R v Thomson

5. Ms Thomson be convicted of committing an act of indecency in the presence of a person under the age of ten years between 1 January and 30 September 2008.

6. Ms Thomson be sentenced to two years' imprisonment to commence on 5 May 2015. That is to be cumulative as to six months on the second sentence imposed

7. The sentence be suspended from 6 May 2014 for four years.

8. Ms Thomson be required to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for four years with a probation condition that she be under the supervision of the Director-General or her delegate for two years or such lesser period as the person delegated to supervise her may determine and obey all reasonable directions of the person delegated to supervise her, especially as to counselling and treatment for her mental health.

1. On 28 March 2014, Sarah Jane Thomson was found guilty by a jury of three counts of committing an act of indecency in the presence of a child under the age of ten years. Each of those offences, contrary to s 61(1) of the Crimes Act 1900 (ACT), renders Ms Thomson liable to a maximum penalty of seven years' imprisonment. As the High Court has pointed out, in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at 372; [30]- [31], the courts must have regard to the maximum legislated penalty as a mark of the seriousness with which the offences are to be regarded. They are, therefore, serious offences, though by no means the most serious in the criminal calendar.

2. 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.

3. The complainant was the daughter of Ms Thomson's next-door neighbour and she would visit Ms Thomson by herself and with a friend to play with her son.

4. From time to time, Ms Thomson would ask the complainant to take photographs of her on a camera that Ms Thomson provided to her for the purpose. Ms Thomson would then download the photographs to her computer and share them with a man with whom she had a relationship, but who did not live in Canberra.

5. The indecency involved was that, when Ms Thomson posed for the photographs, she was naked and in very sexualised poses which included the insertion of a carrot into her vagina and her anus. The photographs showed Ms Thomson in poses that were very explicitly sexual, though probably no more explicit than much of the pornography that can readily be accessed on the Internet. I say that not to minimise the nature of the material, but to put it in a fair context. They would be confronting to an adult, let alone to a child.

6. The photographs, however, were not, in the relevant sense, the acts of indecency; that was the posing of Ms Thomson in the sexualised way that she did in front of the complainant who was, at the time, eight or nine years old. There is no doubt that the posing involved was, in the context of being in the presence of a young child, indecent. No contrary submission was made to the jury or to me.

7. Nearly two years later, the complainant told her mother of the incidents and her mother informed the police, who executed a search warrant on Ms Thomson's house and seized a computer on which the images were found. These photographs, of course, provided the evidence of the acts of indecency.

8. Ms Thomson admitted that the photographs had been taken and were of her, but said that she had herself taken the ones that showed her in the most sexualised poses. She said that the complainant had only taken some when Ms Thomson was in the bath, naked but where her nakedness could not be seen. The verdicts of the jury clearly rejected those contentions.

9. The subjective circumstances of Ms Thomson were asserted from the Bar Table and in written references, as no Pre-Sentence Report was prepared. Nevertheless, the Crown accepted these circumstances as so asserted.

10. Ms Thomson was born in Orange, New South Wales. She is now thirty-three years old. She is the eldest of three children. Her mother described her as "a simple, loving and beautiful person". Ms Thomson's mother said that she instilled in her the highest moral standards.

11. The family was close-knit and committed to their church, which Ms Thomson embraced. It was a strict and somewhat insular and close-knit denomination. She attended the local primary school. The family moved to Taree when Ms Thomson was ten years old, but maintained their church connections. Ms Thomson completed her education at Taree High School. She enjoyed school. She was said to have "loved ballet, horses and hugs".

12. She left at Year 10 and then participated more actively in her church's religious activities, teaching the Bible. She had a caring personality, but was apparently rather naive from her restricted upbringing.

13. At age seventeen, she moved to Newcastle where she completed a TAFE course in hospitality. She maintained her engagement with her church. In Newcastle, however, she met the man who would later become her first husband. He was also a member of her church, through which they met. At the time, Ms Thomson had, apparently because of the religious restrictions in her upbringing, no experience of relationships, especially sexual relationships. She fell in love with him.

