R v SC
[2019] ACTSC 237
•11 February 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v SC |
Citation: | [2019] ACTSC 237 |
Hearing Date: | 22 January 2019 |
DecisionDate: | 11 February 2019 |
Before: | Burns J |
Decision: | See [60]-[67] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – act of indecency upon a person under the age of 10 years – act of indecency in the presence of another person under the age of 10 years – pleas of guilty – subject to a Good Behaviour Order at the time of the offences – whether moral culpability was lessened by reason of mental disorder – drug abuse – significant degree of premeditation involved – prospects for rehabilitation cannot be described as good |
Legislation Cited: Cases Cited: | Crimes Act 1900 (ACT), s 61(1) R v Verdins [2007] VSCA 102; 16 VR 269 |
Parties: | The Queen (Crown) SC (Offender) |
Representation: | Counsel P Burgoyne-Scutts (Crown) R Davies (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 257 of 2018 |
BURNS J:
SC, you have entered pleas of guilty to the following charges. Firstly, a charge that on 17 August 2018 you did commit an act of indecency upon a person, who I will refer to by the initials LX, that person being a person under the age of 10 years, namely, eight years of age. This is a charge contrary to s 61(1) of the Crimes Act 1900 (ACT) and carries a maximum penalty of 12 years' imprisonment.
Secondly, a charge that on 17 August 2018 you did commit an act of indecency in the presence of another person, who I will refer to by the initials SN, that person then being a person under the age of 10 years, namely, eight years of age. This is also a charge contrary to s 61(1) of the Crimes Act 1900 (ACT) and carries a maximum penalty of 12 years' imprisonment.
On 2 October 2018, you pleaded guilty to these charges in the ACT Magistrates Court. This was the first occasion that these charges were before the Court. I accept that these were early pleas. I will reduce by approximately 25 per cent the otherwise appropriate sentences because of your early pleas of guilty.
I will now deal with the facts. At about 11.00 am on 17 August 2018, you were walking along the fence line of a primary school in [redacted]. You were wearing dark‑coloured tracksuit pants, which had a hole in the crotch. You walked past a group of three people who were walking their dogs on the adjacent bike path. Once they left the area, you approached the school fence and gestured towards LX and SN to come over to you. LX and SN were students at [redacted] and at that time they were both eight years old. They both approached you at the fence, became scared, and ran back towards the playground. You called out to them loudly, “[c]ome here.” They were about 20 metres from you, watching you from the playground.
They felt scared and thought they might get hurt if they did not do what they were told. Both of them approached you again. You were squatting down at the fence and asked them to do the same. They complied. You then said, “[d]o you want to see a magic trick?” They both said yes.
You then quickly put your hand through the fence and took hold of LX's arm before pulling it back through the fence. You twisted her wrist against the bars of the fence and put her hand on your penis, which was exposed by the hole in the crotch of your pants. You said, “[s]quish it and pull it.” At this time SN was next to LX at the fence. LX struggled free after a few seconds, and both students ran away towards the school buildings. You shouted out, “I shouldn't have shown you that magic trick.” You then left the area. LX and SN went to the bathroom and washed their hands. They then told a teacher what had happened. Police were called and attended the location a short time later.
Both of the young girls attended Belconnen Police Station and participated in evidence‑in-chief interviews. They also spoke to an AFP Forensic Artist and two separate Face-Fit images were constructed. These images were circulated to members of ACT Police and you were nominated as a suspect.
On 1 October 2018, police executed a search warrant at your residence in Belconnen. Police located, amongst other things, the pair of black coloured tracksuit pants with a large hole in the crotch area, which you wore when you committed these offences. During the course of the search, you told police that you did not remember being in the suburb of [redacted] at the time of these offences. You stated that you had never spoken to a female [redacted] student.
You told police that you sometimes rip holes in the crotch of your pants so you “can go to the toilet real quick.” You said that you put your penis through the hole in the pants to urinate. You could not explain why there were holes in some of your pants and not others. You told police that you had a drug problem and sometimes you did not know what happened when you were in what you described as an “ice rage”. You said that you may have urinated near the school and that this was how somebody may have seen your penis, although you did not think anyone was around.
