minor, I sentence you to six months imprisonment.

57. On the second count, I also sentence you to six months imprisonment.

58. On the third count, the act of indecency being worse than the others and a repeated offence, I sentence you to 12 months imprisonment.

59. Each of those sentences would be cumulative but I suspend the operation of each sentence and direct your release forthwith upon you entering into a recognisance self in the sum of $3,000.00 that you be of good behaviour for a period of five years from today upon condition that during that period you accept the supervision on probation of the Director of Adult Corrective Services (or nominee) and obey the reasonable directions of that person, including but not limited to,

. Continuing therapy and counselling with Mr Alan Jones or
substitute therapist approved by the Director of Adult
Corrective Services, until he considers no further treatment is
required;
. Continuing participation as required by Ms Z Kalenuik or
substitute therapist approved by the Director of Adult
Corrective Services, in relation to KE;
. Continued participation in Family Management Plan as agreed
with Z.

60. That disposition does not, in my view, impose sufficient punishment, though it is a real penalty. I will impose such a penalty when the last count is finalised.

61. You should be in no doubt that I have not ruled out, nor will I necessarily refrain at that time from a full-time custodial term. If that deferral of consideration is perceived as a further penalty, so be it. You deserve it.

62. I have not ruled out periodic detention and that may seem, in six months time or thereabouts, more appropriate than it now seems, although this is not a case where the conduct itself would necessarily rule out such an option in contrast with the case of R v Burchell (1987) 34 A Crim R 148.