R v Barrantes
[2019] ACTSC 381
•8 November 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Barrantes |
Citation: | [2019] ACTSC 381 |
Hearing Date: | 8 November 2019 |
DecisionDate: | 8 November 2019 |
Before: | Burns J |
Decision: | See [20] – [23] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – plea of guilty – act of indecency in the presence of a person under 10 years – CCTV footage of incident occurring in a public place – reasonable prospects for rehabilitation |
Legislation Cited: | Crimes Act 1900 (ACT) s 61(1) |
Cases Cited: | R v AT (Unreported, Supreme Court of the Australian Capital Territory, Ross J, 9 May 2014) |
Parties: | The Queen (Crown) Miko Nino Barrantes (Offender) |
Representation: | Counsel V Wei (Crown) A Fraser (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Armstrong Legal (Offender) | |
File Number: | SCC 220 of 2019 |
BURNS J:
Miko Nino Barrantes, you have entered a plea of guilty to one charge of committing an act of indecency in the presence of a person under the age of 10 years old (CAN 6056/2019). That is an offence contrary to s 61(1) of the Crimes Act 1900 (ACT) and carries a maximum penalty of 12 years’ imprisonment. Your plea of guilty was entered in the ACT Magistrates Court and you were committed for sentence to this Court.
In this Court, you have maintained your plea of guilty. I accept your plea of guilty was at an early time, and as such I propose to reduce the otherwise appropriate sentence with respect to this offence by 25 per cent. Certainly, your plea of guilty had a very significant utilitarian effect. It also meant that the victims were not required to give evidence in this matter.
I have had the opportunity to view a Closed-Circuit Television (CCTV) recording of the offence. That recording shows that at about 3.30 pm on 14 December 2018, you were at the Coles store at Amaroo in the Australian Capital Territory. You were observed by a Coles staff member to be following an unidentified female customer who was shopping in the store with her three young children.
You took a seat outside the cash register area on a bench seat. You were seated near the cash register, where this unidentified female with the three children came to pay for her groceries. Whilst you were seated on the bench, the three children, to whom I previously referred, moved around in the area between the bench on which you were seated and the cash register where the adult female, I presume it was their mother, was paying for her groceries.
On occasions the children sat on the bench next to you. On other occasions they moved away towards where their mother was paying for the groceries. You were wearing a green, high visibility T-shirt which was not tucked into the pants that you were wearing at the time. When you sat down it covered your groin area. You placed your hand underneath the T-shirt and began to move your hand up and down.
At the same time, you were also jiggling your legs up and down. I am quite satisfied that at that point you were engaging in a form of masturbation. It is now accepted, as stated by your Counsel, that you were rubbing your penis on the outside of your clothing. Having seen the CCTV footage I am satisfied that your attention was focused upon the mature female who was paying for the groceries. I am satisfied that your attention was not directed towards the children as they came and went in that area.
I am further satisfied that that woman was unaware of what you were doing and that the children were also unaware of the sexual nature of your actions. Certainly, the children gave no indication that they perceived that there was anything wrong and, more importantly, nor did the children's mother. She, from time to time, looked in your direction as the children were seated nearby and she took no actions to try and remove them from your presence. That, as I indicated in argument with Counsel, is really a matter of good fortune. Your conduct was highly reckless in the sense that you were engaging in an act for sexual self-gratification in a public place, in the presence of a number of young children.
As I stated above, it is more good fortune than anything else, and possibly because of their age, the children did not recognise the sexual nature of what you were doing. In determining the objective seriousness of this offence, I also take into account not only that it occurred in a public place, but that it continued over a number of minutes and that it was clearly a deliberate action on your part to provide yourself with sexual gratification. I accept that there was no exposure of your penis to any other person at that time. However, objectively speaking, it appears to me that this is still a relatively serious example of this type of offending.
Subjective features
I note that you have no previous convictions, and that is a matter which entitles you to a degree of leniency with respect to this matter. I have the benefit of a Report from a psychologist and I take into account the contents of that Report, although I will not go through the Report in detail. I am satisfied, having read the Report, that you attempted to minimise your role in regard to this offence when you were dealing with the psychologist by suggesting that in fact it had simply been a misinterpretation of what you were doing at the time and that there had been no sexual activity on your part.
I note with regard to the report of Marshall O'Brien, the clinical psychologist, that he found that you did not suffer from any psychopathology and any personality characteristic that was likely to lead to criminal behaviour. Mr O’Brien also found your behaviour did not conform to the paraphilic disorders as defined by the DSM5, including exhibitionist disorder and paedophilic disorder. In other words, there is no psychological explanation for your conduct.
