R v Weir [2015] ACTSC 394

Crimes Act 1900 (ACT) s 61

Crimes Act 1914 (Cth) s 16A

Crimes (Sentencing) Act 2005 (ACT) ss 7, 33, 34

Alseedi v The Queen [2009] NSWCCA 185

Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58

DPP v Ip [2005] ACTCA 24

Markovic v The Queen [2010] VSCA 105; (2010) 30 VR 589

Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59

R v Fowler [2007] ACTCA 4

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

R v H [2015] ACTSC 221

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

R v Landsman [2014] NSWCCA 328; (2014) 88 NSWLR 534

R v Wirth (1976) 14 SASR 291

Ryan v the Queen [2001] HCA 21; (2001) 206 CLR 267

Zerafa v R [2013] NSWCCA 222

Legal Aid ACT ( Offender)

1. On 6 July 2015, Mr Weir, whom I will refer to as the offender in these remarks, pleaded not guilty before a jury to 12 counts of committing an act of indecency. The charges variously alleged that the act of indecency was committed either on or in the presence of one of two brothers. In these remarks I will refer to these two brothers as BQ and KQ. At the time of the events in the indictment, BQ was under the age of 10 years and KQ was under the age of 16 years. Four charges concerned BQ and eight charges concerned KQ.

2. On 9 July 2015, the jury convicted the offender of six counts and acquitted him on six counts. He was acquitted on the four counts concerning the complainant BQ and he was acquitted on two counts concerning the complainant KQ. Those later two counts involved significant forensic contests between the Crown and the accused. In one count the identity of the perpetrator was in issue. In the other the issue was the line of sight of KQ witnessing the indecent act.

3. Other than record the outcome of the jury's deliberations I put the acquittals to one side. They bear some significance as to whether the jury accepted the Crown submission on tendency or not. I return to this subject below.

4. It is necessary to set out some factual background which was not in dispute. The Q family consisting of Mrs Q, BQ, KQ and a daughter IQ had lived for some time in a Canberra suburb when the Weir family moved into the neighbourhood in about 2009. The Weir family consisted of Mr Weir, a son KX and a daughter DX. The children were approximately the same age and soon began playing together. This took the form of being in each other's houses and yards. There was also some sleeping over at each other's houses. It is not necessary to determine the frequency of this occurrence.

On a Saturday night in April 2012, KQ (then 11 or 12 years old) slept over at the offender's house with KX. They slept in the living room on a mattress. After KX had gone to sleep the offender came into the lounge room and touched KQ on the shoulder and said, "Why don't you show me your penis?" KQ said, "No, just go to bed" and the offender left the room. KQ took his pillow and left and went back to his own house. The offender then followed KQ back to his house and engaged in a conversation with KQ's mother, Mrs Q.

On Friday 27 April 2012, KQ slept over at the offender's house again. KX and KQ were again sleeping on a mattress in the living room and the following day KQ was going to Tunzafun with the offender, KX and DX.

KQ had never been before to Tunzafun and he was very excited about the prospect. It is a children's play area where they have a variety of modern games. Access to the games is by swiping a plastic card which has been charged with money.

On this night KX fell asleep and the offender then asked KQ "Can I feel your penis? Can I touch your thing?" The offender also said that if KQ did not show him that he would not take him to Tunzafun the next day.

On this occasion, KQ showed the offender his penis. The offender looked, touched and played with the penis. This occurred over a couple of seconds. KQ gave evidence "Only a couple of seconds, like I sort of it felt like ages but it was only a couple of seconds."

On a Monday or a Wednesday in February or March 2014, KQ, KX, another boy called CX and the offender were playing a game. The game involved shooting rubber bands and planes at each other. While they were playing, KQ ran around the corner. He was followed by the offender. The offender grabbed him and touched his penis through his shorts. This occurred over a couple of seconds.

The offender was at the Q family house. KQ had hurt his Achilles heel playing football.

The offender offered to strap KQ's ankle and sent DX, his daughter, to get a bandage from his own house. While DX was gone, KQ and the offender were alone in KQ's bedroom. The offender said words to the effect:

I was just like you as a kid. Whenever you need someone like to let off steam and have sex with I'm here for you.

In 2011 or 2012, KQ slept over at the offender house with KX. DX had already gone to bed in her room and KX had fallen asleep.

The offender asked KQ to play the board game called Trouble with him. KQ agreed to do so. The offender said that whoever won could "dare" the other one to undertake some task or activity. KQ could not think of a "dare" and so the offender proposed that if KQ won the game, the offender would do a "nudie run" outside. KQ won and the offender ran around the backyard naked.

