Director of Public Prosecutions v S.M.S.W
[2013] VCC 1149
•15 July 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-12-00892
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| S.M.S.W. |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 February to 27 February 2013 (Trial); 25 June 2013 (Plea) | |
DATE OF SENTENCE: | 15 July 2013 | |
CASE MAY BE CITED AS: | DPP v S.M.S.W. | |
MEDIUM NEUTRAL CITATION: | [2013] VCC | 1149 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Sexual penetration of a child under 16; aggravating circumstance that child was under 10; Indecent act with a child under 16 - breach of trust
Legislation Cited: Sex Offender Registration Act 2004
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Hassan (Trial) Ms S. Klopper (Sentence) | Mr C. Hyland Solicitor for Public Prosecutions |
| For the Accused | Mr R.H. Lawrence | Doogue, O’Brien, George |
HER HONOUR:
1 S.M.S.W., you have been found guilty by a jury of three charges of indecent act with a child under the age of sixteen and one charge of sexual penetration of a child under the age of 16. The jury was unanimous that the victim in this matter was under the age of ten years at the time of the sexual penetration charge. This means that a jury of 12 people chosen randomly from our community were all satisfied beyond reasonable doubt that you committed the offences, and were all satisfied beyond reasonable doubt that at the time you committed the offence of sexual penetration of the child, she was under the age of ten years. The maximum penalty for the sexual penetration charge, with the aggravating feature that the child was under the age of ten years is 25 years' imprisonment and the maximum penalty for indecent act with a child under the age of 16 years is ten years' imprisonment.
2 I sentence you on the basis of the following facts which are consistent with the jury’s verdicts: On an occasion between 1 December 2009 and 1 February 2010 at a time when the complainant was in grade three, she and her family went to your house for Karen dance practice. She was watching TV in the front room after dinner and you came in and started to touch her vagina after placing your hand underneath her underpants. Evidence was given at the trial that the victim had a condition which meant that her labia minora protruded somewhat. You played with and pulled her labia minora, which gives rise to Charge 1.
3 On that same occasion you put one of your fingers inside her vagina, and this gives rise to Charge 2.
4 On a separate occasion during this same two month period when the victim and her family were visiting your house, she was playing in the front yard and you called to her. She and you then sat on the bed in the front room of your house and you again pulled at her labia minora. This is the basis for Charge 3.
5 On this same occasion, you then poked and pulled her labia minora again-as she described it in her evidence, you were poking it from: "The tall part."
6 This is the basis for Charge 4.
7 To respect her privacy, and for no other reason, I will refer to the victim as HJ or as the victim or complainant. HJ was born on 9 June 2000 and was nine years old at the time of the offences. It is an aggravating feature of the indecent act offences that the victim was so young. This factor of aggravation is built into the higher maximum penalty in relation to the sexual penetration charge. In relation to all of the offences which you committed it is a further aggravating feature that as a grandfather figure to the victim and trusted community elder, you grossly breached the child’s trust and her parents trust in you.
8 I also factor in that there is a vast age difference between you and the little girl against whom you offended, which goes to the seriousness of what you have done.
9 The impact or effect of your offending upon HJ and her family has been significant. The victim said in her Victim Impact Statement that when you committed the offences against her she felt sad and angry, and she also felt that her mother and father viewed her differently when she told them what you had done. She has suffered from sleeplessness and she said she was sometimes was frightened about having to go to court. She said that she feared that the Karen Community will shun her and her family. She said that she feels that now things are all right because court is over. The victim’s parents said that they were also sad because of what has happened to their daughter. The victim’s father said that the Karen Community had became their family when they came to Australia, but that they now stand alone. The victim's father spoke of the trust that he and his wife had in you and the close relationship that his family had with you. Your actions have effected his sense of trust as you were regarded as a grandfather to his children.
10 In sentencing you, I take into account the impact which you have had upon the victim and her family. The impact is made worse because it appears that at least a significant number of members of the Karen Community still supports you and has turned its back on the victim and her family. This is a very sad situation and only serves to make the complainant’s suffering worse. It is evident that you have the support of a significant number of people from the Karen Community who came to court to support you at the plea hearing. This is also evident from the 19 character references provided in support of you. I do hope that your supporters take very seriously the impact that your offending has had on the victim, and do not make the victim's suffering worse, or that of her family’s worse by treating them as if they are the ones who have done something wrong. They have not. It is you and only you who is to blame for this dreadful situation. In saying this, I accept that it is up to your supporters rather than you as to what they choose to do but it is an indirect consequence of you committing these offences.
