R v GG
[2017] ACTSC 137
•26 May 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v GG |
Citation: | [2017] ACTSC 137 |
Hearing Date: | 18 May 2017 |
DecisionDate: | 26 May 2017 |
Before: | Mossop J |
Decision: | See [55] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – trial by jury – sexual assault in the third degree – assault occasioning actual bodily harm – intentional damage to property – relationship evidence – offender in position of paternal authority figure – no prior criminal history – sentence of imprisonment – backdated sentence to take time in custody already served into account |
Legislation Cited: | Crimes Act 1900 (ACT), ss 24, 51, 52, 53, 116 Crimes (Sentence Administration) Act 2005 (ACT) Crimes (Sentencing) Act 2005 (ACT), s 7, 63(1) |
Parties: | The Queen (Crown) GG (Defendant) |
Representation: | Counsel Ms S Gul (Crown) Mr J Stewart (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Ben Aulich and Associates (Defendant) | |
File Numbers: | SCC 165 of 2016 SCC 166 of 2016 |
MOSSOP J:
Introduction
After a trial lasting four days the offender, who I will refer to as GG or the offender, was found guilty of sexual assault in the third degree. A contravention of s 53(1) of the Crimes Act 1900 (ACT) carries a maximum penalty of imprisonment for 12 years.
He was also found guilty of assault occasioning actual bodily harm. The maximum penalty for that offence under s 24 of the Crimes Act is imprisonment for five years.
On day four of the trial the offender pleaded guilty to a charge of intentional damage to property. This was a contravention of s 116(3) of the Crimes Act which carries a maximum penalty of two years imprisonment or $7500 or both.
He was found not guilty of sexual intercourse without consent.
The offending conduct
The offender is the cousin of the victim’s mother. In mid-2011, the victim moved in with the offender and his wife. She was about to or had just turned 19 years old. She had a young child who was at that time, two or three months old. The victim had a somewhat disrupted childhood. Her evidence was that she had been adopted when very young by her aunt and uncle and lived with them in New Zealand until they moved back to Samoa. She then lived with her biological mother and father. Her mother was the victim of domestic violence and was ultimately murdered by her father. She moved to live with her mother’s cousin in Auckland. After the birth of her child she moved to live with the offender and his wife.
The offender and his family took her in to help look after her baby boy. The offender’s wife had four teenage sons from a previous marriage. The offender and his wife also had an 11-year-old daughter. They resided in New Zealand. In 2011 the offender and his wife decided to move the family to Australia. Before the whole family moved, the offender travelled to Australia to set things up before the rest of the family joined him. He decided that his stepson QG and the victim would go with him, leaving the victim’s son behind with the extended family. The victim did not want to travel to Australia but the relationship with the offender was such that she had no choice but to go. She found him scary. Her child remained in New Zealand in the care of the offender’s wife. In Australia they stayed with two Pastors of the Samoan Independent Seventh Day Adventist Church at a house in Weetangera.
The offender was very controlling towards the victim. He told her what to do and how to act. She was required to stay at home and do housework tasks. He told her how to dress. She was prevented from looking for or securing a job. She was prohibited from talking to any males including those who she met at the church which they attended. The offender would even get angry if she spent too long talking to women at the church. If he was unhappy with how she behaved, he would get angry and slap her across the face. I note that the offender’s controlling behaviour was not contested at the trial, indeed it was part of the offender’s case. In the house at Weetangera, the victim shared a room with another woman, VU.
