Police v Jewkes

[2024] ACTMC 29

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Police v Jewkes

Citation: 

[2024] ACTMC 29

Hearing Date: 

20 November 2024

Decision Date: 

21 November 2024

Before:

Chief Magistrate Walker

Decision: 

The defendant is sentenced to a total of 10 months imprisonment, fully suspended upon entering a good behaviour order.

Catchwords: 

CRIMINAL LAW – SENTENCING – indecent assault on a male – attempt buggery – historical offences – Crimes Act 1900 (ACT)

Legislation Cited: 

Crimes Act 1900 (ACT), ss 80, 81

Crimes Act 1900 (ACT), s 212

Crimes (Sentencing) Act 2005 (ACT) ss 33, 34A(a), s 34A(b), 35(4)

Crimes (Sentence Administration) Act 2005 (ACT), s 86

Cases Cited: 

GAS v R [2004] HCA 22; 217 CLR 198

R vDe Simoni [1981] HCA 3; (1981) 147 CLR 383

R v Trezise [2018] ACTSC 135

R v Kisun (No 5) [2018] ACTSC 311

Mill v R [1988] [1988] HCA 70; 166 CLR 59

Beck v R [2024] NSWCCA 201

Parties: 

Jayalla Cox (Informant)

Peter Jewkes (Defendant)

Representation: 

Solicitors

ACT Director of Public Prosecutions

Uther Webster & Evans Solicitors (Defendant)

File Number:

CC 7345 of 2023

CC 7349 of 2023

CHIEF MAGISTRATE WALKER:

Introduction

1․The offender is charged with one count of indecent assault on a male, contrary to section 81 of the Crimes Act 1900, and one count of attempted buggery, contrary to section 80 of the same Act, as those sections stood at the date of these offences. Whilst the offence provisions are repealed, the limitation period of two years previously in place was also repealed in 2013.

2․Each offence carries on conviction a maximum penalty of five years' imprisonment

3․The matters before the court initially formed part of a broader suite of allegations including a further seven counts of indecent assault on a male.  They proceeded by way of summons. The offender was legally represented on the first return date in court on 4 October 2023 and pleas of not guilty were entered in respect to each of the matters. 

4․Following numerous adjournments for prehearing mention, the matters were adjourned to a final prehearing mention on 24 July 2024. On that occasion, pleas of guilty were indicated on behalf of the offender to the two matters which now fall to be sentenced.  The indecent assault charge was amended to reflect a date range of 1 January 1979 to 31 December 1979.  The attempted buggery charge was amended to a date range between 1 January 1978 and 31 December 1979.  The offender's consent to the jurisdiction of this court was confirmed on the same occasion.  The court was advised that the remaining charges would be withdrawn. 

5․Pleas of guilty were confirmed by the offender in person at the sentencing hearing on 20 November 2024. Leave was granted for the remaining matters to be withdrawn with consent of the offender. 

6․This sentence involves conduct committed nearly 50 years ago under a legislative regime and, indeed, a misguided morality, which are no longer in place.  In particular, the court is required to sentence for attempted buggery, conduct which was then described in legislation as “abominable”, regardless of the consent of those involved, but which is now considered unexceptional when between humans and consensual.  Buggery no longer exists as a crime in the Territory. However, the act which it describes when performed without the consent of the recipient constitutes a form of indecent assault.  Nonetheless, the Crown exercised its discretion to prosecute the offender's conduct under this particular provision.  It is the court's duty to sentence accordingly. 

Agreed Facts

7․The matter proceeded on the basis of agreed facts as follows. 

8․The offender is Peter Jewkes born in May 1956.

9․The victim was born in Ireland in January 1964. 

10․In 1972, the victim moved from Ireland to Perth with his family.

11․In September 1976, the victim and his family moved from Perth to live at the manse at Scots Kirk Presbyterian Church in Mosman where his father was appointed the church minister. The street address of the house on the church grounds is 32 Gouldsbury Street, Mosman.

12․As a child, the victim attended the weekly Sunday church service and the morning tea that followed in the church hall from 10.00 am.

13․At the age of 12, the victim first met the offender, who was aged 20, at the Sunday church service morning tea within a fortnight of the family relocating to Mosman. 

14․The offender grew up attending Scots Kirk Presbyterian Church and was also associated with the church through his work as an organist and organ builder.

