R v H [2015] ACTSC 221

CRIMINAL LAW - Sentence - particular offences - sexual offences - crimes and offences against children - cooperation with police

Crimes Act 1900 (ACT) ss 61(1), 61(2)

Crimes (Sentencing) Act 2005 (ACT) ss 7, 33, 35

PR v The Queen [2014] ACTCA 40

R v AM (Unreported, Supreme Court of the ACT, Murrell CJ, 28 March 2014)

R v DK [2014] ACTSC 173

R v Fitzpatrick (Unreported, Supreme Court of the ACT, Nield AJ, 23 June 2013

R v Girvan (Unreported, Supreme Court of the ACT, Refshauge ACJ, 25 September 2013)

R v SH [2015] ACTSC 25

Legal Aid ACT (Offender)

1. The offender is before the Court for sentence on eight counts of committing an act of indecency on a young person. The offences are:

(a) Between 5 November 2008 and 5 November 2009, he committed an act of indecency on X, a person under the age of 10 years, contrary to s 61(1) of the Crimes Act 1900 (ACT). The maximum penalty is 12 years' imprisonment. (Offence 1)

(b) Between 1 June 2009 and 31 July 2009, he committed an act of indecency on X, a person under the age of 10 years, contrary to s 61(1) of the Crimes Act. The maximum penalty is 12 years' imprisonment. (Offence 2)

(c) Between 1 June 2009 and 31 July 2009, he committed an act of indecency on X, a person under the age of 10 years, contrary to s 61(1) of the Crimes Act. The maximum penalty is 12 years' imprisonment. (Offence 3)

(d) Between 1 May 2010 and 10 May 2010, he committed an act of indecency on X, a person under the age of 10 years, contrary to s 61(1) of the Crimes Act. The maximum penalty is 12 years' imprisonment. (Offence 4)

(e) Between 10 May 2010 and 25 May 2010, he committed an act of indecency on X, a person under the age of 10 years, contrary to s 61(1) of the Crimes Act. The maximum penalty is 12 years' imprisonment. (Offence 5)

(f) Between 1 February 2013 and 31 March 2013, he committed an act of indecency on Y, a person under the age of 16 years, contrary to s 61(2) of the Crimes Act. The maximum penalty is 10 years' imprisonment. (Offence 6)

(g) Between 1 January 2013 and 31 December 2013, he committed an act of indecency on Y, a person under the age of 16 years, contrary to s 61(2) of the Crimes Act. The maximum penalty is 10 years' imprisonment. (Offence 7)

(h) Between 28 April 2014 and 4 July 2014, he committed an act of indecency on Y, a person under the age of 16 years, contrary to s 61(2) of the Crimes Act. The maximum penalty is 10 years' imprisonment. (Offence 8)

2. At the time of Offences 1 - 5, the victim X was aged either eight or nine years. At the time of Offences 6 - 8, the victim Y was aged either 14 or 15 years.

3. The offender has been in custody since 25 March 2015 and the sentences will commence on that date.

4. The offender entered pleas of guilty at an early stage in the Magistrates Court. Taking into account the matters in s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), including the strength of the Crown case, the offender should receive the usual 25% discount for the utilitarian value of the pleas. The Crown case was strong because of the concessions and admissions that the offender made. In respect of Offence 1, the offender is entitled to a more substantial discount in accordance with s 36 of the Sentencing Act. That matter came to the attention of the authorities only because the offender disclosed it to the police. He will therefore receive a discount of approximately one third for that offence.

5. From 2007, the offender was in a relationship with the victims' mother. The couple married in 2010. At the time of the offences, the victims were residing with the offender and their mother. The offender was a stepfather to the victims and their younger twin sisters, who also resided in the household. Later, the relationship between the offender and the victims' mother produced a daughter.

6. Offence 1 occurred in 2008 when X was eight years of age. She approached the offender because she thought that she had worm parasites. She asked him to check her anal area. While doing so, the offender touched her genital area.

7. Offence 2 occurred when the offender entered X's bedroom and touched her on the genital area.

8. Offence 3 was very similar to Offence 2. Both offences occurred when the victims' mother was interstate caring for a sick relative and the victims and their sisters were in the sole care of the offender.

9. Offence 4 is the most serious matter before the Court. It occurred between 1 and 10 May 2010 at the home of the victims. The offender entered the matrimonial bedroom, where X was watching television. He told her to stand and face the television. He pulled down her pants and touched her genital area using the middle finger of his right hand. The statement of facts says that "the offender only stopped when he got bored." At the time of the offence, X was nine years of age.

