R v Naing
[2023] ACTSC 210
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Naing |
Citation: | [2023] ACTSC 210 |
Hearing Date: | 18 May 2023 |
Decision Date: | 3 August 2023 |
Before: | Loukas-Karlsson J |
Decision: | See [166] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – act of indecency on person under 16 years – five counts of offending –two victims known to the offender – intoxication and moral culpability – no relevant criminal history – hardship to third parties – importance of general deterrence in sentencing sexual offences against children – term of full-time imprisonment – nonparole period imposed |
Legislation Cited: | Crimes Act 1900 (ACT) s 61 |
Cases Cited: | Bugmy v The Queen (1990) 169 CLR 525 |
Parties: | The Queen (Crown) Sithu Naing ( Offender) |
Representation: | Counsel S Bargwanna ( Crown) S Robinson ( Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Hugo Law Group ( Offender) | |
File Number: | SCC 147 of 2022 |
LOUKAS-KARLSSON J:
Introduction
1․On 6 February 2023, the offender, Mr Sithu Naing, was found guilty after trial by jury of five counts of act of indecency on a person under 16 years (Counts 2 to 6), in respect of two victims, RG and DG. These offences are contrary to s 61(2) of the Crimes Act 1900 (ACT) (Crimes Act), as the provision stood prior to amendment in August 2022. The maximum penalty for this offence is 10 years’ imprisonment. I note the offender was also found not guilty after trial by jury of one count of act of indecency on a person under 16 years (Count 1).
2․Convictions for these offences were formally entered on 6 February 2023.
3․I note that the victims in this matter, RG and DG are sisters.
Facts after jury trial
4․The ability of a sentencing judge to determine facts for the purpose of sentencing is to the extent that the facts are “consistent with the verdict of the jury’ and the evidence given at trial (R v Bartlett [2016] ACTSC 390 (Bartlett) at [6]). This is subject to the legal principle that facts adverse to the offender must be found beyond reasonable doubt, and mitigating facts must be established on the balance of probabilities (Bartlett at [6]; Cheung v The Queen [2001] HCA 67; 209 CLR 1 (Cheung) at [13]-[16]).
5․The High Court in Cheung endorsed the NSW Court of Criminal Appeal’s approach in R v Isaacs (1997) 41 NSWLR 374 (Isaacs) in relation to the Court’s role, summarising at [14] the principles in Isaacs (at 377-378) as follows:
1.Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with the judge, and not with the jury. …
2. Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings. …
3. The primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury.
4. A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt.
5. There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender. … However, the practical effect of 4. above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender.
6․As stated above, the offender was found not guilty of Count 1.
7․Count 2 involved the accused touching RG’s chest and buttocks over her clothes at the family’s residence in MacGregor, ACT.
8․Count 3 involved the accused touching the inside of RG’s thighs and stomach under her clothes, also in RG’s family home.
9․Count 4 involved the accused touching RG’s vagina. RG gave evidence that the accused touched her ‘down there’ and he moved his fingers in a circular motion. This offending also occurred in the family home.
10․Counts 5 and 6 involved the accused putting his hand inside DG’s underwear, touching her vagina. The offender then removed his hand and repeated the same action, again touching DG’s vagina. This offending occurred on the couch in the living room of DG’s family home in MacGregor, ACT.
11․In addition, counsel for the offender submitted that this Court is required to make the following findings of fact, not evident from the jury’s verdicts, for the purposes of sentencing:
(a)The level of intoxication of the offender at the time of the offences and the consequences flowing from this in relation to moral culpability; and
(b)The age of the victims at the time of the offending.
12․The matter of intoxication in relation to moral culpability will be discussed later at [40]-[62] under the heading of ‘Moral culpability and intoxication’.
13․In relation to the age of the victims, counsel for the offender correctly submitted that the Court would find DG was 11 years of age at the time of the offending. This was a matter not in dispute between the parties.
14․The parties did not agree on RG’s age at the time of the offending. Counsel for the offender submitted the finding that RG was 12 years of age at the time of the offending, as alleged by the prosecution, as opposed to 13 years of age, as alleged by the defence, aggravated the offending and therefore must be proven beyond reasonable doubt.
15․The prosecution submitted that RG was 12 years of age, at the oldest, on the basis of RG’s Evidence in Chief Interview in which she stated:
I think I was in Year 5 or Year 6. I just remember I was still in primary school.
16․Counsel for the offender submitted the Court would find RG was 13 years old based on the following.
17․While RG gave evidence she was in “Year 5 or Year 6” when the offending occurred, when asked why she said this in cross-examination, RG replied, “I remember I was just really young”. In addition, counsel for the offender submitted that RG could not remember who her teacher was at the time of the offending. Counsel for the offender submitted one explanation for this is that she was in high school and had different teachers for different subjects.
18․In addition, counsel for the offender submitted that the evidence of RG’s cousin indicated RG complained to her about the offender “weeks or months” after the event. RG’s cousin said the complaint occurred when the pair were “12 or 13” and “just starting off in high school”. When asked later in her police interview when the disclosure was, RG’s cousin said, “towards the end of Year 7, beginning of Year 8”.
19․Taking all the above into account, I am not satisfied beyond reasonable doubt that RG was 12 years of age. I am satisfied on the balance of probabilities that RG was 13 years of age.
20․In addition to the above, counsel for the offender correctly submitted that the Court is precluded from finding that the offender penetrated DG’s genitals to any extent with his finger given that this would constitute a more serious offence for which the offender has not been charged or convicted (The Queen v De Simoni (1981) 147 CLR 383).
21․Counsel for the offender further submitted that the Court would decline to find that the offender smelled his fingers at or around the time of touching DG genitals. Counsel for the offender submitted this is because:
(a)It may suggest penetration of DG’s genitals; and
(b)While DG gave evidence of the offender smelling his fingers, when asked how she knows this, she said, “I could hear it, and, like, and I could, like – I don’t know. It’s like I could picture what he was doing and, like – like, kind of hear. Because it was under–I think it was, like, under the blanket”.
22․Taking into account the foregoing, I do not find this particular matter satisfied beyond reasonable doubt, though not much turns on this issue.
Victim Impact Statement
23․A Victim Impact Statement authored by the father of the victims was read in court by the prosecution and includes the following:
I am the father of [DG] and [RG] and I have written, and make this statement, to explain the impact of [the offender]’s crimes on my daughters and my family.
My wife and I have always ensured our home is a safe and loving environment filled with immediate family and close friends who are considered part of our extended family. [The offender] was a close friend for more than 10 years and a member of our extended family. He was welcomed into our family and we spent many holidays and special events together.
[The offender] took advantage of my families trust and sexually [assaulted] my daughters on multiple occasions in our own home. During the period he was assaulting my daughters he continued to attend our family home on almost a weekly basis, attending our family’s events including the birthday celebrations of our children, without guilt or remorse.
[The offender] violated my daughters physically and mentally and [DG] and [RG] continue to suffer greatly as a result, no child should ever have to experience the pain and fear my daughters have had to manage. [The offender] was an adult they thought they could trust, and he took advantage of this trust on multiple occasions.
[The offender] lives only 10 minutes away from our family home and frequents the same places as my family. Until his guilty conviction last February, my daughters were afraid to go out in public to places they would usually attend with friends or family for fear of running into him.
[The offender]’s crimes have had a direct impact on me as a father and on my family. To support my daughters, I have limited my work hours and commitments considerably in order to spend more time at home and be available to my daughters to provide safety and support. This has significantly [affected] my ability to earn an income and has placed substantial pressure on our household finances.
I have spent countless hours trying to re-create a safe family home for my daughters and our other children. [Redacted] wherever possible my wife and I drive my daughters and other children to school and all events, avoiding [their] use of public transport.
My wife and I have spent countless sleepless nights fearing for the safety of our family and trying to decide how to protect our daughters and our family, and were even forced to consider relocating to another city, leaving our family and support network behind, because of [the offender]’s crimes [redacted] all while [the offender] continued to move freely around the community without shame, fear or remorse.
I constantly worry about my family, [their] safety and ability to cope with the ongoing impact of [the offender]’s crimes. My concern for my daughters and their ongoing ability to cope with the physical, emotional and mental impact of the sexual abuse leaves me and my wife in constant fear and exhausted.
My daughters, and my family, will have to live with the pain and impact of [the offender]’s crimes for many years to come. [The offender] has [shown] no guilt or remorse for his actions [redacted]. My daughters should never have had to go through this, no child or family should ever have to experience this pain.
