R v Marsh
[2017] ACTSC 405
•15 December 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Marsh |
Citation: | [2017] ACTSC 405 |
Hearing Date: | 11 December 2017 |
DecisionDate: | 15 December 2017 |
Before: | Burns J |
Decision: | See [33]-[44] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – found guilty after trial by jury of 10 counts of indecent assault and one count of buggery – historic offences – Crimes Act 1900 (ACT) ss 79 and 81 as at 1979 and 1980 – offender was school teacher and coach of victim –– certain circumstances taken into account in determining objective seriousness of offences – offences in low, mid and upper range – high moral culpability – whether maximum penalty applies in relation to offences of indecent assault – whether to take into account legislature’s change in attitude – whether minimum penalty applies in relation to offence of buggery – Crimes (Sentencing) Act 2005 (ACT) s 7 – subjective features – person of otherwise good character – carer for mother – age and ill-health – terms of imprisonment imposed |
Legislation Cited: | Crimes Act 1900 (ACT) ss 79, 81 (as at 1979/1980) Crimes (Sentencing) Act 2005 (ACT) ss 7, 33 |
Cases Cited: | R v Hall [2017] NSWCCA 313 R v Ronen [2006] NSWCCA 123; 161 A Crim R 300 R v Scheeren [2014] ACTSC 272 |
Parties: | The Queen (Crown) Garry Marsh (Offender) |
Representation: | Counsel Ms J Campbell (Crown) Mr G Walsh (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Greg Walsh Co (Offender) | |
File Number: | SCC 4 of 2016 |
BURNS J:
Garry Leslie Marsh, on 25 August 2017, you were found guilty after a trial by jury of 10 counts of indecent assault and one count of buggery. You were originally charged with 12 counts of indecent assault and the one count of buggery. There was a directed verdict of not guilty with respect to Count 11, a count of indecent assault, on 23 August 2017, being the third day of your trial. The jury returned a verdict of not guilty on Count 1, which was also a count of indecent assault. You were found guilty on the remainder of the charges.
These offences were all committed against the same victim in 1979 or 1980, when the victim was aged 12 or 13 and was a student at St Edmund's College. You were a teacher at that school and you were 33 or 34 years old at the time. At the time of these offences, you were the coach of a school football team in which the victim played.
The maximum penalty for the offence of buggery, contrary to s 79 of the Crimes Act 1900 (ACT) as at 1979 and 1980, is life imprisonment, or any term not less than five years imprisonment. The maximum penalty for the offence of indecent assault upon a male, contrary to s 81 of the Crimes Act 1900 (ACT) as at 1979 and 1980, is five years imprisonment.
Issues arose in the sentence proceedings as to whether, in sentencing you, I should take into account that the maximum penalty for the conduct which was previously punished by the offence of buggery has been reduced by the legislature and that the mandatory minimum term of five years imprisonment has been abolished. I will return to those issues later.
The facts
In setting out the facts, I will draw heavily upon the summary prepared by your counsel. There was no submission by the Crown that this summary was inaccurate, except in one aspect which was identified by the Crown and which I have corrected.
There were five separate incidents where you sexually abused the victim. In the period between 1979 and 1980 you drove the victim home on occasion after rugby training. If the victim's mother was not at home from work you would drive the victim to your house in Mawson. You and the victim had conversations about puberty in general and you asked the victim if he was growing hair and what was going on with his body.
On one occasion during a rugby game on a weekend the victim was kneed in his groin area. You provided first aid and you put your hands down the victim's pants and touched his testicles. I am satisfied that you did this while holding a sponge. This was the basis of Count 1 on the indictment, on which the jury returned a verdict of not guilty. In my opinion, the jury's verdict reflects a lack of satisfaction that your actions were indecent, as being sexual in their nature. After the game, you drove the victim and another boy to your home. You told the victim you needed to check his groin area and took him into the main bedroom while making the other boy wait in the living room. Inside the bedroom you told the victim to take off his pants and lay back on the bed. The victim did this and you touched his testicles. You told the victim that you needed to make sure he was okay inside, and you inserted a finger into his anus. You then told him that you needed to ensure that he could still get an erection, and you put the victim's penis in your mouth. The touching of the victim's testicles was the basis of Count 2, a count of indecent assault. The insertion of your finger into the victim's anus was the basis of Count 3, a charge of indecent assault. The act of fellatio on the victim was the basis of Count 4, a further charge of indecent assault.
