R v Lee
[2019] ACTSC 14
•7 February 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Lee |
Citation: | [2019] ACTSC 14 |
Hearing Date: | 7 February 2019 |
DecisionDate: | 7 February 2019 |
Before: | Elkaim J |
Decision: | See [35] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse with person under 16 years – bestiality – assault occasioning actual bodily harm – use carriage service to distribute child pornography – use child to produce child pornography – common assault |
Legislation Cited: | Crimes Act 1900 (ACT) ss 24, 26, 30, 55(2), 63A, 64(3) Criminal Code 1995 (Cth) s 474.19(1) Criminal Code 2002 (ACT) ss 46, 48 |
Parties: | The Queen (Crown) Jeffrey Lee (Offender) |
Representation: | Counsel Ms S Beaumont (Crown) Mr K Archer (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 29A of 2017; SCC 29B of 2017; SCC 30 of 2017 |
ELKAIM J:
On 17 November 2017, the offender pleaded guilty to 19 counts in an indictment dated 24 August 2017.
The counts in the indictment, and their maximum penalties are as follows:
(a)Counts 1 and 2: sexual intercourse with a person under 16 years (CC 2016/5847; CC 2016/5848), contrary to s 55(2) of the Crimes Act 1900 (ACT). The maximum penalty is 14 years’ imprisonment.
(b)Counts 3 and 4: bestiality by proxy (CC 2016/5858; XO 2017/31107), contrary to s 63A of the Crimes Act 1900 (ACT), by virtue of s 46 of the Criminal Code 2002 (ACT). The maximum penalty is 10 years’ imprisonment.
(c)Count 5: bestiality (XO 2017/31176) contrary to s 63A of the Crimes Act 1900 (ACT). The maximum penalty is 10 years’ imprisonment.
(d)Count 6: assault occasioning actual bodily harm (CC 2016/5850), contrary to s 24 of the Crimes Act 1900 (ACT). The maximum penalty is 5 years’ imprisonment.
(e)Count 10: threat to kill (XO 2017/31127), contrary to s 30 of the Crimes Act 1900 (ACT). The maximum penalty is 10 years’ imprisonment.
(f)Counts 11 and 12: assault occasioning actual bodily harm (CC 2016/5856; XO 2017/31128), contrary to s 24 of the Crimes Act 1900 (ACT). The maximum penalty is 5 years’ imprisonment.
(g)Count 13: use carriage service to distribute child pornography (CC 2016/5857), contrary to s 474.19(1) of the Criminal Code 1995 (Cth). The maximum penalty is 15 years’ imprisonment.
(h)Counts 14 to 22: use child to produce child pornography (CC 2016/5860; CC 2016/5863; CC 2016/5866; XO 2017/31129; CC 2016/5859; CC 2016/5861; CC 2016/5862; CC 2016/5864; CC 2016/5865), contrary to s 64(3) of the Crimes Act 1900 (ACT). The maximum penalty is 10 years’ imprisonment.
In addition, on 19 January 2018, the offender pleaded guilty to a single count in an indictment dated 11 January 2018. This is a charge of conspiring to commit bestiality (XO 2018/31272), contrary to s 63A of the Crimes Act 1900 (ACT), by virtue of s 48 of the Criminal Code 2002 (ACT). The maximum penalty is 10 years’ imprisonment.
There are also two further charges that were transferred from the ACT Magistrates Court, both of common assault (CC 2016/5854 and CC 2016/5855), contrary to s 26 of Crimes Act 1900 (ACT). The maximum penalty is 2 years’ imprisonment.
The details of the offences are contained in the Statements of Facts (Exhibits A and B). It is unfortunately necessary to give a brief description. Some of the offences are a combination of acts so base that they stretch the limits of morality.
From January to November 2012 the offender committed a series of sexual acts with a young female who was then 15 to 16 years of age. The offender was then in his early 40’s. I will refer to the female person as the victim although it is arguable that in respect of the offences when she was over 16 years of age she might be regarded as having been a legal and voluntary participant.
