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[2014] ACTSC 362
Supreme Court of the ACT
2014-12-10
Refshauge J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
CRIMINAL LAW - Judgment and Punishment - Sentencing - Act of indecency in the presence of a child under sixteen years
CRIMINAL LAW - Judgment and Punishment - Sentencing Procedure - Victim Impact Statement - Admissibility - Form of Statement - Consent of Victim - Document inadmissible
Crimes Act 1900 (ACT), s 61(1)
Carlton v The Queen [2008] NSWCCA 244; (2008) 189 A Crim R 332
Dixon-Jenkins v The Queen (1991) 55 A Crim R 308
Fisher (1989) 40 A Crim R 442
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
R v BJW [2000] NSWCCA 60; (2000) 112 A Crim R 1
R v DK [2014] ACTSC 173
R v Dunn (2004) 144 A Crim R 180
R v Evans (Unreported, NSWCCA, Street CJ, Roden and Newman JJ, 24 March 1988)
R v Hudson (Unreported, NSWCCA, Spigelman CJ, Sully and Ireland JJ, 30 July 1998)
R v Iacuone (No 2) (2014) 286 FLR 217
R v JVP (Unreported, NSWCCA, Gleeson CJ, Abadee and Dowd JJ, 6 November 1995)
R v KNL [2005] NSWCCA 260; (2005) 154 A Crim R 268
R v Mansour [1999] NSWCCA 180; (1999) 29 MVR 409
R v Miller [1995] VicRp 60; [1995] 2 VR 348
R v Muldoon (Unreported, Hunt, Enderby and Grove JJ, 13 December 1990)
R v Schmidt [2013] ACTSC 295
R v Sea (Unreported, NSWCCA, Gleeson CJ, Wood and Badgery-Parker JJ, 13 August 1990)
R v Slack [2004] NSWCCA 128
R v Tamblyn (Unreported, ACTSC, Crispin J, 3 June 2005)
R v Warnes (Unreported ACTSC, Penfold J, 2 October 2010)
R v Wilson [2005] NSWCCA 219
1. There is no doubt that sexual offences committed against children are serious offences. This is shown by the maximum penalties provided by the legislature which are a helpful yardstick by which to measure the facts. See Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at 133; [31].
2. Nevertheless, the precise circumstances under which such offences are committed range widely and the precise circumstances need to be taken into account.
3. Leonard Theodore Lam was found guilty by a jury of three counts of committing an act of indecency in the presence of the complainant, then being a person under the age of sixteen years.
4. The first offence is contrary to s 61(1) of the Crimes Act 1900 (ACT), which provides for a maximum penalty of twelve years' imprisonment. The second and third offences are contrary to s 61(2) of the Crimes Act, for which the maximum penalty is ten years' imprisonment.
5. As the findings of guilt were made by a jury, I must determine the facts from the evidence given at the trial but, of course, consistently with the verdicts of the jury. This fact finding exercise is perhaps a little more complicated because Mr Lam was charged with sixteen counts on the indictment, but only convicted of three.
6. Nevertheless, doing the best I can on the basis of the evidence at trial and bearing in mind the verdicts of the jury, I make the following findings of fact.
7. In about August 2011, Mr Lam commenced a relationship with the mother of the complainant. His partner had two daughters, including the complainant, who was nine years old when Mr Lam moved into live with his partner and turned ten during that period.
8. It appears that Mr Lam spent quite a bit of time with the complainant, although the evidence was a little unclear about the precise nature of their relationship. Nevertheless, the circumstances meant that Mr Lam had a degree of parental authority in relation to the complainant.
9. It appears that the complainant showed some interest in sexual matters but Mr Lam, instead of discussing that with his partner, the complainant's mother, and allowing her to deal with it, apparently took some initiative to respond to her enquiries.
10. This appears to be how the first count on which Mr Lam was found guilty occurred. The evidence of the complainant was that, one evening, Mr Lam and the complainant were watching a movie. It was apparently about a month after Mr Lam moved in with his partner. During the movie they saw a man and woman together where the man said, "You're going to make me come", and the complainant asked Mr Lam what he meant. Mr Lam then paused the movie and pulled his pants down and exposed his penis. He held his penis and pointed to his testicles and explained that sperm was in the testicles and when the penis gets hard enough the sperm is injected out of the penis.
