Director of Public Prosecutions v Fitzgerald (a pseudonym)
[2023] ACTSC 194
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Fitzgerald (a pseudonym) |
Citation: | [2023] ACTSC 194 |
Hearing Date: | 25 July 2023 |
Decision Date: | 25 July 2023 |
Before: | Mossop J |
Decision: | 1. On the charge of maintaining a sexual relationship with a young person (CC 2022/10491) the offender is convicted and sentenced to imprisonment for seven years and six months commencing on 25 July 2023 and ending on 24 January 2031. 2. The non-parole period is four years and two months commencing on 25 July 2023 and ending on 24 September 2027. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – sexual relationship with a young person – victim aged between 13 and 15 years old – offence in the upper end of mid-range of objective seriousness – early plea of guilty – no criminal history – sentence of imprisonment imposed |
Legislation Cited: | Crimes Act 1900 (ACT), s 56(1) Crimes (Sentencing) Act 2005 (ACT), ss 34B, 35 |
Cases Cited: | DPP v Myers (a pseudonym) [2023] ACTSC 142 R v Jones [2019] ACTSC 124 R v KN (No 2) [2019] ACTSC 5 R v Michalopoulos [2020] ACTSC 27 The Queen v Ashton (a pseudonym) [2022] ACTCA 45 The Queen v Ware (a pseudonym) [2022] ACTCA 14 |
Parties: | Director of Public Prosecutions “Mark Fitzgerald” ( Offender) |
Representation: | Counsel T Hickey ( DPP) E Chen ( Offender) |
| Solicitors Director of Public Prosecutions Legal Aid ACT ( Offender) | |
File Number: | SCC 59 of 2023 |
MOSSOP J:
Introduction
1․On 7 March 2023, the offender pleaded guilty to the following charge: maintaining a sexual relationship with a young person contrary to s 56(1) of the Crimes Act 1900 (ACT) (CC 2022/10491). The maximum penalty is 25 years’ imprisonment.
2․The victim of the offending is the offender’s daughter. In order to prevent the identification of the victim of the offending, the offender has been given a pseudonym. The name of the victim and her mother have been anonymised in these reasons.
Facts
3․The facts are agreed in a Statement of Facts which was admitted into evidence without objection. I find the facts in accordance with that Statement of Facts. It is unnecessary to set out the facts in full. A summary of them is as follows. In this summary I refer to the victim as A and her mother as B.
4․A is the biological daughter of the offender. The offender is also the father to A’s younger brother. The offender and the children’s mother, B, had an informal arrangement whereby the offender picked up the children from school on Thursday afternoon and returned them to their mother’s home on Sunday evening.
5․At the time of the offending, the offender was residing with his mother in Giralang. The offender’s mother resided at the address during the entire period of the offending and was aware that A had slept in the offender’s bedroom.
6․A and her brother regularly watched movies with the offender in the offender’s bedroom before going to bed. When staying at the offender’s address in Giralang, the children would ordinarily share a bedroom. The offender had his own bedroom.
7․The offending is identified by reference to three incidents at the commencement of the offending, a pattern of consistent offending, some additional distinct incidents that A could recall and a final incident that A could recall.
8․The first incident occurred in early 2016 when the children were staying with the offender at his home. A was 13 years old. After watching a movie together in the offender’s bedroom, the children were preparing to go to bed. While A’s brother was brushing his teeth and A was getting ready for bed, the offender said to her “oh, you should stay in here tonight”. A went to bed on the mattress in the offender’s room.
9․About 20 minutes after going to bed, the offender put his right hand under the front of A’s shirt and squeezed her right breast. After about two seconds she pushed the offender’s hand off her breast and went to sleep in the other bedroom, which she shared with her brother.
10․A few weeks after the first incident, while A was staying at the offender’s home, the offender again asked A to “just stay in my room.” After A had fallen asleep on her back, she awoke to the offender softly kissing her on her inner thigh “very, very close to my vagina”. She pushed his head away, got up from the mattress and left the room.
