R v Hammer
[2019] ACTSC 182
•15 July 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Hammer |
Citation: | [2019] ACTSC 182 |
Hearing Dates: | 1 May 2019, 15 July 2019 |
DecisionDate: | 15 July 2019 |
Before: | Murrell CJ |
Decision: | Sentenced to a total of 22 months’ imprisonment to be served by way of intensive correction in the community. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Act of indecency upon a young person – Sexual intercourse with a young person – Significant breach of trust – Where the victim has an intellectual disability – Where the offender experienced traumatic child sexual abuses and other abuses – Where the offender suffered from various mental health issues and has an overall cognitive ability in the low average range – Personal deterrence – Rehabilitation – Recognition of harm – Whether an intensive corrections order is warranted. |
Legislation Cited: | Crimes Act 1900 (ACT) ss 55(2), 61(2) Crimes (Sentencing) Act 2005 (ACT) ss 7, 11, 33, 35 |
Cases Cited: | Edwards v The Queen [2001] WASCA 263 R v Farrugia (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 1 October 2013) R v QI (No 2) [2016] ACTSC 188 |
Parties: | The Queen (Crown) Samantha Hammer (Offender) |
Representation: | Counsel K McCann (Crown) R Davies (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 16 of 2019 |
Murrell CJ
The offences
The offender is to be sentenced for two offences that occurred on 3 August 2018. First, the offender committed an act of indecency upon a person aged under 16 years, contrary to s 61(2) of the Crimes Act 1900 (ACT) (Crimes Act). Second, she engaged in sexual intercourse with the young person, contrary to s 55(2) of the Crimes Act.
The maximum penalties for the offences are, respectively, 10 years’ and 14 years’ imprisonment.
The offender pleaded guilty to the offences on the fourth mention before the Magistrates Court. The early pleas have high utilitarian value. Despite the strength of the Crown case, I will allow a discount of 25 per cent under s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
The offender has spent no time in custody.
At the outset, I wish to acknowledge the pain and harm caused to the victim of the offences and his mother. In these reasons I will refer at length to the subjective circumstances of the offender because they are complex and important to an understanding of her conduct. I hope that the victims do not see this as in any way diminishing the Court’s focus on their suffering.
Facts of the offences
The victim, C, was 15 years of age at the time of the offences. C is moderately intellectually disabled; his social reasoning and cognitive capacity are below his chronological age. He attends a special school for young people with special needs. C’s mother describes him as having a rudimentary sense of right and wrong. He is easily influenced. C does understand the difference between the private and public parts of a person’s body and who should touch them.
As at August 2018, C was supported by a company called DUO, which provided personal home care services. DUO provided him with a regular support carer.
Initially, DUO employed the offender as a cleaner. However, despite her lack of relevant training, she was elevated to the position of casual support worker.
On 3 August 2018, arrangements were made for the offender to care for C, as his regular support carer was unavailable. She had had had no prior contact with C.
The offender commenced her shift at about 3:00PM, when she collected C from school and drove him to his residence. After entering the house, C showed the offender around the house and then played video games and musical instruments while the offender watched.
At some point C said to the offender, “Do you have a big vagina?” to which the offender replied, “Do you have a big penis? Don’t answer that!”
At about 4:00 PM, C and the offender began to watch a movie together. C sat on a couch to the left of the offender. There was no room between them. During the movie, C put his right hand behind the offender, placed his head on her upper chest, and rubbed her stomach with his left hand.
After placing a blanket over both of them, the offender asked C, “Would you like to touch it [referring to her genital area]?” C moved his hand to the offender’s groin area and started to rub her genital area above her clothing. The offender touched C’s penis over the top of his clothing and he giggled. The offender asked him, “Do you want me to stop?” and “Is it okay?” to which he replied that it was okay.
The offender removed her clothing, exposing her genital area and allowing C to digitally penetrate her vagina with his left hand, using two or three fingers. This conduct constitutes the sexual intercourse charge.
