R v XT [2016] ACTSC 335

Supreme Court of the ACT|2016-11-03|Before: Burns J

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - offences against the person - sexual offences - act of indecency on a male - sexual intercourse - delay in prosecution - current sentencing practice - principle of totality - terms of imprisonment.

Crimes Act 1900 (ACT) s 92

R v Blanco [1999] NSWCCA 121

R v Nona [2015] ACTSC 136

Legal Aid ACT (Offender)

1. XT, on 23 February 2016, you were committed for sentence to this Court with respect to the following charges:

(a) one charge, contrary to s 92K(2) of the Crimes Act 1900 (ACT) (the Crimes Act), that between 27 September 1991 and 19 September 1992, you did commit an act of indecency upon a person, namely BW, then being a person above the age of 10 years but under the age of 16 years, to wit 15 years of age (charge CC2015/6710/15);

(b) one charge contrary to s 92E(2) of the Crimes Act, that between 27 September 1991 and 19 September 1992, you engaged in sexual intercourse with a person, namely BW, then being a person above the age of 10 years but under the age of 16 years, to wit 15 years of age (charge CC2015/6712);

(c) one charge contrary to s 92K(2) of the Crimes Act, that between 27 September 1991 and 19 September 1992, you did commit an act of indecency upon a person, namely BW, then being a person above the age of 10 years but under the age of 16 years, to wit 15 years of age (charge CC2015/6713); and

(d) one charge contrary to s 92E(2) of the Crimes Act, that between 27 September 1991 and 19 September 1992, you did attempt to engage in sexual intercourse with a person, namely BW, then being a person above the age of 10 years but under the age of 16 years, to wit 15 years of age (charge CC2015/10773).

These offences occurred in the course of two incidents to which I will refer in a moment.

2. You adhered to your pleas of guilty in the sentence hearing before me on 3 August 2016. The maximum penalty for the offence of committing an act of indecency on a person between the age of 10 and 16 contrary to s 92K(2) of the Crimes Act, as it was at the relevant time, is 10 years imprisonment. The maximum penalty for the offence of engaging in sexual intercourse with a young person between the ages of 10 and 16 years contrary to s 92E(2) of the Crimes Act as it was at the relevant time is 14 years imprisonment and the maximum penalty for the offence of attempting to engage in sexual intercourse with a young person between the ages of 10 and 16 contrary to s 92E(2) of the Crimes Act as it was at the relevant time is also 14 years imprisonment.

3. You are the half-uncle of the victim who was born in 1976. Your half-sister is the victim's mother. On 27 September 1991, the victim left Newington College in Sydney. He was 15 years old and in year 9. Shortly after that time, he ran away from his father's house in Sydney where he was living. He was reported as missing to New South Wales (NSW) police. Your half-sister, that is the victim's mother, had a conversation with you and you offered to go to Sydney to find the victim.

4. After about a week, the victim went home to his father's house to get some food. While he was there, he fell asleep. He was woken by you. You were there looking for him. You drove the victim to a friend's house in Surry Hills where you both stayed for about a week. You contacted the victim's mother to let her know that you had found him.

5. After a few days, you introduced the victim to the use of cannabis and you and he smoked about two or three cones a day. During the week in Surry Hills, you showed the victim adult pornographic videos. You massaged him and touched his penis. By the end of the week, you had progressed from massaging the victim to masturbating him until he ejaculated. You also performed fellatio on the victim during this time. These events occurred in NSW so they are not the subject of any charge before this Court but they are nevertheless relevant as establishing that the charged events were not isolated.

6. At the end of the week, you drove the victim back to the Australian Capital Territory (ACT) and you returned to his mother's address in Tuggeranong. You resided nearby. Within a few weeks of returning to the ACT, you resumed your sexual activities with the victim that you had commenced in NSW. The victim attended your residence frequently and you and he continued to smoke cannabis together and watch adult pornographic videos. You often gave the victim massages while you consumed cannabis together. You often masturbated the victim and you performed fellatio on him on approximately four occasions.

7. The Agreed Statement of Facts tendered at your sentence hearing notes that the incidents which form the basis of the charges are representative and related to only those incidents which the victim can particularise. The first incident relates to charges CC2015/6710 and CC2015/6712, charges of committing an act of indecency and engaging in sexual intercourse respectively. A couple of months after the victim returned to the ACT, he attended your home. You and he were in the living room. The victim was wearing only boxer shorts while you both watched television. You leaned over and knelt over the victim. You took hold of his penis. You masturbated the victim's penis while you were on top of him. This is the basis of charge CC2015/6710. You then performed fellatio on the victim who ejaculated. This is the basis of charge CC2015/6712. At that time, the victim was 15 years old.

