R v Bek (No 2)
[2019] ACTSC 324
•26 August 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v BEK (No 2) |
Citation: | [2019] ACTSC 324 |
Hearing Date: | 19 August 2019 |
DecisionDate: | 26 August 2019 |
Before: | Burns J |
Decision: | See [38]–[42] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – act of indecency – incest – whether subsequent offending to be treated as a prior conviction – relevance of delay where 28-29 years after offending conduct |
Legislation Cited: | Crimes Act 1900 (ACT) ss 92L(2), 92K(2) |
Cases Cited: | R v CC [2016] ACTSC 43 R v Djenadija [2015] ACTSC 207 R v KS [2018] ACTSC 220 R v Scheeren [2014] ACTSC 272 R v Trezise [2018] ACTSC 135 |
Parties: | The Queen (Crown) BEK (Offender) |
Representation: | Counsel M Howe (Crown) B Morrisroe (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 295 of 2018; SCC 296 of 2018 |
BURNS J
BEK, you appear before me today to be sentenced with regard to two charges of incest, contrary to s 92L(2) of the Crimes Act 1900 (ACT) (the Crimes Act), which each carries a maximum penalty of 15 years' imprisonment. You are also to be sentenced with regard to four charges of committing an act of indecency on a child between the ages of 10 and 16 years, contrary to s 92K(2) of the Crimes Act, each of which carries a maximum penalty of 10 years' imprisonment.
The Facts
Count 1 on the indictment (SCCAN 19/1936) was a charge of committing an act of indecency. These events occurred in the context of a family relationship. After the family had moved to Red Hill, the complainant was in bed one night with her bedroom door shut. You opened the door and entered her bedroom. You left the lights off and you proceeded to the left-hand side of her bed and you said, “You can be your mum for me tonight… Your mum won't give me any sex, so I'll come and touch you instead.” You pulled down the complainant's blanket and pulled her pyjama pants and underwear down near her ankles. You rubbed the complainant's genitals with two of your fingers in a circular motion. The complainant felt scared and started crying but not loud enough for you to hear her.
The complainant says in the Statement of Facts that she recalls that she was aged around nine years old when this act occurred. I note, however, that even though the Statement of Facts says that the complainant recalls being around nine years of age when this charge occurred, the charge against you alleges an offence when the complainant was over 10 and under 16 years of age. I will proceed on the basis that the complainant was at the lower end of that age range at the time that that offence was committed.
With regard to the objective gravity of that offence, I take into account the age of the child as being at the bottom end of the range for that offence. I also take into account that there was skin to skin contact but by hand only. I also take into account that this occurred in the complainant's home and, indeed, in her own bedroom where the complainant had a right to feel safe.
I also take into account, with respect to this offence, that it involved a significant breach of trust. You had been in a relationship with the complainant's mother for about
eight years at this time and, indeed, you had been married to the complainant’s mother for approximately four years. The only reason you had access to the complainant was because the complainant's mother trusted you. Undoubtedly because of the relationship between yourself and the complainant's mother and the complainant, the complainant herself also trusted you as an adult de facto parent figure. I would assess this as being in the mid-range of offences of this nature.
With respect to Count 2 (SCCAN 19/1937), that is a charge of incest, a further incident occurred at your Red Hill address. You were lying in bed in the bedroom you shared with the complainant's mother. You were naked and smoking a cigarette. There was a towel and an ashtray sitting next to you on the bed. The door to the room was open. The complainant walked passed the bedroom and you called her name and she entered the room. The complainant proceeded to fellate your penis. It finished with you ejaculating onto a towel. You told her not to tell anybody about the interaction. She left the room shortly after this.
In assessing the objective gravity of this offence, I take into account the age of the complainant. The complainant would have been 10 or 11 years of age at this time. I also take into account that there was penetration of the complainant's mouth by the penis but no ejaculation into her mouth. That still raises potential for sexual transmission of disease. I take into account that this occurred in the complainant's house which, as I have said, is a place where she should have been entitled to feel safe.
