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[2016] ACTSC 145
Supreme Court of the ACT
2016-06-16
Refshauge J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - sentencing - incest with a person under the age of 16 years - act of indecency with a person under the age of 16 years - common assault - offending in bedroom - victim asleep - digital penetration - threat - heavy drug use - significant criminal history - offender denies offences - no remorse
Crimes Act 1900 (ACT), ss 26, 61(2), 62(2)
Crimes (Sentencing) Act 2005 (ACT), ss 7, 33
Magistrates Court Act 1930 (ACT), s 90B
Supreme Court Act 1933 (ACT), Pt 8
Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447
R v AB (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, SCC 427 of 2008, 12 April 2012)
R v Boudelah [1991] FCA 124; (1991) 28 FCR 176
R v CC [2016] ACTSC 43
R v DK [2016] ACTCA 7
R v G (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, SCC 308 of 2011, 22 March 2012)
R v HI [2015] ACTSC 373
R v PR (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, SCC 37 of 2012, 12 September 2013)
R v SH [2015] ACTSC 25
R v TC (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, SCC 87 of 2010, 28 March 2011)
R v TW [2011] ACTCA 25; (2011) 6 ACTLR 18
Legal Aid ACT (Defendant)
1. In about late 2012, the accused, BNS, began living with his then de facto partner in Gilmore. His partner had three children, one of whom was born in 2002. This daughter, whom I shall call TN, returned to live with her mother and BNS just before the commencement of the 2013 school year.
2. In late November 2014, TN disclosed to her mother that BNS had engaged in sexual activities with her.
3. As a result, BNS was charged with three counts of incest and five counts of committing an act of indecency, in both cases with a person under the age of 16 years.
4. He pleaded not guilty to the charges and, after a trial by jury, was, on 1 April 2016, found guilty of each of the eight counts on the indictment.
5. In addition, an offence of common assault has been transferred to this Court under s 90B of the Magistrates Court Act 1930 (ACT) to be dealt with under Pt 8 of the Supreme Court Act 1933 (ACT). In light of the jury's findings, I am satisfied that BNS is guilty of that offence also.
6. It now falls to me to sentence BNS for these offences.
7. As noted above, the circumstances under which these offences were committed were that BNS was living with the mother of the complainant from late 2012. He took an active part in the household and assumed the role of stepfather for the children. He was, however, a disciplinarian and exerted quite some considerable control over the family.
8. Initially, the children responded, and the evidence was that they liked him, although they were unhappy with his rather severe discipline. That attitude changed over time.
9. It appears that his interest in the complainant, TN, began in either term 3 or term 4 in 2013, when TN was 11 years old. The first incident involved BNS collecting TN from school when he drove her to some local shops. TN asked him if she could buy some red liquorice, and he replied, "Only if you dance for me." BNS then showed her a video on his phone of a female wearing a Tshirt and underwear dancing and rubbing her body and dancing on a washing machine saying, "This is my favourite part."
10. They went home and later, while TN was sitting at the dinner table doing her homework, BNS knelt behind her and put his hand under her shirt and started massaging her back. After some minutes, he moved his hands, still under her shirt, to the front of her body and started massaging her breasts, which was the first count of an act of indecency (count 5).
11. She left the room shortly after that and went outside to play with her brother but they soon decided that they wanted to watch TV or a movie. They returned inside, moved their mattresses into the lounge room and lay down to watch the TV. BNS then lay next to TN under the blankets that she had arranged and started touching her right buttock cheek. She felt scared and soon after got up and went into her bedroom. This was the second act of indecency (count 6).
12. BNS followed her into the bedroom and said, "If you want to practice kissing, just ask me," and she replied, "Ok." She then walked out of the room and sat on the couch. He followed her, sitting next to her, lifting her up by the armpits and putting her on his lap. He then leant in to kiss her. Her father arrived, however, and sounded his horn and she got up and left. This was the third act of indecency (count 7).
13. As can be expected, the precise dates on which events occurred were somewhat unclear, but it appears that the next occasion was during the last term of school when BNS came into TN's bedroom some hours after she had gone to bed and when he could expect her to be asleep. She, in fact, heard him climbing the ladder to her bed but pretended to be asleep. BNS lay beside her under the blanket and put his right hand on her leg, then put his hand down the front of her pants, resting his hand on the front of her thigh. He then moved his hand underneath her underpants and inserted his finger into her vagina. He removed his finger and climbed down from the bed and left the bedroom. This was the first act of incest, being sexual intercourse with TN, who was the stepdaughter of BNS (count 1).