8. The second incident relates to charges CC2015/10773 and CC2015/6713. About six months after the victim returned to the ACT, he attended your home. You gave him a massage. The victim had taken off his clothes and was wearing only his boxer shorts. You pulled down the back of the boxer shorts and inserted your finger between his buttocks. You did this on a number of occasions. This is the basis of charge CC2015/6713. The victim pulled away each time you put your fingers down his boxer shorts. You massaged the victim around his buttocks and the victim did not pull away when you did this. You then put your hand in between the victim's legs and tried to touch him on the anus and then attempted to insert your fingers into his anus. This is the basis of charge CC2015/10773. The victim pulled away and told you that he did not like that. You told him that that was all right and that if he did not like it, you would not do it.

9. During 1992 and 1993, the victim attended boarding school in NSW. During school holidays, he returned to the ACT at which time he would see you and spend time with you. In November 1994, the victim moved to Batemans Bay and he lost contact with you. In the middle of 1999, he told his mother that he had been sexually abused by you over a long period from when he was 14 years old. That evening your half-sister confronted you about having a sexual relationship with the victim for some years. You immediately admitted that it was true and explained that it was your way of showing him love. You wrote a letter to the victim and to your half-sister stating that you were sorry for what you had done, that it would not happen again and that you were getting professional help.

10. On 9 February 2016, you entered pleas of guilty to the present charges in the Magistrates Court. At that time, you were a sentenced prisoner in the Alexander Maconachie Centre. I accept that your pleas were early pleas.

11. A Pre-Sentence Report dated 18 May 2016 was tendered at your sentence hearing. You are 60 years old and 1 of 6 children. You were raised in a religious family and stated that your father was a disciplinarian who used dominance as a way of controlling his children. You described a problematic and dysfunctional upbringing and reported exposure to inappropriate sexual behaviour and abuse by family members and their friends during your childhood and adolescence. You told the author of the Report that you were advised that this experience was part of growing up when you attempted to seek assistance at age 13. You said that the abuse you experienced impacted on your development of appropriate sexual boundaries in all relationships and you did not recognise your experiences as dysfunctional until you were in your twenties. You have no continuing relationships with your family members except for one brother. You are not in a relationship and you do not have any children.

12. You reported that you were self-employed for seven years prior to your incarceration in 2014. You said that you owned a franchise business in the retail industry in which you were responsible for approximately 10 employees. You said that the business was successful and fulfilling. You sold this franchise at the end of 2013 due to lack of trade and claimed to have commenced a gardening business in the months immediately prior to your sentencing in 2014.

13. You reported a social level of alcohol consumption throughout your life which increased during periods of stress or emotional difficulty. You drank on a daily basis in the 12 months prior to your incarceration. You claimed that anxiety associated with your offending and potential incarceration increased your inclination to drink. You commenced the consumption of cannabis at age 15, reporting an increase from age 20. Despite periods of sobriety and reduced consumption, you were essentially a daily user of cannabis until your incarceration. You denied addiction to cannabis, claiming its use was a matter of choice for you.

14. You disclosed mental and physical health conditions and reported engagement with ACT Health Services. Information contained in an ACT Health Services report dated 4 May 2016 indicated that you engaged with that service in support of a dermatological condition, depression and sleep disturbance. You also reported a diagnosis of ADHD but this could not be substantiated by the author of the Report. You told the author of the Report that you had engaged with psychological services throughout your life primarily in an attempt to address your problematic sexual behaviour. You disclosed a history of suicidal ideation and stated that you considered suicide prior to your sentencing in 2014. You said that you have adequately managed your mental health since your incarceration and spoke positively of your participation in the Adult Sex Offender Program.

15. While you partly agreed with the Statement of Facts, the author of the Report noted that you minimised your behaviour by stating that the victim was consenting, requested that you watch pornography and facilitated your meetings on a number of occasions. The author of the Report stated that you appeared to accept responsibility for your sexually inappropriate behaviour. However, you demonstrated limited insight into the impact of your actions and highlighted the absence of aggression and force on a number of occasions. You attributed your offending to the absence of established sexual boundaries during your upbringing and stated your actions were a demonstration of love and care for the victim. You acknowledged the seriousness of your offences and stated that you are prepared to accept the consequences of your actions.