C removed his underpants, exposing his semi-erect penis. The offender masturbated C’s penis for approximately three or four minutes and then heard a car noise, which the offender thought may have been C’s mother returning home. She stopped momentarily. C got up and looked out the front of the residence, before sitting back next to the offender and removing his pants again. The offender continued to masturbate C’s penis for about 15 minutes before she heard another noise and stopped. The masturbation constitutes the act of indecency.
In relation to the time periods stated above, while they are contained in the agreed facts, I take them to be rough estimates. In any event, I am satisfied that the masturbation went on for a very significant period of time.
After these events, the offender told C to wash his hands and said that he should not tell anyone. She said that what had happened was “their little secret”.
At about 5:50 PM, C’s mother returned home. The offender met her at the rear door. During a brief conversation, the offender reassured C’s mother that she had brothers with the same diagnosis as C, that she knew what boys were like, and that she had had experience working with boys. The offender left the residence at about 6:00 PM.
After the offender left, C’s mother observed that C was acting abnormally. He held a toy gun against his right temple and said words to the effect of, “I hate my life, I want to die”. Initially, C was hesitant about telling his mother what had occurred, repeating words to the effect of, “I don’t want to tell you because I’m scared I will get into trouble”, “It’s really bad”, and “I don’t want to go to jail”. Eventually he disclosed what had occurred.
At about 7:00 PM, C’s mother called the police.
C participated in an evidence-in-chief police interview in which he described what had occurred.
On 14 August 2018, the offender participated in a record of interview with police during which she made full admissions. She told the police that she had lost a game of hockey the previous Sunday and was feeling vulnerable as she had been berated by the coach. She said that she had had been craving the type of attention that C had offered to her. She said that she was deeply remorseful for her actions.
Later, the offender informed others that, at the time of the incident, she had felt rejected by her partner and very alone. She expressed much greater insight into why the offending had occurred (see below at [54]).
Victim Impact
The prosecutor read a victim impact statement from the victim’s mother.
Understandably, since the incident the victim has struggled with feelings of fear, sadness, and guilt related to the offender’s plight, as well as embarrassment and confusion. Because of his disability, it has been more difficult for him to process and understand what occurred.
C’s mother fears that he is at elevated risk of future manipulation by carers and others due to his residual guilt and confusion. She, too, has lost confidence in the disability care sector, which adds to the already great stress of raising a disabled child.
Objective seriousness
The defence conceded that the offences were very serious. They involved a serious breach of trust in circumstances where the offender was the sole carer of the victim and was well aware of his special needs. It was by virtue of her position that the offences were enabled. They occurred in the victim’s home, which should have been a place of safety for him. There was a significant age difference between the offender and the victim; the offender was 27 years old at the time of the offences.
The offence of act of indecency involved a significant and prolonged act of masturbation.
The content of the offence of sexual intercourse (brief digital penetration of the offender, rather than the victim) was of relatively low seriousness. However, the circumstances in which it occurred make it serious.
After the offences occurred, the offender urged the victim to keep the incident secret.
The victim was especially vulnerable. The fact that he was under 16 is an element of the offence and is part of the ordinary circumstances of the offence. However, he was, to the offender’s knowledge, intellectually disabled. Any child is deemed unable to give meaningful consent to sexual activity, a circumstance which is aggravated in the case of an intellectually disabled child.
Inevitably, the victim’s disability has made it more difficult for him to understand and deal with what has occurred.
Although, as submitted by the defence, the offences were part of an isolated episode of impulsive conduct that was not initiated by the offender herself, she remains morally culpable. She realised at the time that her conduct was quite wrong.
The offending conduct needs to be understood in the context of the offender’s personal situation, as discussed by Dr Clout (below at [51]).
Subjective circumstances
The offender is now 28 years of age. She has no criminal history.
