R v Jones
[2020] ACTSC 92
•17 April 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Jones |
Citation: | [2020] ACTSC 92 |
Hearing Date: | 17 April 2020 |
DecisionDate: | 17 April 2020 |
Before: | Mossop J |
Decision: | See [32] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – act of indecency on a person under 16 – touched victim on the buttocks three times in a shopping centre – no criminal history – offender diagnosed with autism – autism contributed to the offending – custodial sentence more onerous for offender – wholly suspended sentence |
Legislation Cited: | Crimes Act 1900 (ACT), s 61(2) Crimes (Child Sex Offenders) Act 2005 (ACT) Legislation Act2001 (ACT), ss 126(4), 132(1) |
Cases Cited: | R v Jones [2014] ACTSC 119 R v Pham (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 23 October 2012) Znotins v Harvey [2015] ACTSC 241 |
Parties: | The Queen (Crown) Mark Jones (Offender) |
Representation: | Counsel R Roberts (Crown) J Purnell SC (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aulich Criminal Law (Offender) | |
File Number: | SCC 21 of 2020 |
MOSSOP J:
Introduction
The offender, Mark Jones, has pleaded guilty to one count of an act of indecency on a person under the age of 16 years, contrary to s 61(2) of the Crimes Act 1900 (ACT), the maximum penalty being 10 years’ imprisonment (CC19/13449).
Facts
On 22 December 2019 the offender was at the Kmart store in Tuggeranong. He approached the victim, a 12-year-old boy, who was in the bicycle section of the store. The offender walked past the victim, reached out his right hand and touched the victim on the buttocks. At this time the victim had been Christmas shopping with his grandparents, sister and two cousins. He did not know the offender. He thought the touching was an accident.
Shortly after, the offender followed the victim to the toy section of the store. He touched the victim on the buttocks a second time. He touched the victim’s buttocks a third time shortly after. When the touching happened again the victim knew that it was not an accident. He felt shocked. He did not give the offender permission to touch his buttocks.
The victim walked towards the front of the store and stood beside the Kmart ‘giving tree’ with his family. He observed the offender hanging around the exit to the store. He told his grandmother what had happened and pointed at the offender. The offender left the store and the victim’s grandmother informed store staff about the incident. The staff contacted the shopping centre security who telephoned the police.
The incidents were captured on CCTV. The CCTV captures the offender lingering in the bicycle section of the store and consistently looking over at the victim and his family. It captures the offender walking behind the victim, reaching out his right hand and placing it on the victim’s buttocks. It also captures the victim standing by the ‘giving tree’ with his family, and pointing at the offender.
The offender was arrested at the Dymocks bookstore in the shopping centre. In a recorded interview at the Tuggeranong Police Station the offender made admissions that:
(a) he attended the Tuggeranong shopping centre at about 11am on 22 December 2019;
(b) he does things on impulse sometimes;
(c) he is not disputing the allegation;
(d) he touched a male child that he did not know and who looked about 12 or 13 years old about two times on the buttock with a finger; and
(e) he sometimes feels good doing that.
Objective seriousness
The offending involved touching a 12-year-old’s bottom on three occasions. There was no skin to skin contact. There was no element of intimacy about the interaction. The victim was a stranger. The offending occurred in a public place. There was no other interaction with the victim and no emotional manipulation of the victim which would increase the potential for psychological harm to the victim or aggravate the offender’s conduct. The offence of committing an act of indecency on, or in the presence of, a young person covers a very wide range of conduct. Even as a rolled-up charge, the conduct in the present case is at the low end of the range of objective seriousness for this offence.
Subjective circumstances
Pre-sentence report
The offender is 49 years old. He has been single throughout his adult life. He reported a good childhood and has supportive relationships with his parents and younger brother. The offender has a small group of friends, who are ‘prosocial’.
He completed Year 12 at school. He has been employed in the information technology industry, however his most recent employment was terminated due to the current charge. He remains unemployed.
The offender reported to the author of the pre-sentence report that he has never used illicit drugs. His alcohol use is at a low risk level.
When he was first arrested he experienced suicidal ideation, but has not had those thoughts as much since then. A letter from ACT Health dated 9 April 2020 reported that the offender has not expressed any intentions of self-harm or suicide. He has no general medical concerns.
He did not dispute the statement of facts. He stated that the offending action was on impulse and it might have been thrill-seeking behaviour. The offender made no comment to the pre-sentence report author about how the child would have felt about the offence.
The opinion of the pre-sentence report author is as follows:
Mr Jones is a 49-year-old male with no prior criminal offences and a supportive prosocial family. He has a solid employment history in IT, although has been unemployed since he was charged with the current offence. It is promising that the offender has arranged to address his sexual offending with a psychologist. Despite this, it is concerning that he did not display any victim awareness and was unable to identify why he committed the offences.
Mr Jones scored medium/low risk of general reoffending. He was assessed as an average risk of sexual reoffending using the STATIC-99. Mr Jones risk factors include; unemployment, mental health, lack of community engagement and his sex offending behaviour.
He was assessed as suitable for a good behaviour order and for community service.
Character references
Four character references were tendered by the offender. The common thread of the references is that the offender’s behaviour is surprising and out of character. They note that his true character is reflected in his acceptance of responsibility for his actions and that the offender feels remorse for the victim. The offender is described as an intelligent, considerate, hard-working person. The references referred to his interest and achievements in long-distance running. The references demonstrate that those in the offender’s life are supportive of his engagement with counselling to address the underlying issues behind his offending conduct.
Medical Evidence
A Psychological Treatment Report by David Kendall, dated 29 March 2020 was tendered, along with a Forensic Psychological Assessment Report by Dr Danielle Clout, dated 3 April 2020 and an addendum to that report.