14. She married this man in 2000 and her life changed dramatically. They lived in Newcastle and then in Sydney, where Ms Thomson worked as a professional masseuse. They later moved to Queensland and she became isolated from her parents and siblings. Her husband behaved in a controlling and abusive manner. He demeaned Ms Thomson and was physically and sexually violent to her, causing her to turn inwards.

15. In 2002, they moved to Canberra. By this time, Ms Thomson was pregnant. The domestic violence became worse. On one occasion, Ms Thomson's husband kicked the then pregnant Ms Thomson in the stomach, causing her to go into labour prematurely. Her son was born and survived, but the violence continued, indeed, it increased and Ms Thomson separated from her husband. She had subsequently to have a Domestic Violence Order issued against him. In 2006 she had what was described as a psychological shutdown.

16. She lived at refuges for some time and had access to counselling. To her credit, however, she undertook a computer course to help her into the workforce and managed to gain employment as an office worker but remained fragile. She was fearful and rarely went outdoors, unless necessary.

17. She then met the man to whom she would later send the photographs that are the subject of the offences. He lived interstate but came to Canberra for his employment. A relationship developed and became a sexual one. He felt "safe" in her eyes; she found him caring. She was said to have experienced for the first time, outside her family, what it was like to be loved. She clearly had a reaction to the domestic violence she had experienced and, in response, her involvement became increasingly explicit. She admitted using the complainant as photographer, though she had denied causing her to take photographs of her in the explicit poses.

18. She later met her present husband in about 2008, through her neighbour, the complainant's mother. He was a quiet and gentle man with whom she developed a close and loving relationship. She experienced a normal relationship with a man for the first time. He had a child, to whom Ms Thomson became a caring mother.

19. Ms Thomson became employed as a cleaner. Her husband had employment full-time as a television technician.

20. Ms Thomson's husband provided a reference, in which he described her as a very caring and generous person, giving her time to help others. She often took the complainant to school, even though it was in the opposite direction to her son's school, which she had carefully chosen, after investigation, to ensure it gave her son the best chance of a good education and a better environment.

21. He described her as "a great stepmother to [his] daughter, teaching her good manners and responsibility as well as to be kind and caring to others". He is clearly devoted to her.

22. These proceedings have, unsurprisingly, had an enormous effect on Ms Thomson. Her husband said that she has locked herself in her home and will not see anyone unless he is present with her. She, and he, have entertained thoughts of suicide.

23. She is fearful for her safety and suspiciously watches every car that goes by. She has distanced herself from all children and will not even greet them, as would be expected from someone who is a mother herself. Her husband expressed the view that she would not re-offend.

24. Her mother described how Ms Thomson has completely shut herself off from contact outside the immediate family, refusing to go out to parent-teacher nights for her son, not answering the door, giving up work and losing her faith. She only goes to the doctor or shopping with others and then wearing sunglasses day and night and avoiding anyone she knows.

25. I also had two references from friends. They describe her as dependable and honest and as someone who was especially caring of others. One described the very generous support she provided in times of the referee's need. Both described the offences as completely out of character. One of them expressly stated that she would have no hesitation in leaving her children in Ms Thomson's care. Both referees confirmed the complete change in her that these proceedings have caused. She has withdrawn from much contact with them. On the rare occasion that she meets them, she is withdrawn and the occasions are not very happy.

26. The mother and father of the complainant provided Victim Impact Statements describing the effects of the offences on the complainant. Her mother said that her daughter could not write a statement herself because of the trauma of reliving the experience.

27. They described serious consequences. Both reported that the complainant had experienced suicidal thoughts and her mother said she had engaged in self-harm. These, of course, have caused her parents great anxiety, stress and pain.

28. Her father described how the complainant had thought that she was a bad girl and both stated that the consequences would be long-lasting. She has had counselling, but it appears that until she disclosed the offences, the underlying cause of the problems she was experiencing was not identified. Her mother seems to feel that there was hope for the complainant to move forward and that they could all start healing their lives. I certainly hope this can be the case.

