R v BI (No 4)
[2017] ACTSC 71
•21 March 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v BI (No 4) |
Citation: | [2017] ACTSC 71 |
Hearing Date: | 17 March 2017 |
DecisionDate: | 21 March 2017 |
Before: | Refshauge J |
Decision: | 1. BI be convicted of committing an act of indecency on TM between 30 September 1995 and 1 June 1996. 2. BI be sentenced for that offence to 12 months imprisonment to commence on 16 September 2015. 3. BI be convicted of committing an act of indecency in the presence of TM between 30 September 1995 and 1 June 1996. 4. BI be sentenced for that offence to four months imprisonment to commence on 16 August 2016. 5. BI be convicted of committing an act of indecency on BB on or about 5 January 2005. 6. BI be sentenced for that offence to six months imprisonment to commence on 16 December 2016. 7. BI be convicted of committing an act of indecency on OI between 23 January 2009 and 12 February 2012. 8. BI be sentenced for that offence to 10 months imprisonment to commence on 16 June 2017. 9. BI be convicted of committing a further act of indecency on OI between 23 January 2009 and 12 February 2012. 10. BI is sentenced for that offence to 12 months imprisonment to commence on 16 July 2017. 11. BI be convicted of attempting to engage in sexual intercourse with OI, who was, to your knowledge, your lineal descendant. 12. BI be sentenced for that offence to two years imprisonment to commence on 16 September 2017. 13. That is a total sentence of four years imprisonment. 14. A non parole period of two years be set to commence on 16 September 2015 and to end on 15 September 2017. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Sentencing – trial by jury – committing an act of indecency upon or in the presence of a person under the age of 16 – showing of pornographic material to a child – attempting to engage in sexual intercourse – attempting to commit a crime – incest – lineal descendant – no mitigation to an offence if a child is approaching the maximum age of the offence – loco parentis – aggravation through breach of trust – concurrency of sentence – general deterrence – sentenced to a period of imprisonment |
Legislation Cited: | Crimes Act 1900 (ACT), ss 61(2), 62(2), 92K(2) Crimes (Sentencing) Act 2005 (ACT), ss 7, 7(1)(g), 33, 50 Criminal Code 2002 (ACT), s 44 |
Cases Cited: | Barbaro v The Queen [2014] HCA 2; 253 CLR 58 Belbin v Bennett [2011] TASSC 23; 218 A Crim R 42 |
Texts Cited: | Tracey Booth, Accommodating Justice: Victim Impact Statements in the Sentencing Process (The Federation Press, 2016) |
Parties: | The Queen (Crown) BI (Accused) |
Representation: | Counsel Mr A Williamson (Crown) Mr M Kukulies-Smith (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Accused) | |
File Number: | SCC 64 of 2016 |
REFSHAUGE J:
While it is often said that the community speaks with one voice as to its abhorrence of sexual offences, such offences committed against children are regarded even more seriously. They steal from the young their innocence, prey on the vulnerable, and usually cause long-term seriously impairing disabilities to the victim.
Now appearing before me for sentence is BI, who was found guilty by a jury of six offences committed against three victims, for that is what they are as a result of the verdict of the jury, and who were all under the age of 16 at the time.
Five of the offences were offences of committing an act of indecency on or in the presence of the victim being a person under the age of 16 years, and one offence was an offence of attempting to engage in sexual intercourse with a person under the age of 16 who was, to BI’s knowledge, his lineal descendant, that is a charge of incest with a young person.
A number of the offences were committed between 30 September 1995 and 1 June 1996. One of the offences was committed on 5 January 2005 and the others between 23 January 2009 and 12 February 2012.
The legislation prohibiting these offences has changed over time and, of course, it is prohibition of the offences as enacted and in force at the time at which the accused has been found to have committed the offences that is relevant to determine the sentence that applies.
Committing an act of indecency upon or in the presence of a person who is under the age of 16 years was an offence prohibited until 2001 by s 92K(2) of the Crimes Act 1900 (ACT), as it was at the time the offences were committed, and was then and so is for present purposes, punishable by a maximum penalty of 10 years imprisonment. It is relevant that this is the same penalty that is now the maximum punishment for the equivalent offence under present legislation.
Committing an act of indecency upon a person under the age of 16 years committed between 2001 and 2009 was and is an offence against s 61(2) of the Crimes Act and was and remains punishable by a maximum penalty of 10 years imprisonment.
Committing incest with a person under the age of 16 years committed between 2009 and 2012 is an offence prohibited by s 62(2) of the Crimes Act which was and remains punishable by a maximum penalty of imprisonment for 15 years.
Under s 44 of the Criminal Code 2002 (ACT), a person who is convicted of attempting to commit a crime is, on conviction, punishable as if the attempted offence had been committed. Thus, for the offence of attempting to commit incest, BI is liable to the maximum penalty prescribed for the offence of incest.
