R v Rb [1996] ACTSC 85 (2 August 1996)

SUPREME COURT OF THE ACT

THE QUEEN v. RB
No. SCC51 of 1996
Number of pages - 14
Criminal Law

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Criminal Law - sentencing - sexual offences - ss428Y and 429AB of the Acts Revision (Victims of Crime) Act 1995 - victim impact statements - matters the court is required to take into account in sentencing - comparable sentences for the offence of sexual intercourse with a young person - periodic detention.

Words and Phrases - "victim" - "harm".

Acts Revision (Victims of Crime) Act 1995, ss428Y and 429AB

Crimes Act 1900 (ACT), ss92E, 92EA, 92K, 92L, 345, 428Y and 429AB
Bail Act 1992 and the Parole Act 1976
Crimes Act 1900 (NSW), S447C
The Community Law Reform Committee of the Australian Capital Territory, in

Report No. 6 "Victims of Crime", pars 128, 132, 133
Periodic Detention Act 1995, s4(1)

R v Chalmers (1995) 58 FCR 563
R v P [1992] FCA 626; (1992) 39 FCR 276
R v McClymont, unreported, NSW CCA, Gleeson CJ, Mahoney JA, McInerney J, 17

December 1992
R v Herring, unreported, WA CCA, Pidgeon, Seaman and White JJ, 22 September 1994
R v Jones, unreported, SC Qld CA, McPherson, Williams and Derrington JJ, 4 December 1992

R v Gillespie, unreported, CA No. 168 of 1992, 15 July 1992
R v Clulow, unreported, NSW CCA, Gleeson CJ, Lee CJ at CL and Smart J, 6

March 1991
Crisp v R, unreported, SC Tas, Cox, Crawford Zeeman JJ, 19 December 1990

HEARING

CANBERRA, 25 July 1996
2:8:1996

Counsel for the Crown: Mr K. Hempenstall

Instructing solicitors: Director of Public Prosecutions ACT

Counsel for the Accused: Mr B. Collaery

Instructing solicitors: Bernard Collaery and Associates

ORDER

THE COURT ORDERS THAT:
1. On the first count (act of indecency - 96/2536), a conviction be recorded.
2. On the second count (act of indecency - 96/2399), a conviction be recorded and five detention periods be imposed.
3. On the third count (sexual intercourse with a young person - 96/2533), a conviction be recorded and 26 detention periods be imposed.
4. On the fourth count (act of indecency - 96/2535), a conviction be recorded and 13 detention periods be imposed.
5. On the fifth and sixth counts jointly, convictions be recorded and 52 detention periods be imposed.
6. Those detention periods are to be served concurrently.
7. On the seventh count, (act of indecency - 96/2400), in all the circumstances of that offence and the other offences dealt with, the offence be proved but no conviction be recorded and no further penalty be imposed subject to the offender entering into a recognisance, self in the sum of $500.00 to be of good behaviour for 18 months and during that period, accept the supervision on probation of the Director of Adult Corrective Services or nominee and obey the reasonable directions of the Director or nominee.

DECISION

HIGGINS J On 23 December 1995, the offender's brother, AB, unexpectedly arrived from Brisbane. He had been experiencing extreme matrimonial problems and severe financial difficulties.

2. The offender and his wife had five children and she was suffering post-natal depression following the birth of her youngest child 18 months previously. She was improving but still not her normal self when the brother and children landed on the offender's doorstep. With four adults and eleven children in the house, the stress must have been horrific.

3. Further, the offender and his brother had not been close. Indeed, it was the first time the offender had met his nephews and nieces.

4. The two older girls, DB (date of birth 8 January 1982) and CB (date of birth 16 March 1983), were clearly craving attention. Their own parents were obviously pre-occupied with their personal problems. The two girls were permitted, tacitly at least, to smoke cigarettes and drink alcohol, if they chose.

5. The offender's business was that of a computer consultant. He had an office in the home. He and DB found they had many interests in common. DB was described as being both physically and intellectually mature. She and the offender commenced writing affectionate poems and notes to each other.

