R v Gray
[2021] ACTSC 218
•3 September 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Gray |
Citation: | [2021] ACTSC 218 |
Hearing Date: | 3 September 2021 |
DecisionDate: | 3 September 2021 |
Before: | Elkaim J |
Decision: | See [45] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – unlawful take away child under 12 years – possess knife without reasonable excuse – pleas of guilty |
Legislation Cited: | Crimes Act 1900 (ACT) ss 39, 40, 382 Crimes (Child Sex Offenders) Act 2005 (ACT) s 15 Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 33 |
Cases Cited: | Bugmy v The Queen [2013] HCA 37 R v De Simoni (1981) 5 A Crim R 329 R v Summer; R v Miller (No 2) [2019] ACTSC 11 |
Parties: | The Queen (Crown) John Michael Gray (Offender) |
Representation: | Counsel C Muthurajah (Crown) J Cooper (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service (Offender) | |
File Numbers: | SCC 3 of 2021; SCC 4 of 2021 |
ELKAIM J:
On 14 September 2020 the offender pleaded guilty in the ACT Magistrates Court to one count of unlawfully taking a child under 12 years, contrary to s 40(a) of the Crimes Act 1900 (ACT). The maximum penalty is 10 years imprisonment.
The offender also pleaded guilty on the same date to a charge of unlawfully possessing a knife contrary to s 382(1) of the Crimes Act 1900 (ACT) which was transferred from the ACT Magistrates Court. The maximum penalty is 6 months’ imprisonment, a fine of $1600 or both.
The offender has spent 385 days in custody in relation to the above offences.
The facts are set out in detail in the Agreed Statement of Facts which forms part of Exhibit A. The following is a summary: on 15 August 2020 the offender was sitting at the base of a building in the Canberra CBD. He had a knife in his pocket. Nearby a mother and her three children were walking along the street. Neither the mother or her children knew the offender.
One of the children, AB, a female, was 5 years of age. As the family passed the offender, AB observed him for a short time. He stared back. He then stood up and grabbed AB around her waist. He ran away with her tucked under one arm. He fled into a lane. The child’s mother screamed: “Help, someone’s taken my child”.
Mr Declan Smith heard the screams. Mr Smith chased the offender into the lane. The offender dropped AB onto the ground. As he did so the knife fell out of his pocket.
Leaving the child behind, the offender ran back onto Bunda Street. Mr Smith stopped him and took him into custody. This is a classical citizens’ arrest performed by an unquestionably brave person.
The police arrived and formally arrested the offender.
AB told the police that “she was shivering after the incident happened because she was so scared”.
When arrested the offender was on parole for offences committed in New South Wales.
The statement of facts does not disclose any motivation for the crimes. But the Pre-Sentence Report does. These passages from the Report disclose the motive and, without more, would heighten the condemnation of the offender:
When reflecting upon his offences, Mr Gray advised that he felt embarrassed and stupid. He indicated he knows what he was trying to do was wrong and went on to state that people view ‘that kind of thing’ as wrong adding ‘you aren’t meant to have sex with children’. Mr Gray stated that he was sexually attracted to female children, but that he also found women his own age attractive. He reported he has never initiated a romantic relationship with anyone of a similar age. Mr Gray added that while he found the victim attractive, he did not think that the feelings were reciprocated. Mr Gray noted that he was seeking a relationship with the victims of his offences, but that he was not sure what that entailed stating he had ‘never got that far’. He also acknowledged that forcing someone into a relationship was inappropriate and having a relationship with the child was ‘wrong’.
Mr Gray acknowledged that this was the second occasion where he had attempted to lure a child for sexual activity and while noting it was ‘wrong’, had not considered the steps he would take to cease further offending.
What emerges from the above passages is that the offending was sexually motivated with the intent of securing a child for sexual gratification. The suggestion of entering a “relationship” is both ridiculous and deviant.
The Pre-Sentence Report is not, however, the final word on motive. There is compelling evidence of contribution from mental impairment. The sexual connotation disclosed in the Pre-Sentence Report has been subsequently denied. There is a report from Dr Boer, a clinical psychologist, dated 31 March 2021. In this report the offender gives a very different history. He told Dr Boer that he has no sexual interest in children and that his previous crimes against children had occurred when he was “actively psychotic”, during periods of schizophrenia. In addition he said that he had “no purpose for the abduction”.
This conflict in histories led to an application, on 12 April 2021, that the forthcoming sentence hearing (on 16 April) be deferred to enable further psychiatric assessment and in particular to obtain a National Disability Insurance Scheme (NDIS) assessment which might dictate future mental care for the offender when he is released from prison. Dr Boer said that re-offending by the offender would be influenced by his medication compliance and use of drugs. It is therefore important that his return to the community have at its core, not only his welfare, but also that of the public at large. A person likely to offend against children, in fact against any member of the public, should not be able to roam freely amongst the public.