The facts
In this case, the finding of guilt was made by a jury. It is necessary for me, therefore, to find the facts from the evidence given at the trial. The facts that I have to find must, of course, be consistent with the verdict of the jury. Where facts aggravate the offence, they must be found beyond reasonable doubt. Where BI relies on mitigatory facts, I need to find them on the balance of probabilities.
These principles have been set out and explained in Cheung v The Queen [2001] HCA 67; 209 CLR 1 at 12-14; [13]-[16]. I shall approach my task of finding the facts in this case in this way.
I circulated a draft of my findings of fact to counsel for each party and have adopted the amendment suggested and agreed by them, but, otherwise, no challenge was made to these findings. I have made some small editorial amendments to the circulated draft.
BI met DM in Wollongong and married her there, eventually settling in Canberra. They had three children together, including one of the complainants.
In September 1995, the younger brother of BI’s wife, TM, was sent to live with them in Canberra when he was 12 years old because of difficulties he was experiencing at home. He lived in Canberra for approximately six months.
On an occasion during this period, BI suggested to his wife that TM should stay with BI in his bed because they were waking up early the next morning to go to BI’s job at an upholstery shop in Fyshwick. Once they were in bed lying side-by-side, BI had his penis exposed and touched TM’s penis and bottom. He described this as “just sort of fiddling with me, touching me – fondling me, I guess”. It did not last for very long. He was not able to explain exactly where on his backside he was touched but “just around the general area”.
The second count involving TM was when BI took him to his work at the upholstery shop in Fyshwick on another occasion. BI showed him pornography on a VHS player which they had at the shop. TM said that there was a little room at the side of the shop with a small television and an in-built VHS player. He described about a dozen video tapes of pornography and, when everyone had left the shop leaving just TM and BI there, which may have been at the lunch break or at the end of the day, he put on one of the videos while they were having a break in the side room. BI and TM were, at the time, sitting next to each other and were fairly close.
The showing of pornographic material to a child has been held to be the commission of an act of indecency in the presence of a child: R v EH [2008] QCA 67 at [4]; R v Lam (No 3) [2014] ACTSC 362 at [15]. In principle, this is the same as the commission of sexual activity in the presence of a child, which has also been held to amount to the commission of an act of indecency in the presence of a child: R v Eisenach [2011] ACTCA 2 at [26]; R v Thomson(No 2) [2014] ACTSC 133 at [5]-[6]. There was no challenge to this interpretation of the count and, in my view, no such challenge would have succeeded.
The third offence also involved the showing of pornography but also involved touching of the victim. In this case, BI had arranged for the victim, BB, to mow his lawn. At some stage, he invited BB into his study and showed him some pornography on his computer. They were sitting close together and BI placed his hand on BB’s thigh.
The last three offences involved BI’s daughter, OI. The offences occurred sometime between 23 January 2009 and 12 February 2012.
BI collected OI from her mother’s house and took her home to his place where he made her dinner. After this, he spoke to his wife by Skype, as she was in Malaysia, and he then made OI have a shower. He made her completely undress. He also took his clothes off and washed her body with what OI described as a “shower puff”. He washed her all over, including her legs, arms, torso, back, and genital area. This was the first count of committing an act of indecency on a young person, namely his daughter.
When she had dried herself after the shower, OI then got into her pyjamas and got into BI’s bed. She thought that this was because he told her to do so but she did not really recall it.
At some stage, BI got into bed with her. He was wearing no pants, so she could see his penis. He then made OI put her hands on his penis which she did. This was the second count of committing an act of indecency on his daughter.
BI then tried to force OI to put her mouth over his penis by pushing her head down towards it. He was, however, not able to do that because she refused. He encouraged her verbally saying, “Come on ... just a little bit”, but she kept saying, “No” and, in the end, he gave up. This was the offence of attempting to commit incest.
The offences came to light when DM became violently ill in September 2015 and was admitted to hospital. It was feared that she might die from the illness and OI was concerned that her younger sister may have to go and live with her father, BI, and that, if this was so, her sister might be sexually assaulted as she had been. She disclosed this to a family friend who told the police.
When he heard about the disclosure, TM also came forward and disclosed the offences involving him.
The offences
The maximum penalties show that the offences are to be treated as serious, though, of course, the precise circumstances of each offence is relevant to determine the relative seriousness of the offence: Ibbs v The Queen (1987) 163 CLR 447 at 451-2.
A number of matters of importance to the seriousness of the offences have been set out in R v PGM [2008] NSWCCA 172; 187 A Crim R 152 at 159-161; [31]-[36]. I have regard to those that are relevant. One of those matters is the age of the victim.
TM was born in 1983, making him 12 or 13 during the relevant period of the offences.
BB was born in 1991 and was 13 years old at the time of the offence committed against him.
