Director of Public Prosecutions v Small (No 2)
[2023] ACTSC 274
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Small (No 2) |
Citation: | [2023] ACTSC 274 |
Hearing Date: | 3 July 2023, 15 September 2023 |
Decision Date: | 28 September 2023 |
Before: | McWilliam J |
Decision: | (1) For the offence of persistent sexual abuse of a child or young person, contrary to s 56(1) of the Crimes Act 1900 (ACT) (SCCAN2022/198), Thomas Lewyn Small is convicted and sentenced to two years and 18 days’ imprisonment, reduced from two years and 6 months on account of his guilty plea, to commence on 28 September 2023 and conclude on 15 October 2025. (2) Pursuant to s 12(2) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), the sentence imposed is to be suspended from 27 March 2024 (being a period of 6 months from today), and ending on 15 October 2025, upon the offender entering into a good behaviour order for the remainder of the term of the sentence. (3) Under s 13(2) of the Sentencing Act, Thomas Lewyn Small is required to sign an undertaking to comply with the Good Behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) including the core conditions set out in s 86 of that Act and that he accept such supervision for the period deemed necessary by ACT Corrective Services, and the following additional conditions: (a) Pursuant to s 13(4)(c) of the Sentencing Act, a rehabilitation program condition targeting sex offending; (b) Pursuant to s 95 of the Sentencing Act, a probation condition. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – persistent sexual abuse of a young person – recognition of harm to the victims – application of Verdins principles – need for offender to participate in Sex Offender Treatment Program – where rehabilitation would best achieve community protection – Intensive Corrections Order not appropriate – term of imprisonment imposed |
Legislation Cited: | Crimes Act 1900 (ACT) s 56 Crimes (Sentencing Act) 2005 (ACT) ss 7, 10, 13, 33, 34A, 35, 37(2), 95, 96, 97 Crimes (Sentence Administration) Act 2005 (ACT) ss 85, 86 |
Cases Cited: | Blake v R [2021] NSWCCA 258 Corby v The Queen [2010] NSWCCA 146 Cranfield v The Queen [2018] ACTCA 3 DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 DPP (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 DPP v Rohrlach [2023] ACTSC 166 Laipato v The Queen [2020] ACTCA 35 Markarian v The Queen [2005] HCA 25; 228 CLR 357 McLeod v The Queen [2018] ACTCA 59 Monfries v The Queen [2014] ACTCA 46 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Ngata v The Queen [2020] ACTCA 18 R v Brown (No 3) [2022] ACTSC 180 R v EN [2019] ACTSC 354 R v Guode [2020] HCA 8; 267 CLR 141 R v Kellan [2021] ACTSC 314 R v Kilic [2016] HCA 48; 259 CLR 256 R v KNL [2005] NSWCCA 260 R v Miller [2019] ACTCA 25 R v Nelson [2016] NSWCCA 130 R v Nicholas; R v Palmer [2019] ACTCA 36 R v NT [2017] ACTSC 69 R v Page [2022] ACTCA 65 R v SAG [2004] QCA 286 R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 Shannon v The Queen [2006] NSWCCA 39 R v Summerfield [2018] ACTCA 20 R v Ware (a pseudonym) [2022] ACTCA 14 Verdins v The Queen [2007] VSCA 102; 16 VR 269 |
Parties: | Director of Public Prosecutions Thomas Lewyn Small ( Offender) |
Representation: | Counsel S Janackovic ( DPP) S Whybrow SC ( Offender) |
| Solicitors ACT Director of Public Prosecutions David Healey Solicitors ( Offender) | |
File Number: | SCC 181 of 2022 |
McWILLIAM J:
1․Thomas Lewyn Small has pleaded guilty to one offence of persistent sexual abuse of a child or young person, contrary to s 56(1) of the Crimes Act 1900 (ACT) (Crimes Act) (SCCAN 198/2022). In summary, the offender engaged in a sexual relationship with the victim when the offender was 21-23 years old and the complainant was 11-13 years old.
2․The legislature has prescribed a maximum penalty of 25 years’ imprisonment for the offence, however, the applicable maximum penalty in the present case is seven years because of the dates over which the sexual relationship in question occurred, being 2015-2017. For offences that commence after 24 December 1991 and end before 2 March 2018, a seven-year maximum penalty is prescribed: s 56, Table 56, Crimes Act.
Facts of the offending
3․The facts of the offending were agreed. They are summarised below.
4․The victim had been friends with the offender’s younger brother since 2008, playing and spending time together most days of the week. They lived in the same street, in the same suburb. The younger brother was described as her best friend at the time.
5․In 2012, the offender moved to live with his younger brother. The offender increasingly engaged with his younger brother and the victim by playing games and watching movies with them. This became normal to the victim.
6․In 2015, when the victim was 11-12 years of age, the offender began to exhibit an interest in her, acting in an increasingly sexualised manner towards her. He first kissed the victim on the lips. She had been watching a movie with the younger brother and the offender. When the younger brother went to the bathroom, the offender leaned towards the victim on the couch and kissed her on the lips. The offender said words to the effect of: “You liked it” or “You obviously wanted me to kiss you”. The victim felt uncomfortable and did not understand what happened.
7․Subsequently, the offender would regularly kiss the victim using his tongue. The offender would tell the complainant words to the effect: “That’s okay, you’re doing fine”. The victim felt uncomfortable about this.