11․Neither the offender nor A said anything as she left. A went to the bedroom she shared with her brother and cried. At the time she did not disclose to anyone what had occurred.
12․The following week the offender asked A to “just stay in here” as she was preparing to go to bed. A went to sleep on the offender’s mattress. A awoke during the night on her back, on top of both the sheet and blanket. The offender was lying on his stomach and licking A “everywhere” on her genitals, including her clitoris and vaginal opening. A felt the offender’s tongue penetrate her vagina by approximately two centimetres.
13․A felt scared and lay in the position on her back for approximately 10 seconds as the offender continued to lick her genitals. She then “started freaking out”, pulled herself up and left the room. She observed the offender quickly move back to where he would sleep on the mattress. Neither the offender nor A said anything as she left.
14․In each of these incidents, A believed that the offender was trying to pretend that he was asleep around the time or just after touching her.
15․The following week, the offender told A that he had been “faking” for the past few weeks and that he had not been asleep. The offender asked A if she had “enjoyed it”. A felt scared and did not respond.
16․Following the third incident, there was then a period of consistent offending during which the offender indecently touched and performed cunnilingus on A “at least once every weekend” when she would stay at his home. The offending would occur on Thursday or Friday night. About a quarter of the time it would occur on both nights. It did not occur on Saturday night. Nor did it occur when A had her period, when she felt that the offender would “treat [her] like garbage” and would behave “horribly” towards her.
17․In terms of the sexual touching, A recalled:
It was always the same. It was just touching me and then going down on me, and then, um – yeah it was just like that for a while. I don’t remember exactly when that ended though. I – well, it never ended until I left, but when he started trying different stuff.
18․The offender did not digitally penetrate her vagina, but would use his hands to rub her breasts, buttock and genitalia including her clitoris. The touching would happen both underneath and over her clothing. He would perform cunnilingus on her at least once every fortnight and would press his penis against her buttock as she lay on her side.
19․As the offending continued, A ceased leaving the offender’s room to return to her own room during the night. She was concerned that the offender would take it out on either her or her brother. During the offending period A recalled feeling “just too scared and manipulated by him”.
20․The offender displayed jealous behaviour and would check and confiscate A’s phone, iPad and laptop due to concerns that she was talking to boys.
21․There were some additional incidents which A could distinctly recall. During the period of consistent touching and cunnilingus committed by the offender, A recalled other distinct offending. On one occasion when A was 14 years old, she was lying on her left side on the offender’s mattress as he used his hands to touch her breasts. The offender then pulled her towards him, and she felt his erect penis press against her buttock. After feeling his penis pushing against her for approximately five seconds, A moved her body away from the offender further across the mattress. Conduct of this type happened on more than one occasion.
22․When A was 14 years old the offender started masturbating as he lay next to her. The first time this occurred she could feel the mattress jerking and could hear him masturbating. She remained facing away from him on her side as the offender lay on his back. On this night the offender did not touch her in any way. The offender masturbated in her presence approximately once every month after this first occasion.
23․The following week the offender again asked A to “come into my room”. She fell asleep quickly on account of feeling particularly ill. She awoke during the evening to find that she was on her back. Her top had been lifted, exposing her breasts, and the offender was lying next to her masturbating. She cried as the offender continued masturbating.
24․A few weeks later the offender was again masturbating on the mattress next to A. He took her hand and pulled it onto his erect penis, which was exposed through the fly of his boxer shorts. She touched it for a second before removing her hand and leaving and sitting in her room and crying.
25․The offender tried to have A touch his penis on another occasion, however she never did. On another occasion when he tried, she resisted him and despite still being terrified, she felt that she “was getting stronger and less scared of him”.
26․The final incident occurred in late April 2018, when A was 15 years old. She was again staying at the offender’s residence. In the months leading up to this weekend she had commenced a relationship with a boy from school. A had been taking steps to avoid the offender from discovering that she had a boyfriend due to concerns as to how the offender would react. She described the offender discovering that she had a boyfriend as her “greatest fear”.