The second incident occurred approximately one week later. You gave the victim a lift home after training. You drove straight to your house and told the victim that you were worried about his groin and needed to check it out. Inside the house you told the victim to pull down his pants and lie on the bed, which he did. You put your finger in the victim's anus and put the victim's penis in your mouth. You told the victim that he probably was not getting an erection because he did not know how to do it correctly. You pulled down your pants and took the victim's hand and made him stroke your penis until you ejaculated. The act of inserting a finger into the victim's anus was the basis of Count 5, a charge of indecent assault. The act of fellatio on the victim was the basis of Count 6, a charge of indecent assault. The act of placing the victim's hand on your penis and making him masturbate you until you ejaculated was the basis of Count 7, a further count of indecent assault.
The third incident occurred at a later date, also in the bedroom of your house, when you drove the victim to your house after football training. You again inserted your finger into the victim's anus and you masturbated in front of him. This is the basis of Count 8, a count of indecent assault.
The fourth incident occurred several weeks later and occurred at St Edmund's College. During lunch break at school the victim was told by another student that you wanted to see him. The victim went to your classroom on his own. When he arrived he went into the classroom and you closed the door. In his evidence, the victim said that you locked the door, but I am not satisfied that this was the case. Based on other evidence in the trial I am satisfied that the classroom could not be locked from the inside and that the victim has made a mistake when he said that you locked the door of the classroom. You undid your pants, pulled out your penis and started stroking it. You then took the victim's hand and made him masturbate you until you ejaculated. This was the basis of Count 9, a charge of indecent assault.
The fifth and final incident occurred on a Friday night when the victim stayed at your house so that he could get a lift to a rugby game the next day. It is appropriate that at this point I provide some background to your relationship with the victim and his mother. At the time of these offences, the victim's mother was separated from his father, and she and the victim were living in premises in Mawson. You also lived in Mawson. The victim considered you to be a cool teacher and he would, from time to time, visit you outside of school hours at your residence in Mawson. You would provide him with refreshments and he would listen to music. The victim's mother was working and she was not always home from work when the victim arrived home from school. She met you through attending football matches when you were the victim's football coach.
On one occasion you went to dinner with the victim and his mother at their home. On the occasion that the victim stayed overnight at your house you suggested to his mother that he stay at your house because she was going to be in Sydney that weekend. The victim went to your house, as arranged, and commenced to sleep on the couch. You told him that he could sleep in your bed. The victim went into your bedroom and got into his sleeping bag on top of your bedcovers. You told him that it was time for you and him to do your thing, and told the victim to get out of the sleeping bag. You told him to take off all his clothing, which he did, and then you placed one and then two fingers into his anus. You caused the victim to lie on his stomach face down and you inserted your penis into his anus. The victim immediately felt pain and screamed. You eventually stopped and told the victim he had to finish you off and told him that he could masturbate you or give you a head job. The victim then masturbated you.
When the victim returned home after this incident he told his mother that he was never going to your house again.
Objective seriousness of offences
Sexual offending against children is always regarded as serious criminal offending by the courts. In determining the objective seriousness of the present offences, I take into account the following circumstances insofar as they may relate to any particular offence:
· the age of the victim being between 12 and 13 years of age;
· the difference in ages between yourself and the victim, being approximately 20 years;
· I take into account that these offences involved a gross breach of trust, as you had previously been the victim's teacher and you were his school football coach at the time of these offences. You held a position of authority with regard to the victim which you used in order to gratify your sexual desires;
· you engaged in grooming behaviour characterised by encouraging the victim to attend your house outside of school hours. The form of encouragement was in providing the victim a degree of freedom within your home and also providing refreshments;
· I am satisfied that these offences involve a degree of premeditation, particularly with regard to the offences that occurred as part of the fifth incident;
· the first incident occurred in circumstances where there was another child in the house;
· these offences occurred over a period of time, in your home and in a classroom at St Edmund's College;
· there was clear resistance from the victim when you inserted your penis into his anus, and this act caused the victim immense and obvious pain.
I would characterise the offence in Count 2 as being in the low to mid‑range of such offences. I would characterise Counts 3, 4, 5, 6, 8 and 10 as being in the mid to high range of such offences as they each involved some form of sexual penetration. I would characterise Counts 7, 9 and 13 as being in the mid‑range of such offences, although Count 9 is slightly more serious because it occurred on the school premises. I would characterise Count 12, the count of buggery, as coming within the upper range of such offences, but not falling within the worst category. Your conduct in committing these offences can best be described as predatory and wicked. Your moral culpability for these offences is very high.
