R v GJ [2014] ACTSC 186

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - sentence for one offence of act of indecency without consent - abuse of power imbalance between offender and victim - first offender of positive good character making significant contribution to the community - no need for sentence of imprisonment to be served in full-time custody - sentence of imprisonment suspended subject to good behaviour order with community service condition.

Crimes Act 1900 (ACT), s61

Crimes (Sentence Administration) Act 2005 (ACT)

R v Dhaimat [2014] ACTSC, Burns J, 12 March 2014

R v Fernando [2010] ACTSC, Penfold J, 17 December 2010_R v Hossein_ [2011] ACTSC, Nield AJ, 25 July 2012

Legal Aid ACT (Offender)

1. HER HONOUR: GJ has pleaded guilty to one count of an act of indecency without consent, an offence that arises under s 61 of the Crimes Act 1900 (ACT) and has since 7 July 2011 carried a maximum penalty of seven years imprisonment.

2. The incident is described in the agreed statement of facts as follows:

On the evening of 12 August 2011 [GJ], an Assistant Commissioner with [a service organisation in Canberra], went to a ... meeting. There he met volunteer member, [the complainant], (19 years old) who had recently transferred from NSW. After the meeting the volunteer members, including [GJ] and [the complainant] went out to dinner at the Mawson Club. [GJ] drove [the complainant] to the Mawson Club and during the trip he told her that she had a "hot arse" and put his hand on her leg.

After dinner some of the group including [GJ] and [the complainant], went to JA's house in [Ainslie] for more drinks, movies, and dancing. [GJ] was intoxicated.

At about 3:00 am on 13 August 2011 JA, [the complainant] and [GJ] went to bed in JA's room. JA slept in the single bed and [the complainant] and [GJ] slept on the double futon. [The complainant] told police [she] did not want to sleep in the same bed as [GJ] and placed a pillow at her back between herself and him. [The complainant] was intending to go to the lounge room after ML and his girlfriend left. (ML was JA's housemate - he and his girlfriend were in the lounge room at the relevant time and fell asleep there).

JA told police the following:

"I said to [the complainant] "it's up to you where you sleep, there's a single bed and a double bed, I'm happy for you to stay on the single bed or the lounge." [The complainant] told me she was happy to stay in the double bed with [GJ]. She had no issue with it."

[GJ] got changed into tracksuit pants and got into bed. [GJ] was not wearing any top. JA told police that the three of them were talking about how much they had been drinking.

As [the complainant] was falling asleep [GJ] moved the pillow between himself and her and said, "I'm a very cuddly person". [GJ] then lay behind [the complainant] in a 'spooning' position and put an arm around her and held her right hand. He then unclasped her bra with the other hand, put his hand underneath her bra and squeezed her breast. [GJ] then rolled [the complainant] onto her back and tried to kiss her but she moved her head to avoid the kisses. At some point [the complainant] started crying and said, "stop it ... leave me alone". [GJ] tried to move [the complainant]'s hand towards his penis but she tried to pull her hand away. [GJ] then unzipped [the complainant]'s jeans. She tried to zip them up but [GJ] had put his hand inside her underwear and inserted his finger into her genitalia (but not to the extent of penetrating her vagina).

[The complainant] got up and said, "I'm just going to the bathroom." She picked up all her belongings and went to the bathroom and climbed out the window and onto a table outside. She ran down the driveway onto the street. She ran approximately 2 kms through Ainslie. She sent the following text message to her friend CP:

"I need help :( asap i dunno what do and i cant tell T...please help me i had to break out bathroom window to get away please."

CP called [the complainant] who told him what had happened.

At about 4:47 am CP called police and reported the incident. A short time later police attended to [the complainant] and saw that she was crying and distressed and talking on her mobile phone. She told police what had happened.

In the meantime at about 4:00 am [GJ] was concerned and frantic and spoke [to] JA's flatmate, ML who had woken up. [GJ] said that [the complainant] wouldn't know her way around Canberra so they drove around looking for her. They called [the complainant]'s mobile telephone and police answered it and said [the complainant] was fine.

[GJ] woke JA and told her that [the complainant] was gone.

At some point ML saw the bathroom sliding window was open and told them that [the complainant] had broken out of the window. [GJ] was flustered and said over and over, "I don't know why she went out the window and why she rang police".

3. GJ was originally charged with a more serious offence in connection with the incident. He was released on bail and has spent no time in custody in relation to this incident.

4. GJ was committed to the Supreme Court for trial on the more serious offence, and the trial began on 5 March 2014. On 6 March he pleaded guilty to the current charge, a less serious one, on a new indictment. Even at that point his guilty plea had utilitarian value, and there will be a sentencing discount, but not a large one.