BI’s daughter, OI, was born in 1997 and so was between 12 and 15 at the time the offences against her were committed. That means, at the outside, the offences against her were committed at a time when she was approaching the maximum age for the offence, namely 16 years. Two things need to be noted about that. In the first place, incest, that is sexual contact with a lineal descendant, is an offence; it is a more serious offence, judged by the maximum penalty, when the victim is a child. Secondly, it is not a matter of mitigation that a child is approaching the age of 16 years. As I pointed out in R v Goboly [2016] ACTSC 322 at [60]-[62], the position is that the younger the age of the victim represents a more serious version of the offence; greater youth can be a matter of aggravation. The proximity to the age of 16 years is, however, not a mitigatory factor for sentencing purposes.
The younger of the age range for his daughter and the ages of the other children renders the offences more serious.
The disparity in the ages of victim and offender is also a matter of significance as it is some measure of the seriousness of the abuse. See Deering v Western Australia [2007] WASCA 212 at [18]. In this case, the age differences were significant – for the offences against TM: 18 years; for the offence against BB: 18 years; and for the offences against OI: 22 years.
Further, there was a serious betrayal of trust in relation to the offences against TM and against OI. BI was, of course, the father of his daughter and that brought an obligation of trust and protection rather than a case of him preying on her. In the case of TM, BI was in loco parentis as he had accepted the obligation to look after the boy and, again, had an obligation to protect him, not to prey on him. These were positions of trust, the breach of which constituted a circumstance of aggravation: OH v Driessen [2015] ACTSC 148.
These matters certainly aggravated the seriousness of the offending.
It is appropriate to make some brief comments as to some of the individual counts. In relation to the counts of which TM was the victim, there was a relatively low level of pre-meditation in the commission of the first offence, for BI engineered the circumstances in which the offence was able to be committed by arranging to take TM to his work early the next morning, thus, apparently justifying he and TM sleeping in the same bed.
It was also submitted that TM was vulnerable because he was a troubled child. There is no doubt he was troubled, but looking carefully at the evidence that he and his mother gave in the trial, I am not satisfied that it made him more vulnerable than another 12 or 13 year old.
In relation to the two counts involving the showing of pornography, I did not have any details of what was shown to either TM or BB, though BB described it as “[j]ust normal porn ... just a guy and a girl”. TM did give some evidence about the pornographic videos in the upholstery shop and his description showed that there was some more seriously indecent material, but much of it fitted BB’s less serious description. As an aggravating feature for sentencing purposes must be proved beyond reasonable doubt, I am not satisfied that the pornography showed to either TM or BB was of a more serious kind.
I accept that touching to or of the genitals is a more serious form of committing an act of indecency: R v SH [2015] ACTSC 25 at [24]; R v Thomson (No 3) [2015] ACTSC 379 at [24].
The offence of attempted incest was clearly the most serious of the offences. That is clear from the maximum penalty which is, of course, reflective of the nature of the offence. It is said that the “conventional approach” is that an attempt to commit an offence is to be treated as less serious than the completed offence, even if there is no lower statutory maximum penalty provided for the attempt: McKeagg v The Queen [2006] WASCA 26; 162 A Crim R 51 at 55; [21], 60; [55].
I have considered a number of authorities, including R v McQueeney [2005] NSWCCA 168 and “C” v Western Australia [2006] WASCA 261, both cited by the Crown prosecutor. While they are not all entirely consistent, I find that the authorities seem to establish the following principles:
1. The “conventional view” is that an attempt to commit an offence will likely attract a lesser sentence than would the offence had it been completed: FV v The Queen [2006] NSWCCA 237 at [60]; Taouk (1992) 65 A Crim R 387 at 390; Noble (1994) 73 A Crim R 379 at 381; R v Schofield (2003) 138 A Crim R 19 at 33; [61]; McKeagg v The Queen at 55; [21], 60; [55]; Mokbel v The Queen [2011] VSCA 34; 211 A Crim R 37 at 47; [43]; Tai v Western Australia [2016] WASCA 234.
2. That may particularly apply where the attempt is inept, the attempt could not physically succeed, or is doomed to fail: Taouk at 390; R v Schofield at 57; [139]; Couloumbis v The Queen [2012] NSWCCA 264 at [37]-[39]; R v Haidar [2004] NSWCCA 350 at [36]; Potts v The Queen [2017] NSWCCA 10 at [15]. Some authorities, however, suggest that this may make no difference: R v Spaull [1999] VSCA 18 at [11].
3. The “conventional view” will not invariably apply and, especially in the case of drug offences, it is often regarded that the attempt is as serious as the completed offence: R v Haidar at [31]-[35] and the case there cited; Tai v Western Australia at [31].
4. Nevertheless, the attempt to commit a serious offence remains a serious offence: Taouk at 390-1.
5. There is no clear relationship between the seriousness of the intended consequences that would follow from the substantive offence if completed and the real prospects of achieving them though the relationship must be considered: Taouk at 391; R v McQueeney at [25].
6. Thus, where the attempt is a grave one, carried out with sophistication where it is likely to succeed in effecting the substantive offence, the attempt may be punished as severely as a completed offence: Taouk at 391; R v Schofield at 57; [139].
