R v SM
[2017] ACTSC 288
•3 October 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v SM |
Citation: | [2017] ACTSC 288 |
Hearing Date: | 9 August 2017 |
DecisionDate: | 3 October 2017 |
Before: | Robinson AJ |
Decision: | See [52]-[61] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – seven counts of committing an act of indecency upon a person aged between 12 and 13 years old – jury returned verdicts of guilty – relationship of step grandfather and step granddaughter – breach of trust – aged between 12 and 13 years old – first two counts were moderate or less serious – remaining five counts very serious acts – no planning – victim impact statement – Pre-Sentence Report – medical report – troubled upbringing – injuries – no suggestion of contrition or remorse – prospects for rehabilitation no worse than average – gravity of offending – denouncing conduct – recognising harm – totality – sentences of imprisonment imposed |
Legislation Cited: | Crimes Act 1900 (ACT) s 61(2) Crimes (Sentencing) Act 2005 (ACT) s 7 |
Cases Cited: | Knight v State of Victoria [2017] HCA 29 Mill v The Queen [1988] HCA 70; 166 CLR 59 R v Landsman (2014) [2014] NSWCCA 328; 88 NSWLR 534 |
Parties: | The Queen (Crown) SM (Offender) |
Representation: | Counsel Ms K McCann (Crown) Mr R Davies (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 146 of 2016 |
ROBINSON AJ:
On 10 April 2017, SM, the offender, was arraigned upon an indictment on seven counts of committing an act of indecency upon a person I will call LG to protect her identity.
At the time of the offences, LG was a young person being aged between 12 and 13 years old.
The seven counts were said to have been committed in the period 18 October 2014 and 18 November 2015, a period of some 13 months.
The offender pleaded not guilty to each count.
The offence is contrary to s 61(2) of the Crimes Act 1900 (ACT) and carries a maximum penalty of 10 years imprisonment.
On 13 April 2017 the jury returned verdicts of guilty on all seven counts.
Following the jury’s verdicts, I remanded the offender in custody and his sentence will commence from this date. There has been some delay in the sentencing process not attributable to anyone’s fault.
The offences
The offender and LG stood, at the time of the offences, in the relationship of step grandfather and step granddaughter, the offender having married LG’s biological maternal grandmother (Mrs M) in 2005. The offender has known LG for all her life.
For many years prior to the offending, LG would go to her grandparents’ house, normally every second weekend, where she would stay over. LG formed, what appears to have been a very good relationship with the offender and LG apparently saw him as the father figure in her life.
It is sufficient, for present purposes, to set out the facts of each count reasonably briefly. The offender gave evidence at trial. He told the jury that the events in question simply did not happen. By their verdict, it is clear that the offender’s evidence did not raise a reasonable doubt and the jury rejected his evidence. The jury must have been satisfied beyond reasonable doubt of the truthfulness and reliability of the evidence given by LG.
The offender simply took advantage of occasions when his wife was not present. She was either not at the premises for some reason for example, shopping, or was otherwise involved in some task.
It should also be noted that both the offender and also LG were each involved in accidents, the timing of which helped date the offences. In the case of the offender, this was a very serious motorbike accident for which he was hospitalised. In the case of LG, this was a trampolining accident which required a brace.
Count 1
On a day in October 2014 LG (then 12 years old) was at her grandparents’ house in Bonython. At some point she was sitting on the lounge next to the offender. She was wearing shorts or leggings and her grandmother was not present. At some point while she was sitting on the lounge the offender touched her rubbing his hand on her right leg. LG felt uncomfortable and got up and walked away. A short time later LG returned and sat back on the lounge. The offender came closer to her and again put his hand on her right leg and slid it towards her genital region. LG moved his hand away and got up and said, “I’m going to go into the other room.” She was feeling very confused and uncomfortable.
Count 2
On a date after 19 October 2014, LG and her grandmother visited the offender in hospital. At some point while they were in the offender’s hospital room Mrs M left the room. LG was sitting on a chair next to the offender who was lying in bed. While Mrs M was out of the room the offender put his hand on LG’s leg, over her clothes, and slid his hand towards her groin resting it on her genitalia. While his hand was on her genitalia he moved his fingers in a sideways rubbing or patting motion. LG felt uncomfortable but did not know what to do. A short time later a nurse came into the room and the offender removed his hand from LG.
Count 3
On a date between 6 December 2014 and 10 March 2015, LG was in the garage of the house at Bonython with the offender. She was 12 years old at the time. Mrs M was inside the house. The weather was warm and LG was wearing shorts. The offender had been discharged from hospital, following his motorbike accident. He was doing something on a car in the garage. The offender told LG to come to him, which she did. The offender already had his penis out of his pants.
LG said, “What…what do you - what do you want me to do?”
The offender said, “Come here.”
The offender grabbed her and pulled LG closer to him and put her up against the brick wall of the garage. He kissed her neck and started to move up and down.