11. The description of what happened appears to be a form of sex education but in accordance with the jury's verdict, and I am satisfied, it was quite inappropriate for him to behave in this way and ordinary members of the community would consider that the behaviour was indecent.
12. The second incident was a little more complicated. On an occasion on about 28 July 2012, Mr Lam took a sewing machine belonging to his partner to be repaired. He invited the complainant to go with him. They dropped the sewing machine off for repair and then drove to a store known as "Sexy Time" in Hume. It appears that it was a shop that sold sex goods and articles.
13. Mr Lam got out of the car and went to the store and purchased a gold vibrator. It was in a paper bag. He returned to the car with the paper bag and told the complainant that he had a present for her. Her evidence was that she asked, "What is it?" and he said, "It's a vibrator". She said, "What does it do?" and he said, "It's instead of a penis. Like, if you don't have a man you can just put the vibrator inside you and turn it on and it vibrates".
14. They then drove home and the complainant said that she gave it back to him. Her evidence was that she told him, "I don't need it. I'm giving it back to you" and he asked her, "Why?" She said that she told him, "Because I don't need to play with myself like how you do" and he said, "Fine I'll keep it with me for one day you might want it". The complainant thought that he had put it in her bedroom but it appears it was found in the bedside table where Mr Lam slept in his partner's house.
15. The third count on which Mr Lam was found guilty occurred on 11 August 2012. On this occasion, the complainant was sitting on Mr Lam's lap and he showed her pornographic videos on his computer. His partner walked in and saw what was happening and confronted Mr Lam. She subsequently ordered him out of the house.
16. I received a Pre-Sentence Report, a psychological report, a criminal history and a suitability assessment report for the ACT Corrective Services Adult Sex Offender Program (ASOP).
17. Mr Lam was born in Holland in 1960 but came to Australia with his parents. They returned to Holland when Mr Lam was four but then returned to Australia when he was eight. Mr Lam has two younger brothers and a younger sister.
18. He had a normal childhood, money was tight with a single income family, but Mr Lam had positive relationships with his parents and siblings. Since becoming an adult, they have had infrequent contact, though he explained that this was through a desire for independence rather than disharmony. The family did, however, socialise from time to time in family focussed activities.
19. Growing up, Mr Lam had few friends and a few extra-curricular activities, though he tended to spend his free time riding his bike and going on bushwalks with one particular friend and his brothers.
20. He completed Year 10 with an unremarkable schooling, being an average student in mathematics and English, but excelling in science, physical education, arts and woodwork. He was bullied, but not excessively, about being tall and thin.
21. After school, he worked in a variety of positions, initially in groundskeeper and maintenance positions and then as a breakfast cook at a number of motels. He subsequently worked as a delivery driver and bus driver until his arrest. After three months in custody he was granted bail and has worked as a kitchen hand for the past two years.
22. His first intimate relationship was with a young woman four years younger than him and, after about eighteen months, they became engaged but he broke off the relationship because he did not feel ready to have children.
23. Through his twenties and thirties he had several non-intimate relationships, including several long-term relationships with slightly younger Asian women. In 2010-2011 he was in a relationship with an Asian woman for about a year before entering a short-term relationship with another woman, through whom he met the complainant's mother.
24. Mr Lam is described as socially isolated, being shy and private and reticent to form emotional attachments.
25. He was first exposed to pornography when he moved out of home into a shared house at the age of seventeen. With the advent of the internet and the increased availability of free pornography, he tended to access amateur pornography more frequently, as well as free commercial websites. He denied ever registering or paying for internet pornography. He denied accessing or being interested in child pornography.
26. Mr Lam continues to deny the commission of the offences. He says that he had a close relationship with the complainant and believed he was nurturing this relationship in the activities and confidences they shared. He denied performing any sexualised behaviour towards her, suggesting that she had initiated sexualised conversations and behaviours with him. He said he felt some concern about this behaviour but could not explain why he failed to speak with the complainant's mother about the matter.
27. He told Dr Michael Barry, clinical psychologist, who prepared the psychological report to which I earlier referred (at [16]), that the complainant wished to talk to him about sex and he attributed this to her being frustrated at being the youngest and seeming to be in a hurry to grow up.
28. He said he would try to encourage her to talk to her mother about sex but she was reluctant to do this and did not tell her mother about the discussions. He acknowledged, with hindsight, that he should have made more effort to raise these matters with her mother.
