R v GE
[2014] ACTSC 181
•5 June 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v GE |
Medium Neutral Citation: | [2014] ACTSC 181 |
Hearing Date: | 21 May 2014 |
DecisionDate: | 5 June 2014 |
Before: | Penfold J |
Decision: | See [42] and [43] |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentences for two counts of sexual intercourse with child under 10. CRIMINAL LAW – EVIDENCE – Evidentiary Matters Relating to Witnesses and Accused Persons – scope of victim impact statements – family members of victims may give evidence of emotional suffering including grief caused to them by effect of offence on victim, irrespective of whether victim has died or whether family member was financially or psychologically dependent on victim. |
Legislation Cited: | Crimes Act 1900 (ACT), s 55 (1) Crimes (Sentencing) Act 2005 (ACT), s 47 Explanatory Statement, Crimes (Sentencing) Bill 2005 (ACT) |
Cases Cited: | R v Muldoon (1990) NSWCCA 13 December 1990 R v Ronald King [2009] NSWCCA 117 |
Parties: | The Queen (Crown) GE (Accused) |
Representation: | Counsel: Mr S Drumgold (Crown) Mr S Gill (Accused) |
| Solicitors: ACT Director of Public Prosecutions (Crown) Capon & Hubert Lawyers & Mediators (Accused) | |
File Number: | SCC 377 of 2009 |
HER HONOUR: GE has been found guilty by a jury of two counts of sexual intercourse with a child under ten years of age committed on 8 April 2009. The offences arise under s 55(1) of the Crimes Act 1900 (ACT) and carry a maximum penalty including imprisonment for up to 17 years.
The child involved was five years old. She was GE's step-granddaughter, being the granddaughter of his second wife, whom he had married long before the child was born. The child had grown up thinking of GE as her grandfather. GE's name is suppressed only because this relationship means that publication of his name could enable the identification of the child.
The sexual intercourse consisted of performing cunnilingus on the child on two occasions during a period of a couple of hours one evening while GE was looking after the child in the absence of her mother and grandmother.
The circumstances in which GE was alone with the child are relevant in assessing the offences. Those circumstances were that the child's mother and grandmother were at the hospital visiting the grandmother's brother (so, the mother's uncle and GE's brother-in-law), who was dying of cancer, and indeed died shortly after they left the hospital that night. GE had previously visited his brother-in-law that evening, and had agreed to take the child back to his home so as to enable the child's mother to join the grandmother in visiting the sick man. It is also relevant to note in this context that GE's wife (the child's grandmother) had had a recurrence of breast cancer, and the family was at the time expecting confirmation that the cancer had become terminal.
The child described GE telling her to take off her pants and undies, and then making her sit on his belly and lift up her vagina so he could lick it. This happened first in the lounge room of GE's home, and then on the bed in the spare bedroom.
The child complained of the offences to her mother shortly after they left GE's home later that evening. Police were contacted and GE was interviewed the following day. He was charged and was on bail until I remanded him in custody on 14 April this year after the jury had delivered its verdicts.
Offences of this kind are serious, as shown by the very high maximum penalty. The prosecutor referred me to authorities for various statements of how gravely such offences are regarded, but I see no need to recite what in my view goes without saying.
As well, on any view, these are serious examples of the offence. The child victim, at age five, was in the middle of the age range of children covered by this particular offence. Perhaps the only thing that can be said in GE's favour is that cunnilingus may, at least in the particular context of a five-year-old child, be a slightly less serious version of sexual intercourse than any of the other forms of sexual activity covered by the definition of “sexual intercourse”.
On the other hand, there are some aggravating features of this offence, starting with the fact that GE had been entrusted with the care of the child and had unarguably breached that trust. Furthermore, some of the child's evidence at trial indicated that GE had also abused his authority over the child. She described the drive home from the hospital, and said that she had put her leg up on something and that Poppy hadn't liked it.
GE confirmed that she had put her leg on the dashboard and that he had told her not to. In cross‑examination, the child gave this evidence about the incident:
And he told you to put your leg down or you’ll get a smack? Is that what you remember?---Yes.
And then Poppy said that the two of you could have a secret and he would lick your vagina?---Yes.
Are you sure that Poppy said that in the car?---Yes.
What did you say to Poppy?---I said, “I don't know about it, Poppy”. But he said, “Do you want - come on or - you'll get in big trouble” and I said, “Fine”.
