R v JG
[2014] ACTSC 323
•5 November 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v JG |
Citation: | [2014] ACTSC 323 |
Hearing Date: | 21 October 2014 |
DecisionDate: | 5 November 2014 |
Before: | Burns J |
Decision: | See [23] – [31] |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Particular Offences – offences against the person – act of indecency with a young person – attempt sexual intercourse with a young person – sentence – effect of intellectual disability on sentence |
Legislation Cited: | Crimes Act 1900 (ACT) ss 55 (1), 61 (1) |
Parties: | The Queen (Crown) JG (Offender) |
Representation: | Counsel Ms Gul (Crown) Mr De Bruin (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 16 of 2014 |
Burns J:
The offences and procedural history
JG, you have pleaded guilty to the following offences on an indictment dated 8 August 2014:
(a)seven counts of committing an act of indecency upon a person under the age of 10, contrary to s 61 (1) of the Crimes Act 1900 (ACT) (CC13/6828; CC13/6829; CC13/6830; CC13/6831; CC13/6832; CC13/6833; CC13/6836); and
(b)one count of attempted sexual intercourse with a person under the age of 10, contrary to s 55 (1) of the Crimes Act 1900 (ACT) ().
These offences occurred between 1 January 2011 and 8 August 2013. The victim in these matters was born on 31 October 2004 and is your niece.
Between 1 January 2011 and 8 August 2013 you babysat the victim on 30 to 40 occasions. On some of those occasions you engaged in various sexual acts with the victim, who was then aged between six and eight years old, including rubbing your penis against the victim's vagina, bottom, anus, and between her legs, and attempting to place your penis inside the victim's vagina or anus. The maximum penalty for the offence of committing an act of indecency on a person under the age of 10 is 12 years' imprisonment. The maximum penalty for the offence of attempting to commit sexual intercourse with a person under the age of 10 is 17 years' imprisonment.These matters were committed to trial on a fitness to plead basis on 13 February this year. A plea of guilty was entered to these offences on 8 August this year. This was following a fitness to plead hearing where you were found fit to plead. The public advocate was engaged by Legal Aid in order to obtain instructions, which took some time.
An Agreed Statement of Facts relating to the offences was placed before the Court. I don't propose to rehearse here the precise details with respect to each of the offences. I note that all offences occurred whilst you were babysitting the complainant and they all involve a serious breach of trust on your part.The age of the victim, between six and eight years of age, is a relevant factor in determining the objective seriousness of these offences, although the facts do not allow me to determine the victim's age with respect to any particular offence with any accuracy.
On 8 August last year the complainant disclosed your offences to her parents, who called the police. On 12 August last year you voluntarily accompanied your brother to the Winchester Police Centre and participated in a taped record of interview in which you made full admissions and expressed remorse for your behaviour.
Offender characteristics
A Pre-Sentence Report was prepared for the sentence hearing. I note that you are 27 years old and you have no prior convictions. You have been in custody since 13 August 2013. There have been no management problems with you in custody, but you have demonstrated ongoing psychological problems, including suicidal ideation in December last year. The report notes that you were diagnosed with Attention Deficit Hyperactivity Disorder and intellectual disabilities during your primary school years. There were some behavioural issues at home at that time.
You attended specialist schools until year 10. Subsequently you had brief periods of employment. Prior to your arrest with respect to these charges you were receiving the disability support pension. The report notes that you do not make friends easily and you have struggled to adjust to a custodial setting. You experience a high level of anxiety whilst in custody. You have been receiving regular support from the corrections psychological service whilst in the Alexander Maconochie Centre.
You continue to have contact with your father after the commission of these offences, but you no longer enjoy the support of your extended family because of these offences. I accept that that is a matter that causes you distress.
You expressed remorse to the author of the Pre-Sentence Report, although the author noted that you have little insight into your behaviour and its effects on the complainant, consistent with your intellectual deficits. Without this lack of insight being addressed, the author opined, there is a risk of reoffending. The author noted that you are unlikely to be found suitable for group treatment interventions due to your complex needs. The author of the Report suggested a referral to a specialist psychologist, but that is unlikely to occur in the Alexander Maconochie Centre (AMC). I note that the Report found you not suitable for periodic detention or a community service order.
An Assessment Report for the Adult Sex Offender Program was also tendered during the sentence hearing. It noted that you accepted responsibility and expressed remorse for your crimes. It also noted that you had limited insight into your reasons for offending, but you expressed a desire to engage in appropriate treatment. However, the Adult Sex Offender Program does not have the capacity to include individuals with intellectual disabilities and ACT Corrections does not have the capacity to deliver individual treatment in the AMC.
It was recommended that you engaged in offence-specific treatment either in custody or when released. The only option appears to be private psychological treatment, due to the inability of corrections to provide the necessary or desirable treatment in a custodial setting. The Report assesses you as being at low risk of sexual reoffending.
A report from Dr Stephen Allnutt, a forensic psychiatrist, dated 29 September 2014, notes that you disclosed a history of being sexually assaulted when you were 17. It noted that you have ongoing anxiety issues and that you have been harassed whilst in custody.
