Director of Public Prosecutions v Garcia (a pseudonym) (No 5)

[2025] ACTSC 190

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Garcia (a pseudonym) (No 5)

Citation: 

[2025] ACTSC 190

Hearing Date: 

8 May 2025

Decision Date: 

8 May 2025

Before:

Mossop J

Decision: 

See [50]

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – act of indecency against a child under 10 in the back of child’s family car whilst family present – act of indecency against child under 10 in child’s family home – act of indecency against another person in her bed while a guest in her home, whilst she appeared asleep, with her partner and a child present but sleeping – offences in the mid-range of seriousness – offender assessed as suitable for intensive correction order with reasonable prospects of rehabilitation – period of full-time imprisonment necessary to properly denounce and deter the conduct, and recognise the harm done to the victims

Legislation Cited: 

Crimes Act 1900 (ACT), ss 10, 60(1), 61(1)

Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 74

Parties: 

Director of Public Prosecutions

Donald Garcia (a pseudonym) ( Offender)

Representation: 

Counsel

S McLaughlin ( DPP)

J Moffett ( Offender)

Solicitors

Director of Public Prosecutions

Darryl Perkins Solicitors ( Offender)

File Numbers:

SCC 111 of 2023

SCC 345 of 2023

MOSSOP J:  

Introduction

1․The offender was found guilty at trial of two counts of committing an act of indecency on a person under the age of 10 contrary to s 61(1) of the Crimes Act 1900 (ACT). He subsequently pleaded guilty to a count of committing an act of indecency upon another person contrary to s 60(1) of the Crimes Act.

2․The maximum penalty for the offence of committing an act of indecency on a person under 10 is 12 years’ imprisonment. This maximum penalty reflects the legislative judgment as to the gravity of this offence and hence is significant. The maximum penalty for the offence of committing an act of indecency is seven years’ imprisonment.

3․The offender has been identified by a pseudonym in order to protect the identities of the victims of the offending: Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 74. In these reasons, the victims of the offending and other persons are identified in an anonymised way in order to protect their identities.

Facts

4․The offender was a long-time friend of Mr D. Mr D was in a relationship with Ms M. Mr D was the guardian and father figure of a child who was (as at January 2023) eight years old. In these reasons, I will refer to her simply as “the child”. Mr D, Ms M and the child lived at an address in Reid, ACT, along with three other children.

5․Mr D, Ms M and their children attended an Australia Day barbecue hosted by a friend at an address in Chisholm, ACT. Ms M was pregnant at the time. The offender was invited to attend as a friend of Mr D. The offender consumed both cannabis and alcohol throughout the day. During the evening, the offender made a few comments about sleeping in the bed with Mr D and Ms M, but was told by Ms M that she was not comfortable with that.

6․At around 10:00pm, Mr D and Ms M decided to leave, and they got into the car with their children and the offender. The offender and Mr D were slightly intoxicated. It had been prearranged that the offender would sleep at their house on the lounge as he had had a fight with his pregnant partner the night before and she had kicked him out.

7․There were three rows of seats in the car. About five minutes into the ride, the child swapped seats with Mr D so that she and the offender were sitting in the very back row of seats. The child was wearing a long dress that she had pulled down so that it was over her knees. As they got closer to home, the offender used his hand to move the child’s dress upwards, leaving it around halfway up her leg and exposing more of her bare thighs. The offender put his hand on her thigh and slowly moved his hand upward towards her hip. The offender then moved his hand up and down, rubbing the child’s bare thigh, and then slowly moved his hand up to touch her vulva. When it was on her vulva, he was not moving his hand. This made the child feel uncomfortable. There was music playing in the car. The child screamed and cried out to Mr D, who said that he was in the front seat and not going anywhere. Upon the child screaming and crying out, the offender stopped touching her. Shortly afterwards, they arrived home. The touching of the child on the genitals constitutes the first count of an act of indecency on a person under 10.