7. It is relevant that, if the attempt is not completed, the harm caused by the substantive offence, a very relevant factor on sentence, will not have been caused: Irusta [2000] NSWCCA 391; 117 A Crim R 6 at 16; [47]; R v Falls [2004] NSWCCA 335 at [19]; Potts v The Queen at [15].
8. Other factors relevant to reducing the seriousness of the attempt to commit an offence may include where the conduct which constitutes the attempt only shows a change of the offender’s mind: R v Falls at [19].
9. It is, however, not mitigating where the charge of attempting to commit the offence rather than committing it is because the substantive offence has not been completed through “good fortune”: “C” v Western Australia at [22]; or through the intervention of law enforcement agencies: R v Mihalo [2002] VSCA 217; 136 A Crim R 588 at 596; [40]; R v Mokbel at 47; [43]; Reid v Western Australia [2012] WASCA 23; 210 A Crim R 587 at 594; [45].
10. In the end, as most of the authorities point out, the seriousness will, as in the case of most offences, depend on all the circumstances of the case. See also Dooling v Western Australia [2012] WASCA 95 at [8]; Lovett v Western Australia [2013] WASCA 78 at [15].
It is clear that OI expressly refused to engage in incest and this is also an aggravating feature of the offending: Clarkson v The Queen [2011] VSCA 157; 212 A Crim R 72 at 82-3; [36]-[37]. On the other hand, that BI desisted from the attempt to engage in incest because of her resistance does reduce the seriousness of the offence to some extent.
While an offender may lead evidence to rebut the harm that a victim may suffer, the law presumes that a child victim will suffer significant harm from being exposed to or required to engage in sexual activity at a young age. See Clarkson v The Queen at 82; [33].
These were, it is clear, serious versions of the offences charged.
Subjective circumstances
BI’s wife gave evidence before me and I had a Pre-Sentence Report and several references. From this material and counsel’s submissions, I can make the following findings.
BI was born in Lebanon in 1965, one of six children and described his childhood in positive terms.
He came to Australia in about 1993 to escape the war in his home country and its negative political environment. He has a sister who lives in Australia, while his four brothers remain in Lebanon. His parents are now deceased.
BI completed Years 11 and 12 of schooling while serving his compulsory military service in Lebanon.
When arriving in Australia he started employment in seasonal and casual work and has worked consistently since then. In 2000, he established a commercial cleaning company which principally had commercial cleaning contracts. Since his arrest, the business has been conducted by his wife and eldest son. It appears that at the time of his arrest, it was a thriving business with 42 clients and 20 staff. Since then, despite the best efforts of his son, who, unfortunately, lacks the same experience as his father, the business now is not doing as well, with only 16 clients and five staff.
He met his first wife in Wollongong in about 1989 and they married both under Australian law and under Islamic law. The marriage went through something of a rough patch and they then divorced under Australian law in 1992 or 1993, but remained married under Islamic law and custom.
Sometime later, they reconciled and resumed living with each other, but, after 13 years, the relationship ended. The marriage produced one son and two daughters, the eldest daughter being one of the victims of the current offences.
The children have been subject to the involvement of Child and Youth Protection Services since 2005 as a result of multiple reports of alleged sexual abuse by BI and one incident of physical abuse by his first wife against their elder daughter.
BI, however, maintains a close relationship with his eldest son who often visits him in the Alexander Maconochie Centre. As I have already noted, BI’s eldest son currently operates the cleaning business with BI’s current wife.
BI is, however, estranged from the daughters of his first marriage. The younger daughter was taken into care on 16 September 2015 and remains in foster care.
In around 2002 or 2003, BI married his current wife. For a period of time, he was in a relationship with both his former wife and his current wife before the formal end of the earlier relationship in 2005. There are two children of the second marriage and both his wife and the children regularly visit BI at the Alexander Maconochie Centre.
BI’s second wife told me that, as a result of the allegations, which she first heard from Child and Youth Protection Services before charges were laid, she started a careful monitoring of his behaviour, especially around their children. She would monitor his phone and indeed described herself as “looking over his shoulder”. She also observed that, when her step-daughters visited, they seemed to show attachment to their father. She saw no signs of improper acts or misbehaviour.
Without being able to make definitive findings, it seems to me that it would be likely that BI would be aware of such scrutiny and unlikely that he would commit acts while under such scrutiny.
I note, however, that BI seems to have a good and positive relationship with the children of his second marriage.
BI has tried alcohol on one occasion but has not consumed since, particularly because of his religion’s view of the use of alcohol. He has not consumed illicit drugs.
BI has no chronic health issues, though he has received some treatment during the current remand period. He, perhaps unsurprisingly, found some difficulty in adjusting to the custodial environment when he was arrested and subsequently remanded in custody.
He experienced some suicidal thoughts related to grief over his mother’s death in 2011, but there are no other mental health concerns. He was found by police to be attempting suicide on 17 September 2015, though he denied that this was the case. He has been assessed as having no mood disorders or psychosis.
BI has maintained his innocence of these offences and has lodged an appeal against the current convictions. He has also declined to be assessed by Child and Youth Protection Services which may result in some problems for his relationship with his children when he is released from custody.
