R v Kaczmarek
[2015] ACTSC 160
•16 June 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Kaczmarek |
Citation: | [2015] ACTSC 160 |
Hearing Dates: | 14 May 2015, 3 June 2015 |
DecisionDate: | 16 June 2015 |
Before: | Burns J |
Decision: | See [25]-[28] |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Sentence – particular offence – offences against the person – attempting to commit an act of indecency – unlawful assault with intent to commit an act of indecency. |
Parties: | The Queen (Crown) Marcin Kaczmarek (Offender) |
Representation: | Counsel Ms P Halova (Crown) Mr J De Bruin (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) ACT Legal Aid (Offender) | |
File Number: | SCC 269 of 2014 |
BURNS J:
Background
Marcin Kaczmarek, you have entered pleas of guilty to one charge of attempting to commit an act of indecency without consent and one charge of unlawful assault with intent to commit an act of indecency. The maximum penalty for the offence of attempting to commit an act of indecency without consent is seven years’ imprisonment. The maximum penalty for the offence of unlawful assault with intent to commit an act of indecency is 10 years’ imprisonment.
These offences occurred on 16 October 2014. You first appeared before the Magistrates Court on 18 October 2014 and you entered pleas of guilty on 13 November 2014, at which time you were committed for sentence to this Court.
The female victim of these offences was socialising with friends on the evening of 16 October 2014 at the Vikings Club in Chisholm. You were in the club, seated at a nearby table and drinking beer. You kept looking at the victim and her friends. When the group moved outside to the smoking area, you followed them. At about 11 pm, the victim left the Club alone. You followed her out of the Club and into the car park. When you reached the car park, you ran to catch up with her. The victim could hear you running towards her, which made her fearful. You grabbed her from behind and reached around her. You put your hands on her hips and under her skirt. She felt like her skirt was being lifted up. She was holding her handbag in one hand but with her free hand she attempted to brush you off and bent over. When she looked up she saw you bent over her and she recognised you as being the man that had been watching her in the club that evening. You left the area and the victim ran back into the club and obtained assistance from club staff and police were called.
On 16 October, 2014, police attended your residence where they seized clothing and your membership card from the Vikings Club. You agreed to participate in an interview with police. In that interview you denied being at the club at the time of the offence or committing the offences. You were released at that time.
On the morning of 17 October 2014, police obtained still images from closed circuit television at the Vikings Club, which confirmed that you were at the club at the time of the offences and you had followed the victim outside. Subsequently, police attended your residence again and arrested you. You once again agreed to participate in an interview with police. During that interview you admitted that you had not been truthful with the police at the previous interview. You admitted that you made an unsuccessful attempt to put your hand up the victim’s skirt. You said that, on the night of 16 October 2014, you arrived at the Vikings Club at about 8.30 pm and drank about five schooners of full strength beer. You saw the victim and her friends and thought that the victim was attractive. You watched them during the evening. When the victim left, you ran after her so that you could catch up with her. She had her back to you and you reached across her body and with your right hand and in an attempt to lift up her skirt and touch her crotch area. She reacted quickly and prevented you from doing so.
You told police that this was an unsuccessful attempt which did not warrant incarceration, or at least incarceration for more than three months. You told police that you are currently on a monthly Depot injection with which you are compliant. You attributed your offending to not thinking and being intoxicated.
Consideration
At the time of these offences, you were subject to a Good Behaviour Order imposed in the Magistrates Court on the 8 March 2013. This was in relation to a charge of committing an act of indecency. I have had access to the Statement of Facts in relation to that matter and it bears some similarities to the present charges.
The Good Behaviour Order imposed by the Magistrates Court was for a period of 24 months commencing on 12 January 2014 and expiring on 11 January 2016. You were arrested by police on 17 October 2014, as I have said, and you have remained in custody since that time.
You have a significant criminal history, including convictions for recklessly threatening to kill, stalking, using a carriage service to menace, harass or offend, using a carriage service to transmit indecent communications to a person under 16 years of age and committing an act of indecency without consent. As I have noted, you were subject to a Good Behaviour Order, which had been imposed as a part of a suspended sentence at the time of these offences. I must confess I have great difficulty in understanding the terms of the sentence imposed by the Magistrate in March 2013, if it is correctly recorded in the criminal history. It does, however, seem fairly clear, that you were subject to the Good Behaviour Order at the time of these offences.