I have been provided with the NDIS plan, set to commence on 2 August 2021, but clearly tailored to take into account the offender remaining in custody. This is evident from the email from Mx Sara Stanley dated 10 August 2021. Mx Stanley describes the funding that has been made available and the intention to secure appropriate living conditions.
Mx Stanley states:
My recommendation would be that John lives in Special Disability Accommodation that has 24/7 concierge support supplemented by support workers.
The importance of this recommendation is that it envisages the offender living in controlled accommodation so that his movements are, at least to some degree, subject to supervision.
The offender was born in 1993 in Queensland. He has lived most of his life in Wagga Wagga in New South Wales where he has accumulated a significant criminal record. He has spent a good deal of time in prison.
The offender had a good relationship with his father until he passed away. He continues to have a supportive relationship with his mother. He is not close to his two brothers. When he was 25 years of age he was in a relationship with a woman aged 40 but this only lasted for two years.
The offender identifies as being of Indigenous origin and “celebrates his culture through participating in traditional dance, playing the didgeridoo and identifying as an elder within his family”.
The offender completed his Year 10 certificate. He was in a class for children with behavioural issues. He was frequently suspended from school for errant behaviour such as setting off fireworks and being in possession of cannabis. After leaving school the offender cared for his ailing father. He has never been employed.
Mr Cooper, on behalf of the offender, put his subjective circumstances in this way:
2.John Grey was born to parents that neglected him. As a nine year old boy he was taken away to foster care. But he was not safe there. His foster mother treated him so badly she was prosecuted and convicted for abusing him.
3.At 15 years old he was taken back to live with the parents that had neglected him. They had alcohol and drug problems. His dad ultimately died of an overdose. John Grey became homeless, addicted to drugs, and suffered unresolved mental-health issues.
4.At the time of the offence and at the time of the offences on his record, John Grey was deluded and hearing voices. He was homeless and taking drugs.
5.However, there has been an intervention since this offence occurred. John Grey is now for the first time properly medicated for his schizophrenia. He has obtained a significant wrap-around support package from the NDIS. He has never had this support before.
As I have said, the offender has an extensive criminal history. There are many offences concerning property. There are also offences of stalking and, most relevantly for present purposes, offences in 2018 of procuring a child under 14 years for unlawful sexual activity. I assume these are the origin for the offender being on the sexual offender register.
The offender is a regular user of methamphetamines and heroine. He says drug use contributed to his offending. He was using heroin and was “hearing voices in his head that were telling him to ‘take a kid’”.
The offender, by his plea of guilty, has indicated remorse. Of course the case against him was very strong. But he did write to the Court. Here are some excerpts:
1.The letter from the victim’s mum just got read to me. I want to apologise for what I done. I was mentally unwell and did not know what I was doing. I feel devastated I did that. I feel like an idiot. But it is worse for the girl and her family. I want to apologise for the young girl that I hurt. And everyone else who involved who is hurt.
4.I had delusional thoughts and was sick. Getting the medication has made me well. I am now delegate for my unit in the gaol. I help other people in the gaol by talking to staff about their needs. It has been scary in gaol because of my offence. I have been determined to get well and stay well.
Returning to Dr Boer, he gives a description of the offender’s mental impairment:
File information indicated that Mr Gray has been variously diagnosed with depression with psychotic episodes and delusions; drug-induced psychosis with behavioural disturbances; cluster B personality disorder with antisocial type; and schizophrenia.
A recent psychiatric report by Dr Kasinathan (dated 21 August 2020) indicated that Mr Gray’s current diagnoses includes schizophrenia; cannabis, amphetamine (ice), and alcohol use disorder; and paedophilic disorder (paraphilic disorder).
Mr Gray has been diagnosed with a “drug-induced psychosis” in May 2015 according to medical file information. He had been experiencing auditory hallucinations, paranoia, labile mood, increased agitation, and aggressive behaviour at the time. He has been otherwise diagnosed with “schizophrenia” in the medical file information.
Clearly the offender has very significant mental health problems which surface, at their most dangerous, when he is not compliant with medication. This is another reason for him to be in supervised accommodation.
On the basis of the overall evidence, but in particular the description given by Dr Boer of the offender’s mental history, confirmed by the approval of an NDIS plan, I think the only conclusion open to me is that the motive disclosed in the Pre-Sentence Report did not cause the offending. Rather, while it may have been an apparent motive, the offender’s actions were a product of a psychotic episode derived from mental impairment.