15․From 1977, the victim saw the offender, on average, twice a week at either choir practice, where the offender played the piano, or other church activities.  At least once a week, the offender practiced the organ in the church. 

16․From 1978, the victim began visiting the offender's parent's house at 105 Awaba Street, Mosman, where the offender lived. 

17․In 1978, the victim went on a holiday to Jenolan Caves with the offender and a mutual friend, a young adult involved with the church. Sometime during this trip, the victim woke to find the offender's hand on his penis. 

18․After this trip, the offender was increasingly affectionate toward the victim, hugging him and talking to him about sexual topics. They began to engage in acts of sexual touching which occurred in New South Wales. This had been the subject of separate proceedings.

19․The offender ran his own pipe organ building and servicing business.  The offender would plan trips to attend churches in regional New South Wales and the Australian Capital Territory to service church organs. 

20․The offender invited the victim to come with him on a pipe organ servicing trip. 

21․On two occasions between 1 January 1978 and 31 December 1979, the offender and the victim went on a trip to Canberra together.  The trips lasted two to three days. During these trips, they stayed at a motel in Canberra and slept in the same bed.  They would each get into bed naked.  The offender would kiss the victim’s body.  The offender would use his hand to masturbate the victim’s penis whilst the victim was using his hand to masturbate the offender's penis.  The incidents would normally end with the offender having an orgasm.  Although these incidents did not make the victim happy, he passively accepted their occurrence.

22․On one occasion during one of these trips to Canberra some time in 1979, the offender used Vaseline moisturiser as lubricant, squirted it onto the backside of the victim and attempted to insert his penis into the victim’s anus. The victim felt the lubricant was cold on his buttocks, then felt the offender's penis move around his buttocks before feeling pressure on his anus. The pressure would increase on and off in stages.  The victim started to whimper and cry as the offender started to shake and his breathing became heavy, and the incident came to an end. The incident lasted approximately half a minute to one minute.

23․In 2015, the victim made a complaint of being sexually abused by the offender in New South Wales from 1978 to 1981. 

24․In 2019, the offender pleaded guilty to four charges of indecent assault on a male with two matters being taken into account on a “form one”.

25․On 17 April 2020, he was sentenced in the District Court of New South Wales to a total effective sentence of a 30‑month community corrections order with 12 months of curfew and night‑time detention. On 25 November 2020, the victim made a complaint through the ACT Australian Federal Police online system in relation to allegations that the offender sexually abused him on trips to Canberra, ACT.

26․In addition to these facts, the parties agreed orally that for the purposes of sentencing, the court should find that the victim was 15 years and 11 months of age at the time of the offences.  Whilst I expressed some concern about proceeding in this manner, which was ostensibly at odds with the charges as particularised, and the written agreed facts, the parties urged me to so find in accordance with their agreement.  Defence counsel referred me to the decision of GAS v The Queen [2004] HCA 22. At paragraphs 28 to 30, in considering the principles applicable to “plea agreements”, the court observed three principles summarised as follows:

(1) It is the prosecutor, alone, who has the responsibility of deciding the charges to be preferred against an accused person;

(2) it is the accused person, alone, who must decide whether to plead guilty to the charge preferred;

(3) “It is for the sentencing judge, alone, to decide the sentence to be imposed.  For that purpose, the judge must find the relevant facts. In the case of a plea of guilty, any facts beyond what is necessarily involved as an element of the offence must be proved by evidence, or admitted formally (as in an agreed statement of facts), or informally (as occurred in the present case by a statement of facts from the bar table which was not contradicted).  There may be significant limitations as to a judge's capacity to find potentially relevant facts in a given case…”

27․Accordingly, in addition to the written facts tendered on sentence, I find that the offences occurred when the victim was almost 16 years old. 

Objective seriousness

28․The significance of this finding relates to an assessment of the objective seriousness of the offending.

29․Age is not an element of either of the offences charged.  Nonetheless, the parties submit, and I accept, that the age of the victim is relevant both as to an assessment of his inherent vulnerability, being a young person, and also in considering the relative disparity between the victim and the offender's age. The offender was approximately seven and a half years older than the victim.  Both were relatively young although the offender was an adult at all material times.  The disparity is somewhat less than is often seen in cases of this type. 