In the opinion of the author of the Pre-Sentence Report, BI appears to have multiple protective factors which include stable accommodation, employment and finance, and a lack of substance abuse issues. He has the benefit of a pro-social peer network and, indeed, some of his friends gave evidence in the proceedings. He does not participate in organised activities because of his work commitments. In my view, his likelihood of any further general offending is low.
His primary criminogenic risk is related to his unaddressed sexual offending and there is some concern about the apparent suicidal behaviours he has displayed at times of stress. His failure to take responsibility for his offending behaviour is regarded as manipulative and he has been assessed as at a medium risk of re-offending. That assessment in relation to sexual offending may be correct, though I suspect that his incarceration will, for him, act as a strong deterrent and that level of risk is a little high.
The author of the Pre-Sentence Report recommends that he undertake an intervention to address his sexual offending. That should be addressed by the Sentence Administration Board when considering him for parole.
The referees had all known BI for many years. They knew of the offences of which he had been convicted. That is, of course, an important matter to be stated in such references: Poole v Edwards [2016] ACTSC 159; 76 MVR 351 at 364; [100].
One of the referees, his nephew, described him as a “very loving and caring uncle” who was also “a father figure”. He was generous with assistance to all aspects of his upbringing and in providing help to him and to others when needed. That referee’s father, who also provided a reference, echoed those sentiments, adding that he was “unconcerned by [BI] having contact with his children”. The third referee was BI’s former employer and he described him as “considerate, efficient and dedicated to the well-being of others ... trustworthy”. He was well-regarded by other staff and considered a person of high integrity. He was well respected among his friends and was described as having “kindness and generosity ... unparalleled”. The fourth referee described the offences as entirely out of character, as did the others. He was described as having the respect of his community for which he had organised charities and fundraising.
BI has no criminal convictions of any kind.
His good character, which is more than just the absence of a criminal record, is of positive good character of the kind I described in Goundar v Goddard [2010] ACTSC 56; 240 FLR 176 at 184; [45]-[47].
The relevance of good character on sentence is a little complicated, but has been the subject of some detailed consideration in Ryan v The Queen [2001] HCA 21; 206 CLR 267. The majority there held that an offender’s character should not be regarded as a
“one–dimensional feature” and that, even in that particular case where a priest committed sexual abuse of children, it had some, albeit limited role to play. It could not be ignored. This approach has been followed, as would be expected, by intermediate courts of appeal: SD v The Queen [2013] VSCA 133; 39 VR 487 at 494; [30]-[31]; R v Knoote-Parke [2016] SASCFC 37; 125 SASR 13 at 27-8; [76]-[77]; Medcalf v The Queen [2016] NSWCCA 209 at [30]-[31]; R v Fowler [2007] ACTCA 4 at [12], [14].
In particular, good character can help to determine the prospects of rehabilitation and of re-offending: R v Knoote-Parke at 28; [77]. It is also important not to diminish the role of good character even where the breach of trust that the offences constitute is a factor of aggravation: Wakim v The Queen [2016] VSCA 301 at [26].
Here, BI is entitled to some limited benefit for his positive good character. I also assess that, despite his denial of the conduct and his lack of co-operation with Child and Youth Protection Services, he is not very likely to re-offend.
I had the opportunity of observing him during the trial and in giving evidence and, together with the evidence on sentence, I am satisfied that there is, in his case, whatever the statistical tests suggests – and they are never absolute, that he is at a low risk of re-offending.
Victim Impact Statements
I had Victim Impact Statements from each of the victims. OI read hers out in open court as she was entitled to do: s 50 of the Crimes (Sentencing) Act 2005 (ACT). OI described the offending as having “changed the course of [her] life”. She started to lose friends, lie to gain attention, engage in self-harm, consume illicit drugs and alcohol, and truant from school. She engaged in risky behaviour with males and was unable to form ongoing relationships. Her relationship with her mother deteriorated. She expressed despair and feelings of worthlessness.
As I have noted above (at [42]), the courts do understand the harms such offences cause. See also R v Gavel [2014] NSWCCA 56; 239 A Crim R 469 at 483; [110]; Diaz v The Queen [2013] NSWCCA 277 at [62]; VIM v Western Australia [2005] WASCA 233 at [291].
The Victim Impact Statement, however, brings a picture of the personal and the particulars into the Court’s more general understanding of such harm and the, perhaps clinical, picture of what the victim has suffered, not to incite an improper or unfair emotional response but to give the human victim a proper and fair place in the sentencing process as effectively mandated by s 7(1)(g) of the Crimes (Sentencing) Act.
Nevertheless, there are problems and challenges with such material. Though not sworn and rarely subject to cross-examination, the Victim Impact Statements mandatory admission would, it appears, give such material a somewhat similar status to that given to unsworn evidence in the general approach of the High Court to such evidence in R v GW [2016] HCA 6; 90 ALJR 407 at 418; [56].