The offender self-referred to Mr Kendall in January 2020. Mr Kendall provided the offender with counselling, psycho-education, Cognitive Behavioural Therapy (CBT), and introductory sex-offender therapy. He noted that the offender has responded positively to therapy and has made some limited progress. He also notes that the offender should continue with therapy and education in various forms.
Dr Clout’s report usefully provides a more detailed account of his personal circumstances. It provides a better picture of the deficits from which he suffers and hence his difficulties with the maintenance of interpersonal relationships. Dr Clout’s opinion is that at the time of the offending, the offender was suffering from symptoms consistent with a DSM-5 diagnosis of autism spectrum disorder, without an accompanying intellectual impairment. It was classified as level 1 in severity. The deficits that he described which led to this diagnosis included impairments in developing understanding and maintaining interpersonal relationships, limited capacity for empathy and understanding of other people’s thoughts and emotions, deficits in non-verbal communication and poor social skills. On the Static 99R assessment he was of average risk of reoffending. On the SVR-20 he was assessed as being in the low risk range. On a measure of the risk of general recidivism (IORNS) his risk was low. She considered that his risk factors were changeable. She considered that he should complete a sex offender’s program or treatment by a psychologist with experience in treating offenders with autism spectrum disorder. The interpersonal and social deficits associated with autism placed the offender in a vulnerable position if sentenced to a custodial sentence.
In relation to whether the offender’s conduct was purely impulsive, or a structured decision, Dr Clout stated:
Although Mr Jones doesn’t appear to present with a general tendency towards impulsivity … this does not prevent him from exhibiting impulsive behaviours. However, in my opinion, his conduct would be better described as compulsive or opportunistic than purely impulsive. Mr Jones acknowledges ongoing attraction and idealisation of adolescents, including thoughts about being near them. In my opinion these thoughts are likely to have contributed to an urge to engage in the behaviour, which was then acted on opportunistically…
Criminal history
The offender has no criminal history.
Plea of guilty
The offender pleaded guilty to the charge on 4 February 2020, that being the fourth mention in the ACT Magistrates Court. Nothwithstanding the strength of the Crown case I consider that the utilitarian value of the plea at this early stage warrants a discount of 25% on the sentence. The plea is also consistent with the offender’s acceptance of responsibility for the offending and this in turn lends support to the potential for rehabilitation.
Time in custody
The offender has spent 34 days in custody referrable to the offence.
Consideration
The cases to which I was referred by the Crown demonstrate a range of sentences for acts of indecency on or in the presence of children, which are at the low end of objective seriousness, reflecting the nature of the incident, the age and criminal history of the offender: R v Pham (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 23 October 2012); Znotins v Harvey [2015] ACTSC 241; R v Jones [2014] ACTSC 119; R v Ridley [2014] ACTSC 382.
Notwithstanding that the offending is in the low range of objective seriousness for this offence it is disturbing in that it involves a stranger indecently interfering with a child in a public place. Fortunately, the victim recognised that what was happening was inappropriate and had the fortitude to report the incident to his grandmother.
The picture of the offender that is presented by the evidence, particularly that of Dr Clout, is of someone whose autism spectrum disorder is significant in explaining what would otherwise be considered to be, at best, odd and at worst, predatory behaviour.
The offender has no criminal history. He is intelligent and has led a productive but socially isolated life. He has expressed remorse. Although the precise motivation for engaging in the conduct remains somewhat obscure, it is, in my view, reflective of and contributed to by his autism spectrum disorder. He appears open to psychological treatment that will reduce the risk of any further offending although he would benefit from having that delivered by someone with experience in dealing with persons with autism.
He has lost his long-term employment as a result of the offending. His conviction is likely to make future employment in any similar role difficult, as he will not be able to obtain security clearances. As a result of the sentence that I will impose he will be subject to reporting obligations under the Crimes (Child Sex Offenders) Act 2005 (ACT).
In determining the appropriate sentence I accept that the offender’s autism is also relevant because a period of full-time imprisonment going beyond the period that he has already spent in custody on remand would be a greater burden upon him than for a person without that condition. That is made clear by Dr Clout’s report.
So far as the purposes of sentencing are concerned, both general and specific deterrence, denunciation of the conduct and rehabilitation are all significant sentencing purposes.
Having regard to the maximum penalty for the offence, notwithstanding this offending is at the low end of the range, only a custodial sentence is appropriate. A brief sentence of imprisonment of three months, reduced from four months on account of the plea of guilty will be imposed. That sentence will be wholly suspended upon the offender entering into a good behaviour order for 18 months.
This will be subject to a probation condition. Such a condition is broad enough to permit the Director-General to direct the offender to participate in programs or do other things referred to in the examples for s 13(3)(g) of the Crimes (Sentencing) Act. That is made clear by the examples given for paragraph (b) of the definition of “probation condition” in the Dictionary to the Act. An example is a part of the Act: Legislation Act 2001 (ACT) s 126(4). An example may extend and does not limit the meaning of the particular provision to which it relates: Legislation Act s 132(1). This has the effect of simplifying the conditions required to be specified for a good behaviour order in circumstances where a probation condition is included. In those circumstances I do not propose to include any specific condition in relation to psychological treatment, but leave it to the Director-General to give appropriate directions, depending on the services available and in light of these reasons.
Orders
The orders of the Court are:
1.The offender is convicted and sentenced to 3 months’ imprisonment.
2.The sentence is suspended upon the offender giving an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 18 months and being subject to the following condition:
(a)that he be on probation subject to the supervision of the Director-General and obey all reasonable directions of the Director-General for that period or such shorter period as the Director-General determines.
| I certify that the preceding thirty-two [32] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 24 April 2020 |
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