Count 1: Although the victim had originally told the offender she was 17 years old, she was actually 15 years of age and the offender knew this. I must of course take into account, in the offender’s favour, that the victim was on the cusp of being legally able to consent to the acts committed upon her. The offender took her to a car park at Mount Taylor. He engaged in anal sex with her for about half an hour.
Count 2: The offender drove the victim to the lookout at Redhill. She performed oral sex on him for about 20 minutes until he ejaculated.
Count 3: The offender had access to a dog called Prince. It was a Bull Mastiff American Staffordshire cross. Some time between January and November 2012 the offender and the victim consumed the drug ice. The offender persuaded the victim to permit Prince to participate in sexual activity with her. The offender guided Prince’s penis into the victim’s vagina. While Prince was apparently participating in sexual intercourse the offender masturbated.
Count 4: The victim was unconscious. This fact makes the offence more objectively serious than Count 3. Once again the offender enabled the dog to insert its penis into the victim’s vagina. The dog apparently behaved in a manner consistent with it believing it was mating with the victim.
Count 5: The offender had Prince lick his genitals.
Count 6: The offender and the victim had an argument. The offender pushed the victim against a wall and plunged a fishing spear through her arm. The offender took a knife and held it to her throat and threatened her with death. The victim was in fear for her life and pleaded with the offender to let her go. He took her to the laundry where he cut the end of the spear so it could be pulled back through her arm. He refused the victim permission to go to hospital.
Count 10: He told her that he would kill her. He wrapped socks around the victim’s wounds and bound the socks with a bandage. He later drove her to her family home. The victim still has scars from the spear.
Count 11: The victim used a tattoo gun which she had found at the offender’s home to create two stars on her leg above her right ankle. When the offender discovered her use of his tattoo gun he tried to cut out the tattoos with a knife. The attempted removal was unsuccessful and the tattoo, now distorted by a scar, remains.
Count 12: The offender punched the victim in the face on a number of occasions after accusing her of being unfaithful. She suffered bruising to her eyes and a graze to her lip.
Count 13: The offender liked to wear women’s clothing. Sometimes he and the victim engaged in role-play and performed live sex shows on a broadcast website using the offender’s computer which had an inbuilt video camera.
Counts 14 to 22: The offender took a series of photographs of the victim, often with her genitalia exposed and sometimes urinating or trying to urinate. In one of the photographs (Count 19) the victim is lying face down on a bed and her genitals are partly exposed. Scratch marks can be seen which had been made by Prince when the offender had caused the dog to engage in sexual activity with the victim.
Count 21 is made up of 27 photographs of the victim. She was naked and the offender had painted the words “Prince”, “mother” and “kink” above her genitalia.
I will now turn to the single count in the indictment dated 19 January 2018. The brief facts of this offence involved the offender and another man who met on an internet site called Adult Match Maker which is commonly used for people interested in engaging in sexual activity with each other. The accused and the other man both had an interest in cross dressing and bestiality. They exchanged many messages and photographs of a pornographic nature of each other including photographs involving a dog. There were also a number of video files depicting bestiality. This specific offence is made up of the two men conspiring to carry out sexual activity with a dog called Buddy. The plans that were discussed concerning Buddy included the performance of oral sex upon the dog. Once again the specific details are in the Statement of Facts. I see no reason to repeat them but observe that they dig down to the very depths of depravity. I do however, note that the acts which were proposed to take place before 17 March 2011 were not then illegal.
There are two charges transferred from the Magistrates Court. In CC 2016/5854 the offender threatened and assaulted the victim. In CC 2016/5855, after some of his illegal drugs went missing, the offender punched the victim.
There are two Victim Impact Statements. The first is from the young woman who was the owner of the dog. On one occasion, when she was looking for her dog, she found the dog apparently having sex with the victim (this corresponds with Count 4). She reported what she saw to the RSPCA and the police but to no avail. She describes the dog becoming unwell after it had spent some time with the offender. I note the dog has since passed away due to testicular cancer.
