R v Marsh
[2019] ACTSC 251
•4 September 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Marsh |
Citation: | [2019] ACTSC 251 |
Hearing Date: | 4 September 2019 |
DecisionDate: | 4 September 2019 |
Before: | Elkaim J |
Decision: | See [41] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Indecent assault on male – guilty pleas – Historical child sexual offences – Crimes Act 1900 (ACT) s 81 as at 1979 and 1980 SENTENCING – Subjective circumstances of offender – 73 years of age – poor health – no relevant criminal history – effect of custodial setting on offender |
Legislation Cited: | Crimes Act 1900 (ACT) s 81 Crimes (Sentencing) Act 2002 (ACT) ss 6, 7, 10, 33, 34A |
Cases Cited: | Dudgeon v R [2014] NSWCCA 301 Marsh v The Queen [2018] ACTCA 55 R v KS [2018] ACTSC 220 R v Payne [2015] ACTSC 345 R v Stone [2016] ACTSC 231 |
Parties: | The Queen (Crown) Garry Marsh (Offender) |
Representation: | Counsel S Jerome (Crown) G Walsh (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Greg Walsh & Associates (Offender) | |
File Numbers: | SCC 4 of 2016 |
ELKAIM J:
On 25 August 2017, the offender was found guilty by a jury of 10 counts of indecent assault on a male and one count of buggery. The offences took place between 1 January 1979 and 31 December 1980 and related to a single complainant.
The offender appealed against his convictions. Before the appeal was heard he was sentenced by Burns J on 15 December 2017 (bail having been revoked on 11 December 2017) to a total of 8 years’ imprisonment with a non-parole period of 4 years (R v Marsh [2017] ACTSC 405).
The conviction appeal was heard on 13 August 2018. Prior to this hearing no appeal had been lodged against the sentences imposed by Burns J.
Judgment on the conviction appeal was handed down on 29 November 2018. The appeal was allowed, the offender’s convictions were set aside and a re-trial was ordered (Marsh v The Queen [2018] ACTCA 55).
On 3 May 2019, before the re-trial, the offender was arraigned on a fresh indictment dated 2 May 2019. He pleaded guilty to 5 counts of indecent assault on a male contrary to s 81 of the Crimes Act 1900 (ACT). The maximum penalty for this offence as at 1979 and 1980, was 5 years’ imprisonment.
Counts 1 to 5 in the fresh indictment mimic Counts 2, 5, 8, 9 and 10 in the original indictment dated 10 March 2016, in respect of which the offender was initially convicted and sentenced.
In relation to these offences Burns J imposed the following sentences:
(a) Count 1 (Count 2 before Burns J) (CC15/6444): 10 months imprisonment, commencing 11 December 2022 and expiring 10 October 2023.
(b) Count 2 (Count 5 before Burns J) (CC15/6447): 20 months imprisonment, commencing 11 December 2022 and expiring 10 August 2024.
(c) Count 3 (Count 8 before Burns J) (CC15/6450): 20 months imprisonment, commencing 11 October 2023 and expiring 10 June 2025.
(d) Count 4 (Count 9 before Burns J) (CC15/6442): 17 months imprisonment, commencing 11 July 2024 and expiring 10 December 2025.
(e) Count 5 (Count 10 before Burns J) (CC15/6451): 20 months imprisonment, commencing 11 December 2017 and expiring 10 August 2019.
The facts are outlined in detail in the case statement (Exhibit A). In summary, the offender was a teacher at a Christian Brothers school in the Canberra suburb of Griffith.
The victim, who I will refer to as TJ, was 10 years of age in 1978. He was a student at the school and played rugby union in a team coached by the offender. During a rugby match in 1979, TJ was struck in his groin area. He was taken to the side of the field where the offender purported to administer first aid to his injury. In fact he put his hand into TJ’s pants and touched his testicles. He cynically stated “that he was checking that [TJ] still had two balls and was okay”. This is Count 1.
About a week later the offender gave TJ a lift home after a rugby training session. Instead of taking him home he took TJ to his own residence. This was under the subterfuge that he needed to inspect the groin injury. TJ was told to pull his pants down and lay on the bed. The offender applied Vaseline to his fingers and put one of his fingers into TJ’s anus. This is Count 2.
Some weeks later the offender again drove the victim to his own house. He took him into the bedroom and applied Vaseline to his own penis, which he stroked. He then took TJ’s hand and made him stroke his (the offender’s) penis. This is Count 3.