8․Back at the house, Ms M showered or bathed the children and got them ready for bed. After that, Mr D was lying on the couch and had gone to sleep. The child was on the couch in the lounge room next to Mr D. The offender came back from outside, where he had been having a smoke. He asked the child to move over and sat down next to her. Although the child initially had her knees pressed up against her chest, she moved and stretched them out. Shortly after, the offender began to touch her like he had done in the car. He put his hand on her bare thigh, moved it towards her inner thigh, left it there for a moment and then slowly moved his hand until he touched her vulva. This is the second count of committing an act of indecency on a person under 10.

9․As soon as that happened, the child got up and left the room. Later, she returned to the room and then went to bed.

10․The offender was to sleep on the couch in the lounge room. Mr D and Ms M had a room with a queen bed. One of their other children, who was three years old, was sharing the bed with them. When Ms M got into bed, she was wearing footy shorts, underwear and an oversized T-shirt. She was on the left-hand side of the bed, Mr D was on the right‑hand side, and the three-year-old was in between them.

11․Between 12:15am and 1:00am, Ms M heard another child cry out and heard the offender saying something to him. She then heard the offender come into the room around the side of the bed and do something with the phone charger. As he walked away from the power point, the offender grabbed Ms M’s buttock and started squeezing and moving it around. He then moved his hand down to between her legs and started rubbing circles on her genitals through her shorts. She kept her eyes closed as she wanted him to believe that she was asleep. After about a minute, she rolled away from the offender and closer to her partner on the other side of the bed. The offender walked out of the room.

12․Shortly after this, he re-entered the room and climbed onto the bed behind Ms M. He pushed his body as close to her as he could. He put his hand on her buttock and massaged it in slow movements. After about a minute, he moved his hand to the front of her pants, started touching the top of her genitals and tried to move his hand further down. While he was doing this, he was pushing himself and his penis against her.

13․After a few minutes, he started running his hand over her body. He grabbed the bottom of her breast and would hold it up and then drop it down. He continued to grope and massage her right breast. She used her left arm and hand to remove his hand from her breast whilst pretending to be asleep. She did this three times. However, after the first two times, he placed his hand back on her breast. After the third time, the offender moved his hand back to her pants and continued to grope her buttock and again moved his hand between her legs so as to rub her genitals.

14․Her initial response was a “frightened freeze”, but eventually she used her elbow and foot to push the offender away from the bed, saying quite loudly, “get off me you crazy cunt”. She then threw the blankets off, jumped over Mr D and the three-year-old, walked straight into the bathroom and locked the door. Once inside the bathroom, she sat on the floor and had a panic attack, crying and losing control. She remained in the bathroom for approximately an hour. At some point, the offender knocked on the door and said, “come out, I just want to talk”. She did not respond.

15․At about 2:00am, she returned to the bedroom and had a conversation with Mr D, who had woken up and asked what was wrong. Mr D then made a phone call to the police. The police, after arriving, escorted the offender from the premises.

16․The next day, the child made a complaint about having been touched by the offender. That complaint was subsequently reported to police.

Victim impact

17․A victim impact statement from the child indicated that the events made her feel mad, sad, worried and scared.

18․The victim impact statement from Ms M was read to the court. It records that her sleeping is affected as a result of nightmares about the crime. Her partner cannot roll her over and hug her because of her reaction arising from the offending. She has been diagnosed with severe post-traumatic stress disorder. She and her family have moved houses because she could not sleep or function in the house where the crime happened. She avoids having friends over to her house because it gives her anxiety. She finds herself second-guessing her friends.

19․So far as the evening in question was concerned, she had felt terrified, helpless, scared and worried. She had frozen with fear. She had feared that she would lose the baby with which she was then seven weeks pregnant. Fortunately, that was not the case. She describes having spent the time since then overwhelmed with so many emotions. She feels like a shell of the person that she was.