5. This is a fairly serious example of an act of indecency involving, as it does skin to skin contact with the complainant's external genitalia. It is in my view aggravated by the abuse of his position and his maturity that was involved in GJ, then aged 36, making uninvited sexual advances to a much younger woman. There is insufficient evidence before me for a finding that GJ had any authority over the complainant within the [organisation concerned]. However, given their respective ages, and that GJ was a senior office-holder in the organisation and the complainant was a new, young, volunteer member of the organisation, I am satisfied that there was a power imbalance in their relationship. I am further satisfied that GJ took advantage of that, at the very least when he removed the pillow the complainant had placed between them and said, "I'm a very cuddly person", conduct which in the circumstances can only be interpreted as signalling an intention to have physical contact rather than issuing an invitation that left the decision up to the complainant.

7. The complainant provided a Victim Impact Statement which described the significant effect of the offence on her:

I was a happy carefree university student who had just moved to Canberra and was excited to meet new people and continue to learn while having fun, as I pursued my dream career as a paramedic at the time. This was all ripped out from under my feet and the dream which I had worked so hard to make happen was gone.

In the few weeks after the incident, I struggled to want to leave the house and became a very sheltered and quiet person. I no longer felt safe - I struggled to trust anyone. I wanted to leave my studies at university because I couldn't stand the thought of being alone around people I didn't know all that well. My parents tried their absolute hardest to assist me in continuing and tried to guide me as best they could. Despite their efforts to make me feel safe and stop blaming myself - I dropped out of university. I was scared no matter where I went or what I did and I struggled to be in Canberra, so I left and moved back home to my parents.

Many of my personal relationships began to suffer as a result of the way I had changed. I didn't feel comfortable talking or want any of my friends to know what had happened - therefore I lost contact with the majority and others started to ignore me because they didn't know the circumstances behind my sudden change. I started to argue with my family more because I just felt I wanted to be alone and didn't want to accept any help. I ran away from home and only lasted a week because of my insecurity and not feeling safe anywhere. I was a mental mess daily with many thoughts controlling my mind and consuming my thoughts. Leaving university was a massive issue for me and I felt as though everything was being taken away from me one thing at a time. My world was crumbling around me.

I moved back home again and it was parents who made me realise that I couldn't give up, I had to continue to live my life the way I wanted to. It took months and a lot of support, but I managed to get myself a part-time job and began to slowly rebuild myself.

8. The complainant described further distress caused by the fact that after nearly a year police decided not to proceed on her complaint, a decision that was then reversed some months later, and by the need to prepare herself for GJ's trial only to have it aborted by the guilty plea.

9. While one can sympathise with GJ's reported difficulties in forming relationships, the Pre-Sentence Report indicates that GJ seems unable to accept full responsibility for the offence saying:

While [GJ] does not dispute the Agreed Statement of Facts, he stated he did not recall the events detailed in the description of the offence. He claimed his failure to recall the details of the offence was due to his intoxicated state, but accepted that allegations had been made in response to his behaviour.

[GJ] has made an expression of empathy with the victim of the offence, with reference to others he has known who have experienced sexual assault, using this knowledge to inform him of how his victim may be feeling. He expressed a reluctance to believe himself capable of making someone feel the way he imagined the victim may feel as a result of his actions.

[GJ] expressed his confusion about his capacity to commit the offence, and cited previous experiences of consent being withdrawn in intimate situations which he had respected. He further expressed his belief in his ability to assess situations of potential intimacy accurately, as he generally lacked confidence and was wary of misreading attraction from other women.

,,,

While he was cooperative at all times with the preparation of this report, [GJ] demonstrated a lack of insight into his actions and motivations, which resulted in his expressed confusion about his capacity to commit the offence. He demonstrated denial of his actions, through minimising his responsibility by attributing the offence to his intoxicated state. The dissonance between his statement of guilt and his understanding of his actions and motivations is of concern.

10. Although alcohol has been identified as a contributing factor to the offence, and there is evidence of heavy alcohol consumption by [GJ] from time to time, there is no indication that [GJ] sees his alcohol use as problematic or is seeking to address it.

11. The Pre-Sentence Report provides the following information about GJ's background:

Born and raised in Canberra, GJ described a happy childhood with his mother and older brother. As an adult he is the only member to reside in Canberra, but he has maintained strong and close relationships with his family.

Despite two long-term relationships, GJ is unmarried. He stated he had not engaged in any romantic relationships in the past 11 years, and is dissatisfied with his single status. He claimed that since he became a paramedic the shift work required by his employment was problematic for forming romantic attachments.