10. Offence 5 also occurred in May 2010. The offender entered a bedroom, where X was reading a book by herself. He knelt down and touched X on the genital area, underneath her underwear.

11. Offence 6 occurred at the home of the victims. Y was sitting in the matrimonial bedroom playing a videogame when the offender said to her "show me your boobs." Y complied, exposing her breasts to him. The offender said nothing and left the room. Y was 14 years old at that time.

12. Offence 7 occurred during 2013 at the home of the victims. Y was asleep in her bedroom, when she awoke to find the offender next to her bed, touching her genital area on the outside of her pyjamas. Y told the offender to leave and he did so.

13. Offence 8 occurred between 28 April and 4 July 2014. The offender had taken Y for a driving lesson. On the way home, while Y was seated in the front passenger seat listening to her iPod, the offender grabbed her right breast through her clothing. Y asked the offender why he had done so, and the offender did not reply. Y was 15 years old at the time.

14. The offences were not isolated incidents. In the four year period from 2008 to 2012, the offender committed numerous offences of a similar nature against X. During 2012, he spoke to X and asked her what she wanted to do, referring to the offending conduct. She said that she wanted to forget about it. The offender told X that he did not think that she would be able to forget about it. He also warned her that, if the conduct became known publicly, he could be imprisoned.

15. X was concerned about breaking up the family, and for that reason, she did not report the offender's misconduct until March 2015. She disclosed to her mother that the offender had molested her from age eight to age 12. As a consequence of the disclosure, X's mother spoke to the offender, asking "X told me you touched her from when she was eight 'til when was 12, is that true?" to which the offender responded in the affirmative.

16. The matter was reported to the police. The victims' mother participated in a pre-text telephone conversation with the offender. In the course of the conversation, the offender made the general admission, "I don't know why I did it."

17. Soon after the conversation, on 25 March 2015, the offender participated in a record of interview with police in which he made full admissions. He admitted that he had acted indecently toward X since 2008, when X was eight years of age. During the interview he disclosed Offence 1, which otherwise had not been particularised to the police. He told the police about the conversation that he had had with X when she was 12, which signalled an end to his misconduct. He also disclosed that he had touched Y on the breasts a number of times and only stopped when Y disclosed the misbehaviour to her mother.

18. The indecent behaviour of the offender towards the victims has had a devastating impact on the victims, their mother and the family generally. X read her victim impact statement to the Court. A statement prepared by Y was read by her mother. The victims' mother also read her own victim impact statement.

19. X said that, because of the offender's violations of her, she did not regard her house as a true home. She described the anger that she now feels towards the offender. His conduct ruined many years of her life. The emotional impact did not surface fully until she made a disclosure. She suffers from extreme anxiety, sleep difficulty and has thoughts of suicide. For a period, X dropped out of school. X believes that her anger and anxiety have had a very negative impact on her relationships with other family members and on her ability to achieve her academic potential and career ambitions. She finds it very difficult to concentrate at school.

20. There has been a similar impact on Y. She described feelings of irritability and anger, and a tendency to vent those feelings on her siblings. She has had difficulty concentrating at school, and becomes easily upset. She experiences stress, anxiety and flashbacks.

21. The victims' mother said that both of her daughters had been confident and happy individuals who were capable scholars. However, they have lost a great deal of confidence and become angry because of the offender's behaviour. Their schooling has been dramatically disadvantaged. X has been severely affected to the extent that she has spent a period in a mental health institution. The victims' mother also described the impact on the family generally. The victims' sisters have been deeply affected by the abuse and the relationship between the five girls has become strained. The youngest daughter, who is the product of the offender's relationship with the victims' mother, is very confused and upset. She provides a constant reminder to the victims of the conduct of her father. The offender's conduct has had a very serious ripple effect on the entire family.

22. The victims' mother is hearing-impaired and she feels that her ability to detect some of the misconduct may have been affected by her disability; she does not wear hearing aids at night. She is very angry towards the offender, and she feels very guilty. Unfortunately guilt and anger are commonly experienced by parents of children who have been abused. The victims' mother loved and trusted the offender but her trust in others has been destroyed by the offender's abuse of her trust. Her ability to function has been affected greatly. She feels unable to function in a normal way and she has become dependent upon others to assist her with daily tasks. Undoubtedly, the victims' mother has lacked the extra resources necessary to support her daughters in relation to their complex psychological problems.

