R v Kindl
[2015] ACTSC 128
•14 May 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Kindl |
Citation: | [2015] ACTSC 128 |
Hearing Date: | 14 May 2015 |
DecisionDate: | 14 May 2015 |
Before: | Murrell CJ |
Decision: | 12 months’ imprisonment, suspended upon the offender entering into a good behaviour order for a period of 2 years. |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Sentence – act of indecency – intellectual disability of offender – moral culpability |
Legislation Cited: | Crimes Act 1900 (ACT) s 60(1) Crimes (Sentencing) Act 2005 (ACT) ss 7, 12, 35 |
Cases Cited: | R v Buda-Kaa [2013] ACTCA 46 R v Buda-Kaa (Unreported, Supreme Court of the ACT, Burns J, 30 November 2012) |
Parties: | The Queen (Crown) Jonathon Phillip Kindl (Offender) |
Representation: | Counsel Mr J Hiscox (Crown) Mr A Doig (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Darryl Perkins Solicitors (Offender) | |
File Number: | SCC 122 of 2014 |
Murrell CJ:
The Offence
The offender adheres to a plea of guilty to the offence that between 30 November 2012 and 1 January 2013 he committed an act of indecency on the victim without her consent, contrary to s 60(1) of the Crimes Act 1900 (ACT) (Crimes Act). The offence carries a maximum available penalty of seven years' imprisonment.
The act of indecency involved the offender touching the complainant’s breasts and stomach, engaging in partial digital penetration and pushing his semi-erect penis between the complainant’s buttocks.
Initially, the offender was charged with two counts of sexual intercourse without consent and one count of act of indecency without consent. Following plea negotiations, the ultimate charge was one count of act of indecency without consent. A plea of guilty was entered three weeks prior to the trial date. The prosecution concedes that, based on the law as it was understood at the time, the offender could not have been convicted on the charges of sexual intercourse without consent in respect of a digital penetration that was only partial.
Given the context and the timing of the plea of guilty and considering that the prosecution case was strong, pursuant to s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) a discount of at least 15% is appropriate.
The Court acknowledges the significant injury suffered by the victim. The prosecution read aloud the victim impact statement. It is clear from that statement that the incident has had a real effect on the victim. She feels unsafe around male friends and has become more dependent on her fiancé. She is anxious about encountering the offender when she is alone. She has feelings of depression about what has occurred. These are real and significant impacts. It is fortunate that the impacts have not been greater.
Background to the Offence
On an afternoon between 30 November 2012 and 1 January 2013, the victim and her fiancé, the brother of the offender’s former girlfriend, and the offender were present at the offender’s unit. The arrangement was that they would all stay overnight at the offender’s unit. They talked, watched movies, played video games and had dinner. The three men drank a considerable amount of alcohol.
At about 8pm, the victim was feeling tired and she went to the offender’s bedroom to sleep. She was clothed. The three men remained watching movies, playing video games and drinking. Then the victim’s fiancé fell asleep on the lounge, leaving only the offender and the other male awake. The offender announced to his friend that he was going into his bedroom. His friend warned him “not to do it”.
Nevertheless, the offender entered his bedroom, where the victim was asleep. He lay down beside her, pulled down her pants and underwear and his pants. She awoke to the offender touching her. At first, she did not realise the identity of the person who was touching her. She felt his hands underneath her clothing, touching her breasts and stomach. He then touched her genitalia and partially inserted his finger. He used his other hand to push his semi-erect penis between her buttocks. The victim asked whether it was her fiancé and the offender responded, “No.” He then sought her permission to touch her. When she declined, he held her and asked her not to reveal the events to his former girlfriend.
The victim became upset and left the bedroom, crying. She went to where her fiancé and the other male were located. The offender then came out of his bedroom, went into the lounge room and informed those present that he had been confused and had thought that the victim was his former girlfriend.
Objective Seriousness of the Offence
The prosecution submitted that the offence was in the high range of objective seriousness. I agree that it was a very serious offence of its nature. First, the offence involved actual touching. Second, there were three types of touching: touching the breasts and stomach, touching her genitals and partly penetrating them with his finger, and pressing the penis against the victim’s buttocks. The touching of the genital area and part penetration were very serious acts. Another factor that makes the offence very serious is that, initially, the victim was asleep and the offender knowingly took advantage of that situation. Further, the offence occurred in the context that the offender’s friend had, in effect, cautioned him against going into the room. Nevertheless the offender entered the room.