20․A victim impact statement prepared by Mr D was tendered. That records the sense of stress and anxiety caused by the offending against his partner and child. He describes being scared to hug his partner at night as a result of her “freaking out”. He describes being unable to work. He describes that his stress and anxiety levels “skyrocket” when people are at the house, and that leads him to not have friends or family over. He feels a sense of failure as a father and protector of his children and family. He does not let his children go to sleepovers because of memories of what occurred that evening. Recalling the events makes him emotional and infuriated.

21․These victim impact statements serve to illustrate the ongoing psychological impacts of sexual offending of this type. The effects are not momentary or transitory. They have the potential to be deep-seated and long lasting. They also illustrate that the victims of the offending extend beyond those immediately involved to those in the victim’s family, who have their sense of security and trust in others damaged by what has occurred.

Objective seriousness

22․The offending against the child involved touching her thigh and her vulva through her underwear. The first offence was opportunistic rather than premeditated. The second offence involved a minor degree of premeditation, in that the offender arranged to sit next to the victim immediately before the offending. Both offences were brief. As it stands, the offending is substantially unexplained, other than by the fact that the offender was prepared to act on his sexual interest in a young child. Both offences occurred at places where the victim was entitled to feel safe: in a car with family and in her family home. The offending involved a gross breach of the trust placed in the offender by Mr D and Ms M, who were allowing him to mix with their family in their family home as a result of extending hospitality to him. I assess these offences as being at the lower end of the mid-range of objective seriousness for this offence.

23․The offending against Ms M involved a number of different acts. Squeezing her buttock, rubbing her genitals through her shorts, climbing into bed, pushing his body as close as possible to her with his penis rubbing her bottom, massaging her bottom, and then touching and rubbing the top of her genitals for a few minutes, attempting to move his hand further onto her genitals, groping her breast, putting his hand back on her breast a number of times, grabbing her bottom and rubbing her genitals again. As Ms M was pretending to be asleep, and nothing was said or done that might indicate she consented to such conduct, he must have recognised there was a very high risk that she did not consent to the conduct, and hence, there was a very high degree of recklessness on his part. All of this occurred in the victim’s own home, in her own bed, with her child and partner present. These are at the core of places where the community recognises an entitlement of persons to feel safe from offending conduct. The offending is at the upper end of the mid-range of objective seriousness for this offence.

Subjective circumstances

24․The offender is almost 31 years old. At the time of the offending, he was 28 years old. He was born in Canberra and was his parents’ only child. When he was about 12, he decided to cease all contact with his father, and has had limited contact with him since. His mother remarried and he has a younger half‑sister. He has a close and supportive relationship with his mother and half‑sister.

25․He has three children from two separate relationships. He fathered his first child when he was 15 years old. He continues to have regular contact with this child and continues to maintain an amicable relationship with the child’s mother. That child is 14 years old, not necessarily an easy age for parents and an age where parental input is important.

26․He has had a relationship of six years with his current partner, and they have two children, aged four and two years. His partner is pregnant with their third child, which is due this month. He has resided with his aunt, grandmother and partner since February 2023. Prior to that, he and his partner lived with their two children in a shared property. It appears that it was his bail conditions which prevented him from living there, and he would like to return there upon his release to the community.

27․He completed Year 9 at school. His mother attempted to ensure that he attended subsequently, but he did not. Instead, he wagged school and spent his time at a mall or at a skate park. He has been employed consistently since ending school, and has been employed by the same company in a labouring position for the past two years. References which are described later in these reasons indicate that he has been working with the same people for between three and a half and four years, and is a hard‑working and respected employee.

28․From about 2020, his alcohol consumption became problematic; he was consuming a substantial quantity each night. His partner told the author of the pre-sentence report that he has always struggled with problematic alcohol consumption. This continued until his bail conditions required him to abstain from alcohol. Whilst on bail, he has engaged with Directions ACT and the Smart Recovery Program. He has used cannabis from the age of 15. He has abstained from alcohol or illicit substance use since February 2023, and been subject to urinalysis which has confirmed that. The compliance with those requirements and the abstinence from alcohol and illicit substances is plainly a positive sign.