The second Victim Impact Statement is from the mother of the young woman who wrote the first statement. She also describes injuries to the dog and sexual behaviour carried out by the dog on a visitor to the house. I note that these Victim Impact Statements are limited to the effects upon the victims.
There is no victim impact statement from the young woman who is the primary victim of these offences. That does not mean that she has not suffered greatly as a result of the multitude of offences performed on her and using her body. Not only did she suffer physical injuries, but I have no doubt the psychological and psychiatric effects upon her have been overwhelming and will probably dictate aspects of her life for very many years to come.
The offender was born in 1969. He is now 49 years of age. He was born in Melbourne but grew up in Canberra. His parents separated when he was 13 years old. His mother asked him to leave home when he was 16 years old. Before his parents separated he had a supportive childhood.
The offender married when he was 25. There are two children of the marriage but he has not seen them since 2016.
The offender’s relationship with his mother gradually deteriorated and came to an end when he murdered her partner in March 2015. He was sentenced for this offence, and for stealing a sum of money from his mother and her partner, by the Chief Justice in August 2016. He received a head sentence of 12 years’ imprisonment commencing on 11 September 2016. A non-parole period of seven years’ was fixed. He will become eligible for parole in March 2022 under the Chief Justice’s sentence.
Every offence of sexual activity with an underage person is objectively serious. When the treatment of the young person also involves inducing her into acts with an animal the objective seriousness is increased. The acts of violence, in particular the thrusting of the fishing spear through the victim’s arm suggests a viciousness and cruelty that makes those offences also objectively serious.
The offences involving the dog are serious. Prince’s physical health deteriorated and he took on behaviours that are foreign to an animal. The offences are correctly described as animal cruelty.
In general terms sentencing requires consideration of the principles and objects of sentencing as set out in ss 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT) and also the various considerations dictated by s 33. Section 10 says a person should not be sent to prison except as a last resort. These offences demand full-time imprisonment.
The offender has not spent any time in prison due to these offences because he has already been in prison as a result of the murder conviction. Almost every one of the offences demands a significant prison sentence. However principles of totality must be recognised. To do otherwise would result in a sentence so long that it would afford no prospect of a future life and no prospect of rehabilitation. There must necessarily be a degree of concurrency and accumulation although the number of offences will not permit this to be achieved according to any mathematical formula. It is also important to take into account that when the offences were committed the offender had no criminal record.
As I have said, the offences were committed before the murder. The Chief Justice in her comments described the subjective factors that she took into account. She found that the offender had good prospects of rehabilitation. Her Honour was not made aware of these offences. A complication that arises here is to decide the overall length of the head sentence and in particular when it should begin. Ideally the offender would have been sentenced for these offences by the Chief Justice at the same time that she dealt with the murder charge. Unfortunately, although perhaps for good reason, there was considerable delay in the laying of the charges. If the sentences were to start at the end of the sentence for the murder, or even from the expiry of the non-parole period, an overly long period in custody would be produced.
I think the appropriate starting point should be today to avoid such a result.
A lot of the offender’s deviant conduct seems to be related to his use of illicit drugs and no doubt any prospect of rehabilitation will involve him distancing himself from their use. Hopefully his time in prison will assist him to rid himself of his dependence upon drugs. The Pre-Sentence Report suggests that he has made real efforts to stay away from drugs and that he now recognises, and is ashamed of, his conduct.
The offender pleaded guilty to all of the offences. The pleas have a significant utilitarian effect so that the offender is entitled to a discount on his sentences. I assess this discount at approximately 20%. All of the sentences which I will order have been discounted by this amount.
I make the following orders:
Indictment dated 24 August 2017
(a)Count 1, sexual intercourse with person under 16 years (CC 2016/5847), the offender is sentenced to 3 years’ imprisonment, commencing on 7 February 2019 and ending on 6 February 2022.
(b)Count 2, sexual intercourse with person under 16 years (CC 2016/5848), the offender is sentenced to 3 years’ imprisonment, commencing on 7 February 2020 and ending on 6 February 2023.