Count 4 occurred after a further few weeks. TJ was summoned to the offender’s classroom. When he arrived the offender locked the door and undid his trousers. He applied Vaseline to his own penis and then used TJ’s hand to masturbate him until he ejaculated.
The final count occurred on a Friday night when TJ was staying at the offender’s house. TJ was invited to sleep in the offender’s bed. He was told to remove his clothing. The offender applied Vaseline to his fingers and inserted, initially one, but then two, fingers into the victim’s anus.
It is difficult to imagine more depraved behaviour upon a young boy. Burns J said that Count 1 was in the low to mid-range of objective seriousness. He said that Counts 2, 3 and 5 were in the mid to high range of such offences and that Count 4 was “slightly more serious because it occurred on the school premises”. I agree with his Honour’s assessment of objective seriousness in respect of each count.
I think the offender is entitled to have his pleas of guilty taken into account, although not nearly to the same extent as would have been the case had the pleas been entered to the original indictment. I also note that the victim would not have been required to give evidence again at a re-trial, so the offender cannot claim that the victim has been saved from giving further evidence.
I think the offender is entitled to a discount of 5% on his terms of imprisonment.
I also agree with these observations made by Burns J: “your conduct in committing these offences can best be described as predatory and wicked. Your moral culpability for these offences is very high”.
The offender was born in 1945. He is now 73 years of age. He does not have a relevant criminal history. This relates to both before and after the offending. Having regard to the offender’s age and current circumstances, in particular that he is no longer a teacher, it is unlikely that he will reoffend. Specific deterrence is therefore not a consideration. General deterrence however is important because persons who contemplate this kind of activity must understand that they will eventually be punished, even if it is many years after the crimes were committed.
The offender is not in good health and needs his medical regime to be monitored. There is no evidence to suggest that this cannot occur in prison.
On 27 May 2019 the offender underwent cardiac bypass surgery at Royal Prince Alfred Hospital in Sydney. His surgeon, Associate Professor Lowe stated in a report to the offender’s solicitor that:
Provided he can achieve moderate exercise of walking for 20 – 30 minutes three times a week and a healthy diet which is low in animal fats and according to National Heart Foundation Guidelines, I don’t see that custodial sentence should affect him physically and I have no knowledge as to how this might affect him in other ways, but none is available to suggest it would affect him detrimentally.
I assume the requisite degree of exercise will be available to the offender and the standard of the food will conform to the above guidelines.
A more serious picture of the offender’s health is painted by Dr Prakash, the offender’s general practitioner, in his report dated 23 August 2019. Besides the need for cardiac rehabilitation Dr Prakash refers to a soft tissue lump that has been identified at the back of the offender’s throat. It will require surgery and no doubt a biopsy to check its nature. The offender also has vascular impediments affecting one of his legs.
Dr Prakash notes that a custodial sentence can be “stressful and stress is recognised as a risk factor for cardiovascular disease”.
I agree with the observation of Burns J that, his “age and ill health will make imprisonment more onerous than for a younger, healthier man”.
Also as noted by Burns J, this offender will be deprived of support from his mother who is his only remaining living relative.
The offender’s mother, who is now almost 97 years of age, is also the recipient of care from the offender. Dr Prakash refers to the care she has received from her son and that she relies on him “for both physical and emotional support”.
The offender’s health and his close relationship with his mother, including her needs for his care, are all subjective matters that I must take into account. They give rise to elements of leniency which must, however, be balanced against the seriousness of the offences and the community’s need for this type of conduct to be utterly condemned.
I cannot accordingly accept the submission made by Mr Walsh that the subjective factors I have referred to can lead to a result which will not see his client returned to full-time imprisonment. I was referred to the remarks of Schmidt J in Wade v R [2018] NSWCCA 85, from [208]. The sentence of imprisonment in that case was not defeated on appeal by the many subjective features that applied to the appellant.
The other side of the argument, to the consideration of the offender’s subjective factors, in this case is represented by the victim impact statement which mirrors so many of the effects seen in courts so frequently in cases of this type. The statement begins:
Let me start by saying that your actions of all those years ago, have had a lifelong effect on my life, and of those around me.
30. He continues a little later:
The events of those years ago creep into my dreams every night, and have invaded every part of my being, while they do not define who I have become as a person, they are an unwanted part of me that I can never escape or remove, and will never leave me.
The victim goes on to describe his drug and alcohol usage, again a common effect on victims of this type of conduct. He says that he has been diagnosed with Post Traumatic Stress Disorder:
directly linked to the events of all these years ago, this may explain my erratic sleep patterns, dramatic mood swings, self-medication using alcohol, severe anger outbursts and extreme overreactions to minor day to day things that come from out of nowhere, and can make me shake with rage, all the time realising I have no logical reason or understand why I even reacted in the first place.