29․He is in good physical and mental health. In 2023, after being charged with the present offences, he attended hospital in order to address what were described as “psychosocial pressures”. He told the author of the pre-sentence report that he is unable to recall the night of the offences due to his high level of intoxication. The statement as to his level of intoxication is not consistent with the agreed facts. In the absence of evidence that is more reliable than a potentially self-serving statement made to the author of the pre‑sentence report, I proceed on the basis of the agreed facts. Nevertheless, he is adamant that he did not commit the offences against the child. He expressed a willingness to undertake any program to address his risk of reoffending if sentenced to a community-based order.

30․He is assessed by the author of the pre-sentence report as being at a medium risk of general reoffending and at an average risk of sexual reoffending. His protective factors include stable accommodation and employment, prosocial family support, abstinence from alcohol and illicit substances whilst on bail, and his prosocial attitude towards possible supervision. He has previously complied with a community‑based order. The author of the pre‑sentence report noted that he and his partner remained adamant that he did not commit the offences against the child. As a result, the author expressed concern that he will struggle to take full responsibility for his offending behaviour.

31․He was assessed as suitable for a community service work condition, and suitable for an intensive correction order.

32․Seven references were tendered. Two of those were from work supervisors. Both report that he is a hard worker and a valued employee. They also make reference to his commitment to his family. They do not attempt to reconcile that commitment with the offending behaviour, or his previous offending behaviour.

33․There are also references from his father-in-law, the partner of his father-in-law, his mother-in-law, his sister-in-law, and his partner. Those references also emphasise that his family is a priority for him and that he is supportive of his partner. They make reference to his maturation over time and that the offending is out of character. They make reference to the difficulties that arise for his partner as a consequence of him being remanded in custody from 10 February 2025. The reference from his partner indicates that she is shortly to give birth to their third child. It does not specifically refer to his earlier offending, but does make reference to the fact that he previously completed a course for anger management.

34․While these references do indicate that the offending is out of character, they do not give any insight into his offending conduct and hence his prospects of rehabilitation.

Criminal history

35․The offender has a limited criminal history. In NSW, he has a conviction in 2015 for driving with an illicit drug in his system. In the ACT, he has convictions for common assault and destroying or damaging property, offences which involved family violence and occurred on the same day in 2020. The common assault was an assault on his current partner. As a result of his convictions on these offences, he successfully completed a program for people who perpetrate violence against women.

Plea of guilty

36․So far as the offending against Ms M was concerned, the plea was entered after the jury verdicts in relation to the offences against the child were returned. The plea was entered on the day the matter was listed for trial. The trial had an estimate of six days. In the circumstances, notwithstanding that it was a late plea, it had considerable utilitarian value and a 10 percent reduction in sentence on this count will be applied.

Time in custody

37․The offender’s bail was revoked following the verdict of guilty on the charges relating to the child. He has been in custody since 10 February 2025. The sentences to be imposed will be backdated to take this period into account.

Consideration

38․There remains no real explanation for the offender’s conduct directed to either the child or Ms M. Having said that, the prospects of rehabilitation seem to be reasonable, having regard to the offender’s limited criminal history, his involvement with his immediate and extended family, and his history of employment.

39․Each of the purposes of sentencing are relevant. Given the lack of explanation for his offending conduct, specific deterrence must remain an issue. Obviously, general deterrence is a significant issue as offending by men against children and offending by men against women are significant social issues which must be deterred. Similarly, the conduct must be denounced and the harm done to the immediate and extended range of victims must be recognised.

