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[2014] ACTSC 382
Supreme Court of the ACT
2014-12-16
Refshauge J
Original judgment source is linked above.
CRIMINAL LAW - Judgment and Punishment - Sentencing - Committing an act of indecency in the presence of another person
CRIMINAL LAW - Judgment and Punishment - Re-sentencing following breach of Good behaviour order - Breach constituted by commission of further offence
Crimes Act 1900 (ACT), s 60(1)
Crimes (Sentencing) Act 2005 (ACT), ss 7, 33(1), 35, 89(5)
Bombardieri v The Queen [2010] NSWCCA 161; (2010) 203 A Crim R 89
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
R v Ang (Unreported, ACTSC, Burns J, 6 June 2013)
R v Dhaimat (Unreported, ACTSC, Burns J, 12 March 2014).
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v Jerrard (1991) 56 A Crim R 297
R v Jones [2014] ACTSC 119
R v Miller [1995] VicRp 60; [1995] 2 VR 348
R v Stone (1995) 85 A Crim R 436
1. Sexual offending is always serious but, as with every offence, it can encompass a wide range of circumstances. Committing an act of indecency can be committed along a wide spectrum resulting in a more serious or less serious version of what is still a serious offence.
2. Mark Stephen Ridley has pleaded guilty to committing an act of indecency in the presence of the victim without her consent and being reckless as to whether she was consenting.
3. The offence is contrary s 60(1) of the Crimes Act 1900 (ACT), and the maximum of penalty of seven years imprisonment is attracted. It is, thus, a serious offence judged by the yardstick of that penalty. See Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at 133; [31].
4. It is important, however, to describe the precise circumstances of the offending in order to assess the objective seriousness of the offence.
5. Mr Ridley entered a shop in the Kippax Shopping Centre at about 1:30 pm on 4 May 2013 and went to the back of the shop where he commenced to expose his penis and masturbate himself.
6. At the time, the victim, who was with her granddaughter, was looking for some items when they came upon Mr Ridley masturbating. The victim, who felt shocked and scared, quickly turned her granddaughter away and I am satisfied that the granddaughter did not see what Mr Ridley was doing. That is confirmed by the fact that Mr Ridley was originally indicted on a similar offence in relation to the grandchild, but this was discontinued.
7. The victim complained to the shop manager, who requested a male employee to investigate, and the employee went to the far right of the shop and saw Mr Ridley walk towards him with his penis exposed. Mr Ridley then left the shop and was later arrested.
8. Mr Ridley is now fifty-three years old. He was born and raised in Adelaide, South Australia, one of three children to his parents. He appears to have told the author of the Pre-Sentence Report that he had a stable childhood but a rather curious comment in the report of the Court Alcohol Drug Treatment Assessment Service (CADAS) may undermine that. The CADAS Report stated
While he thought that being in a sexual relationship at the age of 11 changed his life, he did not think this, nor the two attempted rapes perpetrated against him when he was young could have had any lasting trauma or negative effect on him stating 'The only trauma's [sic] I've made, I've made myself.'
9. The report did not elaborate on this comment but, if I take it at face value, it shows some childhood abuse which he seems to have tried to overcome by ignoring it or pretending that it had no damaging effect. That he did not mention it to the author of the Pre-Sentence Report is not entirely surprising in the light of what appears to be only limited rapport between Mr Ridley and the author of that Report.
10. He completed Year 9 at school. He subsequently became a painter, relocating to Canberra in 1988 for employment. Mr Ridley's married history is a little unclear. The CADAS Report stated that he married at age twenty and was married until he was thirty.
11. He had a relationship that, it was said in the Pre-Sentence Report, ended thirty-one years ago, from which he had one daughter with whom he has no contact. He married again and he and his wife had four children, now all adults. The youngest still lives with him but the marriage ended six years ago.
12. He is now single and has a supportive relationship with his mother and four of his children. He continues to act as a painter and most recently completed some work for which he was paid $3,130. Nevertheless, the work does not appear to be constant and he reported having some trouble meeting his financial commitments.
13. He has a history of gambling but states he stopped in May 2014 and is seeking assistance from a financial assistance provider.
14. Mr Ridley has had a long and problematic alcohol and drug history. He first used alcohol at the distressingly young age of nine, though he told the author of the Pre-Sentence Report that it was when he was aged eleven, and he has had an ongoing problem since then.