Your conduct must be seen simply as a deliberate choice by yourself to engage in this type of unacceptable behaviour in a public place. I note that Mr O'Brien recommended that you be required to undertake counselling and supervision with an appropriately qualified and experienced professional over a significant time, to focus you on becoming more aware of your behaviour, and to encourage you to take up a more responsible and autonomous lifestyle. In that regard, Mr O'Brien was clearly concerned, in my view, about your acceptance of responsibility for what you had done.
I also have the benefit of a Pre-Sentence Report. I note that you are 25 years old. I take into account the background matters that are set out in that Report. It is again of significance that you told the author of the Report that you did not agree that you were committing any act of indecency. However, you understood how it could have been depicted on CCTV footage. In other words, you said to the author of the
Pre-Sentence Report that you understood how your apparently innocent conduct could have been misinterpreted. I am satisfied that this again was an attempt by you to minimise your role with regard to this offence and again reveals an unwillingness to take responsibility for what you have done.
The author of the Pre-Sentence Report assessed you as at low risk of general reoffending. However, you were assessed as moderate to high risk of sexual reoffending. You were also assessed as not treatment ready.
I take into account the testimonial provided on your behalf, dated 1 September 2019. The author of the testimonial described you as very upset and extremely embarrassed about the charge and they expressed the belief that you were sorry for what you had done. They describe you as generous and helpful to your family and friends. They also describe you as being a serious, hardworking and trustworthy person. It is clear from the testimonial that they believe that this conduct is out of character for you.
Further considerations
Your Counsel referred me to a number of decisions of this Court in which offences under the same provision have been dealt with. In my opinion, none of those are particularly useful when sentencing you with respect to the present matter. In particular, the decision in R v MG [2015] ACTSC 37 is of a very different character because the offender's actions in that case were not sexually motivated and it was described by Murrell CJ in sentencing as being an exceptional case. In addition, the offender had only just turned 18 years of age.
In R v AT (Unreported, Supreme Court of the Australian Capital Territory, Ross J, 9 May 2014) the offender in was 13 years of age and as such, was subject to the sentencing considerations that are appropriate with respect to juveniles. It was also acknowledged by the sentencing judge that greater emphasis needed to be placed upon prospects for rehabilitation. The circumstances relating to the offenders and offences in the other matters to which I was referred, also are not particularly useful as comparators with respect to the present matter.
If a sentence of imprisonment is imposed with respect to this matter, even a suspended sentence, you will be required to be registered, as I understand it, under the
Sex Offenders Register. Even if a sentence of imprisonment is not imposed but a sentence is imposed which requires you to be placed under the supervision of
ACT Corrective Services then again, as I understand it, you will be required to be registered under the Sex Offenders Register. In determining whether or not to impose a sentence of imprisonment, the outcome of liability to be placed on the
Sex Offenders Register cannot be given any significant weight.
The question must really turn upon the objective seriousness of the offence and, to a lesser extent, upon your subjective circumstances. In my opinion, a term of imprisonment is warranted with respect to this offence for the reasons that I have given in relation to the objective seriousness of the offence. Whilst you have taken some steps towards rehabilitation, notably by seeing Mr O'Brien, these are early steps. In addition to this, you have not fully accepted your culpability when you were engaged with Mr O'Brien.
Clearly, you continue to have a need for counselling in order to address the risk that you may present to others. It is difficult to determine the precise nature of that risk because you have not been entirely frank with those people who have interviewed you; in particular, Mr O'Brien and the author of the Pre-Sentence Report.
Sentence
My starting point in relation to this offence is a sentence of six months' imprisonment. I will reduce this by two months, although that is slightly longer than the ordinary
25 per cent discount, to one of four months' imprisonment. Bearing in mind your reasonable prospects for rehabilitation, I will not impose that as an immediate term of imprisonment.
You are convicted and sentenced to four months' imprisonment commencing today,
8 November 2019. That sentence will be wholly suspended and there will be a
Good Behaviour Order for a period of 12 months from today, 8 November 2019.
There will be a condition that you are to accept the supervision of
ACT Corrective Services for that period of 12 months, or such lesser period as deemed appropriate by your supervising officer.
You are to undertake such assessments, counselling or treatment as directed by your supervising officer. In that regard, I recommend that ACT Corrective Services direct you to continue counselling with an appropriate psychologist.
| I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: |