On another occasion KQ again stayed over at the offender house. Again, the offender proposed playing the board game Trouble. The offender won and said that it was his turn now to "dare" KQ.

Now, this time I've won. I want to do something to you. I want to touch you. I dare you to let me touch you.

KQ told the offender no. The offender became angry and said, "Every time I win I do your dares, but now I've won you won't do mine, that's so dog." He then went to bed.

5. In the trial, the Crown had called direct evidence of all 12 charges in the indictment. The Crown also called evidence of a number of incidents of a sexual nature or flavour between the accused and BQ and KQ which evidence was not directly related to the 12 charges in the indictment.

6. The Crown's submission to the jury was that, taken together, this body of evidence proved that the offender had a particular state of mind, namely, a sexual attraction to young boys and that the offender had a tendency to act in particular ways, namely to act upon his sexual attraction to young boys, to touch young boys, to talk to young boys in sexually explicit ways and to use contact opportunistically with young boys to act in sexual ways towards them.

7. If it matters, it is not clear to me whether the jury accepted this submission or any part of it. I will not act upon it in any way and all the incidents of a sexual nature or flavour I will disregard for all purposes. The offender is not being sentenced for a course of conduct but six discrete offences.

8. The offence of committing an act of indecency on or in the presence of another person under the age of 16 years is an offence under s 61 (2) of the Crimes Act 1900 (ACT). It carries a maximum penalty of 10 years imprisonment. In accordance with Markarian v The Queen (2005) 228 CLR 357 at [30]-[31], it is necessary to give careful attention and consideration to this maximum sentence.

9. I firstly undertake this assessment by reference to the nature of the offending and not by matters personal to the offender. I bear in mind the maximum sentence for these offences.

10. It cannot be said that these six offences are anything other than very serious. Count 2 is the most serious having also contained an inducement based upon the financial circumstances of KQ.

11. A number of cases were referred to the Court as being potentially able to throw light on the proper range of sentences available on the current facts. The Crown referred me in particular to the following four cases which she summarised as follows:

[2015] ACTSC 221

Acts of indecency against 2 step-children. 8 counts.

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

Acts of indecency against 3 friends of his daughter

3. Hands down C's pants touched vagina plus comments

6. Requested oral sex and rubbed her head in his groin.

- Criminal history of possession of child pornography

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

2 incidents against the same complainant over 1 week

1. Pushed C's hand down his trousers and made her squeeze and move her hand against his penis

Pushed C's hand down his trousers and hold his penis

2. Forced onto bed - simulated sex + touching while naked

12. The above material provides an indication of what sentences have been imposed in more or less comparable cases. Nevertheless, I approach the matter in accordance with Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 at [40] to sentence the actual offender and applying the relevant legal principles to his case.

13. Two victim impact statements were before the Court. They were of the complainant KQ and of his mother, Mrs Q. There were both read to the Court by Mrs Q. KQ told of his stress and anxiety and the change in his family relationships and difficulties at school and in his house. Mrs Q told of her deterioration from a happy individual to one hospitalised in a mental ward following two suicide attempts in two weeks and wrote that her life has changed forever.

14. The offender has relevantly only minor matters on his record. He has drug offences from 1998 (for which convictions were not recorded) and driving offences. He has no sex offences. I disregard these matters for sentencing purposes.

15. In Ryan v the Queen [2001] HCA 21; (2001) 206 CLR 267 it is made clear that the weight to be given to good character will vary according to the circumstances of the case. The observations in Ryan have been applied in a number of situations. They have been consistently applied in matters involving sexual offences against children. They were, for example, applied in R v Fowler [2007] ACTCA 4 at [14] where the Court of Appeal observed that "In sexual offences, prior good character may be of limited weight where that good character has been used by the accused to gain access to the victim, and this will be particularly apposite in cases of child sex assault."

16. Whilst in custody the offender has not fully co-operated with ACT Corrective Services in supplying information relevant to their determinations of general reoffending and sexual reoffending. Officers from the Service have accordingly been only able to use information available to them from the trial and in connection with it as well as limited other information. Mr Weir has been assessed as a general risk of reoffending on the information available. He has been assessed as having a moderate-low risk of sexual reoffending on the same information. Without the co-operation of the offender the Service cannot produce a more accurate opinion.