40․At the same time, the community’s long-term interests are served by the rehabilitation of the offender. Regard must also be had to the effect of any sentence upon his family, most obviously his wife, unborn child and young children who will inevitably be affected by any sentence imposed.

41․The Director provided a table of sentences for offences against ss 60(1) and 61(1). Those demonstrated a pattern of sentences involving full-time detention. None of the sentences involved a disposition by way of intensive correction order. Counsel for the offender did not point to any comparable case which involved such a disposition.

42․It was common ground that the s 10 threshold had been passed, and hence, a custodial sentence is appropriate. The difference between the parties was as to how any such sentence should be served.

43․In my view, the appropriate sentences are as follows. On each of the acts of indecency directed towards the child, I will impose a sentence of imprisonment of 12 months, the second being cumulative as to three months upon the first. The length of these sentences has necessarily been influenced by the very significant maximum penalty available for this offence.

44․In relation to the act of indecency upon Ms M, the starting point is a sentence of imprisonment of 20 months, reduced to 18 months on account of the plea of guilty. This sentence will be cumulative as to 10 months upon the previous sentence.

45․This gives an aggregate sentence of 25 months’ imprisonment. The next question is how those sentences should be served.

46․Counsel for the offender submitted that the purposes of sentencing may be achieved by the imposition of periods of imprisonment to be served by way of intensive correction, with a requirement for community service. He submitted that it was not a case in which the objective seriousness of the offending meant that an intensive correction order would not be appropriate. He submitted that real consideration ought to be given to that disposition, or alternatively, a partly‑suspended sentence of imprisonment. If neither of those were adopted, he submitted that a short non-parole period would be appropriate, having regard to the fact that this is the first time the offender will serve a period of imprisonment.

47․In assessing these submissions, regard needs to be had to the impact of a period of imprisonment upon the offender’s partner and children. This impact is likely to be significant, particularly for his partner, who will be dealing with a newborn and two other children without his support. There was limited evidence on this issue beyond what might be expected from the basic circumstances. There was some evidence of support for the offender’s partner from members of her extended family.

48․In the circumstances of this case, I consider that the disposition of the matter by way of an intensive correction order would not give sufficient weight to the need to deter such conduct, denounce the conduct, and recognise the harm done to the victims of the offending. Sexual offending directed to young children by adult males is appropriately a matter of concern in the community and must be denounced. Similarly, it must be deterred. So too with offending against adult females. I do not consider that, in the circumstances of this case, a disposition by way of an intensive correction order would be appropriate having regard to those considerations.

49․Having regard to the minimum period of full-time detention that I consider the offender should be required to serve, I do not consider that there is any advantage of proceeding by way of a partially‑suspended sentence, as distinct from a head sentence with a non‑parole period. I consider that a non-parole period at the lower end of the usual range is appropriate, having regard to the offender’s reasonable prospects of rehabilitation and the impact of incarceration upon his family. This will require a substantial period during which he is subject to supervision on parole. I will set a non-parole period at 13 months, which is 52 percent of the head sentence.

Orders

50․The orders of the Court are:

(1)On the charge of committing act of indecency on a person under 10 (CAN 1306/2023), the offender is convicted and sentenced to imprisonment for 12 months commencing on 10 February 2025 and ending on 9 February 2026.

(2)On the charge of committing an act of indecency on a person under 10 (CAN 1308/2023), the offender is convicted and sentenced to imprisonment for 12 months commencing on 10 May 2025 and ending on 9 May 2026.

(3)On the charge of committing an act of indecency without consent (CAN 1310/2023) the offender is convicted and sentenced to imprisonment for 18 months commencing on 10 September 2025 and ending on 9 March 2027.

(4)The non-parole period commences on 10 February 2025 and ends on 9 March 2026.

Note:The prosecution will provide a notice of discontinuance in relation to the balance of the charges.

I certify that the preceding fifty [50] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.

Associate:

Date:

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Amendments

20 August 2025  In the case title, replace “4” with “5”.