Victim’s evidence
The victim’s evidence was that the sexual assault took place on a day when the offender and his son were at work. The offender had established a tree lopping business. The other people in the house had left to take the elder of the pastors who lived in the house, who was sick and elderly, to hospital. It was around late morning or early afternoon. She was hanging out the washing. The offender came round the side of the house and through the large fence. She was a little frightened because it was not
usual for him to come home at this time of the day. He said that they needed to talk inside. He said that she had been behaving weirdly and not listening. He said that she “...had to have sex with him.” Her reaction, as she described it, was “freaking out and scared” and she said “I don’t want to.” He told her that she had to remove her clothes. She refused, so he hit her with his right hand across her face. The victim said she was taking her time to undress and the offender was telling her to hurry up. She took off her T-shirt and jeans. He was standing and continued to shout at her to hurry up. She was hit a second time when she was on the bed with her clothes off. He said to her “Look what I have done. I am going to do this because you don’t listen to me.” He took his clothes off while she was sitting on the bed and lay on top of her. She struggled, but if she didn’t keep still, he hit her. She couldn’t recall how many times she was hit but more than once. He wanted her to kiss him but she refused and turned her head. She continued to struggle but he was too strong. She described him holding her arms down with his legs sitting on her. While she would have been able to cry out, she was scared to do so. She couldn’t recall how long sex went on but it stopped when VU arrived home in her car, which they both heard. He grabbed his clothes and went out the back door. She said that he said to her that she had to “...keep quiet otherwise [she] would find out what he’s capable of.” She said that he indicated that the threat was to kill her. She went straight to have a shower when VU arrived. She was left with a lovebite on her neck which she observed when in the shower.
The bed was a single bed. Afterwards the sheets and pillows were left everywhere on the floor.
She told the VU everything that had happened. She showed her the mark on her neck and was visibly shaking when she was telling her. She told VU that the accused had forced her to have sex. VU asked “Are you sure?” She showed her the mark on her neck and the room and VU just stood there.
Afterwards the offender acted normally, like nothing had happened.
Evidence was also given by VU, the woman with whom the victim shared a bedroom and who arrived home at the end of the incident. She gave evidence through an interpreter. She said that the victim made a complaint to her as soon as she got home. The complaint was that the offender “forced her”. This was explained as the offender “was trying to have sex with her”. She was asked whether the victim had said in any detail if he actually did have sex with her. VU said “not really at that time”. In cross examination it was suggested to her that in that conversation she didn’t say whether the offender and the complainant had sex. VU agreed with that proposition. VU’s evidence was credible.
TQ, the wife of the younger pastor who lived in the house, also gave evidence. While her evidence did shed some light on the meaning of “forced” in Samoan, she did not give evidence of any complaint relating to this incident as opposed to other incidents led as context evidence. Her evidence was that the word translated as “forced” meant forced her to kiss him and touch his private parts.
The offender did not give evidence.
Consistency of the verdict
In the trial he was found guilty on the charge of assault with intent to engage in sexual intercourse. He was found not guilty of the charge of sexual intercourse without consent. He was found guilty of the charge of assault occasioning actual bodily harm relating to hitting the victim.
The explanation for the difference between the verdict on the first count and the second count must be that the jury accepted the victim’s evidence but could not be satisfied beyond reasonable doubt that what had occurred was sexual intercourse. That was consistent with examination in chief of VU who had given evidence that she had been told that the offender tried to have sex with her. In cross examination it was put to her that the victim had not said that the offender had had sex with her and she agreed. The explanation for the difference between the verdict on the first count and the second count must be that the jury accepted the victim’s evidence, but in the light of the absence of an explicit complaint of actual intercourse made to VU, could not be satisfied beyond reasonable doubt that what had occurred was sexual intercourse, in the sense of actual penile penetration. Thus the jury’s verdict is consistent with the sexual assault in the third degree having occurred and that there was an attempt to have sexual intercourse but, notwithstanding the evidence of the complainant, the existence of a reasonable doubt as to whether or not that intercourse actually occurred.
Conclusion
I accept the evidence of the complainant in relation to the assault. I found her evidence to be very convincing, coherent, not overstated, consistent with the other evidence in the case, and given in an unaffected manner. I am satisfied beyond reasonable doubt that the incident occurred as described by the victim up until the point where the victim was naked on the bed. Specifically I am satisfied beyond reasonable doubt that she was struck twice by the offender with the intent of engaging in sexual intercourse with her. In the light of the jury’s verdict I must proceed on the basis that there was no actual intercourse in the sense of penetration of the victim’s genitalia. However I am satisfied in the light of the evidence that there was an intention and attempt to engage in sexual intercourse. It is not possible to determine why the intention was not carried through to actual penetration. The interaction was interrupted when VU arrived home in a car. Having regard to the limited conduct the subject of the assault charge and the finding of not guilty on the count of sexual intercourse without consent, it is not necessary to make specific findings beyond those which I have already made as to the nature of the sexual interaction that occurred.