11 In sentencing you, I take into account that you offended against the victim on two separate occasions within a short space of time, being over a period of two months. I also take into account that on each of the occasions, the offending was of a fairly short duration although it was certainly long enough as far as your young victim was concerned. I also take into account that Charges 1 and 2 were essentially parts of the same episode of conduct on the first occasion of offending and that Charges 3 and 4 were parts of the same episode of offending on the second occasion. Your offending against the victim was opportunistic in nature and not accompanied by some matters of aggravation that one often sees in this type of offending such as threats to the child in order to keep the child quiet, or predatory behaviour.
12 You have been in custody since the verdicts on 27 February 2013 and gaol has been a difficult experience for you, partly because of your suffering depression and anxiety, and partly because of your sense of isolation because of language and cultural barriers, which make it difficult for you to communicate with others or to engage in any programs. You are also very concerned for your wife in your absence. All of these matters will make time in gaol harder for you than for a prisoner without such difficulties and I make an allowance for this in sentencing you. I understand that you are on anti-depressant medication and have also been taking cholesterol medication. You have been on painkillers for hip and back pain. However, those problems, the hip and back pain, have resolved.
13 Whilst on remand, you have received weekly visits from your wife and have had frequent contact from friends and other members of your family. You have strong family and community support which will help you in your rehabilitation. On the other hand, you have no insight or remorse for your offending and it would appear that those who support you may not accept your guilt, just as you do not. Whilst support in such circumstances does give rise to some concern, on balance, your release into the community upon serving your sentence will be helped by such support, this is especially the case if in the meantime, you and your supporters come to terms with what you have done.
14 You have no prior convictions, which is to your credit, having now reached the age of sixty years. You have a subsequent matter which involved driving whilst in excess of 0.05 blood alcohol and leaving the scene of an accident. However, it is clear from the numerous character references from the community, from the support in court and from features of your background, that you are a man of otherwise good character.
15 I take into account your background. You were born in a remote village in Burma. Your parents were rice farmers and were fairly well off compared with other people in your community, although you grew up in rather humble conditions. You have three siblings. When you were only two years old, your mother passed away and you and your siblings were then brought up by your grandparents. You went to the local primary school but then had to leave your family and friends to attend high school as it was nine miles away. This proved difficult for you at first, although it appears that you warmed to your new environment over time. Despite the language difficulties, because of your pro-Karen tongue, you learnt Burmese during your time at high school. You were a talented soccer player, playing at state level.
16 You completed your secondary education then qualified as a teacher after two years of teacher training. You were the first member of your family to be tertiary educated. You commenced work as an assistant primary school teacher, teaching in different villages for about eight years. When you were 24 years old, you married your first wife and had three children with her. When you were about thirty years old, you embarked on further teacher training and qualified to teach at middle school level, this improved your financial situation. You also coached soccer in your local community at that time.
17 You became involved in a student uprising, challenging the government, which caused you to be forced to sign a declaration that you would stop becoming involved in political issues. You were closely monitored by the government after this. The Burmese government had tried to restrict the Karen culture and the pro-Karen language was prohibited. The persecution of the Karen people eventually led to you leaving your teaching job and returning to your home village, working for a Karen group which was involved in conflict with the government. You distributed pamphlets in support of your cause. It would appear that the government became aware of this and soldiers attended your village which led to you fleeing to Thailand on foot. I was told the on the occasion of the soldiers visiting your village when you were not there, but you learned that one of the people at the village was killed that day.
18 You took refuge in a monastery for six months before eventually going to a camp run by the United Nations in a town on the border between Burma and Thailand. You lived in fear of being returned to Burma while you were there. The refugee camp was a harsh environment and strictly controlled by Thai guards. Contact with people outside the camp was most difficult. While you were there, you volunteered as a teacher and also coached soccer teams. Three or four years after arriving in the camp, you received news that your family had moved to Rangoon and that your wife had remarried. However, you learned from one of your children much later on that this was not the case.
19 In 1998 or 1999 you met your present wife who had also been a teacher in Burma. She went to Thailand in 1994 and was one of the first refugees in the camp. You married her in 2000 and applied to come to Australia in 2005. You and she came here the following year, along with some other family members. You lived in Hoppers Crossing and it would appear that you noticed a marked difference between your homeland and where you lived here. From what I can gather, and understandably it was something of a culture shock for you. Since your arrival, both you and your wife have studied English and your wife has worked as a teacher here, teaching pro-Karen. You have now had contact with all of your children from your first marriage.