6. At this time, the offender was, and still is aged 37 years (date of birth 12 August 1958). He clearly believed, by 10 February 1996, that he was in love with DB. She felt the same way towards him. It is clear that the younger sister, CB, was jealous of this relationship also imagining herself in love with the offender. It is my impression that this was motivated by a desire to have what she took to be the mature and satisfying relationship her sister was having with the offender.

7. On 29 December 1995, AB and the children returned to Brisbane. There was an attempt at reconciliation. A reference was made to 'a court case'.

8. On 9 January 1996, SB and the girls arrived. There were unsuccessful attempts to find accommodation. They then took a bus to Sydney to meet the offender's brother. He did not turn up. The offender received and reacted to distressed phone calls from a train station in Sydney. He went to Sydney to search for them. Eventually he located five of the six children, including DB and CB.

9. They returned to Canberra without either of their parents. Thus, the offender and his wife had to care for at least 10 children, enrolling them in local schools, by the end of January 1996.

10. About 3 February 1996, the brother and his wife, still on the verge of separation, joined the household. By then all 11 children and the dog were in residence.

11. At this time the offender's wife was suffering such stress that she warned she would be able to take it no longer.

12. Finally, accommodation was found in Oaks Estate. It was to be taken up on 24 February 1996.

13. It was during the period 10 February 1996 and 24 February 1996, before the second family moved out, that the relationship between the offender and DB became overtly sexual. The first contact involved a passionate kiss. It was initiated by the offender, although DB was clearly a willing participant. This conduct was repeated, although not the subject of separate charges, up to 22 February 1996.

14. At one point in that same time frame, CB came up to the offender whilst he was working on his computer and initiated a passionate kiss. This was, like those with DB, with open mouths and tongue contact.

15. That kind of conduct, if performed without consent, would clearly be regarded as an act of indecency. With consent being no defence in relation to young persons such as DB and CB, it follows that the offender is right to acknowledge his guilt in respect of his conduct with those girls.

16. His guilt is further aggravated by the age difference between the offender and the girls and, of course, his blood relationship to them. Had the offender's behaviour ceased at this point, the nature and quality of his indecent conduct, whilst reprehensible, would have been such as to permit a non-custodial response.

17. Unfortunately, it did not end there, though it did so far as CB was concerned.

18. There was further domestic upheaval.

19. On 22 February 1996 there was a major quarrel between the offender's brother and the latter's wife. DB and CB ran away. AB, depressed and distraught, disappeared. The offender, genuinely concerned about the girls, engaged in a frantic search for them. They eventually returned. However, they had searched without success for AB.

20. On 24 February 1996, the brother's family moved into their accommodation, a house with granny flat in Oaks Estate. AB then reappeared.

21. There had been fairly constant contact between the offender and DB up until this time. DB took up residence in the granny flat.

22. By arrangement with DB, on 4 March 1996, the offender visited her at the flat. He did so without anyone else knowing. They engaged in what was described as "heavy petting". They fondled each other's sexual organs resulting in the offender ejaculating.

23. This is the second count against him.

24. The third count, alleging sexual intercourse, occurred during a time when the offender's family was holidaying in Victoria. They went to his home where he says, "heavy petting" took place. That was on 9 March 1996. There was some slight penetration by the offender of DB's vagina. It was, as were all the other sexual acts, fully consensual.

25. The fourth count alleging a further act of indecency occurred between 11 and 14 March 1996. The offender visited DB at her flat. Again, he ensured that her family were unaware of his visit. This was also described by him as including "heavy petting", though there was no penetration.

26. The fifth and sixth counts relate to events on 15 and 16 March 1996. The offender's family was still holidaying. The offender picked DB up by arrangement. On these days sexual intercourse occurred several times.

27. DB returned home to Oaks Estate on 17 March 1996 about lunch time.

28. Then, on 17 March, DB and CB decided to run away to Queensland. They contacted the offender who persuaded them to stay. He took them to his home and next day obtained their agreement to go back home. He then drove them home.

