R v LE

[2018] ACTSC 143

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v LE

Citation:

[2018] ACTSC 143

Hearing Date:

15 May 2018  

DecisionDate:

21 May 2018

Before:

Elkaim J

Decision:

See [24]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – act of indecency upon a person under the age of 10 – guilty pleas

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10 and 65(4)

Crimes Act 1900 (ACT) s 61(1)

Cases Cited:

Bull v The Queen [2004] ACTCA 8

R v NT [2017] ACTSC 69

Parties:

The Queen (Crown)

LE (Offender)

Representation:

Counsel

Ms M Kent (Crown)

Mr J Lawton (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Sharman Robertson (Offender)

File Number:

SCC 252 of 2017

ELKAIM J:

1. On 12 September 2017, the offender pleaded guilty to two offences of committing an act of indecency on a person under the age of 10 years in the Magistrates Court. The offences are contrary to s 61(1) of the Crimes Act 1900 (ACT) and carry a maximum sentence of 12 years’ imprisonment.

1. Notwithstanding the offender’s pleas, the Pre-Sentence Report dated 6 December 2017 stated that he did not agree with the AFP Statement of Facts. Counsel for the offender has advised the Court that the offender adheres to his pleas of guilty. He is entitled to a discount for his pleas, which I assess at 25%. Although the Crown case was strong, any trial would have almost certainly involved taking evidence from the victim, which would have been a particularly stressful experience for her. 

1. The offender’s granddaughter is the victim of these offences. She was five years old at the time.

1. The offender resided in Nepal and came to Australia in May 2017 to visit his son. His son has two children: one girl and one boy. The offender was planning to stay in Australia for a year to help care for his son’s children. He would feed the children breakfast, get them dressed and take them to school.

1. On 7 July 2017, the victim told her mother that she had pain in the area of her vagina. She told her mother that her grandfather had “touched [her] with his finger”.

1. The victim was taken to Calvary Hospital, where she underwent a medical examination. The doctor confirmed that there were red marks and swelling on the victim’s vagina. Testing revealed that the child had contracted a urinary tract infection.

1. The offender was taken to the Winchester Police Station, where he took part in a record of interview with the assistance of an interpreter. The offender said that, about ten days previously, he had put the child to sleep in his bed. She had wet her pants so he had to change her clothes. He cleaned her vagina with a “wipe”. The victim had said that her vagina was itchy, so he scratched it with his finger. He then took his penis out of his trousers and rubbed it against her vagina. This conduct constitutes the first charge. The offender then ejaculated on the bed. This conduct constitutes the second charge.

1. The two charges effectively comprise one incident. There is no doubt that the first offence is objectively serious. It is unclear what motivated the offender’s conduct but his behaviour is abhorrent and deserving of condemnation. The child’s age, the offender’s relationship with the child and the child’s vulnerability are all factors that must be taken into account in sentencing.

1. The Victim Impact Statements reveal the breadth of the effect of the offences. The statement from the victim’s mother describes the effects upon her and her daughter, some of which are likely to be longstanding. In addition, I note that the victim suffered an infection which has continued to bother her and has required the administration of antibiotics.

1. The statement from the victim’s father describes the broader effects of the offender’s criminal conduct, extending to his father’s family and life in Nepal. The statement goes so far as to suggest that it might be appropriate for the offender to be imprisoned for life to ensure his own safety.

1. As already noted, the offender is from Nepal. It was not submitted that the offender has a criminal record in Nepal. He does not have a criminal record in Australia. These factors must be taken into account.

1. The offender was born in 1957. He is 61 years of age. He is one of 10 children. He experienced a stable upbringing and, while his parents are now deceased, he maintains a close relationship with his siblings. He and his wife have been in a relationship for 43 years and they have three children. His wife has recently been diagnosed with a viral disease and an infection of her lungs. I am unaware of her prognosis. 

1. The offender finished high school in Nepal and seems to have maintained steady employment since that time. He was working in the manufacturing industry in Nepal prior to travelling to Australia.

1. The sentencing exercise requires consideration of the purposes and principles of sentencing, as set out in ss 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT). Section 10 is also important because it states that a person should not be sentenced to a term of imprisonment unless it is the only appropriate option. I think that a term of imprisonment is the only appropriate option in this case. There was no suggestion otherwise.

1. The offender will be deported to Nepal when he is released. This raised a technical issue in relation to the structuring of the sentences. Learned counsel for the offender submitted that an appropriate course would be to suspend a part of the sentence, accepting that upon the suspension taking effect the offender would be immediately deported. Counsel submitted that this offender should be treated no differently to any other offender who would continue to live in the community.

1. The difficulty with this suggestion is that any conditions imposed upon the suspension would be of no utilitarian value because they could not be enforced in Nepal.

1. A sentence with a non-parole period could, arguably, have the same result, assuming the offender is released on parole. I initially thought that the solution was to decline to set a non-parole period, pursuant to s 65(4) of the Crimes (Sentencing) Act 2005 (ACT). Upon further consideration, however, I do not think that there is anything about the nature of the offences or the offender’s antecedents which would justify the application of this subsection.

1. I have decided that the appropriate course is to follow the Crown’s suggestion of a term of imprisonment with a non-parole period, appreciating that the parole authorities will take the question of deportation into account in dealing with any application for parole.

1. The Crown referred me to two authorities to illustrate sentencing in other like matters. They are Bull v The Queen [2004] ACTCA 8 and R v NT [2017] ACTSC 69. Both cases have elements of similarity to the present case but, as conceded by the Crown, there are many points of distinction. I do regard them as helpful but not determinative of the sentences that I should impose.

1. I have already said that the two offences were really part of the same act of misconduct, so I think they should be dealt with concurrently. The first offence however, is significantly more serious and attracts a longer period of imprisonment.

1. In my view, the sentence for the first offence (involving the scratching and rubbing of the victim’s vagina) should be a period of three years’ imprisonment, reduced to 27 months on account of the offender’s plea of guilty. The sentence for the second offence (the ejaculation) should be a period of 18 months’ imprisonment, reduced to 13.5 months.

1. I set a non-parole period of 20 months.

1. The offender has been in custody since 8 July 2017, a total of 318 days. The terms of imprisonment and the non-parole period will commence on 8 July 2017.

1. I make the following orders:

(a)In respect of the offence of an act of indecency with a person under the age of 10 years (CC 17/7725), the offender is sentenced to 27 months’ imprisonment commencing on 8 July 2017 and ending on 7 October 2019.

(b)In respect of the offence of an act of indecency with a person under the age of 10 years (CC 17/7726), the offender is sentenced to 1 year 1 month and 15 days’ imprisonment commencing on 8 July 2017 and ending on 22 August 2018.

(c)The non-parole period is 20 months to commence on 8 July 2017 and expire on 7 March 2019.

I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.

Associate:

Date: 21 May 2018