Director of Public Prosecutions v Gleeson

[2022] ACTSC 309

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Gleeson

Citation:

[2022] ACTSC 309

Hearing Date:

9 November 2022

DecisionDate:

9 November 2022

Before:

Elkaim J

Decision:

(a)  For the offence of sexual intercourse with a child between 10–16 years (CC2022/1536), the offender is sentenced to two years and six months’ imprisonment (reduced from two years, nine months and 14 days) from 17 February 2022 to 16 August 2024.

(b)  For the offence of sexual intercourse with a child between 10–16 years (CC2022/1539), the offender is sentenced to two years and six months’ imprisonment (reduced from two years, nine months and 14 days) from 15 August 2023 to 14 February 2026.

(c)   For the offence of sexual intercourse with a child between 10–16 years (CC2022/1540), the offender is sentenced to two years and six months’ imprisonment (reduced from two years, nine months and 14 days) from 13 February 2025 to 12 August 2027.

(d)  For the offence of using a child between 12–18 years to produce child exploitation material (CC2022/1543), the offender is sentenced to two years’ imprisonment (reduced from 27 months) from 12 February 2026 to 11 February 2028.

(e)  For the offence of contravening a family violence order (CC2022/3823), the offender is sentenced to six months’ imprisonment (reduced from six months and 21 days) from 10 October 2027 to 9 April 2028.

(f)    For the offence of using a carriage service to transmit indecent communication to a person under 16 years of age (CC2022/6797), the offender is sentenced to one year imprisonment, from 8 July 2027 to 7 July 2028.

(g)  For the offence of act of indecency in the presence of a person between 10–16 years (CC2022/6798), the offender is sentenced to 11 months’ imprisonment (reduced from 12 months) from 17 February 2022 to 16 January 2023.

(h)  The total period of imprisonment is six years, four months and 21 days imprisonment, from 17 February 2022 to 7 July 2028.

(i)    I set a non-parole period of three years, six months and seven days from 17 February 2022 to 23 August 2025.

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse without consent – use child to produce child exploitation material – contravene a family violence order – use carriage service to transmit indecent communications – act of indecency – where damage to the child has been and will be extensive

Legislation Cited:

Crimes Act 1900 (ACT) s 55, 61, 64

Criminal Code 1995 (Cth) ss 474.27A, 474.29AA

Crimes (Sentencing) Act 2005 (ACT) s 35

Family Violence Act 2016 (ACT) s 43

Parties:

ACT Director of Public Prosecutions

Kaine Michael Gleeson (Offender)

Representation:

Counsel

S Bargwanna (ACT Director of Public Prosecutions)

J Cooper (Offender)

Solicitors

ACT Director of Public Prosecutions

Aboriginal Legal Service (Offender)

File Number:

SCC 179 of 2022

SCC 180 of 2022

Elkaim J:

1․On 15 July 2022 the offender pleaded guilty to the following offences:

(a)Three counts of sexual intercourse with a child between 10 and 16 years contrary to s 55(2) of the Crimes Act 1900 (ACT) (Crimes Act). The offences occurred on 24 December 2020, 25 December 2020 and 26 January 2021 respectively. The maximum penalty is 14 years’ imprisonment.

(b)One count of use of a child between 12 and 18 years to produce child exploitation material contrary to s 64(3)(b) of the Crimes Act. The offending occurred between 24 December 2020 and 26 January 2021. The maximum penalty is 10 years’ imprisonment, a $160,000 fine or both.

(c)One count of contravening a family violence order contrary to s 43 of the Family Violence Act 2016 (ACT). The offending occurred between 25 January 2022 and 2 February 2022. The maximum penalty is 5 years’ imprisonment, an $80,000 fine or both.

(d)One count of use of a carriage service to transmit indecent communications to a person under 16 years of age contrary to s 474.27A of the Criminal Code 1995 (Cth) (Criminal Code). The maximum penalty is 10 years’ imprisonment.

(e)One count of an act of indecency in the presence of a person between 10 and 16 years of age contrary to s 61 of the Crimes Act. The maximum penalty is 10 years’ imprisonment.

2․The pleas were early but the case is strong. Most of it is recorded. Taking into account s 35(4) of the Crimes (Sentencing) Act 2005 (ACT), I think 10 per cent is the appropriate discount subject to a small degree of rounding off. This recognises the very early pleas and their substantial utilitarian value, but in particular the victim not having to give evidence.

3․The facts in detail are contained in the Agreed Statement of Facts (forming part of Exhibit A). The following is a summary.

4․The offender was 39 years of age. The victim was 14 years of age. The victim was under the guardianship of the Australian Capital Territory. She was living in Campbell in the ACT.

5․The Child and Youth Protection Services (CYPS) found out that the victim was in a relationship with the offender. In May 2021 the victim’s phone was examined by police. Images and videos of the victim and the offender engaging in sexual acts were revealed. This is the child exploitation material charge.

6․The first of the sexual intercourse charges arises from a video on the victim’s phone in which the victim is performing oral sex upon the offender and then about four minutes later the phone also shows the offender performing penile vaginal intercourse with the victim.