29. The girls had, by then, been reported missing. The offender then drove to Victoria to collect his wife and children, returning on 19 March 1996.

30. Not surprisingly, after going missing and then returning, the girls were the subject of some official concern. At a session with a school counsellor, DB revealed the fact that she had been having an "affair" with her uncle, the offender. At that stage, she seemed neither to be ashamed of nor to regret that "affair".

31. Not surprisingly, AB rang the offender suggesting they talk. Both the offender and DB met with him.

32. His reaction was, to say the least, somewhat mild. He was "concerned" but as, at that stage, both the offender and DB insisted that they were "in love", he seemed almost accepting of that situation. DB's mother was much less so.

33. However, on that day and the next, the offender had to face the disclosure of the affair to his wife. He then began to see the events from 9 March until then in the harsh light of reality. He asked his wife to talk to DB and explain that she held him and not her responsible for what had happened. He began to realise the dangerous folly he had committed.

34. The next day, his remorse led him to contemplate suicide. He began, however, to reassess his life and sought reconciliation with his Church. He set about rebuilding his relationship with his wife.

35. He was at all times well aware that his conduct with DB was morally, as well as legally, wrong.

36. The offender was interviewed by Police on 27 March 1996. He made a full and frank disclosure of his guilt. There were some details of some events, though few in number, where his account differs from that of the two girls. The Crown accepts that in those respects I should prefer the version given by the offender to Police. That version was verified on oath before me by the offender. Accordingly, in the absence of any adverse view of his veracity, I am bound to accept his version of events.

37. It is only fair to point out, that although I have statements made by DB and CB, I have not seen or heard them give evidence.

38. This raises the question of the role and weight to be assigned to those statements.

39. By virtue of the Acts Revision (Victims of Crime) Act 1995, ss428Y and 429AB were inserted into the Crimes Act 1900 (ACT). As the name implies, those provisions were intended to deal with improving the position of victims of crime in the sentencing process. Other provisions amended the Bail Act 1992 and the Parole Act 1976.

40. The intent of ss428Y and 429AB was to provide for the use of victim impact statements in sentencing proceedings. Similar provisions had been introduced in New South Wales in 1987 (s447C, Crimes Act 1900 (NSW)).

41. The definition of some terms are important. "Victim" is defined under s428Y, relevantly to mean,

(a) a person (in this definition called the "primary victim") who
suffers harm -
(i) in the course of, or as the result of, the commission of the
offence;
...

42. The expression "harm" is defined by s429AB. It is expressed as follows,

(4) In this section -
...
"harm" includes -
(a) physical injury;
(b) mental injury or emotional suffering (including grief);
(c) pregnancy;
(d) economic loss; and
(e) substantial impairment of rights accorded by law.

43. The term "harm" used in s428Y is not defined. The above definition is for the purposes only of s429AB.

44. There can be a "victim impact statement" only in respect of a person who is, in truth, a "victim". It is to be taken into account, pursuant to s429AB(1)(a) only insofar as it contains "particulars of any harm suffered by the victim as a result of an offence".

45. That has to be read in the light of s429A(1) which specifies matters the court is required to take into account in sentencing. Sub-section (d) provides.

Where the personal circumstances of any victim of the offence were
known to the offender at the time of committing the offence -
those circumstances.

46. There is another limitation. There is no doubt that a person who aids and abets another to commit an offence may, as a result of its discovery or otherwise, suffer harm as defined in s429AB(4). Nevertheless, I would not consider such a person to be a "victim of crime" for the purposes of s429AB or the Criminal Injuries Compensation Act.

47. In the case of an offence such as is created by s92E (sexual intercourse with young person) or s92K (act of indecency with young person) of the Crimes Act 1900 (ACT), consent, even though present, may be so tainted by persuasion, exploitation or other factors so as to enable the young person concerned to be aptly described as a "victim".

48. It should be emphasised that neither of the young persons in this case lacked the intelligence or maturity to understand what they were doing. They were in every sense deliberately and knowingly concerned in the offences against s92E and/or s92K in which they participated. They are equally liable to be prosecuted and punished, see s345 Crimes Act. That is not to say that they should not be regarded as children "at risk". They were. However, it would be unfair to blame the offender for that.