23. I can understand that the victims remain very angry with the offender, and that they are currently focussed on punishment and retribution. I hope that, when these proceedings are finalised, the victims will come to appreciate that they hold their future in their own hands. Punishment of the offender will not resolve their difficulties; they are the only ones who can create a more positive future for themselves.

24. The Court acknowledges the damage to the victims occasioned by the offender's misconduct.

25. The offences perpetrated against X are of greater objective seriousness. The offences involved touching, in some instances skin on skin touching, of X's genital area. She was only eight or nine years old at the date of the offences. The offences were not isolated. The offender gains no leniency from an argument that the offences occurred on only a few isolated occasions.

26. Most of the offences against X occurred in the home. As X said, this meant that the house was not a true home to her; it was not a place of safety. The offences involved a gross breach of trust by the offender who, as the victims' stepfather, stood in loco parentis to the victims. On some occasions, he had the sole care of the children.

27. The offender warned X that he would go to gaol if she disclosed the offending conduct. In an attempt to preserve the family unit, she kept the offending conduct a secret. This may have meant that the emotional impact on X was worsened.

28. The offences committed against Y are serious. When one considers the spectrum of conduct that may constitute indecent conduct, they are not at the worst end of the spectrum, although the incident involving touching Y while she was asleep is of some seriousness. To be awoken to such conduct must have been a very frightening experience.

29. The offences were opportunistic. The offender did not set up situations that enabled him to perpetrate the offences. They were not premeditated in that sense. However, offences of this nature are often opportunistic. Many opportunities arise when one is residing with young children as their stepfather.

30. The offender is now 41 years of age. The offences occurred when he was 35 to 40 years of age. He has no prior relevant criminal history. He had a positive childhood. He was close to his parents. They continue to support him although, naturally, they are shocked by the turn of events and they are conflicted because they wish to support their granddaughters.

31. The offender attained Year 10 schooling. He has a good employment record. As a consequence of the commission of these offences, he lost a long-standing employment position.

32. The offender has had only one significant relationship; his relationship with the victims' mother. That relationship broke down as a result of the disclosures.

33. When the disclosure was made, the offender was immediately remorseful and contrite. He said that he was glad that he was arrested because that brought an end to his activities. He told the author of the Pre-Sentence Report that he believes that he should be in custody for what he had done.

34. The offender had an issue of binge drinking. There may be some association between the overconsumption of alcohol and the commission of some of these offences. However, that is not a mitigating feature. The offences are not isolated offences that occurred unexpectedly because of disinhibition caused by alcohol consumption. Some offences were committed when the offender had not consumed alcohol. In any event, the consumption of alcohol can rarely be a mitigating feature in relation to offences of this type.

35. In addition to admitting his culpability when confronted by the victims' mother and making full admission to the police, the offender offered an apology to the victims in Court. The apology could not be described as fulsome. That is probably more a reflection of the offender's inability to articulate his position rather than a lack of insight and regret. It is to the offender's credit that he has been very open about the fact that the offences were motivated by sexual gratification. So many people who commit offences of this nature are unable to make that concession.

36. The Court received information about the Adult Sex Offender Program that is run both within prison and in the community by ACT Corrective Services. The offender has not been interviewed to assess his suitability for the Program, but he has been the subject of two static tests: Static 99 and LSI-R. Static 99 assessed his risk of sexual recidivism. LSI-R assessed his risk of general reoffending. In relation to both sexual recidivism and general reoffending, the offender was assessed to be at low risk.

37. I consider that there is virtually no risk of general reoffending, given the offender's age and the absence of any significant criminal history, and a low risk of sexual reoffending. The risk of recidivism is reduced by the fact that the offender immediately accepted responsibility for the offending behaviour and made full admissions. In other words, he did not seek to minimise his misconduct. He is willing and able to undertake a sex offender's program. This makes him a very good subject for such a program.

38. The Court is required to consider the sentencing purposes in s 7 of the Sentencing Act. In the present case, most of the sentencing purposes are relevant to the sentencing exercise. Punishment is relevant. The relevance of general deterrence is doubtful. It is unlikely that persons who commit offences of this nature are deterred by hearing about the sentences imposed upon others. In the present case, specific deterrence is of lesser importance, because of the low risk of recidivism. However, the sentencing purposes of accountability, denunciation and recognition of harm to the victims and the community generally are very important to this sentencing exercise.