24․The Court recognises the significant impact these crimes have had on the victims and their family. The Victim Impact Statement demonstrates the long-term consequences that flow from this crime.
25․While no Victim Impact Statements of the victims are before the Court, the Court acknowledges the presumption of harm in relation to sexual offences perpetrated against children, underpinned by the abhorrence with which the community regards the sexual abuse of children: see R v BJW [2000] NSWCCA 60; see also R v BC (No 4) [2021] ACTSC 119 (BC No 4). The Court acknowledges the well-known, deep psychological impacts of abuse of young children. It is necessary that the sentence imposed, to the extent appropriate, gives recognition to the extent of the harm done by the offending to the victims and their family, per Section 7(1)(g) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) as below:
7Purposes of sentencing
(1)A court may impose a sentence on an offender for 1 or more of the following purposes:
…
(g) To recognise the harm done to the victim of the crime and the community.
Objective seriousness
26․Sexual offending against children is always regarded as serious criminal offending by the courts. When sentencing offenders for sexual offences against children, a number of principles apply: see R v Eisenach [2011] ACTCA 2 at [86]; R v Dent (Unreported, NSW Court of Criminal Appeal, 14 March 1991) at [6].
27․It is of “considerable significance” that the Court assess the nature of the offence and the character of the particular act of indecency: R v PGM [2008] NSWCCA 172 (PGM) at [31].
28․In this matter, Counts 2, 3 and 4 relate to RG. Consistent with PGM, the prosecution submitted that, having regard to the nature and location of the touching:
(a)Count 2 is at the lower to mid range of objective seriousness;
(b)Count 3 is also at the lower to mid range of objective seriousness; and
(c)Count 4 is at the upper end of objective seriousness.
29․Counts 5 and 6 relate to DG. The prosecution submitted that, having regard to the nature and location of the touching, both Counts 5 and 6 are at the upper end of objective seriousness.
30․Counsel for the offender’s submissions accord with those of the prosecution with respect to Counts 2 and 3. Counsel for the offender submitted that Counts 4, 5 and 6 were instead in the mid range of offending, with Counts 5 and 6 being the most serious offences. Counsel for the offender submitted the next most serious count is Count 4, wherein the offender touched RG’s genitals underneath her clothing. Counsel for the offender submitted that this offence is somewhat less serious than Counts 5 and 6 because RG was 13 at the time and DG was 11.
31․Counsel for the offender submitted Counts 2 and 3 are less serious than Count 4, given that the accused touched areas other than RG’s genitals.
32․I agree with the prosecution and defence submissions combined that Counts 2 and 3 are lower to mid range. In my view, Counts 4, 5 and 6 are all in the mid to upper range, in view of DG’s age concerning Counts 5 and 6, and the conduct involving touching the vaginas of both victims.
33․Counsel for the offender properly acknowledged in submissions the fact that the offender was a family friend, who regularly attended the victims’ family home, acts to increase the seriousness of all counts. This is discussed further at [35]-[39].
34․Counsel for the offender correctly submitted that, relevant to the seriousness of the offending, is the fact that the offending was ‘unplanned, opportunistic, and unsophisticated’ insofar as the offender:
(a)did not seek friendship with the family as a means to have access to the victims;
(b)did not attend the family’s home for the purposes of access to the victims;
(c)did not attempt to groom the victims; and
(d)did not attempt to manipulate the victims at the time of the offending or afterwards, for example, by telling them to keep quiet.
Relationship of the offender to family of victims
35․Section 33(1)(u) of the Sentencing Act requires a sentencing court to take into account whether the offender was in a position of trust or authority when the offences were committed.
36․The prosecution referred to R v Horton-Hegarty [2018] ACTCA 22, Murrell CJ, Mossop and North JJ at [35] and [64]-[65], a case concerning such breaches. See also Kalofolias v The Queen [2017] VSCA 308 at [4]-[12], [46], [53].
37․As stated earlier at [33], counsel for the offender correctly recognised in written submissions that ‘the relationship of the offender to the family of the victims, and his regular attendance at their family home, acts to increase the seriousness of the offending’.
38․I have assessed generally objective seriousness at [32]. The relevant facts are discussed from [29] to [33] above.
39․See also the discussion of s 34A of the Sentencing Act at [123] in relation to the good character not enabling the offender to commit the offence.
Moral culpability and intoxication
40․Based on the evidence given by the offender at trial (and his comments recorded in the PSR discussed below at [9191․]), the offender was intoxicated at the time of the offending. The fact of an offender’s intoxication during the course of offending is a mandatory relevant consideration on sentence: see below s 33(1)(p) Sentencing Act.
33 Sentencing—relevant considerations
(2)In deciding how an offender should be sentenced (if at all) for an offence, a court must consider whichever of the following matters are relevant and known to the court:
…
(h) whether the offender was affected by alcohol or a controlled drug when the offence was committed and the circumstances in which the offender became affected;
41․Australian courts (most commonly in the “alcohol fuelled violence” context) have consistently rejected the proposition that intoxication can mitigate the seriousness of an offence or reduce an offender’s culpability. The Victorian Court of Appeal comprehensively summarised the state of the law in so far as intoxication and moral culpability in Hasan v R [2010] VSCA 352; 31 VR 28 (Hasan) at [20]-[34], stating at [21]-[22]:
In the circumstances, it is timely to review the state of the law regarding intoxication as a sentencing consideration. As will appear, courts around Australia have consistently rejected the proposition that intoxication can mitigate the seriousness of an offence or reduce the offender’s culpability. An “out of character” exception is acknowledged to exist, but it has almost never been applied. On the other hand, it is recognised that intoxication can be an aggravating factor where the offender is shown to have had foreknowledge of how he/she is likely to behave when affected by alcohol. No issue of that kind arises here.
The starting point for most modern discussions of the subject is Bradley where Lord Widgery CJ said:
This Court finds nothing in the case to indicate that that sentence was other than entirely correct. It is said that he was in drink. So he was. But the day is long past when somebody can come along and say ‘I know I have committed these offences, but I was full of drink.’ If the drink is induced by himself, then there is no answer at all. It is said it is out of character. So it was. He has a clean character. He had no previous convictions at all. It was said that he is a good son to his mother and he has a number of other skills as a citizen.
The plain fact is that on this afternoon he behaved himself in such a manner as to make it absolutely imperative that some suitable condign punishment should be imposed upon him. That was done and the appeal is dismissed.
(emphasis added)
42․Similar approaches have been taken in the South Australian Court of Criminal Appeal in R v Lane (1990) 48 A Crim R 161, by the Victorian Court of Criminal Appeal in R v Redenbach (1991) 52 A Crim R 95 (Redenbach), by the Queensland Court of Appeal in R v Rosenberger; ex parte Attorney-General (Qld) (1995) 1 Qd R 677 (Rosenberger) and by the Western Australian Court of Criminal Appeal in De Jesus (1986) 20 A Crim R 402. In Redenbach the Court of Criminal Appeal said at 99:
Nowadays it frequently occurs that those who attack and kill or seriously injure someone are affected to some extent by drink or drugs. Where this condition is self-induced, it is not generally to be regarded as mitigating the offence, for in most cases the offender may be regarded as morally responsible for his condition at the time of the offence.
43․ACT Supreme Court case law is consistent with the approaches taken in other Australian jurisdictions. In R v Cole [2017] ACTSC 404 (Cole) it was not accepted that the moral culpability of an offender was reduced in circumstances where the offender was aware that he tended to behave aggressively when consuming both alcohol and Valium.
44․However, intoxication may amount to a mitigating factor on sentence where the intoxication makes the offender act “out of character”, in accordance with R v Coleman (1990) 47 A Crim R 306 (Coleman) (see also Stanford v The Queen [2007] NSWCCA 73). Notwithstanding the exception, the prosecution submitted that the offender bears the onus of showing that he or she did not know what effect the alcohol would have on him or her. At [34], their Honours stated:
On ordinary principles, the offender would bear the onus of showing that he/she did not know what effect alcohol would have on him/her. Given the widespread use of alcohol, and the fact that even a non-drinker would be well aware of its effects on a person who becomes intoxicated, this is doubtless a difficult burden to discharge. Moreover, an attempt to invoke the exception also carries with it the forensic risk that an investigation of the offender’s drinking habits might lead to the conclusion that the state of intoxication was an aggravating rather than a mitigating circumstance.