29. The offences are serious. That there were three occasions when the acts of indecency were committed is also serious. There is no doubt that the offences involving sexual activity with children is rightly regarded as a serious breach of the criminal law. Children should be able to develop their sexual knowledge and experience at a pace appropriate to their age and circumstance and it is now clear from many studies that interference with this natural development can have long term and quite serious negative and prejudicial effects on those involved.

30. Nevertheless, the courts must make proper assessments of the seriousness of offences and the maximum penalty is an important marker for that. Even within an offence, it is necessary to assess the precise circumstances of the offence as pointed out by the High Court in Gilson v The Queen [1991] HCA 24; (1991) 172 CLR 353 at 364.

31. In the case of this offence, it is important to approach the task carefully. In a passage referring to another offence, but which is appropriate to this offence, the High Court said in Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447 at 452

The inclusion of several categories of sexual penetration within the offence described as sexual assault carried no implication that each category of sexual penetration is as heinous as another if done without consent. When an offence is defined to include any of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case. In a case of sexual assault, a sentencing judge has to consider where the facts of the particular case lie in a spectrum at one end of which lies the worst type of sexual assault perpetrated by any act which constitutes sexual penetration as defined. As Dwyer CJ said in Reynolds v Wilkinson [1948] WALawRp 1; (1948) 51 WALR 17 at 18: "Crimes bearing the same general description have not equally evil content or characteristics, and offenders also differ in themselves".

32. Committing an act of indecency on or in the presence of a child can cover a wide range of conduct. It includes very serious sexual activity with a child that is just short of the much more serious offence of sexual intercourse. Clearly, in my view, sexual touching of a child is much more serious than the conduct involved in these offences.

33. Nevertheless, Ms S Gul, who appeared for the Crown, correctly pointed out that the causing of the complainant to take photographs, and thus to that extent participate in the activity, did render the offences somewhat more serious. Reliance was also placed on the fact that there was a course of conduct and that some of the poses were particularly gross. It was also pointed out that the activities caused the complainant at times to be at quite close quarters with Ms Thomson in her nakedness.

34. I do not accept, however, that for the range of the offence it is more serious than, or even as serious as, offences which involve the touching of a child's sexual parts, which is also encompassed within the offence.

35. That children can and do access such material on the Internet does not, however, in my view, reduce the seriousness of the offence.

36. Though not mentioned by the Crown, there is an element of breach of trust in this offence, for the complainant, given her age, was clearly under some form of care while in Ms Thomson's house and Ms Thomson owed an obligation to care for her and not abuse that obligation.

37. I have regard to the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) and take into account the relevant factors I am required to consider.

38. I take into account the nature and circumstances of the offence as I have described above. It seems to me that the seriousness of the offences does involve a need to express strong denunciation of the offences and to inflict some punishment on Ms Thomson. General deterrence remains of significance in this case.

39. I take into account Ms Thomson's personal circumstances as I have also described them. They show that immediately prior to these offences, she suffered serious domestic violence and her first experience of what should have been a loving relationship was marked by her being demeaned and the subject of physical, sexual and mental abuse. It is, perhaps, understandable that, when recovering from that relationship and engaging in her first experience of a non-familial loving adult relationship, it resulted in her clearly going too far.

40. I am satisfied that Ms Thomson will not offend in this way again and, indeed, in any other significant way and that specific deterrence plays little, if any, part in the sentence I must impose.

41. I take into account the harm done to the complainant which was movingly described in the Victim Impact Statements. It is to be hoped that, with appropriate professional help she can reclaim her youth, though, regrettably, never her innocence, and can minimise the long term consequences of the offences. The sentence to be imposed must vindicate the complainant and the effects of the offences on her.

42. I note that, in the absence of a Pre-Sentence Report, I cannot impose a community service work condition to a good behaviour order nor set any period of imprisonment to be served by periodic detention.

43. The offence is not one where a term of imprisonment is inevitable. The offence itself, depending, of course, upon the particular circumstances, is one where a lesser sentence has been imposed.