Assault occasioning actual bodily harm
In relation to the assault occasioning actual bodily harm, the victim gave evidence that the day after her son’s birthday she told the offender that she wanted to go back to New Zealand. The offender became angry and hit her with an open palm on the face and ear. The offender did not challenge this evidence. The submission made by counsel for the offender, was directed to whether the effect of the assault amounted to “actual bodily harm”. The jury’s verdict necessarily accepted the victim’s evidence that she suffered numbness and ringing in her ear and that she could not hear properly for a day and that was the actual bodily harm.
Damage to property
In relation to the damage to property, the victim had a blue Nokia mobile phone. It was a touch screen phone and it belonged to her. The house did not have any Wi-Fi and the phone was used for the offender to call the victim. One day in the house, whilst the offender and the victim were talking together, the offender said that the victim was always on her phone. He asked her to give him the phone and then broke it by standing on it. The phone was in pieces and did not work as a result. The offender disposed of it in the bin in his room. The victim did not see the phone again. Sometime later he gave her a replacement phone. The condition on the use of that phone was that she couldn’t call anyone other than him. The incident with the phone was consistent with the course of conduct by the offender seeking to control and isolate the victim.
Victim impact statement
The victim impact statement which was tendered indicates that the victim now fears being alone and does not feel safe given that the offender is out there. She identifies that she lost her opportunity to continue her studies in Canberra or find a job because of his controlling behaviour and the circumstances in which she escaped from Canberra.
She is afraid and embarrassed that her children and family will find out what happened in the future. She suffered embarrassment as a result of the circumstances in which she left Canberra and was obliged to borrow money and rely on other people. She lost the opportunity to have contact with her son. She finds it difficult to move on with her life because of the painful memories that she has.
Having regard to the concerns expressed by the victim of the offending conduct, I have anonymised the name of the offender and some of the witnesses so as to reduce the likelihood that by identifying the offender or witnesses, the victim is also identified.
Objective seriousness
In relation to the offences against s 53 of the Crimes Act, it is important to recognise that the offence alleged and proved involves striking the victim twice prior to the sexual interaction. The offence does not include those aspects of the sexual interaction which might also have constituted assault but which would have been incorporated in the act of sexual intercourse without consent had the jury been satisfied beyond reasonable doubt that penetration occurred.
There are a number of aggravating features of this offence:
(a)The offender was in relationship of trust with the victim. He was in the role of stepfather, the victim having come to live with him and his family at the age of 19 shortly after the birth of her child.
(b)She was clearly a young adult who was vulnerable, having just had a child and having had a disrupted upbringing, which included the death of her mother.
(c)She was also more isolated at the time of the offence because at the offender’s instigation she had been brought with QG to Australia in advance of
the rest of the family. She had no connections within Australia other than those made through the offender. She had limited support from some of the women also living in the Weetangera house.
(d)The offender dominated and controlled most aspects of the victim’s life, limiting her contact with other people in the Australian community and controlling how she spent her time. It was this degree of control which made the offending conduct possible.
(e)The offender was aware of the degree of control which he exercised quite deliberately over her life and of her isolation within Australia. He was thus aware of and exploited her vulnerability.
On the finding of the jury the offender did not carry out his intention of sexual intercourse. On my findings the offender pursued that intention at least as far as an attempt where the subdued victim was naked on the bed. There is no evidence that he had a genuine change of mind that stopped him going further as opposed to being interrupted by the arrival of VU.
It is important to note the relationship between s 53 and ss 51 and 52 of the Crimes Act. Those latter sections provide for increased penalties where the assault occasions actual or grievous bodily harm. It is also notable that the principal feature of the offence which distinguishes it from a common assault is the association between the assault and the intention to engage in sexual intercourse. It is the intention which the legislature has fixed upon to dramatically increase the penalty. That reflects the gravity with which violence in aid of sexual coercion is treated.
In my view, notwithstanding the fact that the intention was not carried through, the assault in the present case falls within the upper range of objective seriousness for this offence.
