R v Ed
[2018] ACTSC 366
•30 November 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v ED |
Citation: | [2018] ACTSC 366 |
Hearing Dates: | 13 November 2018; 29 November 2018 |
DecisionDate: | 30 November 2018 |
Before: | Burns J |
Decision: | See [30]–[33] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse with a person aged under 16 years – attempt sexual intercourse with a person aged under 16 years – acts of indecency on a person aged under 16 years – found guilty by jury – whether the offender’s intellectual impairments had an impact on his moral culpability – good prospects for rehabilitation |
Cases Cited: | R v Verdins [2007] VSCA 102; 16 VR 269. |
Parties: | The Queen (Crown) ED (Offender) |
Representation: | Counsel Mr P Dixon (Crown) Ms K Musgrove (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 314 of 2017 |
BURNS J
ED, on 2 July 2018, you were presented for trial on an indictment alleging four counts of engaging in sexual intercourse with a person under the age of 16 years, one count of attempting to engage in sexual intercourse with a person under the age of 16 years and two counts of committing an act of indecency on a person under the age of 16 years.
On 6 July 2018, the jury returned verdicts of guilty on Count One, a charge of engaging in sexual intercourse with a person under the age of 16 years; Count Four, a charge of attempting to engage in sexual intercourse with a person under the age of 16 years; and Counts Six and Seven, charges of committing acts of indecency on a person under the age of 16 years. On the remaining counts, the jury returned verdicts of not guilty.
The victim with regard to these offences was [redacted], who I will refer to by the initials NS. At the time of these offences, you were 18 years old and NS was 13 years old. The maximum penalty for both the offence of engaging in sexual intercourse with a person under the age of 16 years and attempting to engage in sexual intercourse with a person under the age of 16 years is 14 years’ imprisonment. The maximum penalty for the offence of committing an act of indecency on a person under the age of 16 years is 10 years’ imprisonment. The maximum penalty is reserved for offences that fall within that class of cases which may be referred to as the worst type of that particular offending.
The Crown does not submit that the charges on which you were convicted by the jury fall into that worst case category, but the maximum penalty, nevertheless, provides a yardstick against which to assess the objective seriousness of the present offences.
[Redacted]. In July 2016, you usually resided with your mother and siblings in Sydney, but on or about 4 July 2016, you came to Canberra to spend the school holidays with the victim and her family. I am satisfied that on an occasion during this visit, you and the victim were in the victim’s bedroom lying on her bed and watching a movie. You kissed the victim on her mouth and forced your tongue into her mouth. This is the act constituting Count Six, a charge of committing an act of indecency.
You then pushed your hand inside the victim’s pyjama pants and underwear and pushed one of your fingers into her vagina. This is the act constituting Count One, a charge of engaging in sexual intercourse. You then unsuccessfully attempted to force your penis into her vagina. This is Count Four, a charge of attempting to engage in sexual intercourse. During this incident, you grabbed the victim on her bottom and breasts. This is the basis of Count Seven, another charge of committing an act of indecency.
I am satisfied beyond reasonable doubt that during this incident the victim made it clear to you that your actions were unwelcome. I am satisfied that she asked you to stop and said “no” to you several times. You simply ignored her. Your actions confused and frightened the victim, as well as causing her ongoing emotional trauma. She looked upon you as a brother and clearly trusted you. As the Victim Impact Statement prepared by NS recounts, these events have had a long lasting detrimental effect on her emotionally, mentally and socially.
Your actions have also had an effect on those close to the victim, who grieve at the pain she has suffered and continues to suffer. You were trusted by the victim and her mother. If they had not trusted you, you would not have had the opportunity to commit these offences. In that sense, these offences involve a breach of trust by you.
You have demonstrated no remorse for these offences, despite being present when the Victim Impact Statements were read to the Court. You continued to maintain that these events did not occur. A report from Dr Owen Samuels, a consultant psychiatrist, was tendered at the sentence hearing. You provided a history of abuse and neglect at the hands of your father as a child, and of sexual abuse by your uncle to Dr Samuels. Dr Samuels noted that you provided a historical diagnosis of an intellectual development disorder, but he did not have the benefit of any formal neurocognitive assessments.
10. He noted that a Speech and Language Pathology Report from 2013 confirmed that you were found to have severe delays in receptive and expressive language, consistent with experiencing difficulties in comprehending verbal input, as well as severe delays in expressing yourself. Dr Samuels said that if your deficits are more global, this may suggest difficulties with reasoning, problem solving, planning, abstract thinking, judgment and learning, as well as failure to meet socio-cultural standards for social responsibility.
I will digress at this point to note that your counsel submitted that a report from Angelique Kladis, a Career Medical Officer, apparently dated 28 August 2018, establishes that your deficits are sufficiently global so as to establish on the balance of probabilities that you suffer from the difficulties hypothesised by Dr Samuels. I do not accept that submission. The report merely consists of your subjective reporting of your then circumstances and symptoms, a brief assessment of your appearance and mental state, an assessment limited to diagnoses of post‑traumatic stress disorder and borderline personality disorder and indications of future treatment plans.
The report does not address the issue raised by Dr Samuels, and Dr Samuels was apparently not requested to review the report with a view to revising his own report. Similarly, an earlier report by a registered nurse, Sarah Louise Fasch at Bankstown Aged and Mental Health Care, provides no basis for filling in the gap referred to by Dr Samuels and the information before him.
13. Returning to Dr Samuels’ report, he opined that you demonstrate a disturbance in your characterological constitution and behavioural tendencies which result in considerable personal and social disruption, consistent with a diagnosis of personality disorder, predominantly of the borderline type. He stated that this behaviour appears to have manifested itself in childhood and has continued into adulthood.
Dr Samuels stated that your early childhood experience of sexual abuse and the need to flee with your mother from your father likely impacted on your socio-emotional, cognitive, developmental and formation of attachment security. Dr Samuels suggested that this underlying attachment strategy would have been internalised and influenced your relationship and behaviour throughout your life. As an adult, this appears to have manifested with disharmonious attitude and behaviour, and challenges perceiving, thinking and relating to others.
Dr Samuels also noted that you show symptoms suggestive of a depressive disorder. Dr Samuels noted that he had been asked to consider the principles in R v Verdins [2007] VSCA 102; 16 VR 269. He stated in that regard:
It is my opinion that as a result of [ED]’s intellectual impairment, it may be seen to have an impact on his moral culpability and, as such, a causal link between [ED]’s intellectual impairment and the index offences. This, however, is a matter of degree and is to be determined on all of the evidence before the court. Unfortunately, I did not sight any detailed neurocognitive assessment reports that would have assisted this.
16. I note that no request was made to adjourn these proceedings to obtain a neurocognitive assessment report. It is difficult to determine the extent to which your intellectual impairment may have impacted on your moral culpability for these offences, but in my opinion, any such effect cannot be substantial.
17. The testimonials which have been put before this Court and tendered at your sentence hearing do not speak of any obvious or significant signs of intellectual deficit. In a testimonial from GE, she speaks of you showing an occasional lapse in judgment, of you being too trusting and not being as adept at gauging situations as others, but none of these matters suggest a significant intellectual deficit and do not support a significant reduction in your moral culpability for the present offences.
She also speaks of having observed the effects of your mental health conditions, described by her as post‑traumatic stress disorder, anxiety and obsessive compulsive disorder, but it is apparent from Dr Samuels’ report that these conditions are separate from your intellectual deficits. I, nevertheless, take into account Dr Samuels’ qualified opinions as generally relevant to setting appropriate sentences with respect to these charges.
In his report, Dr Samuels noted that you provided a bizarre account of the events surrounding the offences, an account which differed dramatically from the account put by your counsel to the prosecution witnesses. At the trial it was simply suggested that the alleged events did not occur. In his report, Dr Samuels said:
[ED] then told me that the index offences and allegations came about as a result of a longstanding conflict between [NS]’ family and him. He said that [NS]’ sister had previously admitted to having sexually assaulted him. As a result of this, he said that he believed that what he is alleged to have perpetrated is in retribution for what he accused [NS’ sister] of doing to him.
He went on to explain that [NS’ mother] had deliberately given him alcohol, knowing that he was not meant to consume alcohol because of his seizures. He said that she sought to hide the fact that she was giving him alcohol by disguising this in a glass of Coca-Cola. He noticed that the drink tasted strange, which he said confirmed that she had given him alcohol or some other type of drug.
He said that as a result of this, he had suffered a seizure and that [NS’ mother] and her partner [Q], as well as [NS], had placed him on the floor in [NS]’ bedroom. He said that when he woke up he found [NS] on top of him and that he had no pants on. He said that “he freaked out,” pushed her off him, and stayed up all night because of his fear that she might do this again.
20. I reject this version of events. As far as I can tell, it is a version never before articulated by you. Dr Samuels stated that in addition to your intellectual deficits, he believed that your personality deficits functionally impacted on your social skills, judgment and planning. It was his opinion, however, that it was unlikely that your intellectual deficits or your personality deficits impaired you to the extent that you could not appreciate the wrongfulness of your conduct.
Dr Samuels was of the opinion that given your deficits and vulnerabilities, it is likely that you will need to be held in strict protection in custody, resulting in you having little access to structured programs. I accept that your intellectual and personality deficits are likely to make imprisonment more difficult for you than an average prisoner. Finally, Dr Samuels stated that you will be able to access appropriate treatment for your mental health in custody.
22. You are 20 years old, but you were 18 years old at the time of these offences. You were subject to abuse and neglect as a child at the hands of your father, as well as an uncle. Your mother, your stepfather and your extended maternal family have been loving and supportive. You are in a relationship which has existed for just over 12 months. A daughter was born to that relationship in September 2018. You currently reside with your mother, although the author of the Pre‑Sentence Report states that you are seeking your own accommodation.
23. You left formal education in Year Nine and a subsequent attempt to return was unsuccessful because of you suffering from seizures. I note that Dr Samuels refers to you suffering with grand mal seizures resulting in multiple hospitalisations. You are now treated with medication for this condition. You are also in the midst of treatment for an accidental injury to your hand which resulted in a lacerated tendon. The first phase of that treatment has been completed and the second phase may be commenced in the next 12 months, although I understand that there is no urgency in undertaking the remaining treatment.
24. You have a limited history of employment. Undoubtedly, obtaining employment has been made more difficult by your limited formal education, your health deficits and the more recent injury to your hand. I note that you have been engaged with an Aboriginal employment agency in a bid to find work. You have no drug or alcohol issues that need to be addressed. As I have noted, you have multiple health concerns, but none that cannot be addressed in custody.
25. The author of the Pre‑Sentence Report assessed you as at a medium-low risk of general reoffending and a moderate-low risk of sexual reoffending. The report recommends that you complete a suitable adult sex offender program. A letter from GE, to which I referred earlier, speaks of your assistance to her family, particularly with her son who suffers from severe mental health conditions. She also speaks of your protection of her and her daughters and your rejection of violence or abuse of females. I note that a testimonial from UU speaks of your respect for women and your commitment to your family.
26. From this material, I accept that your conduct in committing the present offences was out of character. Your brother suffers from autism and caring for him is difficult. I accept that you play a considerable role in helping the family cope with caring for him. I accept that a prison sentence will result in hardship to your family, including your disabled brother.
27. I am satisfied that you have good prospects for rehabilitation, despite your failure to demonstrate remorse for these offences. Sentencing in these matters presents the all too familiar problem of sentencing an otherwise law abiding young man for serious offences which have had a lasting effect on the victim and her family.
28. The offences occurred in the victim’s own home and involved a breach of trust reposed in you by the victim and her mother. In addition, the age of the victim is an important consideration. I accept that these offences all occurred at the one time and were not premeditated. I also accept that there was no actual penile-vaginal penetration, meaning that there was no real risk of pregnancy and little risk of sexually transmitted disease.
29. Balancing the need for rehabilitation of the young offender against the objective seriousness of the offences, the need for appropriate punishment and deterrence of sexual offences against young women is not easy in this case. I have nevertheless concluded that a period of full‑time imprisonment must be imposed to mark the seriousness of the offences and the community’s disapproval of child sex offences, as well as addressing general deterrence.
On Count One, you are convicted and sentenced to 12 months’ imprisonment, commencing today, 30 November 2018, and expiring on 29 November 2019. On Count Four, you are convicted and sentenced to 16 months’ imprisonment, commencing on 30 January 2019 and expiring on 29 May 2020. On Count Six, you are convicted and sentenced to one month imprisonment, commencing on 30 November 2018 and expiring on 29 December 2018. On Count Seven, you are convicted and sentenced to three months’ imprisonment, commencing on 30 November 2018 and expiring on 28 February 2019.
The aggregate sentence which I have therefore imposed is one of 18 months’ imprisonment, commencing on 30 November 2018 and expiring on 29 May 2020.
32. I order, bearing in mind your age and your prospects for rehabilitation, that the period commencing 30 November 2018 and expiring 29 May 2019 be served by way of full‑time imprisonment, with the balance of 12 months suspended.
33. There will be a Good Behaviour Order for two years from 30 May 2019 with conditions that:
(a)you are to accept the supervision of the Chief Executive of Corrective Services, or that person’s delegate, for that period of two years, or such lesser period as deemed appropriate by your supervising officer; and
(b)secondly, you are to obey all reasonable directions of the Chief Executive, or that person’s delegate, and undertake such programs or counselling as directed, including undertaking an assessment for, and if found suitable, completing an appropriate adult sex offender program.
34. Noting the mental health conditions in the material before the Court, I will direct that the papers be marked that he is a prisoner at risk.
| I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: |