R v Aitchison (No 3)
[2018] ACTSC 214
•13 August 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Aitchison (No 3) |
Citation: | [2018] ACTSC 214 |
Hearing Date: | 13 August 2018 |
DecisionDate: | 13 August 2018 |
Before: | Elkaim J |
Decision: | See [26] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse with a young person – act of indecency with a young person |
Legislation Cited: | Crimes Act 1900 (ACT) ss 92K(2) and 92E(2) Crimes (Sentencing) Act 2005 (ACT) ss 6, 7 and 331 |
Cases Cited: | R v CX(No 2) [2016] ACTSC 325 |
Parties: | The Queen (Crown) John Philip Aitchison (Offender) |
Representation: | Counsel Mr T Hickey (Crown) Mr J Lawton (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Ben Aulich & Associates (Offender) | |
File Number: | SCC 291 of 2016 |
ELKAIM J:
On 27 April 2018, the offender was found guilty by a jury of seven counts of an act of indecency with a young person and five counts of sexual intercourse with a young person.
The maximum penalty for the offence of sexual intercourse with a young person is 14 years’ imprisonment. The maximum penalty for the offence of an act of indecency with a young person is 10 years’ imprisonment.
The offences were committed between July 1987 and October 1989 and concern one complainant. At the relevant time, the complainant was between 13 and 15 years of age. The offender was, at the time, a deacon at the All Saints’ Anglican Church in Ainslie.
The complainant was a very talented violinist whose musical interests brought her to the attention of the offender.
As a general statement, it is clear that the jury accepted the complainant’s version of events, rejected the attack on her credit and rejected the offender’s version, including his denials, put forward through his record of interview.
The jury specifically rejected the offender’s assertion that, because he was a homosexual, he would not have had any interest in a female. The jury accepted that the offender had a tendency to be sexually attracted to young persons, male and female.
I am satisfied that the jury reached their verdicts of guilt beyond reasonable doubt on the basis that the following facts had been established in each count:
(a)Count 1: The complainant was rehearsing a violin piece at All Saints’ Anglican Church. The offender sat next to her on a pew and suggested that if she prayed she might be reunited with her deceased dog. The offender placed the complainant on his lap and had penile-anal sexual intercourse with her.
(b)Count 2: This offence occurred in the Hall at the same church. The offender put his hand up the complainant’s blouse, on the outside of her crop top, and touched her breast.
(c)Count 5: This offence also occurred in the Hall. The offender held the complainant’s hands above her head and had penile-vaginal sexual intercourse with her.
(d)Count 7: This offence, and the remainder of the offences, occurred at the complainant’s residence at Red Hill. The offender was in the swimming pool with the complainant. He put his hand inside her swimming costume and touched her groin area. He also squeezed her breasts.
(e)Count 9: While in the swimming pool, the offender put his finger in the complainant’s vagina.
(f)Count 10: Again in the swimming pool, the offender placed the complainant’s hand on his penis.
(g)Count 11: This offence occurred in the complainant’s residence on a three-seat sofa. The offender had penile-vaginal sexual intercourse with the complainant.
(h)Count 12: This offence also occurred on the sofa. The offender kissed the complainant and removed her shorts and underwear.
(i)Count 13: Again on the sofa, the offender took the complainant’s hand and put it on his penis.
(j)Count 14: While on the sofa, the offender pried open the complainant’s legs, inserted his penis into her vagina and had penile-vaginal sexual intercourse with her.
(k)Count 15: This offence took place in the complainant’s bedroom. The offender put his hands on various parts of the complainant’s body and kissed her.
(l)Count 18: The offender had penile-vaginal intercourse with the complainant in her bed.
There are a number of aggravating features that attend the offences. They include:
(a)The advantage taken by the offender of an underage girl who was much younger than him.
(b)The advantage taken by the offender of his position as a religious official, including the breach of trust involved.
(c)In respect of Count 1, the exhortation for the complainant to pray in order to reconnect with her deceased dog while the offender took advantage of her, and in a massive demonstration of hypocrisy, pleading for forgiveness as he raped her.
(d)Sexually assaulting the complainant after knowing she had been previously sexually assaulted by her father and taking advantage of her vulnerability and her desire to talk to somebody about her past abuse.
(e)The sexual encounters were unprotected, exposing the complainant to the risk of pregnancy or disease.
In respect of Count 1, the offence is objectively very serious. The other acts of sexual intercourse are objectively above the mid-point of seriousness. Although all of the acts of indecency are serious, the sentencing of the offender must be dominated by the offences of sexual intercourse.
In a matter with so many counts it is important that I achieve a just totality of all of the sentences that need to be imposed. This will necessarily involve a degree of concurrency and accumulation in the sentences.
I must also recognise that the offender is unlikely to re-offend if only as a result of his age and the limited access he will have to potential victims. I also take into account that prison is likely to be more difficult for the offender than the average person.
The offender was born in 1950 in South Australia. He moved to the Australian Capital Territory when he was 11 years of age. He has two siblings. His childhood is described as including significant neglect and emotional abuse.