14. The next incident was an occasion later in 2013 or very early in 2014, when her brothers had gone to their father's place. TN wanted to watch a movie and the TV was in her brothers' room. She moved into their room on a mattress and fell asleep. She awoke when BNS touched her, though she continued to pretend to be asleep. He touched her back and her shoulder. He then touched her leg and went straight underneath her underpants and put his finger in her vagina. This was the second act of incest (count 2).
15. TN said that he then sucked her on the upper chest, just above her breast and gave her what she described as a "hickey", or, as the Crown says, a love bite. She said it was visible the next day when her friend, who was camping with her, saw it and asked what it was. She was embarrassed and said it was just eczema. This was the next count of an act of indecency (count 3).
16. Sometime later, TN was again sleeping in her brothers' room, but in the bunk bed with one of her brothers. Both brothers were there. Later in the evening she awoke to hear BNS climbing the bunk bed ladder. He lay down beside TN and put his hand down the front of her pants. He inserted his finger into her vagina. Shortly after he removed his finger and left the bedroom. This was the third count of incest (count 8).
17. The final incident occurred when TN said she had returned after staying over with a friend for a sleepover. She said that she had again slept in her brothers' room, because they were away, and watched a movie. She said that BNS came into the room and lay down next to her as if he was sleeping. She thought she did not have any bedclothes over her because it was hot. She was wearing underwear and BNS put his hand under her pants but did not really "do anything, touching her thigh area but over her underwear". This was the final act of indecency (count 4).
18. He then took his hands out and grabbed her around the throat. He held her nose and mouth so she could not breathe. He said, "Don't tell your mum because she will kill herself."
19. As TN's mother was prone to depression, to the knowledge of TN, this must have been a frightening threat because of her perception that it was realistic.
21. Sexual offences against children are serious. This is reinforced by the maximum penalties provided by the legislature.
22. Incest with a stepchild under the age of 16 years is an offence against s 62(2) of the Crimes Act 1900 (ACT), attracting a maximum penalty of 15 years imprisonment.
23. Committing an act of indecency on or in the presence of a child under the age of 16 years is an offence against s 61(2) of the Crimes Act, which provides for a maximum penalty of 10 years imprisonment.
24. Common assault is an offence against s 26 of the Crimes Act, for which the maximum penalty is imprisonment for two years.
25. These maximum penalties show the seriousness with which the offences should be regarded, although, as the High Court has pointed out, the precise facts of the offending are relevant to the assessment of the seriousness of the offences: Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447 at 451-2.
26. As Gallop J said in R v Boudelah [1991] FCA 124; (1991) 28 FCR 176 at 186:
There is no difficulty in the case of sexual offences in determining the single voice of the community. In relation to other offences, such as those relating to drugs, there may be stratas of society which hold disparate views. But in the case of sexual offences the voice of the community, through the legislation enacted by Parliament, expresses its abhorrence.
27. The seriousness of offending against children has been well described by Burns J in R v CC [2016] ACTSC 43 at [39]- [40], where his Honour said:
28. I note, however, that, in the case of incest, the breach of trust is an element of the offence because of its dependence on the relationship between the victim and the offender. Thus, it has clearly resulted in a more serious penalty imposed but is not an aggravating feature of the offence itself.
29. So far as the attitudes of the courts are concerned to such offences, I said in R v TW [2011] ACTCA 25; (2011) 6 ACTLR 18 at 22; [21]:
Those offences are ones which the courts view very seriously. As Maxwell J said in Fisher v The Queen:
... the community looks to the courts to deal with persons convicted of serious sexual assaults, or abuses upon young children, in such a way as to provide some measure of protection for young persons, and some measure of deterrence to those persons who contemplate similar activities.
30. In the case of the act of indecency which occurred within the relationship of BNS, acting as TN's stepfather, which was a position of trust, but also by the control he exercised through his discipline, this trust was breached by the offences, and that is an aggravating feature.
31. Further, the offences were more serious because of the young age of TN, who was 11 at the time, almost the youngest age for the offence. The offences of committing an act of indecency were less serious, however, because there was little touching of the genitals, although the accused did massage TN's breasts, and those actual offences were more serious.
32. The acts of incest were constituted by digital penetration. There is no "hierarchy" of acts of sexual intercourse, but digital penetration does not include some of the more serious consequences of penile/vaginal intercourse, especially where there is ejaculation.