She experienced a traumatic upbringing, in which she was exposed to neglect, bullying at home, and physical and sexual abuse by her father (including penile/vaginal intercourse). The father also abused her mother and siblings. At times, the children were required to perform sexual acts upon each other while their father watched.
The family lived in terror of being punished by being struck with a stick near their genital areas. They were emotionally abused and made to feel guilty. If their father observed them enjoying themselves, he became upset. They were not permitted the usual highlights of childhood, such as parties and receiving presents from their parents. In addition, like so many domestic abusers, the offender’s father strongly discouraged his children from forming close relationships with friends and others in whom they may have been able to confide, and from whom they may have been able to obtain a support. By several accounts, the offender was more severely victimised than other members of the family.
The offender’s grandfather died when the offender was 12 years old, and his death had a significant impact on the offender. It coincided with the offender’s first depressive episode. The offender’s grandfather had been one of the very few people with whom she had had a close and healthy relationship.
Fortunately, once events came to his attention, the offender and her siblings also received considerable support from Mr Anderson, the national director of LINC Church Services Network National.
The offender’s upbringing and schooling experience was further complicated by the fact that her father cross-dressed, which was a source of great difficulty for the offender and her siblings. For example, the offender’s father would dress as a woman when acting as the crossing attendant at the offender’s school, or when volunteering at the school tuck shop. He became transgendered when the offender was about 10 years old, but her parents did not separate until later.
The offender managed to complete Year 12, despite being the victim of frequent bullying associated with her father’s very public cross-dressing.
In her late teens, the offender experienced another traumatic event. She was a passenger in the family vehicle, which was being driven by her father when it was involved in a serious car accident that left the offender’s sister a paraplegic. The response of the offender’s father was to tell the children that they should deny that he had been speeding in order to protect the insurance payout.
The accusations made against the offender’s father are such as to be almost unbelievable. But I accept the evidence of the offender’s aunt, who stated:
I lived in the same house as the offender’s father for 18 years and believe every accusation made against him. There is no doubt that [the offender] had a horrific upbringing in so many ways.
The offender has no regular contact with her mother and siblings.
However, she does enjoy a close and supportive relationship with her aunt and uncle. In 2012, the offender moved to Canberra to live with them. She was in very poor physical and psychological condition. She had few possessions and no self‑esteem or confidence. She was not attending to her personal hygiene. She did not understand how to perform normal housework. She had never been employed and had almost no friends. She spent her days watching children’s television programs.
With the support of her aunt and uncle, the offender has achieved dramatic changes over the past six years. When the offender’s childhood circumstances were revealed to aunt and uncle in 2015 or 2016, they arranged counselling. Since then, they have supported the offender in many ways, including by paying her counselling expenses and providing her with a stable and loving extended family.
Currently, the offender resides in private rental accommodation with her partner, with whom she has a stable de facto relationship. However, the course of that relationship and previous relationships has been rocky.
After leaving school, the offender completed vocational qualifications in sport and recreation and hospitality. As a result of the offences, she lost her employment as a support worker. However, she has now obtained part-time entry-level work in the retail industry. Her income is supplemented by social assistance.
The offender first engaged with a psychologist when she was a child. Thereafter, she maintained intermittent contact with mental health services. More recently, and particularly since the offences, she has been consulting a counsellor on a weekly basis.
The offender was assessed as having an overall cognitive ability in the low average range. It is somewhat difficult for her to understand new information. She may tend to misread social cues. The offender has demonstrated persistent deficits in social communication and social interaction. She has been diagnosed with Autism Spectrum Disorder Level 2, as well as major depressive disorder and post-traumatic stress disorder. She suffers from symptoms of attention deficit disorder, but has not been diagnosed with ADHD, as it is likely that the symptoms reflect the impact of past neglect, abuse, and trauma.
