R v Payne [2015] ACTSC 345

Crimes Act 1900 (ACT), ss 55(2), 61(2)

Monfries v The Queen [2014] ACTCA 46

R v Fortaleza (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 8 February 2012)

R v Kelly (Unreported, Supreme Court of the Australian Capital Territory, Murrell CJ, 28 April 2014)

R v KF (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 23 July 2012)

Legal Aid ACT (Offender)

1. The offender, Warwick James Payne, pleaded guilty to two counts, one being sexual intercourse with a person under 16 years of age, and the other being committing an act of indecency on a young person under 16 years.

2. The first offence is contrary to the provisions of s 55(2) of the Crimes Act and carries a maximum penalty of 14 years' imprisonment. The act of indecency is contrary to s 61(2) of the Crimes Act and carries a maximum penalty of 10 years.

3. According to the agreed facts, the offender was born in 1967.

4. In short, on 12 October 2014, he inserted his fingers into a young person's vagina and later grabbed her bottom over her clothing as she was leaving his residence.

5. In October 2014 he was living in a Canberra suburb with one of his children and a stepchild. The victim had begun associating with the offender and his children when he moved into the house earlier in 2014 and she would often visit the offender's house and play with his children. The offender knew that she was, at the relevant time, 15 years of age.

6. On 12 October 2014 the two children were playing at the young person's home and at about 8.30 pm that evening she walked the children to the offender's home. She continued to play with them there. They were playing various games including back bends, which was bending over backwards, arching their backs, and placing their hands on the floor behind them. This was in the lounge room of the home.

7. At a time when the young person was sitting on the lounge room floor she noticed the offender standing behind a couch directly opposite her and she noticed that he grabbed his crutch outside his jeans and adjusted his penis. He then mouthed some words to her but she did not understand what he said.

8. Later he made a number of statements to her which made her feel very uncomfortable. They included, "You are beautiful. You must break a lot of boys' hearts" and "If you were older I would have a fight on my hands."

9. At about 9pm she said she had to go home because she had school the next day. As she walked towards the door the offender pushed her from the door towards the kitchen. She felt uncomfortable and started to shrug her shoulders and struggle against him, but he pushed her into the kitchen where she was out of sight of the children. She repeatedly said, "I have to go". She turned away from the offender and walked towards the door, however, he grabbed her and pushed his hand down the back of her shorts and under her underwear. She felt his hand against her bottom at the top of the groove between her buttocks.

10. While he held her left shoulder with his left hand he moved his right arm around her lower waist, put his hand up the leg of her shorts and pushed her underwear aside. He then inserted his fingers into her vagina. That conduct constitutes the act of sexual intercourse with the young person.

11. The offender kept his fingers inside the young person's vagina for about six seconds. He said to her, "If you were older I'd pull your pants down." He then said something about masturbating but she did not hear exactly what it was that he said.

12. She continued to pull away from him and eventually succeeded and walked out the door saying, "I've got to go home." As she headed to a side fence leading to her home she was followed by the offender and when she reached the gate she was shaking uncontrollably. At that stage the offender said, "Here, let me get that for you." She said, "No, I've got to go." She then opened the gate and walked out. She was just outside the gate when the offender grabbed her right wrist with his hand and took hold of her little finger with his little finger. The offender started shaking her little finger with his little finger and said, "Don't tell your parents. It can be our little secret."

13. She walked towards her home and at that stage the offender grabbed her left buttock and clenched his hand. That conduct amounts to the act of indecency. She then ran to her home where her mother and her partner were outside having a cigarette. They saw her crying. She was initially reluctant to speak to them because she was afraid that the offender might hear her. Once she was inside the house she told her mother and her partner what the offender had done and her mother phoned the police.

14. At about that time the offender knocked on the door of the young person's home. The door was opened by her stepfather who said "You touched my daughter". The offender said, "I'm sorry. I didn't mean to. I just want to be happy with my kids. I'm sorry" and he mentioned the name of the young person. Her stepfather told him to leave and closed the door. He again knocked on the door saying he wanted to talk, but he was asked to leave.

15. Police arrived at the offender's home at about 9.24pm that evening and arrested him. At the police station he made a number of comments including, "All because of some little slut," "Framed me, the fucking little slut," "They all love the black cock",and "she's going to cop it. I'll slap her around."

16. An order was made for the performance of a forensic procedure on the offender and he complied with that order. In the course of the procedure he said, "I've been framed by a little slut. A little slut. You won't find no cum. I didn't go that fucking far." Forensic analysis of samples obtained from the young person's shorts excluded the offender as being a contributor to the DNA profiles.

17. The offender has been in custody since his arrest on 12 October 2014.

18. There was, in evidence, a victim impact statement which was read by the prosecutor. It is apparent from the victim impact statement that the offences have had a significant effect on young person. She says that she does not trust males. She does not trust anyone over the age of 18 and will never trust anyone who lives in the house where the offender lived. She said that from the time of the events up until three weeks after, she would wake up in cold sweats. She had gone to counselling. When she first started she was nervous and when there was any mention of these events she would break down. She has found it easier to talk about things since she has had the counselling.

19. She said that she feels a lot better knowing the offender is in gaol and knowing that he has pleaded guilty. The fact that he has pleaded guilty, of course, means that she knows she does not have to go to court and give evidence and she says that makes her feel a lot safer.