Following the offender’s bail being revoked on 11 December 2017, and his sentencing by Burns J on 15 December 2017, the offender was placed in custody and remained incarcerated until 29 November 2018 when the Court of Appeal granted him immediate bail after setting aside his convictions. He has thus spent 354 days in custody. He is entitled to credit for those days. The starting date for sentencing will therefore be 16 September 2018.
I asked the parties if there was any reason why the sentences imposed by Burns J should not be adopted by me. The Crown said that the sentences were imposed before s 34A of the Crimes (Sentencing) Act 2005 (ACT) came into effect (on 5 December 2018). Accordingly the relevant sentencing patterns that I should look at are those that exist today and not at the time of the offending.
The offender had two responses to my question. Firstly, it was said that I should follow the approach taken by Murrell CJ in R v Scheeran [2014] ACTSC 272 at [44]. It was submitted that the clear intent of the legislature in introducing s 34A should not surmount the statement of fundamental principle made by the Chief Justice and that, in any event, her Honour had effectively been considering s 34A although through the prism of s 33(1)(za).
Secondly, the offender said that the sentences imposed by Burns J lacked a measure of leniency which arose from the offender’s current subjective circumstances. In particular his health, his relationship with his mother (including factors relating to her age and health) and his previous experience of being in custody in which he not only suffered condemnation but also actual physical assault. These matters are described in his affidavit sworn on 30 August 2019 (Exhibit 1).
The judgment in Scheeran attaches a number of sentences imposed at about the same time as the current offences. The Crown has also provided me with a table of sentences imposed for sexual intercourse with a person under the age of 16 years. Both parties referred me to a number of other authorities. There is a list of cases referred to by the offender in Exhibit 2. Cases like Dudgeon v R [2014] NSWCCA 301 where leniency is considered for unwell offenders are not applicable here. In Dudgeon the offender had terminal cancer with a very short life expectancy.
The Crown also provided me with copies of the following cases: R v Stone [2016] ACTSC 231; R v KS [2018] ACTSC 220; R v Trezise [2018] ACTSC 135; R v Payne [2015] ACTSC 345. The different sentencing patterns emerge from a comparison of sentences for recent offences and historical offences.
In addition, in sentencing, I also take into account other relevant provisions of the Crimes Sentencing Act, and in particular sections 6, 7 and 33. I do not think s 10 is applicable because there is no option besides full-time imprisonment.
I think the sentences imposed by Burns J for the offences that I am dealing with are appropriate and I intend to effectively adopt them, subject to two matters. Firstly the offender is entitled to a discount for his pleas of guilty, which I have assessed above at 5%. Secondly there needs to be a different regime of concurrency and accumulation which must take into account principles of totality.
My adoption of the sentences is a recognition of the arguments of both the Crown and the offender. In other words I think the introduction of s 34A is a clear statement by the legislature that in cases of this type, namely sexual offences against children, a different approach is to be taken notwithstanding the already existing, but less emphatic, import of s 33(1)(za). At the same time I have also, to bring the sentences back from the extra severity that would have flowed from adopting current sentencing practices, incorporated the plea for leniency arising from the offender’s subjective circumstances.
Orders
I make the following orders:
(a)For Count 1, Indecent assault on a male (CC15/6444), the offender is sentenced to 9 months and 15 days imprisonment, commencing on 16 September 2018 and ending on 30 June 2019.
(b)For Count 2, Indecent assault on a male (CC15/6447), the offender is sentenced to 19 months imprisonment, commencing on 1 April 2019 and ending on 31 October 2020.
(c)For Count 3, Indecent assault on a male (CC15/6450), the offender is sentenced to 19 months imprisonment, commencing on 1 November 2019 and ending on 31 May 2021.
(d)For Count 4, Indecent assault on a male (CC15/6442), the offender is sentenced to 16 months and 7 days imprisonment, commencing on 1 July 2020 and ending on 7 November 2021.
(e)For Count 5, Indecent assault on a male (CC15/6451), the offender is sentenced to 19 months imprisonment, commencing on 16 February 2021 and ending on 15 September 2022.
(f)The total sentence is 4 years’ imprisonment commencing 16 September 2018 and ending on 15 September 2022.
(g)I set a non-parole period of 2 years commencing on 16 September 2018 and ending on 15 September 2020.
| I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: 4 September 2019 |
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