16. A victim impact statement from the victim was tendered in these proceedings. The victim said that for a long time he blamed himself for what happened until he received help from numerous professionals over the years. For a time he was confused about his sexuality. He has found it really difficult to form relationships with males and has major issues around trust. Your engagement with him exposed him to drugs and sent him down a path to addiction. He tried to block out what had happened to him through use of drugs and alcohol which had severe consequences for him, including engaging in criminal activity. This has had a very significant impact on his family and particularly on his mother. The victim says that he has never been able to hold down a job for long periods of time and has never been able to pursue a career due to addiction, feeling confused and having major trust issues. He has also found it difficult to have long-term relationships with partners.

17. A further victim impact statement was provided by the mother of the victim, your half-sister. She spoke of being particularly fond and caring of you when you were a young child and later as an adult. She speaks of the importance of family to her life. She said that she was grateful for the interest which you showed in the victim as she had a very demanding full-time job and was constantly juggling responsibilities. She said that she had many serious conversations with you about setting a good example for the victim and never exposing him to cannabis or any other risky behaviour. She now feels guilty that she did not protect her son from the crimes that you perpetrated upon him. She speaks of how the victim was disturbed and disruptive after you returned him to Canberra in 1991. His behaviour and attitude thereafter deteriorated at a time when he was spending a lot of time with you.

18. She was distraught to learn in 1999 that the victim was addicted to heroin. After a period in rehabilitation, he went to live with his father and it was then that he revealed that you had sexually abused him as a child. Pressure was then brought to bear by other family members for the victim not to report your offending to police on the basis that it would severely affect your grandmother. I note this in passing are there is no suggestion that you were in any way responsible for bringing this pressure to bear on the victim or his mother. Your sister speaks of the ongoing breakdown of her extended family due to your offending.

19. On 16 October 2014, you were sentenced to an aggregate term of 8 years imprisonment with a non-parole period of 2 years and 8 months with respect to 12 sexual offences which occurred between 1 December 1979 and 31 December 1980 when you were between 23 and 24 years of age. Those sentences commenced on 24 September 2014 and expire on 23 September 2022. Those offences involved a single victim who was then between 11 and 12 years old. The offences were 1 count of buggery and 11 counts of indecent assault on a male.

20. A copy of the sentencing remarks of Murrell CJ was tendered in these proceedings and I will not now outline the facts in those proceedings. I accept that in sentencing you for the present offences, I should endeavour to ensure that the totality of the sentences to which you are to be subject does not exceed that which would have been imposed had all offences been subject to sentencing at the same time. The sentences imposed by her Honour took into account the sentencing patterns in this Territory in 1980 and 1981 as required when sentencing for historical offences. The Crown did not submit that I should adopt a different course in sentencing for the present offences and I was provided with a schedule of sentences imposed in this Court for the years 1990, 1991 and 1992.

21. While I take that material into account in sentencing you, it is difficult to determine whether there is any significant difference in sentencing patterns in this Court in those years as opposed to the present without knowing more about the individual circumstances of the cases set out in the schedule. Perhaps the clearest thing that can be drawn from the material in the schedule is that the overall average non-parole period set was 44.55 per cent of the head sentence. I was not provided with current statistics of the average of the ratio of non-parole period to head sentence but I suspect that the average in the years from 1990 to 1992 was somewhat lower than the present average. Caution must be adopted in using these figures as it is not clear to what extent the cases utilised in driving the average included cases of repeat or multiple offences. Such cases may be expected to involve non-parole periods above the average.

22. I also take into account the delay between the commission of these offences and your prosecution. In sentencing you on 16 October, the Chief Justice referred to the comments of Wood CL in R v Blanco [1999] NSWCCA 121 (R v Blanco) at [16] and [17], and said that:

...delay may be relevant to a sentencing exercise first, because of the "uncertain suspense" in which an offender may have been left, second, because the offender may have demonstrated progress towards rehabilitation during the intervening period, or third, because a sentence for a stale crime calls for a measure of understanding and flexibility of approach, it being in the public interest that those suspected of serious crime be brought to justice quickly, particularly when there is a strong case available against them.

The second and third of these considerations are relevant in the present case. In relation to rehabilitation, in the decades since the commission of the offences, the offender has gained insight into his misconduct and has voluntarily sought treatment. There is no suggestion that he has reoffended.