44. In this case, however, it seems to me that a sentence of imprisonment is the only sentence that can be imposed, though how it is to be served is not inevitable.

45. Ms Gul submitted that the seriousness of the offences required that the sentence must be served in full-time custody. She described the offence, however, as a somewhat more serious example of the offence than I have assessed it.

46. Mr A Hopkins, who appeared for Ms Thomson, submitted that any term of imprisonment should be wholly suspended. He relied on Ms Thomson's experiences of domestic violence. He also referred to the well-known comments of King CJ in R v Osenkowski (1982) 30 SASR 212 at 212-3, where his Honour said

There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform.

47. Although sentencing practice is an important matter to which sentencing courts must have regard (s 33(1)(z) of the Sentencing Act), neither counsel could find any cases which they considered were comparable. The unusual nature of the facts of the offence are probably responsible. This may indicate that it is, indeed, an unusual, if not unique offence which, having no prevalence, may be relevant to the general deterrence aspect of the sentence I must impose. I have had some regard to the general level of sentences for offences against s 61(1) of the Crimes Act and its predecessors, though this can only be a very rough guide.

48. Mr Hopkins also pointed to the rather unusual circumstances that would be particularly distressing to Ms Thomson that, in the course of the prosecution, a significant number of complete strangers have seen photographs of the most intimate parts of Ms Thomson's body as the photographs taken were tendered. The effect on her must have been significant.

49. She has also had to endure the prosecution pending now for two and a half years since the execution of a search warrant on her home in September 2011.

50. This is not an easy sentencing exercise and I have given very careful thought to the case and the competing submissions. While the objective seriousness of the offending is significant and must be recognised in the sentence, I must also give due weight to Ms Thomson's lack of prior convictions and her positive good character as well as the distressing background to her life which, it seems to me, was the setting under which she lost her moral compass so as to behave as she did.

1. I convict you of committing an act of indecency in the presence of a person under the age of ten years between 1 January and 30 September 2008.
2. I sentence you to two years' imprisonment to commence today.
3. I convict you of committing an act of indecency in the presence of a person under the age of ten years between 1 January and 30 September 2008.
4. I sentence you to two years' imprisonment to commence on 5 November 2014. That is to be cumulative as to six months on the first sentence.
5. I convict you of committing an act of indecency in the presence of a person under the age of ten years between 1 January and 30 September 2008.
6. I sentence you to two years' imprisonment to commence on 5 May 2015. That is to be cumulative as to six months on the second sentence imposed.
7. That is a total sentence of three years' imprisonment.
8. I suspend that sentence today for four years.

9. I require you to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for four years with a probation condition that you be under the supervision of the Director-General or her delegate for two years or such lesser period as the person delegated to supervise you may determine and obey all reasonable directions of the person delegated to supervise you, especially as to counselling and treatment for your mental health.

52. [His Honour then spoke directly to Ms Thomson]

53. Ms Thomson, that is the formal order I have made and I must now explain it to you. I have assessed the total criminality that you committed as being worth a sentence of imprisonment for three years. However, in the particular circumstances of this case, I do not require you to serve any of that period in full-time custody. I have suspended that sentence for a period of four years to mark the seriousness of the offence.

54. You will now be under a good behaviour order. That good behaviour order requires you not to commit any further offences which could result in a term of imprisonment. If you commit any of those offences, then you can be brought back to me and you can be punished again for the offences for which I am now punishing you and that includes the possibility of sending you to jail. I have also put you on probation, which requires you to be supervised by an officer of ACT Corrective Services for a period of two years or a lesser period if the person delegated to supervise you determines that that is appropriate. That is partly a matter of control, but it is also a possibility of assistance to you. If things get difficult, that person is able to assist you in identifying services or options so that may assist you in dealing with that and in particular, I am concerned about your mental health, the effect of this prosecution and the offences on you and it may be that you should seek professional counselling to assist you to get through that. I have no doubt that it is unlikely that you are going to re-offend certainly in this way again. I certainly hope that the criminal courts will not see you in the future.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the Crown: ACT Director of Public Prosecutions