20. Insofar as the objective gravity of the sexual intercourse count is concerned, I take account of the fact that it was a digital assault rather than a penile assault. Therefore there was no capacity for the young person to become pregnant or to contract sexually transmitted diseases. However it was still a most significant invasion of her body and an extremely frightening one. Fortunately, it was an event which occurred over about six seconds, a relatively short period.

21. There was no evidence of planning and I am satisfied it was an opportunistic event, but the offender was her friends' father and there was a familiarity between them which permitted him to get into that position. His children, it is not to be forgotten, were in the next room, so it was, as the Crown Prosecutor put it, a brazen act. I regard this offence as objectively significant.

22. As to the act of indecency count, it was towards the lower end of the range of objective gravity. It was of short duration and involved contact on the outside of the victim's pants.

23. The offender has a lengthy criminal history, although none in recent times for any event of this type. His lengthy and extensive criminal record permits little leniency.

24. He did plead guilty, however, and is to be commended for that.

25. As appears from the victim impact statement, the event was traumatic for the young person and she was greatly relieved, as I have observed, on knowing the offender pleaded guilty. I was told that the plea of guilty was indicated about two months before she was due to give evidence at the pre-trial procedure, so there was a significant utilitarian value in the plea.

26. On the other hand, the offender has continued, right up until very recently, when discussing the offences with people who interviewed him for the purpose of this case, to cast blame on the young person. So the plea of guilty could not be said to show any significant remorse. However I propose to deduct approximately 20 per cent for it.

27. I will turn to the subjective elements. The offender is an Aboriginal man. He was born as one of 10 in his family. He had a good childhood in the Lake Cargelligo area of New South Wales. He left school at 15 and over the years he has had a reasonably impressive work record. He worked as a shearer and he has worked as a fruit picker, so he has made some contribution to society.

28. He has had a number of relationships. From one of the relationships there are three children. From another, there is one child, who was living with him at the time of these events.

29. When he was arrested for these offences he was on a disability pension.

30. He has a history of drug and alcohol abuse, including using heroin and amphetamines. There is no indication, however, on the evidence before me, that drugs played any role in these offences.

31. There are references in evidence before me to a mental condition. It is said that he has a bipolar disorder. But it is not said that any psychiatric disorder or, in particular, his bipolar disorder, played any role in the causation of the offences. Insofar as his mental disorder is concerned, I treat it in the way the Court of Appeal counselled such matters should be treated in Monfries v The Queen [2014] ACTCA 46 at paragraph [67].

32. There was a Pre-Sentence Report in evidence. The offender told the authors that the offences had occurred because he was unable to control himself. That and his several comments since the offences casting blame on the young person do not auger well for his rehabilitation. He is assessed by the Pre-Sentence Report authors to be of medium to high risk of reoffending generally.

33. His record does show convictions as recently as 2012 for some offences in the Northern Territory in 2011.

34. There was a psychiatric report in evidence from Dr Kasinathan. That report was obtained as to his fitness to plead and does not give any significant further elucidation of his mental state as relevant to any issues of causation. I find that his prospects of rehabilitation are limited, given his age, his extensive criminal history and his attitude to the young person.

35. Mr Davies, who appeared for the offender, gave me statistics concerning sentencing outcomes for the relevant offences. However the numbers are small and the statistics do not greatly assist in the sentencing process. The Crown provided me with copies of sentences by other judges of this court and I have had regard for them - R v Kelly (Unreported, Supreme Court of the Australian Capital Territory, Murrell CJ, 28 April 2014); R v Fortaleza (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 8 February 2012) and R v KF (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 23 July 2012). They are, of course, all single instances of what other judges have considered appropriate sentences for similar offences but in different circumstances. But they are helpful.

36. In Fortaleza there was a two and a half year sentence of imprisonment imposed for sexual intercourse with someone under 16. The intercourse involved digital penetration. There, the age gap was not as great as here, and the offender had a less significant criminal history. In KF the offender and the young person were much closer in age than was the case here. The offender was a juvenile and the period of imprisonment imposed for digital penetration was 18 months.

37. Taking into account the requirements of specific and general deterrence and the objective and subjective matters, I will impose a sentence consisting of six months' imprisonment for the count of act of indecency, and two years nine months imprisonment for the sexual intercourse count. There will be three months of concurrency since the offences occurred at the same time and place and in the same circumstances. It could be said that the offences are part of the same overall factual matrix.

38. There will, accordingly, be an overall head sentence of three years and I propose to impose a non-parole period of 22 months. I take into account Mr Davies' submission that the period which has been served ought be a sufficient non-parole period. However in my view, given the significance of the offence, his record and his attitude to the young person, and of course the other matters, I think the appropriate non-parole period is 22 months followed by a parole period of 14 months.

39. As to the offence under s 61(2) of the Crimes Act, the offender is sentenced to a term of imprisonment of six months from 12 October 2014 to 11 April 2015.

40. As to the offence against s 55(2) of the Crimes Act, the offender is sentenced to a term of imprisonment of two years and nine months from 12 January 2015 to 11 October 2017.

41. I impose a non-parole period of 22 months to date from 12 October 2014 to 11 August 2016.

42. I indicate that but for the pleas of guilty I would have imposed an additional term on the overall head sentence of seven months.

I certify that the preceding forty-two [42] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Walmsley.