15. It is clear that this needs to be taken into account for there is no doubt that he was, at either age, not in a position to make a sensible personal choice, as accepted as relevant in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 at 398; [273](c)(i). That he became a problem drinker is unsurprising, although one can never tell when a person will succumb to alcohol addiction. Indeed, he did become addicted, drinking either four litres of wine or a carton of beer a day, a huge quantity.
16. He has, however, taken steps to address this issue, engaging in what was described as "numerous admissions to the Alcohol and Drug Service Withdrawal Unit" and also to the Arcadia House Withdrawal Unit in 2005. He also received treatment at Canberra Recovery Services in 2010 for eight weeks and attended a Salvation Army program in Perth in 2012 for six weeks.
17. His other drug history is of concern, but not so problematic in general, though it may be for this offence. He has experimented with hallucinogens and benzodiazepines. He started using cannabis at age eleven or twelve, he told the author of the Pre-Sentence Report. Again, his report to the various agencies include some differences. He smoked up to half a gram a day of cannabis from about 1994 until he attended Arcardia House in 2014. He told the author of the CADAS Report that he could "take it or leave it", but that does not appear to be accurate and certainly he has not "left it" in any realistic sense since taking it up.
18. He first used heroin when he was thirteen or fifteen he told the author of the Pre-Sentence Report, and his use gradually increased until it became a problem by the time he was thirty-five. His then partner was also using heroin. For a while he was using about $100.00 worth of heroin daily. He commenced a methadone program, variously described as beginning in 1995 (CADAS Report) and 2002 (Pre-Sentence Report) and has not used since then.
19. He used ecstasy at about one tablet a fortnight. He begin using amphetamines when he was about thirty-five (CADAS Report) or from 2009, when he was 48 (Pre-Sentence Report). Most recently, he had been injecting 0.1 gram a day for about five years up to 2014.
20. Despite his poor skills as an historian, especially as to dates, the general scheme of his alcohol and drug use is consistent over the two reports - the CADAS Report and the Pre-Sentence Report - showing a wide and significant poly-drug use with a severe alcohol addiction over many years. It appears that he has made efforts from time to time to address the issues and some have had success.
21. His use of alcohol and amphetamines have been a particular concern, while his cannabis use is problematic. He was assessed by the Alcohol and Drug Service on 7 May 2014, it appears as a result of his arrest for the current offence.
22. He knew that he had to address his alcohol problem which has been a struggle. As he put it to the author of the CADAS Report, "It's taken me all my life to learn not to drink and drive - I used to be terrible", to which his eight convictions for this offence surely attest. He was more ambivalent towards his amphetamine use which he considered to be manageable, but the effect of which he said was that it, "changes who you are", and to the use of which he attributes the offence.
23. He was admitted to the ACT Health Alcohol and Drug Service Withdrawal and Treatment Service on 4 June 2014 and transferred directly to Arcadia House into the short-term program on 11 June 2014. He graduated on 11 August 2014 in accordance with a treatment plan he instigated himself.
24. The results of this program seem to be fairly positive, though perhaps a little patchy. He states that he has ceased using methamphetamines. He has, however, returned to the use of ecstasy, but still only once a fortnight. He has, it seems, continued with daily use of cannabis. He does not appear to be motivated to address his cannabis use. Nevertheless, so far as I can see, his cannabis use is not directly related to any offending.
25. He has resumed drinking alcohol, though he told the author of the CADAS Report that it was a "couple" of glasses of wine a night, but this turned out to be about four glasses of wine nightly and, on one occasion, when he was feeling lonely and having a "bad week", he drank two litres of wine.
26. I do not know, and neither report suggests, that he is, in the classic terms, "an alcoholic", but if he is, then any use of alcohol at all is likely to return him to problematic and unmanageable alcohol use.
27. He has been reliable in his interaction with CADAS and has not been drug-affected when seen by that agency. The author of the Pre-Sentence Report stated that an unspecified alcohol screening tool administered on 5 November 2014 showed that he was drinking at a risky or hazardous level requiring intervention and counselling and an unspecified drug abuse screening tool administered on the same day indicated a substantial degree of illicit drug use requiring further assessment.