49. The impact of the offences upon the two young persons is a relevant matter. However, the effect thereof cannot be used adversely to the offender insofar as it is a consequence of their own unlawful behaviour even if that behaviour was influenced by their own dysfunctional family circumstances.

50. Further, as was noted in R v Chalmers (1995) 58 FCR 563, it is the impact of the offence or offences which should be considered, not matters indirectly arising from the disclosure thereof.

51. In R v P [1992] FCA 626; (1992) 39 FCR 276, a Full Court of the Federal Court, whilst approving of the consideration by a sentencing court of "victim impact" material, insisted that it was the duty of the prosecution to ensure that it is cogent and fair.

52. At 281, the Court (Burchett, Miles and O'Loughlin JJ) said,

It is essential, however, that the material be presented in such a
way that the prosecuting authority will not only not be seen to be
promoting the interests of the victim at the expense of the
interests of justice, but also the reality will be quite
otherwise. Vengeance is not to be equated with justice. And the
understandable feelings of a victim or a relative of a victim
must not be allowed to move the court beyond the way of justice.

53. A sentencing court would be acting unjustly if it imposed, instead of the "just and appropriate" sentence required by s429(1), a sentence which persons directly affected by the offence, whether co-offenders or victims or the relatives and friends of a victim, might, out of an understandable desire for vengeance, regard as satisfactory to them.

54. The Community Law Reform Committee of the Australian Capital Territory, in Report No. 6 "Victims of Crime", supported the use of victim impact statements as a means of affording victims a direct input as to the effects of the offence and of increasing the feelings of involvement in and satisfaction with the criminal justice system of such persons (pars 132 and 133). However, it also pointed to, par 128,

- the need for moderation in a victim impact statement;
- the need to ensure that it is not, and cannot be seen as, an
attempt to seek vengeance;
- the need for victim impact statements to be balanced (The
Committee does not see this, however, as meaning that something
less than the true effects of the crime upon the victim is to be
put forward to the court).

55. I would add to the above that it is the duty of the Court also to ensure that the victim impact statements, or analogous material, represent the truth. That may involve, in some cases, cross-examination by defence counsel of victims or the tender of evidence which is inconsistent with their statements.

56. It is a misuse of language to describe that process, as is sometimes done in the media, as "victimising the victim". It is a search for the truth as to whether and to what extent a person alleged to be a victim of crime has, as a result of an offence, "suffered harm".

57. In this matter, statements from each of the young persons, DB and CB, were tendered without objection. DB's statement is relatively lengthy but the essence of it can be gauged from the following paragraph,

I feel like I'm the one who is being punished for what had
happened. I feel like everything is going right for (RB) and not
me. I was the one who had to move away from my family. I had to
change schools. I have no friends, all my friends in Queensland
hate me because I told them what had happened, and I have no
mother.

58. That is far from being a fair statement. The reasons for the girls being sent to Queensland and the circumstances encountered there were in no way caused by the offender or the offences he committed. The two girls have, of course, been subject to Welfare scrutiny but they have brought that on themselves. That is not to diminish the responsibility of the offender who should have rejected the advances of the two girls.

59. She also stated,

When the Police got involved, I didn't want to say anything.
I didn't want (RB) to get into trouble. I now realise he is a
manipulating bastard. He's made me feel like I can't trust guys.
I feel really uncomfortable and scared when I'm alone with a guy
that's older than me.

60. That statement portrays DB as a young person seduced into misconduct by a cunning manipulator. Not only is that not the case, I do not accept that it reflects truly her own belief. It conflicts with what she freely wrote at the time of the "affair" as well as with what she told investigating Police following disclosure by her of what had happened.

61. She said then that she did not consider what the offender had done to be abusive. As Constable Donna Byrne recorded it on 27 March 1996,

She told Police that Society was wrong and that she loved him and
could see nothing wrong with the relationship.