He was married in 1980 and moved to the United Kingdom with his wife. His wife died in Wales from early onset Alzheimer’s disease. There were no children from the marriage.
The offender completed Year 12 and has a number of tertiary degrees. He worked as a school teacher and a parish priest.
The expert reports state that the offender is suffering from an adjustment disorder and associated depression. This state is no doubt at least partially the product of his current circumstances. It is said that he would benefit from psychological treatment and that he is at risk of suicide. I will recommend that these matters be brought to the attention of the correction authorities.
In 2012 the offender commenced another relationship which lasted until 2015 when his partner suddenly passed away.
The offender has a criminal record. It includes offences against children. He has committed offences against children in the United Kingdom, in Victoria, in New South Wales and in the Australian Capital Territory. He has spent time in prison, totalling about two years and three months. His term ended in 1998. On other occasions he has been dealt with leniently. This was particularly so in a case in which a New South Wales District Court Judge thought that the offender had exhibited “a psychological aberration rooted in a mistaken intention of affection”. He was incorrect. He is unquestionably a paedophile. In addition, quite extraordinarily, he had the benefit of certain alleged offences being stayed.
I stress, however, that my observations of the offender’s previous engagements with the judicial system have not affected my sentencing of him today.
A matter that arose during submissions concerned the overall attitude that I should take to the sentencing process. Should I adopt sentencing practices as they existed when the offences occurred or should I sentence according to current practices?
There will be an automatic degree of proportionally lesser sentencing where the maximum penalties were previously lower. However, as to the attitude to be taken, in my view, whether current attitudes or former attitudes prevail is probably of little significance in this case. I cannot imagine that courts at the time of the offences would have taken a lesser view of the opprobrium that should be levelled against this offender. Common attitudes demand that persons like this offender do not receive any undue leniency. The community expects appropriate sentences to be imposed.
All cases are different. The Crown has provided me with a list of very broadly similar cases. I have also had regard to my decision in R v CX (No 2) [2016] ACTSC 325.
The sentencing process also requires that I take account of the effects of the offending. The complainant read a lengthy Victim Impact Statement. She described her love of music and animals and how both of these passions were taken advantage of and attacked by the offender’s conduct. She said that the offender:
“…took away the things that gave me comfort, security and happiness at the very point where I was reconstructing myself after that divorce. Worse, he took away my faith, my career and my memories of my best friend, my dog Lilly.”
I agree with the complainant’s description of the offender as “effortlessly careless, casual, commanding, authoritarian and coolly arrogant”.
The offender maintains his innocence. Accordingly, there is no element of remorse.
I have taken into account the objects and principles of sentencing as set out in ss 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT) and also the factors that are relevant to s 33(1).
I make the following orders:
(a)In relation to Count 1, sexual intercourse with a young person (CC 16/6605), the offender is sentenced to 6 years’ imprisonment commencing on 27 April 2018 and ending on 26 April 2024.
(b)In relation to Count 2, act of indecency with a young person (CC 16/6606), the offender is sentenced to 12 months’ imprisonment commencing on 27 July 2018 and ending on 26 July 2019.
(c)In relation to Count 5, sexual intercourse with a young person (CC 16/6608), the offender is sentenced to 5 years’ imprisonment commencing on 27 April 2019 and ending on 26 April 2024.
(d)In relation to Count 7, act of indecency with a young person (CC 16/7158), the offender is sentenced to 12 months’ commencing on 27 April 2019 and ending on 26 April 2020.
(e)In relation to Count 9, act of indecency with a young person (XO 17/31050), the offender is sentenced to 18 months’ imprisonment commencing on 27 April 2019 and ending on 26 October 2020.
(f)In relation to Count 10, act of indecency with a young person (CC 16/6612), the offender is sentenced to 12 months’ imprisonment commencing on 27 April 2019 and ending on 26 April 2020.
(g)In relation to Count 11, sexual intercourse with a young person (CC16/6613), the offender is sentenced to 5 years’ imprisonment commencing on 27 April 2020 and ending on 26 April 2025.
(h)In relation to Count 12, act of indecency with a young person (CC 16/6614), the offender is sentenced to 12 months’ imprisonment commencing on 27 July 2020 and ending on 26 July 2021.
(i)In relation to Count 13, act of indecency with a young person (CC 16/6615), the offender is sentenced to 12 months’ imprisonment commencing on 27 July 2020 and ending on 26 July 2021.
(j)In relation to Count 14, sexual intercourse with a young person (CC 16/6616), the offender is sentenced to 5 years’ imprisonment commending on 27 April 2021 and ending on 26 April 2026.
(k)In relation to Count 15, act of indecency with a young person (CC 16/6617), the offender is sentenced to 12 months’ imprisonment commencing on 27 July 2021 and ending on 26 July 2022.
(l)In relation to Count 18, sexual intercourse with a young person (CC 16/6619), the offender is sentenced to 5 years’ imprisonment commencing on 27 April 2022 and ending on 26 April 2027.
The total sentence is 9 years, starting on 27 April 2018 and ending on 26 April 2027.
I set a non-parole period of 5 years to expire on 26 April 2023.
| I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: |
3