Maximum penalties
It is appropriate that I now say something briefly about the matter that I touched on earlier, being the maximum penalty for these offences. The maximum penalty for the conduct which was engaged in by you with regard to each of the offences of indecent assault would, if committed today, be much higher than the maximum penalty of five years imprisonment which was in place in 1979 and 1980. There is, as I understand it, agreement between your counsel and the Crown that I am to disregard the increase in penalty for this type of behaviour imposed by the legislature subsequent to you having committed these offences.
The more difficult issue arises with regard to the offence of buggery. The conduct which you engaged in in 1980 and which formed the basis of the charge of buggery, if committed today, would be punishable as an offence of sexual intercourse with a person under the age of 16 but above the age of 10. The maximum penalty for such an offence is 14 years imprisonment, but there is no minimum term of imprisonment prescribed, unlike the situation which pertained with regard to s 79 of the Crimes Act 1900 (ACT) in 1980.
Your counsel and the Crown are in agreement that in sentencing you I should take into account the legislature's change in attitude to this type of offending, as revealed by the reduction in the maximum penalty, and reduce the impact of the maximum penalty accordingly when arriving at an appropriate sentence for this offence, consistent with the approach taken by the New South Wales Court of Criminal Appeal in R v Ronen [2006] NSWCCA 123; 161 A Crim R 300. I accept this to be the correct approach.
A further issue which arises is whether the minimum penalty of five years' imprisonment remains a requirement when sentencing for such an historic offence. In R v Scheeren [2014] ACTSC 272 Murrell CJ accepted that the five year minimum sentence continued to apply but there does not appear to have been any argument addressed on the issue. The Crown submits that the five year minimum still applies. In written submissions your counsel has not disputed that the five year minimum applies, so that I will, without deciding the matter, approach sentencing for the offence of buggery on the basis that it does still apply. In any event, I consider that a sentence of five years imprisonment is a just and appropriate sentence for that particular offence.
Statutory requirements
I take into account, without here reciting, the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT). I also acknowledge and take into account the provisions of s 33 of that Act.
Subjective features
I note that you are now 72 years old. You have a minor prior criminal history, which I will ignore for present purposes. You do not have any convictions recorded against you subsequent to these offences. There is evidence that after you were discharged from your position at St Edmund's you later took up teaching and other positions in Nauru and the Solomon Islands. Testimonials have been placed before me speaking of the high regard in which you were held in these positions. There is no suggestion that there has been any repetition of this type of offending since 1980. The Crown submitted that the fact that there have been no convictions recorded against you from 1980 until today does not necessarily indicate that you have not committed further offences. I accept, as a matter of logic, that this may well be true, but for the purposes of sentencing it would be inappropriate, in my opinion, to withhold from you the benefit of being considered a person of otherwise good character, to which you would normally be entitled based upon the evidence before the Court, simply because of the speculative possibility that you may have committed further offences which have not come to light. No objection was taken by the Crown to the tender of the testimonials and nor was any adjournment of the proceedings sought for the purpose of investigating the content of those testimonials.
Your lack of a relevant criminal history prior to committing these offences can only be given limited weight. It is clear that you would not have been in a position to commit these offences if you had not been a person of prior good character. The lack of any criminal history in the 37 years between committing these offences and you being sentenced for them speaks of you having reformed yourself with regard to sexual offending, albeit that you did not undertake any formal programs or counselling to address that issue.
I should also note that since 2006 you have been the full‑time carer for your mother, who is 95 years old and in poor health. Your age, lack of any offending history between 1980 and 2017 and your personal circumstances make it unlikely that you will ever reoffend in a similar manner in the future. In my opinion, individual deterrence is not a significant sentencing consideration with regard to these offences and you are to be taken as rehabilitated for practical purposes.
I must nevertheless still impose sentences, both head sentences and any non-parole period, that adequately reflect the objective seriousness of these offences. This principle was reiterated as recently as yesterday by the New South Wales Court of Criminal Appeal in R v Hall [2017] NSWCCA 313.
A Pre‑Sentence Report was prepared for the sentence hearing. That report confirms that you are the carer for your aged and infirmed mother and that your father died suddenly of a heart attack in 1980. Your younger brother also died earlier this year. You do not have any extended family support. You describe yourself as friendless. You maintained your denial of these offences to the author of the report. You were assessed as being at low risk of general reoffending and you were also assessed as being in the below average risk category relevant to other male sex offenders with regard to the risk of sexual offending.