45․The prosecution correctly accepted at the sentencing hearing, on the balance of probabilities, that the offender was intoxicated during the commission of the offences. The prosecution submitted, should the offender wish to rely on the ‘out of character’ exception, the offender would need to demonstrate that he was unaware of the effect that his intoxication would have on him.
46․In response to this, counsel for the offender made written and oral submissions to the following effect.
47․Counsel for the offender identified circumstances in which self-induced intoxication may amount to a mitigating factor including where the following apply:
(a)the offender committed an offence while intoxicated;
(b)the level of intoxication greatly affected “the degree of deliberation in the offender’s breach of the law” (Coleman at 327);
(c)the offending was “out of character” for the offender;
(d)the offender established that he did not foresee what “the probable consequences of the ingestion of [alcohol] by [him] were” (see Martin v The Queen [2007] VSCA 291 at [30]; Hasan at [34]);
(e)the circumstances of the case were “quite exceptional” (see Hasan at [33]).
48․Counsel for the offender acknowledged that there is no appellate ACT authority on this and that some decisions of a single judge in the ACT could be read as authority for the proposition, expounded by the prosecution above, that self-induced intoxication cannot mitigate on sentence: see, for example, R v March [2023] ACTSC 28 at [77]-[79], citing Cole. Counsel for the offender submitted that the authority should not be taken as rejecting the “out of character” exception for self-induced intoxication as a concept in sentencing law.
49․Counsel for the offender submitted that the evidence in this matter established, on balance, that:
(a)the offender committed the offences in a state of being “black out drunk”;
(b)that in his state of intoxication, the offender’s degree of deliberation in offending was very limited;
(c)that the offending was entirely out of character for the offender; and
(d)that the offender had no awareness that he would offend in this way when, and only when, heavily intoxicated.
50․The Court must grapple with whether the circumstances of this case are exceptional. Counsel for the offender properly accepted that many offences of a sexual nature, including those against children, are committed when an offender is drunk or on drugs. However, counsel for the offender submitted that this case was exceptional.
51․Counsel for the offender described the offender as a ‘happy drunk’, and submitted, with the clear exception of the victims, each witness at trial described the offender as such. Counsel for the offender submitted this was an ‘aberration’ (T26.35). As a result, counsel for the offender submitted that while serious, this is a rare case where moral culpability may be reduced to a certain extent because of the state of intoxication.
52․Counsel for the offender in submissions distinguished between the offender’s awareness of the loss of memory as a result of alcohol consumption, and his lack of awareness that his intoxication made him ‘interested in young girls’.
Conclusion regarding moral culpability and intoxication
53․Properly understood, in accordance with the principles in Hasan at [20]-[34] discussed above at [41], the ‘out of character’ exception is a narrow one with rare application: R v GWM [2012] NSWCCA 240 at [82]. The circumstances in which the exception can be applied must be “quite exceptional” (Hasan at [33]).
54․In the ACT, voluntary intoxication on the part of an offender remains relevant to sentencing in the narrow way contemplated in Coleman. Specifically, the Court in Coleman identified that intoxication can be relevant to the degree of deliberation or premeditation involved in the crime (Coleman at 327). This is reiterated by the Court in R v MT [2020] ACTSC 339 and The Queen v Taylor [2015] ACTSC 43 at [48] as follows:
I note that Mr Taylor was intoxicated during the evening, both with alcohol and drugs. Almost invariably intoxication which may explain an offence cannot be considered mitigatory. See Bourke v R (2010) 199 A Crim R 38 at 44; [20]. It can, however, be relevant to determine the degree of deliberation or premeditation involved in the crime, as noted by Hunt CJ at CL in Coleman v R (1990) 47 A Crim R 306 at 327.
55․Courts are not inclined to “give an offender the benefit of a reduction on sentence on the ground of his drunkenness at the time of the offence” (Rosenberger at 679).
56․Uncontroversially, the NSW Court of Criminal Appeal stated in Stewart v The Queen [2012] NSWCCA 183:
As for the role of alcohol, it is well established that the intoxication of an offender at the time of the commission of an offence can be taken into account by a sentencing court: see R v Coleman (1990) 47 A Crim R 306. Whether intoxication is a matter of mitigation or aggravation will depend upon the facts of the particular case.
57․In this case, the prosecution conceded that the offender’s moral culpability in the instance offences is ‘somewhat qualified’ by virtue of his intoxication (T29.14-15).
58․As stated above, counsel for the offender submitted that this conduct is ‘out of character’ as Mr Naing has a longstanding history of heavy drinking without a reported incident of this nature.
59․Further, counsel for the offender submitted that the circumstances are exceptional for the following reasons:
(a)The offender was not just very drunk, he was, on balance, “black out drunk”;
(b)The above contention was put to the jury by the prosecutor at trial; and
(c)At the time of the offending, the offender was in his forties, having had a 20 year history of heavy drinking without an incident of this nature.
60․As stated in Coleman, sexual violence occurring in a state of self-induced intoxication is “notoriously commonplace”. In fact, numerous cases in which the ‘out of character’ exception has been contemplated but not applied have involved episodes of drug or alcohol-induced intoxication or ‘psychosis’ where the offender, as is the case here, maintains they cannot recall having committed the offences: see for example Hasan at [9].
61․The prosecutor at trial put to the offender that there was a possibility he committed these offences but could not remember because of his level of intoxication. The prosecution further submitted at sentence that “[the offender] knows that when he gets drunk he does things he does not remember or he can’t remember what he has done and the reason he can’t remember or the reason he did not know that he touched underage girls is because his intoxication was to such a state that he could not remember”. The offender denied having participated in the conduct on the basis of his history of excessive drinking without incident.
62․I accept, as conceded by the prosecution, that the offender’s moral culpability is “somewhat qualified” by the severe “black out” intoxication. Importantly, for this sentencing exercise, while the offender’s level of intoxication may only somewhat reduce his moral culpability, it is relevant to an assessment of the seriousness of the offending. The high level of intoxication of Mr Naing was, as properly agreed by both counsel, relevant to the degree of deliberation or premeditation involved in the offending: see Coleman at 327. It is on this basis that I will sentence the offender.
Subjective Circumstances
63․The subjective circumstances of the offender are outlined in a Psychological Report of Ms Vanessa Quigley dated 5 May 2023, a Pre-Sentence Report (PSR) dated 15 May 2023, and a letter from the offender’s wife.
Psychological Report – Ms Vanessa Quigley
64․A report was tendered by counsel for the offender, prepared by clinical psychologist Ms Vanessa Quigley following an interview with the offender in the Alexander Maconochie Centre (AMC). The report detailed the following.
65․The offender was born in Myanmar and moved to Australia in 1995 when he was 19 years old. He reported speaking three languages, Burmese, Mandarin and English. The offender experienced a relatively stable developmental history, although outlined notable absences of his father when away on diplomatic postings and the challenges of making a life in a new country without his family. The offender noted difficulties in his country of origin including ongoing civil war and the unstable political situation which interrupted his schooling in his late teens. Ms Quigley stated that while the offender denied these experiences impacted upon him, it is more than likely that they did.
66․The offender reported he attended Canberra Institute of Technology after College and studied “hotel operations and retail”, achieving an Advanced Diploma. He further reported working at the Hyatt Hotel while studying, then at Coles for eight years where he became a Store Manager. The offender was ultimately terminated from Coles due to drinking. The offender reported he worked six days a week prior to going into custody: Tuesday to Friday as a produce shop employee at Belconnen Mall, and Saturday and Sunday driving produce from Sydney to Canberra, working a 16-hour day. The offender reported that while he is incarcerated “bills are piling up”, he is “worried for [his] wife”, and that there is “pressure on [his wife]”. The offender also reported that he and his wife are supporting his family overseas, sending money every month.
67․The offender reported he and his wife married in October 1999. His wife is of Vietnamese descent and the offender proudly reported that she “finished Uni, she’s the clever one, I’m the muscle”.
68․The offender reported he and his wife have five children between 12 and 22 years of age, two sons and three daughters. His eldest child has completed university with a First Class Honours Degree, his second child is in their second year of studying physiotherapy, his third child is in Year 11 and his two youngest children are in Years 9 and 7. He reported that they “are good kids and deserve better”, referring to his charges. The offender further reported he “didn’t have the opportunities they do and told them that” and encourages them to “study hard”. He reported all of his children remain living in the family home.
69․The offender denied to Ms Quigley any other relationships or concerns with pornography, or hebephiliac interests.
