R v CD
[2017] ACTSC 261
•7 September 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v CD |
Citation: | [2017] ACTSC 261 |
Hearing Date: | 9 August 2017 |
DecisionDate: | 7 September 2017 |
Before: | Penfold ACJ |
Decision: | See [46] to [51] below. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – act of indecency on child under 16 years – use of carriage service to menace, harass or offend – act of indecency committed in breach of good behaviour order – carriage service offence committed in breach of bail – relatively early pleas of guilty – pleas spared child victim from need to give evidence – offender was victim’s de facto step-father – breach of trust – intoxication – victim impact statement. |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT), ss 108, 108(2)(a) Crimes Act 1900 (ACT), s 61(2) Criminal Code 1995 (Cth), s 474.17(1) |
Cases Cited: | R v DK [2016] ACTCA 7 |
Parties: | The Queen (Crown) CD (Offender) |
Representation: | Counsel Mr T Hickey (Crown) Mr J Sabharwal (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson (Offender) | |
File Numbers: | SCC 84 of 2017; SCC 140 of 2017 |
The offences
CD has pleaded guilty to two offences as follows:
(a)one act of indecency on a person under 16 years, arising under s 61(2) of the Crimes Act 1900 (ACT) and carrying a maximum penalty including imprisonment for 10 years; and
(b)one offence of using a carriage service to menace, harass or offend, arising under s 474.17(1) of the Criminal Code 1995 (Cth) and carrying a maximum penalty of 3 years imprisonment.
The incidents
The incidents from which these charges arose took place in October and December 2016.
Around December 2011, CD began a de facto relationship with ES, who lived with her two daughters in Bonner. He moved in with the family in 2012, and in 2013, ES gave birth to CD’s son. The relationship was volatile, and from about 2014, CD stayed sometimes at the family’s home and sometimes at his mother’s home in O'Connor.
One night, CD and ES were at home with the three children. ES put the two girls to bed, then took her son to bed, while CD stayed in the lounge room drinking. Later on, he went into the girls’ bedroom where over a brief period, he touched the genitalia of the 11‑year‑old. When she asked what he was doing, he stopped and left the room.
Immediately afterwards, the girl told her mother what had happened and ES asked CD to leave the house; he became angry, but left the house soon after.
The next morning (27 October 2016), ES called the Canberra Rape Crisis Centre, who advised police of the incident. The complainant was medically examined.
CD was arrested the next day and subsequently charged with the act of indecency. He was granted bail, but remanded in custody several weeks later after bail breaches. On 6 December, CD was again granted bail on conditions including that he not contact ES or the children, except indirectly to arrange contact visits with his son.
Between 12 and 22 December 2016, ES received a number of emails and phone calls from CD; as well, flowers for her were left on her doorstop while she was out. The emails ranged from denials of wrongdoing and accusations of infidelity to apologies and expressions of love. The last of the phone calls involved rambling threats.
After this phone call, ES reported the contacts to police; CD was re-arrested on 26 December 2016 and charged with the carriage service offence. He has been in custody ever since.
As at today (7 September 2017), CD has spent nearly 10 months all up in custody in respect of these charges.
The backdating date is agreed to be 6 December 2016.
CD pleaded not guilty to the indecency offence in the Magistrates Court, and in April this year was committed to this Court for trial. At the April mention, he pleaded guilty to the carriage service offence; he was committed to this Court for sentence in June 2017 after the facts had been agreed in the Magistrates Court.
Late in June this year, CD pleaded guilty in this Court to the indecency offence.
The act of indecency offence was committed in breach of an 18-month good behaviour order running from 25 May 2015, when CD was sentenced for an assault occasioning actual bodily harm in the Magistrates Court. He was sentenced to 10 months imprisonment to be served by a period of detention, with the 18-month good behaviour order starting from the date of sentence, and therefore expiring on 24 November 2016.
Evidence
As well as the statement of facts, the following material tendered by the Crown is in evidence before me:
(a)a victim impact statement;
(b)a criminal history for CD;
(c)a pre-sentence report;
(d)a CADAS report; and
(e)a statement of facts for the assault occasioning actual bodily harm offence (for which the good behaviour order already mentioned was made).
As well, the defence tendered:
(a)a letter of support from EveryMan (formerly the Canberra Men’s Centre);
(b)a Certificate of Attendance at First Steps to Anger Management dated 21 February this year; and
(c)a Certificate of Completion of the seven-week SMART Recovery Program dated 18 May 2017.
CD’s older brother had come to Court to give evidence in support of CD, but had to return to work. Without objection from the Crown, defence counsel summarised the evidence that CD’s brother would have given, specifically, that:
(a)before his arrest in December 2016, CD had been living with his 63‑year-old mother in O'Connor;
(b)that she had recently been in hospital with kidney problems; and
(c)that if CD were at liberty, he would have been the person to look after her and do shopping and other errands on her behalf.
CD’s mother had been in hospital from 31 July to 7 August this year, but there was no evidence suggesting that she needed any particular kind of care at home after her discharge.
For both offences, briefs of evidence had been prepared before pleas of guilty were indicated, but no date had been set for CD’s trial on the act of indecency charge before he pleaded guilty. Noting in particular that that plea of guilty spared the child from the need to give evidence, the relatively early plea of guilty, while not entered at the earliest possible opportunity, entitles CD to a reasonably substantial plea of guilty discount of something between 15% and 20%. The plea of guilty to the carriage service offence also justifies a similar discount to recognise the facilitation of justice.
Objective seriousness of the offences
In considering the objective seriousness of the offence, I have had regard to the following matters.
Acts of indecency involving children are serious offences. In this case, the offence is aggravated by having been committed in breach of the 18-month good behaviour order made in the Magistrates Court, although within the last month of the term of that good behaviour order. The carriage service offence is not such a serious offence, but that offence was committed over a period of 10 days and in breach of a specific bail condition.
The touching of the child’s genitals is at the more serious end of the spectrum of offending covered by the act of indecency offence.
The offence was committed in the victim’s own home and in her own bed where she was entitled to feel safe. As to the significance of that factor when an offence is committed by a person who also lives in the house, see R v DK [2016] ACTCA 7 at [56].
CD, as the child’s de facto step-father, was in a position of trust (and possibly authority) in relation to her. This offence was certainly committed in breach of his position of trust within the household. It does not appear from the facts that he abused any authority he had over the child.
The victim impact statement indicates that the indecency offence has had a significant impact on the child and, indeed, the rest of the family.
ES provided a distressing account of the damage that has been inflicted on the family by CD’s abuse of her older daughter. The older girl has to some extent withdrawn from the rest of her family, and has lost confidence. The two younger children are both confused by developments since the indecency offence; the younger girl is not fully aware of what was done to her sister, and accordingly feels that her sister is getting an excessive share of her mother’s attention. ES’s son, who is also CD’s son, is distressed by his father’s absence, and his sometimes violent behaviour has required the childcare centre where he is cared for to engage an extra staff member. ES herself, unsurprisingly, feels guilty for having exposed her daughters to this danger. She reported anxiety, depression, fear of further encounters with CD, and an inability to forgive herself. She is receiving counselling and says she wishes she had never met CD.
No explanation for the offence (except for excessive alcohol use) has been offered, but the Crown suggested, not unreasonably, that in the absence of any other explanation, the pursuit of sexual gratification can be inferred, and this was not disputed on behalf of CD.
The pre-sentence report author assessed CD as minimising his offending, while also expressing some victim empathy; the CADAS assessor said that CD accepted personal responsibility for his behaviour. The pre-sentence report author said that CD claimed he committed the carriage service offence out of a concern for the family and a need to see how they were going. He disputed the agreed facts for that offence, however, at least to the extent that they referred to the making of threats.
The act of indecency offences in my view are of mid- to high-level seriousness. The carriage service offence is in my view of low- to mid-range seriousness, although I do not ignore the apparently threatening nature of the last phone call.
Subjective circumstances
I have also had regard in this sentencing to CD’s subjective circumstances.
CD is 31 years old. His criminal history in the ACT includes the assault occasioning actual bodily harm already mentioned, which was committed on 8 February 2014, and the victim of which was ES’s ex-husband. There are also two damage property offences, two common assaults, and various driving offences including drink-driving.
In NSW, there are minor traffic offences and also an offensive behaviour charge, although the outcome of that charge is not clear from the material before me.
The CADAS report described CD’s background as follows:
[CD] ... is the youngest of five children. His father died on 27 December 2015. He reported being close to his father. He reported receiving support from his mother and siblings. One of his siblings has a chronic mental illness and substance use problems.
[CD] has two sons, aged four and 11 years, from two previous relationships. They live with their respective mothers. He said that he has contact with his four year old son which he is very grateful for …
However, I understand that has now changed.
[CD] stated that his 11 year old son disappeared with his ex-partner some years ago and he has no contact with them.
[CD] previously reported that he had a normal childhood until age 12. He reported there was lots of alcohol use in the family by both his mother and father. He stated his father was an alcoholic, but ceased drinking when he had a heart-attack which occurred when [CD] was aged six. He previously reported that his mother’s drinking was problematic for the family. She used to be physically violent towards his father and older siblings. She was also abusive and unpredictable, so that it was emotionally draining being around her, like “walking on egg shells”. He recalled that once he witnessed his mother “try to take dad’s head off with an axe”.
CD left school during Year 11; in discussion with the pre-sentence report author, he mentioned behavioural difficulties that he attributed to Attention Deficit Hyperactivity Disorder. He has been employed for much of the time since leaving school, but has had workplace injuries and has also been fired more than once.
The CADAS report went on:
[CD] reported that he suffered a serious back injury in 2013. He reported that he had seen many specialists and that spinal fusion was recommended. He was in constant pain when last seen by CADAS and abusing pain medication. On this occasion he reported that he had no pain due to an exercise regime, he established since his remand.
[CD] reported two prior concussions, once at age 17 years and once in 2012 when he was king-hit at a club. He stated that on both occasions they were unprovoked. He was intoxicated at the time. He was hospitalised with a neck injury on the latter occasion. He reported that his ex-partner believed he became more aggressive after the second incident. He reported that he has ongoing pain in his neck but tests have been inconclusive.
[CD] stated that he is prescribed anti-depressant medication for Depression. He has been treated since 2014. He had attended counselling treatment in the past with good effect. He was diagnosed with Attention Deficit Hyperactivity Disorder at age 13, and was treated with Dexamphetamine until age 17.
CD says he cannot remember the indecency offence; he attributes the offence to alcohol abuse (he claims to have had 12 beers over 3 hours on the night of the offence), and has made some effort since being remanded in custody to address this abuse, those efforts involving both abstinence and taking part in relevant programs. The CADAS reporter said that CD seemed to have good insight into his substance abuse and its negative impact on his life.
As well as abusing alcohol, CD has tried many illicit drugs, but the most significant drug abuse seems to have involved cocaine in large quantities for some time after his father’s death in 2015, and prescription pain medication since April 2014. The CADAS assessor says that long-term alcohol and other drug treatment is likely to be required due to the history and severity of CD’s substance abuse.
CD has been receiving counselling recently. His current goals for life after his release are to find a job, stay sober, and take part in his son’s upbringing.
Other sentencing considerations
Now that CD is being housed in the sex offenders’ area of the Alexander Maconochie Centre (AMC), he is unable to have visits from his four-year-old son; presumably this separation from his son will continue at least until he is released from the AMC. This will no doubt be distressing to CD, but it is hard to feel too much sympathy for CD’s distress given that the offence that has led to this separation involved a clear breach of his responsibility to another of the children in the family he had joined.