27․On the Saturday night the offender took A’s phone and went through it. The offender retrieved deleted data from the phone which confirmed that she had had a boyfriend for several months. After checking her phone, the offender said to A “you’re cheating on me”.
28․Later that evening, A and her brother were with the offender in his bedroom watching a movie. After her brother left to go to bed, the offender told A “you’re staying in here tonight”. A replied that “I don’t want to sleep in your room. I’m just having a bad day”. The offender told her that she would be. A felt scared by the offender’s demeanour. A was wearing tracksuit pants and a short-sleeved top.
29․Once in bed, the offender commenced touching A by placing his hands down her pants and up her shirt. As he did so, the offender said “tonight’s going to be the night. I have been waiting too long”. A was lying on her back crying. As the offender rubbed her genitalia he rubbed “everywhere” underneath her clothing but did not digitally penetrate her vagina. The rubbing continued for a period of less than five minutes.
30․The offender then said, “if it’s not your vagina, then it’s your bum”. A said “absolutely not” whilst crying. The offender said, “if I am not going to get this from you, just suck me off”. The offender and A were lying on their backs and the offender grabbed the back of her head with his right hand and pulled her body up to a sitting position. He continued trying to push her head towards his penis. A continued to say “no” and resisted being pushed by the offender. The offender then ceased pushing and said “whatever”.
31․A lay back down on the mattress. The offender then got up on his knees and pulled up her top exposing her breasts. A continued crying and covered her eyes as the offender masturbated above her. The offender masturbated for approximately three minutes before ejaculating onto her stomach. The offender retrieved some tissues, cleaned up the ejaculate from A’s stomach and said, “you can leave now”. A immediately left and showered, continuing to cry.
32․The following day when A was dropped off at her mother’s house in the evening, A decided that she would not return to the offender’s house again.
33․After returning to her mother’s house, A told her mother that she hated her father and no longer wanted to stay with him. A was crying as she told her this. She did not disclose what had occurred at this time. A did not stay with the offender after that.
34․In November 2021, A disclosed to her boyfriend what had occurred. She also disclosed the conduct to her mother and several other people including her brother. She told the offender that she had done so. B also telephoned the offender and told the offender’s sister of his offending.
35․Prior to A making a complaint to police, on 21 December 2021 the offender attended Gungahlin Police Station with his sister. He advised the police that his ex-partner had had a conversation with him earlier that day about him “molesting” their biological daughter. He made substantial admissions to the police about his conduct, although in some respects the admissions were less than what is now admitted through the acceptance of the Agreed Statement of Facts. He denied “raping” his daughter.
36․A and B participated in evidence-in-chief interviews with the police on 22 February 2022.
37․B gave evidence to the police that indicated that the offender had paid attention to when A first commenced menstruating and that he had arranged for her to be prescribed birth‑control tablets. She also told the police that A had told her that the offender would often ask her if he could take her virginity.
Victim impact
38․A victim impact statement was read by A. It reflected her relief at having left the offender in April 2018. It records her understanding now that much of her behaviour since the offending resulted from the offending itself. She recalled the offending as having ruined her life and the lives of others. She reflected that reading out the victim impact statement has provided her with closure and she can get on with her life without being scared that she will have to run into the offender.
39․It is consistent with the victim impact statement to recognise the long-term and deep‑seated psychological harm that is caused by this kind of abuse. That is particularly so when it involves a gross abuse and fracturing of the parent-child relationship. The likelihood is that this kind of abuse will have long-term and pervasive effects upon the victim and consequential impacts upon a circle of people around her. These impacts must be recognised as part of the sentencing process.