The offender undid the button and zipper of her shorts and put his penis inside her shorts under all of her clothes, including her underwear. The offender was leaning against LG with his head on her shoulder and touching her hips. The offender placed his penis on top of LG’s vagina and started moving and making a moaning or groaning noise.
LG could not get away because she was pinned between the wall and the offender. After about a minute, the offender stopped and LG walked out of the garage and went inside the house. She felt upset and confused about what happened.
Counts 4 and 5
On a date between 8 March 2015 and 18 November 2015, the offender and LG were inside the house at Bonython. The offender was standing near LG. She was wearing a light leg brace due to her knee injury. The weather was cold at the time. LG was between 12 and 13 years old.
The offender grabbed LG’s right hand by the wrist and put it on to his exposed penis and held her hand while moving it up and down his penis. The offender’s penis became harder while LG did this and he made a moaning or groaning noise. LG pulled her hand away from the offender and walked away from him.
This occurred twice during this period of time a couple of days or weeks apart.
On the second occasion, LG knew what the offender was going to do so she tried to pull her hand away from the offender when he grabbed it.
Count 6
LG spent the weekend of 6 November 2015 to 9 November 2015 at the offender’s residence at Bonython. She was 13 years old. The offender had picked LG up from school and taken her to tutoring on the Friday afternoon. During that weekend, LG’s grandmother went out. LG was in the kitchen making something to drink or eat in the corner of the kitchen near the kettle. The offender approached LG from behind and put his arms around her and started to kiss her on the neck. LG was pinned between the kitchen bench and the offender so she could not go anywhere. LG felt very uncomfortable. LG turned around and tried to move away from the offender.
The offender took his penis out of his jeans and put it on top of her vagina inside her pyjama shorts and began to move. The offender placed his head on LG’s shoulder. LG pushed him away and walked into Mrs M’s en suite and stood there, not knowing what to do. LG felt a bit scared, worried and uncomfortable. Afterwards, LG sat on the lounge and watched TV while the offender was outside having a smoke. Mrs M returned home after that.
Count 7
During a weekend in the period between 30 September 2014 and 9 November 2015, LG was watching television with the offender in his bed. The offender rubbed his penis against LG’s vagina.
Objective seriousness
In considering the objective seriousness of the offences I have taken into account the following matters. The first is the breach of trust involved in the offending. This included the matters recounted in [8] and [9] above. The second is the fact that LG was aged between 12 and 13 at the time of the offending, although that is also an element of the offence. The third is the actual acts of indecency performed upon LG. The first and second counts in the indictment could be said to be moderate or less serious offending coming within the section which counsel for the offender referred to as a broad church encompassing a range of acts. The last five counts, where the offender used his exposed penis to commit the act of indecency with contact with LG, is a very serious act coming within the section.
I find that there is no evidence of any degree of planning involved in the offences and that they were committed as an opportunity presented itself to the offender.
One way of demonstrating the seriousness of the combined effect of the seven indecent acts, is to take account of the consequences of the conduct. It is also one reason why deterrence and denunciation are given prominence in the sentencing of these offenders.
LG sought to prepare her own victim impact statement but was unable to owing to her distress. Her aunt, NL read in Court a statement. That statement had been read over by LG and approved by her. Ms L detailed the effects on LG of the offending conduct. LG suffered many of the now known usual consequences of children who have been sexually abused: that she felt that she was in some way blameworthy or responsible, anxiety and depression, panic attacks, sleep disturbance, fear of pregnancy, chest pains, inability to stop crying, school absenteeism, fearfulness and related consequences. Despite a loving and supportive family, medical assistance and counselling matters did not improve. A flavour of the position may be gleaned from an SMS message sent by LG to NL in May 2017.
“... I woke up and my chest hurts and I'm so over it, I cried to mum and I fell asleep only just woke up, I'm over feeling the way I do and I don't feel I'm getting better at all and I don't know. I love mum so, so much... I'm sorry [N] I'm at the point where I want to die to get the pain to go away and to just not be here anymore because there's nothing getting better my life keeps getting worse and worse."
Matters did not improve. After initially self harming, LG made an attempt to take her own life in June 2017 and was hospitalised.
There was no challenge to any material in the victim’s impact statement. (I drew counsel’s attention to R v BI (No.4) [2017] ACTSC 71 at [81]).
Criminal record
The offender has numerous traffic convictions and one offence of dishonesty several years ago. I will treat the offender as having no relevant prior record.
Subjective considerations
The offender did not give evidence at the sentencing hearing and some of the history that follows is taken from the Pre-Sentence Report and a medical report by Mr McDonald, orthopaedic surgeon.
The offender is now 60 years of age. As a result of the offences his marriage to LG’s grandmother has terminated.
The offender had a very troubled upbringing. His parent’s relationship ceased and he was sent to an orphanage in Goulburn at eight years of age. He was himself the subject of physical and sexual abuse. No evidence was led, nor submission made, that this physical and sexual abuse was connected with the offending. Upon my inquiry, it was put by counsel that it was “a Bugmy type situation”.