70․With respect to the offender’s mental health, the offender denied any mental health concerns however reported significant alcohol consumption and strong desire to drink. The offender’s emotional quotient appeared low with the offender denying experiencing everyday emotions such as anxiety, anger or sadness. Ms Quigley advised it remains possible his drinking is an avoidance-based coping mechanism which has had a significant impact on his psychosocial functioning, including his occupational and social pursuits, or a form of emotional numbing which has contributed to impulsivity and poor decision making.
71․The offender described himself as a Buddhist, identifying this as “very important to [him]” and reported that he “prays everyday” and “meditates”. The offender credited this with helping his mood, particularly given current circumstances.
72․However, Ms Quigley reported there is some evidence of anxious symptomology including sleep disturbance, worry, difficulties relaxing or winding down and some evidence of flashbacks and trouble remembering important parts of a stressful experience, which the offender did not acknowledge in the interview. Ms Quigley advised that the offender has symptoms of both Post-Traumatic Stress Disorder (PTSD) and/or Generalised Anxiety Disorder (GAD), with Ms Quigley describing the latter as being “more likely”. Ms Quigley suggested it is possible the offender is understating symptoms due to lack of insight or dissociation.
73․The offender reported first drinking alcohol at the end of Year 8. The offender described drinking two to three bottles of whisky a week, tending to binge drink on weekends. Ms Quigley reported that the offender currently meets the diagnostic criteria for Alcohol Use Disorder, ‘in early remission, moderate’. The offender reported consumption of alcohol in large amounts and with the need for markedly increased amounts to achieve intoxication, strong and persistent desire or urge to use alcohol, activities given up or reduced because of alcohol use, and continued use despite problems caused by or exacerbated by alcohol.
74․The offender reported being convicted of driving under the influence on two occasions. He reported he was working at Coles at the time, and he was counselled that, “as a manager he needed to be responsible”. The offender further reported he was dismissed after he had “drank a lot” and went back into the store to buy water but because he “came in store drunk”, that they “made an example out of [him]”.
75․Clinically speaking, Ms Quigley described that the offending seems best understood as a combination of emotional dysregulation and substance abuse in the form of high-risk alcohol use over many years. The offender reported immature emotional literacy and a lack of insight into the role of his emotions and the impact of events upon his life, and then upon the strategies he employs to address discomfort or distress.
76․Ms Quigley identified that, while the offender’s risk of recidivism appears low, appropriate intervention and consistent treatment engagement is recommended to address his Alcohol Use Disorder and improve his overall level of emotional functioning. The offender reported having applied for alcohol treatment programs in the AMC, however to be enrolled he has to have been there for three months. The offender reported to Ms Quigley that he will be able to engage with the programs if he is released. Ms Quigley recommended the following interventions:
(a)Cognitive Behavioural Therapy including psychoeducation to assist the offender to increase his insight and understanding into his symptoms and impairments;
(b)Regular psychological treatment for 6-12 months to assist the offender to develop strategies to improve his emotional and behavioural regulation and address any previous experiences of trauma and provide ongoing monitoring of any substance use issues to reduce the risk of relapse;
(c)With respect to his previous level of alcohol use, drug and alcohol support to understand the purpose of his drinking with counselling through Directions ACT or similar;
(d)Group substance use support programs, including Alcoholics Anonymous, to gain perspective upon his substance use; and/or
(e)Exploring strategies for other activities to relax or socialise which do not use alcohol in order to reduce his risk of relapse by falling back into familiar patterns of socialising.
77․Ms Quigley identified that the offender also has the support and encouragement of his wife and family to address these concerns.
78․Furthermore, Ms Quigley indicated that the offender evidences maladaptive coping strategies though his Alcohol Use Disorder, likely to stem from anxiety, which may make period of imprisonment more difficult than somebody of ‘normal’ mental and social functioning. Specifically, Ms Quigley advised that the offender is likely to experience more anxiety and fear navigating the interpersonal dynamics and relationships within the custodial environment, and that he is likely to find the experience harder and more anxiety provoking than someone without related impairments. The offender reported the past three months in the AMC were “very hard” and he became “grumpy and moody”. He reported “missing family” and having concerns about “supporting them”.
79․Ms Quigley also observed that a period of incarceration would weigh heavily on him in terms of letting down his family both practically and financially and the pressure he is already experiencing as a result of the current period of incarceration.
80․Ms Quigley assessed the offender as having excellent prospects of rehabilitation, with his risk of recidivism being low on general recidivism measures including the ‘Inventory of Offender Risk, Needs and Strengths’, ‘Static-99R’ and ‘Sexual Violence Risk-20’ (SVR-20). The offender was described as pro-social with long-term, meaningful links to his community including a faith community, employment and extended family.
81․Ms Quigley indicated that the offender expressed a capability and willingness to comply with the interventions identified above, and has already made steps himself to initiate a number of these activities–namely, educational programs, drug and alcohol management programs, and abstinence from alcohol consumption. The offender has also stated he would welcome community service should it be imposed. Ms Quigley signalled that there are no indications he would have difficulty dealing with supervision requirements or additional treatment.
82․Ms Quigley gave evidence in relation to her report at the sentence hearing on 18 May 2023 and was cross-examined by the prosecutor.
83․The prosecutor asked about Ms Quigley’s use of the ‘SVR-20’ dynamic risk assessment tool (T18.10-12). Ms Quigley gave evidence explaining that ‘dynamic risk factors’ are criminogenic factors which change naturally over time, including things like social skills, substance abuse, finances, relationships and motivations’ (T18.15-19).
84․The prosecutor referred Ms Quigley and the Court to the statement in Ms Quigley’s report that ‘[the offender] does not present with any dynamic risk factors relating to a history of childhood abuse, relationship or employment problems’ (T18.27-29). The prosecutor put to Ms Quigley that the offender having been previously terminated from employment would constitute a dynamic risk factor. Ms Quigley indicated her opinion was that this incident occurred some time ago (in 2009) and did not represent an ongoing dynamic risk factor. Ms Quigley identified that the single largest present risk factor for the offender was his substance abuse (Alcohol Use Disorder) (T19.8-20).
85․The prosecution also cross-examined Ms Quigley on the statement in her report that the offender “does not present with an attitude condoning or minimising his offences” (T19.40-41). The prosecution put to Ms Quigley that she did not ask the offender what his attitude to his offending was. Ms Quigley outlined that the opinion stated above was informed in the absence of any “minimising phrases” used by the offender, suggesting he does not condone or view sexual assault as “ok” (T19.47, T20.1-5). Ms Quigley indicated that, whilst the offender ‘does not speak of having done the offence, he also accepts that he is going through the [criminal justice system] and there is some reason for this’. The offender also accepts that it is serious and that he must address his issue, which to his mind, is his drinking (T20.10-14).
86․The prosecution asked Ms Quigley whether she considered remorse to be an important factor in terms of risk of reoffending and prospects of rehabilitation (T20.23-25). Ms Quigley explained that many ‘sexual offender courses’ addressing sexual violence place weight on remorse, however Ms Quigley suggested that “expressing remorse over something you [are not] even sure that you did [is not] really going to change whether or not you can engage with treatment, especially if the treatment is addressing the factors that led to the offence” (T20.40-42).
Pre-Sentence Report
87․Also in evidence before me is a PSR prepared for the offender which similarly details the offender’s subjective circumstances. The PSR outlines the following.
88․The offender has been known to ACT Corrective Services since 2009 when a PSR was prepared in relation to a theft offence. The offender was subsequently sentenced to 20 months’ imprisonment, suspended upon entering into a 24-month Good Behaviour Order (GBO) with a 12-month period of supervision. Service records indicated the offender complied in relation to the PSR preparation and GBO supervision was considered satisfactory.
89․Much of the relevant background information provided in the PSR is detailed above in relation to Ms Quigley’s Psychological Report, including educational, financial and employment history. Notably, the offender reported he was hopeful he could return to his employment upon release. Service records also indicated that the offender became involved in problematic gambling between 2004 and 2007, alleging he no longer has a problem however he continues to be repaying a large credit card debt.
90․Similarly to in Ms Quigley’s assessment, the offender denied historical or current issues relating to his mental health. When questioned whether his current period of remand and legal proceeding had impacted his mental health poorly, he denied such ailments and described his mental health in positive terms. The offender stated any strain upon his mental health in custody had been limited to the concern he had felt toward his mother and his wife, and how they were coping in the community without him.
91․When questioned in relation to the commission of the current offences before the Court, the offender attributed the conduct to his alcohol abuse, stating he had “blacked out” and could not recall the offences taking place due to his level of intoxication. The offender stated he had attempted many times to recall whether he committed the current offences before the Court, and reiterated he could not remember.
92․The offender further stated to the author of the PSR that he “was not that type of person” (referring to committing sexual offences against children) and stated he had never committed such offences in the past. The offender added that his children oftentimes had friends stay at their family home, and he had never committed offences against those children. The offender acknowledged to the author of the PSR that being intoxicated was not an excuse and claimed he was “not a criminal and a threat to the community”.
93․The PSR author opined that the offender appears to enjoy the benefits of a supportive family unit, stable accommodation and employment when in the community. Despite these factors, the PSR expressed concern that the offender has a long-term history of problematic alcohol consumption, as evidenced by three previous drink driving offences and his admission to daily alcohol use over a 20 year period.
94․It was noted as of further concern that the commission of the current offences allegedly occurred when the offender was under the influence of alcohol. The offender alleged he had “blacked out” during the commission of the current offences as a direct result of his alcohol consumption, and therefore had no recollection of them occurring. The offender reported no history of engagement with formal AOD interventions to address his alcohol use, however, claimed he would be willing to partake in such programs and counselling should he be directed.
95․The author of the PSR indicated the offender was assessed as a low risk of general reoffending using an actuarial risk assessment, and an ‘average risk of sexual offending’ using the Static-99R test. The author stated concerns around reassurance that the offender would be able to refrain from such behaviour in the future should he fail to address his sex offending and alcohol use simultaneously. Concerns were expressed regarding the absence of victim empathy. The PSR also expressed concerns should the offender be released to the community without being subject to strict conditions in relation to being in the company of young persons unsupervised.
96․On 15 May 2023, Child and Youth Protection Services (CYPS) indicated an appraisal was conducted on the offender’s children in May 2022. No concerns were raised by the offender’s wife or his children in relation to the offender remaining in the home.
97․The PSR identified that the offender is suitable for a medium level of intervention by ACT Corrective Services, commensurate with the assessed risk. Supervision would include strategies to address the dynamic risk factors of alcohol use and sexual offending. The PSR also assessed the offender as suitable for a community service work condition and an Intensive Correction Order (ICO). The PSR made recommendations if an ICO was to be made, including the following:
(a)a curfew, including a condition that he present himself at the front door of the residence when requested to do so by ACT Police;
(b)CYPS involvement to ensure the safety of underage co-residents;
(c)that the offender not be left to care for underaged co-residents, and that engagement with underage co-residents should not occur without a responsible adult being present; and
(d)the offender not consume any alcohol.
98․The author of the PSR also gave evidence at the sentence hearing on 18 May 2023. Counsel for the offender cross-examined the author in relation to her expertise and work experience, noting that she was not a clinical psychologist (T9.5-6). Counsel for the offender clarified with the author of the PSR that no testing was performed during the 30-40 minute interview with the offender in the AMC, and the opinions proffered by the author were based on the information made available to her (T9.14-15). The information available to the author did not include a transcript of the trial proceedings and the author conceded, as a result, the ‘full evidence’ in this matter was not available to her for consideration (T12.8, T14.32-35).
99․The PSR author was asked about a ‘Level of Service Inventory’, which was described by the author as a risk assessment based on ‘static factors in the documentation available to the author, such as criminal history, statement of facts and service records, as well as information gathered in the interview’ (T9.25-34). The PSR author explained that this report is designed to ultimately inform the Court what level of supervision the offender would require (T9.36-38).
100․Counsel for the offender also questioned the reliance on a Static-99R form in the PSR as the foundation for assessments of the offender’s likelihood of reoffending. The author of the PSR clarified that this assessment was ‘outsourced’ to a qualified ACT Corrective Services psychologist (T10.5-6). The author indicated the offender had scored as having ‘an average risk’ and this was reflected by her in the report (T10.10). Counsel for the offender submitted that the Static-99R score quoted in the PSR is wrong and, instead, the offender is a low-risk of reoffending (T10.29-31). Counsel for the offender confirmed with the author of the PSR that no other dynamic factor tests of sexual violence reoffending or psychometric or psychological tests measuring readiness or eagerness to change were administered in the preparation of the PSR (T11.45-47, T12.1-2).
101․The PSR report incorrectly suggests that the offender pleaded guilty to these offences. The author clarified that this referred to the offender’s suggestion that “he would’ve pleaded guilty sooner if he had known the extent that the impact of this would have had on the victims’ father” (T12.22-23). In addition, the author of the PSR suggested the offender reported he was the ‘sole income earner’ but later clarified he did not use this phrase and instead suggested “he needed to get back to working so he could continue to support his family” (T12.28-30). The Court is aware that the offender’s wife works and the offender is not the sole income earner.
102․Counsel for the offender submitted that the author of the PSR had proffered a number of personal opinions in the PSR. Counsel for the offender indicated, for example, the view of the author that “it is curious that the offender indicated he blacked out during the commission for the offences”. The author of the PSR indicated any opinion offered was based off “information gathered from [the offender], service records, statement of facts…” (T13.33-34). The author of the PSR also commented that “it is alarming the offender did not consider himself to be a criminal or a risk to the community”. Counsel for the offender submitted that these are examples of a personal, rather than a professional, observation by the author of the PSR (T14.24-25).
103․Counsel for the offender made oral submissions at the sentence hearing that the evidence of Ms Quigley should be preferred over the PSR. I agree. Counsel for offender submitted this on the basis of Ms Quigley’s qualifications, the time Ms Quigley spent with the offender, and the significant number of tests administered by Ms Quigley, including an assessment of the offender’s readiness to undertake behavioural change. I agree with that submission. Both parties properly agreed, based on metrics available to Ms Quigley, the offender was at a low risk of reoffending and had good prospects of rehabilitation (T39.3-8). The prosecution correctly conceded that treatment of the offender’s Alcohol Use Disorder would “go a long way” with respect to the offender’s risk of reoffending and rehabilitation prospects.
104․In my view, where there is variance between the Psychological Report of Ms Quigley and the PSR on matters relevant to sentence, I prefer the Psychological Report for the following reasons:
(a)Ms Quigley is a trained psychologist;
(b)Ms Quigley interviewed the offender in person, administering a number of tests including an assessment of his readiness to undertake behavioural change;
(c)The author of the PSR had incomplete evidence before her, including not having access to the transcript of the trial; and
(d)The PSR is absent of the breadth of testing available to Ms Quigley.
Character reference
105․A reference under the hand of the offender’s wife was tendered in support of the offender and includes the following:
I am writing to you in relation to my husband’s incarceration, which has had an impact on myself and our five children.
Ever since my husband was taken away from us, we have been struggling to get through each day. My children and I love [the offender] very much, and we miss him terribly. Our lives have been greatly affected by his absence. He has always been there for our children, but now he is not with us when we need him to guide and support us through good and bad days.
I am struggling to pay the bills and have fallen behind in paying them. I cannot afford to pay for my children’s school excursions, and they have not been able to go due to financial hardship. As winter is approaching and the weather is freezing cold, we are unable to have any heating as we fear that I cannot pay for the utility bills due to increased electricity and gas rates. Our house is freezing cold, and missing [the offender] makes it even colder.
I have not gone outside except for going to work, and most of the time, I don’t feel like going or doing anything. I cry every night when my children are asleep, wishing that my husband could be at home with us. I cannot sleep at night and often have recurring nightmares that people are after us and want to harm us. [The offender] was the only one in our family who could drive. He would normally take us to school and other places we wanted to go, and he would pick us up afterwards.
Recently, my [child] got [their] P’s driver’s license, and now [they are] the one driving us around. I worry that [they] might have a car accident because it’s too much for [them] to cope with while working as a casual and studying full-time at [University].
My eldest [child] has had to work more hours in order to earn more money to provide financial stability for food, groceries, and part of the bills, as my income is not enough to do so. Even then, both of our incomes are still not enough to meet the cost of the bills.
My children and I are not eating properly, and sometimes we miss our meals because we are unable to cook every day and we don’t feel like eating due to missing [the offender] and our times together. My husband would normally wake up early and make breakfast for my children and me, but I usually don’t eat breakfast as I never ate breakfast when I was young. He would normally cook dinner for us if I were feeling tired or busy with work. We would always have something to eat, but now we don’t.