Other matters that must be taken into account in assessing the objective seriousness of the offence are that the three acts occurred more or less simultaneously. The duration of the incident is not known because the victim was asleep at the commencement, but it appears to have been brief. The offender (albeit very belatedly) sought the victim’s consent. The offender desisted when the victim declined to consent. There was no violence or threat of violence and no physical injury. The offender and the victim would have been aware that help was close at hand.
Subjective Circumstances of the Offender
The offender has no prior criminal history. He is now 29 years of age. He was 26 years old at the date of the offence.
The offender was placed into foster care when he was about two years old as a result of high-level neglect and abuse by his biological parents. He was placed in a number of foster homes and his situation was unstable until he was about five and a half years old, when he received a permanent foster placement with a couple. He regards them as his parents. It has been a close and supportive relationship. After he entered the permanent foster placement, the offender had a happy upbringing.
However, as Professor Bruce Stevens, a psychologist, pointed out in his report, one cannot not disregard the first five years of a person’s life, which are very important to later adult functioning.
In 1996, Dr Sue Packer, a paediatrician at the Canberra Hospital, reported on the offender, who was then aged 10 and half years. She noted that she had first seen him when he was four years and two months of age, and then again in 1993. Under the heading of “History” she said:
In brief, he was initially living with his mother, where there were ongoing concerns about emotional abuse and neglect and physical abuse. He was then placed in the care of his father and step-mother where emotional and physical abuse continued. He was removed and placed in care 3 weeks prior to seeing me in May 1990. At this time he was extremely growth retarded with his height and weight well below the 3rd centile [sic] and with no significant increase in height over the previous 18 months. His weight was also well below the 3rd centile [sic]. He also had significant behaviour problems with a very short attention span, aggressive play and quite extreme temper tantrums.
Later in the report, under the heading “Discussion”, Dr Packer said:
Jonathon presented initially on coming into care as a little boy who had been so profoundly emotionally damaged by his abusive early life that it had impaired his physical growth as well as having an obvious impact on his emotional growth and development. His excellent long-term foster placement has seen significant recovery and improvement so that he is now growing steadily within the normal height and weight range, albeit at the lower end of the normal range. I feel certain that his short attention span and learning difficulties are least in part rooted in his early abusive childhood. It is pleasing that he has responded so well to Ritalin. I envisage that Jonathon will continue to need significant educational support in small learning groups and that emotional and social situations will always be more difficult for him than for children with undamaged backgrounds.
As envisaged, the offender experienced learning difficulties throughout his education. The reports disclose that learning difficulties were identified as early as Year 2. The offender was placed in special needs classes throughout his schooling. He was the subject of bullying and was suspended on at least three occasions for aggressive behaviour. It may well be that the aggressive behaviour was a frustrated, angry and impulsive response to bullying.
The offender has a very limited work history. He is on a disability support pension. He has managed short-term, unskilled jobs with difficulty. Professor Stevens says that he has limited capacity for full-time work. He achieved a Year 12 certificate at school, but that was based on his attendance and assisted completion of assessments. He has undertaken courses at the Canberra Institute of Technology with support.
The offender has no current difficulties with drugs and alcohol. There are conflicting accounts of past alcohol use/abuse. The offender’s foster father believes that the offender has not been particularly abusive of alcohol. He says that the offender has occasionally abused alcohol, like many young men. I refer to the issue of alcohol abuse because the offender was intoxicated at the time of the offence.
The offender has a partner. He manages her physical care. The offender and his partner have children to previous partners. Their children are in care. The offender has a daughter who was born in January 2013; about one month after the offence. While the offender is a very loving father, his intellectual disability means that he is not capable of reliably providing the necessary ongoing care.
At a very early age the offender was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). Professor Stevens describes his condition as severe. The offender has been medicated for that condition since childhood. There have been difficulties and side effects with some of the medications he has taken. However, the medications have generally been beneficial and important to the offender’s ability to function. His foster father noted that the offender’s behaviour is very different depending upon whether he is on his medication.
At the time of the offence, the offender was not taking his medication. The offender was responsible for his medication, but his failure to take it must be seen in the context of his intellectually disability. His full-scale IQ is in the range of 70 to 75, placing him in the lowest 2% of the population.
The combined effect of ADHD and intellectual disability is that the offender is less able to form a considered judgement about conduct. In the circumstances of this offence, it is relevant to note that excessive drinking would have had an additional impact on the offender’s ability to reach a considered judgement. Nevertheless, an adult must accept responsibility for the consequences of their consumption of alcohol. Such consumption is very rarely (and not in this case) an excuse for criminal behaviour.