29. Dr Barry felt there were a number of aspects of Mr Lam's report of his relationship with the complainant that provided him with a cause for concern. These included:
(a) Mr Lam did not appear to perceive that it was inappropriate for an adult male who is not a relative to talk to a ten year old girl about sex and sexuality without her mother's consent.
(b) Mr Lam did not appear to perceive a distinction in context between public nudity on a nudist beach and the complainant seeing him naked at home, given that he is her mother's partner.
(c) Mr Lam did not appear to perceive a distinction in context between the complainant being exposed to nudity in the context of caring for a sick relative or friend and her seeing him naked.
(d) While wrestling and cuddling between parents and young children is a normal part of family life, Mr Lam did not appear to perceive that it may be considered inappropriate for an adult male non-relative to wrestle and cuddle a ten year old girl and, particularly, a child with whom he was having discussions about sex and sexuality.
30. Dr Barry also found Mr Lam to be quite evasive and hesitant in the answers he gave to the questions asked about the offence. Mr Lam described to Dr Barry the purchase of the vibrator as a "stupid mistake". He said he wanted to use it as a bribe to encourage the complainant to talk to her mother about the discovery by the complainant of her sister's vibrator a few days earlier.
31. He simply denied the count of exposing his penis and testicles to the complainant and he maintained the explanation he had given for the third offence, namely, that the complainant had sat herself on his lap and accidentally opened a pornographic file on his computer.
32. Dr Barry concluded that Mr Lam displayed little insight into his offending.
33. Mr Lam does not use illicit drugs and rarely drinks alcohol. He has had lower back pain but no other physical health issues. He has no history of mental health concerns or treatment.
34. Mr Lam has three prior offences recorded against him on his criminal record, all relatively minor traffic offences for which fines were imposed.
35. A letter was tendered from the manager of a hotel or motel in a country town. The author of the letter indicated that he had known Mr Lam for nine years. He also said that he knew of the charges he faced. He was however, prepared to offer him work in the business as a short-order cook.
36. This is the first allegation, of which I am aware, made against Mr Lam for offending of a sexual nature. There is no history of inappropriate relationships with any other children.
37. Dr Barry considered that Mr Lam's behaviour was situational, rather than predatory, though his behaviour in relation to the purchase of the vibrator was more deliberate, with some planning and forethought.
38. He concluded that there was no evidence that Mr Lam was predisposed to paedophilia and that he did not meet the diagnostic criteria for paedophilia. There was no other mental, cognitive or social impairment relevant to the offending.
39. Dr Barry found that Mr Lam's interest in, and motivation for, treatment was below average but that he would benefit from treatment to address his lack of insight towards his offending and the inappropriate relationship with the complainant and recommended particular issues to be addressed in such treatment. He also identified practitioners in Canberra who would be suitable to provide such treatment.
40. I do have a suitability assessment for the ASOP. The report, regrettably, stated that the request was received by "The Programs Unit" only seven days before the report was required for Court. The court order directing preparation of the report made on 18 September 2014 was in the same order directing the preparation of the Pre-Sentence Report, and that was prepared in good time. I can only assume that there was some administrative error within ACT Corrective Services that overlooked the requirement for both reports to be prepared.
41. It did not appear that there was any error or unreasonable time demand made by the Court. This was a regrettable situation, but I am grateful for the assessment provided by the report actually prepared though, as it noted, it was only prepared from documentation and did not benefit from any consultation with Mr Lam. To that extent, the report of Dr Barry was more complete.
42. The ASOP suitability assessment report set out the results of various tests and concluded that Mr Lam's overall criminogenic risk was assessed as low to medium and his risk of sexual re-offending as low to moderate.
43. He was assessed as suitable for participation in an assessment for the ASOP because the assessment on the papers would need to be supplemented by an assessment in person. The report added that for participation in the program he would need to be under sentence, including a community based order for a minimum of two years.
44. I had no victim impact statement. The complainant's sister had prepared a document purporting to be such a statement but Mr A Doig, counsel for Mr Lam, objected to its reception.
45. A victim impact statement is made admissible under Pt 4.3 of the Crimes (Sentencing) Act 2005 (ACT). Section 47 defines such a statement as follows:
victim impact statement, for an offence, means a statement made by or for a victim of the offence that contains details of any harm suffered by the victim because of the offence.