28. A report from Directions ACT was more promising; it might, however, be said to be a little out of date. It reported that Mr Ridley had participated in all aspects of the Arcadia House program and that staff noted changes in him where he has learned to respond to his emotions with positive conflict resolution, rather than reaction.
... [he] has expressed on a number of occasions that he really wants to change and is determined to undertake any treatment to give him the best chance of maintaining an alcohol and other drug-free lifestyle. Whilst in residence, [Mr Ridley] has shown a genuine desire to implement changes and has commenced developing an individual treatment plan to support him during his stay in the program. [Mr Ridley] has shown great growth in becoming a senior resident and taking in extra roles within the community.
30. He also took on a role as a "buddy", to a number of new residents. Mr Ridley has no relevant physical or mental health issues which are relevant to sentencing.
31. He has a long criminal history showing that he has been found guilty of eighty-four offences. Many, such as the eight drink driving offences and the eleven offences of being drunk, are clearly related to his misuse of alcohol. Others, such as the five damaging property offences often associated with the offences of drunkenness, are probably also associated with his alcohol abuse.
32. He also has eighteen offences of dishonesty and, unsurprisingly, given his drug use, six drug offences and many, if not all, of the dishonesty offences may be drug-related also. Of concern, too, are his five offences of violence, so these, too, may be associated with substance abuse, given the nature of them.
33. The most concerning offence is a prior offence of indecency when he was found masturbating in a motor vehicle parked in a loading zone with the front door windows open. He was seen by a passer-by. He was placed on a good behaviour order. This offence breaches that order.
34. There is also an earlier offence described as "serious alarm (nude bathing)". I do not consider it is significant. It was committed in 1980. The penalty was a modest fine and, in the absence of any specific facts to suggest otherwise, I cannot find it to be a particularly relevant prior conviction.
35. While a serious offence, though the penalty then imposed discloses appropriately that it is not the most serious of such offences, the earlier offence of indecency is of concern, because the current offence amounts to a repetition of the same offence. On the other hand, this earlier offence was the first offence he committed for almost exactly four years from 2008 to 2012. He has, however, since then, including this offence, committed three offences, including a drink driving offence and a theft offence.
36. As I indicated, committing an act of indecency covers a relatively wide range of inappropriate and sexually related offences from almost non-consensual sexual intercourse to relatively minor sexual indiscretions. For example, kissing a person on the lips can be an act of indecency, though described as "not trivial [but] ... not one of the most serious types of this type of offending" in R v Ang (Unreported, ACTSC, Burns J, 6 June 2013). Touching, in itself, may not render the offence much more serious as when an offender grabbed by the victim by the buttocks and attempted to kiss her, acts described by the Court as "not the most serious acts that constitute an act of indecency" in R v Dhaimat (Unreported, ACTSC, Burns J, 12 March 2014).
37. It seems to me that this offence is more serious than these offences. It is also aggravated by two important matters: it was committed while Mr Ridley was on conditional liberty on a good behaviour order and, it was, in many ways, a repeat offence.
38. It is clear from decisions such as R v Jerrard (1991) 56 A Crim R 297 at 301 that it is an aggravating feature of an offence that it was committed while an offender was at large in the community by virtue of conditional liberty, such as probation, parole, a recognizance, a good behaviour order or on bail.
39. As Sully J said in R v Stone (1995) 85 A Crim R 436 at 440
Conditions that are attached to a recognisances to be of good behaviour, it is perhaps timely to observe, are not, so to speak, optional extras from the point of view of the person who undertakes to observe the recognisance. A recognisance is a concession. It is given in aid of rehabilitation. If, without just cause, it is thrown away then so much the worse for the offender in terms of subsequent offences. The proper maintenance of the rule of law seems to me to require no less resolute an approach to the grant and subsequent enforcement with a proper strictness of recognisances to be of good behaviour.
40. Not independent of this is that where leniency has been granted, such as in this case, the repetition of the offence must aggravate the further offending and lead to a greater importance being placed on at least specific deterrence.
41. In this case, the offence was made more serious by the very public place in which it was committed, namely a retail store in a shopping centre during the lunch hour on a week day. In particular, the nature of the store meant that, as actually happened, there were likely to be children in the store who may have seen his behaviour. In this sense it was somewhat more serious than the earlier offence.