Breach of trust in cases such as these is really an element of the offence and so I do not take that into account as a matter weighing upon the objective gravity of the offence. In my opinion, this is an offence which falls within the mid-range of such offences.
Count 3 (SCCAN 19/1938) is also an act of indecency charge. Whilst you were living at Red Hill, you were employed as a cleaner at the Civic Swimming Pool. The complainant and her siblings sometimes accompanied you to the pool when you worked there. On one such occasion, the complainant accompanied you to the pool and swam while you cleaned. After you had finished cleaning, you and the complainant went to a change room. The complainant was wearing swimmers and you were wearing jeans.
You knelt on the ground and the complainant stood in front of you. You asked the complainant to pull down her pants so that you could touch her genitals. After she removed her pants you pulled your erect penis out of your jeans through your fly. You then touched the complainant's vagina with your fingers in a rubbing motion. At the same time that you were touching the complainant's vagina, you masturbated yourself.
The complainant, in the Statement of Facts, said that she recalled that she was aged about nine or 10 years old when this act occurred. As the charge is one which alleges an act of indecency upon a child over the age of 10 years, I will assume that she was towards the lower end of the range that is encompassed within the charge.
With respect to the objective seriousness of this offence, I take into account the age of the complainant. I also take into account the fact that there was skin to skin contact but, again, by hand only. I also note that as part of this offence you not only touched the complainant but you also masturbated yourself in front of her and, again, this was an offence which involved a significant breach of trust. I would assess this as being in the mid-range of such offences.
Count 4 (CC 18/5261), is again a charge of committing an act of indecency. On a day in late 1991 or early 1992 at the Red Hill address, you were alone with the complainant in the lounge room. You knelt in front of her while holding a black video recorder with both of your hands. You were fully clothed and the complainant had no pants on. The complainant lay on the ground approximately one and a half metres in front of you. You looked through the eyepiece of the video recorder and directed the complainant to rub her vagina with her fingers in a circular motion. The complainant complied with these directions. You also showed her what to do by using your hands to place her fingers onto her vagina and telling her to rub her vagina. The complainant recalls this act occurred when she was around 10 years of age.
Again, in assessing the objective gravity of this offence, I take into account the age of the complainant. I take into account that there was some physical contact with the complainant but limited to contact with your hand.
It is not clear on the Statement of Facts whether you did, in fact, make a video recording of this incident. I, therefore, proceed on the basis that you did not. However, your acts were calculated to make the complainant believe that she was being recorded or that this incident was being recorded and was, therefore, more humiliating. I would, assess this as being in the mid-range of such offences.
Count 5 (CC 18/5258) is a charge of committing an act of indecency and Count 6 (CC 18/5256) is a charge of incest. They are connected. On a day at the Red Hill address, the complainant walked upstairs and into the bedroom that you shared with the complainant's mother. You were lying in the bed. You kissed the complainant in an adult mouth-to-mouth act that went on for a minute or two and at that time you were only wearing underwear. That is the basis of the charge of committing an act of indecency (Count 5).
You then laid the complainant on the bed and pulled her onto the bed. You pushed the complainant's head towards your penis. The complainant was on her knees and you had your legs open and an act of fellatio then occurred. This was observed by the complainant's mother who was in the bathroom opposite the bedroom. This occurred during or near the Christmas period. The complainant's mother reported this to a social worker, and police were subsequently contacted.
With respect to the objective gravity of Count 5 (CC 18/5258), I take into account, again, the complainant's age. I take into account that there was some physical contact, but it was limited to kissing. I also take into account the duration of that contact. This was also a matter in which there was a significant breach of trust and which occurred in the complainant's own home. I would assess this, however, as in the lower range of such offences.
Turning to Count 6 (CC 18/5256), I take into account the age of the complainant, that it involved penetration of the complainant's mouth by your penis, but there is no evidence of any ejaculation having occurred. This, again, raises the potential for the transmission of disease. The offence also occurred in the complainant's home and, as I said before, I accept that breach of trust is effectively an element of this offence so that I do not take that into account in assessing the objective gravity of this offence. I would assess this offence as being in the mid-range of such offences.