The process by which GE extracted a form of consent from the child (noting both that consent is irrelevant to the offence and that this might not have amounted to consent even if it were relevant), and the fact of having extracted that agreement are, in my view, aggravating features of these offences; the impact of this aspect of the incident will come up again later.
The victim impact statement was tendered by the prosecutor. The statement was made by the child's mother and. to the extent that the statement refers to the impact of the offences on the child, there is no challenge to its admissibility in general.
However, counsel for GE challenged the admissibility of the statement in two respects. He challenged the mother's capacity to predict what future harm her daughter might suffer, and he objected to her statement to the extent that it purported to deal with the effect of the offences on her and the child's family more generally.
As to whether the mother has appropriate expertise, counsel relied on the New South Wales case of R v Muldoon NSWCCA 13 December 1990 (Hunt, Enderby, Grove JJ) in which the Court of Criminal Appeal criticised a victim impact statement for containing unsupported predictions of future harm to a nine-year-old boy who had been subjected to anal intercourse by a family friend. That case appears to be no longer good law in New South Wales (see eg R v Ronald King [2009] NSWCCA 117 at [40]-[41]). On the other hand, the current position appears to be not that predictions of future harm do not need to be made by experts but that future harm is assumed to be a consequence of sexual offences against children. For that reason, of course, I must also be vigilant not to “double-count” by taking extra account of likely harm to the victim of the kind that is in any case recognised, and intended to be prevented, by the creation of the relevant offence and the setting of a high maximum penalty.
As to the relevance of harm to the child's mother and extended family, counsel's argument depends on an interpretation of the relevant Crimes (Sentencing) Act 2005 (ACT) provisions. Under those provisions, a victim impact statement may be made by a victim as defined in s 147:
·A “primary victim” is defined as a person “who suffers harm because of the offence”.
·A “victim” is defined as either a primary victim or a person who was “financially or psychologically dependent” on a primary victim who died because of the offence.
·“Harm” is defined fairly broadly, and includes:
ophysical or mental injury,
oemotional suffering including grief,
opregnancy,
oeconomic loss and
owhat is described as “substantial impairment of rights accorded by law”.
I note first in passing that the Explanatory Statement for the relevant legislation, after listing the various defined terms, says only and, in my view, unduly optimistically that “the intent of the definitions is to ensure that the ambit of ‘victim’ intended by the government is clear”.
Defence counsel's argument was in general terms that a “primary victim” must be a person who suffered harm directly because of the offence.
The person who is only harmed by the impact of an offence on a primary victim is not a victim, counsel said, unless the primary victim dies and the other person was financially or psychologically dependent on that primary victim immediately before he or she died.
A family member or carer may make a victim impact statement on behalf of a victim who cannot make one him or herself, whether because of age, infirmity or some other reason, but such a victim impact statement must describe the harm suffered by the victim, and not the harm suffered by the family or others.
Counsel's argument is, in summary, that the class of primary victims is very narrow and covers essentially the same group of people as those who would be described as complainants, although he did concede that certain people who directly experienced criminal activity, for instance, a bank robbery, without being directly targeted might nevertheless be accepted as a victim. However, he submitted, a person who is affected only by the impact of the offence on the complainant is not a primary victim, and only falls within the definition of “victim” if he or she was financially or psychologically dependent on a primary victim who died as a result of the offence.
On the interpretation proposed by counsel, the class of people whose harm can be the subject of a victim impact statement is very limited. Most notably, and relevant to this case, is that a parent would be excluded from reporting on the harm suffered by him or her as a result of harm done to his or her child, including, in many cases, even as a result of an offence that caused the death of the child; it is not clear what “psychologically dependent” means in the definition of victim, but “dependent” does not seem apt to describe the nature of a parent's relationship with his or her young child, as distinct from the relationship of the child with the parent.
I am not convinced by counsel's argument about the scope of the term “primary victim”. This is because it seems to ignore the breadth of the definition of harm.
While harm constituted by physical injury or pregnancy, for instance, is unlikely to be caused indirectly by an offence, emotional suffering and particularly grief may routinely be caused by the direct impact of an offence on another person, whether or not that other person dies. That is, the definition of “harm” suggests that “primary victim” may include people other than those who suffer harm directly as a result of an offence, relevantly, those who suffer emotional suffering or grief as an indirect result of an offence against another person.