The offender currently suffers from a major depressive disorder. In 2014 he attempted suicide twice. I accept the prosecution submission that there is no evidence that he suffered from such a disorder at the time of the offence, although he has a vulnerability to depression. Professor Stevens said that the offender probably suffers from a further condition; borderline personality disorder.
In his report Professor Stevens stated:
...in sentencing I would encourage the court to take into account his [the offender’s] overall low functioning including low intelligence, his impulsivity (supported by ADHD diagnosis), poor emotional insight, vulnerability to depression (diagnosis to support) and intoxication on the night of the offence.
I accept that it is relevant to take all of those factors into account, although it is not appropriate to attribute equal weight to each matter.
Psychological and intellectual difficulties may be relevant to sentencing in a number of ways. They may reflect on an offender’s moral culpability for the offence. They may inform sentencing purposes, including general deterrence and other sentencing purposes. They may mean that full-time imprisonment would be more onerous for the offender than for other persons. In this case, the offender’s psychological and intellectual difficulties impact upon sentencing in each of those ways. With respect to moral culpability, the offender’s intellectual disability and history of abuse mean that it is more difficult for him to understand social cues, to reason in a considered way and to appreciate the complexities of behaviour. That is not to say that the offender has no understanding of right and wrong. He has an understanding, albeit an unsophisticated understanding. He understands that his conduct on the night in question was wrong. This is evident from his behaviour immediately after the offence. The condition of ADHD explains why the offender may have acted more impulsively than other people. However, in my view, the offender’s intellectual disability reflects most strongly on his moral culpability.
Other Sentencing Considerations
In sentencing any offender, the Court must have regard to the sentencing purposes set out in s 7 of the Sentencing Act. Each of those purposes is, to some extent, relevant to most sentencing exercises. In this case, the harm suffered by the victim is an important purpose to be addressed. Sentencing purposes of accountability, denunciation, punishment and general deterrence remain important. Given the psychological and intellectual circumstances of the offender, the sentencing purposes of denunciation and general deterrence assume less prominence. The offender is less appropriate as a vehicle to convey those sentencing purposes to the general population.
The offender’s foster father said that full-time imprisonment would be “disastrous” for the offender. While not wholeheartedly adopting that view, I have no difficulty in accepting that, for a person with the variety and nature of emotional, psychological and intellectual disabilities suffered by the offender, full-time imprisonment would be significantly more difficult.
The prosecution helpfully referred the Court to comparable cases. I agree with the prosecution submission that the case of R v Buda-Kaa (Unreported, Supreme Court of the ACT, Burns J, 30 November 2012) is comparable. However, the offender in that case was younger and he had a significant criminal history. He was charged with one count of sexual intercourse without consent and two counts of act of indecency without consent. Concurrent nine month sentences were imposed for the latter offences. Those sentences were made concurrent with the sentence imposed for sexual intercourse without consent. In R v Buda-Kaa [2013] ACTCA 46, the Court of Appeal expressed the view that the sentences were lenient but within the available range. The prosecution appeal was dismissed.
I have noted the other decisions in the appendix to the prosecution’s submissions.
In my view, no sentence is appropriate other than a sentence of imprisonment. The objective seriousness of the offence dictates that some sort of sentence of imprisonment must be imposed.
Having regard to the objective and subjective considerations and the maximum available penalty, an appropriate starting point for the sentence is 15 months’ imprisonment, but I will deduct three months for the plea of guilty, resulting in a sentence of 12 months’ imprisonment.
I turn to the manner in which that sentence should be served. Ordinarily, the objective seriousness of such an offence would dictate that a significant portion of the sentence be served by way of full-time imprisonment. However, given the psychological and intellectual circumstances of the offender, the sentencing purposes of protection of the community and rehabilitation dictate that the sentence should be fully suspended and the offender placed on a good behaviour order for a significant period.
Sentence
The offender is convicted of the offence of committing an act of indecency and sentenced to 12 months’ imprisonment. Pursuant to s 12 of the Sentencing Act I make an order suspending the whole of the sentence and I impose a good behaviour order for a period of two years. The good behaviour order is subject to the condition that the offender accepts the supervision of ACT Corrective Services and reports to Eclipse House by 4pm today, 14 May 2015. Supervision is to continue for as long as ACT Corrective Services considers necessary.
| I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: |
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