17. Subsequent to the offender being convicted the first Pre Sentence Report of ACT Corrections Service was delivered to the Court. It showed that the offender did not acknowledge any guilt over the offences. The author stated:

Mr Weir did not agree with the agreed Statement of Facts. He stated all the offences were fabrications designed to cause irreparable damage to him and his family. He provided justification for his contact with the victim. Mr Weir demonstrated no empathy for the victim and focussed only on the negative impacts experienced by him and his family.

Opinion:

Mr Weir's significant protective factor, his family, appears to have been severed. He appears to have little to no support network and his risk factors have increased exponentially, with no post release accommodation, no employment and his children residing interstate.

It remains a concern [that] Mr Weir continues to deny any involvement in the offences despite the guilty finding. He perceived it was the victim and his family that manipulated the Court and he disregarded any evidence and minimised situations that led to his offences. Additionally, Mr Weir appears to have disregarded the impact of the offences having occurred over a long period of time and incurring a significant breach of trust.

Mr Weir did acknowledge a concern with his alcohol use and is willing to engage with appropriate interventions currently available to him at the AMC.

18. (I interpolate here to record that the author of the Report, Mr Henry, gave evidence before me and was crossed examined on part of the above and his relevant file note inspected. He was challenged on the context in which the answer recorded was given. In the absence of any evidence from the offender I accept Mr Henry's account.)

19. At the time the Report was prepared the offender was facing a further trial on similar counts. Subsequently, the Director of Public Prosecutions indicated that he proposed not to proceed with the prosecution of that further trial

20. In the light of that information I ordered an updated Pre Sentence Report. I did this in case the offender wished to change or modify his position in the light of the fact that no further trial was outstanding. I made this order following, by analogy, the reasoning in R v Landsman [2014] NSWCCA 328; (2014) 88 NSWLR 534 and the obvious difficulty of an offender giving information to a corrections service (which may be in his own interests) and the facing of a further trial on similar facts.

21. In the Updated Pre Sentence Report of ACT Corrections the offender has not changed or modified his position.

22. I find the offender has prospects of rehabilitation notwithstanding that he maintains a version of events inconsistent with the jury's' verdicts: Alseedi v The Queen [2009] NSWCCA 185 at [65].

23. The offender did not give evidence on the sentencing hearing. I set out below information largely taken from the Pre Sentence Report.

24. The offender is 43 years of age. The Pre Sentence Report which was tendered before me recorded his background as follows:

Born in Sydney, NSW Mr Weir is the second of three children. He reported an upbringing he described as difficult. He stated he was exposed to alcohol abuse from a young age and reported his parents separated when he was around four years old. He remained with his mother and his father became more prevalent in his life from 10 years old. Mr Weir reported his mother passed away in 2010 and his father in 2012, he reported his relationship with both his parents were strong prior to their deaths.

Around 1999 or 2000 Mr Weir met the mother of his children. He reported they were married in June 2002 and then separated in September 2003. Together they had two children, now 14 years and 12 years. He described his relationship with her as dysfunctional and marred by drug abuse. Following the separation there were attempts to co parent the children, until ongoing incidents required him to be the sole parent for his children. Since 2004 there has been no contact with the mother.

Mr Weir reported his children reside in Orange, NSW after they were placed in kinship care with his step mother. Due to his current circumstances he stated he is content with this arrangement.

Accommodation:

Prior to his remand Mr Weir was living with his children in Government housing. Due to current circumstances and no longer having the responsibility of care for his children, Mr Weir reported he has no post release accommodation.

Education/Employment:

Me Weir reported he completed Year 12 and went on to complete his electrician trade in 1994. He advised he had obtained certificates of attainment in the Diploma of Community Welfare.

Mr Weir reported a good employment history despite the added responsibility of raising his children. His longest period of employment is five years with a Government electrical company. Mr Weir's more recent employment was with a local landscaper business. He stated this employment lasted less than 12 months and ceased due to his current legal matters.

Financial Situation:

Mr Weir received Centrelink payments in addition to his wage prior to his remand period. He reported he has limited savings and no major assets.

25. The Crimes (Sentencing) Act states that a Court must consider a list of matters which are relevant and known to the Court. Amongst that list is s 33 (1) (o):

The probable effect that any sentence or order under consideration would have on any of the offender's family or dependants;

26. There is considerable controversy within the intermediate Courts of Appeal in Australia as to how such a provision ought to be applied. Section 16A (2) (p) of the Crimes Act 1914 (Cth) is in the same terms.