The evidence did not allow me to make a connection between the offender’s deprived background and the circumstances of the offending. On the contrary and to his credit, the offender overcame this start in life and was not troubled by alcohol or drugs or mental illness in the life he led.
The offender obtained a butchering apprenticeship at age 16 and although leaving that trade maintained stable employment thereafter until a very significant motor vehicle injury on 19 October 2014 whilst riding his motorcycle and being hit by a car. It is not necessary to detail his injuries. After surgeries and recovery it is likely that he will have a permanent inability to do work other than of a very light nature. He requires ongoing treatment. The injuries are being managed at AMC. There was no evidence that this was inappropriate. That situation may change but that will be a decision for prison authorities. It is obvious that the offender is incapacitated, continues to have a significant degree of discomfort and that his daily functioning is affected but no specific evidence was called that his time in AMC would be any more arduous that than outside a prison environment.
The offender does not have any difficulties with drugs or alcohol nor has he been diagnosed with any psychological conditions. I would add though that, given his permanent loss of employment opportunity, the severe physical injuries and the breakdown of his family relationships it is clear that the offender is at risk of mental deterioration.
The assessment of the risk of reoffending and of rehabilitation is complicated by the fact that the offender has not acknowledged his guilt in relation to the offending and maintains a denial of the offences. No reason was advanced in argument why this stance was taken. It could have been that the offender wishes to appeal from his conviction. I have previously set out this scenario in R v Fischetti No. 5 [2016] ACTSC 213 at [63]-[64] drawing from R v Landsman [2014] NSWCCA 328; 88 NSWLR 534.
Risk assessments were carried out by staff of ACT Corrective Services in the light of the offender’s stance referred to above. He was found to have had a medium risk of general reoffending and a low risk of sexual reoffending.
I take into account those risk assessments and I find that prospects for rehabilitation are no worse than average, the offender having, until this stage in his life, lived a productive and mainly law abiding life. The evidence as told to the historians is that the offender has formed a new relationship, meeting a young woman whilst travelling to South East Asia. No great detail was given but it may turn out to be a support for the offender.
It follows, of course, from the stance taken by the offender above, that in this case there is no suggestion of contrition or remorse. I also record that the offender’s plea of not guilty and the conduct of his defence at trial in no way increases the otherwise appropriate sentence.
Authorities
The Crown drew attention to a number of comparable sentences in a helpful table form. I have been guided by them. As is trite, each case has its own factors to consider.
Consideration
In this case I take account of all seven purposes set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT) in imposing a sentence. In this case I give some prominence to the purpose of deterrence.
I find that the offender took advantage of a vulnerable person over a period of some 13 months and in circumstances set out above.
Although I find that the actual offences were opportunistic rather than planned, there was a course of conduct involved. I do not, however, find that any of the counts has a claim to concurrency with any other count. There were seven independent counts making up the offending committed on different occasions.
The sentences I am imposing mark out the gravity of the actual offending, denounce the conduct of the offender and recognise the harm done to LG.
I am conscious that there is now a considerable body of jurisprudence calling attention to the fact that Courts should not be seen as allowing offenders to escape adequate punishment by making multiple sentences concurrent with each other. In the circumstances of this case, I must give attention to the principle of totality.
Those principles may be found in Mill v The Queen [1988] HCA 70; 166 CLR 59 at [62]-[63], and the recent observations in the case of Nguyen v The Queen [2016] HCA 17; 256 CLR 656 at [61]-[65], in the process of both structuring the sentences and then reviewing the overall result to determine whether that result adequately reflects the totality of the criminality involved.
Order
I find that no other sentence is appropriate than sentences of imprisonment.
On Count 1 of the indictment you are convicted and sentenced to 2 months imprisonment. This sentence is to commence on 13 April 2017.
On Count 2 of the indictment you are convicted and sentenced to 12 months imprisonment. This sentence is to commence on 13 April 2017.
On Count 3 of the indictment you are convicted and sentenced to 3 years imprisonment. This sentence is to commence on 13 April 2017.
On Count 4 of the indictment you are convicted and sentenced to 3 years imprisonment. This sentence is to commence on 13 April 2018.
On Count 5 of the indictment you are convicted and sentenced to 3 years imprisonment. This sentence is to commence on 13 April 2019.
On Count 6 of the indictment you are convicted and sentenced to 3 years imprisonment. This sentence is to commence on 13 April 2020.
On Count 7 of the indictment you are convicted and sentenced to 3 years imprisonment. This sentence is to commence on 13 April 2021.
The overall effective sentence is seven years imprisonment from 13 April 2017.
I order that the offender be eligible for parole after serving 3 years and 6 months. I have fixed this period as the minimum term which justice requires having regard to all the circumstances of the offence (Power v The Queen (1974) 131 CLR 623, 629; Knight v State of Victoria [2017] HCA 29 at [8]).
| I certify that the preceding sixty-one [61] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Robinson. Associate: Date: 3 October 2017 |
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