Objective seriousness
40․The offending took place over a period of two years and four months. It involved sexual intercourse within the extended meaning provided by the Crimes Act 1900 (ACT) but did not involve acts of penile penetration. It involved cunnilingus, acts of indecency involving the victim’s genitals, and masturbation in the presence of the victim to the point of ejaculation. The quantum of the offending conduct was significant, occurring approximately weekly over 120 weeks. While there were some weeks when offending did not occur, there were some weeks when it occurred on more than one occasion. The offender is A’s father and hence the offending involved a gross abuse of the parental relationship. The offending inevitably involved the manipulation of A so that she remained compliant for as long as she did. The duration of the offending and the age of the victim means that it would have had a significant mental impact upon her at the time.
41․I do not accept the submission put on behalf of the offender that the offending “falls towards the lower end of objective seriousness” for this offence. That is for the following reasons. The offence under s 56(1) may be constituted by as little as two sexual acts. Here there were many more than that committed over a period of 28 months. Further, the offending was committed by the victim’s father as a gross abuse of the parental relationship. The offending was associated with manipulative and controlling behaviour and continued notwithstanding that, on occasion, the victim was clearly upset. I do not accept the submission that the absence of penile-vaginal intercourse is so significant that it would reduce the objective seriousness of the offending to that which was contended for by the offender. Notwithstanding the absence of penile-vaginal intercourse, the other features of the offending prevent it from being characterised as at the lower end of objective seriousness.
42․However, I do not accept the prosecution submission that the offending should be characterised as being at the high end of objective seriousness. Notwithstanding the duration of the offence and the frequency of sexual activity with the victim, I consider that the offending is more appropriately characterised as being at the upper end of the mid‑range of objective seriousness.
Subjective circumstances
43․The subjective circumstances of the offender are outlined in a pre-sentence report dated 17 July 2023 and a character reference provided by the offender’s mother. The author of the pre-sentence report was asked some additional questions about her report.
44․The offender is 43 years old. He was born and raised in India. He was raised by his mother as his father left the family home soon after he was born. His childhood was difficult due to poverty. His family relocated to Australia when he was 10 years old. He lived in Melbourne until the age of 14 and then moved to the Australian Capital Territory. He has positive relationships with his mother and half-sister. His mother attests to the support that she has received from the offender and describes that she has depended on him for general household chores, shopping, gardening and medical appointments. The sentence that will be imposed upon the offender will obviously have significant impacts upon his mother. That is an unfortunate but inevitable consequence of his offending conduct. Fortunately, she has a daughter who may be able to assist her.
45․The offender is currently single. The last relationship was with the mother of the victim of the offending. He has had no contact with his daughter or his daughter’s mother for almost six years.
46․He completed Year 12 at school and has been employed in retail since then. He was most recently employed in a retail position in country New South Wales. He is relatively socially isolated, his companions being those from his work.
47․He does not have problems with alcohol or illicit substances. Although he suffers stress as a result of the present charges, he does not have any underlying physical or mental health issues.
48․He knew his conduct was wrong at the time. He said that offending against the victim would stop for three or four weeks and then recommence. Although he made it clear that he was not blaming the victim he stated that, from his point of view at the time, the victim was consenting to the sexual contact. He indicated a desire to sit down with a professional to understand why he committed the offences. He accepted that the offending would cause damage to the victim and that it should not have happened.
49․He is assessed by the author of the pre-sentence report as at a low risk of general reoffending and a below average risk of sexual offending assessed in accordance with the Static-99R assessment tool. The author of the pre-sentence report was cross‑examined by counsel for the prosecution in relation to the assessment using the Static‑99R tool. Although counsel submitted that the tool was a limited one and that the court should assess the risk of further sexual offending as being higher than that generated by the assessment tool, I do not consider that I should reject the assessment or adopt a different one. While the tool addresses only static factors, those are factors which when assessed using the tool provide a scientifically validated prediction. It is obviously only one matter amongst many which should be taken into account and does not involve assessment of dynamic, that is changeable, risk factors.
50․He is assessed as suitable for a community service work condition and an intensive correction order.
Criminal history
51․The offender does not have a criminal history. For the reasons given in DPP v Myers (a pseudonym) [2023] ACTSC 142 at [64], I do not consider that s 34A(b) of the Crimes (Sentencing) Act 2005 (ACT) operates to deny the offender the benefit of good character.