At the time that you were seen by Dr Allnutt you exhibited mild depressive symptoms. Dr Allnutt noted that you are willing to engage in appropriate treatment. Dr Allnutt diagnosed a paedophilic disorder based upon your participation in the present offences. He considered it necessary and desirable that you engage in treatment with a psychologist with expertise in treating sex offenders. You should be regarded as more vulnerable in a group setting due to your intellectual deficits, and it is therefore desirable that you engage in one-on-one treatment initially, although you may be able to progress to a group treatment program subsequently.
Dr Allnutt expressed the opinion that your intellectual impairment impaired your ability to exercise appropriate judgement compared to a person of normal IQ at the time of this offending. He states, however, that you would have had the capacity to make calm and rational choices and to think clearly over the period of your offending. Because of your handicap, however, you would have been less capable of understanding your paedophilia and less able to inhibit your impulses. Your intellectual disability makes you, in his opinion, more vulnerable to sexual offending overall.
A report of Dr Kasinathan, a psychiatrist, of 8 October 2013 was prepared in the ACT Magistrates Court to address the question of fitness to plead. In the course of that report Dr Kasinathan diagnosed you with an intellectual disability of mild severity and also with a paedophilic disorder.
In sentencing you I also take into account your letter to me, which is exhibit 7, expressing remorse for your actions.
Consideration
Whilst you did not enter pleas of guilty until August this year, I accept that was because of concerns on the part of your legal advisers about your fitness to plead. I accept that you have never sought to deny your involvement in these offences and your pleas should be accepted as early pleas of guilty.
I accept that your intellectual disability reduces your moral culpability for your offending, as it impaired your judgement and made you less capable than an ordinary person of understanding your paedophilia and less able to inhibit your impulses. However, it is clear from the material before me that it does not provide an excuse for your behaviour and does not entirely rid you of moral culpability for your offending.
You still present as a risk of reoffending in my opinion, but this can be reduced below its already low level by appropriate treatment, which unfortunately is not available to you within the AMC.
I accept that your mental impairment will make continued incarceration more difficult for you than for an offender who is not so impaired. Your lack of social skills means that you are likely to be an isolated individual whilst in custody and makes you more vulnerable to harassment.
Whilst general deterrence and specific deterrence cannot be entirely overlooked as sentencing considerations, there should be some moderation of the extent to which they operate in the determination of sentences due to mental impairment. I accept that you have good prospects for rehabilitation, particularly if given appropriate treatment and support. I accept that you are motivated to accept that treatment and support. I also accept that your pleas of guilty demonstrate remorse and also have significant utilitarian value, and I will reduce by approximately 25 percent of sentences that I would otherwise have imposed.
In my opinion the objective seriousness of these offences calls for the imposition of terms of imprisonment. I do, however, intend to allow for the prospect of early release on parole. I had considered whether it was desirable to impose sentences of imprisonment and then to suspend those sentences at a particular point; or whether to impose sentences of imprisonment and a non‑parole period, and I have determined that the latter is the better course. The Sentence Administration Board is better placed to ensure that arrangements are in place for your needs upon your release than this Court, and therefore in my opinion a parole order is more appropriate than a partially suspended sentence.
Sentences
With respect to count 1 (CC13/6828) you will be convicted and you are sentenced to 13 months' imprisonment, commencing on 13 August 2013, the date you were taken into custody, and expiring on 12 September this year.
On count 2 (CC13/6829) you are convicted and sentenced to 13 months' imprisonment, commencing on 13 December 2013 and expiring on 12 January 2015.
On count 3 (XO14/30126) you are convicted and sentenced to 25 months' imprisonment, commencing on 13 April 2015 and expiring on 12 May 2017.
On count 4 (CC13/6831) you are convicted and sentenced to 13 months' imprisonment, commencing on 13 April this year and expiring on 12 May 2015.
On count 5 (CC13/6830) you are convicted and sentenced to 13 months' imprisonment, commencing on 13 August this year and expiring on 12 September 2015.
On count 6 (CC13/6836) you are convicted and sentenced to 13 months' imprisonment, commencing on 13 December this year and expiring on 12 January 2016.
On count 7 (CC13/6832) you are convicted and sentenced to 13 months' imprisonment, commencing on 13 April 2015 and expiring on 12 May 2016.
On count 8 (CC13/6833) you are convicted and sentenced to 13 months' imprisonment, which will be concurrent with the sentence that I have imposed on count 2.
This means that I have sentenced you to a term of three years and nine months' imprisonment, commencing on 13 August 2013 and expiring on 12 May 2017. There will be a non-parole period of 18 months, commencing on 13 August 2013 and expiring on 12 February 2015. In setting that non-parole period I take into account the need for you to undergo treatment, which will not be available to you in the AMC, and the desirability that you be subject to direction to attend that treatment and direction generally for a significant period after your release from custody.
NOTE: At the time of preparing sentencing remarks for publication, it became apparent that the Statement of Facts tendered by consent on 21 October 2014 (exhibit 1S) did not accurately reflect the count numbers as they appeared on the indictment filed in court by leave on 8 August 2014 in relation to counts 3 and 8. As a result, the sentences handed down on 5 November 2014 in relation to counts 3 and 8 reflected the count numbers as they appeared on the Statement of Facts rather than the indictment. The sentencing remarks and bench sheet dated 5 November 2014 have been amended to accurately reflect the count numbers and charge numbers as they appear on the indictment rather than the Statement of Facts.
| I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 3 December 2014 |
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