A Pre Sentence Report was prepared for the sentence hearing. I note that you are 36 years old and that you have been known to ACT Corrective Services since 2006 when you were supervised on a 12-month good behaviour order. You have been subject to supervision on multiple occasions in the past, however, your compliance with community based supervision has been poor. You reported a supportive relationship with your mother, with whom you have predominantly resided throughout your life. You claimed that you were also a carer for your mother due to her medical issues, although it is unclear what support you provide to her.
You stated that you have a supportive relationship with your father, although contact with him is limited to telephone contact only. Since you have been in custody on this occasion, you have not had any visits from your father. You have had visits from your mother on several occasions and one visit from your sister. You reported that if released into the community, you would be able to again reside with your mother.
You reported leaving formal education at age 15 and that you have been in receipt of a disability support pension since 2009. Your longest period of employment was for a period of three weeks in 2000. You reported that you have no social circles in the community, apart from your family, and that you have been unable to meet other companions and instead would observe members of the public and their activities at shopping centres and licensed venues.
You told the author of the Report that you commenced consuming alcohol in your late teens and that you have continued to consume alcohol throughout your adult life. You reported consuming up to five alcoholic beverages six days a week. You stated that you had consumed alcohol before committing these offences. It is not clear to what extent you consider these offences to have been affected by your consumption of alcohol as you gave contradictory responses to the author of the Report on this question.
I note that you have been known to ACT Mental Health Services since 1998. You have been subject to psychiatric treatment orders in the past. You said that you were diagnosed with a psychological disorder in your teens. You are currently subject to a Psychiatric Treatment Order with a prescribed medication regime, with which you are said to be compliant. You stated that you plan to remain compliant with your treatment if released into the community.
You told the author of the Report that you did not dispute the contents of the Agreed Statement of Facts, but, in the author’s opinion, you displayed little insight into your offending behaviour and appeared to have limited victim awareness. You denied any premeditation with respect to the offences.
You were assessed as at medium to high risk of general reoffending and at high risk of sexual reoffending primarily due to your history of similar offending, your mental health issues, lack of social supports and possible cognitive impairment.
In a report dated the 29 October 2014, Dr John Kasinathan, a consultant forensic psychiatrist, expressed the opinion that you have a mental illness. However, the most pertinent issue salient to your continued sexual offending was a sexual deviant disorder, not a mental illness. However, in my opinion, this is really a question of classification. He made a diagnosis of paraphilia, alcohol use disorder, autism spectrum disorder and schizophrenia. He believed that your schizophrenia was in full remission with treatment and was unrelated to your offending at that time. He expressed the view that your persistent offending was due to sexual deviancy, which had proved poorly responsive to psychological efforts due to your autistic rigidity. He said that you had refused medication for biological treatment for sexual deviancy, which made it likely that you would offend again sexually. He believed that you should receive biological treatment, that you should engage in drug and alcohol counselling and that you should be required to undertake sex offender counselling.
A report from Dr Stephen Allnutt, a forensic psychiatrist, dated the 26 April this year, was tendered by your counsel at the sentence hearing. I received this report on the basis that it provided Dr Allnutt’s opinion based upon information which had been provided to him by yourself, but I made it clear that the report was not received as evidence of the truth of the statements that you made to Dr Allnutt. You apparently minimised your actions on 16 October 2014 when you spoke to Dr Allnutt, telling him that you only went to lift the victim’s skirt and when she pushed your hand away you left. I note without here repeating the previous psychiatric history set out in the report. Doctor Allnutt agreed with the diagnosis of paranoid schizophrenia but doubted the diagnosis of autistic spectrum disorder. He believed that an underlying condition of schizophrenia could explain those circumstances and characteristics that led Dr Kasinathan to diagnose an autistic spectrum disorder. Ultimately, I am satisfied that that issue is unimportant.
It is very clear from the psychiatrists’ reports that you suffer from a mental illness, namely schizophrenia, for which you are treated. Doctor Allnutt went on to say,
However, he nevertheless presents as an individual with limited social skills, extremely poor social judgment and concrete thought processes likely secondary to negative symptoms of schizophrenia and thought disorder. These difficulties probably arise from poor social judgment and cognitive inflexibility, and concrete thinking associated with paranoid schizophrenia (sic)
There is evidence for excessive ritualistic behaviour and anxiety with associated obessionality (sic), and I would concur with the diagnosis of obsessive-compulsive disorder.