46. That section also defines what a victim is for these purposes as follows:
victim, of an offence, means -
(a) a person (a primary victim) who suffers harm because of the offence; or
(b) if a primary victim dies because of the offence - a person who was financially or psychologically dependent on the primary victim immediately before the primary victim's death.
47. Section 49(1) of the Act sets out who may make such a statement as follows:
(1) The following people may make a victim impact statement for the offence:
(a) a victim of the offence;
(b) a person who has parental responsibility for a victim of the offence;
(c) a close family member of a victim of the offence;
(d) a carer for a victim of the offence;
(e) a person with an intimate personal relationship with a victim of the offence.
48. Section 50 of the Act provides that such a statement may be made in writing or given orally in court. Section 51 of that Act prescribes the form and contents of such a statement. It relevantly provides:
(1) A victim impact statement for the offence must identify the victim to whom it relates.
(2) The statement must include the full name of the person who makes the statement.
(3) If the person who makes the statement is not the victim (or the victim's representative) -
(a) the statement must indicate that the victim does not object to the statement being made to the court; and
(b) if practicable, the victim (or representative) must sign the statement, or make a separate written or oral statement to the court, to verify that the victim does not object.
(4) If the victim to whom the statement relates is not a primary victim, the statement must identify the primary victim and state the nature and length of the victim's relationship with the primary victim.
(5) If the statement is made by a person who is not the victim, the statement must indicate the nature and length of the person's relationship with the victim.
49. The complainant's sister had prepared a victim impact statement which she wished to read orally to the Court. She gave evidence about the circumstances of the preparation of the statement. She said that over the last few weeks she had only seen the complainant on one occasion and that they occasionally communicated online.
50. She prepared the statement over the last few weeks and completed it on 22 November 2014. She was sent a template of the form of the statement to be used by a person whose name she gave, but who was otherwise unidentified.
51. She said that she spoke to her sister, the complainant, and told her what she was doing and added, "She didn't have any qualms about it".
52. She was sure that her mother was present at the same time. She did not consider whether the complainant had to sign the documents and she did not tell the complainant that she did not need to sign it or consent to it. She also said that she had not discussed with the complainant what she was going to say in the statement and she had not spoken to the complainant, after she had prepared it. The document stated at the end, "The victim does not object to the statement being made in court".
53. I ruled that the statement was not admissible as a victim impact statement. These are my reasons.
54. Victim impact statements have a special place in the criminal justice system by virtue of the legislative scheme that permits their admission. As Spigelman CJ pointed out in R v Mansour [1999] NSWCCA 180; (1999) 29 MVR 409 at 410; [7] this, in particular, enables the court to acknowledge the impact of crime on victims and their families in a public way. Giving public recognition to the distress of the victim in this jurisdiction such a statement must, under s 53 of the Crimes (Sentencing) Act, be considered when a court is deciding how an offender should be sentenced, if at all. For this to be valid, there must be some relevant connection between the statement and the victim.
55. Section 53 of the Crimes (Sentencing) Act also makes it clear that it must not be given in writing to the court unless it is made in accordance with s 51 of the Act, thus, its admissibility is dependent upon the correct form.
56. It is not frequent that such statements or parts of them are rejected, though it does happen. Burns J rejected parts of a victim impact statement in R v Iacuone (No 2) (2014) 286 FLR 217.
57. In R v Schmidt [2013] ACTSC 295 at [74], I had occasion to say
There were some matters in the Victim Impact Statements that were not in accordance with the legislation, however. In order to preserve the value and acceptability of such statements, I urge those charged with helping victims to prepare them to pay close attention to the legislation and comply with it.
58. There is no doubt that the common law required a court to take into account the impact of criminal behaviour on victims of that behaviour. See, for example, Dixon-Jenkins v The Queen (1991) 55 A Crim R 308 at 316. It is clear, however, that at common law the proof of such harm must be proof beyond reasonable doubt: R v Slack [2004] NSWCCA 128 at [58].
59. The admission of a victim impact statement and its mandatory consideration gives it a particular place in sentencing and in the recognition of such harm. On a somewhat different statutory regime, there are some limits suggested in New South Wales as to the role that such a statement makes towards the proof in a court of the question of harm to the victim. See, for example, R v Wilson [2005] NSWCCA 219 at [26]- [29].