42. I did not have a victim impact statement. The statement of facts tendered without objection stated that the victim was "shocked and scared". It has also been of significance concern that the victim had her grand-daughter with her and that the victim would be very concerned to shield her from the offence.
43. As was stated in R v Miller [1995] VicRp 60; [1995] 2 VR 348 at 354, the court is entitled to draw reasonable inferences from the evidence about the effect of an offence on a victim, even in the absence of a victim impact statement. In my view the victim would have been moderately affected, but only on a relatively temporary basis, but by no means negligibly so.
44. Under s 33(1)(za) of the Crimes (Sentencing) Act 2005 (ACT), I am required to have regard to current sentencing practise. This jurisdiction has a sentencing database which aggregates sentencing statistics but with links to sentencing remarks.
45. Such statistics do not, of course, set the boundaries for the range of a proper sentence (Bombardieri v The Queen [2010] NSWCCA 161; (2010) 203 A Crim R 89), but are nevertheless useful. They have, however only limited value as pointed out in Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 537; [54]- [55].
46. Given the range of circumstances of the offending that would constitute the offence, it is not surprising that the range of sentencing dispositions shown in the Database is wide. Sixty percent were sentences to be wholly served in the community, including forty percent wholly suspended sentences, where forty percent of those were to be served at least partly in full-time custody. Thus, eighty percent were served by imprisonment of one kind or another, including wholly suspended sentences.
47. However, that the Database included only ten cases further limits the use to which these statistics may be put. I have regard to the sentencing remarks in all but two cases, where they were not available. Those where full-time imprisonment were imposed were, in each case, much more serious versions of the offence than the one with which I am dealing.
48. While again recognising the difficulties of relying on one case my attention was drawn by both counsel to the decision of R v Jones [2014] ACTSC 119, where the offender there was charged with the same offence there also constituted by masturbating in public. There are different features some more serious, some less than that case.
49. There the offender was found guilty at trial thus denying himself the discount for a plea of guilty under s 35 of the Crimes (Sentencing) Act. The act of masturbation was in a very public place but it was also directed at a cleaner in an apartment opposite to where the offender was sitting. In my view, more seriously, he gestured towards the cleaner, pointing to his mouth, suggesting that she participate in sexual activities with him.
50. The offender there had a significant criminal history as does Mr Ridley but, unlike Mr Ridley, had no prior convictions for sexual offending. Like Mr Ridley he had participated in an alcohol rehabilitation program but, unlike Mr Ridley, had managed to remain abstinent for about eighteen months. There the offender was sentenced to imprisonment for eight months to be wholly suspended on a good behaviour order with a supervision order made for two years.
51. I have regard for the purposes of punishment set out in s 7 of the Crimes (Sentencing) Act. Of these, general deterrence and denunciation must place some significant part but specific deterrence is important in the circumstances. Mr Ridley's efforts to manage his alcoholism is also important and should be supported, though it is a bit problematic at the moment.
52. I have regard to each of the matters set out in s 33(1) of the Crimes (Sentencing) Act of which I am aware. Thus, I have regard to the nature and circumstances of the offending behaviour as I have described it.
53. I take into account his plea of guilty which, however, was not an early plea. Though formally entered on 8 September 2014, the date of the trial, it had been offered on 15 July 2014. That means it is not in reality a late plea, though the delay in accepting it would have somewhat reduced its actual utilitarian value, though not, in all the circumstances, by any delay on the part of Mr Ridley.
54. I take into account that Mr Ridley also made formal admissions. This amounts to assistance in the administration of justice which under s 35A of the Crimes (Sentencing) Act I may take into account and I do so.
55. I take into account his personal circumstances as I have described them earlier and in particular the effect that alcohol addiction and drug use has had on his offending behaviour and the efforts he has made, over time, and particularly more recently to address that addiction and which has, I accept, been genuine but is by no means complete and he has a good way yet to go. I am satisfied that Mr Ridley is truly remorseful.
56. The author of the Pre-Sentence Report expressed the view that Mr Ridley's attitude to the offence was a problem because he disputed the Statement of Facts. This was, however, it appears, because he denied that the victim's granddaughter had seen him masturbating. The course of the proceeding showed that Mr Ridley was entitled to take that course. He accepted that the child was present but it appears that his denial was because he simply did not see her. I do not consider that this means he was, as asserted, minimising his actions.