33. It is also notable that a number of the offences were committed while BNS thought that TN was asleep. It appears that he considered he could indulge his passions without being caught and without risking detection. This is, to some extent, reinforced by his threat when, on the final occasion, he assaulted TN, which showed his obvious concern about detection.
34. While assaults against children in the bedroom, where many of these offences took place, rather than any other place in the house, are not necessarily more aggravating, (see R v DK [2016] ACTCA 7 at [56]), the fact that a number of the offences were committed while TN was asleep is a serious factor to be taken into account.
35. The assault was also a serious offence, with a threat that must have been terrifying to TN. To have a hand placed over your mouth and nose so that you could not breathe is, no doubt, for a child also quite terrifying.
36. I have been able to make findings from the Pre-Sentence Reports that were tendered both for this case and for earlier cases where BNS was dealt with for serious violence offences.
37. The two reports are somewhat difficult to reconcile, although I am satisfied that the earlier report is the more accurate, and this seemed to be the position of BNS. There was, it appears, some difficulty in the author of the second Pre-Sentence Report, prepared specifically for these offences, gaining BNS' trust and confidence in order for that report to be more helpful.
38. BNS was born in 1980 in South Australia, but relocated with his family to Cairns in Queensland when he was seven. It appears that he enjoyed living in Queensland, but his childhood appears to have been marked by instability. His parents separated when he was four and his mother's alcohol abuse led to parental neglect and poverty. He was placed in foster care when he was 11 and experienced several foster placements. He also suffered sexual abuse when he was in foster care.
39. It was said that he began to live independently when he was 11, but that may be a description of the foster care placements which, if they were serial in nature, meant that he was inevitably forced to learn to rely on his own resources and, to some extent, live independently.
40. He moved to Canberra when he was approximately 14 years old.
41. BNS kept some contact with his mother and had a relationship with his brother, who also had some contact with the criminal justice system. His brother suddenly died in November 2014 and this appears to have had a significant impact on BNS and continues to be problematic for him.
42. He does not appear to have had much counselling until perhaps recently, to which I will refer later.
43. He has a daughter from his relationship with the mother of the complainant and was in contact with her, including while in custody on these charges, including engagement with the Shine for Kids program in the Alexander Maconochie Centre. This contact ceased about eight months ago, which he attributes to the current offending and the course of the trial, but recognises that there will be difficulties, because of the convictions that I will enter for these offences, in having immediate and ongoing access with his daughter.
44. After completing Year 10, BNS entered the Australian Army Reserve before commencing short-term employment in the automotive and telecommunication industries. He had also been employed in the food industry as a baker for about five years prior to his arrest. Before that employment he had experienced some periods of unemployment for about 18 months.
45. After his arrest, he was remanded in custody where he has remained. He has been employed in the Alexander Maconochie Centre in the laundry. He has also commenced tertiary study and has expressed a desire to continue with his education. It is important that he continues with his education if, when he is released from custody, he is going to be able to relocate satisfactorily within the community.
46. BNS has a long history of drug and alcohol consumption. He commenced using cannabis when he was about age 15 and described a steady increase in his use to seven grams a day. He also started using amphetamine, methylamphetamine and heroin and, despite periods of sobriety, has maintained use of illicit substances throughout his life. On entry to the Alexander Maconochie Centre, a urinalysis disclosed the presence of methylamphetamine, cannabis and amphetamines. He started using alcohol when he was 16, but describes his drinking as irregular social use with peers. It appears that alcohol use has not been problematic for him.
47. In October 2015, BNS was placed on a pharmacotherapy maintenance program and has remained committed to the prescribed treatment in support of his drug use.
48. His acceptance of pharmacotherapy is also important, since the Pre-Sentence Report for his most recent offence of violence, that is, the earlier report, suggested that one of the significant risk factors is his drug use, and he appears to be addressing that. If he is able to maintain his addressing of drug use and his management of his addiction, then that will also be a helpful contribution to a satisfactory relocation in a pro-social way within the community when he is released from custody.
49. BNS has been diagnosed with mental and physical health conditions, which are being treated through engagement with ACT Health Services. These include grief and loss, reflux and dental issues.
50. BNS has been accessing a psychologist in the Alexander Maconochie Centre and I assume that this is directed, in part at least, to the grief and loss issues he has experienced. Again, that is an important matter to be addressed if, when he is released from custody, he is to relocate satisfactorily within the community. The efforts that he has made are important.