23. Your pleas of guilty to the present offences established that to the extent that the Chief Justice sentenced you on the basis that there had been no reoffending since December 1980, she sentenced on an erroneous basis. This, however, does not affect sentencing for the present matters. I agree with respect with her Honour's comments about the applicability of the second and third circumstances referred to in R v Blanco to sentencing for these offences. The present offences occurred some 24 years ago and there is evidence which suggests that you have gained considerable insight into your offending during that period.

24. It is of some significance that many years after the offences which were dealt with by the Chief Justice, you attempted to have contact with the victim of those offences to apologise to him. When the victim ultimately did contact you some years later in a pretext phone call at the behest of the police, you apologised for your behaviour and acknowledged that what you had done was wrong. You later engaged in a record of interview with police in which you admitted your offences and told police that at the time of those offences, you did not appreciate that your conduct was indecent but that you had subsequently developed an appreciation that you had acted wrongly. In her sentencing comments, the Chief Justice accepted the following opinion expressed by Dr Knox, psychiatrist and I quote:

In summary I believe that the particular psychosocial circumstances of [XT]'s early life, particularly his own sexual abuse and the liberal attitude towards sex in his home, led him to accept such behaviour as normal during his adolescent years, and to continue it into his early adult life. I believe that [XT]'s personality has been retarded by his difficult early circumstances leaving him relatively immature in his sexuality and other personality attributes, even to the present time. His general personality has been severely disrupted and he has not been able to settle into regular work or ongoing intimate relationships with adult partners.

25. I accept that your pleas of guilty to the present charges should be accepted as early pleas and that they evidence remorse on your part. Your pleas also had significant utilitarian value and in particular ensured that it was unnecessary for the victim to give evidence in these proceedings. I will reduce the otherwise appropriate sentences by 25 per cent to reflect your pleas of guilty.

26. It is very clear that the present offences are very serious ones. I accept that they involved a breach of trust as submitted by the Crown but I am not so certain that the offences were predatory in the sense urged by the Crown. Certainly you were aware of the vulnerability of the complainant but in the light of the sentencing remarks of the Chief Justice and the material to which she referred, it is possible that you did not fully appreciate the gravity of your actions and the possible consequences for your victim. These offences occurred in the 1990s. As Murrell CJ observed in R v Nona [2015] ACTSC 136 at [48]:

It is desirable for the court to consider the sentencing pattern at the time when the offences were committed.

27. On the material then placed before her Honour, she concluded that the sentencing pattern for offences of sexual intercourse with a person under the age of 16 years and committing an act of indecency in the presence of a person under the age of 16 years were generally more lenient when compared to current sentencing practices and that non-parole periods in the 1990s were lower than those that are currently imposed. I will approach sentencing you for these offences consistently with her Honour's observations.

28. You are, as I have already noted, currently serving eight years imprisonment from 24 September 2014 to 23 September 2022. The principle of totality suggests that a degree of concurrency between the sentences for the present offences and your current sentences is appropriate. I should, as I have said to the extent that it is possible, impose sentence that would have been imposed had all maters been dealt with by the Chief Justice on 16 October 2014.

29. For the offence of engaging in sexual intercourse with the complainant (charge CC2015/ 6712), I record a conviction and you are sentenced to 2 years and 3 months imprisonment, reduced from 3 years in order to reflect your plea of guilty, commencing on 24 December 2021 and expiring on 23 March 2024.

30. For the offence of committing an act of indecency (charge 2015/6710), I record a conviction and you are sentenced to 9 months imprisonment, reduced from 12 months in order to reflect your plea of guilty, commencing on 24 December 2021 and expiring on 23 September 2022.

31. For the offence of attempting to engage in sexual intercourse with the complainant (charge CC2015/10773), I record a conviction and you are sentenced to 23 months imprisonment, reduced from 2 years and 6 months in order to reflect your plea of guilty, commencing on 24 October 2022 and expiring on 23 September 2024.

32. For the offence of committing an act of indecency (charge CC2015/6713), I record a conviction and you are sentenced to 9 months imprisonment, reduced from 12 months in order to reflect your plea of guilty, commencing on 24 October 2022 and expiring on 23 July 2023.

33. The aggregate sentence which I have therefore imposed is one of 2 years and 9 months imprisonment commencing on 24 December 2021 and expiring on 23 September 2024. The total sentence imposed by Murrell CJ and myself is therefore one of 10 years imprisonment. I am required to reset your non-parole period. I set a non-parole period of 5 years commencing on 24 September 2014 and expiring on 23 September 2019.

I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.

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