In relation to the assault occasioning actual bodily harm, having regard to the relationship between the offender and the victim and her age, namely beyond any age at which physical discipline could be reasonable chastisement, the offence is in the mid range of objective seriousness.
In relation to the damage property charge, the property damage was relatively modest. The value of the phone was not identified in the evidence. The significance of the act was that it was part of the system of control and domination of the victim by the offender who was in a relationship of power and trust in relation to her. I assess it as being in the mid range of objective seriousness for this offence.
Subjective circumstances
Criminal history
The offender has no criminal history in Australia.
Similarly, the offender has no criminal history in New Zealand, where he had lived since 1987.
Pre-sentence report
The pre-sentence report indicates that the offender is 56 years old. He has resided in Australia since December 2011 and, as stated above, has no criminal history within Australia.
He was born in Samoa and is one of 11 children. He had a close relationship with his family. His father died in 1992. He remains in contact with his mother and siblings.
He left Samoa for New Zealand in 1987 and lived there until moving his family to Australia in April 2012. He was in Australia from December 2011 making the necessary arrangements in order to bring his family to Australia. He and his partner have six children. One of those children is the adopted child of the victim of the current offences.
He left school in Year 9 to work on the family plantation. He has been self employed since 2012 in the tree lopping industry. He is a member of the Samoan Independent Seventh Day Adventist Church. This appears to be a church that operates within the Samoan community. He was an active member of that community although has ceased participating in it as a result of the current proceedings.
He takes medication to treat blood pressure and gout, and has impaired hearing.
He continues to deny the truth of the offences and does not accept any responsibility for his offending behaviour. As a consequence he did not demonstrate any remorse or empathy for the victim. He was assessed as being at a medium to low risk of sexual recidivism. He was assessed as suitable for a community service work condition.
References
Three references were tendered on behalf of the offender.
The first is a letter from UU (Exhibit 3). He met the offender through the Samoan Independent Seventh Day Adventist Church in Canberra where he and the offender are elders. He describes the offender as “a very very good man” and records that he is “incredibly helpful, especially to older people in our Church”. However the letter continues:
I know he beats his children but this is normal for our culture He is very proud of our culture and he is a tough man but he only does what he sees as right and best for all our children... Beatings are one way we teach our children and [the offender] is exactly like any other Samoan parent. We are all the same in this way.
He records that he had never heard of the offender being sexually abusive prior to his conviction. He records that while he was in prison on remand his family missed him a lot and that his sons depend upon him for his skills in their tree lopping business.
The contents of this reference are obviously matters of concern. It is surprising that it was tendered on sentence. The reference appears to indicate that the offender moves within a part of society which accepts the beating of children as a legitimate means of control. That this evidence was included as part of a reference for the offender is consistent with the necessity that appears from the other evidence in the case for specific deterrence of violent conduct in the future.
The next reference was from GS (Exhibit 4). GS is 75 years old and a member of the Samoan Independent Seventh Day Adventist Church. The reference refers to the offender’s “utterly selfless” nature and the assistance that he gives to members of the community associated with that Church. It also deals with the issue of physical discipline. It points to the difficulties that are faced when children living in Australia “get the wrong idea” thinking that “the pasture is greener on their friend’s side” and lose respect for their elders. This is perceived as forgetting their culture and leads to discipline.
The final reference is a letter from the offender’s son QG (Exhibit 5). He is 23 years old and works with his father in his father’s business. He gives evidence that the business is the only family income and that it depends upon his father for his experience in undertaking the jobs as well as driving the manual truck used in the course of the business.
Family circumstances
The offender is the principal breadwinner for his family. QG aged 24, EG aged 19, the victim’s son aged six, and QG’s partner lives with them. The evidence in QG’s letter indicates that the offender is the moving force behind the tree lopping business and that there will be some impact if he is incarcerated because of his primary role in running the business, ensuring the safety of the tree lopping operations and driving the manual truck. There is no evidence that QG, EG, or QG’s partner would be otherwise prevented from obtaining employment so as to support the family. There was evidence that the offender’s wife has health difficulties. While I accept there would be a financial impact upon the family, the evidence does not go so far as to demonstrate any unusual financial hardship or any particular adverse financial consequence that would flow from a sentence of full time imprisonment.
