R v Mg
[2015] ACTSC 37
•5 February 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v MG |
Citation: | [2015] ACTSC 37 |
Hearing Date: | 5 February 2015 |
DecisionDate: | 5 February 2015 |
Before: | Murrell CJ |
Decision: | Without conviction, impose a good behaviour order for two years |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Sentence – particular offence – offences against children – act of indecency – young offender − rehabilitation |
Legislation Cited: | Crimes Act 1900 (ACT) s 61(1) Crimes (Sentencing) Act 2005 (ACT) ss 7, 13, 17, 17(3), 33 |
Parties: | The Queen (Crown) MG (Offender) |
Representation: | Counsel Ms D Likeman (Crown) Mr S Whybrow (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Ben Aulich & Associates (Offender) | |
File Number: | SCC 117 of 2013 |
MURRELL CJ:
The offender adheres to a plea of guilty entered on 19 November 2014 for the offence that on 19 June 2012 he committed an act of indecency in the presence of a child under 10 years of age. It is an offence contrary to s 61(1) of the Crimes Act 1900 (ACT) and carries a maximum available penalty of 12 years' imprisonment. The plea was entered very late in the proceedings. The matter was committed for trial in August 2013. Pre‑trial evidence was taken from the child in January 2014. In February 2014 the matter was referred by way of a case stated to the Court of Appeal. The offender’s legal representatives sought to advance a legal argument that motive was relevant to the offence of committing an act of indecency. Following the Court of Appeal’s decision a new trial date of 1 December 2014 was fixed at the time that the plea was entered.
Offending Conduct
On 19 June 2012, when he was 18 years and two days old, the offender was with a male friend at the home of the victim’s sister. The victim’s sister was a close friend of the offender. The victim was also present. She was five years old.
The offender began to coach the victim to use words and actions to suggest that she was having sexual intercourse. He used his mobile telephone to film her. Some of the statements were racist, referring to the victim’s Asian appearance and making a sexual link in that regard.
The victim’s sister intervened. She asserted that the offender’s conduct was inappropriate. She counselled the victim that she should not repeat any further the words suggested by the offender because it was rude.
The following day, the offender showed the victim’s sister the recording. After a few seconds, she walked away in disgust.
The matter came to the attention of the authorities on 2 August 2012, six weeks after the offending conduct, when police investigated an unrelated matter. The offender and his friends were involved in taking motor vehicles for joyriding purposes. The offender was eventually charged with aiding and abetting the unlawful taking of vehicles and with driving while disqualified. The Court proceeded without recording a conviction for the offence of aiding and abetting as the offender was not the principal offender. A small fine was imposed for the offence of driving while disqualified.
While police were executing a search warrant in connection with the driving and motor vehicle matters, they seized the offender’s mobile telephone. They discovered the recording that he had made on 19 June 2012. They charged the offender with the offence before the Court. When police interviewed the offender in August 2012, he commented “I took the video because I thought it was funny.”
Objective Seriousness of the Offence
The offence is a matter of some objective seriousness. It involved coaching a five year old girl to make highly sexual statements. The offence in question relates to children under 10 years of age. Five years is a relative young age and aggravates the crime. The activity was filmed. The offence occurred in the presence of the victim’s sister. That is relevant for a number of reasons. First, the victim had some protection because her sister was present and intervened in a protective fashion. Second, the offender placed the victim’s sister in an invidious and very embarrassing position.
The comments that the offender coached the victim to make were sexual and racist, degrading and humiliating. I accept that the offender’s motivation was not sexual. Rather, he thought that he was being funny. He was seeking greater social acceptance.
Because of the victim’s age, the offender was able to exploit her. The victim had little idea that her actions and words were inappropriate. One does not know how the family has dealt with the situation. In the future, the offence may have very little impact on the victim or it may have a very significant impact. The offence has had a significant impact on the victim’s sister and her parents.
The offence occurred in the victim’s home. This is generally considered to be an aggravating circumstance because it is a place where a person should be safe.
The victim was laughing during the course of the recording. She was willing to say the words and perform the actions requested, but her consent is a reflection of her extreme youth and is in not a mitigating factor.
It is an offence of committing an act of indecency in the presence of, rather than upon the victim. The offence involved primarily asking the victim to say things. Often such offences involve acts of sexual behaviour, generally speaking, by an offender rather than by a victim.
The Crown accepts that the offence is at the low end of the range in terms of objective seriousness but not at the lowest end. I agree with the Crown’s characterisation of the objective seriousness of the offence.
Subjective Circumstances of the Offender
The Court is guided by the opinions of those adults who know the offender. In particular, the offender’s mother has considerable insight into the offender. She works as a child care worker and has an informed perspective on the situation.
The offender was raised in a loving family. He was not exposed to child abuse and he had no understanding of it.
He struggled as a student. He left school relatively early. He commenced an apprenticeship but struggled with the academic side of the apprenticeship. He was unemployed for about 12 months, during which time this offence and the driving matters occurred. At that time, he was directionless. He associated with other young people who were in similar circumstances.