8․On one occasion, the victim was at the younger brother’s house, again watching a movie with him and the offender in the loungeroom. The younger brother was seated on a couch. The victim and the offender were seated separately, behind the couch. The offender pulled his penis from his pants and began to touch it with his hands. The offender motioned towards the victim to suck his penis and mouthed words to that effect. The victim moved closer to the offender in order to comply with the offender’s request. The offender’s younger brother looked over to the couch. The victim asked the younger brother whether he had seen anything. He said that he had not. The victim felt overwhelmed and upset and ran home.
9․On another occasion, the victim was at the younger brother’s house. The younger brother and his mother were in the loungeroom watching television on the couch. The offender and the victim were in the kitchen which was connected to the loungeroom. The offender knelt next to the victim and touched her vagina and her bottom over her clothes whilst the victim was watching the television from the kitchen. The offender whispered words to the effect: “Oh, you’re so wet”.
10․On other occasions, the victim was at the younger brother’s house and the offender would touch her on her bottom, and compliment her on her bottom, such as by saying: “Oh, you have a nice arse”.
11․On one or two occasions, the victim was at the younger brother’s house at night. The younger brother was playing a game on the computer whilst the victim and the offender were seated behind him in separate chairs. The offender touched the victim’s genital area through her clothing, and placed and guided the victim’s hand over his penis through his clothing.
12․On another occasion, the victim was at the younger brother’s house where the two of them were again watching a movie with the offender. The offender, his younger brother and the victim were seated on the same couch, with the offender sitting in the middle. The offender grabbed a blanket and placed it over all three of them. The offender then touched the victim on her legs and on her vagina through her clothes. The offender then moved his hand under the victim’s clothing, moved the victim’s legs apart and penetrated her vagina with his finger/s. The offender made motions with his finger/s inside the victim’s vagina. The victim felt uncomfortable and put her hand on the offender’s hand in an attempt to stop him.
13․On a different occasion, the victim was at the younger brother’s house watching movies. The offender again placed his finger/s inside her vagina and made motions with his finger/s inside her vagina.
14․At some point, the offender and the victim exchanged phone numbers and were contacting each other over messaging applications. On 26 December 2016 (when the victim was 12), the offender sent the victim a message over the Snapchat application. It was an image bearing the heading ‘Pick a Number’. 46 questions were listed. They included questions such as: “Wildest thing you’ve ever done (sexual)”; “Are you natural, trimmed or bald”; “The wildest place you had sex”; what’s your [favourite] sex position”; “Do you think I’m fuckable”.
15․Sometime in 2017, the victim ceased contact with the offender and the younger brother and ceased visiting their house.
16․Between 2018-2020, the victim made a number of disclosures. She told another friend online and her ex-boyfriend about the sexual abuse.
17․In early February 2021, the victim ran into the offender’s younger brother, at Lake Tuggeranong College. Upon the younger brother’s invitation, the victim visited his house. During this visit, the victim saw the offender. The offender asked to speak with her. The offender apologised to the victim for “taking something away” from her.
18․On 25 February 2021, the victim’s online friend sent a text message to the offender on behalf of the victim, outlining the victim’s feelings about the effects on her of the offender’s sexual abuse.
19․Subsequently, the offender told his mother that he had previously “played around” sexually with the victim when the victim was 13 years old and when the offender was 23 years old. The offender said that the victim had initiated the sexual activity by “stroking” him and putting her hand down his pants. The offender further stated that it had been “sexual touchy feely stuff” which had happened once. The offender told his mother that he was sexually attracted to the victim and that he was gentle with her “every step of the way”.
20․The victim made a number of disclosures in April and May 2021, to a teacher, to her mother and to her sister.
21․On 19 May 2021, the victim disclosed the sexual abuse to the Police at the Tuggeranong Police Station and participated in an evidence-in-chief interview on 4 July 2021.
The Court’s sentencing task
22․Section 7 of the Crimes (Sentencing Act) 2005 (ACT) (Sentencing Act) informs the Court’s task in sentencing the offender. The Court’s objective is to sentence the offender according to the principle of individualised justice, determining what is “adequate punishment” by way of a sentence that is “just and appropriate”. I provided a more detailed discussion of that principle by reference to the authorities in DPP v Rohrlach [2023] ACTSC 166 at [18]-[23]. It is unnecessary to repeat the detail here. It is sufficient here to explain that sentencing involves balancing the different objectives in s 7 of the Sentencing Act in all the circumstances, giving consideration to the offender’s personal circumstances.
23․Of equal importance among the objectives (s 7(2) of the Sentencing Act) are the objectives of general and specific deterrence, protection of the community, promotion of the offender’s rehabilitation, making the offender accountable for his actions, denouncing the conduct of the offender and recognising the harm done to the victim of the crime and to the community.
Objective seriousness (s 33(1)(a) of the Sentencing Act)
24․The Court must consider the nature and circumstances of the offence. This is the objective seriousness of the conduct in question. The sentence imposed must be proportional to the objective seriousness of the offence: R v Miller [2019] ACTCA 25 (Miller) at [37].
25․The approach is well-established. It is described again below for the benefit of those involved in this particular proceeding, who may not be familiar with the various and often nuanced aspects of sentencing. The Court is required to consider where the facts of the particular offence committed by the offender lie in the “spectrum”, from the least serious instances of the offence to the most serious: R v Kilic [2016] HCA 48; 259 CLR 256 at [19].
26․The evaluation is described as the “objective” seriousness because the court disregards matters personal to the offender and determines the seriousness wholly by reference to the nature of the offending: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27].
27․The subjective features (being the aspects of the offending personal to the offender) and the after-effects of offending are considered separately, for example, as part of the context of factors listed in s 33 of the Sentencing Act: see McLeod v The Queen [2018] ACTCA 59 at [12].
28․The maximum penalty for an offence provides a yardstick against which to assess the objective seriousness of the offences before the Court: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31]. For the reasons set out in R v Ware (a pseudonym) [2022] ACTCA 14 at [90]-[93] (Ware), the approach to take is not to use the current 25 years maximum as the yardstick, with the maximum penalty of seven years’ imprisonment operating as a cap. Rather, the only relevant maximum is that prevailing at the time of the offending – the “yardstick” itself is deemed to be seven years.
29․Consideration should be given to the factors bearing on the objective seriousness of each offence, although it is not necessary to explicitly specify whether a particular offence falls into the low, mid or upper range of such offences: Miller at [22]. It has been said that when any offence is placed on a spectrum of seriousness that extends from low range through mid-range to high range, without more, the placement invites a simplistic approach to sentencing that may be generally unhelpful, such that it is preferable to articulate the factors that inform the character of an offence’s objective seriousness: Laipato v The Queen [2020] ACTCA 35 at [156].
30․The Prosecution’s submissions were of great assistance in collecting the factors relevant to the assessment of the objective seriousness of the offence and applying them to the conduct here. I have broadly accepted the submissions. They are as follows:
(a)The relationship between the offender and the victim: Ware at [96]-[97]. The offender was the adult brother of the victim’s childhood best friend.
(b)The length of the sexual relationship: Ware at [96]-[97]; R v Page [2022] ACTCA 65 (Page) at [58]. The period of sexual abuse took place over approximately 2.5 years, which is a substantial period of time.
(c)The age of the victim when the relationship commenced: R v SAG [2004] QCA 286 at [19]; R v Kellan (a pseudonym) [2021] ACTSC 314 at [25]. Here, the sexual abuse commenced when the victim was 11-12 years of age and continued up until when the victim was 13 years of age. It has been said that the younger the child, the more serious the offence: R v KNL [2005] NSWCCA 260 at [42]; Shannon v The Queen [2006] NSWCCA 39 at [28]. The younger the child, the more vulnerable the child is. However, it has also been recognised that for a victim who is approaching the upper age limit for these types of offences, the offending may actually be more damaging psychologically. In R v NT [2017] ACTSC 69 at [18], Penfold J stated:
I do not consider, however, that the victim being towards the upper age limit for these offences reduces the impact of the offences; such offences may in fact be more damaging to a child who is aware of the enormity of the offences and at risk of regarding herself as also culpable, than it would be to a much younger child.
(d)The age differential between the victim and the offender: Corby v The Queen [2010] NSWCCA 146 at [77]; Page at [59]. There was an age gap of 10 years between the offender and the victim. This was a significant age discrepancy, with the offender being at a very different life stage to the victim. The power imbalance between a person who is not yet even entering high school and someone who is well into their adulthood has been described as “extremely significant”: R v Nelson [2016] NSWCCA 130 at [63]-[64].
(e)The offender’s knowledge of the victim’s personal circumstances: s 33(1)(d) of the Sentencing Act. I accept that the offender would have been well aware of the victim’s age given that she was the best friend of his younger brother, who he knew was in primary school. The significance is that the offender was aware of the victim’s vulnerability by virtue of her primary school age.
(f)The frequency of the sexual activity: Ware at [96]-[97]; Page at [58]. There were seven to eight discrete incidents with ongoing kissing and touching of an intimate part of the victim’s body. The definition of the offence describes a “sexual relationship” as involving “more than 1 sexual act”. A "relationship" includes “repeated contact, interaction, engagement or association, of a sexual nature or otherwise”.
(g)The nature and circumstances of the sexual contact: Ware at [96]-[97]. The offending was opportunistic and took advantage of the victim’s presence at his home. As the prosecution submitted, the conduct was simultaneously brazen and sly, in that the offender engaged in sexual activity with the victim in a furtive manner but in the presence of either his younger brother or mother. The nature of the conduct was various, ranging from kissing to sexual intercourse by digital penetration on two occasions.
(h)The presence or otherwise of coercive conduct such as threats: Ware at [96]-[97]. No threats or coercive conduct are present here.
(i)The location of the offending: Ware at [96]-[97]. The offending was not in the victim’s home, but nevertheless it occurred at the private family home of her best friend and that is equally a place where the victim was entitled to feel safe.
(j)The purpose of the conduct: Ware at [96]-[97] (see also s 33(1)(v) of the Sentencing Act). It need hardly be said that the conduct here was engaged in for the purpose of sexual gratification.
(k)Whether the offender was affected by alcohol or a controlled drug when the offence was committed: s 33(1)(p) of the Sentencing Act. The agreed facts do not discuss this as relevant to the conduct. I have considered that aspect as part of the subjective matters below.
(l)The offender’s degree of responsibility and moral culpability for the commission of the offending: s 33(1)(i) of the Sentencing Act. The offender was solely responsible for the offending conduct. He initiated all sexual activity.
31․Two points should also be made for completeness. First, any lack of verbal or physical resistance by the victim is not relevant to the assessment, nor is it separately a mitigating feature: R v Summerfield [2018] ACTCA 20 at [54]-[59]. While it might be conduct relied upon to rebut an element of aggravation, no such suggestion was made by the Prosecution here.
32․Second, the above list is not an exhaustive list; not all factors that might aggravate or increase the sentence have been mentioned here. The Prosecution’s submissions also fairly raised a number of other factors that were not applicable to the present conduct under assessment. The importance of recording this is to prevent an incomplete picture of the overall spectrum of conduct falling within the particular offence being given. Only listing the features which are relevant or present for the conduct constituting the offence here, without mentioning the other features that do not apply, may give rise to a concern that the assessment of the seriousness of his conduct was skewed.