During school holidays, we would go somewhere away from Canberra and stay overnight, but since this ordeal began, we haven’t been anywhere. This past school holiday was one of the toughest for all of us as we were missing [the offender] and wished that we could be together, doing the things we would normally do as a family. I cried and cried and couldn’t help that my children could see me as they go to sleep late during school holidays. They would all cry with me.
[The offender]’s parents live in Myanmar and are currently in their 70s. Since [the offender] was imprisoned, their health and wellbeing have deteriorated drastically, and they no longer have any source of income as [the offender] was supporting them financially by sending them money every fortnight/month. They miss him dearly and cry every day. I am unable to support his parents as I am supporting my children and myself.
…
[The offender] is a good person, and we earnestly hope that he will be released from prison and return home to us soon. We long to live together happily as we did before. My husband’s presence is crucial because our children deserve their father’s guidance as they grow and strive for greatness in their future endeavours. He is needed at home to support my mental, emotional, and physical well-being, as well as to provide financial assistance to his family in both Australia and Myanmar as I cannot do this alone for a long period of time. Thank you.
106․I take this reference into account on sentence and deal below with considerations of hardship to third parties, as expressed by the offender’s wife.
Hardship to third parties
107․Section 33(1)(o) of the Sentencing Act requires the Court to consider the probable effect of sentence on the offender’s family. Counsel for the offender submitted that there is no requirement for hardship to third parties to be ‘exceptional’ before the Court can consider it as mitigating on sentence (see DPP v Ip [2005] ACTCA 24 (Ip) at [83]-[86]).
108․The Court in Totaan v R [2022] NSWCCA 75 (Totaan) held that decisions of intermediate appellate courts to the contrary with respect to the cognate Commonwealth provision s 16A(2)(p) of the Crimes Act 1914 (Cth) are “plainly wrong” (Totaan at [77]). However, a finding that the probable effect of imprisonment would be adverse to an offender’s family does not automatically lead to a reduced sentence. The weight to be attributed to this factor is a discretionary matter for the sentencing judge (Ip at [61]).
109․In any event, counsel for the offender submitted that, in this matter, the hardship to third parties is considerable. Counsel for the offender made this submission relying on the unchallenged, combined evidence at trial of the offender, the offender’s wife, and the offender’s daughter. The evidence of the accused and those witnesses indicated the offender:
(a)provided income by working six days per week;
(b)cooked for the family;
(c)transported his family members to school and work;
(d)was the primary carer for his children while his wife studied and work while training for her profession; and
(e)was a strong emotional support to his children and wife.
110․At trial, the prosecutor conceded he had “no reason to doubt that the offender is a good father and a good husband…” (T230.34-43). The prosecution accepted that the offender’s family rely heavily on him for financial support.
111․In addition, the letter of support written by the offender’s wife, included above at [105105․], details the impact of the offender’s recent incarceration on their family. Counsel for the offender submitted that the significant impacts on the family unit would be accepted by the Court given the evidence at trial, and the fact the Court has seen the offender’s wife and daughter’s manner of giving evidence at trial.
112․I have discussed the legal principles relevant to hardship to third parties at length in BC (No 4) at [72]-[93]. I apply those principles here. As discussed in [93] of that judgment, although the test of “highly exceptional” or “exceptional” is not required on a proper analysis of s 33(1)(o) of the Sentencing Act, I am satisfied that the hardship to third parties in this matter falls in that category. I also take into account third party hardship on the basis outlined in R v Wirth (1976) 14 SASR 291. I do so with specific regard as to avoiding double counting the relevant factors in the process of instinctive synthesis.
113․I take into account hardship to third parties: in particular, the hardship as outlined above.
Remorse
114․The prosecution submitted that the offender has not demonstrated remorse, stating that he had no memory of the offences occurring and maintaining that he could not recall the offences taking place due to his level of intoxication.
115․This is consistent with information in the PSR. The offender stated to the author of the PSR that he was willing to undertake a lie detector test to prove his innocence, however added that he was not denying committing the offences, “as the victims confirmed he did commit them”. When questioned about his offending behaviour and the impact it may have had upon the victims, the author of the PSR reported that the offender failed to express remorse or victim empathy. He instead stated that, “if he knew such offences had happened toward his own children, he would be angry”.
116․The author of the PSR also reported that the offender appeared to focus his attention on the impact of the current offences on the victims’ father (his long-term friend) and the dissolution of their long-term friendship. Furthermore, the offender appeared to express frustration toward the victims’ father, after he reported the offender’s crimes to police rather than approaching the offender in the first instance. The offender expressed that, although he understood, he was displeased as they had known each other since 1996 and stated, “he knows me better than that… he knows I would not do that”.
117․With respect to remorse, counsel for the offender acknowledged in written submissions that the offender is yet to express remorse for his offending. However, counsel for the offender submitted that this “should not greatly concern the court given that the offender has only recently begun the process of admitting to himself that he has offended”. In my view, it is important that despite the offender’s lack of memory of the offending, he did not deny committing the offences to the PSR author and noted the victims’ confirmation of his offending.
118․As stated earlier at [86․], Ms Quigley emphasised the desire to engage in treatment to “address the factors that led to the offence” is more significant in her opinion than remorse in terms of “risk of reoffending and prospects of rehabilitation”.
119․Accordingly, remorse is not a significant factor in this sentencing exercise. Nevertheless, the very good prospects of rehabilitation are a significant factor, as discussed later in this judgment.
Criminal history
120․The offender has a relatively limited criminal history in the ACT, including a previous conviction for theft in 2009. The offender committed three driving offences in the ACT and NSW in 2003, 2005 and 2007 for which he received fines and licence disqualifications.
121․Two additional offences were noted in NSW in 2005 and 2006. The offender received fines in relation to both offences.
122․Counsel for the offender submitted the offender has been of ‘good character’ since 2009, the date of the last criminal offence on his record. In my view, of note in this sentencing exercise is the fact that there are no previous offences of a similar nature.
123․I also note s 34A(b) of the Sentencing Act which states that a Court: ‘must not reduce the severity of a sentence it would otherwise have imposed on an offender because the offender has good character, to the extent that the offender’s good character enabled the offender to commit the offence.’ The prosecution did not cavil with counsel for the offender’s submissions in regard to criminal history, no previous offending of a similar nature, and good character not enabling the offences.
Time in custody
124․The offender has spent six months and one day in custody prior to sentence from 5 March to 7 March 2022 and from 6 February 2023 to today, 3 August 2023, solely referable to these offences. Any sentence will therefore commence from 3 February 2023.
Comparable cases
125․Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4]:
[C]onsiderations to which a sentencing judge is obliged … to have regard cannot be applied mechanically … given that the factors that must be taken into account are incommensurable, and … in many respects, inconsistent.
126․The following cases from this jurisdiction provide a “yardstick” as referred to by the High Court in relation to this sentencing exercise: Hili at [53]-[54].
127․I was referred to the following cases by the prosecution:
(a)R v Anderson (No 2) [2020] ACTSC 98 (Anderson)
The victim in this matter was between the ages of 10 and 12 years at the time of the offending, the offender was over 50 years of age. The victim and the offender were not related and knew each other through the victim’s mother. The offending conduct involved the offender reaching across and touching the victim’s penis over his pants for approximately 20 seconds, as well as masturbating in the presence of the victim. Each count involved the serious exploitation of a relationship with a vulnerable child, constituting a gross breach of trust placed in the offender by the victim’s mother. The offender had limited criminal history and had been exposed to child abuse from a young age. The offender reported a gambling addiction and suffered mental health difficulties. The offender was sentenced to an aggregate sentence of 2 years and 10 months’ imprisonment, with a nonparole period of 18 months.
(b)JG v R [2023] NSWCCA 33 (JG)
This matter involved sexual offending against two children. Each of the victims were children of the offender’s extended family. The first victim was 11 years of age at the time of the offending. This offending conduct involved the offender sitting next to the victim with his arm around her, before placing his hand near her buttocks. The offender later entered this victims’ room, got into her bed and hugged her. The offender then placed his hand inside the victim’s underwear and touched the top of her genital area. The offender was intoxicated at the time of the offending. The second victim was approximately 12 or 13 years old. The offender and the second victim were in the second victim’s bedroom when the offender placed his hand inside the victim’s pants and touched his penis for a period of time. The offender had been diagnosed with major depressive disorder and had a ‘severe drinking problem’. The offender blamed the offending on alcohol consumption and was considered at a high risk of reoffending. The offender was sentenced to an aggregate sentence of 13 years’ imprisonment, with a nonparole period of 9 years.