The Court received character evidence. I heard from the offender and his mother. The offender’s parents and his girlfriend’s parents (with whom the offender has a close relationship and currently lives), accept that the offender’s acts were disgusting and degrading to the victim. They believe that the offender now understands that his actions were deplorable and potentially damaging to the victim.
The offender is a trusted member of his girlfriend’s family, which includes female twins who were 10 years of age when the offender began to reside in their home. There are no concerns about the offender’s attitude to the twins. This supports a finding that the offence was not sexually motivated.
There is very little prospect that the offender will reoffend in any significant way, either by way of acts of indecency or any other criminal conduct. His involvement with the criminal justice system arises from very foolish and immature behaviour that occurred when he was just 18 years of age.
It is uncontroversial that, at the time of the offence, the offender had no insight into his conduct. He did not understand the unacceptability of the conduct or its potential impact on the victim and her family. He now understands the seriousness of such conduct and its potential impact. He appears to be genuinely ashamed of his conduct. It is true that he was not particularly articulate in expressing his remorse and shame. He impresses as a simple sort of person who finds it very difficult to articulate his feelings.
The offender has experienced considerable stress because of the proceedings. He is aware that the penalty imposed in the proceedings may have a significant future impact on him. He is also aware that the proceedings have had an enormous emotional and financial impact on his parents. He has been mature enough to seek professional help for his anxiety. Although he has resisted counselling, he has seen a psychologist or psychiatrist and he has accepted medication.
The commission of this offence and the driving offences and the resulting involvement with the criminal justice process was a “wake up call” for the offender. Over the last two and a half years, he has matured greatly. He has become involved in a steady relationship and he sees a future with his girlfriend. He has returned to his apprenticeship. He is now doing well in his work. He is in the third year of a four year apprenticeship. He is managing to pass tests and he has won awards from his employer.
Applicable Law
The Crown submitted that the Court is not particularly constrained in the manner in which it can deal with this matter. This matter differs from many other matters involving acts of indecency. The Crown provided a table of cases involving acts of indecency with young people. The brief summary of the conduct in question in those matters shows that there is a vast difference between the objective seriousness of most of those matters and the matter before the Court.
I am very mindful of the seriousness with which the criminal law regards offences that involve acts of indecency. This is indicated by the maximum available penalty of 12 years' imprisonment.
This is an exceptional case in which the Court may consider proceeding under s 17 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act). When considering s 17, the Court is required to consider the matters set out in sub-s (3), in addition to anything else that the Court considers relevant.
As noted earlier, for the offence of aiding and abetting the unlawful taking of vehicles the offender was dealt with without a conviction being recorded. It is unusual for an offender to be granted an indulgence under s 17 of the Sentencing Act in respect of two separate groups of offences. However, the offence that is the subject of these proceedings occurred prior to the driving offences. It was the first criminal misconduct by the offender. There is no necessary impediment to the Court invoking s 17 when it has previously been used.
In sentencing the offender, the Court is required to consider the sentencing purposes in s 7 of the Sentencing Act. The purposes of particular relevance in this case include the promotion of rehabilitation of the offender, accountability, denunciation and recognition of the harm to the victim and her family.
Rehabilitation is a particularly important consideration with any young person. In this case, the offender was aged 18 years and 2 days at the time of the offence. He had struggled through school and was not mature for his age. He lacked the maturity of an adult. Since the offence, the offender has pulled his life together. He has built a positive and crime free lifestyle over the last two and a half years. It is important that the Court reinforce the progress that he has made.
General deterrence is generally an important sentencing consideration for matters of this type. However, given the offender’s particular circumstances I do not consider that he is a useful vehicle through which to deliver a message of general deterrence. The unusual nature of the offending conduct also supports this approach to the sentencing purpose of general deterrence. The Court is required to consider the matters set out in s 33 of the Sentencing Act. I have referred to most of the relevant matters above.
Sentencing
Under s 17 of the Sentencing Act I take into account that the offender is of good character, apart from the brief period in mid 2012. His antecedents have been considered. His youth at the time of the offence is a very important consideration. I have taken into account the seriousness of the offence. There are no relevant extenuating circumstances. It is relevant that the offender has rehabilitated over the last two and a half years.
I find the offence proved. Pursuant to s 17 of the Sentencing Act, without convicting the offender I make a good behaviour order under s 13 of the Sentencing Act for a period of two years from today. The good behaviour order will include the core conditions and also a condition that the offender report to Corrective Services at Eclipse House by 4 pm today and undertake any counselling, treatment or other activity that Corrective Services considers to be appropriate in relation to sexual behaviour or otherwise.
| I certify that the preceding thirty-two [32] numbered paragraphs are a true copy of the Reasons for Sentence her Honour Chief Justice Murrell. Associate: Date: 24 February 2015 |
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