30․The victim, as a young person, travelled to the ACT in what was ostensibly a protective arrangement with an older friend, a friendship facilitated through their church activities. Whilst this does not amount to a breach of trust of the type generally recognised by the law, such as a parent and child, teacher, coach or the like, nonetheless, it was a situation in which an adult had effective supervision of a minor in the absence of his parents.  The usual protections available to a minor were not in place during these offences in the Territory.

31․The offending constitutes a course of conduct engaged in by the offender for his sexual gratification. 

32․The acts of indecency involved direct skin‑to‑skin contact. 

33․Physical force was not used to effect the offences nor physical harm caused to the victim. 

34․Whilst I accept that the victim was highly distressed by the offender's conduct, particularly the attempted buggery, I accept that the offender was unaware of the distress he caused.

Harm to the victim

35․The court takes into account the harm suffered by the victim.

36․The victim provided a victim impact statement detailing the devastating impact of this offending on him.  Objection was taken on behalf of the offender to aspects of that statement insofar as it offends the De Simoni principle (R v De Simoni (1981) 147 CLR 383), addressed issues arising from the New South Wales offences and the manner in which they were dealt with, and is inconsistent with agreed facts. The prosecution conceded that the objections were well‑founded and I have upheld them in considering the victim impact statement.

37․A copy of the formal objections are appended to that statement and now form a part of the exhibit.  No formal redactions were sought or made. 

38․The victim spoke of the severity of the abuse that he suffered at the offender's hands.  He described himself as suffering a near catatonic state. 

39․The victim stated that 'The offender stole my childhood, destroyed my education, stole my mental health and destroyed my faith.'  He spoke of the cumulative effect of repeat offending and his experience during it: ‘I was stuck in the very back of my mind, screaming in pain, but no‑one could hear me.  At first, there was some glimmer of hope.  Surely, somebody must see what is happening.  Some adults, a responsible person, would stop what was happening.  It is truly soul‑destroying to live in pain and to have no hope.’

40․He spoke of the isolation and despair that he suffered as a result of the abuse and the suicidality that he experienced from childhood onwards.

41․The victim also spoke of the impact on his family, of the depression he suffered as a result of the abuse, finding it difficult to be away from home, thus, limiting opportunities for family holidays, the anxiety which permeates his life making being in crowds difficult, again, with an impact on his family, for example, limiting his ability to attend his children's sporting or other activities.

42․He spoke also of the disturbing flashbacks that he suffers routinely and the insomnia that he experiences.  He has suffered in this way for over 40 years. 

43․The court acknowledges the victim's extreme distress and laments that he feels disappointed by the criminal justice system, a tool which is a blunt instrument, unable to comprehensively address the harm suffered by victims in crimes such as this.

The offender

44․The offender is now 68 years old.  He was raised in a devout Christian family, his parents being elders of the Presbyterian Church.  He is an organ builder and repairer by trade, a talented performative musician.  He is a renowned expert in both areas of endeavour.  He has been generous in sharing his expertise in the church and musical communities.  He has maintained very long‑term friendships and intimate partner relationships.

45․The offender tendered a prepared statement attesting to the deep regret he holds for causing the pain to the victim and accepting full responsibility for it.  He described forming a friendship with the victim prior to the relationship becoming intimate.  He perceived the relationship to be consensual and caring, failing to see the disparity between himself as an adult and the victim as a child. On reflection, he now appreciates that the age difference created a power imbalance in the relationship.  He attributes his failure to recognise this at the time to his own emotional immaturity. 

46․The offender's flawed perception that whilst committing the offence, he was engaging in a relationship that was not available to him in law either at the time, nor, indeed, would it have been in the present day, is relevant in determining the objective seriousness of the offences.

47․The offender indicated that he pleaded guilty despite having no recollection of any sexual activity with the victim in the ACT but acknowledging that, generally, there was sexual engagement between them at that time. By pleading guilty, he aimed to avoid the victim being required to engage further in legal proceedings.

48․The offender also described the impact upon him of having been prosecuted for his offending against the victim. He has suffered stress and anxiety. His business and reputation have suffered. The impact on the offender's business is corroborated by a number of referees but, particularly, Mr Rodney Forde, a fellow director of the offender's company and former long‑term romantic partner. Mr Forde attests to the offender's professional skill, the impact already experienced as a result of clients lost following the offender's New South Wales convictions and the likely loss of work for four employees of the company in the event that the offender were incarcerated. These are matters which may be considered as relevant circumstances pursuant to section 33 of the Crimes (Sentencing) Act 2005 (ACT).