GJ reported he had been employed as a paramedic since 2003. He described his career as deeply satisfying and the realisation of a long ambition. He expressed pride in his work and pleasure at being able to serve the community. Since [his plea of guilty to] this offence, he has been suspended on full pay. GJ has been receiving treatment for a mood disorder since 2010. His condition does not impair his ability to participate in employment.

12. The Pre-Sentence Report author made the following assessment of GJ:

GJ is a 41 year old single man with a strong desire to be of service to his local community through his employment as a paramedic and his volunteer work. Prior to the conviction for this offence, [which of course has not quite happened yet] he enjoyed a network of close friends, but was at times lonely for a long term relationship.

...

It is noted GJ's strong network of prosocial friends and family diminishes his risk of reoffending. While his contribution to his community is also noted, it is concerning that the victim of the offence is connected to this work. It is considered that his poor decision making skills and lack of consequential thinking when consuming alcohol place him at risk of further offending.

13. Character evidence was given on behalf of GJ by a colleague in the [service organisation], and by his mother.

14. His colleague said that she had worked with GJ for nearly 20 years since he joined the organisation around 1995. She said that GJ had been part of [the organisation's] contingent at both the Manchester and Melbourne Commonwealth Games, and in about 2003 had received an award from the organisation for outstanding service. She agreed that she had seen him get drunk occasionally, but denied that he was a heavy drinker. She said that she had never heard anything adverse about him since GJ joined the organisation.

15. GJ's mother reported that GJ had suffered a serious spinal injury when he was about 17, and had to wear a body brace for 12 months afterwards. His experiences in hospital had led him to begin first-aid training and he had joined [the organisation] as a volunteer soon afterwards. Later he trained as a paramedic and joined [one of the New South Wales emergency services]. GJ's mother said that she believed his mood disorder had been triggered by his experiences attending a fatal accident, and that he had been receiving counselling. She had never seen him affected by alcohol, and had never seen him show any lack of respect towards women.

16. Denunciation and general deterrence are clearly important purposes of sentencing for offences of this kind, but despite the concerns expressed by the Pre-Sentence Report author, I suspect that GJ will need little in the way of personal deterrence. Nevertheless, I am satisfied that no sentence other than imprisonment would be appropriate, the question being how such a sentence should be served.

17. In determining a sentence for this offence, I have noted a number of other sentencing decisions of this Court that were drawn to my attention including R v Hossein [2011] ACTSC, Nield AJ, 25 July 2012; R v Reeves [2012] ACTSC, Nield AJ, 2 May 2012; R v Fernando [2010] ACTSC, Penfold J, 17 December 2010; and R v Dhaimat [2014] ACTSC, Burns J, 12 March 2014, all except Dhaimat having been for offences committed while the maximum penalty was five years imprisonment. I have had regard to GJ's otherwise good character, to the positive contribution he has made to the community through his work as a paramedic and first-aid officer, and to the fact that this offence may affect his capacity to continue with a career that obviously means a great deal to him. It is a tragedy for all concerned that he has, whether as a result of intoxication or otherwise, so far forgotten himself as to inflict this violation on a young woman who obviously shared his wish to contribute to the community, with distressing consequences for both of them.

18. GJ, please stand. I record a conviction on one charge of an act of indecency without consent.

19. I now sentence you to imprisonment for 19 months, reduced from 21 months for your plea of guilty.

20. The sentence will be immediately suspended, and I now order you to sign an undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for two years with security in the amount of $2,000. The good behaviour order is subject to the conditions:

(a) that for such period not exceeding two years as the Director-General considers necessary, you accept the supervision of ACT Corrective Services and obey all reasonable directions of the Director-General or delegate;

(b) that you undertake such counselling, courses, programs or treatments as directed by your supervising officer;

(c) that you be assessed and, if found suitable, that you undertake the Adult Sex Offenders Program; and

(d) finally, that in the next 12 months you complete 200 hours of community service.

21. You will be given a written copy of the good behaviour order, and it will be explained to you by court officials and by Mr Doig. But in short, it means that for the next two years you need to keep out of trouble, keep in contact with Corrective Services for as long as they require in that two years and, if appropriate, participate in the Adult Sex Offender Program. If you commit another offence during that time, or breach your good behaviour order in any other way such as failing to complete your community service, you may find yourself back before this court to be re-sentenced for this offence, as well as possibly losing your $2,000 security.

22. If you have any questions about that order, please ask the court officials or, as I have indicated, Mr Doig.

I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold.