R v EN
[2019] ACTSC 354
•12 December 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v EN |
Citation: | [2019] ACTSC 354 |
Hearing Date: | 11 December 2019 |
DecisionDate: | 12 December 2019 |
Before: | Elkaim J |
Decision: | See [36] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – maintain sexual relationship with young person – maintain sexual relationship with person under special care – indecent assault male – pleas of guilty |
Legislation Cited: | Crimes Act 1900 (ACT) ss 56, 81 |
Cases Cited: | R v Scheeren [2014] ACTSC 272 |
Texts Cited: | Explanatory Statement, Crimes Legislation Amendment Bill |
Parties: | The Queen (Crown) EN (Offender) |
Representation: | Counsel ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) |
| Solicitors S Jerome (Crown) R Davies (Offender) | |
File Numbers: | SCC 51 of 2019; SCC 190 of 2019 |
ELKAIM J:
On 11 December 2019 the offender was arraigned and entered pleas of guilty to five charges in this Court. The charges and their maximum penalties are:
(a) Two charges of maintaining a sexual relationship with a young person (CC407/2019; CC410/2019) contrary to s 56 of the Crimes Act 1900 (ACT). The maximum penalty for each offence is 25 years’ imprisonment;
(b) One charge of maintaining a sexual relationship with a person under special care (CC408/2019) contrary to s 56 of the Crimes Act. The maximum penalty is 25 years’ imprisonment; and
(c) Two charges of indecent assault on a male (CC6747/2018; CC8545/2019) contrary to s 81 of the Crimes Act. The maximum penalty for each offence is five years’ imprisonment.
The pleas of guilty entitle the offender to a discount on his sentence which I assess at 20%.
As noted above the maximum penalty for the s 56 offences is 25 years. The offender submitted however that the maximum penalty is five years. It is first of all necessary to set out some sections of the Crimes Act and the Human Rights Act 2004 (ACT) (the HRA).
Section 56(7) of the Crimes Act states:
56Maintaining sexual relationship with young person or person under special care
(7) For an offence against this section that occurred wholly or in part before the amendment day, when imposing a sentence a court must consider the maximum penalty before the amendment day for—
(a) an offence against this section; and
(b) an offence constituted by a sexual act alleged to constitute the sexual relationship.
Section 25 of the HRA states:
25 Retrospective criminal laws
(1) No-one may be held guilty of a criminal offence because of conduct that was not a criminal offence under Territory law when it was engaged in.
(2) A penalty may not be imposed on anyone for a criminal offence that is heavier than the penalty that applied to the offence when it was committed. If the penalty for an offence is reduced after anyone commits the offence, he or she benefits from the reduced penalty.
The argument arises in this way:
(a)Section 56 did not exist when the relevant offences were committed.
(b)The parties agreed that the relevant offence for the purposes of s 56(7)(b) was
s 81 of the Crimes Act (indecent assault) which has a maximum penalty of five years’ imprisonment.(c)The Crown submitted that I was obliged to do no more than “consider” the s 81 penalty, which means take it into account, but not be bound by it.
(d)The offender responded that s 25(2) of the HRA did not allow for the Crown’s approach, so that I was bound by the five year limit.
I was referred to the Explanatory Statement to the Crimes Legislation Amendment Bill
(No 2) 2017 (ACT) where the following was stated at 8:
As identified by the Royal Commission, the retrospective application of this provision is necessary to achieving the purpose of improving access to justice for survivors of child sexual abuse. The amendment to section 56 permitting charges to be laid retrospectively does not offend section 25 of the HRA, as it does not seek to criminalise conduct that was previously legal. Depending on the circumstances of the offending, the maximum penalty will be higher than the maximum penalty available under the original provision and in others it will be less. However, on sentencing, regard is to be had to relevant lower statutory maximum penalties if the offence is charged with retrospective application.
The Crown said that “regard” in the last sentence of the above quoted passage is to be given the same meaning as “consider” in s 56(7)(b).
At this stage I think it is necessary to refer to s 34A of the Crimes (Sentencing) Act 2005 (ACT) which states:
34ASentencing—sexual offences against children
For a sexual offence against a child, a court—
(a)must sentence the offender in accordance with sentencing practice, including sentencing patterns, at the time of sentencing; and
(b) must not reduce the severity of a sentence it would otherwise have imposed on an offender because the offender has good character, to the extent that the offender’s good character enabled the offender to commit the offence.
(notes omitted)
The parties informed me that there were no relevant authorities on the point. There is however some relevant discussion in R v Scheeren [2014] ACTSC 272, in particular from [52]. At [56] and [57] the Chief Justice said this:
56.Section 25 of the Human Rights Act sits within pt 3 of the Act, which sets out the civil and political rights that apply in the ACT. When interpreting ACT legislation, those rights must be acknowledged. Section 30 of the Human Rights Act provides that “so far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights”.
57.Section 30 of the Human Rights Act requires that, as far as possible consistently with its purpose, s 33(1)(za) of the Sentencing Act be interpreted in a way that is “compatible” with the human right set out in s 25 of the Human Rights Act. Even if it is appropriate to read s 25 narrowly as referring only to maximum penalties (and I make no finding in that regard), s 33(1)(za) and s 33(3) should be interpreted in a manner that is compatible with the s 25 human right, to permit consideration of sentencing patterns at the time when the relevant offence was committed, where those patterns are more lenient than current sentencing patterns.
In my view, once the parties agreed that s 81 was the relevant offence for the purposes of s 56(7), the only possible answer to this issue is that each of the s 56 offences must be regarded as having a maximum penalty of five years’ imprisonment. This is consistent with both the interpretation arising from s 25 of the HRA and a practical interpretation emanating from s 34A.
Accordingly, I intend to proceed on this basis, noting that it will have a substantial effect on the sentences for the first three counts. But for my conclusion, the individual sentences would have been significantly higher, both because of the 25 years maximum and because of the need to take into account sentencing patterns (on a pro rata basis) at the time of the offending. The latter consideration will also play a part in sentencing for Counts 4 and 5.
The details of the offences are set out in the statement of facts. In summary, the offender was a tutor at Canberra Grammar School from 1981 to 1985. His role placed him in charge of a dormitory where boarders in Years 9 and 10 resided. The five victims were aged between 14 and 17 when the offences occurred.
The offender gave the victims special privileges such as staying up late, watching television, smoking cigarettes and playing computer games. He encouraged physical affection between them including hugs, kisses and massages. He also encouraged the boys to read his pornographic magazines and use his blow-up sex doll. He would carry out sexual activity with the boys individually or in the presence of two of them.
Beginning with Count 1, this is acknowledged to be the most serious of the charges. When the victim was in Year 8, regular acts of sexual activity commenced. They began with the offender masturbating and performing oral sex upon the victim. The latter was encouraged to masturbate with the use of the blow-up doll and pornographic magazines. This type of conduct, including the oral sex, continued and included the victim having to masturbate and perform oral sex upon the offender. There were many occasions when this type of activity occurred. It was sometimes seen by another victim. There were also occasions when anal sex was simulated. This is the only offence where oral sex occurred.
This victim read a victim impact statement. He says he started school as a “’normal’ boy with a normal life”. His grooming led him to become “calculating, lying and deceitful”. He had to change schools and his education was delayed. His relationship with his family suffered. They mistook his inner turmoil for him being a rebellious person.
He took to drugs and felt detached from society. He says that “[m]y secret, my silence became my survival mechanism. My trauma was internalised and never spoken of with anybody else (family, support groups, social services, counsellors etc.)”. The police investigation has brought back the trauma that he suffered. He has had to deal with it and open up “all of the feelings that [he] had suppressed and internalised for all of those years”.
Count 2 concerns a friend of the victim of Count 1. The relationship continued for more than two years. There were regular occasions of naked massages and mutual masturbation. On many of these occasions the victim of Count 1 was present. There were even group masturbation sessions.
The victim of Count 2 also provided a victim impact statement. The statement is notable because the victim internally distanced himself from his experiences. However, like many victims of this type of offending he says “I felt guilt and shame about it, as though it had been my fault and that I had brought it on myself”. He ends his statement in this way:
What I do know for certain is this. The defendant was placed in a position of trust, a position of power and authority over a group of young boys. He abused this trust, he preyed on these boys, myself included, and he caused damage to children that cannot be erased. To me this is unforgiveable, I cannot forgive him for what he did, to me and to others. I am glad that his past actions have finally caught up with him.
Count 3 also involves a more than two year relationship. There were, again, regular massage and masturbation sessions.
Counts 4 and 5 include ‘rolled up’ charges. In Count 4 there was masturbation of the victim. In Count 5 there was touching of the victim’s penis.
The Crown submitted that Count 1 was of a mid to high level of objective seriousness. Each of Counts 2, 3, 4 and 5 were assessed as being of mid-range objective seriousness. The offender agreed with these assessments, as do I.
The offender was born in 1955. He has only one minor, and irrelevant, matter in his criminal history. His good character prior to the offences must be effectively ignored by reason of s 34A(b), set out above. His good character since the offences can be taken into account. Included in the documents the offender tendered are two curricula vitae which give a picture of his tertiary and employment background. Assuming they are correct, it is impressive.
There is a more personal history set out in the report of Dr Sullivan, a forensic psychiatrist. The offender was born to a single parent who offered him for adoption. He was adopted and raised on a dairy farm in Victoria. He had a strict father but a caring mother.
The offender attended Scotch College in Melbourne where he was bullied. He sought solace in music. He was also subjected to sexual abuse while at the boarding school. In his letter to the court (Exhibit 1) the offender says that:
I, more than most people, should have known the lifelong effect that sexual abuse has on victims having been sexually abused myself from the age of 12 years at the boarding school Scotch College, Melbourne.
Abuse by a person who has been abused is all too common. Perhaps there is a psychological reason for this. I would have thought that an intelligent person like the offender might have taken the attitude that he did not wish others to suffer the way he had suffered.
The offender completed the Higher School Certificate in 1972 but did not do well. This was because of an injury he had suffered to his arm about six weeks before the examinations. He did not repeat the year but rather joined the public service and commenced on the career that is set out in the curricula vitae.
The medical history prepared by Dr Sullivan describes a number of physical illnesses and conditions that have impacted upon the offender’s daily life. Mentally, the offender suffers from claustrophobia, anxiety and stress. He has been treated by a psychiatrist. He has been depressed and had suicidal ideations. The offender may have also been an addicted gambler for some time.
Dr Sullivan diagnosed a social phobia and an obsessive-compulsive disorder. He also thought there was evidence of a recurrent depressive disorder of mild to moderate severity. There is a nicotine dependency. The doctor thought that when the offending took place he may have qualified for a diagnosis of hebephilia, which is a sexual attraction to adolescent boys. The doctor thinks that the offender’s own sexual abuse may have led to a “nascent confusion about his sexual identity, or this may have predisposed him to predation by others who perceived vulnerability”.
Dr Sullivan thought there was a moderate to low risk of reoffending. This is probably correct especially having regard to the improbability of available victims such as those who existed in the boarding school.
Dr Sullivan concludes with this passage:
In the event of imprisonment, [the offender] will experience incarceration as more burdensome than others, due to mood disorder, claustrophobia and the fact that oxazepam is unlikely to be prescribed (due to the potential for abuse and diversion of benzodiazepines in custodial settings).
Dr Sullivan’s views must be taken into account. It was conceded that they do not give rise to application of the Verdins principles (derived from R v Verdins [2007] VSCA 102; 16 VR 269).
The offender has been in custody for two days.
It is important for me to take into account ss 6 and 7 of the Sentencing Act which set out the objects and principles of sentencing. Section 33 of this Act is also important. In regard to s 10 no suggestion was made that there was any alternative to full-time imprisonment.
Principles of totality are important because of the multiple offences. At the same time the community, and especially each of the victims, is entitled to know that the offender is being punished for each of his offences. It will therefore be necessary to combine elements of accumulation and concurrency.
I make the following orders:
(a)In relation to Count 1, maintaining a sexual relationship with a young person (CC407/2019), the offender is sentenced to 2 years’ imprisonment (reduced from 30 months) to commence on 9 December 2019 and end on 8 December 2021.
(b)In relation to Count 2, maintaining a sexual relationship with person under special care (CC408/2019), the offender is sentenced to 19 months imprisonment (reduced from 24 months) to commence on 8 July 2021 and end on 7 February 2023.
(c)In relation to Count 3, maintaining a sexual relationship with a young person (CC410/2019), the offender is sentenced to 19 months imprisonment (reduced from 24 months) to commence on 8 September 2022 and end on 7 April 2024.
(d)In relation to Count 4, indecent assault on a male (CC6747/2018), the offender is sentenced to 15 months imprisonment (reduced from 18 months) to commence on 8 November 2023 and end on 7 February 2025.
(e)In relation to Count 5, indecent assault on a male (CC8545/2019), the offender is sentenced to 15 months imprisonment (reduced from 18 months) to commence on 9 September 2024 and end on 8 December 2025.
(f)The total period of imprisonment is 6 years.
(g)I set a non-parole period of 4 years, commencing 9 December 2019. The offender will become eligible to be released on parole on 8 December 2023.
| I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: 12 December 2019 |
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