33․Equally though, it is cold comfort to a victim that the offending could have been much worse, and in this instance, I do not consider it serves any use to list other matters that might have resulted in a greater level of seriousness.
34․Accordingly, rather than recite every possibly relevant feature only to discard it, I will simply make it clear that in sentencing this offender, there are other factors which are not present in the conduct of this offending. The absence of further features does not take away from the fact that sexual abuse of children is an offence of the most serious kind. As discussed above, the character of the above conduct, the length of time over which it was committed, the nature of some of the acts constituting the offence, and the age difference between offender and victim all point to this offence being a very serious example of abuse.
Victim impact statements (ss 33(1)(f) of the Sentencing Act)
35․The victim attended court and explained in detail the impact of the offending on her. She presented to the Court a drawing that she had done, in an attempt to portray to the Court the haunting images in her mind that, “cannot be explained or shown through words”. She explained how she felt confused and too scared to talk. She feels trapped within her trauma. She describes feeling the loss of her friendship with the offender’s brother. She feels hatred inside her.
36․The victim also described a real sense of unfairness in being robbed of so many opportunities. The opportunity to experience intimacy at her own pace, when she was fully ready and able to properly understand what was happening. The opportunity to experience her teenage years with happiness and good memories instead of constant rage, anger, and sadness. She spoke of longing for a life without everyday suffering severe depression, anxiety and post-traumatic stress disorder (PTSD). She wants to know how it feels to be happy; happy about herself, happy about her life and the person she is now.
37․The victim’s mother also made a statement about the impact of the offending on her. She will never forget the day her daughter told her she had been sexually abused. She will never forget the helpless and hopeless emotions she felt as she was told that when her daughter was at her best friend’s house, in what she thought was a safe environment, in fact her daughter was at a place of “betrayal of trust”, a place where her daughter endured “lies and abuse”.
38․In a series of points, the victim’s mother detailed the many ways in which the offence has hurt or harmed her, including her inability to take away her daughter’s pain from the abuse, and knowing that her daughter constantly feels alone and isolated, that she constantly experiences PTSD, anxiety and depression. The last of those points is:
It hurts as a mother to feel I didn’t do enough to protect my own daughter.
39․Without listing the full detail of the hurt and impact upon the victim’s mother, what emerges from those statements is that every bit of the victim’s suffering is also being experienced and lived by the victim’s mother as she observes and supports her daughter.
40․The victim’s mother described the transformation of her daughter from one who was confident, bright and cheerful to a teenager who was severely depressed, fearful, withdrawn and traumatised. She described the emotional and physical exhaustion of taking her daughter to doctors’ appointments, therapists, police, and the Director of Public Prosecutions. The victim’s mother suppresses her own emotions and feelings to support her daughter first. Understandably, she feels overwhelmed.
Subjective circumstances of the offender (s 33(1)(m) of the Sentencing Act)
41․In assessing the subjective circumstances of the offender, the Court had before it a Pre-Sentence Report (PSR) dated 26 June 2023 and an updated PSR dated 4 September 2023. An updated PSR was required because the offender was only recently diagnosed with autism.
Family Background
42․The offender is 29 years old and has three brothers. The offender’s parents divorced when he was three years old. His parents each resided in separate houses in Canberra. He spent time between those residences during his childhood. The offender reported that the relationship between his parents was marred by verbal arguments.
43․Between the age of three to 14, the offender was in the care of his mother. At the age of eight years old, the offender and his mother moved him and his siblings to Victoria. According to the offender, this life change was difficult for him to manage.
44․The offender further reported that overall, his upbringing was difficult and he felt ignored and neglected by his parents, stating that he “played up” at school to get their attention.
45․The offender reported that from a time when he was 10 years old, his elder brother was very violent and aggressive towards him. The offender stated that his older brother gave him black eyes, cut lips and body bruising. He reported that he lived in fear of that brother up until the age of 16 years old.
46․When the offender was approximately 14 years old, he was removed from his mother’s care after concerns about his mother’s mental health and her ability to take care of the offender. The offender was placed in the care of his father, where he remained until the age of 19.
47․His relationship with his elder brother changed as the offender entered his teenage years. The relationship became less violent, but was instead fuelled by illicit substances, which he consumed with his brother. Now that his elder brother is attempting sobriety from illicit substances, he hopes to develop a more pro-social relationship with him in the future.
48․The offender has had limited contact with his younger brother and mother since being charged. However, he has a close and positive relationship with his eldest brother who lives in Europe, and with his father, with whom he currently resides. His father has written a letter of support to the Court. It provides additional information to the picture of the individual being sentenced. His father is aware of his son’s recent diagnosis of autism and says that it explains much of what he observed as his son was growing up. He confirmed that the offender experienced difficulty throughout his childhood and into adulthood. He observed his son go through loneliness at school, with a lack of friends and difficulties in social environments.
Employment prospects
49․Despite having some difficulties during his schooling years, the offender does enjoy prospects of employment, having completed year 10 in the ACT and attaining his Year 12 certificate in New South Wales.
50․He has been employed periodically by a transport company for approximately 10 years. Having attained the required category of driver’s licence, he is now employed as a driver on a more consistent basis. He states that he has a positive experience at work and is confident in his ability to perform the job to a satisfactory standard. He plans to attain employment in “big rig trucking” in the future.
Financial Situation
51․The offender receives income from his employment and reported to the Court that he has no outstanding debts and can manage his finances appropriately.