60. It has been suggested, in R v Miller [1995] VicRp 60; [1995] 2 VR 348 at 354, that the legislation establishing the regime of victim impact statements should not be given a narrow interpretation. It does seem to me, however, that it is important that evidence is put before the court as to the harm that a victim experiences and this is reinforced by provisions such as s 51(3) of the Crimes (Sentencing) Act.
61. The legislation is not intended to permit any of the extended list of makers of such statements to make, as it were, their own statement unless expressly and explicitly endorsed by the primary victim. This, in my view, cannot be done unless the primary victim knows the actual contents of the prepared statement. The point of such a statement reinforces the desirability of this as I noted above (at [54]).
62. The preference for the signature of the victim to the actual statement under the section makes that an inevitable inference. There seems to me, also, to a be a good and sound policy reasons for so holding. The mere inclusion of the words asserting that the victim had not objected to the making of the statement when the victim had not actually seen it or read it and it appears have not actually expressed that there was no such objection is not sufficient.
64. The Crown, very properly, drew my attention to a number of cases where the seriousness of offending of this kind was stated. As Sheller, JA with whom James and Dowd JJ agreed, stated in the New South Wales Court of Criminal Appeal in R v BJW [2000] NSWCCA 60; (2000) 112 A Crim R 1 at 6; [20]
The maximum penalties the legislature has set for such offences reflect community abhorrence of and concern about adult sexual abuse of children. General deterrence is of great importance in sentencing such offenders and, especially so when the offender is in a position of trust to the victim.
65. Reference was made to the comment in Fisher (1989) 40 A Crim R 442 at 442
The offences were serious and wicked in the extreme and deserving of long custodial sentences
This Court has said time and again that sexual assaults upon young children, especially by those who stand in a position of trust to them must be severely punished and that those who engage in this evil conduct must go to gaol for a long period of time, not only to punish them, but also in an endeavour to deter others who may have similar inclinations.
...
This Court must serve notice upon judges who impose weekly merciful sentences in some cases of sexual assault upon children but heavy custodial sentences are essential if the courts are to play their proper role in protecting young people from sexual attacks by adults which cases come in ever increasing numbers before them and which are rapidly reaching epidemic proportions.
67. That case, however, involved repeated acts of sexual intercourse with boys as young as seven or eight, much more serious offences than those charged here.
68. It would be quite wrong for me to impose a sentence for the offences, of which Mr Lam had been found guilty, that is for a different offence and which is, though serious in itself, much more serious than that of which he has been found guilty.
69. In my view, it is unarguable that the offences for which Mr Lam has been found guilty are significantly less serious than the offences of sexual intercourse with young children aged seven or eight, though I note that some of the complainants in that case may have been as old as twelve.
70. The offences in Fisher were also aggravated by involving ten counts of sexual impropriety, including sexual intercourse with four victims committed over a period of four years. The case is not comparable with this one and the actual statements, while having some general application, must be seen in the context of those facts.
71. Reference was also made to R v Evans (Unreported, NSWCCA, Street CJ, Roden and Newman JJ, 24 March 1988). Again, that involved more serious offending, that is, of four counts of sexual intercourse with a five year old girl, and four charges of sexual intercourse with a four year old boy. It is little wonder, in those circumstances, that the court endorsed the comments of the trial Judge, where his Honour said
... Parliament has made clear beyond question that tampering with children of tender years is a matter of grave concern to the community. A child has a right to have its body intact and not defiled by sexual predators and that right is a precious right which must be protected by the parents, by the police and by courts to the full extent of their powers.
72. In R v Sea (Unreported, NSWCCA, Gleeson CJ, Wood and Badgery-Parker JJ, 13 August 1990), the Court quashed sentences of imprisonment for two counts of sexual intercourse with a girl aged between ten and sixteen, imposed when the recognizance originally imposed was breached by a subsequent offence of assault occasioning actual bodily harm, apparently an offence involving no sexual overtones.
73. Badgery-Parker J, speaking for the Court, said
In my view it would not have been appropriate for his Honour Judge Court to have dealt with the matter by way of a custodial sentence, at least a fulltime custodial sentence, and why the appellant by his breach of recognizance can be seen to have abused the leniency which was extended it may well deprive him of the benefit of the subjective matters that were advanced before Judge Court but does not alter the fact that the objective criminality of the offence is not such as to call for a prison sentence.