27. I regard myself as bound by the decision in DPP v Ip [2005] ACTCA 24 where the Court of Appeal in this jurisdiction said of s 16A (2) (p):

The mandate of the Commonwealth Parliament is quite clear: the sentencing court 'must take into account' the matters set out in subs 16A(2) of the Crimes Act 1914 (Cth), including '(p) the probable effect that any sentence or order under consideration would have on any of the person's family or dependants'. The contemplated taking into account of such factors must clearly be real and must occur in every case in which one or more of those factors exist. There is, with respect, simply no warrant for a sentencing court to presume judicially to qualify the clear parliamentary command by suggesting, as has been done, in R v Hinton [2002] NSWCCA 405; (2002) 134 A Crim R 286, 293, that-

The reference in s 16A(2)(p) of the Crimes Act 1914 (Cth) to the "probable effect that any sentence or order under consideration would have on any of the person's family or dependants" should be read as if it were [preceded] by the words "in an exceptional case": R v Togias (2001) 127 A Crim R

Indeed, this court would wish to specifically dissociate itself from the reasoning in R v Togias which gave rise to that suggestion (see Togias (supra) at 34-37). As R v Hinton stresses, each case will "to a very great degree depend upon its own facts". So here.

28. If it was open to me at first instance to choose, I would follow the decision in that case in any event. I would do so as a matter of statutory construction. I realise that the policy arguments against following this path are substantial and cogent. They were well expressed in Markovic v The Queen [2010] VSCA 105; (2010) 30 VR 589:

[7] Secondly, the primary function of the sentencing court is to impose a sentence commensurate with the gravity of the crime. Thirdly, to treat family hardship as the basis for the exercise of leniency produces the paradoxical result that a guilty person benefits in order than innocent persons suffer less. Fourthly, to treat an offender who has needy dependants more leniently than one equally culpable co-offender who has none would "defeat the appearance of justice" and be "patently unjust". Hence it is only in the exceptional case, where the plea for mercy is seen as irresistible, that family hardship can be taken into account. [citations omitted]

29. However, I see no warrant to place the hurdle of exceptional in front of the sub section just as there is no warrant to place such a hurdle before any other sub section. As a matter of statutory construction it appears that Parliament intended to change the law by enacting the subsection.

30. The traditional approach to this aspect of sentencing, absent the statutory command, can be seen from R v Wirth (1976) 14 SASR 291, 296:

Hardship to spouse, family, and friends, is the tragic, but inevitable, consequence of almost every conviction and penalty recorded in a Criminal Court. Again and again, sentencing judges point out that convicted persons should have thought about the likely consequences of what they were doing before they did it - I am, of course, addressing myself to the more serious crimes in which some form of premeditation, wilfulness, or intent, must be proved. It seems to me that courts would often do less than their clear duty - especially, where the element of retribution, deterrenc[e], or protection of society is the predominant consideration - if they allowed themselves to be much influenced by the hardship that prison sentences, which from all other points of view were justified, would be likely to cause to those near and dear to prisoners.

But it has been often remarked that the strength of our law lies in the willingness of judges, when applying a principle, not to carry it past the point where a sense of mercy or of affronted common sense imperatively demands that they should draw back. So it is proper that I should here add that, in my opinion, hardship likely to be caused by a sentence of imprisonment under consideration ought to be taken into account where the circumstances are highly exceptional, where it would be, in effect, inhuman to refuse to do so. In this connection, I respectfully adopt the remarks of Walters J. in Tame v. Fingleton. For example, if it were demonstrated to the satisfaction of the court that to send a man to prison would, without much doubt, drive his wife to suicide, it would be a steely-hearted judge who did not, however illogically, at least try to meet the situation by suitably framed orders as to penalty. But further than that, in my judgment, courts should not go.

(underlining added)

31. Since writing the above my attention has been directed to the judgment of Beech-Jones J, in Zerafa v R [2013] NSWCCA 222. This was a Crown appeal against sentence on a Commonwealth offence. The Crimes Act 1914 analogue s 16A (2) (p) was examined. The majority adhered to previous authority on this issue. In his judgment Beech-Jones J surveys the state of authority on the issue. He draws attention at [123]-[124] to secondary sources and materials. His analysis is persuasive.

32. At the sentencing hearing I received into evidence a hand written statement from DX the daughter of the offender who is now aged 12. DX wrote that she is missing the loss from her life of her father to a very great extent. The offender was a sole parent with his former partner (and mother of the two children) having no or not much contact with her children. Also tendered in evidence was a report from the NSW Family and Community Services addressed to the ACT Director of Public Prosecutions. It detailed the current circumstances of each of the two children who are now separated from each other. Both have now adjusted to their new regimes. The report concludes:

These current placements are suitable and both [KX] and [DX] are comfortable in their placements. [DX] has commented that she misses her father and would return to live with him. If Mr Weir were to be released from prison and seek restoration Community Services would actively assess the risk of significant harm towards [KX] and [DX].