Dr Clout reported:
Sexual offending in females is typically related to early experiences of severe sexual and physical abuse and it is likely that the offender’s history of victimisation contributed to her inappropriate boundaries and behaviours in both the offence and other interpersonal relationships. In addition, as mood disorders are commonly associated with impairments in cognitive functioning, including judgment, thought processes and decision-making, and being in a negative emotional state, is one of the primary causes of disinhibition, it’s likely that the offender’s Major Depressive Disorder contributed to her offending behaviour. She also presents with a long-standing diagnosis of Posttraumatic Stress Disorder, which is also associated with persistent negative affect, and reckless and self-destructive behaviours.
In cross-examination, Dr Clout elaborated on the causal connection between the offender’s childhood abuse and her offending behaviour. Based on research, she opined that there was a connection between childhood sexual abuse and offending. In the offender’s case, there were two channels. First, the severity and early age at which she experienced childhood sexual assault and trauma had a serious impact on her cognitive and general mental development. Second, because of her childhood circumstances, she has had very little opportunity to develop an understanding of appropriate boundaries and behavioural standards.
Dr Clout also informed the Court that, in relation to sexual offending, the position differs as between males and females. For males, the link between severe trauma and sexual offending is far weaker. For females, it is often the case that sexual offending is related to emotional stress and dysregulation and a lack of understanding of appropriate boundaries, particularly in circumstances where someone has displayed affection towards them. Such circumstances presented to the offender in this case.
When Dr Clout spoke with her, the offender expressed some insight into why the offences had occurred, referring to her impulsivity and response to apparent interest in her by another person.
The offender is remorseful towards the victim. She wrote a letter, addressed to the victim and his family, in which she offered sincere apology for her conduct and expressed sorrow and shame for her actions. She acknowledged that she had been “clearly out of [her] depth in agreeing to look after [the victim]”. She reassured the victim and his mother that she was now seeking counselling for the sexual abuse that she suffered at the hands of her father, stating that, with the benefit of hindsight, she recognised that at the time of the offences her own mental state was “failing”.
The authors of the pre-sentence report assessed the offender as at low risk of general re-offending, but did not assess her in relation to risk of sexual re-offending. She was said to be ready for targeted interventions.
According to Dr Clout, the offender requires long-term intensive psychological treatments. Dr Clout said that the primary risk factors affecting recidivism could be minimised with appropriate support and intervention. Given the offender’s lack of criminal history, lack of substance abuse problems, willingness to engage in treatment, and proven ability to maintain employment, there was every prospect of rehabilitation.
As to the impact of imprisonment, Dr Clout opined:
As the offender presents with major depressive disorder and post‑traumatic stress disorder, it is likely a sentence of full-time imprisonment will be more onerous for her, compared to a person without significant mental health issues and associated distress. In addition, symptoms relating to her poor social skills, difficulty interpreting the normal nuances of interpersonal behaviour and issues with impulsivity make it harder for her to understand and manage the custodial environment and may place her at more risk within that setting.
In cross-examination, Dr Clout elaborated on these observations. She said that the risk to the offender’s mental health posed by incarceration, especially the risk of depression and tendency to suicidality, arose on two bases. First, imprisonment would remove the very significant and important social supports that the offender now enjoys in the Canberra community. Second, her mental conditions, including autism, mean that she would be especially vulnerable within the prison environment.
I accept that the offender is at significantly greater risk from fulltime imprisonment than most other people. It is true that many people who offend and go to prison suffer from post-traumatic stress disorder and/or depression, anxiety, and other conditions. But the offender’s constellation of conditions means that she is especially vulnerable, even when compared to the usual prison population.
Comparable Cases
I was taken to a number of cases, including Edwards v The Queen [2001] WASCA 263 and R v NC [2017] ACTSC 206.
