R v DK [2014] ACTSC 173

Crimes (Sentencing) Act 2005 (ACT)

Legal Aid ACT (Offender)

1. DK, you have pleaded guilty to the following offences:

a) Firstly, two offences of committing an act of indecency on a young person under the age of 16 in which the complainant or victim was MS who was, as I understand it, 10 years old at the time of these offences (CC2014/261; CC2014/262); and

b) Secondly, three charges of committing an act of indecency on a young person under the age of 16 being LS who was, again as I understand it, 14 years of age at the time of these offences (CC2014/263; CC2014/264; CC2014/265).

2. An Agreed Statement of Facts has been put before the court and I will not, in course of the sentencing remarks, reiterate the facts in the case. When determining the objective seriousness of these offences I take into account that each of the offences involved touching of the genital area of the child under their clothing. You were the step father of the two victims and you would go into their bedrooms at night and fondle their genital areas while they were sleeping.

3. The offences, whilst involving touching only, are not in any way trivial. Each of the offences involve a significant breach of trust. I accept that they were pre-meditated. They all occurred within the victims' family home. They all occurred, I accept, over a short period of time. The Crown has submitted that I should find that these offences are at the upper end of offences of this nature but I am not satisfied that they are. I would consider that they are more towards the middle of the range of offences of this nature.

4. These offences only came to light because you made disclosure of them to your wife, the mother of the children, and also subsequently to a counsellor. The counsellor told you he would report this disclosure. You also voluntarily disclosed these offences to Child Protection Services. You subsequently participated in a taped record of interview with police in which you made full admission to the commission of these offences. You voluntarily sought treatment. I note that you have seen a psychologist, Dr Stevens, who gave evidence in these proceedings, on a regular basis over the last 16 months. All of that indicates awareness on your part that your conduct was wrong and a desire to change. I am also satisfied this demonstrates considerable remorse. If it were not for the voluntary disclosures that you made, these offences would never have come to light because the victims did not know they occurred.

5. I note that you have no previous convictions recorded against you. This entitles you to some leniency in these matters.

6. You are 36 years old. I note that you had a childhood in which you were sexually abused between the ages of 10 and 14, during which you were also exposed to pornography.

7. I note that disclosure of these offences has had a very significant impact on your life. You no longer reside with your wife when she is exercising custody of her children. You no longer have contact with the children. You are also subject to a domestic violence order. You have lost your employment as a teacher and the likelihood is that you will never obtain employment in that field again.

8. I note that you have, according to the author of the Pre-Sentence Report, a history of problematic alcohol consumption for which you have voluntarily sought treatment acknowledging that that has had a dis-inhibiting affect upon you. Indeed, the material suggests that consumption of alcohol may have had some influence upon you committing these offences. I note that at the time that these offences occurred you were also accessing child pornography on a computer or computers.

9. I take into account that you are currently employed and that you have a good history of employment. You have undertaken an adult sex offender assessment. You were assessed at low risk of sexual or general reoffending. I note that that assessment was based upon a recidivisms assessment tool and I accept that, whilst that is not infallible, the other evidence in this case supports that assessment. In particular, I refer to the evidence of Dr Stevens, who, as I have already indicated, has been treating you over a significant period of time.

10. I note that you have been assessed as being suitable to undertake the adult sex offenders program. As I have already indicated, you have demonstrated significant remorse in these proceedings. You entered pleas of guilty which not only demonstrated remorse but also had a significant utilitarian value. You facilitated the administration of justice by admitting the offences to police and also by maintaining a plea of guilty in respect of these charges.

11. I accept your plea of guilty also demonstrates a willingness, on your part, to accept responsibility. I am satisfied on the evidence that you have good prospects for rehabilitation based in particular on the evidence given by Dr Stevens. The evidence, in my opinion, does not suggest a strong need for personal deterrence in sentencing. Nevertheless, such offences call for a sentence which denounces the conduct and also is designed to deter others from committing this type of offence.

12. It has been accepted by your counsel, I think rightly so, that these offences call for a term of imprisonment. The Crimes (Sentencing) Act 2005 (ACT) provides that I should only impose an immediate term of imprisonment in circumstances where no other sentence will be adequate to reflect the needs of sentencing. In my opinion, taking into account all of the circumstances, a suspended term of imprisonment will be adequate to reflect the needs of sentencing with respect to these matters.

13. With respect to the offences concerning MS, I record convictions and on each matter you are sentenced to 12 months' imprisonment commencing today, which will be wholly suspended. There will be a Good Behaviour Order for a period of 18 months with the following conditions:

a) Firstly, you are to accept the supervision of ACT Adult Corrections for that period of 18 months or such lesser period as deemed appropriate by your supervising officer;

b) Secondly, you are to undertake such counselling or treatment or programs as directed by ACT Adult Corrections; and

c) Thirdly, you are to undertake the Adult Sex Offender program as directed by ACT Adult Corrections.

14. With respect to the offences concerning LS, I record convictions and on each matter you are sentenced to 12 months' imprisonment of which six months is to be consecutive with the offences relating to MS. Again, those sentences will be wholly suspended and there will be a Good Behaviour Order for a period of 18 months from today with the same conditions which I imposed with respect to the offences concerning MS.

15. I'll make an order based on an application made by the Crown that the name of the accused not be reported and that is based upon the proposition that if his name is reported it is almost inevitable that there will be people in the community who will identify the complainants.

I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.