62. In the statement of 23 July 1996, by way of contrast, she says,

I hate (RB) for everything he's done to me and my sister. I hope
he rots in jail for the rest of his life. I hope that he gets
bashed in jail.

63. She even says, quite spitefully and without any conceivable foundation,

I'm really worried that if he gets out I'm worried about him
coming to get me. I'm worried about his own daughter, because
she's only seven.

If society lets him off, they are putting young girls in danger.
If he gets off easy I will be very pissed off.

64. This material breaches every one of the guidelines for victim impact statements. Why the alleged change in attitude was so expressed I cannot say, but it is apparent that there is no basis whatever for the "worries" articulated. Indeed, I believe they are simulated.

65. The material tendered in respect of CB is even more extraordinary. The offender was wrong to respond to her kissing him as he concedes that he did but that conduct does not fairly warrant the comments, after a reference to being told of a conversation between DB and "Aunty MR",

... I felt, 'what an asshole'. I knew then what he had done to me
and (DB) was gross and you shouldn't do these kinds of things
especially to your own niece.

66. In relation to DB, that would be fair comment but it does not reasonably reflect the real impact of the offence on CB.

67. Her attitude, when spoken to by Police on 27 March 1996 was described as "quite abusive and aggressive towards Police". She was "extremely upset" but only "when Police told her that her sister had said the defendant had told her that she was coming on to him".

68. Though she denied that allegation to Police, the poems and letters she wrote the offender before that time are inconsistent with that denial.

69. Her attitude towards the offender, expressed in her statement of 23 July 1996 was,

I reckon he should be put away. Rots in hell. That would be a
lovely sight to see because he makes me angry. When I first came
to the Police I didn't want (RB) to get into trouble.

70. That statement I also regard as simulated.

71. The question that remains for me is to fix a sentence that is just and appropriate. It must also facilitate rehabilitation of the offender and, where relevant, encourage reparation to any victim, see s429.

72. The offender is a man of previous good character. He has pleaded guilty and, at all times since his conduct came to light, has expressed remorse. I am satisfied that remorse is genuine. I am also satisfied that, whilst in some respects he has portrayed DB and CB as the initiators of the sexual contact between them, he has not done so untruthfully or unfairly. He has frankly acknowledged the wrongfulness of his conduct at every relevant level.

73. It is relevant also to note that he is the sole breadwinner of his family including his five children aged between two and 10 years.

74. The pre-sentence report notes a disturbed childhood. His father had a psychiatric illness, ending the marriage to his mother in 1959 and taking the offender's elder brother, presumably AB, to Germany with him.

75. His mother remarried when he was about two. That relationship ended when he was about 12. He was then told that his mother's second husband was not, as he had till then believed, his natural father. There was a further marriage which lasted six years.

76. During his school years, the family moved 13 times. Socialisation was both difficult and discouraged.

77. He did attend university though he was again socially isolated. He joined the Army in 1981 completing service in 1991. He retired as a captain, although he had preferred the social contact of non-commissioned rank.

78. The offender married in 1984. Up until 1994, when his wife began to suffer post-natal depression, the marriage was regarded by both parties as very happy. Although that illness and these offences have placed great strain on the offender's marriage, it seems strong enough to endure these adversities.

79. Since 1992, the offender has worked as a computer systems analyst. Whilst he earns about $1,000.00 per week, with five children and a mortgage, his commitments nearly equal that sum.

80. Mr Frank Young, Adult Corrections Officer, concluded that when he was committing the offences, the offender had entered into a fantasy world where he simply did not comprehend the wrongfulness of his conduct and the possible harm from it.

81. Subsequently, he has displayed better comprehension. As Mr Young put it,

Mr (RB) now sees the matter for what it was, a 37 year old man
fantasising that a teen age girl wanted him. He is beginning to
see the damage he has caused, has expressed his remorse and wishes
to make amends if he can.

82. Mr Young assessed him as "intelligent, well educated, hard working, responsible and honest, yet confused, socially inept, naive, rigid, ego-centric and analytical". Even prior to those offences, he had created a social world isolated from reality.