You yourself are also in poor health. You suffer from a number of physical conditions which require medication and monitoring. There is no suggestion that these conditions cannot be appropriately addressed in a custodial setting, although I accept that there are inevitable restrictions placed upon your access to medical treatment in custody. Inevitably, some loss of continuity of care will occur if you are sentenced to full‑time imprisonment. It does not appear to me that a sentence of imprisonment will, however, have a gravely adverse effect on your health.
I accept that your age and ill health will make imprisonment more onerous than for a younger, healthier man. I also accept that imprisonment in the ACT will make it practically impossible for your mother, your only significant social support, to visit you.
You continue to maintain your innocence with respect to these offences, as is your right. The penalty appropriate for these offences is not to be increased because of your pleas of not guilty and your refusal to acknowledge your guilt, but you are not entitled to the leniency that may have been shown to you had you demonstrated remorse and saved the victim from the necessity to give evidence and the community the cost of a trial by entering pleas of guilty.
I accept that sentences of imprisonment for these offences will have a detrimental effect on your mother, who is incapable of properly caring for herself. I have no doubt that this will weigh heavily on your mind while you are in prison. Your mother has limited support, other than by yourself, and is resistant to entering an aged care facility. In all probability she will have to reassess her preparedness to enter such a facility while you are in prison. I do not consider the effect on your mother of the imposition of sentences of imprisonment on you to be such as to warrant any substantial reduction in sentence.
The Crown has conceded that there is no reliable evidence of sentencing patterns or practices for offences of buggery and indecent assault as they pertained in the ACT during 1979 and 1980. I am obliged to consider current sentencing practices, so far as can be ascertained, but the sentencing practices in the past when the offences occurred may also be considered. Neither past nor present sentencing practices set the maximum or minimum parameters of the sentence that may be appropriate for a particular offence and they cannot justify a sentence that does not adequately punish you for the particular offence. To the extent that the Court can ascertain such matters, that information forms part of the material from which by instinctive synthesis a just and appropriate sentence is derived.
I am satisfied that nothing less than immediate terms of imprisonment are appropriate with regard to these offences. Any sentence less than an immediate term of imprisonment would not adequately punish you for these offences, nor would it adequately denounce your conduct. As demonstrated by the victim impact statement which was read at the sentence hearing, your offending behaviour has had a marked and continuing detrimental effect upon the victim. Nothing less than an immediate term of imprisonment will also be sufficient to recognise the harm which has been done by you to the victim and to the community. Despite the passage of time since the commission of these offences, it is also appropriate to impose sentences designed to deter other people from committing similar offences. All of these considerations call for a sentence of immediate imprisonment.
There are a number of common features with regard to these offences which call for a degree of concurrency of sentence. In addition, considerations of totality also call for a degree of concurrency of sentence.
Sentence
With respect to all of the charges, I impose convictions. With respect to Count 12, the charge of buggery, you are sentenced to five years imprisonment, commencing on 11 December 2017 and expiring on 10 December 2022.
With regard to Count 10, you are sentenced to 20 months imprisonment, commencing on 11 December 2017 and expiring on 10 August 2019.
With regard to Count 13, you are sentenced to 15 months imprisonment, commencing on 11 December 2017 and expiring on 10 March 2019.
With regard to Count 3, you are sentenced to 20 months imprisonment, commencing on 11 February 2022 and expiring on 10 October 2023.
With regard to Count 2, you are sentenced to 10 months imprisonment, commencing 11 December 2022 and expiring 10 October 2023.
With regard to Count 4, you are sentenced to 20 months imprisonment, commencing 11 February 2022 and expiring 10 October 2023.
With regard to Count 5, you are sentenced to 20 months imprisonment, commencing 11 December 2022 and expiring 10 August 2024.
With regard to Count 6, you are sentenced to 20 months imprisonment, commencing 11 December 2022 and expiring 10 August 2024.
With respect to Count 7, you are sentenced to 15 months imprisonment, commencing 11 May 2023 and expiring 10 August 2024.
With regard to Count 8, you are sentenced to 20 months imprisonment, commencing 11 October 2023 and expiring 10 June 2025.
With regard to Count 9, you are sentenced to 17 months imprisonment, commencing 11 July 2024 and expiring 10 December 2025.
The aggregate sentence which I have imposed is therefore one of eight years imprisonment, commencing 11 December 2017 and expiring 10 December 2025. I set a non-parole period of four years, commencing 11 December 2017 and expiring 10 December 2021.
| I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 14 February 2018 |
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