R v Alas (No 3)
[2018] ACTSC 38
•7 February 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Alas (No 3) |
Citation: | [2018] ACTSC 38 |
Hearing Date: | 6 February 2018 |
DecisionDate: | 7 February 2018 |
Before: | Mossop J |
Decision: | See [39] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – sexual intercourse with a person under the age of 16 years – |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), s 33(1)(za) |
Cases Cited: | Director of Public Prosecutions (Vic) v Dalgliesh (Pseudonym) [2017] HCA 41; 91 ALJR 1063 Millard v The Queen [2016] ACTCA 14 R v Nona [2015] ACTSC 136 |
Parties: | The Queen (Crown) Baltazar Leiva Alas (Offender) |
Representation: | Counsel M Lucero (Crown) K Musgrove (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 290 of 2016 |
MOSSOP J:
Introduction
The offender was charged with two counts of an act of indecency on a person under the age of 16 (counts 1 and 2) and five counts of sexual intercourse with a person under the age of 16 years (counts 3 to 7). On 1 December 2017, the jury returned verdicts of not guilty on counts 1 to 5 on the indictment and verdicts of guilty on counts 6 and 7.
Count 6 related to sexual intercourse which led to a pregnancy which ended in a miscarriage. The pregnancy and miscarriage were documented in medical and other contemporaneous records which were in evidence.
Count 7 related to the sexual intercourse which led to the conception of a child who the offender admitted was his. Having regard to the date of birth of the child at term, the sexual intercourse had occurred prior to the 16th birthday of the complainant.
At the time of count 6, the offender was aged 40 or 41 and the complainant 15 years and one or two months. As at the time of count 7, the offender was aged 41 and the complainant 15 years and 10 or 11 months.
The offender and victim lived in the same housing complex. The victim lived with her mother. The offender sought out the victim complimenting her on her looks, saying that he wanted to look after her and that he wanted a relationship with her. She was vulnerable to such entreaties being a naïve and shy teenager whose parents were separated.
The verdicts of not guilty on counts 1 to 5 are, in the light of the verdict of guilty on counts 6 and 7, consistent with the jury having a reasonable doubt about the accuracy of the evidence of the complainant about what occurred. The difference between those charges and counts 6 and 7 was the availability of corroborative evidence in relation to the latter counts because they both resulted in pregnancies.
The verdict of the jury involved a rejection of the defence available to the accused that he believed on reasonable grounds that the complainant was 16 years or over and that the complainant consented to the sexual intercourse. There was no evidence that the complainant did not ostensibly consent to the sexual intercourse. Therefore the jury’s finding involved a rejection that the accused believed on reasonable grounds that the complainant was 16 years or over at the time of the sexual intercourse. There were two aspects of the evidence which provided a reasonably direct basis for a finding on this issue. The first was that the offender gave evidence that the complainant had told him in 1999 that she was 17 years old. He said that he continued to believe that until after the child was born. The jury’s verdict involves a rejection of this evidence. The other piece of evidence was the evidence given by the complainant that after the second occasion upon which sexual intercourse occurred, she told him that she was only 14 and he replied that he thought she was 16 or 17 but that it did not matter. Having regard to the fact that the evidence as to this conversation was closely associated with the evidence about the sexual intercourse alleged to have occurred at the time, the jury’s verdict of not guilty indicates that it is unlikely that the jury accepted that he was expressly told at this time that she was only 14 years old.
However the jury’s verdict necessarily requires the jury to have rejected the contention that he had such a belief or that the belief was based upon reasonable grounds at the time of counts 6 and 7. I do not accept the offender’s evidence that he believed that the victim was 16 or 17 years old. I do not accept his evidence that she told him this. I do not accept that he reached such a conclusion for other reasons. It is thus a case of the offender not having a belief that, if true, would render the intercourse lawful rather than having demonstrated that he actually had such a belief but holding that belief on grounds which were not reasonable.
Consistent with the jury’s verdict as I have explained them, I sentence the accused on the basis that he did not believe at the time of the sexual intercourse, the subject of counts 6 and 7, that the complainant was over the age of 16.
Victim impact statement
A victim impact statement was read by the prosecutor. It is an important document because it puts in context the subsequent long-term relationship between the complainant and the accused which led to them having a total of four children together. It makes it clear that the offending conduct was integrally associated with the subsequent relationship, and that because of the sexual relationship with the victim, the offender had completely changed the direction of her life and denied to her the autonomy to develop, free of the burdens of motherhood and a relationship with the offender that she may have had, if the offending conduct had not occurred.
She described that she was a shy and introverted young teenager. Her mother had a mood disorder, which had not been diagnosed at the time which resulted in the victim being uncertain as to how her mother would respond to her. Her father had re-partnered when she was 11 or 12 years old and the victim perceived him as being focused on his new relationship. As a consequence, when the offender paid attention to her, complimented her and said he wanted to look after her, she was susceptible to his advances. She trusted and respected adults and described herself as a naïve and introverted teenager. She said that she did not have the emotional or intellectual maturity to consent to the sexual intercourse. She found the miscarriage arising from count 6 painful and emotionally disturbing for her and led to her questioning whether she was to blame for the baby’s death. She described that she had been thrust into the adult world for which, at that age, she was not emotionally or socially equipped.