20 I accept that you have contributed significantly to the communities in which you have lived in Burma, in Thailand and in Australia. Since arriving in Australia, you have been heavily involved with the AKO “Australian Karen Organisation” and have assisted other Burmese refugees. You have spent much of your time, volunteering your assistance to the Karen Community here.
21 I take into account the report of Dr Gee, psychologist. I accept that you suffer from anxiety and depression and, as I have previously said, I have made allowance for this. I also take into account Dr Gee’s assessment of your risk of re-offending; however, I must make my own assessment in this regard. I know that notwithstanding you do not accept that you have committed the offences of which you have been found guilty, you have agreed to undertake any sex offender program offered to you while you are in gaol. However, taking part in such programs will prove difficult because of likely barriers, even if an interpreter is used, and also because of your refusal to acknowledge wrongdoing.
22 Having regard to your lack of prior convictions, your experience of gaol, Dr Gee’s findings in relation to risk of re-offending, your strong community and family support, but also factoring in your lack of insight or remorse and the one subsequent matter (albeit of limited relevance), I find that your prospects of rehabilitation are fairly good.
23 I also take into account that Charges 1 and 2 were very much linked together in a temporal sense, as were Charges 3 and 4. Therefore, although you fall to be sentenced as a serious sexual offender after I sentence you on Charge 2, which means there is a presumption of cumulation after that, I only propose to make orders for cumulation as between the two incidents. For the reasons set out in relation to your prospects of rehabilitation, I am of the view that some weight ought be placed on specific deterrence but I do not place undue weight upon this.
24 The Crown submitted that a sentencing range of between five to seven years' imprisonment with non-parole periods of between three to five years' imprisonment was appropriate in your case. I was referred to the sentencing snapshot and some authority in support of current sentencing practice. Your counsel also made submissions in relation to current sentencing practice and submitted that a sentence at the lower end of the Crown range would be appropriate in your case.
25 I have had regard to all of the submissions which have been made at the plea hearing, and I have arrived at a sentence which serves to give appropriate weight to all relevant sentencing matters. These include the fact that your offending is deserving of strong punishment and must be denounced, and I must send a strong message to others tempted to offend as you have, that such behaviour will be met with strong punishment so as to deter others from behaving as you have. I have also placed appropriate weight on other sentencing considerations to which I have referred.
26 Would you please stand up Mr Saw Wah.
Ancillary Orders
27 In relation to all charges you are convicted.
28 Firstly I make an order under the Sex Offenders Registration Act 2004, by reason of your convictions on these offences you are to be recorded as a registrable offender for life. You must report your personal details to the Chief Commissioner of police annually for the rest of your life. You must first do so, that is report your details, within seven days after your release from custody. Details in writing of these reporting conditions will be served upon you by my associate now. I will ask your barrister Mr Lawrence to help you to attend to the signing of an acknowledgement of that notice.
29 Secondly, I make an order that a forensic sample be taken by way of a scraping from the mouth. I make the order because of the seriousness of the offences, because the order is not opposed by you, and because it is in the public interest to make the order. I warn you that if you do not cooperate with the authorised officer when he or she conducts this procedure then the authorised officer may use reasonable force in order to take a sample.
30 In relation to Charge 1: I sentence you to 2 years imprisonment.
31 In relation to Charge 2: I sentence you to 5 years imprisonment. This is to be the base sentence. Hereafter you are to be sentenced as a serious sexual offender.
32 In relation to Charge 3 you are sentenced to 2 years imprisonment
33 In relation to Charge 4 you are sentenced to 2 years imprisonment
34 I direct that 6 months of the sentence on Charge 3 be served cumulatively with the base sentence but that otherwise all sentences are to be served concurrently with each other. This gives a total effective sentence of 5 years 6 months years imprisonment and I order that you serve 3 years 7 months before becoming eligible for parole.
35 I declare that you have already served 138 days by way of pre-sentence detention which has already been served as part of the sentence which I impose today.
36 Mr Interpreter have you interpreted all of that?
37 INTERPTER: Yes, yes, the last part, yes?
38 HER HONOUR: Yes, I declare that you have already served 138 days by way of pre-sentence detention which has already been served as part of this sentence.
39 Take a seat for a moment please.
40 Is there anything arising out of those remarks?
41 MS KLOPPER: No Your Honour.
42 MR LAWRENCE: No Your Honour.
43 HER HONOUR: Yes, thank you, you may now remove the prisoner, thank you. Thank you we will now adjourn.
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