Plea of guilty
52․The offender pleaded guilty in the Magistrates Court prior to the provision of a brief of evidence. This is an early plea of guilty and he is entitled to a reduction of 25 percent on account of the early plea pursuant to s 35 of the Crimes (Sentencing) Act.
53․The plea of guilty is also reflective of a willingness to cooperate with the administration of justice and a desire to minimise the impacts of the judicial process upon the victim of the offending.
Time in custody
54․The accused has not spent any time in custody for the offence.
Consideration
55․Each of the purposes of sentencing is relevant. Punishment, specific and general deterrence, protection of the community, holding the offender accountable, denouncing his conduct and recognising the harm done to the victim and the community are all significant considerations. Rehabilitation of the offender so as to reduce the risk of any offending in future is also a significant consideration. Because the offending involves “a family violence offence”, it is necessary to consider the nature of family violence in the context of that offending, including the matters which are set out in s 34B of the Crimes (Sentencing) Act. Those matters reflect considerations which would be relevant and taken into account even in the absence of that legislative guidance.
56․The offender has recognised the wrongfulness of his actions. His willingness to cooperate with the judicial process and minimise the further impacts of that process upon the victim of the offending are positive signs of his potential for rehabilitation. While he has said that he does not know why he committed the offence and hence has not overtly accepted that he was motivated by sexual gratification, that is of only limited significance. That is because there remains the potential, whilst incarcerated, for him to participate in sex offenders’ programs which, it can be anticipated, will give him greater insight into his offending behaviour in a way that reduces the risk of further offending in the future.
57․Counsel for the offender pointed to other cases involving maintaining a sexual relationship with a young person contrary to s 56, which have involved starting points for sentences between four and a half and six years: R v KN (No 2) [2019] ACTSC 5 (starting point of five years and six months); R v Michalopoulos [2020] ACTSC 27 (starting point of six years); R v Jones [2019] ACTSC 124 (starting point of four years and six months).
58․Counsel for the prosecution pointed to the decisions in The Queen v Ashton (a pseudonym) [2022] ACTCA 45 and The Queen v Ware (a pseudonym) [2022] ACTCA 14. Ashton involved sexual abuse over an eight-year period involving approximately 76 instances of penile penetration of the victim, who was aged between six and 14 years old. The starting point was a sentence of 20 years’ imprisonment. Ware was a case of historical sexual abuse by a Christian pastor. It involved abuse over a four‑and-a-half-year period when the victim was aged between 11 and 15 years old. The sentence imposed had a starting point of six years’ imprisonment, but that needs to be understood in light of the fact that the relevant maximum penalty for the offending was 14 years’ imprisonment rather than 25 years.
59․Finally, there is the recent decision in DPP v Myers (a pseudonym) [2023] ACTSC 142 involving incest and other sexual abuse of a very young child by her father. The starting point on the charge of maintaining a sexual relationship with a young person was 13 and a half years.
60․The appropriate starting point in this case is a sentence of 10 years’ imprisonment, reduced to seven years and six months on account of the plea of guilty. Counsel for the offender submitted that “the favourable prospects of rehabilitation warranted a non‑parole period of approximately 50 percent of the head sentence”. I am not satisfied that the features of this case are such as to warrant a non-parole period at the lowest end of the usual range. I am, however, satisfied that the minimum period of incarceration required to be served to do justice in the circumstances of this particular case is a period of 50 months (four years and two months) which is approximately 55 percent of the head sentence.
Orders
61․The orders of the Court are as follows:
1.On the charge of maintaining a sexual relationship with a young person (CC 2022/10491) the offender is convicted and sentenced to imprisonment for seven years and six months commencing on 25 July 2023 and ending on 24 January 2031.
2.The non-parole period is four years and two months commencing on 25 July 2023 and ending on 24 September 2027.
| I certify that the preceding sixty-one [61] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 10 August 2023 |
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