She described the time after the birth of her first child as being “not so bad” given that she had family support. She indicated that subsequently she and the offender moved to Perth but she separated from him and returned to New South Wales in late 2011. She made reference to the fact that it was only after leaving the relationship that she began to learn about what was right and wrong in relationships. She has found it difficult to trust people, to understand people’s motives, and considers herself to be filled with anxiety and fear.
Objective seriousness
The offences were in the mid-range of objective seriousness for the offence. They involved a very significant age difference between offender and victim and hence, a significant power imbalance between them. The establishment of the relationship, which made the offending possible, involved active steps on the offender’s part. On the other hand, the offences were not overtly (as opposed to statutorily) non-consensual and did not involve any overt methods of coercion or pressure and hence, these potentially aggravating factors are not present. They did not involve the exploitation of a position of trust reposed in the offender.
Subjective circumstances
The offender is 58 years old. He arrived in Australia in 1990 as a refugee from
El Salvador. He was, at that stage, confined to a wheelchair because of a gunshot wound to his back. In 1988 he and his wife were taken into custody by government soldiers; she was raped and he was shot. His wife disappeared and is presumed dead. He received some medical treatment in El Salvador. He was accepted by Australia as a refugee and arrived in October 1990, spending almost three months at the Mater Hospital in Brisbane being treated for his gunshot wound. The gunshot wound involved damage to one of the discs of one of his vertebrae. He moved to Canberra in 1999 and resided in a government flat in Manuka. It was there that he established a relationship with the victim.
The child conceived as result of count 7 was born in May 2002. The victim and her mother then moved to Queensland. The offender subsequently followed and resumed a relationship with the victim. He lived in Brisbane with the victim in 2004 and 2005, returning to Canberra in 2005. At some stage thereafter, he and the victim moved to Perth. The relationship with the victim ended in 2011 and there were subsequent family law proceedings between the offender and the victim.
The offender currently resides in rental accommodation in Moree and receives support from his sister, who resides near Moree, as well as various service providers. He does not have any contact with the children that he had with the victim. He has telephone contact with his adult daughter who lives in El Salvador. He does not engage in any “pro-social” activities in Moree; preferring to spend time in his unit or with friends.
He is in receipt of a disability support pension for his post-traumatic stress disorder. He has a history of deliberate self-injurious behaviour, suicide attempts, and an admission to the Canberra Hospital in 2000 for psychiatric treatment.
He has held no employment for the last 15 years. He is assessed as unlikely to benefit from a period of supervision and is unsuitable for community service.
An assessment by a psychologist prepared as part of the Pre-sentence Report process hypothesised that his history of trauma, mental health issues, and migration to Australia may have resulted in feelings of isolation, social rejection and loneliness. The psychologist therefore concluded that fulfilment of unmet interpersonal needs may have been a key component in the development of his inappropriate relationship with the victim.
He was assessed as having an average risk of recidivism in accordance with the STATIC 99R instrument.
Criminal history
The offender has a limited criminal history, all of which comes from New South Wales. In 1993 he was convicted of high-range drink driving. In 1994, he faced a charge of making a false accusation and public mischief, both of which were dealt with under mental health legislation. In 2012 he was fined and given a bond for contravening an apprehended violence order. In 2013 he was given a 12 month bond in relation to three contraventions of an apprehended violence order. At the same time he was given a suspended sentence of imprisonment for contravening an apprehended violence order. All of the breaches of apprehended violence orders related to the breakdown of his relationship with the complainant.
Time in custody
The offender has not spent any time in custody in relation to the offences.
Consideration
The offending conduct was serious. It involved an adult male of 40 years commencing a sexual relationship with a 15-year-old girl. While there was no relationship of trust between offender and victim, the offences involved the exploitation of a very substantial difference in age and maturity by the offender. The offender did not use any contraception and both offences gave rise to pregnancies. The offences must be taken to, and in this case clearly did, have had a dramatic effect upon the life of the victim (see R v Gavel [2014] NSWCCA 56 at [110]).
While the offender’s personal circumstances and unmet personal needs may provide some context to his criminal behaviour in sentencing, neither factor excuses the conduct. They do indicate that the case was not one of a more simple narrowly focussed case of sexual predation. His personal circumstances in the form of his experiences in
El Salvador and his ongoing post-traumatic stress disorder do provide a basis for extending to him some leniency.
The offender’s personal circumstances are significant. It is necessary to take into account the traumatic circumstances in which he came to Australia and his ongoing suffering from post-traumatic stress disorder.
His mental health condition means that it is likely that full-time detention will be more burdensome than for someone without that condition (R v Al-Harazi (No 7) [2017] ACTSC 350 at [192]) and I have taken that into account in moderating the sentence that I would otherwise impose (Millard v The Queen [2016] ACTCA 14 at [29]-[35]).