51. BNS has denied the offences and claimed that a relative of the victim encouraged the victim to fabricate allegations against him. He is not entitled, therefore, to the benefit of any remorse in sentencing.
52. BNS has a long and significant criminal history. He has been found guilty or convicted of 57 offences. Much of his offending was committed in this Territory [redacted for legal reasons]. These include damaging property, dishonesty offences, drug offences, offences of violence, offences of escaping custody and 14 traffic offences. It is a serious record. He has served terms of imprisonment.
53. It must be said, however, that he has not been found guilty or convicted of any offences of a sexual nature before these offences. While his record denies him any significant leniency, the fact that these offences are, in that sense, out of character does mean that there is some prospect that, with an appropriate sentence, he may be unlikely to reoffend.
54. In the opinion of the author of the Pre-Sentence Report I have for BNS, it is suggested that he does not appear to recognise the connection between his drug use and broad decision-making with his offending behaviour. The lack of insight may, however, be starting to be addressed when considering the steps BNS has taken by attendance on the psychologist and admission to the pharmacotherapy program.
55. The author of the Pre-Sentence Report assesses him as a medium risk of general re-offending. This is said to be primarily due to his "unaddressed illicit substance use", but that does not seem to take into account his admission to the pharmacotherapy program.
56. Nevertheless, it refers also to grief issues and attitudes towards offending. Hopefully, his attendance at the psychologist will help him to address that, but this is not clear.
57. His attitudes to the offending need to be addressed and it is appropriate, perhaps, that he undertake the Adult Sex Offenders Program, even though he denies his commission of the offences. That program may be of assistance to him and prepare him for return to the community.
58. He is assessed as being at moderate to low risk of sexual re-offending, although this is only an assessment based on static risk factors and does not take into account dynamic risk factors, attitudinal factors or thought processes. These, as I have indicated above, are significant. The referral to the Adult Sex Offenders Program is sensible and may address some of the risk of sexual re-offending. I consider, however, that, so far as sexual offending is concerned, he has some prospects of reform, and that should be reflected in the sentence.
59. Sentencing practice is important and the Crimes (Sentencing) Act 2005 (ACT) requires that a court take into account current sentencing practice. I was referred to a number of decisions of this Court. These included R v TC (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, SCC 87 of 2010, 28 March 2011), R v G (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, SCC 308 of 2011, 22 March 2012), R v AB (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, SCC 427 of 2008, 12 April 2012), R v PR (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, SCC 37 of 2012, 12 September 2013), R v SH [2015] ACTSC 25, R v HI [2015] ACTSC 373 and R v CC. These were all cases involving incest and, in many cases, acts of indecency but, of course, the circumstances in each case were somewhat different. There were, for example, pleas of guilty, offenders who had no prior criminal record, with victims of varying age, which, in some cases, rendered the offences more serious for either incest or committing an act of indecency.
60. Uniformly, however, they indicate that a sentence of immediate full-time custody is almost inevitable for such offences, even when there is a plea of guilty.
61. It is, of course, useful to have regard to the sentences actually imposed but with the caution that such sentences provide no precedent and regard must be had to the particular circumstances of each case.
62. It is, however, useful to measure the sentences that I need to impose against those imposed in other cases, and I have taken those cases into account and considered them, in the particular circumstances in each case, so far as they are helpful, in setting out a possible range for the sentences to be imposed.
63. I had a victim impact statement which was read to the court by the prosecutor. Accordingly, BNS was aware of the effects of his offending on TN.
64. Unsurprisingly, it shows that TN was affected by the offences, keeping to herself much more and becoming "really depressed". It affected her self-esteem and she commenced self-harm. This is, again, to the Court's knowledge, a not uncommon result of such offending.
65. It is fortunate that some support she has received through a Christian organisation has reduced her incidence of self-harm significantly.
66. The offending also had an effect on her school work, particularly because she found it difficult to sleep, as this reminded her of the circumstances when she was subject to the offences by BNS. This meant that she arrived at school tired and this affected her schoolwork. She also found she was bullied at school as a result of the offences and had to move schools, although this has improved her situation.
67. She found herself arguing and fighting with her mother more. In fact, as a result, her mother ejected her from the home. She went to her father's house, but he was not "reliable", so she moved in with her grandmother for a month or so. She has now moved in with carers and this has improved her situation. She has started to return to activities in which she engaged prior to the offending and has also been undertaking counselling.