(c)Count 3, bestiality (CC 2016/5858), the offender is sentenced to 3 years’ imprisonment, commencing on 7 February 2021 and ending on 6 February 2024.
(d)Count 4, bestiality (XO 2017/31107), the offender is sentenced to 4 years’ imprisonment, commencing on 7 February 2022 and ending on 6 February 2026.
(e)Count 5, bestiality (XO 2017/31176), the offender is sentenced to 1 year imprisonment, commencing on 7 February 2019 and ending on 6 February 2020.
(f)Count 6, assault occasioning actual bodily harm (CC 2016/5850), the offender is sentenced to 2 years’ imprisonment, commencing on 7 February 2025 and ending on 6 February 2027.
(g)Count 10, threat to kill (XO 2017/31127), the offender is sentenced to 2 years’ imprisonment, commencing on 7 February 2025 and ending on 6 February 2027.
(h)Count 11, assault occasioning actual bodily harm (CC 2016/05856), the offender is sentenced to 18 months’ imprisonment, commencing on 7 February 2025 and ending on 6 August 2026.
(i)Count 12, assault occasioning actual bodily harm (XO 2017/31128), the offender is sentenced to 1 year imprisonment, commencing on 7 February 2025 and ending on 6 February 2026.
(j)Count 13, use carriage service to distribute child pornography (CC 2016/5857), the offender is sentenced to 2 years’ imprisonment, commencing on 6 August 2026 and ending on 5 August 2028.
(k)Count 14, use child to produce child pornography (CC 2016/05860), the offender is sentenced to 18 months’ imprisonment, commencing on 6 February 2028 and ending on 5 August 2029.
(l)Count 15, use child to produce child pornography (CC 2016/05863), the offender is sentenced to 18 months’ imprisonment, commencing on 6 August 2028 and ending on 5 February 2030.
(m)Count 16, use child to produce child pornography (CC 2016/05866), the offender is sentenced to 18 months’ imprisonment, commencing on 6 August 2028 and ending on 5 February 2030.
(n)Count 17, use child to produce child pornography (XO 2017/31129), the offender is sentenced to 18 months’ imprisonment, commencing on 6 August 2028 and ending on 5 February 2030.
(o)Count 18, use child to produce child pornography (CC 2016/5859), the offender is sentenced to 18 months’ imprisonment, commencing on 6 August 2028 and ending on 5 February 2030.
(p)Count 19, use child to produce child pornography (CC 2016/5861), the offender is sentenced to 18 months’ imprisonment, commencing on 6 August 2028 and ending on 5 February 2030.
(q)Count 20, use child to produce child pornography (CC 2016/5862), the offender is sentenced to 18 months’ imprisonment, commencing on 7 August 2029 and ending on 6 February 2031.
(r)Count 21, use child to produce child pornography (CC 2016/5864), the offender is sentenced to 18 months’ imprisonment, commencing on 7 August 2029 and ending on 6 February 2031.
(s)Count 22, use child to produce child pornography (CC 2016/5865), the offender is sentenced to 18 months’ imprisonment, commencing on 7 August 2029 and ending on 6 February 2031.
Indictment dated 11 January 2018
(t)In relation to the single count of conspiring to commit bestiality (XO 2018/31272), the offender is sentenced to 2 years’ imprisonment, commencing on 7 February 2030 and ending on 6 February 2032.
Transfer charges
(u)In relation to the common assault charge (CC 2016/5854), the offender is sentenced to 6 months’ imprisonment, commencing on 7 February 2025 and ending on 6 August 2025.
(v)In relation to the common assault charge (CC 2016/5855), the offender is sentenced to 6 months’ imprisonment, commencing on 7 February 2025 and ending on 6 August 2025.
(w)The total sentence is 13 years’ imprisonment commencing on 7 February 2019 and ending on 6 February 2032.
(x)I set a new non-parole period commencing on 11 March 2015 and expiring on 6 February 2026.
| I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: |
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