74. It is in that context that the comment of his Honour, on which the Crown relied, should be understood. His Honour said
If one tries to draw a line through all the cases, it seems to me that one of the most significant matters and probably the most significant matters which determined where a particular offence is to be placed in the spectrum of offences of this kind must be expressed in the terms of the degree to which the offender is seen to have exploited the youth of the girl. In this case, as his Honour found the effect of that element is to place the offence to the very bottom end of the spectrum.
75. I do not, however, read the statement as suggesting that the only, or most important, factor is the age of the victim, though that is, and must be, very relevant. Other matters would include, for example, the age differential and the level of exploitation.
76. Not mentioned there but clearly and highly relevant as held in Fisher is any breach of trust. The issues are, of course, multi-dimensional. Indeed, age itself is not the absolute determinant as made clear in R v KNL [2005] NSWCCA 260; (2005) 154 A Crim R 268 at 276; [42], where the Court held that sexual intercourse with a twelve year old child, knowing the age of the child, is "objectively more serious" than intercourse with a twelve year old child in ignorance of the child's true age.
77. Nevertheless, as the Court went on to observe, the position of the offence on the spectrum of the offences of sexual abuse of children is more serious the younger the child.
78. Abuse of trust, already mentioned in Fisher, is clearly a relevant matter, a matter emphasised in R v Muldoon (Unreported, Hunt, Enderby and Grove JJ, 13 December 1990), where the offender had become friendly with the victim's mother and had been invited by the offender to permit the victim to stay with the offender overnight when the offences occurred.
79. In R v Hudson (Unreported, NSWCCA, Spigelman CJ, Sully and Ireland JJ, 30 July 1998), the Court helpfully commented
Recognition is also given to the fact that children in a family situation are virtually helpless against sexual attack by the male parent and the children have a right to be protected from sexual molestation within the family and that this can only achieved by the court's imposing a sentence of a salutary nature.
80. In R v JVP (Unreported, NSWCCA, Gleeson CJ, Abadee and Dowd JJ, 6 November 1995), the Court accepted as relevant that the Court should take into account
the fact that other than minor offences in the applicant's early twenties, the applicant had been otherwise an exemplary citizen.
81. In its submissions, the Crown also relied on the need to recognise that separate offences require separate punishment with, in appropriate cases, some accumulation, though not necessarily total accumulation as noted in R v Dunn (2004) 144 A Crim R 180 at 196; [50].
82. A helpful comment was made in Carlton v The Queen [2008] NSWCCA 244; (2008) 189 A Crim R 332 at 356; [122], where Price J, with whom Hislop J agreed, said
The imposition of totally concurrent sentences, to my mind, fails to acknowledge the separate harm done to the child by the different criminal acts of the appellant. In my view, there are occasions when a sentencing Court should take care to ensure that consideration of offender's behaviour, being closely related in time does not obscure the fact that different offences were committed. This was, it seems to me, such an occasion. There should have, at least, been partial accumulation of some of the sentences. Total concurrency of the sentences was generous to the applicant.
83. Taking all these matters into account, it seems to me that the relevant factors in the offences are as follows:
84. Neither party drew my attention to sentencing practice for the offences of which Mr Lam has been found guilty. Insofar as I know it, I am required by s 33(1)(za) of the Crimes (Sentencing) Act to have regard to this.
85. Conscious of the need to be cautious about sentencing statistics (see Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 537; [54]- [55]), I did look at the ACT Sentencing Database, which stated that, of offences under s 61(1) of the Crimes Act, fifty-nine percent of the twenty-two sentences imposed were prison sentences and twenty-three percent were fully suspended and that, of offences under s 61(2) of the Act, thirty-five percent of the sentences imposed were prison sentences and seventeen percent were partially suspended and thirty-five percent fully suspended.
86. In R v DK [2014] ACTSC 173, a thirty-six year old man pleaded guilty to two offences of committing an act of indecency on a ten year old and three offences of committing an act of indecency on a fourteen year old. All offences involving touching and which were described as "in no way trivial". The offender had no prior convictions. The offences occurred in the victim's family home where the offender was the step-father of the victim. The offender was sentenced to twelve months' imprisonment fully suspended with an eighteen month good behaviour order.