I note with respect to all of the offences that there is no evidence of significant premeditation or preparation. However, it appears that you have treated the complainant as your property, as someone who you were entitled to use sexually as you pleased.
After the final offence, as I have already said, police became involved and commenced an investigation. The complainant moved to Sydney to live with her biological father. Her biological father would not consent to her being involved in any prosecution due to his concerns as to the effect of the trauma of any such involvement upon the complainant. The investigation recommenced in 2016 when the complainant, now an adult, contacted the Australian Federal Police.
Subjective Features
I will now turn to your subjective features. You are 56 years old but you were 27 or between the ages of 27 and 29 years old at the time of these offences. You have a prior criminal history but you were not recorded for sexual offending prior to these events. I do note that you were subsequently convicted of sexual offences involving children in Queensland in 2003 and sentenced to a term of 18 months' imprisonment which was suspended after serving three months. This is not to be treated as a prior conviction, but it is relevant as it demonstrates that the present charges were not isolated events. As the events the subject of the present charges were unknown to the Queensland Court, you obtained a more lenient sentence as the sentencing Judge accepted that your conduct in those offences was out of character for you. I do take into account that there have been no subsequent criminal convictions recorded against you after you were released from custody with respect to those matters in Queensland.
A Pre-Sentence Report was prepared for the sentence hearing. You were born in the Australian Capital Territory and you are one of three children. Your mother and father are now deceased. They separated in 1975, when you were 12 years old, after the death of your then 15 year old brother in a motor vehicle accident. You have little ongoing contact with your sister but, as I understand it, she is apparently quite ill at the present time. You are currently in a long-term supportive relationship which has produced three children. You are also a parent to your partner's two children from a previous relationship. You will be able to return to live with your partner and your family once you are released from custody.
You left school during Year 9 to care for your mother prior to her death. You did not subsequently return to any formal education. You have been employed in the construction, baking and cleaning industries in the past, but for the past 18 years you have been in receipt of a mixture of government benefits. You are residing in government housing but your family is likely to be evicted from that housing if you are unable to return to that property in the next few months because, as I understand it, you are the person who is on the lease with respect to that property. The Pre-Sentence Report does not identify any alcohol or drug issues that need to be addressed.
In 2003 or 2004 you were assaulted and suffered a head injury. You told the author of the Report that this has affected your memory. There was, however, no medical evidence presented to support this claim. You told the author of the Report that you cannot recall the present offences. In the absence of medical evidence supporting the proposition that your memory of these events may have been affected by the head injury you claim to have suffered in 2003 or 2004, I find this claim most improbable.
You entered pleas of guilty to these charges on 24 June 2019, although you had indicated that you would plead guilty on or shortly after 9 May 2019. This came at about the time that I ruled that the Crown could lead tendency evidence at your trial. Your trial was listed to commence on 24 June 2019.
You had initially appeared in the ACT Magistrates Court on 25 June 2018. You entered pleas of not guilty to these charges and on 23 July 2018, you were committed for trial on 19 November 2018.
It is difficult to assess the degree to which you feel remorse for these offences. I accept that your pleas of guilty demonstrate some remorse. I also accept that they have significant utilitarian value. I will reduce the otherwise appropriate sentences by approximately 15 percent in order to reflect your pleas of guilty. I have, of course, taken into account the fact that your pleas of guilty have meant that the complainant was not required to give evidence.
You expressed a degree of understanding of the harm done to the complainant to the author of the Pre-Sentence Report. Your counsel advised me that you have some ongoing health issues, but they may be adequately addressed in custody.
These offences occurred approximately 28 or 29 years ago. Since you were imprisoned in Queensland in 2003, you have not re-offended and you have helped raise the children of your present partner and the children of that relationship. This suggests that you have effectively rehabilitated yourself over that period.
Delay in having this matter brought before the Court and having you sentenced is relevant. That is not a criticism of the complainant. It is perfectly understandable that the complainant may not have felt able to address these matters until the time that she did. However, I must take into account the question of delay as it is relevant on a number of matters. You are now subject to the potential of imprisonment as an older man, which makes imprisonment more difficult than if you had been imprisoned at the time or shortly after you committed these offences. I do note, however, that there is no real evidence that this matter has been weighing on your mind for any significant period of time during those 28 or 29 years.