When the search warrant concluded, you were arrested and have remained in custody since that time.
At the time of these offences, you were subject to a Good Behaviour Order imposed in the ACT Magistrates Court on 23 May 2018 with respect to an offence of offensive behaviour in a public place. That offence involved you masturbating in a public place within view of a number of adults of both sexes at about 3.00 pm on 2 March 2018.
On 23 May 2018, you were convicted of that offence and placed on a Good Behaviour Order for a period of six months, expiring on 22 November 2018. The present offences occurred approximately three months into the term of that Good Behaviour Order.
Subjective features
You have a very significant criminal history, including multiple convictions for offences of violence, offences relating to the use and supply of illicit drugs, and sexual offences.
In February 2005, you were convicted in the ACT Magistrates Court of an offence of indecent exposure and sentenced to six months' imprisonment, which was suspended with a Good Behaviour Order for a period of 18 months. In May 2005, you were convicted in the ACT Magistrates Court of two offences of committing an act of indecency in the presence of a person under the age of 16 and a further offence of indecent exposure. You were sentenced to 12 months' imprisonment, to be released after serving six months upon entering into a Recognisance Release Order to be of good behaviour for a period of two years.
In January 2006, you were convicted in the ACT Magistrates Court of a further offence of indecent exposure and sentenced to eight months' imprisonment, to be released after serving four months with a Recognisance Release Order for a period of 24 months.
You have served multiple terms of imprisonment both in the ACT and in New South Wales. Your criminal history disentitles you to any leniency in sentencing for the present offences, but it also speaks of the need for specific deterrence in sentencing you for these offences. The present offences appear to mark an escalation in your sexual offending. From the nature of the sexual offences on your criminal history, I would infer that you have not previously engaged in sexual misconduct that included physical contact with your victims.
A Report from a forensic psychiatrist, Dr Richard Furst, was tendered at your sentence hearing. Dr Furst noted that you were diagnosed with epilepsy shortly after your birth and that you were treated with medication for that condition. You continued to suffer from seizures until you were seven years old. You had difficulty learning to read and write, and you remain functionally illiterate. You were diagnosed with attention deficit hyperactivity disorder (ADHD) and prescribed medication as a child, which you took for a total of only two years. You reported feeling very depressed following the death of your mother in 1997.
You struggled to find work, although you have worked for extended periods as a landscape labourer, a farm labourer and as a “trolley boy”. You reported symptoms of depression and possible psychotic symptoms over recent years. You said that you were initially prescribed antidepressant medication by your General Practitioner around 2010, which you continue to use. You told Dr Furst that you “keep hearing voices.”
You also told him that you initially smoked cannabis at the age of 13 years, progressing to smoking more regularly in your late teens. You have continued to smoke cannabis since that time. You also stated that you used amphetamines on a regular basis from the age of 19 or 20 years old, which became a daily habit in your 20s and 30s.
You stated that you were using methylamphetamine on a daily basis around the time of these offences and up until the time that you were arrested on 1 October 2018. You have also previously occasionally used heroin and other drugs. You told Dr Furst that you had engaged in a residential drug and alcohol rehabilitation program in 2004 or 2005, but you are now, you believe, unable to access such programs in the community due to your status as a registered sex offender.
With regard to the present offences, you told Dr Furst that you had a limited memory of the events and suggested that you might have been suffering from psychosis as a consequence of your use of methylamphetamine. Dr Furst stated that he found your version difficult to accept. He stated that a review of the facts suggested that your acts were purposeful and goal-directed, most likely for your own sexual gratification. I respectfully agree with him.
He noted that in the period leading up to these offences you were taking drugs and, in particular, methylamphetamine on a daily basis, although there were some weeks during which you would not use drugs at all. Dr Furst stated that there were no indications that you were significantly depressed at the time of these offences. You claimed that you were under the influence of methylamphetamine at the time of all of your previous sexual offences.
Dr Furst noted that you are currently prescribed antipsychotic medication, which you say has improved your mood, sleep and thought processes. You have been seeing a psychologist at the AMC to discuss your thought patterns and feelings. Dr Furst had access to your medical records at ACT Health, concerning assessments undertaken when you have been remanded in custody at the AMC.
In 2004, the main clinical issues identified related to substance abuse. No objective evidence of psychosis was noted in assessments in 2004. In April 2005, you described some odd symptoms and/or thought patterns during a psychological assessment. You were emotionally labile and stated that you were “hearing voices”. A psychological assessment on 29 October 2005 indicated that you were not taking any psychotropic medication and you had no objective signs of severe mood disturbance or psychosis. You reported hearing voices in your head that were urging you to do things. Drug and alcohol issues were also noted.
An assessment undertaken by a registered nurse on 6 October 2018, after you were remanded in custody on the present charges, noted that you reported a long history of hearing voices. You denied psychotic symptoms at the time of assessment and there was no objective sign of thought disorder or any other psychotic signs. A psychiatric assessment with a psychiatrist occurred on 17 October 2018. You presented as irritable and agitated, describing apparent command hallucinations, concern about people who may harm you in the community, being pressured in speech and having tangential thoughts. You said that you had been diagnosed with a split personality in the past and that you were taking up to 90 milligrams of Mirtazapine a day prior to your arrest. Dr Furst believed this was inconsistent with other available history and suggestive of you exaggerating your symptoms at the time of your assessment in October 2018.
You were further assessed by the same psychiatrist on 31 October 2018. You presented as far more settled with no signs of anxiety, agitation or irritability.
You reported ongoing voices of reduced intensity. A further psychiatric assessment took place on 8 November 2018 where you presented as improved in your mood, sleep and thought processes.
It was reported that you did not have much motivation for participating in a sex offender program, stating that you had done such a program before and you did not find it helpful. You claimed to be open to interventions in relation to your substance use disorder. There were no signs of psychosis.
On 8 November 2018, the psychiatrist who had been assessing you diagnosed you as suffering from an amphetamine-induced mood disorder with psychotic features on top of ADHD and paraphilia. There was no convincing history suggested of mania or major depressive episodes separate from the effects of drug use. You did not fulfil the criteria of having a schizophrenic illness at that time.
Dr Furst stated that you meet the criteria for the diagnosis of the following mental disorders: exhibitionistic disorder, substance use disorder, depressive disorder, ADHD, likely mild intellectual disability or borderline intellectual function, and likely autistic spectrum disorder.
Dr Furst stated that although there had been reports of you hearing voices in your head in your adult years, your description had been inconsistent and that if any such voices were present, they were more likely to represent odd patterns of thinking, and/or internal dialogue, and/or the effects of intoxicating drugs, rather than true psychosis or schizophrenia.
Having considered the available history and mental state features, Dr Furst said that there is currently insufficient evidence to suggest that you suffer from a major mental illness such as schizophrenia or bipolar affective disorder. Dr Furst went on to say that the available evidence suggests that your offences on this occasion were driven by deviant sexual arousal in the form of an exhibitionistic disorder.
He further stated that your low level of intellectual function, ADHD, apparent autistic spectrum disorder and the effects of dependence on drugs of abuse, are the most salient factors with respect to your poor judgment, apparent inability to resist your pattern of behaviour, and deviant sexual urges relating to exposing yourself to non‑consenting victims and the indecent assaults you committed in August 2018. Your mental disorders have also likely resulted in some level of impairment in your capacity for consequential thinking. Furthermore, he said the use of methyl‑amphetamine generally increases sexual drive, including deviant sexual drives.
Dr Furst stated that approximately 30 per cent of apprehended male sex offenders are exhibitionists. These offences have the highest recidivism rate of all sex offenders with about 20 to 50 per cent reoffending following release to the community. In his opinion, you fall into the category of male sex offenders best considered to be at moderate to high-risk of offending, especially without adequate treatment and community monitoring.
Dr Furst noted that treatment of exhibitionist disorder usually begins with psychotherapy, sex offender treatment programs and antidepressant medication. However, in his opinion, these measures alone would be unlikely to be effective in managing your specific risk of sexual reoffending. In his opinion, the current evidence is in favour of the inclusion of medications that reduce testosterone levels and thus reduce libido, including deviant sexual fantasies.
Fully informed consent by you would be required for such treatment. I note that there is no evidence before me that you would be prepared to consent to such treatment. Noting your low level of intellectual functioning, apparent autistic traits, ADHD, vulnerability towards depression and anxiety, poor coping skills under stress and substance use disorder, Dr Furst recommended that you remain under the care of a clinical psychologist at the AMC and in the community when released on parole, with a view to engaging in supportive therapy and/or Cognitive Behaviour Therapy over a period of 12 to 18 sessions.
Participation in a structured sex offender program was also recommended. Dr Furst further recommended that you engage in drug and alcohol counselling and/or rehabilitation, as reasonably available in custody or in the community. He further recommended that you remain under the care of your current psychiatrist in the AMC.
It was submitted on your behalf that the mental disorders identified by Dr Furst enliven the principles enunciated in R v Verdins [2007] VSCA 102; 16 VR 269. It was submitted that your moral culpability was lessened by reason of this disorder. In my opinion, they do not significantly reduce your moral culpability, although I accept that they may do so to some slight extent.
Dr Furst was apparently unable to disentangle the effects of your mental disorders and the effects of your continuing drug abuse, but he did say that your mental disorders likely resulted in some level of impairment in your capacity for consequential thinking. To that extent, I accept that it may be said that your moral culpability was somewhat reduced with regard to these offences.
Dr Furst also referred to your apparent inability to resist your pattern of behaviour and deviant sexual urges because of your diagnosed mental disorders. This included your continued abuse of drugs to the extent that this may suggest that your moral culpability is reduced by reason of a diminished capacity to control your behaviour or that personal or general deterrence should be given less weight in sentencing.
It is necessary to balance these factors against the need to protect the public. In my opinion you present as a significant threat to members of the public and, in particular, children with regard to sexual offending. As I earlier observed, it is particularly disturbing that the offence against LX involved forced contact between her hand and your penis. This demonstrates a marked escalation of your sexual offending behaviour.
I make it clear that I do not increase the sentences that are appropriate for these offences beyond what is justified by their objective gravity because of the risk which you present to the community. The risk which you present is to be balanced against the evidence suggesting a reduction of moral culpability.
You are currently 41 years old. You have been known to ACT Corrective Services since July 2004.You have been subject to previous supervised community-based orders and periods of imprisonment. Records indicate that the majority of your community-based sentences have resulted in breach action or revocation due to non-compliance or reoffending. In that regard, I note that you also have a history of failing to comply with the obligations imposed upon you regarding the Child Protection Register.
You were initially found suitable for inclusion in the adult Sex Offender Program in 2005, but due to reoffending you did not commence that program. In March 2007, following a period of reported stability around your substance abuse, you were assessed as able to participate in the program. You commenced in that program in March 2007 but only attended eight of the 32 sessions. You were exited from the program in September 2008 due to your lack of motivation and commitment, poor attendance and ongoing illicit substance dependency issues.
I take into account the background information contained in the Pre-Sentence Report. Your childhood was apparently difficult as your mother was a chronic alcoholic. Your parents separated when you were young. You ceased contact with your father when he remarried in 1999, but in more recent years you have reconciled with him. You described your father as being supportive, but concerned about your illicit drug use. I note that you were involved in an accident at age 15 years old, which your father believes impacted upon you detrimentally and may have contributed to your behaviour issues and illicit substance issues.
You are able to return to reside with your father when you are released from custody. You apparently left formal education after Year 6, having been suspended for behavioural issues. You undertook irregular employment and you were in receipt of Centrelink payments at the time that you were arrested.
You told the author of the Pre-Sentence Report that you started consuming alcohol when you were 10 years old and reported problematic consumption until the age of 21 years old. You described a non-problematic pattern of alcohol consumption prior to being arrested on this occasion. You also stated that you began using cannabis when you were 10 years old, with daily use from when you were 13 years old. You stated that you were smoking cannabis daily prior to being arrested.
You also told the author of the Report that you started using methamphetamines at the age of 13 years old, and that you were using that substance daily before you were arrested. You apparently expressed willingness to undertake residential rehabilitation in the community, however you did not believe that you would be accepted into a program because of the nature of your offences.
With regard to the present offences, you told the author of the Report that you did not dispute the Statement of Facts, but you appeared to have limited insight and struggled with your explanation for your offending behaviour. You stated that you started using methamphetamine daily during the period leading up to these offences and suggested that you may have been on a “ice rage” when the offences took place.
With regard to the holes in the crotch of your pants, you told the author of the Report that you made those cuts, however you claimed that you did not know why you did that. On being asked whether these offences were premeditated, you replied “I don't know whether it was premeditated. I hope it was not.”
You stated that you did not know the victims and added that they did not deserve to be treated in that way. The author of the Report said that in retrospect you expressed regret for your behaviour and attributed your offending behaviour to your illicit substance use. You recognised the need to abstain from illicit substance use in order to prevent any further reoffending.
In my opinion, your current prospects for rehabilitation cannot be described as good. You have a lengthy history of failing to comply with community-based orders and of failing to address criminogenic factors such as drug abuse. You are no longer a young man and you appear to have settled into a pattern of drug abuse and criminal offending. I am not satisfied that you would voluntarily and consistently engage in a program of treatment such as that recommended by Dr Furst.
In my opinion, you present as a danger to the community with regard to sexual offending and you are likely to do so, as long as you continue to abuse illicit drugs. There is nothing in the material before me which gives me confidence that you are committed to dealing with your drug abuse.
I am satisfied that there was a significant degree of premeditation involved in the commission of these offences. The inevitable inference to be drawn from the fact that you were wearing a pair of pants into the crotch of which you had cut a hole, was that the hole was intended to facilitate exposure of your penis to a victim or victims. I am also satisfied beyond any doubt that you chose your victims on this occasion because of their age and their sex.
I am left in no doubt that you were not so significantly affected by drugs that you did not know what you were doing. Your motive for committing these offences was of course sexual gratification. It is a relevant circumstance in determining the objective seriousness of these offences that you went to a school to seek out your victims. Your conduct could thus be described as predatory.
Parents, children and the wider community are entitled to expect that children will be safe in their schools. It is also apparent from the Victim Impact Statement prepared by LX's mother that this offence has had a terrible impact upon the victim and her family. LX has suffered emotionally and her self-esteem has been affected. She has also suffered socially, which has affected her mental health and enjoyment of school.
As LX's mother poignantly observed, your actions mean that the victim will, for the rest of her life, have to deal with having been the victim of sexual abuse at the age of eight.
In my opinion, nothing less than immediate terms of imprisonment are appropriate with respect to the present offences. The offence against LX falls within the upper-range of these offences, whereas the offence against SN, in my opinion, falls into the mid-range of such offences.
A significant degree of concurrency with regards to the sentences imposed for these offences is justified because both offences occurred at the same time. In other words, it was the same act on your behalf which constituted each of these offences, although the offence against LX is obviously of greater seriousness.
Sentence
With regard to each of the offences I record convictions. The recording of these convictions means that you are in breach of the Good Behaviour Order imposed in the ACT Magistrates Court in May 2018. I cancel that Good Behaviour Order.
I note that the maximum penalty for the offence of offensive behaviour is a fine of $1,000. I will impose a Good Behaviour Order for a period of three months from today, 11 February 2019, but confined to the core conditions.
I acknowledge that this will, as a matter of practicality, be ineffectual, but in light of the maximum penalty available and the sentences I am about to impose with regard to the other offences, there is little scope to do otherwise.
With regard to the offence against LX (CC18/12138), my starting point is six years' imprisonment. I will reduce that to four years and six months' imprisonment because of your early plea of guilty. That sentence will commence on 1 October 2018 and expire on 31 March 2023.
With regard to the offence against SN (CC18/12139), my starting point is three years, six months' imprisonment. I will reduce that to two years and seven months' imprisonment by reason of your plea of guilty. That sentence will commence on 1 October 2021 and expire on 30 April 2024.
The aggregate sentence of imprisonment which I have imposed is therefore five years and seven months, commencing on 1 October 2018 and expiring on 30 April 2024.
I set a non-parole period of four years commencing on 1 October 2018 and expiring on 30 September 2022.
I recommended to the Sentence Administration Board that, when considering any application for release on parole, it consider any progress which you have made towards addressing substance abuse in the AMC and also whether you have completed an adult sex offender program within that institution.
| I certify that the preceding sixty-seven [67] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: |
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