33. As per s 34 of the Sentencing Act, I record that the offender's plea of not guilty and his subsequent prosecution of his case at trial have not led to any increase in the severity of the sentence otherwise to be imposed.

Crimes (Sentencing) Act 2005 (ACT)

34. The offender falls to be sentenced under the Crimes (Sentencing) Act 2005 (the Sentencing Act). The purposes of sentences are set out in s 7 (1). These are:

(a) to ensure that the offender is adequately punished for the offence in a way that is just and appropriate;

(b) to prevent crime by deterring the offender and other people from committing the same or similar offences;

(c) to protect the community from the offender;

(d) to promote the rehabilitation of the offender;

(e) to make the offender accountable for his or her actions;

(f) to denounce the conduct of the offender; and

(g) to recognise the harm done to the victim of the crime and the community.

In argument before me, Counsel for the offender submitted that (a), (d) and (f) of the above ought to be given increased emphasis in the circumstances of the case. I consider that all purposes are engaged here and would not single out these three purposes.

35. As is evident, in many cases, these purposes will give rise to conflicting considerations and the weighing of essentially incommensurate factors.

36. Counsel for the offender also took me through the relevant considerations in s 33 (1) of the Sentencing Act. He emphasised:

(d) if the personal circumstances of the victim were known to the offender when the offence was committed-the circumstances;

(e) and (f) (together) the effect of the offence on the victims of the offence, the victims' families and anyone else who may make a victim impact statement;

(i) the degree of responsibility of the offender for the commission of the offence;

(m) the cultural background, character, antecedents, age and physical or mental condition of the offender;

(o) the probable effect that any sentence or order under consideration would have on any of the offender's family or dependants;

(q) the degree to which the offence was the result of provocation, duress or entrapment;

(t) whether the offender is voluntarily seeking treatment for any physical or mental condition that may have contributed to the commission of the offence;

I have had regard to these matters and also factors in s 33 (1) which overlap with these matters.

37. I consider that there is guidance in the general approach and appropriate disposition for these proceedings from R v Kelly (Unreported, Supreme Court of the ACT, Murrell CJ, 28 April 2014). In that case a 48 year old offender, with no prior criminal history, was found guilty of five counts of committing an act of indecency and pleaded guilty to a further count concerning three children who were friends of his child and who were all about 12 years old. Those three children attended at the offender's house and used to stay overnight. The actions of the offender in the above case were not unlike those of the offender standing for sentence and were made in circumstances where the children were under the supervision of the offender.

Findings on Mental Health and Degree of Responsibility

38. There is no factor mitigating the degree of responsibility for these offences. There is evidence that the offender has had problems with alcohol but it is not suggested that this factor had any relation to the offending.

39. The offender stands for sentence for six offences. In accordance with Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 63 I have had regard to the totality of the criminal behaviour.

40. I am satisfied that no penalty is appropriate other than imprisonment.

41. In relation to Count 1, committing an act of indecency in the presence of KQ in April 2012, the offender is convicted. I sentence the offender to 6 months' imprisonment, commencing on 7 July 2015.

42. In relation to Count 2, committing an act of indecency on KQ on 27 April 2012, the offender is convicted. I sentence the offender to 30 months' imprisonment, commencing on 7 March 2017 and expiring on 6 September 2019.

43. In relation to Count 3, committing an act of indecency on KQ in February or March 2014, the offender is convicted. I sentence the offender to 18 months' imprisonment, commencing on 6 April 2016.

44. In relation to Count 5, committing an act of indecency in the presence of KQ, the offender is convicted. I sentence the offender to 6 months' imprisonment, commencing on 7 July 2015.

45. In relation to Count 10, committing an act of indecency in the presence of KQ in 2011 or 2012, the offender is convicted. I sentence the offender to 9 months' imprisonment, commencing on 7 July 2015.

46. In relation to Count 12, committing an act of indecency in the presence of KQ, the offender is convicted. I sentence the offender to 6 months' imprisonment, commencing on 7 July 2015.

47. This provides for a total effective head sentence of 4 Years and 2 months commencing on 7 July 2015.

48. I order that the offender be eligible for parole after serving 2 years and 6 months, which is after 6 January 2018.

I certify that the preceding forty-eight [48] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Robinson.