83. He considered the offender was in no sense a sexual deviate but had, uncharacteristically, acted in an impulsive and illegal manner. For a short time he lost control of his moral values.

84. It was Mr Young's judgment that the offender was unlikely to re-offend, particularly with counselling to reinforce his more recent self-awareness.

85. I formed much the same opinion of the offender during the course of his evidence.

86. He was also assessed by Dr W Glaser, a psychiatrist. Dr Glaser considered that the extreme stress created by his wife's mental illness, the arrival of his brother's family, whom he felt obliged to support, led to the offender escaping into "what was literally a fantasy world involving an infatuation with his nieces, particularly (DB)".

87. Nevertheless, there was no evidence of any psychiatric disorder or sexual deviation. The offender was well aware that, as an adult, he bore the major responsibility for allowing the offences to occur, even though he did not engage in coercion or exploitation.

88. I pointed out in R v Chalmers (supra), 567, that unlike legislation in other jurisdictions, such as Western Australia, s92E Crimes Act 1900, and, it may be added, s92K, does not prohibit persons aged over 10 and under 16 years from engaging in sexual acts. It does, however, prohibit sexual acts between those persons and persons more than two years older than them, even if the younger persons are willing participants. The primary evil aimed at is the sexual exploitation of the young.

89. In the present case, there is the added factor of the relationship between the parties to the offences. I would personally regard that as an aggravating factor although the offender was in no sense in loco parentis. However, I must acknowledge that the legislature in s92L Crimes Act 1900 has seen fit not to include persons so related within the purview of the offence of incest.

90. It follows that, had these girls attained the age of 16 years at the time of these offences, the offender's conduct, though morally reprehensible, would not have been unlawful.

91. There was, in Chalmer's case, no lack of appreciation that persons of mature years who engage in sexual acts with young persons, known to be under 16 years, warrant deterrent punishment.

92. In that latter case, I cited, with approval, the statement of Mahoney JA (as he then was) in R v McClymont, unreported, NSW CCA, Gleeson CJ, Mahoney JA, McInerney J, 17 December 1992, at 7,

Sexual offences were committed with a girl of 12 years of age.
Taking full account of the extent to which she co-operated
willingly in what was taking place, one has to bear in mind that
the purpose of the law is to protect such a person from that kind
of activity. It is to protect her from, in a sense, her willingly
participating in such activities.

The applicant is a person of 22 years of age or thereabouts and,
if I may say so, without attempting to be judgmental, he knew
better.

93. Whilst the sentence in that case was 18 months plus an additional term, potentially on parole, of six months, it covered other offences.

94. Gleeson CJ, whilst agreeing with Mahoney JA that the sentence was not excessive, said, at 8,

If the only offences that Grogan DCJ was taking into account when
sentencing the applicant were offences for what used to be called
carnal knowledge of a 12 year old person, ... then I would have
thought the sentences were far too severe.

95. In R v Herring, unreported, WA CCA, Pidgeon, Seaman and White JJ, 22 September 1994, also referred to in Chalmers, whilst the Court agreed that a sentence of imprisonment was called for, it declined to impose that sentence on appeal, as a community service order had already been substantially complied with. The girl in that case was nearly 13, the offender 18 1/2 years of age. The WA Criminal Code absolutely forbade sexual intercourse with a person under 13.

96. The Court did not, therefore, indicate the term of imprisonment it would otherwise have deemed appropriate. White J did, however, comment that the period of supervision imposed at first instance, being three years, exceeded substantially the period of imprisonment which he considered should have been imposed, inclusive of any period on parole.

97. The case of R v Jones, unreported, SC Qld CA, McPherson, Williams and Derrington JJ, 4 December 1992, was referred to. It was a case similar in some respects to the present. There was, however, no plea of guilty. A head sentence of seven years was imposed.

98. That was not simply a charge under the equivalent of ss92E and 92K Crimes Act 1900, but one under the equivalent of s92EA (maintaining a sexual relationship with a young person). The relationship in question commenced when the niece was 12. A similar offender who committed such an offence in respect of his daughter but pleaded guilty, had his sentence reduced to 4 1/2 years, see R v Gillespie, unreported, CA No. 168 of 1992, 15 July 1992.