(c)R v Tully (No 3) [2014] ACTSC 275
The offender was charged with 18 counts of historical child sexual abuse. Four of these counts were quashed on appeal. Most relevant to the matter currently before the Court, the accused was convicted of two counts of acts of indecency on a person under 16 years. This offending involved the offender inviting the victim into a spare bedroom and shutting the bedroom door, before putting his hand under the victim’s dress and touching the area of the victim’s vagina over the top of her underpants. At the time of the offending, the offender was aged between 23 and 25 years. The victim was aged between 10 and 11 years. The offences also involved another victim aged between 12 and 13 years. The offender invited the second victim into the bathroom of her home, lifted her shirt, and fondled and kissed her breasts for approximately three minutes. The offender had no prior criminal history and demonstrated no remorse or acceptance of responsibility. The offender had a supportive relationship with his family and five children. There was consideration of hardship to third parties. The offender had a moderate risk of reoffending. The offender was sentenced to 14 months’ imprisonment for each of the act of indecency offences. The sentence for all counts was 14 years and 6 months, with a nonparole period of 7 years and 3 months (following successful appeal).
(d)R v Kellan (a pseudonym) [2021] ACTSC 314
The offender was charged with three counts of engage in sexual relationship with child under care and one count of act of indecency on person under the age of 16 years. The offender was the victim’s stepfather. The offender regularly massaged the victim’s back. When the victim was 11 years old, the offender began massaging her vagina over the outside of her underwear, with his hand moving under her underwear and making contact with her vagina. The offending involved a gross breach of trust in context of parental/trusting relationship, and was assessed as in the mid range of seriousness. The offender had no prior criminal history, accepted responsibility, entered guilty pleas and remorse was noted. The offender had no issues with drugs or alcohol and was actively involved in the church. The offender was assessed as low risk of reoffending. The offender was sentenced to an aggregate sentence of 13 years and 3 months’ imprisonment, with a nonparole period of 8 years and 6 months.
(e)R v Ardron [2021] ACTSC 91 (Ardron)
The offender was charged with one count of act of indecency on a person under the age of 16 years. The victim was 15 years and 7 months old and was mowing lawns in the local neighbourhood for payment. The victim offered to mow the offender’s lawn, which she accepted. The offender approached the victim and asked if he smoked weed, to which he said no. The offender then kissed him on the lips, put her tongue inside his mouth and ‘rubbed up against him’. The offender then removed her t-shirt and bra and was removing her shorts when the offender said, ‘I’m 15 I shouldn’t be doing this’. The offender apologised and said, ‘I thought you were older’. The victim then left the offender’s property. At the time of the offending, the victim was at the upper end of the age range, however there was a very significant age difference between the victim and the offender, who was 40 years of age. The offence was of a short duration and was an isolated incident, which was impulsive and opportunistic. The offender entered guilty pleas. The offender reported mental health difficulties and a history of abuse of alcohol and drugs, for which she was receiving treatment. The offender maintained regular contact with her children. The offender was assessed as medium to low risk of reoffending and as suitable for an ICO. The offender was sentenced to two years and six months’ imprisonment, to be served by way of ICO.
(f)R v Whittaker [2021] ACTSC 189
The offender in this matter was charged with 25 counts of sexual offending. Of particular relevance, the offender was charged with three counts of act of indecency with person under 16 years. The offender was a duty manager at Kmart Belconnen when the victim commenced work there. The victim was 14-15 years of age, and the offender was 35-36 years of age. Despite knowledge of the age difference, the offender commenced a relationship with the victim. Among other charged acts, the acts of indecency involved photographs taken of the offender and victim hugging and kissing (Count 2), recorded video of the offender sucking one of the victim’s nipples whilst lying in bed (Count 13), and ‘live’ images of the victim in her school uniform exposing her genitals, before the offender touched the victim’s genitals with his hand (Count 19). Counts 2 and 13 were considered to be low objective seriousness, Count 19 was the most serious of the acts of indecency. The offender had a criminal history of engaging in acts of indecency with young persons. The offender admitted the conduct was wrong, but maintained it was consensual. The offender had no drug and alcohol abuse history, and a strong relationship with two of his four children. The offender was assessed as having a moderate risk of reoffending. The offender was sentenced to 1 month of imprisonment for Count 2, 9 months’ imprisonment for Count 13, and 13 months’ imprisonment for Count 19. The offender was sentenced to an aggregate sentence of nine years and six months’ imprisonment, with an effective nonparole period of four years and nine months.
128․Counsel for the offender did not refer the Court to any comparable cases, submitting that the circumstances of the case are “exceptional”. Instead, counsel for the offender made oral submissions distinguishing the facts of the cases put forward by the prosecution from the facts of this matter.
129․Counsel for the offender conceded the case of Anderson is the most comparable case advanced by the prosecution, however submitted that the gravity of the offending in that case is markedly higher. I disagree with this submission, noting that the offending conduct in the case before me involved two victims and involved touching the genitals of the victims under clothing.
130․Counsel for the offender submitted in relation to JG that the offender in that case was charged with two ongoing offences which carried maximum terms of life imprisonment, per s 66EA of the Crimes Act 1900 (NSW). Counsel for the offender correctly submitted that the maximum sentences for the offences in this matter are markedly lower and the subjective circumstances are nothing like that of the offender in JG. Counsel for the offender submitted this case does not greatly assist the Court.
Statutory and other relevant considerations
131․In sentencing the offender, the Court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to particular relevant matters above.
132․The Court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, recognition of harm to the victim and rehabilitation are important sentencing considerations.
133․The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. Counsel for the offender submitted that an ICO was within range due to the time the offender has already spent in custody and the matter being an ‘unusual case’. Counsel referred to the case of Ardron above as a comparable case where an ICO was imposed, however indicated the facts of Ardron were dissimilar to the matter currently before the Court.
134․Counsel for the offender submitted that an ICO, if the sentencing aggregate is not over four years, is the appropriate disposition for the Court for the following reasons:
(a)the offender’s severe intoxication in the very unusual circumstances of this case, acts to reduce the offender’s moral culpability and inform his prospects of rehabilitation;
(b)the offender has no relevant criminal history;
(c)the offender has otherwise been of good behaviour since 2009;
(d)the offender’s family, particularly his wife and younger children, are suffering considerable hardship in his absence;
(e)the offender has excellent prospects of rehabilitation; and
(f)the offender has now spent a number of months in prison awaiting sentence.
135․The prosecution submitted than an ICO was not in range and that, in the alternative, the same objectives could be achieved by the imposition of a nonparole period with the recommendations to the Sentence Administration Board (SAB) regarding conditions for parole. In this case, an alternative to full-time custody is not appropriate in my view due to the seriousness of the offending against two young girls.
136․In relation to concurrency, I refer to the following passage from O’Brien v The Queen [2015] ACTCA 47 at [26], citing Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41 at [27]:
[W]here offences are not separate and distinct but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent.
137․The prosecution correctly submitted that the offences committed against the victim should be partly cumulative to avoid a crushing sentence, but to also recognise the separate and distinct offending acts.
138․Offences of this nature against children must be deterred. In R v TW [2011] ACTCA 25; 6 ACTLR 18, Refshauge J (Lander J agreeing) at [21] adopted the approach of Maxwell J in Fisher v The Queen (1989) 40 A Crim R 442 where his Honour said at 446:
… the community looks to the courts to deal with persons convicted of serious sexual assaults, or abuses upon young children, in such a way as to provide some measure of protection for young persons, and some measure of deterrence to those persons who contemplate similar activities.
139․Similar remarks were made in R v BJW [2000] NSWCCA 60; 112 A Crim R 1, where Sheller JA stated at [20]:
The maximum penalties the legislature has set for [child sexual assault] offences reflect community abhorrence of and concern about adult sexual abuse of children. General deterrence is of great importance in sentencing such offenders and especially so when the offender is in a position of trust to the child.
140․Counsel for the offender correctly agreed in oral submissions that general deterrence was an important factor in offences involving children. However, counsel for the offender submitted that the time already spent in full-time custody gives effect to general deterrence in this matter. I disagree. In my view, general deterrence in the balance of instinctive synthesis, including rehabilitation, requires a further sentence of imprisonment. Rehabilitation is discussed below.
Rehabilitation
141․Rehabilitation is an important consideration having regard to the offender’s very good prospects of rehabilitation. I draw on the statement of French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32]:
Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest.