49․There is no indication of the offender having any proclivity to further sexual offending since these offences were committed.  I accept that the offender has not reoffended in a similar way or, indeed, any way, and is highly unlikely to. This is borne out by the lack of any such complaint despite the offender's involvement in many social and professional contexts with young people. It is also corroborated by the psychiatric assessment detailed in the report of Dr Olaf Nielssen dated 4 November 2024, which assessed the offender as being at low risk of further offending on both clinical grounds and actuarial estimates.

50․The offender is also subject to strict conditions and police monitoring as a consequence of having been placed on the New South Wales child protection register following the New South Wales convictions and will be for a further decade or so to come. 

51․The numerous personal references tendered in support of the offender are evidence that he is clearly highly regarded by many people as a man of integrity, honesty and outstanding professional skill, gentle, kind and sensitive to others. He has contributed widely to the community through his church and professional volunteer work, in particular, regularly assisting to feed homeless people.  Despite the loss of some friends as a result of his criminal offending, many longstanding friends remain loyal to the offender, describing the offending as highly uncharacteristic of him.

52․The offender provided a separate statement detailing his current health challenges, namely, prostate cancer suffered in 2019, now in remission; mild glaucoma; diabetes mellitus type 2 requiring twice daily insulin injections and weekly oral medication, a condition which has rendered him particularly prone to infection; painful knees following a double knee replacement in August of 2022; arthritis causing pain and impacting upon his mobility; damaged ligaments in his shoulders causing pain and requiring medication; a recurrent hernia requiring surgical repair and currently managed with pain medication; and sleep apnea requiring the use of a CPAP machine.

53․These conditions are corroborated and explained by reports from Dr Walker, a general practitioner, dated 13 November 2024, Dr Jufas, an ENT specialist, dated 8 October 2024, Dr Lam, a sleep specialist, dated 2 April 2024, and radiology reports. 

54․Ms Rosser, a psychologist, also reported as to the offender's level of depression, stress and anxiety experienced in reaction to these and related legal proceedings. 

55․These health conditions are not exceptional for a person of the offender's age but would create some additional difficulty in a custodial environment.

Delay 

56․These matters are historical.  No doubt for perfectly legitimate reasons, the victim did not make any complaint to the police until 2015 in New South Wales and 2022 in the ACT.  The delay in these offences being prosecuted has had an impact on the offender but also creates challenges for this court in sentencing.

57․The repealed offences, as I note, have been subject to a statutory limitation period of two years which was retrospectively amended in 2013, enlivening the availability of what was otherwise an impossible prosecution. 

58․Current sentencing practices must be applied by virtue of section 34A(a) of the Crimes (Sentencing) Act 2005 (ACT). I adopt the observations of Mossop J in R v Trezise [2018] ACTSC 135 following his review of comparable cases. At [28], his Honour noted:

These sentences demonstrate that the Court has imposed significant custodial sentences to reflect the gravity of the offending conduct, but exercised a significant degree of leniency in relation to persons otherwise of good character where there has been a significant delay in prosecuting the offences and the offender was quite elderly at the time of the sentence.

59․In the later decision of R v Kisun (No 5) [2018] ACTSC 311, Mossop J imposed a four‑month sentence of imprisonment on the offender, a former teacher, for touching a Year 5 student's chest under his shirt for about a minute and 12 months for touching the leg of a child up to his genital region. Like offending on a younger student attracted similar penalties. The total sentence was three years and six months' imprisonment. This was wholly suspended having regard to the offender's age, health and longstanding good character.

60․In none of the cases to which I have had regard has the offender asserted that they perceived there to have been a consensual relationship with the victim, even where the offending was repetitive.  It is, perhaps, in this sense, that the case is “rather exceptional” as observed by Flannery J of the New South Wales District Court in her sentencing remarks:

Whilst I have no cause to reject that the offender genuinely believed himself to be in a relationship with the victim, and I'm satisfied that his conduct was not motivated by malice or any reckless disregard for the harm being visited on the victim, that naïve misconception of a relationship which was apparently not shared by the victim, cannot, in my view, significantly mitigate the appropriate penalty.  To do so would fail to recognise the harm suffered by the victim and undermine the mean for general deterrence.