Alcohol and/or Drug Use
52․The offender has a history of substance abuse since he was a child. There was evidence before the Court that he first tried alcohol when he was 12 years old. From 12 years to 16 years old, he would consume alcohol to intoxication most weekends. During each session, he would consume up to 20 standard drinks. From the age of 16 years, he would often consume alcohol by himself and sometimes consume it first thing in the morning. When he began employment from 19 years old, he would consume alcohol after work by himself, often to the point where he would vomit.
53․The offender also reported that he first tried cannabis when he was 12 years old, and tried speed and ecstasy when he was 14 years old. His use of these substances increased in his teenage years. The offender reported that he would miss school to get high. At the age of 18 years old, he tried cocaine and MDMA and between the age of 18 and 23, the offender reported using cannabis, speed, ecstasy and cocaine on a near daily basis.
54․The offender reports that he ceased use of alcohol and illicit substances at the age of 23 after what he describes as a near death experience in which he went momentarily blind. The offender reported that this was a turning point in his life and reported that he abstained from alcohol and illicit substances for approximately two years following this experience.
55․The offender however has reported that he has increased his alcohol intake over the last 12 months, admitting that his alcohol intake depends on employment requirements. The offender states that his intake increases with his stress levels. In addition, the offender has reported that he has smoked cannabis once in the last 12 months. Most recently, the offender tested for illicit substances in June 2023 and returned a negative result.
Medical, Emotional and Mental Health
56․The offender reported that he had thoughts of self-harm at the age of 10 years old which he attributes to the emotional and physical abuse imposed by his older brother.
57․The offender reported that at approximately 12 years of age, a female family friend broke his trust and assaulted him which led to thoughts of suicide shortly thereafter.
58․At the age of 13 and 14 years old, the offender lost his two friends to motor vehicle accidents, and at the age of 20 and 22 years old, the offender lost another two friends to suicide. The offender reported that these deaths were sudden, unexpected and further isolated him, causing his mental health to decline.
59․The offender reported (as at 19 June 2023) that he has continuous and relentless thoughts of worry, and constant thoughts of self-harm and suicide.
60․Between 31 July 2021 and 6 August 2021, the offender was an inpatient at Canberra Health Services due to suicidal ideations in the context of psychosocial stressors. He is not currently engaged with this service.
61․Before the Court, there were medical reports from two experts, the first being Dr Greg Aldridge, clinical psychologist, and two reports from Dr Joey Q Le, forensic psychiatrist. The latter diagnosed the offender as meeting the criteria for Autism Spectrum Disorder, which on the history provided to the doctor, has been present since childhood and caused clinically significant functional impairment.
62․The updated presentence report took into account the recent diagnosis and built on that through a STATIC-99R actuarial risk assessment conducted by an internal psychologist. The offender was assessed as an above average risk for sexual reoffending. It was recommended that given the recent diagnosis, further assessments may be required and appropriate referrals made for relevant interventions following sentence.
63․The diagnosis of the offender and his current state of mental health is important here. The relevant principles are set out in Ngata v The Queen [2020] ACTCA 18 at [18]-[20]. A finding of a mental impairment, such as that which exists in the present case, may be relevant in a number of ways. They were set out as a non-exhaustive list of principles in Verdins v The Queen [2007] VSCA 102; 16 VR 269 at [32], with that summary later cited with approval in R v Guode [2020] HCA 8; 267 CLR 141 at [8].
64․Applying without repeating those principles, I am not persuaded that the moral culpability of the offending conduct is reduced. But I do consider that the offender’s condition has a bearing on the kind of sentence to be imposed and the conditions in which it should be served. I accept that the offender will be able to receive appropriate assessments and treatment while in full-time custody, although the fact and nature of full-time custody will weigh more heavily on the offender than it may perhaps weigh on a person in normal health.
65․Further, this is a case where taking an offender’s mental impairment into account may result in objectives that pull in opposite directions: DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177]. The offender may not be an appropriate vehicle for general deterrence. However, because of his impairment, the offender may present a more significant danger to the community, and the consideration of specific deterrence may require more weight.
66․The evaluation of the extent of significance of the above considerations is discretionary: Blake v R [2021] NSWCCA 258 at [42].
Attitude to the Offence / Remorse (s 33(1)(w) of the Sentencing Act)
67․The offender has written a letter to the Court, explaining that he is riddled with shame and utmost remorse for his actions, which he knows have caused pain and hardship to the victim. He says it is, and forever will be, his single deepest regret. He acknowledges that he betrayed the victim. He wishes he could rewrite his actions. He says he made a juvenile decision and that he knows words cannot capture the gravity of inconveniences he has caused people along the way. He hopes that time will help his victims “heal and move forward in life.”
68․There were some conflicting statements in the pre-sentence reports dealing with remorse, which have led to the author having concerns about insight and remorse. However, the offender’s statements should also be read in the light of his recent autism diagnosis. I consider that the offender’s remorse is genuine, but that his understanding and insight are more likely than not affected by the other psychological factors detailed above.
69․The fact that the offender has not required the victim to go through the ordeal of giving evidence in a contested trial is a separate matter that can be taken into account in respect of remorse: Cranfield v The Queen [2018] ACTCA 3 (Cranfield) at [34] and [36] (and the authorities there-cited).
Plea of guilty (s 33(1)(j) of the Sentencing Act)
70․The offender has pleaded guilty to the offence. The Court may impose a lesser period than it would otherwise have imposed if the offender had not pleaded guilty to the offence: s 35(3) of the Sentencing Act. If it does so, the penalty that would otherwise have been imposed but for the guilty plea must be explicitly stated: s 37(2)(a) of the Sentencing Act.
71․The applicable discount for a guilty plea is a matter of discretion: Cranfield at [37]-[38]. It is necessary to consider the particular circumstances in which the plea was entered, including the statutory matters set out in s 35(2) of the Sentencing Act. Some of those matters are addressed separately earlier in these reasons, such as the seriousness of the offence and the effect of the offence on the victim.