57. Indeed, he did seem to show some empathy by pointing out that he would not have behaved as he did in the presence of a child, since he has grandchildren himself. He did not, however, express remorse either to the author of the Pre-Sentence Report, nor expressly to me, although I am satisfied that he regrets the actions he took.
58. I note that, because of what are said to be his unaddressed substance dependency issues, he has been assessed as unsuitable for a community service work condition or good behaviour order or for periodic detention.
59. I found that assessment problematic. On 1 February 2013, Mr Ridley was sentenced to a good behaviour order with a community service work condition and complete twenty hours of community service work. That order was completed, although he initially failed to report for such work. This was a time before he had engaged in ACT Health's Alcohol and Drug Service treatment most recently and indeed at a time when his alcohol and drug use was more significant than it is now.
60. On the basis of the earlier completion by Mr Ridley of the sentence, including a community service work condition of a good behaviour order at a time when his substance abuse was more significant, I do not consider that the recommendation of the author of the Pre-Sentence Report is one that I can accept. Under s 89(5) of the Crimes (Sentencing) Act, I may take that approach. I am required to record my reasons and they are set out in the preceding paragraphs.
61. I am aware, of course, that he has slipped back from the position he was in when he had just completed the Arcadia House program in respect of alcohol consumption and that his use of cannabis remains an unresolved issue. I consider, having regard to all the alternatives that no sentence but a sentence of imprisonment is appropriate in all the circumstances, but that it does not have to be served in full-time custody.
63. [His Honour then spoke directly to Mr Ridley]
64. Mr Ridley, that is the formal order that I need to impose but I need to explain to you briefly what the order amounts to.
65. I have assessed the seriousness of the offence as being worth ten months in gaol, reduced from twelve months because of your plea of guilty and your assistance to the administration of justice by making formal admissions to assist in the process.
66. However, in all the circumstances, I do not require you to serve any of that period in full-time custody and you are released today, but you must sign an undertaking. That undertaking has a number of conditions.
67. The first condition, which is not spelled out here, but is in the Act, is that you must not commit any further offences punishable by twelve months imprisonment or more. If you do commit such offences you can be brought back before me and you can be re-sentenced and that includes the possibility of being sent to prison.
68. Secondly, you are under supervision and probation. You will have a probation officer. That is for two reasons really. One is a degree of control to see if some of the problems that you are facing can be managed within the community and that you are entitled to be at large in the community, notwithstanding the problems and the offending. It is also there to assist you so that there is someone relatively objective and who has knowledge about some of the agencies and some of the opportunities that may support and assist you if things go wrong.
69. You really need to think about your alcohol use and whether you need to stop it altogether. I have not made that a condition. I did think about that but it seems to me it is only going to be seriously effective if you come to that decision yourself and take your own efforts to manage that completely.
70. Thirdly, I think, despite some concerns expressed by your counsel, the time is now right when you need to undertake a Sex Offender Program. You will be assessed for that. If you are not assessed as suitable then you do not have to undertake that Program, but you are still subject to directions and there may be a direction by your probation officer to undertake some other kind of counselling.
71. The final one is that you perform seventy hours of community service to pay back to the community for what you have done in breach of the rules of our community. You have done that before, you know the ropes. Do not breach it by failing to attend.
72. Also, I directed that you should attend at ACT Corrective Services at Eclipse House, London Circuit, Canberra City, within forty-eight hours to get all these under way.
73. If you breach any of those additional conditions - the probation condition, the Sex Offender Program and the community service - you can also be brought back before me and re-sentenced, and that can include being sent to prison if that is appropriate in all the circumstances.
74. I think you are starting to recognise that your life needs to get into another track, especially in relation to alcohol. If your daughter is the assistance that you say she is to you, then that will be an important way for you to start looking at how you may resolve the problems that have led you into such serious and long-term offending and is growing more serious. I hope that you will take this opportunity to address the problems that you have had and to avoid any further offending and that at the end of the day we will not see you in the criminal courts again.
75. It is in your hands and the courts will support you if you want to do that but they will also punish you if you fall.
I certify that the preceding seventy-five [75] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Refshauge.
R
Ridley [2014] ACTSC 382
(2010) 242 CLR 520
(2011) 244 CLR 120
(1999) 46 NSWLR 346