Further Considerations
It is hardly necessary to repeat the often stated proposition that all sexual offences involving children are serious. The community regards such offences as most serious criminal offending, as is demonstrated by the maximum penalty for these offences. I reiterate what I said in R v CC [2016] ACTSC 43 at [39]-[40], [42]:
Sexual offences involving children and particularly incest are rightly regarded by the community as odious. Offences of incest or sexual offences committed by a parent or a step-parent towards their child involve a significant breach of trust. Indeed, it is difficult to contemplate a more complete breach of trust. Children trust their parents and they learn about the nature of our world including what is considered right and wrong from observing their parents.
Incest and other sexual offending against your child is calculated to cause confusion in the child, to warp their understanding of what is considered right and wrong and to lower their estimation of the fundamental social unit, the family, as a place of love and safety. Such offences are also apt to cause grave and long-lasting psychological damage. As such, these offences cause great harm, not only to the particular complainant but also to our community and its social institutions and values.
…
The community looks to its courts to assist in the protection of children and community institutions and values by passing sentences that reflect the community's disapprobation and that deter offenders or would be offenders from similar offending. Rehabilitation of offenders is always a relevant sentencing consideration but in offences of this type punishment and deterrence generally have greater weight.
I should note, at this point, that it is quite clear that these offences have had a very significant impact upon the complainant. The Victim Impact Statement, which was tendered as part of the Crown tender bundle, speaks eloquently of the continuing impact that the offending has had upon the complainant and one suspects that it is likely to remain as a factor affecting the complainant for the rest of her life.
I have not been provided with any data to enable me to determine what the relevant sentencing pattern was for these types of offences in the period of 1990 to 1992. I have had regard to a number of decisions in which sentences have been imposed for historical sexual offences including R v Djenadija [2015] ACTSC 207; R v KS [2018] ACTSC 220; R v Scheeren [2014] ACTSC 272; and, R v Trezise [2018] ACTSC 135.
It has been conceded that a sentence of full-time imprisonment is inevitable with regard to these offences. That concession is rightly made. The most significant sentencing considerations for these offences are general deterrence, the need to mark the community's disapproval of your conduct, and the need to reflect the harm done to the complainant by this conduct.
I accept that individual deterrence does not assume significant weight in this matter, bearing in mind the fact that the offences occurred so long ago and the fact that it has been many years now since you committed a similar offence. I am, however, satisfied that no sentence other than immediate terms of full-time imprisonment are appropriate.
I take into account the need to address totality which is made more difficult in this case because the dates of the particular offences are unclear. I will err on the conservative side in that regard. I will mark your rehabilitation and other subjective features by a shorter than usual non-parole period.
Sentence
On Count 2 you are convicted. You are sentenced to two years and one month imprisonment, which I have reduced from two years and six months' imprisonment because of your plea of guilty, commencing on 24 June 2019, which was the date you were taken into custody, and expiring on 23 July 2021.
On Count 6, which is the second charge of incest, you are convicted and also sentenced to two years and one month’s imprisonment, again reduced from two years and six months' imprisonment to mark your plea of guilty. That will commence on
24 June 2020 and expire on 23 July 2022.
With respect to Counts 1, 3 and 4, you are convicted and on each count you are sentenced to 15 months' imprisonment, which I have reduced from 18 months’ in order to reflect your pleas of guilty. Such sentences are all to commence on 24 October 2021 and expire on 23 January 2023.
With respect to the remaining count, Count 5, you are convicted and sentenced to
five months' imprisonment, which I have reduced from six months to reflect your plea of guilty, commencing on 24 October 2021 and expiring on 23 March 2022.
The aggregate sentence which I have imposed is one of three years and seven months' imprisonment, commencing on 24 June 2019 and expiring on 23 January 2023. I set a non-parole period of 18 months commencing on 24 June 2019 and expiring on
23 December 2020.
| I certify that the preceding forty-two [42] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Burns. Associate: Date: |
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