61․Section 34A(b) of the Crimes (Sentencing) Act 2005 (ACT) provides that the court must not reduce the severity of its sentence because of the offender's good character to the extent that the good character enabled the offender to commit the offence. This raises the “breach of trust” issue I averted to earlier. The offender's good character, in my assessment, prior to the offending does not warrant lenience. However, his subsequent good character is highly relevant in evidencing his rehabilitation and, consequently, the reduced need for specific deterrence.

Plea 

62․I accept that the offender is deeply sorry for the harm that he caused. This has been demonstrated by settlement of a civil claim in December of 2021 and his guilty pleas in this matter.  His referees universally attest to his abject remorse. 

63․The offender's pleas were early in the sense that they avoided a committal or contested hearing, however, they were not at the very earliest opportunity.  As I indicated, initially, pleas of not guilty were entered, triggering work in preparation for hearing. There were 11 mentions before a plea arrangement was arrived at by negotiation.  This arrangement, as noted at the outset, resulted in a reduction of the number of charges and amendment of the date range of those which were maintained.  The prosecution, however, submit that this did not result in a change to the substance of the case put against the offender.  This submission was not contested. 

64․I accept there is a significant utilitarian value in the pleas entered. 

65․I also accept that this was not an overwhelmingly strong prosecution case, however, that does not, in my assessment, sound in a further discount on sentence. Where the prosecution case is overwhelmingly strong, section 35(4) of the Crimes (Sentencing) Act 2005 (ACT) prohibits the court from making any significant reduction in penalty in the event the court is considering the real likelihood of imprisonment. The inverse does not automatically follow.

66․However, the offender's guilty plea in the face of a problematic prosecution case may be taken into account as further evidence of remorse. 

67․Balancing these factors, I am satisfied that a full 25 per cent discount is appropriate in this case.

Totality

68․The court is faced with considering an appropriate sentence for offences which, in reality, form part of a protracted course of conduct, along with the New South Wales offences already sentenced involving the same victim.  Ideally, the matters would have been dealt with in a single sentencing event but the jurisdictional border intervenes. 

69․The New South Wale offences were four counts of indecent assault on a male between 21 January 1978 and 1 January 1979 with a five‑year maximum penalty and two like offences to be taken into account.  They largely involved masturbation and fellatio in various contexts whilst the victim was 14 or 15 years of age.

70․The guidance in Mill v R [1988] HCA 70 at paragraphs [14] to [16] requires the court to consider what the likely sentence would have been if the offences had been sentenced in one jurisdiction at one time, noting the lost opportunity to apply concurrency. Adjustment should be made to properly achieve totality, even if the later in time sentence in isolation fails to reflect the seriousness of the offences. I refer to Beck v R [2024] NSWCCA 201.

71․The court is able to take into account any progress made while subject to or after completion of the earlier sentence. The offender has served his New South Wales sentence.  He continues to maintain the high regard of close friends and to contribute positively to the community.

72․It is also significant that a substantial period of time, 30 months, is served during which the offender is subject to conditional liberty.

Further sentencing considerations

73․The principles of punishment, general deterrence, denunciation and recognition of harm to the victim loom large in the circumstances of this matter. 

74․A sentence of imprisonment must be imposed only if the court is satisfied, having considered possible alternatives, that no other penalty is appropriate (s 10 of the Sentencing Act).  The prosecutor submits that this is so.  Counsel for the offender submits that it is not.

75․The question for this court is whether the ACT offences in themselves demand a sentence of imprisonment, noting that equally, if not more serious matters, in New South Wales were found not to, and noting also the offender's positive trajectory since the New South Wales sentence was imposed. 

76․I cannot help but conclude that in applying ACT sentencing practice, this constellation of offending would demand a sentence of imprisonment and that, indeed, the ACT offences, even standing alone, do.  Bearing in mind the significant sentence already served, there is scope for leniency in how that is to be served. 

The sentence

77․The sentence is as follows:

(a)On charge 7345/2023, I record a conviction and impose a sentence of six months' imprisonment. 

(b)On charge 7349/2023, I record a conviction and impose a sentence of six months' imprisonment, concurrent as to two months. 

(c)The total period of imprisonment is 10 months. The imprisonment will be fully suspended upon the offender entering into a good behaviour order for a period of nine months with core conditions as provided for in s 86 Crimes (Sentence Administration) Act 2005 (ACT).

I certify that the preceding seventy seven [77] numbered paragraphs are a true copy of the Reasons for Decision of her Honour Chief Magistrate Walker.

Associate: Lucy Skeldon

Date: 26 November 2024