39. As the prosecution submitted, crimes of this nature are abhorred by the community and accountability and denunciation are therefore important sentencing purposes. Rehabilitation is also a very important purpose, not just from the perspective of the offender but, more importantly, from the perspective of the community. Rehabilitation provides the community with the best protection for the future.

40. The Court must consider the relevant matters in s 33 of the Sentencing Act, and any other factors that may be relevant. I believe that I have referred to the relevant matters.

41. Current sentencing patterns are not referred to in s 33 of the Sentencing Act. However, it is relevant for a sentencing court to consider current sentencing patterns. It is important that there be seen to be equal justice for offenders who commit similar offences.

42. The Court was referred to a number of cases, but none was directly comparable. However the cases paint a fairly clear picture of the sentencing pattern for offences of this type in the ACT. The prosecution provided the Court with a table of sentences imposed in other cases.

43. The cases included PR v The Queen [2014] ACTCA 40, R v DK [2014] ACTSC 173 (currently the subject of a Crown appeal on the basis that a suspended sentence was a manifestly inadequate response to the offender's conduct), R v SH [2015] ACTSC 25, R v AM (Unreported, Supreme Court of the ACT, Murrell CJ, 28 March 2014), R v Girvan (Unreported, Supreme Court of the ACT, Refshauge ACJ, 25 September 2013) and R v Fitzpatrick (Unreported, Supreme Court of the ACT, Nield AJ, 23 June 2013). The outcomes in those cases are consistent with the range of outcomes in the table provided by the prosecution. The disclosed range is six months to three years' imprisonment. That does not mean that the past range is the appropriate range. Rather, it is the pattern to date. The maximum available penalty is always a critical sentencing parameter and sentencing patterns must be evaluated in that context.

(a) For Offence 1, commit an act of indecency on X, a person under the age of 10 years, between 5 November 2008 and 5 November 2009, the offender would have been sentenced to 6 months' imprisonment, but this is reduced for the assistance provided to authorities to 4 months' imprisonment, from 25 January 2016 to 24 May 2016.

(b) For Offence 2, commit an act of indecency on X, a person under the age of 10 years between 1 June 2009 and 31 July 2009, the offender would have been sentenced to 12 months' imprisonment, but this is reduced for the plea of guilty to 9 months' imprisonment, from 25 February 2016 to 24 November 2016.

(c) For Offence 3, commit an act of indecency on X, a person under the age of 10 years, between 1 June 2009 and 31 July 2009, the offender would have been sentenced to 12 months' imprisonment, but this is reduced for the plea of guilty to 9 months' imprisonment, from 25 March 2016 to 24 December 2016.

(d) For Offence 4, commit an act of indecency on X, a person under the age of 10 years, between 1 May 2010 and 10 May 2010, the offender would have been sentenced to two years and four months' imprisonment, but this is reduced for the plea of guilty to 21 months' imprisonment, from 25 August 2016 to 24 May 2018.

(e) For Offence 5, commit an act of indecency on X, a person under the age of 10 years, between 10 and 25 May 2010, the offender would have been sentenced to 20 months' imprisonment, but this reduced for the plea of guilty to 15 months' imprisonment, from 25 May 2016 to 24 August 2017.

(f) For Offence 6, commit an act of indecency on Y, a person under the age of 16 years, between 1 February 2013 and 31 March 2013, the offender would have been sentenced to 6 months' imprisonment, but this is reduced for the plea of guilty to 4 months' imprisonment, from 25 April 2015 to 24 August 2015.

(g) For Offence 7, commit an act of indecency on Y, a person under the age of 16 years, between 1 January 2013 and 31 December 2013, the offender would have been sentenced to 12 months' imprisonment, but this is reduced for the plea of guilty to 9 months' imprisonment, from 25 June 2015 to 24 March 2016.

(h) For Offence 8, commit an act of indecency on Y, a person under the age of 16 years, between 28 April 2014 and 4 July 2014, the offender would have been sentenced to 6 months' imprisonment, but this is reduced for the plea of guilty to 4 months' imprisonment, from 25 March 2015 to 24 July 2015.

46. The total period of imprisonment is three years and two months, from 25 March 2015 to 24 May 2018. I fix a non-parole period of 19 months. The offender will be eligible for release to parole on 24 October 2016.

47. I have set a relatively short non-parole period because I believe that it is in everyone's interests that the offender be supervised in the community for an extended period following his release.

I certify that the preceding forty-seven [47] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.