68. The sentence that I must impose cannot erase the effects on TN of the offending but I would hope that it will bring her some opportunity to progress her rehabilitation and the Court certainly hopes that she will be able to overcome the disabilities caused by the offending and have a normal, productive and happy life.
69. I must have regard to the purposes of punishment set out in s 7 of the Crimes (Sentencing) Act 2005. In this case, there is no doubt that general deterrence and punishment play a significant part. It is also important, in the circumstances, to recognise the harm done to the victim, as this is, it would appear, an important element in the ability of victims to overcome the distressing effects of such offending.
70. I have had regard to the matters set out in s 33 of the Crimes (Sentencing) Act, as required. So far as I know them, they are set out in these reasons.
71. They show BNS has some serious matters to address but that he is taking some steps to do so at present.
72. I take into account the seriousness of the offences. I have described that already. There were, in this case, some aggravating features, as I have described, though none of the offences can be described as the most serious versions of the offences.
73. I am satisfied that no sentence but a sentence of immediate full-time imprisonment should be imposed. It must, however, take into account the period of pre-sentence custody which BNS is already serving.
74. As there are multiple sentences, I must also carefully consider the length of each of the sentences that I must impose to ensure that, where there are overlapping common elements between any offences, BNS is not punished twice. That is not a significant factor here, although there were two occasions of offending where some of the multiple offences then committed had overlapping elements.
75. I have also considered whether the sentences should be partly or wholly concurrent because, for example, they are parts of the same enterprise or otherwise. Again, on two occasions there were what might be called a single occasion or event which will attract a higher level of concurrency for the multiple offences.
76. It was put to me that the whole offending was, in effect, a single enterprise. While the offending was within a relatively confined space of a month or so, I do not think that it can be so described.
77. It is important that appropriate sentences be imposed for each of the offences as is necessary and that the reduction of the total sentence by concurrency does not indicate that serial offending can lead to immunity from further punishment.
78. Nevertheless, I must then review the length of the total term of imprisonment arrived at and ensure that the principle of totality is respected. I have done so and I have ensured that the total sentence is adequate to reflect the criminality of the offences committed, but not more than that, and that the total sentence is not crushing and leaves open the realistic prospect of reform and hopes for BNS to achieve his goals when he returns to the community. Where necessary to achieve this, I have adjusted the cumulation or concurrency of the individual sentences.
1. I convict you of incest between 1 and 20 December 2013.
2. I sentence you to four years imprisonment, to commence on 11 December 2014, to take into account pre-sentence custody.
3. I convict you of incest between 21 December 2013 and 2 January 2014.
4. I sentence you to four years imprisonment, to commence on 11 March 2016. That is to be cumulative as to 15 months on the first count.
5. I convict you of committing an act of indecency between 21 December 2013 and 2 January 2014.
6. I sentence you to 18 months imprisonment, to commence on 11 March 2019. That is to be cumulative as to six months on the second count.
7. I convict you of committing an act of indecency between 28 December 2013 and 2 February 2014.
8. I sentence you to 18 months imprisonment, to commence on 11 September 2019. That is to be cumulative as to six months on the third count.
9. I convict you of committing an act of indecency between 22 July and 20 December 2013.
10. I sentence you to two years imprisonment, to commence on 11 December 2019. That is to be cumulative as to nine months on the fourth count.
11. I convict you of committing an act of indecency between 22 July and 20 December 2013.
12. I sentence you to 12 months imprisonment, to commence on 11 March 2021. That is to be cumulative as to three months on the fifth count.
13. I convict you of committing an act of indecency between 22 July and 20 December 2013.
14. I sentence you to 15 months imprisonment, to commence on 11 April 2021. That is to be cumulative as to four months on the sixth count.
15. I convict you of incest between 21 December 2013 and 2 February 2014.
16. I sentence you to four years imprisonment, to commence on 11 October 2019. That is to be cumulative as to 15 months on the seventh count.
17. I convict you of common assault between 28 December 2013 and 2 February 2014.
18. I sentence you to 12 months imprisonment, to commence on 11 December 2022. That is to be cumulative as to two months on the eighth count.
20. I set a non parole period of four years and six months, to commence on 11 December 2014 and to end on 10 July 2019.
I certify that the preceding seventy-nine [79] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.
R
BNS
(1987) 163 CLR 447
(1991) 28 FCR 176
(2011) 6 ACTLR 18