R v Mills
[2015] ACTSC 419
•17 December 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Mills |
Citation: | [2015] ACTSC 419 |
Hearing Date: | 17 December 2015 |
DecisionDate: | 17 December 2015 |
Before: | Murrell CJ |
Decision: | Fined $500. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – registrable child sex offender – failure to report – low objective seriousness – low risk of re-offending – early plea of guilty |
Legislation Cited: | Crimes (Child Sex Offenders) Act 2005 (ACT) s 37(1) Crimes (Sentencing) Act 2005 (ACT) ss 7, 33 |
Parties: | The Queen (Crown) Garry Mills (Offender) |
Representation: | Counsel Ms E Wren (Crown) Mr K Archer (Offender) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Darryl Perkins Solicitors (Offender) | |
File Number: | SCC 197 of 2015 |
MURRELL CJ:
The offender adhered to a plea of guilty entered at the earliest reasonable opportunity in the Magistrates Court to an offence contrary to s 37(1) of the Crimes (Child Sex Offenders) Act 2005 (ACT) (Child Sex Offenders Act). The offence is that, between 28 February 2015 and 1 April 2015, being a registrable child sex offender, he failed to make an annual report to police.
The maximum available penalty for this offence is five years' imprisonment and/or a fine of 500 penalty units.
The commission of the offence constitutes a breach of a recognizance release order.
Background
On 29 August 2013, the offender was sentenced for three child pornography offences that occurred in 2012. Two of the offences were Commonwealth offences and one was an ACT offence.
For one of the Commonwealth offences the offender was sentenced to two and a half years’ imprisonment from 29 August 2013. He was sentenced to nine months’ imprisonment for the other Commonwealth offence and the ACT offence. The sentences were to be served concurrently. The Court ordered that the first six months of each sentence be served by way of full-time imprisonment and that the next 12 months be served by way of a periodic detention order. The remainder of the sentence (relating only to the first Commonwealth offence), being a period of one year, was suspended for a period of three years upon the offender entering into a recognizance release order.
The offender was released from full-time imprisonment on 28 February 2014 and entered a recognizance release order. Upon his release he was told that he was required to report in his capacity as a registrable child sex offender. He also received written notification of the requirement. The offender reported to the Child Sex Offender's Registry Team on 6 March 2014. He was told that he needed to report annually each March.
The offender failed to report in March 2015. He was not sent a reminder about reporting and he says that he simply overlooked his obligation to do so.
On 20 May 2015, police telephoned him. He responded immediately, attending for an interview on 6 June 2015. He admitted that he had not reported and that he had been advised that he should do so. He said that he had forgotten to report. He was polite and cooperative.
At all times the authorities were aware of the offender's whereabouts. When he first reported to police in 2014 he provided a telephone contact, and details of his residence and email address. Those details did not change between 2014 and May 2015. Further, after his release from full-time imprisonment, the offender engaged with ACT Corrective Services and the Services would have been well aware of his whereabouts and activities.
Objective seriousness
Section 37(1) of the Child Sex Offenders Act is an important provision. As the then Attorney-General said during the Second Reading Speech of the Crimes (Child Sex Offenders) Bill 2005:
Those who have sexually offended against children must be monitored for as long as it is considered reasonably necessary to ensure that they do not reoffend, a situation that unfortunately very often arises with such offenders.
The maximum available penalty of five years' imprisonment and/or a significant fine reflects the importance of the provision, although the penalty does not suggest that the offence is one of the most serious in the criminal calendar.
The objective seriousness of this offence is very low for offences of this type. I accept that the offender overlooked the requirement to report. As mentioned, at all times the authorities were aware of his whereabouts and contact details. The offender would have known that. When reminded of his omission, he immediately responded and was cooperative with the authorities.
Subjective circumstances
The offender is now 58 years of age.
The offender attended school until Year 12. He is a former public servant who now works four or five days a week as a landscaper/handyperson. He is financially stable. He has a history of minor psychological issues; it is said that there was a period of severe depression at about the time that the child pornography offences occurred.
Apart from the child pornography offences committed in 2012, the offender has no other criminal convictions. He has engaged well with ACT Corrective Services since being released from custody and he is making a genuine effort to comply with their requirements. He completed his periodic detention order without incident.
The offender seems to be a retiring person, but he does enjoy reasonably good family relationships. Importantly, he enjoys the support of his wife of 20 years. She is aware of his offending and she has supported him in relapse prevention.
He has made a very positive effort to deal with the issues that came to light as a consequence of detection of the offending conduct. After the offender was released from full-time imprisonment, he and his wife attended a psychologist. They have been diligent in pursuing psychological treatment for the offender. The psychologist provided a report describing the offender as a “model therapy client in many regards.” The psychologist said that the offender had engaged in relapse prevention, had a happy and healthy relationship with his wife, and was socially engaged. He had gained a greater understanding of his feelings and behaviours and an increased ability to manage himself.
The psychologist, who has had significant interaction with the offender, considered the offender to be, “very low risk of future offending, as he has progressed through the modules of relapse prevention very quickly." The psychologist will continue to work with the offender and will monitor him.
Other sentencing considerations
I have been assisted by the ACT Sentencing Database statistics concerning the manner in which the Magistrates Court generally deals with matters such as this. Such matters are not usually prosecuted in the Supreme Court. The usual way in which the Magistrates Court deals with these matters is by way of the imposition of a good behaviour order, or a fine.
In sentencing the offender I am aware of the sentencing purposes in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). The sentencing purposes of general deterrence and protection of the community are significant for offences of this type.
The Court is required to consider relevant matters under s 33 of the Sentencing Act. I believe I have referred to the relevant matters. As far as the plea of guilty is concerned, I have taken that into account in relation to the penalty imposed, but I have not assigned the discount a particular percentage value. I am also aware that the case against the offender was extremely strong.
I consider that the most appropriate penalty is a fine. A good behaviour order is in the range of penalties to be considered, but no useful purpose would be served by imposing a good behaviour order as the offender is on a recognizance release order. The offender has employment and the capacity to pay a fine.
Sentence
The offender is convicted of the offence contrary to s 37(1) of the Child Sex Offenders Act. A fine of $500 is imposed. The offender has three months in which to pay the fine.
In relation to the breach of the recognizance release order, I take no action.
| I certify that the twenty-four [24] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: 9 February 2016 |
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