72․As discussed in cases such as Monfries v The Queen [2014] ACTCA 46 at [47] and R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [49], utilitarian value is a primary consideration, as seen through:
(a)section 35(2)(b) of the Sentencing Act, which requires the Court to take into account when the offender pleaded guilty, or indicated an intention to plead guilty; and
(b)section 35(5), which provides that the earlier in the proceeding that the guilty plea is made, or indication is given that it will be made, the lesser the penalty the court may impose.
73․In R v Nicholas; R v Palmer [2019] ACTCA 36 at [49]-[53], the Court of Appeal considered the applicable discounts for guilty pleas entered in various circumstances, as follows (emphasis added):
49․In Williams v The Queen [2018] ACTCA at [47], this Court emphasised that, for public policy reasons, it is important that persons considering an early plea of guilty be justifiably confident that their plea will attract a substantial discount on sentence and also understand that, if they delay in entering the plea, the level of discount is likely to be significantly lower.
50․In Cranfield, the offender had pleaded guilty a week before the trial was due to commence. The Court increased the sentence discount from five to 10 per cent. In R v Toumo’ua [2017] ACTCA 9;12 ACTLR 103 (Toumo’ua), the offender had pleaded guilty after committal to the Supreme Court but before a trial date had been set. The Court of Appeal reduced the sentence discount from 25 to 17 per cent. In Zhao v The Queen [2018] ACTCA 38 (Zhao), the offender had pleaded guilty 12 days before the commencement of the trial as a result of successful negotiations regarding a rolled-up count. The Court confirmed the sentence discount of 10 per cent.
51․Among others, these decisions illustrate that, in circumstances such as the present, an accused person should confidently expect to receive a discount of 10 per cent—or, perhaps, slightly more if their plea was not entered “on the steps of the Court”. They should expect that, in the case of such a late plea, a larger s 35 discount will only be given where there are unusual circumstances, such as a very weak Crown case or an earlier offer by the accused to plead to the charges, which the Crown accepted at the last minute.
52․Ordinarily, a discount of 15 to 20 per cent is allowed for a plea entered before or in connection with criminal case conferencing and prior to the setting of the trial date. Absent unusual circumstances, 20 per cent would be the upper limit in relation to a plea of guilty entered at that stage. In Blundell v The Queen [2019] ACTCA 34 at [13] (Blundell), this Court said:
It is also vital that persons coming to a criminal case conference do so with confidence that pleas of guilty will attract more than a minimum discount. This confidence should also extend to the community at large, knowing that persons will be treated consistently, in turn enhancing the proper administration of justice.
53․The converse is also true. It is vital that accused persons who choose to wait to the last minute to enter a plea of guilty appreciate that, absent unusual circumstances, they will not receive a discount that is as high as the discount that they would have received had they pleaded guilty at the criminal case conferencing stage, which usually occurs soon after a matter has been committed to the Supreme Court for trial.
74․While the discretion under s 35 of the Sentencing Act remains unfettered, a principled approach to its exercise enhances consistency and a degree of predictability, which in turn furthers the interests and administration of justice through the ability of legal practitioners to reliably advise their clients and the confidence of the community arising from consistency, as discussed in the passage emphasised in the extract above.
75․In the present case, the plea followed negotiations with the Prosecution. Although preparations for trial were occurring, there was utilitarian value in the plea, and I consider approximately 18% to be an appropriate discount and this will be reflected in the orders below.
Criminal history (s 33(1)(m) of the Sentencing Act)
76․The offender has minimal criminal antecedents in the Territory, limited to one occasion of driving related offences in 2015.
77․However, there was one further relevant offence in NSW in 2018, the details of which are unnecessary to repeat, other than to explain that it involved the offender conducting himself in front of a teenage girl in a manner that suggests he would benefit from a targeted rehabilitation program dealing with sex offences.
78․In discussing this incident with the offender, the author of the updated PSR described the offender as having a lack of insight into his behaviour, including his view about the offence in NSW. The author was of the view that this was of ongoing concern, although the autism diagnosis may provide some explanation for the offender’s lack of insight or understanding, and I accept that link between the two.
Current sentencing practice (ss 33(1)(za), 34A(a) of the Sentencing Act)
79․The Court was again assisted in relation to this aspect of the sentencing task by the diligent submissions of the Prosecution. Before discussing the cases, it is important to record that caution has been exercised because none of the cases in the ACT were in the context of a maximum penalty of seven years’ imprisonment. Applicable maximum penalties of 25 years’ imprisonment and 14 years’ imprisonment reflect the changes in community attitude: DPP (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [47]-[57]. The difficulty is that while appropriate denunciation must accord with the present expectations of the community, the sentence imposed must also recognise the historical yardstick that applies in this case. In short, it is a tricky balance and underscores why the High Court has emphasised that the Court approaches the examination of current sentencing practice with a view to achieving consistency of principle, not numerical equivalence, for similar sentences imposed in the same jurisdiction: Hili v The Queen [2010] HCA 45; 242 CLR 520 at 535.
80․Again, it is neither useful nor necessary to repeat the analysis conducted by the Prosecution in respect of every case referred to in Annexure A to the written submissions. I have considered each of the cases and the features of the conduct and the offender, helpfully analysed in the submissions. A number of sentences imposed applied the present regime with a maximum penalty of 25 years’ imprisonment, graver conduct in terms of objective seriousness and extensive criminal history on occasion. Of the cases listed by the Prosecution, there are three sentences that I consider to be more informative or relevant in ensuring consistency of sentencing practice, either because they had more comparable maximum penalties or more comparable conduct (including age disparity, features of offending and subjective features).
