Citation: Regina v Phillip John Humphries [2004] NSWCCA 370
Court: NSW Court of Criminal Appeal
Date: 19 October 2004
Judge(s): Barr J (primary judgment); Buddin J and Campbell AJ (agreeing)
Background
The applicant was the father of the complainant, who was born in 1971. He committed four acts of indecent assault against her between her eighth and tenth birthdays, with the offending forming part of a broader course of sexual abuse spanning approximately five years. The offences included masturbation of the child to orgasm, rubbing his penis on her back and ejaculating, placing his face near her genitals, and fondling her breasts.
In 1990, when the complainant was about eighteen or nineteen years old, she disclosed the abuse to her mother. Rather than reporting to police, the family implemented a scheme under which the applicant would attend a psychiatrist. The complainant moved interstate to live with her aunt, who later actively discouraged her from reporting to police when she raised the possibility in approximately 2001. The complainant ultimately went to police in November 2001, and the applicant was not charged until August 2002.
In the District Court, Hock DCJ sentenced the applicant to a fixed term of twelve months for the first count and two years' imprisonment with a twelve-month non-parole period for the second count (commencing six months after the first). The effective sentence was two years and six months, with a non-parole period of one year and six months. The applicant sought leave to appeal out of time, arguing the sentences were excessive.
Legal Issues
- Whether the sentencing judge gave sufficient weight to the delay between the offending and prosecution as a mitigating factor.
- Whether the sentencing judge was correct to find that the complainant had been "actively dissuaded" from reporting to police, given that the applicant was unaware of his aunt's discouragement in 2001.
- Whether the sentencing judge erred in treating the fact that the offences occurred in the complainant's home as an aggravating feature, in light of the Court of Criminal Appeal's reasoning in Regina v Gazi Comert [2004] NSWCCA 125.
Decision
On the question of delay, the Court accepted the sentencing judge's characterisation of the family reconciliation scheme as one that actively discouraged police reporting. The Court found there was sufficient evidence to support that finding: the scheme was deliberately designed to keep the matter away from police, the complainant was taken interstate to stay with her aunt, and the aunt later explicitly discouraged the complainant from reporting. The Court held that these circumstances were part of a purposeful pattern, even though the applicant was unaware of the aunt's 2001 intervention.
On the aggravating feature of the home, the applicant relied on Gazi Comert, in which the Court held that a sexual assault of a wife by her husband is not made worse merely because it occurred in the matrimonial home. Barr J distinguished that reasoning on the facts. The sentencing judge's references to the home were directed at demonstrating the severity of the breach of trust and the particular helplessness of the complainant as a child within her own family home. Seen in that context, the remarks did not disclose any error.
The Court found the sentences were well within the proper exercise of the sentencing judge's discretion. The offending was characterised as very serious, involving gross and repeated breaches of parental trust against a young and entirely vulnerable child, with significant lasting harm to the complainant. The application for extension of time was granted, leave to appeal was granted, but the appeal was dismissed.
Orders Made
- Extension of time granted to file the application for leave to appeal.
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- A family scheme that diverted abuse disclosures away from police, even one framed as reconciliatory, can properly be found to constitute active discouragement of reporting, supporting a refusal to treat delay as a mitigating factor in sentencing.
- The Court of Criminal Appeal confirmed that the principle in Gazi Comert (that the matrimonial home is not automatically an aggravating feature of a husband's assault on a wife) does not prevent a sentencing court from treating a child's home as relevant where it goes to the degree of vulnerability and breach of trust, rather than as a freestanding aggravating circumstance.
- No error was established in the sentencing judge's weighing of delay where the evidence supported a finding that the complainant had been discouraged from reporting, irrespective of whether the offender had direct knowledge of all acts of discouragement.
- Upholding the sentences, the Court emphasised that the gravity of the offending, the prolonged nature of the abuse, the parental relationship, and the lasting psychological harm to the complainant were all properly reflected in the result.
- In dismissing the appeal, the Court reaffirmed that an appellate court will not intervene in a sentencing discretion simply because the delay between offending and prosecution was substantial, particularly where that delay was attributable in part to family dynamics shaped by the offender's own conduct.
Legislation and Cases Referenced
Cases:
- Regina v Gazi Comert [2004] NSWCCA 125
Legislation:
No specific legislation was identified in the text provided. The offences were charges of indecent assault of a child under the age of sixteen years under the relevant New South Wales criminal law provisions applicable at the time of the conduct.