Mr M Kukulies-Smith, who appeared for BI, submitted that I should, however, be cautious about the use of this evidence, especially if relying on it for proof of aggravated harm. This was because OI’s mother had been convicted of arson of the family home: R v DM [2016] ACTSC 179. He submitted that this event would have also caused OI some harm. I read the passages to which my attention was directed and accept that OI was directly exposed to the arson, which the Court found her mother had committed.
That may have had an impact on OI; it seems likely that it did. I have, however, no material to identify what that may be, how serious or long lasting it may be, or its relationship with the harms described in the Victim Impact Statement. There is nothing in the sentencing remarks relating to DM that refer to any harm to OI: R v DM (No 2) [2016] ACTSC 385.
The courts have expressed a need for some caution in their acceptance of statements made in Victim Impact Statements. Crawford J in Belbin v Bennett [2011] TASSC 23; 218 A Crim R 42 at 48-9; [37]-[39], has referred to a number of decisions including his Honour’s own earlier remarks, which usefully set out the need for restraint by judicial officers. This may be particularly so where issues of psychiatric causation, diagnosis, and prognosis are involved, where a lay opinion cannot necessarily be accepted as reliable and where the harm is such that it goes well beyond that which could be expected from the offence: R v Tuala [2015] NSWCCA 8; 248 A Crim R 502 at 513-5; [54]-[59].
The difficulties with Victim Impact Statements have been carefully identified and evaluated in the helpful, thoughtful and comprehensive analysis by Tracey Booth, Accommodating Justice: Victim Impact Statements in the Sentencing Process (The Federation Press, 2016) at Ch 2.
When the harm stated in such reports is not accepted by the accused, it is, as Fryberg J pointed out in R v Evans & Pearce [2011] QCA 135; 2 Qd R 571 at 580; [31], required that defence counsel discharge their duty to deal with the contents of such reports in their client’s interests and not simply consent to the tender or stay silent about its contents. See also R v Singh [2006] QCA 71 at 8, apparently approved in R v Margaritis [2013] QCA 401 at [37]. To some extent, this is what Mr Kukulies-Smith did.
On the material before me, however, I cannot say that the harm described by OI is such that it is beyond what might be expected from the offences, though it is undoubtedly greater than in many cases. I am also unable to identify how and to what extent the offence of arson committed by her mother has affected her; though I accept, that there may well in that experience have been an aggravation of the trauma that OI had already suffered from these offences, especially as I had no countervailing submissions about that from the Crown prosecutor. I will, as the authorities suggest, treat OI’s Victim Impact Statement with caution but accept that the offences did cause OI harm of a significant kind.
It appears that OI has had no professional help which would be likely to be of great assistance to her. The trauma she has experienced is very challenging and the Court expresses its sympathy to her and its hope that she will be able to overcome the significant difficulties she is facing.
The Victim Impact Statement of TM, similarly, shows significant ongoing effects, though these do seem significantly greater that is to be expected from the offences of which BI has been convicted. As Mr Kukulies-Smith pointed out, TM was already a troubled young man when he arrived in Canberra and it is not clear, without expert evidence, how that pre-existing circumstance has interacted with the effect of these offences. Nevertheless, it is clear that he has been affected and I take into account that it is in a significant way.
The Court does note that TM has been able to overcome many of the challenges he faced; he has conducted his own business and has been caring for his mother which clearly gives him some satisfaction. While it took time to get there, he is, as he described it, “living [his] own dream”. The Court expresses its sympathy to him and it hopes that the apparent turnaround will continue and develop.
The Victim Impact Statement of BB also shows significant impacts on him. He became scared of meeting BI and this limited his freedom of movement. He felt unsafe around older males and this meant he missed a lot of his schooling. He also lost trust, a not uncommon experience, especially when he was not believed, also a common experience. He still feels the effects. Again, it would be helpful were he to seek professional assistance but the Court expresses its sympathy to him for what he has suffered.
Sentencing Practice
Both counsel provided helpful decisions that were suggested to be of some assistance in the task of identifying sentencing principles and reviewing comparable cases. See Barbaro v The Queen [2014] HCA 2; 253 CLR 58 at 73; [38]. I shall deal with the decisions chronologically.
In R v Smith (Unreported, Australian Capital Territory, Supreme Court, Nield AJ, 4 September 2012), Mr Smith was convicted of five offences of committing an act of indecency on his stepdaughter, who was nine years old when the first offences were committed, and 12 years and 10 months when the last was committed on her. He was found guilty after a trial.
There was a gross breach of trust, but some delay in prosecuting Mr Smith for which he was not responsible. The offences involved conduct over a period of over four years. He had no remorse. He had a dysfunctional childhood and was between 29 and 33 years of age at the time of the offences. He had a long criminal record. For the offence that involved him touching the breasts and genitalia of the victim with his hand and for putting the victim’s hand onto his penis, he was sentenced to 18 months imprisonment; for lifting the victim’s night dress and pulling down her pants, he was sentenced to 12 months imprisonment; and for the other offences nine months imprisonment. After considering totality, a term of imprisonment for three years was set, the first nine months to be served by full-time custody, the next nine months by periodic detention, and the sentence then suspended.