81․First, in R v EN [2019] ACTSC 354 (EN), Elkaim J sentenced an offender who was a tutor at a boarding school and offended against boarders aged between 14 and 17 years. For the three separate offences under s 56 of the Crimes Act, his Honour imposed sentences of two years, reduced from 39 months (20% discount) on account of a guilty plea, and two terms of 19 months’ imprisonment, reduced from two years’ imprisonment, on account of guilty pleas. The maximum penalty applying for each of those sentences was five years. Elkaim J noted at [12] that the lower maximum penalty had a substantial effect on the sentences, and that had the 25-year maximum applied, the individual sentences would have been significantly higher. Although the maximum penalty was lower in EN than that applying here, the facts of the offending in respect of each of the sentences imposed had higher degrees of objective seriousness than the conduct for which the offender is being sentenced here.
82․Second, in Ware, the offender was 45-50 years old and offended for a period of four years against his biological son who was 11-15 years old at the time. The maximum penalty for the offence at the time it was committed was 14 years’ imprisonment. Following a successful appeal by the Prosecution on the basis of manifest inadequacy, the offender was sentenced to four years and 10 months’ imprisonment, reduced from six years (20% discount) on account of the guilty plea.
83․Third, in R v Brown (No 3) [2022] ACTSC 180, the offender was 47 years old and offended against a 15-year-old victim over a period of six weeks. The offender was family friends with the victim’s parents. There were four discrete occasions of sexual activity. The maximum penalty in that case was 25 years. The offender was sentenced to four years, six months and 14 days’ imprisonment, reduced from four years on account of the guilty plea (15% discount) and on account of the application of Verdins principles.
Disposition
84․The Prosecution and the offender agreed that the nature of the offending was such that a term of imprisonment, being a sentence of last resort, was the only appropriate punishment. I agree with that assessment and find that, having considered other possible alternatives, the threshold set out in s 10(2) of the Sentencing Act has been met.
85․It is well appreciated that victims of sexual abuse offences and indeed, the broader community, may want to see the offender serve a sentence of full-time custody for as long as the legislation permits. I am particularly mindful of the harm suffered by the victim and her mother here, and it is perhaps of assistance to explain two things.
86․First, as was the case in EN, the maximum penalty of seven years similarly has a substantial impact on the length of a term of imprisonment. As can be seen from the reasoning above, the features of the conduct are a serious example of sexual abuse, but they do not put the offending at the medium to high range of objective seriousness. Even though the Court has a discretion as to the length of any term of imprisonment, it would be disproportionate to the level of objective seriousness and therefore quite wrong, to impose a sentence of greater than three and a half years, when the maximum applicable is 7 years. The historical “yardstick” brings down the length of any term of imprisonment considerably.
87․Equally though, while the conduct is not at the most serious end, nor was it at the least serious end and it has had very severe impacts on the victim, who was young and vulnerable. Those impacts are ongoing.
88․Second, as I said at the outset of these reasons, part of the sentencing objectives involves the Court not only focussing on punishing the offender by incarceration where appropriate, but the longer-term objectives beyond incarceration, including those of protection and prevention through rehabilitation.
89․That brings attention to the manner of the sentence to be imposed. There were a range of sentencing options canvassed during the hearing. Senior Counsel for the offender initially agitated for an intensive corrections order (ICO). The offender was found suitable for such an order by Community Corrections, with a recommendation (among other things) that the offender must engage in a Sex Offender Treatment Program (SOTP) if assessed as suitable.
90․However, I took note of the offender’s submissions during the resumed hearing, as a result of which I consider that an ICO carries more risk for the offender in the event of breach. The Crimes (Sentence Administration) Act 2005 (ACT) is much more prescriptive in terms of consequences, which is an issue where the offender has complex mental health and disability issues. I also do not consider it would appropriately denounce the conduct for which the offender is to be sentenced.
91․I considered whether a full-time custodial sentence of imprisonment was the more appropriate sentence, with the imposition of a shorter non-parole period, to permit supervision and the targeted intervention through participation in a sexual offender’s program.
92․However, I was not persuaded this was the appropriate form of sentence for two reasons. First, for the reasons given above, the offender’s recent diagnosis and current mental health issues mean that a sentence of full-time custodial imprisonment will weigh more heavily upon him. While I accept the Prosecution’s submission as to the ability of offenders to access appropriate medical treatment and ongoing counselling while in full time custody, nevertheless his condition makes him more vulnerable. The deprivation of liberty and the custodial environment would carry an additional hardship for this offender because of that degree of vulnerability. In addition, but separate to that finding, that sense of hardship and vulnerability will be enhanced by the lack of the offender having any previous significant interaction with the criminal justice system.
93․Second, and more decisively, given the evidence before the Court, I consider it to be of the utmost importance that the offender undertakes an appropriate sexual offender’s program. Specific deterrence and protection of the community align here – the rehabilitation of an offender in managing the underlying cause of this kind of offending and eliminating such conduct will best be achieved by the offender working through and understanding the reasons for the offending.
94․There was some uncertainty about whether the offender was able to access and complete the SOTP during any non-parole period, which may delay a grant of parole if the Sentence Administration Board formed the view that a condition of the grant be completion of the course. As the offender’s counsel submitted, if there was a delay in entering the program, through no fault of his own, the offender may be put in a position of spending more time in custody than the minimum period deemed necessary.