99. There is no way in which I can regard those cases as being comparable to the present. Their circumstances plainly involve much more reprehensible conduct.

100. In R v Clulow, unreported, NSW CCA, Gleeson CJ, Lee CJ at CL and Smart J, 6 March 1991, the appellant, aged 49, had engaged in sexual intercourse with the complainant then aged 15. He was considered not to have displayed remorse. It was accepted that the sexual acts were consensual. A sentence of two years with a non-parole period of one year was not regarded as excessive.

101. In Crisp v R, unreported, SC Tas, Cox, Crawford Zeeman JJ, 19 December 1990, a 66 year old man had sexual intercourse with the 14 year old complainant. He was, at least de facto, acting in loco parentis at the time. These acts had begun, with increasing intimacy, when the girl was 10 1/2. Consent was present but clearly tainted, albeit not vitiated, by abuse of authority. The Court agreed that a "substantial sentence of imprisonment" should be imposed. That was considered to be 12 months.

102. The only sentences for sexual acts in relation to under age persons by adults that I have found, where the young person was, though under 16, physically mature, have not exceeded a head sentence of 18 months. Those cases, consistently with the present, included a discount for early pleas of guilty and remorse. The non-parole periods, consideration being given to personal factors, did not exceed eight months. However, that was served in full-time detention.

103. It is, therefore, apparent that in all the circumstances of this case I would be unable to impose a term of imprisonment exceeding 18 months in the aggregate for the criminal acts committed. I would then have to consider a non-parole period which could not, in my view, exceed nine months.

104. Such a sentence, whilst justified, would impose extraordinary hardship on the offender's family. If there was no alternative it would have to be endured.

105. I am therefore satisfied that general deterrence of such conduct as the offender has engaged in would require a sentence of "not less than three months but not more than 24 months".

106. That, pursuant to s4(1) of the Periodic Detention Act 1995, enlivens a discretion to impose a period of periodic detention in lieu of such a term.

107. Not every offender is suitable for periodic detention but first offenders not posing a security risk generally are.

108. Periodic detention involves imprisonment each weekend, Friday evening to Sunday evening. Detainees are subject to direction as to community work and self-improvement courses over that time. The regime is no less demanding, indeed more so, than full-time imprisonment. However, for an offender with a family it enables employment and family relationships to be maintained.

109. This offender has, by his conduct, further prejudiced the future of two girls who were already at risk. Instead of providing good example and counsel in response to their precocious behaviour, he permitted himself to indulge in fantasy and in behaviour which they all knew to be wrong. As the adult person, he was the one who should have insisted that sexual contact be avoided. In truth, the harm which has followed is his responsibility not theirs. Understanding how it occurred is not an exercise of attributing blame.

110. If it was not for the effect of full-time imprisonment on the offender's own family, his genuine remorse and self-realisation, a period of full-time imprisonment of 12 months would be appropriate although I would have released him conditionally after six months. In light of those matters, I cannot exclude periodic detention as more appropriate. I take account of the three weeks of full-time detention the offender has endured whilst on remand.

111. I make the following orders,
1. On the first count (act of indecency - 96/2536), I record a conviction.
2. On the second count (act of indecency - 96/2399), I record a conviction and impose five detention periods.
3. On the third count (sexual intercourse with a young person - 96/2533), I record a conviction and impose 26 detention periods.
4. On the fourth count (act of indecency - 96/2535), I record a conviction and impose 13 detention periods.
5. On the fifth and sixth counts jointly, I record convictions and impose 52 detention periods.
6. Those detention periods are to be served concurrently.
7. On the seventh count, (act of indecency - 96/2400), in all the circumstances of that offence and the other offences dealt with, I find the offence proved but record no conviction and impose no further penalty subject to the offender entering into a recognisance, self in the sum of $500.00 to be of good behaviour for 18 months and during that period, accept the supervision on probation of the Director of Adult Corrective Services or nominee and obey the reasonable directions of the Director or nominee.