R v A M P [2010] VSCA 48

R v A M P [2010] VSCA 48 - VSCA 2010 case summary — Zoe

[10]

Count 1 is the first offence in time, a representative charge of indecently assaulting [WD] in 1958 when you were about 21, and the victim was 11 or 12. You had become friends with [WD's] family and when alone with [WD] you fondled his penis. This occurred many times over about 18 months.

The victims of Count 2 and 3 were two brothers, [TD] and {TB], who were your wife's nephews. These two assaults consisted of masturbating the boys, then aged about 10 or 11 and they occurred between 1971 and 1975.

[UL] and [UA] were your niece and nephew and were the victims of Counts 4, 5 6 and 11, which were all representative counts of offences which occurred between 1975 and 1979. Counts 4 and 6 relate to repeated occasions when you assaulted [UL] as she lay in bed by rubbing her vagina. Count 5 relates to several occasions when you woke [UA], then aged about eight, and sucked on his penis. Count 11 occurred when he was aged 12. You went to his bedroom and put your hand under the blanket and masturbated him.

Counts 7, 8, 9, 10 and 13 relate to your daughter [SLK]. These are all counts of indecent assault. Count 7 and 9 are both representative counts dealing with occasions when you got [SLK] to touch your penis when she was aged between four and six years. Counts 8 and 13 are also representative counts when you would touch her vagina with your fingers. This occurred between the ages of four and eight. You would do this in various locations, such as in bed or when she sat on your knee playing on the computer. Count 10 relates to a specific occasion when you came into her room at night and pushed your finger in and out of her vagina in such a way as to hurt her.

Count 12 is a charge of indecent assault upon your daughter [AS]. From when she was four years old until she was about seven, you would go into her bedroom at night and rub your fingers around her vagina. That is a representative count.

Count 14 is a count of indecent assault against [WT], who is the son of [WD], the victim of Count 1. In 1983, when [WT] was 12 or 13, you took him camping with your daughters and on two occasions you put your hand in his pants. On one occasion you fondled his groin area and on another occasion you fondled his penis.

The next offence occurred about 23 years later in 2006. By this time your daughter ... was the mother of three children, including [DAM] and [DIZ]. In 2006, you took [DAM] with some Sudanese children to an airport to look at the planes there. You then took the children to the beach and on returning home you put [DAM], aged six, in the bath where you washed him and squeezed his penis. This is Count 15.

Around this time, you and your wife were attending the Church of Nazarene in Wantirna and although you were not a formal member of the church, you assisted by reading lessons from time to time and by driving Sudanese families to and from church. After becoming friendly with their parents, you took their children on excursions, sometimes with your grandchildren as well. In the July school holidays of 2006, you took some of these children to a church picnic and afterwards to your house. One child, [GL], aged five, spilt milk on his clothes so you asked him to take off his clothes and have a bath and after he got out of the bath you touched his penis and shook it. This is Count 16.

In March 2007, you took two other Sudanese boys, aged 7 and 10, to a park during the school holidays and afterwards to your house where you gave them a bath and washed them. Whilst doing so, you fondled the penis and testicles of each boy. These offences are counts 17 and 18.

Counts 19 and 20 occurred when you were minding your three year old grandson, [DIZ], on 30 March 2007. Count 20 relates to the act of masturbation you committed upon [DIZ] and Count 19 is the count of incest which you committed when you placed [DIZ's] penis into your mouth. Several days earlier you had been minding [DIZ] and when his father ... arrived to collect him he was suspicious of your behaviour. He bought a video surveillance system which he set up in the house and your assaults upon [DIZ] were captured on film.

On 4 April 2007, police went to your home and seized your computer. On it were located three images of naked young males and six video movies displaying young naked males performing sexual activities. This is Count 21 on the presentment. When interviewed about this by the police you did not admit that this material was yours but you took responsibility for it because it was on your computer.[1]

[13]

The age range of the children involved would indicate a diagnosis of Paedophilia in that the children male and female have been pre-pubertal, and the behaviour has involved acting on intense sexual urges.

In regard to psychopathy and personality disorder [the applicant] would not meet the key diagnostic criteria for either psychopathy or antisocial personality disorder. There was however a histrionic self enhancing, self serving flavour to his presentation which in conjunction with limitations in empathy towards the victims and specific remorse would suggest narcissistic features.

He is currently presenting with reactive depression to his circumstances both legal and medical.