87. In R v Tamblyn (Unreported, ACTSC, Crispin J, 3 June 2005), the offender, aged forty-seven, travelled with the victim, aged fifteen, to Canberra and, in the motel room in which they stayed, he touched the complainant's breast. He pleaded guilty. He had no relevant convictions and was sentenced to imprisonment for two years, fully suspended, with a recognizance to be of good behaviour for three years.
88. In R v Warnes (Unreported ACTSC, Penfold J, 2 October 2010), a trainer of students under the Duke of Edinburgh Award Scheme, pleaded guilty to touching the complainant over and under her clothing while on a test hike. He had no prior convictions. He was forty-seven years old at the time. The offences were committed fifteen years before. He was sentenced on two charges to a total of twelve months' imprisonment, fully suspended for twelve months.
89. I have, of course, had to sentence offenders for similar offences myself and have had regard to the orders I have imposed.
90. I take into account the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act and the principles for sentencing those who commit sexual offences with young children, especially the need for general deterrence. I also accept that Mr Lam's lack of insight requires a level of specific deterrence.
91. I have regard to the matters set out in s 33(1) of the Crimes (Sentencing) Act, so far as I know them and as set out above. I have careful regard to the seriousness of the offence as I have already described it and to the need to denounce such offending.
92. I take into account Mr Lam's subjective circumstances as I have described them above.
93. I accept that, although I have no direct evidence, the complainant will have suffered harm as a result of the offences, though it is unclear how precisely that will affect her and what support or assistance she is receiving and what the future may hold. As the Court said in R v Miller at 354,
even in the absence of a victim impact statement, a sentencing judge is entitled to draw reasonable inferences from the evidence before him of any injury, loss or damage suffered by the victims and their immediate families.
94. I note that Mr Lam has been assessed as suitable to serve a term of imprisonment by periodic detention and as suitable for a community service work condition to a good behaviour order and that work is available.
95. I have come to the view that no punishment other than imprisonment is appropriate for the offences.
96. I have carefully considered the length of each sentence and the total criminality involved. I have adjusted the sentence to ensure that the total sentence is appropriate to that.
99. Mr Lam, that is the formal order that I have made and I am required to explain it you.
100. These offences were serious offences. I appreciate that you do not acknowledge that they were committed or that they were committed in the circumstances alleged but the jury has found that and I am bound by what the jury has found. Those offences are very serious and, in my judgment, they are deserving of eighteen months' imprisonment.
101. In all the circumstances, and the nature of the offences and in your personal circumstances, it seems to me that I can release you into the community under certain conditions. One of those conditions is that you commit no further offences punishable by imprisonment for the next three years. If you do commit such an offence you can be brought back before me and I can re-sentence you, including sentencing you to imprisonment for that.
102. There are three particular conditions attached to the good behaviour order. The first is that there is a probation condition which requires you to be under supervision. That is both an element of control and also an element of availability for you if things get out of hand so that there is someone independent and objective who can point you in the right direction.
103. In particular, it seems to me that the insight you lack at the moment about the inappropriateness of your behaviour should be addressed and I have asked for Dr Barry's report to be forwarded to the person supervising you so that that person can understand what Dr Barry has recommended and give you directions. If you fail to comply with the supervision requirements or any of the directions given to you, again, that is a breach of the order and you can be brought back before me and I can impose a sentence, including a sentence of imprisonment.
104. Secondly, I require you to undertake an assessment for and, if found suitable, completion of the Adult Sex Offender Program. That requires a period of two years of compliance with that program and that will address some of the issues that you need to understand in relation to the sexual interaction between adults and children.
105. And, finally, that you perform one hundred hours of community service work. There is such work available and you will be required to undertake that as a penalty to pay back to the community.
106. Mr Lam, I appreciate that that probably means you will not be able to take up the offer of employment that has been made to you. I have carefully considered that and I suppose, in one sense, that is an additional element of punishment that must be taken into account.
107. Employment is obviously important to keep people in a pro-social manner but, at the end of the day, I have to balance the need for punishment and a denunciation of the behaviour that has been involved in this matter and I formed the view that the suite of punishments that I have imposed on you is appropriate and, if that means that you will have to seek some other arrangements for employment, and you have had no difficulty in the past, then so be it.
I certify that the preceding one hundred and seven [107] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Refshauge.
R
Lam
(2010) 242 CLR 520
(2011) 244 CLR 120
(2014) 286 FLR 217
(1999) 29 MVR 409