7․The second sexual intercourse charge occurs on 25 December 2020 when the victim performs oral sex upon the offender. Again, the incident is recorded.

8․The third sexual intercourse charge is also oral sex and occurs in the evening of 26 January 2021.

9․The child exploitation material charge arises from the recording of all the sexual activity between the offender and the victim.

10․The transmission charge is based on the text messages sent by the offender to the victim.

11․The breach of a family violence order charge arises from a protection order made on 13 July 2021 which prohibited contact between the offender and the victim. Nevertheless the offender contacted or received calls with the victim on about 56 occasions.

12․The offender has been in custody in relation to these offences for 266 days. The prison sentences will therefore commence on 17 February 2022. He has a criminal record which is mostly made up of driving associated offences but there is also contravention of a family violence order, damage to property, common assault and choking. He has spent a fair amount of time in prison.

13․There is a victim impact statement. The victim says:

I never really thought about this properly until now. Now it’s all happened I am really feeling it hard. I feel like I don’t really own my body anymore, I am never going to get that back.

I have issues with my current relationship, I don’t go out much and smoke weed now. I drink alcohol as a coping mechanism for my mental health, and I try not to think about it but I can’t stop thinking about.

It’s hard now because I feel like I can’t talk to anyone else about this and no one understands. I still have scars on my legs from cutting myself as to cope. I ruined my relationships with my family because of him and I hate him.

14․There is no pre-sentence report. Mr Cooper said such a report was not required. He said there was no dispute that the offender should remain in custody for some time. There is a report from a forensic psychiatrist, Dr Dayalan, dated 7 November 2022.

15․The report contains a psychiatric history describing the unfortunate circumstances in which the offender grew up in a home frequented by drug users. His father physically abused him and exposed him to drugs. The offender left home when he was 15 years of age and moved in with a friend. He has been diagnosed with depression and takes anti-depressant medication. He has had panic attacks and a degree of paranoia about other persons wishing to “get me”.

16․The offender started drinking alcohol at a young age and also took drugs. His submergence into these substances was probably strongly influenced by his father’s failings.

17․The subjective matters are all important and must be taken into account. But so too must the effect on a young girl who may have ostensibly consented to what was being inflicted upon her but it was a consent without substance. It is also a consent not recognised by the law.

18․The damage to the child has been and will be extensive. It is apparent from the information known about her that she already had significant personal problems. These have been substantially exacerbated by the criminal conduct.

19․The sentencing of the offender must be dominated by the acts of sexual intercourse. There must however be a degree of concurrency between these acts and the other offences to avoid an overly long and crushing sentence.

20․In respect of s 474.29AA of the Criminal Code, I find that the victim was a 14-year-old girl, perhaps with a maturity a little beyond her years, but nevertheless still a vulnerable child susceptible to the predatory behaviour of the offender.

21․The Crown submitted that all of the offences, other than the breach of the family violence order, were of about medium objective severity. The breach was of low objective severity.

22․I think the offences were a little below medium. This is not to diminish their severity but to recognise such matters as the transmission and text messages not going to third parties and to the even more horrific examples, such as containing violence, of sexual intercourse offences against children.

23․I think there are prospects of rehabilitation. Mr Cooper suggested that this should be recognised in the non-parole period. I agree, in particular recognising the overall length of the sentence which will be imposed.

24․I make the following orders:

(a)For the offence of sexual intercourse with a child between 10–16 years (CC2022/1536), the offender is sentenced to two years and six months’ imprisonment (reduced from two years, nine months and 14 days) from 17 February 2022 to 16 August 2024.

(b)For the offence of sexual intercourse with a child between 10–16 years (CC2022/1539), the offender is sentenced to two years and six months’ imprisonment (reduced from two years, nine months and 14 days) from 15 August 2023 to 14 February 2026.

(c)For the offence of sexual intercourse with a child between 10–16 years (CC2022/1540), the offender is sentenced to two years and six months’ imprisonment (reduced from two years, nine months and 14 days) from 13 February 2025 to 12 August 2027.

(d)For the offence of using a child between 12–18 years to produce child exploitation material (CC2022/1543), the offender is sentenced to two years’ imprisonment (reduced from 27 months) from 12 February 2026 to 11 February 2028.

(e)For the offence of contravening a family violence order (CC2022/3823), the offender is sentenced to six months’ imprisonment (reduced from six months and 21 days) from 10 October 2027 to 9 April 2028.

(f)For the offence of using a carriage service to transmit indecent communication to a person under 16 years of age (CC2022/6797), the offender is sentenced to one year imprisonment, from 8 July 2027 to 7 July 2028.

(g)For the offence of act of indecency in the presence of a person between 10–16 years (CC2022/6798), the offender is sentenced to 11 months’ imprisonment (reduced from 12 months) from 17 February 2022 to 16 January 2023.

(h)The total period of imprisonment is six years, four months and 21 days imprisonment, from 17 February 2022 to 7 July 2028.

(i)I set a non-parole period of three years, six months and seven days from 17 February 2022 to 23 August 2025.

I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.

Associate:

Date: