R v Cruz (No 2)
[2016] ACTSC 259
•6 September 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Cruz (No 2) |
Citation: | [2016] ACTSC 259 |
Hearing Date: | 6 September 2016 |
DecisionDate: | 6 September 2016 |
Before: | Murrell CJ |
Decision: | Sentenced to 3 years and 3 months’ imprisonment. Nonparole period of 20 months. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse with a person under 10 – act of indecency in the presence of a person under 10 – guilty by jury after trial – very young victim – 2 years and 10 months old – single incident – non-penetrative sexual conduct |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 7, 33 Crimes Act 1900 (ACT) ss 55, 61 |
Cases Cited: | R v Eisenach [2011] ACTCA 2 R v Hunt [2016] ACTSC 52 R v TW [2011] ACTCA 25; 6 ACTLR 18 |
Parties: | The Queen (Crown) Juan Carlos Cruz (Offender) |
Representation: | Counsel Mr K Lee (Crown) Mr P Edmonds (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Canberra Criminal Lawyers (Offender) | |
File Number: | SCC 198 of 2015 |
MURRELL CJ:
Introduction
On 2 September 2016, a jury found that on 27 June 2013, when the victim was under the age of 10 years (two years and 10 months old), the offender engaged in sexual intercourse with her (cunnilingus) and committed an act of indecency in her presence (ejaculation).
Engaging in sexual intercourse with a child under 10 years of age is an offence against s 55(1) of the Crimes Act 1900 (ACT) (Crimes Act) and carries a maximum penalty of 17 years' imprisonment. Committing an act of indecency in the presence of a child under the age of 10 years is an offence against s 61(1) of the Crimes Act and carries a maximum penalty of 12 years' imprisonment.
Facts
In 2013, the offender resided with his parents. He was a 36-year-old single man. During weekdays, the offender's mother provided day care to her two young nephews, her niece and the victim, whose mother was a family acquaintance. The offender was in full-time employment, but often arrived home before the victim was collected by her mother. The victim was well advanced in toilet training, but wore a disposable nappy in order to protect against “accidents”.
On Thursday, 27 June 2013, the victim's mother collected the victim from day care. As the victim's mother was pulling her car into her home garage, the victim initiated a conversation in which she asked her mother not to clean her bottom with her tongue. The victim went on to state that, "Tio Carlos licked my bum bum." "Tio" means uncle in Spanish, and it was the term that the victim's day care playmates used to refer to the offender, who was their uncle. "Bum bum" was a term used by the victim to refer to both her genital area and her anal area; she was too young to distinguish between them.
The victim's mother reported the incident immediately. That evening, the victim was medically examined and no injury was detected. However, forensic analysis of the interior of the victim's nappy revealed evidence of semen and saliva, particularly around the leg areas of the nappy. A few sperm were observed. DNA testing provided overwhelming support for the proposition that the offender was the source of the DNA in some of the sperm and saliva samples, particularly samples 1-4 and 1-9.
The jury's verdicts show that the jury accepted the circumstantial prosecution case on the cunnilingus and ejaculation charges, finding that the only rational hypothesis was that the offender had committed the acts in question.
Objective seriousness
Neither physical nor psychological harm was evident at the time of the offences. The victim found the licking to be distasteful, but did not understand that it was wrong. Fortunately, she was not subjected to a lengthy police interview and was not required to give evidence. That is not to say that there will never be an impact. At some point, the victim may find out about the incident and there may well be a psychological impact, possibly a significant impact.
The Court received a victim impact statement in which the victim's mother described the shock, distress and extreme anxiety associated with the offences. She said that the victim's father remains distressed and angry. These responses are very understandable. Any parent is concerned about the safety of their children who are in care for lengthy periods of time during the day, and to hear a disclosure of the type that the victim's mother heard on 27 June 2013 is a parent's worst nightmare. The Court acknowledges the psychological distress suffered by the victim's family.
Objective seriousness
Any offence against s 55 or s 61 that is committed against a child who is under 10 is, by definition, very serious indeed, as is recognised by the maximum penalties that apply. It is generally accepted that the relative youth of a complainant makes an offence more serious. The legislation provides for a greater maximum penalty for a younger child victim. The younger the complainant the more vulnerable she is and the greater the associated moral culpability of the adult who takes advantage of the victim's vulnerability.
In this case, when the victim's age of two years and 10 months is compared against the 10-year upper limit to which the maximum penalty of 17 years applies, it can be seen that the victim's youth makes this offence more objectively serious. The offender took advantage of the fact that he had access to the victim in his mother's home. His mother trusted the offender to be with the victim in the normal course of household activities. It is true that the incident did not occur in the child's own home, but it did occur in her second home, the place where she had been receiving day care for some time. The victim and her parents were entitled to assume that the offender's home, the place where the victim received day care, was a very safe environment.
There is no automatic hierarchy in the conduct that may amount to sexual intercourse. The legislation does not distinguish between the seriousness of particular types of conduct. It is always a case of examining the facts in the subject case. Cunnilingus is often, but not necessarily, a less serious form of sexual intercourse than, for example, penile-vaginal intercourse.
In relation to both the cunnilingus and the ejaculation that occurred in the present case, the evidence is consistent with the incident being relatively brief. It is likely to have occurred in an opportunistic way. There is no evidence of premeditation or planning. The offender was in a household where other adults were present. It is unlikely that there would have been an opportunity for prolonged conduct to occur and to go unnoticed. However, the offender must have deliberately removed the victim's nappy before performing the cunnilingus.
There is no evidence of the circumstances surrounding the ejaculation offence. For example, there is no evidence that the child was made to look at the offender. The evidence is consistent with secondary transfer, that the ejaculation was not ejaculation onto the victim. Mercifully, the victim seems to have been unaware of the ejaculation, or at least unaware of its significance. She made no mention of it.
As to the incident as a whole, there is no evidence that it was other than an isolated incident. There is no evidence of a course of conduct. The Crown accepts that the cunnilingus and the ejaculation occurred relatively contemporaneously as part of a single incident which, as I have mentioned, must, because of the circumstances in which it must have occurred, have been a brief incident.
As the sexual intercourse and the act of indecency occurred at more or less the same time, there should be a high degree of concurrency in the sentences, but also a not insignificant period of accumulation to mark the separate criminality involved in the two offences.
Subjective factors
The offender is now 39 years old.
He continues to live with his parents, providing them with some financial support and the physical care that they require due to their declining health. The offender is normally the major breadwinner in the household. His mother suffers from back problems and receives a disability pension. The offender's father is currently unemployed. He suffers from high blood pressure and a possible cardiac problem.
No doubt the offender's incarceration will have an impact on his parents, both financially and in terms of physical care. That is something that I take into account. However, almost invariably, when a person is incarcerated, there is some impact on immediate family, and the situation in the present case is by no means unusual.
The offender has two sisters. One of the offender's sisters gave evidence that the offender's mother had cared for her children at the home occupied by the parents and the offender while the sister worked. She has never been concerned about the offender's behaviour towards her children. I do not believe that that evidence provides a high level of comfort in relation to prospects of reoffending. The offender would have a special relationship with his nieces and nephews that is somewhat different from his relationship with other children and does not necessarily reflect his attitude towards other children.
The author of the short Court Duty Report stated that the offender may be suitable for participation in an Adult Sex Offender Program. Presumably that is a matter that will be further explored when he is imprisoned.
The offender's family continues to support him. They are well aware of the allegations in the case. For both those reasons, once he is released into the community, there will be some protection against the possibility of further offending.
The offender was born in El Salvador. His family came to Australia as refugees when the offender was a young child. After completing Year 10 he undertook further studies in construction, obtaining a Certificate IV in building. Until his recent resignation he worked full‑time in the construction industry for many years. He has accumulated significant debts and is insolvent. He has a debt agreement plan.
The offender has no relevant criminal history. There are several drink driving offences on his criminal history, but that is a quite different type of conduct, and there is no suggestion that it is relevant to this offence. There is no suggestion of intoxication associated with the commission of these offences. For all intents and purposes, he is a 39 year old man with no relevant prior criminal history.
The offender was assessed as at low risk of general reoffending, but the author of the Court Duty Report recently received further information which somewhat increased the assessed risk of general offending. To my mind, there must be a low risk of general offending, given that at 39 years of age the offender has a very limited criminal history and it is confined largely to one sort of matter, drink driving. In any event, all of that is somewhat irrelevant to the present sentencing exercise, which involves a particular type of offending, i.e. offending against a young child.
The offender continues to deny the offences. Consequently, there is no indication of remorse, contrition or acceptance of responsibility. Those matters may be relevant to rehabilitation. Generally it is considered that acceptance of responsibility is a first step on the path to rehabilitation. However, it is early days. The jury verdicts were returned only last week, and one does not know whether, after an opportunity for reflection, the offender's attitude may change and he may become amenable to treatment.
Sentencing purposes
In sentencing the offender, the Court has regard to the sentencing purposes in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). General deterrence is a prominent sentencing purpose. Sexual crimes against young children are difficult to detect and prosecute, and the younger the child the harder it is to detect the crime and effect a successful prosecution. Consequently, there is a strong need for general deterrence. Punishment, accountability and denunciation are also important sentencing purposes. It is critical to denounce the conduct of adults who sexually exploit children.
Rehabilitation is an important matter because, if rehabilitation can be achieved, then the community will be protected in the future. It is difficult to predict the offender's prospects in that regard, but I do not discount the possibility that rehabilitation may be achieved. That remains to be seen.
The prosecutor submitted that specific deterrence is important. Specific deterrence is a somewhat problematic concept in the context of matters such as the present. If an offender is not rehabilitated from sexually exploitative behaviour against children then, in my view, specific deterrence is unlikely to have much of an impact because offences of this type are so easy to commit secretly and are difficult to detect. Nevertheless, I take that consideration into account.
I am required to consider the matters mentioned in s 33 of the Sentencing Act insofar as they are known and relevant. Most of the relevant factors are referred to above. While the victim has to date sustained no injury or psychological harm, I accept that there is a real chance that such harm might materialise in the future, although the extent to which it will occur will depend upon how the situation is handled at the time. The victim's mother appears to be a very sensible person, who will, no doubt, handle that scenario with sensitivity.
Beyond the possible future harm to the victim, a relevant consideration under s 33(1)(f) of the Sentencing Act is the effect of the offence on the victim's family. The victim's parents were deeply impacted by the offences. I do not doubt that there will be a continuing impact upon them.
Comparable cases
The Court may be guided by sentences imposed in comparable cases, which may serve as a “yardstick” against which to compare penalties that the Court is considering. I have been referred to a large number of cases, and what can be drawn from them is that every case is different, both in terms of the objective offending and the wide range of subjective circumstances that courts take into account when fixing penalties. A wide range of penalties has been imposed, and it is very difficult to draw any general lessons from the penalties that were imposed in other cases. It is more helpful to draw on fundamental sentencing principles than to try to divine what cannot be divined from the cases.
However, I note several cases of interest, they being the decisions in R v Hunt [2016] ACTSC 52, R v Eisenach [2011] ACTCA 2, R v TW [2011] ACTCA 25; 6 ACTLR 18 and R v SH [2015] ACTSC 25. In some of those cases the facts were somewhat similar to the facts in the present case, but very different subjective considerations applied. The penalties that were imposed varied widely. Few, if any, of the cases to which I was referred involved a single act of non-penetrative sexual activity. Of course, in this case there were two acts, but neither was an act of penetrative sexual activity.
Sentence
It was accepted by both parties that no penalty other than a sentence of full-time imprisonment is appropriate to reflect the objective gravity of the offences.
This will be the offender's first time in full-time custody. As mentioned above, the impact of such imprisonment is not known. It may be that the offender will reflect upon matters, and can be rehabilitated during the significant period that he will necessarily spend in custody. It is appropriate to give substantial discretion to the parole authority to determine when he is released, and for that reason I propose to fix a relatively low nonparole period.
The offender is convicted of each matter. For the offence of act of indecency I impose a sentence of 18 months' imprisonment from 6 September 2016 to 5 March 2018. For the offence of sexual intercourse I impose a sentence of two years and six months' imprisonment from 6 June 2017 to 5 December 2019. That is a total period of imprisonment of three years and three months, or 39 months. I fix a nonparole period to expire on 5 May 2018, a period of 20 months.
| I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: 8 September 2016 |
Amendments
10 October 2016 Replace “R v Cruz” with “R v Cruz (No 2)” Paragraphs: Case Title