The indecency offence in particular requires a sentence that contributes to general deterrence.
Although CD does not have any history of this kind of offence, he does have a history of the kind of substance abuse that is apparently linked to the offending, and personal deterrence in this case might most usefully be aimed at encouraging a commitment to addressing that substance abuse.
The Crown drew to my attention a number of ACT cases involving possibly “comparable” sentences, as well as material from the ACT sentencing database, relating to the current offence. That material shows that over 90% of offenders received prison sentences, and over 70% were required to spend some time in custody. Of these prison sentences, none was longer than 3 years and nearly 80% were 18 months or less.
There are some minor complexities in this sentencing arising from the Magistrates Court good behaviour order that was breached by the indecency offence and from the fact that there are a Commonwealth and an ACT offence to be dealt with.
I propose to deal with the Magistrates Court good behaviour order (which, although imposed with a prison sentence, was not attached to suspension of the prison sentence) under s 108 of the Crimes (Sentence Administration) Act 2005 (ACT) by noting the breach but taking no further action (s 108(2)(a)).
I propose to deal with the separate jurisdictions issue by sentencing for the Commonwealth offence first and then for the ACT offence; in that case, s 19AC(4)(b) of the Crimes Act 1914 (Cth) means that I am not required to make a recognizance release order for the Commonwealth sentence even though that sentence will be considerably less than three years imprisonment.
Sentence
CD please stand. I record convictions on the charges of act of indecency on a person under 16 years, and using a carriage service to harass.
The conviction for the act of indecency puts you in breach of the 18-month good behaviour order made in May 2015. I note that the good behaviour order has since expired, and that you seem to have completed the term of imprisonment also imposed for the offence concerned, and accordingly I take no further action on that good behaviour order.
I now sentence you to imprisonment:
(a)for the carriage service offence, to 5 months reduced from 6 months for your plea of guilty; and
(b)for the act of indecency, to 20 months reduced from 24 months.
Given that the carriage service offence, although a separate offence from the act of indecency and committed at a later time, was directly related to the act of indecency offence, I shall provide for one month’s concurrency between the two sentences, giving a total sentence of 24 months imprisonment.
The sentence will be backdated to 6 December 2016 to take account of pre-sentence custody, and so it will run until 5 December 2018. The Commonwealth offence has accordingly already been served. The ACT sentence will be suspended after 10 months, being 5 February 2018, and I now order that before you are released, you sign an undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act for two years from the date of release.
The good behaviour order is subject to the conditions:
(a)that you give security in the amount of $1,000 for your compliance with the good behaviour order;
(b)that for such period not exceeding two years as Corrective Services considers necessary, you accept the supervision of ACT Corrective Services and obey all reasonable directions of the Director-General or her delegate (being your supervising officer);
(c)that you undertake such counselling, courses, programs or treatments as directed by your supervising officer, which may in particular (but not only) relate to alcohol and other substance abuse; and
(d)that you are to be assessed and, if found suitable, that you undertake the Adult Sex Offenders Program.
You will be given a written copy of the good behaviour order, and it will be read to you by officials at the time you sign it. In short, it means that for two years after you are released, you need to keep out of trouble, keep in contact with Corrective Services and comply with your supervisor’s directions and, if you are assessed as suitable, to participate in the Adult Sex Offender Program. If you commit another offence during that time, or if you otherwise breach your good behaviour undertaking, you may find yourself back before this Court to be re-sentenced for this offence, as well as possibly losing your $1,000 and, depending on exactly how you have breached your good behaviour undertaking (especially if there has been further offending), you could well find yourself serving some or all of the remaining part of this sentence, another 10 months, in full-time custody.
If you have any particular questions about those orders, please ask the court officials or Mr Sabharwal or Mr Robertson.
You may sit down.
| I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: Date: 31 October 2017 |
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