Accordingly I must take his mental condition into account. I have quoted above from Mr Cooper’s written submissions which are no doubt intended to produce a result which reflects the offender’s past, his mental health history and his now, and for the first time, prospects of appropriate treatment.
Of course I must also consider the objects and purposes of the Crimes (Sentencing) Act 2005 (ACT), in particular ss 6, 7 and 33.
Hopefully the inclusion in the NDIS plan will greatly assist the offender and lead to a more balanced and lawful lifestyle.
At the same time I must not forget the offence and the horrific experience endured by the young girl and her mother. The circumstances of this crime make it difficult to assess its objective seriousness. There are very few comparable cases. Most examples of taking a child do not have their origins in psychotic behaviour.
The Crown, having distilled the decisions in R v Summer; R v Miller(No 2) [2019] ACTSC 11 and R v Kane [2019] QCA 19, said the following factors were relevant to the assessment of objective seriousness:
(a)The offender was a stranger to the child.
(b)The offender had previously seen the child in the Canberra Centre and found himself sexually attracted to her. He then followed her for a period of time and waited for her.
(c)The offender intended to take the child to have sex with her.
(d)The child was only five years of age.
(e)The offender used physical force to abduct the child.
(f)The offender, after having used force to take the child, immediately ran with the child into an alleyway.
(g)The child was detained for a short period of time.
(h)The offender was in possession of a knife in his pocket at the time of the abduction and there was risk of harm to the child.
(i)The child (and her mother) would have been incredibly distressed. The child was ‘shivering’ because of how scared she was.
While I generally agree that the Crown has identified the relevant considerations, for the reasons given above, I think I must temper the sexual intentions of the offender with the effects of his mental health condition and the probability that he was suffering a psychotic episode at the time of offending.
In addition, Mr Cooper said I should not take a possible sexual motivation into account because the offender had not been charged with the more serious crime of kidnapping (s 39 of the Crimes Act 1900 (ACT)) which involves the presence of an advantage (such as sexual gratification) as an ingredient. Mr Cooper relied upon The Queen v De Simoni (1981) 5 A Crim R 329 for this proposition. Gibbs CJ said, at [8]:
However, the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted.
The Crown fairly conceded Mr Cooper’s point but said that while the sexual aspect should not be regarded as an aggravating factor it should nevertheless form part of the overall circumstances of the case.
Other considerations include the possession of the knife and the offender being on parole at the time and subject to reporting obligations as a registered sex offender.
Taking all these matters into account I assess objective seriousness as about medium for this type of offence.
Obviously the offence must attract a significant period of imprisonment, but it must be tempered by the offender’s history (in accordance with Bugmy v The Queen [2013] HCA 37) and the influence of his mental health, in particular the schizophrenia, on the offending. Dr Boer stated in simple terms:
In my opinion, there is a causal connection between his mental impairment and his offending, and it appears to have contributed in a direct fashion to his behaviour.
There is no opposing opinion relied upon by the Crown.
The Crown has made an application under s 15 of the Crimes (Child Sex Offenders) Act 2005 (ACT) for the offender to be included in the sex offender register. As noted above he is already on the register as a result of offences in New South Wales.
The offender opposed the order, submitting that he was already on the register so that there was no immediate utilitarian value. The Crown said that the New South Wales order would be effective for another six years. Although there would be no extra supervision during the overlapping period, the ACT order would continue to protect the public, in particular children, for a further time after the expiry of the existing period.
Although I have allowed for the intervention of mental health issues as being behind the offences, and this not being a case of simple sexual deviation, it is nevertheless significant to note that when the offender is not complying with his medication regime, there is a real chance of him transforming into a sexual predator. The extra supervision which entry into the register will impose is, I think, necessary to guard against future attacks on children.
The plea of guilty was entered at an early opportunity. Although the Crown case was very strong the offender is nevertheless entitled to a discount on his sentence which I assess at just above 20%.
I make the following orders:
(i)For the offence of unlawfully taking a child (CC2020/9728) the offender is sentenced to imprisonment for 2 years and 6 months (reduced from 3 years and 3 months), to commence on 15 August 2020 and end on 14 February 2023.
(ii)For the transfer offence of possessing a knife without reasonable excuse (CC2020/9729) the offender is sentenced to 3 months imprisonment, to commence on 15 August 2020 and end on 14 November 2020.
(iii)I set a non-parole period of 15 months, to commence on 15 August 2020 and end on 14 November 2021.
(iv)I respectfully recommend to the Parole Authority that parole not be granted until the authority is satisfied that the implementation of the NDIS plan will be effective from the date of the offender’s release.
(v)A child sex offender registration order is made under s 15 of the Crimes (Child Sex Offenders) Act 2005 (ACT).
| I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim Associate: Date: 3 September 2021 |
0
3
3