95․Where the Court has found that the Verdins principles apply and that a full-time custodial environment would weigh more heavily on an offender, it would be inconsistent to set a shorter non-parole period to account for this particular offender’s mental and psychological needs while at the same time being aware that practically, it was likely the offender would remain in custody beyond that point through matters outside his control.
96․That makes a combination sentence a potentially more appropriate option (see Part 3.6 of the Sentencing Act). In this instance, what is being contemplated is a period in custody and a period when the custodial requirement is suspended on an undertaking to comply with specified conditions, which may include (among other things) the requirement to undertake courses under supervision.
97․When the Court is contemplating imposing a rehabilitation condition as part of any sentence, s 96 of the Sentencing Act requires the Court to be satisfied that:
(a)there is a rehabilitation program of a particular kind which is suitable for the offender;
(b)that it is appropriate that the offender undertake a rehabilitation program of that kind; and
(c)that a place for the offender in a program of that kind is available or will become available within a reasonable time.
98․Section 97 of the Sentencing Act also requires that there be relevant sentencing information before the court about the nature of the program and its suitability for the offender that justifies including the condition in the good behaviour order.
99․The Prosecution has subsequently provided information obtained from a Community Corrections Officer (Ms Talia Backhouse, the author of the PSR) regarding the availability, length and content of the SOTP. The information has been of great assistance in crafting the appropriate sentence for this offender and the Court appreciates the time taken by both the officer involved and the Prosecution in providing the additional detail.
100․An SOTP can take six to nine months to complete. In addition, in order to be eligible for the program, there is a Sex Offender Prep group which takes approximately six weeks and that enables the appropriate assessment of the offender’s suitability to attend the SOTP. The program is tailored to a particular level (medium / high) depending on the identified needs.
101․Such programs are available to offenders serving sentences of full time imprisonment as well as offenders serving sentences in the community, although only the medium level program is run in the community. Assuming there are sufficient participants to run the course, the next potential program is tentatively planned for mid-January 2024 in custody, and February 2024 in the community although that commencement date may be delayed depending on participants.
102․On the information before the Court, due to the nature of the programme, it is unlikely that an offender who commences the SOTP in full time imprisonment and is then released from custody before completing the program would be able to continue and complete the same program in the community. Again, on the information provided, the offender is unlikely to even start the program until 2024.
103․That timing becomes a factor in terms of the length of the sentence to be imposed and any non-parole period that would be set. The offender’s submission that he may end up spending the majority of his sentence in custody – well after any shorter non-parole period had expired – appears to be well founded. With the benefit of this information and following a process of discussion and elimination with the legal representatives, I have concluded that a combination sentence is the appropriate form of sentence for this offender.
104․One of the advantages of a combination sentence is that it provides a level of punishment and denunciation that captures the objective seriousness of the offence and recognises the harm done to a vulnerable young victim, while giving the Court the ability to tailor a sentence to promote the offender’s rehabilitation to a greater extent, by imposing conditions on the suspension of the remainder of the sentence.
105․In that regard, rehabilitation may take longer for this particular offender, in the sense that a person with autism may require more time and greater supports to ensure that he does not offend again. In completing the program in the community, the offender will benefit from the support of his father (in addition to the supervision of corrective services) and have more choice in the means of addressing and managing his condition and mental health.
106․If the more flexible and supportive environment is the carrot, then the stick is that the offender’s participation occurs under the spectre of further full-time imprisonment if the course is not completed, and the offender remains ultimately answerable to the Court for the entire period of the suspended sentence.
107․Making the completion of the program a condition of the sentence, but not a condition of any grant of parole, will enable the offender to undertake the program in a way that I consider best sets him up to succeed.
108․The above explanation has been given in part to explain why in the exercise of the sentencing discretion, a combination sentence is the more appropriate form, but also to emphasise that the length of any initial full-time custodial component is not to be taken as a proportionate reflection of the harm and ongoing mental anguish suffered by the victims. The length of the head sentence is the primary expression of the Court’s denunciation here, and that term of imprisonment would have been the same regardless of which form the service of the sentence took. There remain deterrent and punitive effects in the length of time to be served before the sentence is suspended so as to achieve the minimum severity appropriate here (Hili at 533), but other objectives discussed have taken on more significance and inform what is “appropriate”.
109․As recommended by the PSR author, the offender should be supervised while serving the good behaviour order, with such supervision to include strategies to address the identified areas of dynamic risk set out in report of 4 September 2023. I will therefore include the supervision condition recommended.
Orders
110․The Court imposes the following sentence:
(1)For the offence of persistent sexual abuse of a child or young person, contrary to s 56(1) of the Crimes Act 1900 (ACT) (SCCAN2022/198), Thomas Lewyn Small is convicted and sentenced to two years and 18 days’ imprisonment, reduced from two years and 6 months on account of his guilty plea, to commence on 28 September 2023 and conclude on 15 October 2025.
(2)Pursuant to s 12(2) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), the sentence imposed is to be suspended from 27 March 2024 (being a period of six months from today), and ending on 15 October 2025, upon the offender entering into a good behaviour order for the remainder of the term of the sentence.
(3)Under s 13(2) of the Sentencing Act, Thomas Lewyn Small is required to sign an undertaking to comply with the Good Behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) including the core conditions set out in s 86 of that Act and that he accept such supervision for the period deemed necessary by ACT Corrective Services, and the following additional conditions:
(a)Pursuant to s 13(4)(c) of the Sentencing Act, a rehabilitation program condition targeting sex offending;
(b)Pursuant to s 95 of the Sentencing Act, a probation condition.
| I certify that the preceding one hundred and ten [110] numbered paragraphs are a true copy of the Reasons for sentence of her Honour Justice McWilliam. Associate: Date: 28 September 2023 |
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