BI’s case is more serious because of the number of complainants and because there is no mitigation here for delay, though BI has significantly more favourable personal circumstances.
In R v Girvan (Unreported, Australian Capital Territory Supreme Court, Refshauge ACJ, 25 September 2013), Mr Girvan was convicted at trial of two counts of committing an act of indecency on the victim, who was the daughter of his brother with whom Mr Girvan lived. He made the victim touch his apparently erect penis on each occasion.
Mr Girvan was in his mid 50s at the time of the offences and the victim was between 10 and 12 years old. Mr Girvan had a positive upbringing and was employed. He had a prior conviction for aggravated indecent assault. The offences all occurred around the time he was made redundant following a work injury and this led to him feeling socially isolated. Mr Girvan was sentenced to 10 months imprisonment for each offence which, after taking into account totality, was a sentence of 13 months imprisonment to be suspended after three months.
I consider BI’s case to be more serious because of the number of complainants and the period over which the offences were committed, but the subjective circumstances are similar in both cases.
In R v Kelly (Unreported, Australian Capital Territory Supreme Court, Murrell CJ, 28 April 2014), Mr Kelly was found guilty at trial of five offences of committing an act of indecency on or in the presence of a child under 16 years of age. He entered a late plea of guilty to a further offence of the same kind.
Mr Kelly was 48 years old and the acts were committed against girls whom his daughter had invited to stay in his house. The offences involved seriously sexualised comments, with acts of touching the victims’ breasts and buttocks and touching the skin in their genital area, licking the vagina of a victim, though outside her clothes, and simulating oral sex.
Mr Kelly had a criminal history but relevantly the only sexual offence was one charge for possessing child pornography. He was separated from his wife at the time of the offending. He had been in employment but a disability prevented his ongoing employment. He tendered character evidence that was favourable.
He was sentenced to periods of imprisonment ranging from three months imprisonment to three years imprisonment which, after totality led to some concurrency, was a sentence of four years imprisonment with a non parole period of two and a half years.
This is probably the most comparable case, though there was a high risk of Mr Kelly
re-offending and BI’s subjective circumstances were more favourable. There was no offence of attempted incest.
In R v WR (No 4) [2015] ACTSC 211, WR was found guilty of six offences of committing an act of indecency on a child under 16 years of age. The victim was between 10 and 11 and WR was her stepfather. The offences involved WR making the victim touch his penis, simulating sexual intercourse with her, rubbing her buttocks under her clothes, and rubbing her vagina.
WR was 65 years old at the time. He had a history of traffic and gun offences, which were of no real significance for the sentence. He had been employed until prevented by injury. He was sentenced to nine months imprisonment on three of the counts and 18 months imprisonment on the others. After totality led to some concurrency, the total sentence was of four years and three months imprisonment with a non parole period of two years and six months.
There were some more serious aspects of this offending than in BI’s case and somewhat less significant subjective circumstances.
In R v Weir [2015] ACTSC 394, Mr Weir was found guilty of six offences of committing an act of indecency on or in the presence of the victim under the age of 16 years. The offences ranged from Mr Weir asking the victim to show him his penis, offering to have sex with him, touching the victim’s penis, causing the victim to run around naked, and other sexualised conversations.
Mr Weir had a minor criminal history. He was 43 years of age. The victim was the son of a neighbour and used to play in Mr Weir’s yard. Mr Weir had a difficult upbringing but a good employment history. The Court took into account hardship on Mr Weir’s children.
The sentences ranged from six months imprisonment to 30 months imprisonment, though the latter seemed at least at the top of the range for the offending. After totality led to some concurrency, the total sentence was four years and two months imprisonment and a non parole period of two years and six months.
The offences were not generally as serious as in this case, but the most serious was perhaps more serious than the acts of indecency of which BI was convicted because of the financial inducement provided and which was not present here. Mr Weir’s subjective circumstances were not as compelling.
Finally, in R v CC [2016] ACTSC 43, CC was convicted of five counts of incest and one count of committing an act of indecency on a young person under the age of 11 years. He pleaded guilty. The offences were committed on his stepdaughter. The act of indecency was the touching of the victim’s breasts.
CC was 34 years old and was adopted as a baby, but, when he was five years old, he returned to live with his grandmother and then his stepmother. He had a strict upbringing and experienced periods of homelessness. He was self-employed prior to his arrest and had a problem with alcohol and the use of cannabis. He was prescribed anti-depressant medication while on remand. He was assessed as of a low to moderate risk of re-offending. He expressed remorse.
For four of the counts of incest he was sentenced to three years imprisonment, for the other one count to three years and six months imprisonment, and for the act of indecency, 12 months imprisonment. After totality was taken into account, the sentence was of five years and nine months imprisonment with a non parole period of two years and 11 months.
These offences were significantly more serious and as there was a plea of guilty, the comparability of this case is very low.