Whilst Dr Allnutt did not consider your underlying schizophrenia to be directly relevant to your offending behaviour, he considered that it nevertheless contributed. Later in his report, he said –
He has a psychosexual disorder, namely paraphilia in the form of frotteurism (non-consenting sexual touching) and telephone scatologia (engaging others in non-consensual sexual discussion for the purpose of sexual arousal of oneself). This in my opinion occurs relatively independently of his schizophrenia or (autistic spectrum disorder). The condition, however, in my view still made a partial contribution to the offending by increasing his vulnerability to act on his paraphilic urges and fantasies to an extent greater than a person of normal mind.
...
Due to his psychiatric condition he is limited in his social skills in approaching women for intimate relationships and as such also has limited sexual experience and thus knowledge, given his age. He presents as a compromised individual with a chronic mental disorder, which would have made a partial but material contribution to the alleged offending, particularly when combined with intoxication through disinhibition and poor social competence.
Doctor Allnutt made comprehensive recommendations for your treatment, which I will not repeat here. I accept from the psychiatric evidence that you have a mental illness, namely schizophrenia, and that you also suffer from a mental disorder, namely paraphilia. I accept the evidence of Dr Allnutt that your mental illness made a partial but material contribution to your offending in the way in which he described. There is, however, no suggestion that you did not understand that your actions were wrong or that you did not have some capacity to control your actions. Nevertheless, I am satisfied that this is a case where the requirements of general deterrence in sentencing should be moderated because of decreased moral culpability for your offending, due to your underlying mental illness and disorder. That is not to say that general deterrence is irrelevant or that individual deterrence is irrelevant in sentencing you, however, these sentencing considerations should be moderated because of your underlying mental illness and disorder.
I take into account your early pleas of guilty. I do not think that they indicate significant remorse for your actions but it is likely that your capacity for remorse and empathy with your victim is reduced due to your mental illness. Your pleas of guilty nevertheless have a significant utilitarian value. I will reduce by 20 percent the sentences that I would otherwise have imposed in order to reflect your pleas of guilty.
You have, as I have already noted, a poor history of compliance with community-based orders, such that I doubt that you would presently comply with the terms of a good behaviour order. The Crown has submitted that your continued offending behaviour reveals that you pose a risk to the community. I accept that the psychiatric reports suggest that there is a risk of sexual reoffending unless you accept appropriate treatment. But that risk is not so significant as to justify it putting aside consideration of your mental illness and disorder.
In my opinion, although these offences do not fall within the category of the most serious offences of their type, terms of imprisonment are nevertheless called for. Nothing less, in my opinion, would be sufficient to appropriately punish you and to deter you from committing further offences, even taking into account your underlying mental illness and mental disorder. I consider that your conditions and any risk of reoffending are best managed by a combination of parole and psychiatric treatment orders.
Sentence
With respect to charge of attempting to commit an act of indecency, I record a conviction and you are sentenced to 12 months’ imprisonment, which I have reduced from 15 months in order to reflect your plea of guilty. That sentence will commence on 17 October 2014 and expire on 16 October 2015.
With respect to the offence of unlawful assault with intent to commit an act of indecency, I record a conviction and you are sentenced to 16 months’ imprisonment, reduced from 20 months by reason of your plea of guilty, of which eight months is to be served concurrently with the sentence for attempting to commit an act of indecency.
The recording of these convictions means that you are in breach of the Good Behaviour Order imposed in the Magistrates Court in March 2013. I cancel the Good Behaviour Order and impose the remainder of the sentence which had been suspended by the Magistrate, being a sentence of four months’ imprisonment. I order that two months of that sentence be served concurrently with the sentence imposed for the offence of unlawful assault with intent to commit an act of indecency.
The effect of the sentences that I have imposed is that you are liable to serve an aggregate term of imprisonment of 22 months, commencing on 17 October 2014 and expiring on 16 August 2016. I set a non-parole period of 14 months commencing on 17 October 2014 and expiring on 16 December this year. I recommend that the Sentence Administration Board closely consider your participation in appropriate programs and therapies in the Alexander Maconachie Centre directed towards your ceasing the use of alcohol and reducing the risk of reoffending when it considers any application for release on parole.
| I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 21 July 2015 |
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