142․Counsel for the offender submitted that the offender has excellent prospects of rehabilitation, supported by Ms Quigley in her Psychological Report of 5 May 2023. The prosecution did not cavil with the report, nor Ms Quigley’s statement that the offender was at a low risk of reoffending. As stated earlier, in my view, the offender has very good prospects of rehabilitation.
143․Ms Quigley administered a number of tests on the offender in coming to the conclusion that the offender has strong prospects of rehabilitation including:
(a)the 130 question Inventory of Offender Risk, Needs, and Strength, on which the offender placed his overall risk of general recidivism in the “low range”;
(b)the Static-99R actuarial assessment of sexual reoffending, on which the offender scored 0, suggestive of the offender being in the “below average risk” category;
(c)the SVR-20 assessment, on which the offender’s risk of future sexual violence was scored as in the “low risk range”; and
(d)the State of Change Readiness and Treatment Eagerness Scale designed to assess readiness for change in alcohol and drug use, during which the offender scored well in the component addressing his readiness to change, which is predictive of successful change.
144․Counsel for the offender correctly submitted the Court would be confident in accepting the validity of the above testing, given the offender also undertook the Paulhus Deception Scale and scored in the average range, which is suggestive of his answers in psychological testing to be honest and valid.
145․Furthermore, Ms Quigley pointed to the following factors which support her opinion of excellent prospects of rehabilitation:
(a)the offender’s age of 47;
(b)the strong support of his family;
(c)his Buddhist faith;
(d)his history of employment; and
(e)his abstinence from alcohol to date (in accordance with his bail conditions prior to going into custody).
146․Counsel for the offender submitted that the Court would take into account the offender’s compliance with his bail conditions not to drink alcohol, which precluded him from drinking in the 11 months that he was on bail. Evidence was given from the Bar table at the sentence hearing that in December 2022, the offender approached his lawyer to request bail be varied for Christmas Day to allow him to drink alcohol on this day. When approached by the offender’s lawyer, the prosecutor indicated there would be no issue with this amendment. Ultimately, the offender decided not to proceed and therefore has been abstinent from alcohol since the date he was granted bail in this matter.
147․Counsel for the offender acknowledged the apparent pessimism of the PSR author regarding the offender’s prospects of rehabilitation, however, submitted the report of Ms Quigley should be preferred. In this regard, and as stated earlier at [104], where there is variance, I prefer the Psychological Report of Ms Quigley because of her greater expertise.
148․Counsel for the offender submitted that the best protection for the community long-term in this matter is for the offender to properly rehabilitate, which incarceration does not ordinarily achieve. Counsel for the offender submitted that the Court could be confident that the offender will not reoffend. This is because his offending is linked to his alcoholism and he has already begun on his journey to recovery, having been abstinent since his arrest, having expressed his willingness to attend courses, and having that willingness validated by psychological testing.
149․I accept, on the evidence, the offender’s prospects for rehabilitation are very good if he stays away from alcohol.
Sentence
150․It must be recognised by the Court that the offences committed against the victims has had a serious and significant impact. Both the short and long-term consequences of being a victim of these offences must be acknowledged.
151․This is a difficult sentencing exercise, as conceded by both counsel at the sentencing hearing.
152․The balance struck by a sentencing judge as an ‘instinctive synthesis’ is not used to “cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which … balances many different and conflicting features”: Wong v The Queen [2001] HCA 64; 207 CLR 584 at [75], cited in Munda v Western Australia [2013] HCA 38; 249 CLR 600 at [59] and Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [37].
153․In Veen v The Queen (No 2) (1988) 164 CLR 465 (Veen), the High Court emphasised that the guideposts that are the purposes of sentencing sometimes point in different directions. The following paragraph (at 476 of Veen) is often quoted because it usefully summarises the nature of the sentencing discretion:
The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.
154․The prosecution correctly submitted that an ICO would not adequately address sentencing considerations, as I have found earlier at [133].
155․In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offence, subjective matters of the offender and the various sentencing factors discussed at length throughout this detailed judgment. Further imprisonment is called for in this case.
156․In respect of Count 4, an offence of act of indecency on a person under 16 years contrary to s 61(2) of the Crimes Act, the offender will be sentenced to 12 months’ imprisonment.
157․In respect of Count 5, an offence of act of indecency on a person under 16 years contrary to s 61(2) of the Crimes Act, the offender will be sentenced to 15 months’ imprisonment.
158․In respect of Count 6, an offence of act of indecency on a person under 16 years contrary to s 61(2) of the Crimes Act, the offender will be sentenced to 15 months’ imprisonment.
159․In respect of Count 3, an offence of act of indecency on a person under 16 years contrary to s 61(2) of the Crimes Act, the offender will be sentenced to four months’ imprisonment.
160․In respect of Count 2, an offence of act of indecency on a person under 16 years contrary to s 61(2) of the Crimes Act, the offender will be sentenced to one months’ imprisonment.
161․I have formed the view that the overall sentence for the offending will be three years of imprisonment, taking into account the principle of totality. The offence will be backdated to commence on 3 February 2023 to account for the time already spent in custody.
162․There will be some concurrency between the sentences for the offences on the basis of totality, while at the same time recognising the separate and distinct acts.
163․Prospects of rehabilitation are significant in the fixing of a nonparole period. The relevance of these prospects arises both in respect of the benefit conferred on an offender of the opportunity for early release and, conversely, in reinforcing the need for protection of the community where those prospects are poor (see Bugmy v The Queen (1990) 169 CLR 525 at 531-532). Notwithstanding the importance of rehabilitation, the other purposes of sentencing remain relevant considerations (see Taylorv The Queen [2014] ACTCA 9 at [19]). As stated in Power v The Queen (1974) 131 CLR 623 at [10], the purpose of legislative provision for parole orders is:
To provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence.
164․In view of the offender’s very good prospects of rehabilitation and hardship to third parties, and taking into account the principles concerning nonparole periods discussed above, I have imposed a nonparole period of 50 percent.
165․The circumstances in which the offender is released to parole are important, both in relation to the offender’s rehabilitation and in relation to the community. I recommend to the Sentence Administration Board that parole be subject to the following conditions:
(a)Cognitive Behavioural Therapy including psychoeducation to assist the offender to increase his insight and understanding into his symptoms and impairments;
(b)Regular psychological treatment for 6-12 months to assist the offender to develop strategies to improve his emotional and behavioural regulation and address any previous experiences of trauma and provide ongoing monitoring of any substance use issues to reduce the risk of relapse;
(c)Drug and alcohol support to understand the purpose of his previous drinking with counselling through Directions ACT or similar;
(d)Group substance use support programs, including Alcoholics Anonymous, to gain perspective upon his substance use; and/or
(e)Exploring strategies for other activities to relax or socialise which do not use alcohol in order to reduce his risk of relapse by falling back into familiar patterns of socialising.
Order
166․I make the following orders:
(1)In respect of the offence of act of indecency on a person under 16 years contrary to s 61(2) of the Crimes Act 1900 (ACT) (SCCAN2022/83) (Count 4), the offender is convicted and sentenced to 12 months’ imprisonment, commencing on 3 February 2023 and ending 2 February 2024.
(2)In respect of the offence of act of indecency on a person under 16 years contrary to s 61(2) of the Crimes Act 1900 (ACT) (SCCAN2023/18) (Count 5), the offender is convicted and sentenced to 15 months’ imprisonment commencing 3 October 2023 and ending 2 January 2025.
(3)In respect of the offence of act of indecency on a person under 16 years contrary to s 61(2) of the Crimes Act 1900 (ACT) (SCCAN2023/19) (Count 6), the offender is convicted and sentenced to 15 months’ imprisonment commencing 3 August 2024 and ending 2 November 2025.
(4)In respect of the offence of act of indecency on a person under 16 years contrary to s 61(2) of the Crimes Act 1900 (ACT) (SCCAN2022/82) (Count 3), the offender is convicted and sentenced to four months’ imprisonment to commence 21 September 2025 and ending 20 January 2026.
(5)In respect of the offence of act of indecency on a person under 16 years contrary to s 61(2) of the Crimes Act 1900 (ACT) (CC2022/2193) (Count 2), the offender is convicted and sentenced to one months’ imprisonment, commencing 3 January 2026 and ending 2 February 2026.
(6)I impose a nonparole period of 18 months commencing 3 February 2023 and expiring on 2 August 2024.
| I certify that the preceding one hundred and sixty-six [166] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson. Associate: Date: 3 August 2023 |
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