R v Childs

[2021] ACTSC 170

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Childs
Citation:	[2021] ACTSC 170
Hearing Date:	15 July 2021
Decision Date:	15 July 2021
Before:	McWilliam AJ
Decision:	See [23]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – indecent act – impact of offending – prospects of rehabilitation – lack of remorse – where offender had already spent a lengthy
period of incarceration while awaiting trial
Legislation Cited:	Crimes Act 1900 (ACT) s 60 Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33, 86
Cases Cited:	R v Shepheard [2008] ACTSC 116; 189 A Crim R 165 R v Miller [1995] 2 VR 348; 81 A Crim R 278
R v Ridley [2014] ACTSC 382
Parties:	The Queen (Crown)
Tony John Childs (Offender)
Representation:	Counsel
R Roberts (Crown)
Self-represented (Offender)
Solicitors
ACT Director of Public Prosecutions (Crown)
Self-represented (Offender)
File Number(s):	SCC 33 of 2021
MCWILLIAM AJ:

1. On 14 July 2021, the offender was found guilty of the charge of an act of indecency without consent contrary to s 60(1) of the Crimes Act 1900 (ACT) (Crimes Act). The

maximum penalty for such an offence is seven years’ imprisonment.

2.       The offence relates to conduct that occurred on the evening of 12 November 2020. The uncontroversial facts are that the offender approached the victim, who was previously a stranger to him, at a 7-Eleven petrol station in Braddon. The victim was standing with another female friend at the time.

3.       The Crown case alleged that the offender said words to the effect of “I'm going to fuck one of them”, referring to the victim and her friend and then put his hand around the

victim's waist. He then slid his hand down to the victim's buttocks and grabbed them
for about three seconds.

4.       It is apparent from the jury verdict that the jury was satisfied beyond reasonable doubt that either all of the alleged conduct occurred or part of the conduct occurred and that part was indecent according to the contemporary standards of sexual morality accepted by ordinary, decent minded but not unduly sensitive people.

5.       I have proceeded to sentence on the basis that the jury was satisfied beyond reasonable doubt that the offender put his arm around the victim's waist and then grabbed the victim's buttocks. I am separately satisfied beyond reasonable doubt that such conduct occurred, based on the direct evidence of that fact given by the victim herself and of two corroborating witnesses who gave evidence that they saw the offender engage in such conduct.

6.       It is implicit in the verdict that the victim did not consent to the act.

Objective seriousness

7. In terms of the objective seriousness of the offence, the conduct was an isolated instance of indecency that lasted for a matter of seconds. On the scale of indecent acts within the range of conduct that may be the subject of a charge under s 60(1) of the Crimes Act, the nature of the indecent act was minor or at a low level of objective seriousness.

Sentencing considerations

8. It is important in sentencing the offender that I take into account the objects and principles of sentencing as set out in ss 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). Critically for this particular offender, and notably not to the exclusion of the other objectives listed, the Crown has placed particular emphasis on the sentencing objectives of the protection of the community and promotion of rehabilitation of the offender.

9. Section 10 of the Sentencing Act is also important because it says that a person should not be sent to prison except as a last resort.

10. Section 33 of the Sentencing Act dictates relevant considerations. I have taken into account the impact to the victim. It was not contained in any formal victim impact statement. However, there was evidence that the victim was in shock immediately following the incident, that she cried, and that she needed time to process what had occurred. The Crown also drew attention to the judgment of Refshauge J in R v Shepheard [2008] ACTSC 116; 189 A Crim R 165 at 31, applying R v Miller [1995] 2 VR 348; 81 A Crim R 278 at 354 where his Honour stated that a court can and often must draw inferences of harm from the facts of a case, even where there is no victim impact statement. I respectfully adopt the guidance there provided by his Honour.

11.     The principle was again referred to in R v Ridley [2014] ACTSC 382 at [42]-[43]. In my view, the victim here was moderately affected. The impact may have been temporary, although it is by no means negligible. A young female having a stranger approach at night, put his arm around her waist and grab her buttocks would of course be shocked, scared and feel a little violated and subsequently angry. All of these effects were absolutely plain from the evidence given by the victim to police on the night in question, and in subsequent evidence given to the Court, and are not matters of speculation.

12.     That is one of the reasons why offences of indecency are always to be condemned.

13.     With regard to the offender's subjective circumstances, the offender is middle aged, now 49 years of age. He has lost both his parents and has no siblings although he does have aunts and cousins in Western Australia and he has indicated a desire to travel to that state for support and assistance.

14.     He did not complete his secondary education past the age of 15 and he has spent much of his early working life employed on the family farm. There was not any other significant work history in evidence.

15.     The offender accepts that he has a problem with alcohol and that he would benefit from counselling and rehabilitation in that regard. He does not appear to have engaged particularly with either of those services in the past. He was very concerned that any requirement for him to undertake rehabilitation or alcohol counselling not prevent him from obtaining family support by travelling to Western Australia. The reason for that is that the offender says he has had lengthy periods of homelessness and he says that these are the times when his problems with alcohol really manifest and result in criminal conduct occurring. He is very concerned to ensure that he does not fall into homelessness again and he believes his best chance of achieving stable accommodation lies in travelling to another state.

16.     The Crown has confirmed that counselling and supervision may be transferred so that the offender has the best opportunity to improve his circumstances to a point where he becomes a positive contributing member of society.

17.     The offender does not have the benefit of a guilty plea and handed up a written letter to the Court, which expressly stated that he was not sorry, but was intended to provide an explanation. Accordingly, I am unable to take into account that the offender has expressed any remorse for the offence.

18.     I have had regard to the importance of general deterrence and specific deterrence in relation to this offender. He has a lengthy criminal history which does include past assaults and a prior conviction for sexual assault which is relevant to the sentence to be imposed for the present offence. This offence occurred on 12 November 2020 and it occurred only one week after the offender had previously been released from prison for a separate offence.

19.     The offender is currently receiving a disability support pension based on a previous mental health diagnosis and I am satisfied that he is not in a position to pay any fine.

20.     I also take into account that the offender has been incarcerated for eight months leading up to the hearing of this trial, and that this time was entirely referrable to the present offence. That is a very significant matter.

Conclusion and Orders

21.     But for the fact that the offender has already spent such a lengthy period incarcerated arising out of this offence, a short term of imprisonment may have been appropriate. That is because of the type of offence, the importance of general deterrence, the lengthy criminal history and this offender's particular circumstances. However, in light of the length of time the offender has already spent incarcerated, it is not appropriate to make any further term of imprisonment.

22.    Instead, I have accepted the Crown's submission that in light of the history of reoffending shortly after release from incarceration, in circumstances where there was no support or supervision for the offender, it is appropriate to convict the offender and to make a good behaviour order.

23.     Accordingly, I make the following orders:

(a)

The offender is convicted.

(b)

The offender is to enter into a good behaviour order for a period of six months commencing on 15 July 2021 and ending on 14 January 2022, during which time he is to accept the core conditions of such an order pursuant to s 86 of the Crimes (Sentencing) Act 2005 (ACT), as well as the supervision of the Director-General, and to obey all such directions as are imposed upon him in respect of treatment of his alcohol problems.

24.     I direct the offender to attend ACT Corrective Services immediately upon release or in any event by 5:00pm today for the purposes of giving effect to these orders.

I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice McWilliam.

Associate: Dominic Page

Date: 4 August 2021