Appropriate Sentence
The offender has no criminal history. He is considered by some members of the Samoan community involved in his church to be a person of good character. However that opinion as to good character appears to be formed in the context of a community that accepts violence directed to children. The conduct for which he is being sentenced is consistent with controlling and dominating conduct directed to a vulnerable person in relation to whom he was in a position of trust. While an acceptance of the need for parental control within a culture provides some explanation of his conduct, it does not excuse his conduct having regard to, first, the nature of the offending conduct involved in the sexual assault offence and second, the age of the victim in relation to the other offences. His cultural background is one which appears to accept a degree of intrafamilial violence and dominating behaviour which is both disturbing and contrary to the law.
The offender does not accept the jury’s verdict. He has demonstrated no remorse.
Having regard to those facts, his age and the evidence and admissions in relation to his approach to discipline, it is hard to assess prospects of rehabilitation.
While the pre-sentence report recorded that he had been assessed as being a medium to low risk of sexual recidivism, in my view, there is clearly a need for specific
deterrence in relation to sexual offending conduct. Similarly, there is a need for specific deterrence in relation to violence directed to young people and their property. The evidence in the case indicates that his approach to his relatives involves violent and controlling behaviour. The evidence tendered on sentence indicates this behaviour which appears to be normalised in the circles within which he moves. In those circumstances specific deterrence is also a very significant sentencing consideration. I do not consider that the absence of a criminal history undermines the need for specific deterrence because it is clear that he is respected in his community while at the same time engaging in violent and sexually violent conduct at home.
Clearly general deterrence is also significant. Intrafamilial sexual violence perpetrated by dominating and controlling men is conduct in relation to which general deterrence will be a significant sentencing consideration as will punishment and denunciation.
Having regard to the maximum penalty and the aggravating features of the assault, in relation to the offence of sexual assault in the third degree, I consider that imprisonment is the only appropriate sentence for the offence. In relation to the other offences, I am satisfied that having regard to the absence of a criminal history and questions of totality, notwithstanding the significant need for specific deterrence, they may be appropriately dealt with other than by way of a sentence of imprisonment.
No party submitted that an Intensive Corrections Order was appropriate and I do not consider it to be appropriate.
Counsel for the offender submitted that a suspended sentence of imprisonment or alternatively a partially suspended sentence of imprisonment that was backdated to take into account the time spent in custody on these charges as well as the charges on which the accused was acquitted may be appropriate. He submitted that a suspended sentence of some form could be combined with an order for community service.
I am not satisfied that a wholly suspended sentence would adequately address the purposes of sentencing in s 7 of the Crimes (Sentencing) Act 2005 (ACT). I consider that only a sentence of full time imprisonment will appropriately address the offending conduct. I take into account that this will be the offender’s first full time sentence of imprisonment. In my view the appropriate sentence is one of two years with a non parole period of 12 months. Dealing with the matter by way of a non parole period rather than by way of suspension of the sentence means that there will be a better opportunity for the assessment of the risk posed by the offender than is presently available to be made when considering whether he should be released on parole.
Backdating
The offender has spent 43 days in custody in relation to these offences. He has also spent 36 days in custody as a result of the other charges of which he was acquitted after a separate jury trial. Total period in custody is 79 days. Notwithstanding that the 36 day period related to separate charges I consider that it is appropriate to backdate the sentence to take that period into account. Neither party submitted that this was not within the general discretionary backdating power in s 63(1) of the Crimes (Sentencing) Act. There is otherwise the potential for a sense of injustice at having been remanded in custody in relation to offences of which he was ultimately acquitted and receiving no
credit for that period notwithstanding being sentenced to imprisonment. That means that the appropriate date for backdating purposes is 8 March 2017.
Sentence
The orders of the Court are:
1. On the charge of sexual assault in the third degree, the offender is convicted and sentenced to imprisonment for two years commencing on 8 March 2017 and ending on 7 March 2019. I set a non parole period of 12 months from 8 March 2017 to 7 March 2018.
2. On the charge of assault occasioning actual bodily harm, the offender is convicted and required to enter into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of three years from today.
3. On the charge of damaging property, the offender is convicted and required to enter into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of three years from today.
| I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 16 June 2017 |
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