Consideration
I have regard to the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act. There is no doubt that a primary consideration in a case such as this is general deterrence. Punishment is also significant as is the acknowledgement of the harm done to the victims as understood by the Court and informed by the Victim Impact Statements. In addition, it is important to denounce such crimes.
Having regard to BI’s denial of offending, specific deterrence is a significant issue, but I have already noted that the circumstances are such that I do not consider that it is likely that BI will re-offend. In any event, it is quite unlikely that BI will have any further contact with any of the victims.
Rehabilitation is obviously important but his denial of offending makes that difficult. It would be appropriate, however, that he participate in a sex offender program and I understand that there is a program for those who nevertheless deny their offending. It would be appropriate for BI to engage in such a program which, again I understand, can be commenced while in custody and, if uncompleted, he can continue it in the community until completion.
On the other hand, the protective factors in this case are strong: BI has good employment, a supportive family, no addiction or mental health issues, and a wide circle of friends who are honourable citizens. He has no criminal history.
BI’s plea of not guilty is not a matter of aggravation. The sentence cannot be more severe because he has chosen to deny the offences. Nevertheless, he is denied the statutory discount that a plea of guilty may and usually does attract.
It is, in this context, perhaps not irrelevant, that of the 21 charges laid against him, he was convicted of six.
I have regard to the matters set out in s 33 of the Crimes (Sentencing) Act. So far as I know them, they are contained in these reasons.
I note that BI has been in custody since 16 September 2015, that is to today some 553 days, very nearly 18 months. I consider that this period should be taken fully into account and I will do so.
The protective features are strong and important for the structure of the sentence.
I have set out the objective seriousness of the offences above as well as BI’s subjective circumstances. I take them into account. I consider that no sentence but a sentence of imprisonment is appropriate.
It was submitted that I should release BI on a suspended sentence with a Good Behaviour Order, having regard to the time he has served. Having given anxious thought to this question, I do not consider that this is appropriate, having regard to the seriousness of the offences, notwithstanding the very significant subjective circumstances of BI.
There are multiple sentences to be imposed. Accordingly, I have carefully considered the length of each sentence to ensure that when there are overlapping common elements between any offences, BI is not punished twice. This does not appear to be the situation here.
I have also considered whether the sentences should be partly or wholly concurrent because, for example, they are part of the same enterprise or otherwise. In this case, the offences committed against his daughter do seem to me to be contemporaneous and part of what might be called the same course of conduct. Accordingly, a significant level of concurrency is appropriate.
I have then reviewed the length of the term of imprisonment arrived at and ensured that the principle of totality is respected and that the total sentence is adequate to reflect the criminality of the offences committed, but not more than that, and that the total sentence is not crushing and leaves open the realistic prospect of reform and hope for the achievement of BI’s goals when he returns to the community. Where necessary to achieve this, I have adjusted the cumulation or concurrency of the individual sentences.
I am aware that a court must be careful not to give an impression that an offender can escape punishment for offences by committing multiple offences which are sentenced concurrently. See, for example, R v Harris [2007] NSWCCA 130; 171 A Crim R 267 at 276; [46], endorsing the comments of Sully J in R v Wheeler [2000] NSWCCA 34 at [36]-[37]. See also R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at 164-5; [18]. Nevertheless, the principle of totality is of great significance even if it means that some sentences may seem lenient or there seems no punishment for additional offending because of the need to ensure a proper proportion between the sentence and the total criminality of the offender in all the circumstances, including subjective matters: Beniamini v Craig [2017] ACTSC 30 at [179]-[183].
BI, please stand:
1. I convict you of committing an act of indecency on TM between 30 September 1995 and 1 June 1996.
2. I sentence you to 12 months imprisonment to commence on 16 September 2015.
3. I convict you of committing an act of indecency in the presence of TM between 30 September 1995 and 1 June 1996.
4. I sentence you to four months imprisonment to commence on 16 August 2016 that is to be cumulative as to three months on the first sentence.
5. I convict you of committing an act of indecency on BB on or about 5 January 2005.
6. I sentence you to six months imprisonment to commence on 16 December 2016 that is to be wholly cumulative on the second sentence.
7. I convict you of committing an act of indecency on OI between 23 January 2009 and 12 February 2012.
8. I sentence you to 10 months imprisonment to commence on 16 June 2017 that is to be wholly cumulative on the third sentence.
9. I convict you of committing a further act of indecency on OI between 23 January 2009 and 12 February 2012.
10. I sentence you to 12 months imprisonment to commence on 16 July 2017 that is to be cumulative as to three months on the fourth sentence.
11. I convict you of attempting to engage in sexual intercourse with OI, who was, to your knowledge, your lineal descendant.
12. I sentence you to two years imprisonment to commence on 16 September 2017 that is to be cumulative as to 14 months on the fifth sentence.
13. That is a total sentence of four years imprisonment.
14. I set a non parole period of two years to commence on 16 September 2015 and to end on 15 September 2017.
| I certify that the preceding one hundred and twenty-five [125] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 5 April 2017 |
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