The offender has not expressed any remorse or contrition in relation to the offences, maintaining that he believed that the victim was over the age of 16. The verdict of the jury denies that he had such a belief, or that if he did, it was upon reasonable grounds. I have found above that he did not have that belief.
I consider that because of the gravity of the offending conduct and the need for such conduct to be deterred, the Court is required to impose a custodial sentence and that such a sentence is the only appropriate one having regard to the options available.
It must be recognised that the offending conduct occurred 17 years ago. There is no evidence that he has committed further similar offences since. Rather the offending conduct appears to have been conduct which arose in particular circumstances at a particular time. It is therefore not a case in which specific deterrence of similar conduct is a significant issue.
The offender’s criminal history is not extensive. Most recently it has been associated with the breakdown of the relationship with the victim.
The lapse of time since the offending conduct must also be taken into account because it is desirable to consider the sentencing pattern at the time when the offences were committed. While counsel for the Crown referred to a number of recent cases to which I have had regard, counsel for the offender referred the Court to the reasons of the Chief Justice in R v Nona [2015] ACTSC 136 at [48]-[50], a case involving sexual intercourse with a person under the age of 16 occurring in the mid-1990s. Her Honour noted that the research of defence and prosecution revealed that sentences varied wildly in their length and were generally very lenient when compared to current sentencing patterns. She was also prepared to infer from a previous decision of the Court that non-parole periods set in the 1990s were lower than those that are currently imposed. Counsel for the offender identified some sentences imposed in 2001 for sexual offences involving minors. It is not possible to say that the sentences disclose any particular pattern of sentencing or even that they demonstrate that the sentences imposed at that time were lower than imposed presently. The only case involving the offence of sexual intercourse with a person under the age of 16 was R v JD (Unreported, ACT Supreme Court, Madgwick J, 12 June 2001). His Honour imposed a six month period of imprisonment upon a person who, when 27 years old, had sexual intercourse with a girl of 14. The sentence was imposed in the context of an effective two year sentence on that charge and a charge of assault occasioning actual bodily harm. While this is clearly a lenient sentence on the sexual intercourse charge, no pattern of sentencing can be discerned from a single case.
Just before the delivery of my reasons on this sentence, counsel for the Crown made further submissions about the operation of s 33(1)(za) of the Crimes (Sentencing) Act 2005 (ACT). She submitted that the reference in that provision to current sentencing practice displaces any common law principle that makes it appropriate to have regard to the range of sentences that had been imposed by the Court for the relevant offence closer to the time of the offence where the sentencing is occurring many years after the offending conduct. She referred to the decision of the High Court in Director of Public Prosecutions (Vic) v Dalgliesh (Pseudonym) [2017] HCA 41; 91 ALJR 1063 at [56], quoting R v Kilic [2016] HCA 48; 259 CLR 256 at [21], which referred to the importance of currency of sentencing practice as reflecting the fact that community attitudes to particular offending conduct may change over time. She therefore submitted that if the Court came to the view that sentencing practices disclosed by the cases closer to the time of the offending conduct failed to reflect the objective gravity of the offence, then the Court could, and as I understand it should, depart from them.
One possible answer to the submission about the meaning of s 33(1)(za) is that current sentencing practice incorporates a proper regard to past sentencing decisions where there is a delay of many years between the offence and the imposition of the sentence, at least where a failure to do so would give rise to an injustice. Such an interpretation both avoids any injustice to the offender in cases of delay and preserves the significance of the reference to currency as explained in Dalgliesh and Kilic.
It is not necessary in the present case to resolve any question of principle arising from the recently made submissions on behalf of the Crown. The very limited material to which I was referred does not disclose a sentencing pattern inconsistent by reason of leniency with the sentence which, in any event, I consider it appropriate to impose.
Notwithstanding the submission made on behalf of the offender, I do not consider that the purposes of sentencing will be adequately addressed by a custodial sentence which is wholly suspended. Notwithstanding the personal circumstances of the offender, I consider that the objectives of punishment, denunciation, a recognition of the harm done to the victim and general deterrence, require service of a period of full-time in custody, although the period has been significantly moderated by reason of his subjective circumstances.
In the sentence that I will impose, I have allowed a degree of concurrency between the offences, in part because the offending conduct was part of an ongoing relationship, and in part having regard to the issue of totality.
In summary, on each charge I will impose a sentence of imprisonment of 15 months, concurrent as to six months, giving a total effective sentence of two years with a
non-parole period of 12 months.
I will mark the offender as a “Prisoner at Risk” by reason by his mental health condition, namely post-traumatic stress disorder and depression.
Orders
The orders of the Court are:
(a)The offender is convicted of both offences.
(b)For the offence of sexual intercourse with a person under the age of 16 (count 6 on the indictment) the offender is sentenced to imprisonment for 15 months from 7 February 2018 to 6 May 2019.
(c)For the offence of sexual intercourse with a person under the age of 16 (count 7 on the indictment) the offender is sentenced to imprisonment for 15 months from 7 November 2018 to 6 February 2020.
(d)The non-parole period expires on 6 February 2019.
(e)The offender is marked as a “Prisoner at Risk”.
| I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 2 March 2018 |
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