A comparison with the equivalent New South Wales provisions (Division 2 of Part 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW)) is interesting. Those provisions are structured rather differently from the ACT ones. The expression “physical harm” is used, and it is defined, far more narrowly than “harm” in the ACT, as “actual physical bodily harm or psychological or psychiatric harm”. On the other hand, family members of a deceased primary victim (irrespective of any relationship of dependence) may make victim impact statements which may address “the impact of the primary victim's death on the members of the primary victim's immediate family” (s 26, definition of “victim impact statement”).
Thus, in New South Wales, primary victims are a narrow class of people, but the class of people who may explicitly make a victim impact statement in relation to a death is fairly wide. In the ACT, the class of people who may make a victim impact statement in relation to a death is relatively confined, but the class of primary victims appears to be rather wider because of the much broader definition of “harm”. In New South Wales, victim impact statements may relate to physical bodily harm, or psychological or psychiatric harm, as a direct result of an offence, or to the effect of a death on the deceased person’s immediate family. In the ACT, the victim impact statements may relate to a broader range of harm in general, but also to the impact of a death on a person relevantly dependent on the deceased person. The narrow class of people who may make victim impact statements about the death of another person implies, by comparison with New South Wales, that the class of primary victims is intended to be wider than in New South Wales, and this is borne out by the definition of harm.
I would have no difficulty in concluding that the ACT provisions are intended to permit a parent (or indeed other family members) of a young child (or indeed another person who has been killed) to make a victim impact statement about the emotional distress or grief suffered by that parent or other family member (whether or not the person was relevantly dependent on the deceased victim). Given that such an interpretation depends on the definition of “harm”, and not on the definition of “primary victim”, I can see no reason why that definition should not also cover emotional distress and grief caused by impact on a child or other victim that is less serious than death.
On this basis, the admissible parts of the mother's victim impact statement are those parts relating to the harm suffered by the child, and those reporting emotional distress and grief suffered by her mother, as follows:
I want to state briefly the effects that the criminal actions of [GE] have had on my daughter ... and myself.
[GE]'s actions have greatly affected our lives. The impact of his actions will be felt for many years to come, if not a lifetime for myself ... but most importantly, for my daughter, his granddaughter ....
It was five years virtually, to the day between [my daughter]’s disclosure and the conviction at trial. The week of [my daughter]’s disclosure in 2009 will be etched in our memory forever. My then five year old daughter ... disclosed to me what had been done to her. At that very moment, I realised my little girl's world had been shattered. Her innocence and naivety had been taken away from her in one [fell] swoop because of the actions of one man. [My daughter] was exposed to adult behaviour that no five year old should ever have to endure.
It was the same week my mum, who died that same year, was diagnosed with secondary breast cancer.
...
For months and months following that night, [my daughter] rocked on the floor and was inconsolable. She was so scared and traumatised that she would hit her head against the walls. All I could do was try to comfort her until she would eventually fall asleep. Once she was asleep, she would often wake from nightmares. The abuse continued to haunt her for years as she also often had night terrors. It was and continues to be so difficult to see my child in so much pain and not be able to help it stop or go away.
... Although five years on she is no longer rocking and hitting her head and the night terrors have decreased, ... She is still petrified of bumping into [GE]. Any person that looks or sounds like him scares her and makes her panic. If often takes a while to then console her.
At the time of the disclosure we lived close to [GE] and shared the same community. To help [my daughter] cope with her fears and worry, and to make it less likely we would see him, we were forced to move house. While this decision was made in [my daughter]’s best interest, it meant leaving her school and friends. She still worries about seeing him.
I am concerned for [my daughter]’s well-being in the long term. I am concerned how the impact of this crime will manifest in the future. I am concerned with her post-traumatic stress and anxiety. She will continue to need counselling for a long time.
Our mother and grandmother to [my daughter] (affectionately known as Nanny) died five months after the disclosure. It saddens me deeply that [GE]’s actions affected those last months of my mother's life so much. ... Nanny meant the world to [my daughter].
[My daughter] has said to me many times over the past five years that she wishes she could have her old life back. She wishes things could go back to the way they were before Poppy took it all away.
This has involved excluding material from the victim impact statement about the effect on the child's extended family. However, I do not believe that I need a victim impact statement to the relevant effect to be entitled to assume that sexual abuse within a family has the potential to tear the family apart, especially where the perpetrator denies his guilt and thereby forces family members to choose between believing the perpetrator and believing the victim.
In response to the victim impact statement, the defence tendered, without objection by the prosecutor, a copy of a journal kept by the child's mother from the day of the offences.