The case of R v QI (No 2) [2016] ACTSC 188 (QI) was somewhat similar to the present case. It involved two offences of sexual intercourse with a young person, who was 15 years old at the time of the offences—seven years younger than the offender. The offences were unplanned. There was some abuse of a position of trust, although not to the extent of the present case. The offences occurred in the victim’s home. The offender had minor antecedents and expressed remorse and insight. The pleas came late. The starting point for the sentences were two years and two and a half years, respectively. When sentencing the offender, I considered that the sentences should be served concurrently. After discount, I imposed a total period of imprisonment of 30 months. I directed that seven months of the sentence be served by way of fulltime imprisonment, and that the remainder be suspended.
In QI, I reviewed a number of cases in this jurisdiction and observed at [46]:
The pattern for cases of this type which are of substantial objective seriousness is that a sentence of imprisonment is usually considered to be the only appropriate sentence. Not infrequently, an offender is required to serve part of the sentence by way of full‑time imprisonment and the remainder is suspended.
I was taken to R v Farrugia (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 1 October 2013), which has some similarities to the present matter. It involved two acts of indecency on a child aged under 10, where the maximum penalty of 12 years’ imprisonment applied. The offender was 68 years of age at the time. She was responsible for babysitting the victim. When the victim was going to bed, the victim was made to touch the offender’s genital area and the offender then masturbated the victim for a short time. The offender had no criminal history and had experienced a very traumatic childhood. Penfold J accepted that there was a connection between the offender’s childhood sexual victimisation and the offending conduct. Her Honour imposed sentences of 12 months’ imprisonment that were wholly concurrent and fully suspended.
Other sentencing considerations
In this matter, most of the sentencing purposes set out in s 7 of the Sentencing Act are relevant. In particular, general deterrence is an important sentencing consideration for offences involving any breach of trust by a carer who exploits a vulnerable child in their care. Recognition of harm to the victim and protection of the community and personal deterrence are also very important sentencing considerations.
It was submitted that general deterrence is of somewhat lesser importance in this case and that, given the raft of psychological problems suffered by the offender, and the causal connection between those problems and the commission of the offences, she is a less suitable vehicle for the transmission of a message of general deterrence than might be the case with other offenders.
In my view, general deterrence remains a significant sentencing purpose, but I accept that it is of somewhat lesser significance because of the offender’s mental conditions.
Rehabilitation is an extremely important sentencing consideration. Given Dr Clout’s evidence concerning the offender’s prospects for rehabilitation, the issues which appear to have been largely responsible for the offences, at least in a general sense, are now being addressed in the community through the stable living circumstances and family support received by the offender. The facts that the offender has gained insight and that her complex cognitive and mental health problems have been diagnosed and are being treated mean that the protection of the community will be best served if the offender is supported in her rehabilitation.
On the other hand, the harm that was suffered by the particular victim and his family must be acknowledged.
I am required to consider the matters referred to in s 33 of the Sentencing Act insofar as they are known and relevant. I believe that most of the relevant matters have been referred to above.
Sentence
I am satisfied that the only appropriate sentence is one of imprisonment.
Having regard to the objective seriousness of the offences and the relevant sentencing purposes, ordinarily I would require that part of the sentence be served by way of fulltime imprisonment. However, given the unusual and compelling subjective circumstances of the offender, I was persuaded that I should consider an Intensive Correction Order.
The Intensive Correction Order Assessment Report found that the offender was suitable for an Intensive Correction Order.
I convict the offender of both offences and impose the following sentences:
(a)For the offence of act of indecency, 18 months’ imprisonment (reduced from a starting point of two years’ imprisonment) from 15 November 2019 to 14 May 2021.
(b)For the offence of sexual intercourse, 13 months’ imprisonment (reduced from a starting point of 18 months’ imprisonment) from 15 July 2019 to 14 August 2020.
The total sentence is 22 months’ imprisonment, from 15 July 2019 to 14 May 2021.
Pursuant to s 11 of the Sentencing Act, I order that each of the sentences be served by intensive correction in the community. The order is subject to the core conditions.
| I certify that the preceding seventy-six [76] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: |
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