In regard to [the applicant's] propensity to commit the relevant offences in the future. Structured risk appraisal would suggest that [the applicant] is a high risk for re-offending. It is the writer's recommendation that a medical opinion is sought as to what impact his current medical state would have on his physical capacity to re-offend. The writer notes that sexuality and sexual behaviour is not limited to the region of the groin, however the emotional and fatigue effects of chronic serious or mortal illness can have a significant effect on sexual interest and desire, potentially reducing risk to insignificant.

In regard to the pattern, progression and nature of [the applicant's] sexual offending, this is described earlier in the report. Whilst psychosocial stress appears to play at least some part in the onset of [the applicant's] offence behaviours, the most common characteristic to all three periods of [the applicant's] offending appears to be ready access to children.

In regard to [the applicant's] efforts to address the cause of his offending, including active participation in rehabilitation, this appears to have been minimal and whatever rehabilitation may have occurred appears to have not been effective. The level of minimisation and denial of risk within [the applicant's] family context is of great concern to the writer and must be taken into account in any plan to return [the applicant] to the family home. That [the applicant] has accepted responsibility for his behaviour, is able to express guilt and general remorse and can acknowledge that he should not have future access to or contact with children, indicates some insight and is a good basis from which to built upon in treatment.

In regard to developmental factors, it is the writer's view it is difficult to know what to what extent the relationships and events of [the applicant's] childhood may have played in the development of his pathology. From [the applicant's] account his circumcision at the age of 5-6 years was experienced as a painful, humiliating traumatic experience with sexual overtones. That this experience may have had a developmental impact similar to child sexual abuse cannot be excluded. It is further the writer's view, the absence of male attachment figures in his early life, a failed relationship with his stepfather in adolescence and adulthood, in conjunction with being the only child in a female dominated household in his early years, is likely to have played a part in his attachment formation and personality development. Exposure to severe trauma such as the events he described in world war two, are also known to produce deficits in empathy through psychological numbing.

In regard to risk reduction, obviously involvement in an intensive treatment program and the containment of access to children will assist in reducing further risk. The most significant exacerbating risk factors are likely to be increases in psychosocial stress, a factor which can be unpredictable; in conjunction with access to children.

It is further the writer's recommendation that when [the applicant] is eventually released from custody that he remains under supervision for a lengthy period of time.

[48]

not only by reason of its potential and actual impacts on the individual victims, but also because of the damage occasioned to the community generally. I need only refer to the changes which have been made to the law and the structures that have been put in place to reduce the risks to children to make this point. The exposure over recent years of the extent of the incidence of abuse of children in our community by persons entrusted with their care has created much distrust at all levels and threatened the very capacity of adults to interact in a normal healthy fashion with them.

The second comment that I wish to make addresses a different aspect. On occasions, when imposing sentence I have made mention of the notion of social rehabilitation. In DPP v. DJK[12], for example, I remarked:

'This notion of social rehabilitation is one that I do not believe has been accorded anything approaching significant recognition as an identifiable underlying concern of the criminal justice system. It seems to me that the process of social and personal recovery which we attempt to achieve in order to ameliorate the consequences of a crime can be impeded or facilitated by the responses of the courts. The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator. If the balancing of values and considerations represented by the sentence which, of course, must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted. If not, there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held and which may never be removed. Indeed, from the victim's perspective, an apparent failure of the system to recognise the real significance of what has occurred in the life of that person as a consequence of the commission of the crime may well aggravate the situation.'

It is well to bear in mind that the rehabilitation of the victim of sexual abuse may often be more difficult to achieve than that of the perpetrator. Frequently the damage will be profound and a long time will pass before it can be addressed at all. In the meantime, childhood will be destroyed, self esteem damaged, educational and career opportunities lost and the capacity to form and maintain relationships seriously impaired. The notion to which I have adverted underpins, I believe, such concepts as restorative justice, just punishment, the vindication of rights and the attribution of responsibility based on moral culpability. The vindication of the victim in cases of this kind, in particular, is profoundly important if the criminal justice system is to perform its role properly.

Although much has been done in recent years to encourage young persons who have been subjected to inappropriate behaviours to report what has happened, by reason of the presence of a variety of factors it must be anticipated that often the commission of such offences will not be revealed for years and that their eventual disclosure will be both extremely difficult and painful for those offended against, their families and others associated with them.

If the system cannot be seen to have recognised the significance of what has occurred and to have responded appropriately, then its operations will discourage victims from coming forward and indirectly contribute to the concealment of offences.[13]

At a glance

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Judgment (109 paragraphs)

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Legislation Cited (4)

Cases Cited (6)