That journal records a number of occasions in the months after the offences on which the child demanded to see GE, and became distressed and angry when told she could not, including worrying that he would forget her. The journal records several points at which the child, apparently distressed, said that “everything” was her fault or expressed a wish to die, one occasion on which the child expressed regret that she had ever told her mother about the incident because if she hadn't she would still be able to see Poppy, one occasion on which she told her mother that GE was not a “scary monster”, and another occasion on which she reminded her mother that she (the child) had “said yes, when Poppy asked me”. There were also incidents recorded in the journal of the child describing both good and bad dreams about her step-grandfather, and expressing fear of him. The child also experienced night terrors on several occasions in the months after the incident, but the journal does note that there had been similar problems in the months before the incident.
I cannot see that this material does anything to undermine the assumption already mentioned that offences of this kind are damaging to children, or a finding that these offences have been damaging to this child.
It is true that the journal suggests that her experience had not deterred her from wanting to see GE. On the other hand, the child's very ambivalence about the incident, the evidence of her apparently genuine and deeply felt affection for GE, and her distress at the enforced termination of her relationship with him, to my mind demonstrates not that the offences were not significantly distressing to her, but that the offences have affected her life negatively in so many more ways than merely those resulting from the experience of inappropriate sexual contact.
Furthermore, the child's indications that she blamed herself, because of her disclosure to her mother, for the loss of her relationship with GE, and that she considered herself partly responsible for the incidents taking place at all, because she agreed to GE's request, are potentially extremely damaging in the longer term. In these various ways, the consequences of these offences may be more serious than would have resulted from equivalent sexual interference by a stranger.
GE maintains his innocence of these offences and intends to appeal against the outcome of the trial. As such, he has not expressed remorse or contrition. However, he did indicate to the Pre-Sentence Report author that there were many victims in this case, the main one being “a young girl who believes I did this and will go forward living with the consequences as if it had happened”. He recognised that one of the negative consequences of the matter would be the victim's belief that he had betrayed his position of trust as her grandfather.
GE, who is now 63, is an educated man with tertiary qualifications who had a career in the public sector and as a consultant before retiring in his mid‑fifties. He has been involved in various social clubs and other community activities. There is no suggestion of illicit substance use, and no suggestion that alcohol use is problematic for GE or was in any way involved in the offending.
The child's grandmother, who died several months after the offences were committed, was GE's second wife. He has not formed a further relationship. GE has two sons from his first marriage; they and their families, as well as his former wife, remain supportive.
GE has no prior criminal record and appears to be otherwise of good character. Several witnesses, including his ex-wife and the father-in-law of one of his sons, gave evidence that the offences seemed to them to be entirely out of character. Such evidence certainly highlights the sheer tragedy of this whole incident – on the other hand, it does not in my view have any particular significance in this sentencing.
First, it is recognised that for offences of this kind, good character may be relevant to facilitating an offender's access to a victim, although this may be less of an issue in a family situation. Secondly, the more “respectable” a person is, the less likely it is that any of his respectable friends would ever be allowed even a glimpse of the person's sexual interest in young children. On the other hand, whether GE's offence was an one-off aberration brought on by the undoubted stresses of the period during which it happened, or reflected a pathological but long concealed or repressed sexual interest in young children, cannot be inferred from the character evidence.
GE has some physical health challenges, relating to obesity, diabetes, sleep apnoea and degenerative bone disease causing episodic back pain; there is, however, evidence before me to the effect that these will be generally manageable in custody.
However, except for the very sad family circumstances at the time when these offences were committed, there is nothing that I can find in GE's background or personal circumstances that provides any explanation for his behaviour or that should excite the court's sympathy.
These are offences that require explicit denunciation. They are also offences for which general deterrence is vital, given that they are in many circumstances easy to commit and that for various reasons they may not come to light until much later or at all; on the other hand, the capacity of such offences to damage the victims is substantial. I am prepared to accept, however, that GE is unlikely to need further personal deterrence than has been provided by events since the night of this incident.
GE, please stand. I record convictions on two charges of sexual intercourse with a child under the age of ten years.
I now sentence you for each offence to imprisonment for seven and a half years. The second sentence will be accumulated so as to add six months, giving a total sentence of eight years, and I set a non-parole period of four years and six months. The sentence will be backdated to 14 April 2014, when you were remanded in custody, and so it will run until 13 April 2022.
The effect of the backdating and the non-parole period is that you will be eligible for parole, at the earliest, in a bit over four years and four months, being 13 October 2018.
You may sit down.
| I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: Date: 31 July 2014 |